'Water
Economic Analysis for the
Final ''Revised
Definition of
of the United States'" Rule
U.S. Environmental Protection Agency
and
Department of the Army
December 2022
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Table of Contents
Table of Contents
Table of Contents ii
List of Tables v
List of Figures vii
Abbreviations viii
Executive Summary xi
I. Introduction and Overview 1
I. A Overview of Economic Analysis 2
I.B Summary of the Final Changes in Clean Water Act Jurisdiction Relative to the Secondary Baseline
4
I.B. 1 The Pre-2015 Regulatory Regime Baseline 4
I B.2 The 2020 NWPR Baseline 6
I.B.3 The Final Rule and How It Compares to Prior Regimes 9
I.B.4 Comparison of the Scope of Jurisdiction: Primary Baseline and Final Rule 36
I.B.5 Comparison of Scope of Jurisdiction: Secondary Baseline and Final Rule 37
I.C Assessing the Change in Scope of Jurisdiction with the Cowardin Classification 38
I.C. 1 Prior Methods for Assessing Change in Scope 38
I.C.2 Assessing Change in Scope between Pre-2015 Practice and the 2020 NWPR 39
I.D Economic Analysis of the Final Rule using the Primary Baseline 39
I.D. 1 Unfunded Mandate Reform Act 39
I.D.2 Executive Order 12898 Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations 40
I.D.3 Executive Orders 12866 Regulatory Planning and Review and 13563 Improving Regulation
and Regulatory Review 40
I.D.4 Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act 40
I.E I.E. Summary 42
II. State and Tribal Regulatory Practice 44
II.A "Waters of the State" 46
II.B State Regulatory Practice 46
II.B.l Regulation of Dredge and Fill Material 47
II.B.2 Surface Water Discharge Permitting 48
II.C Incorporation of State Regulations in Economic Analysis 49
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Table of Contents
III. Analysis of the Impacts of Clean Water Act Jurisdictional Changes from the Secondary
Baseline (2020 NWPR) to Final Rule 51
III .A Clean Water Act Section 311: Oil Spill Prevention, Preparedness, Reporting and Response 51
III .A. 1 Spill Prevention and Preparedness 52
III.A.2 Spill Notification and Removal 57
III.A.3 Uncertainty and Limitations for Assessing Potential Effects on Clean Water Act Section
311 Program 59
III.B Clean Water Act Section 402: National Pollutant Discharge Elimination System (NPDES) 60
III.B. 1 Potential Impacts on Individual NPDES Permits 62
III.B.2 Potential Impacts on General Permits 63
III.B.3 Potential Impacts on Section 402 State Programs 66
III.B.4 Uncertainty and Limitations for Assessing Potential Effects on Clean Water Act Section
402 Program 67
III.C Clean Water Act Section 404: Discharge of Dredged or Fill Material 67
III.C.l Potential Effects of the Final Rule on the Clean Water Act Section 404 Program 70
III.C.2 Quantitative Assessment of Potential National Impacts 72
III.C.3 Uncertainty and Limitations for Assessing Potential Effects on Clean Water Act Section
404 Program 90
III.D Other Clean Water Act Sections 94
III.D. 1 Clean Water Act Section 303: Water Quality Standards and Total Maximum Daily Loads
94
III.D.2 Clean Water Act Section 401: State and Tribal Roles 95
IV. Environmental Justice Analysis 96
IV. A Screening Analysis of the Final Rule using the Secondary Baseline of the 2020 NWPR 96
IV.B Uncertainty and Limitations 113
V. Tribal Impact Analysis 114
VI. Sector Impact Analysis 119
VII. References 123
Appendix A Using Cowardin Classification to Assess Change in Jurisdictional Scope 130
Appendix B Methodology for Generating Benefit-Transfer Predictions based on Wetland Meta-
Analysis 134
B.l. Meta-data 135
B.2. Regression Results 137
B.3. WTP prediction 142
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Table of Contents
Appendix C Final Rule Analysis: State-level Results 152
Appendix D Sensitivity Analysis of National Benefits 167
Appendix E Mapped NHD Stream Mileage and NWI Wetland Acreage by State 178
Appendix F Environmental Justice Analysis State-level Results 183
Appendix G Sector Impact Analysis State-level Results 194
Appendix H Alternative Permit Cost Estimates using Sunding and Zilberman (2002) Values.. 212
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List of Tables
List of Tables
Table 1-1: Regulatory Category Crosswalk between the Primary Baseline and the Final Rule 36
Table 1-2: Regulatory Category Crosswalk between the Secondary Baseline and the Final Rule 37
Table 1-3: Total national benefits and costs (millions 2021$) relative to primary baseline of the pre-2015
regulatory regime 40
Table II-1: States' regulatory protections under the final rule 49
Table III-1: Estimated average annual increase in mitigation requirements under the final rule relative to
the secondary baseline, based on Clean Water Act section 404 permits issued in 2010-2019, by
Cowardin code 73
Table III-2: Estimated national increase in wetland mitigation acres under the final rule relative to the
secondary baseline of 2020 NWPR 75
Table III-3: National annualized permit costs from increases in section 404 permits, relative to the
secondary baseline of the 2020 NWPR (millions 2021$) 78
Table III-4: National annualized mitigation costs from increases in mitigation requirements, relative to the
secondary baseline of the 2020 NWPR (millions 2021$) 79
Table III-5: Total national annualized compliance costs, relative to the secondary baseline of the 2020
NWPR (millions 2021$) 80
Table III-6: Total national annualized benefits, relative to the secondary baseline of the 2020 NWPR
(millions 2021$) 86
Table III-7: Estimated annualized State costs from increases in section 401 reviews, relative to the
secondary baseline of the 2020 NWPR (million 2021$) 88
Table III-8: Total national annualized benefits and costs, relative to the secondary baseline of the 2020
NWPR (millions 2021$) 89
Table III-9: WTP per 100 acres by wetland type (2021$) 92
Table IV-1: Socioeconomic characteristics of communities within HUC12 watersheds experiencing
wetland area changes, compared to national averages3 101
Table IV-2: Socioeconomic characteristics of communities within HUC12 watersheds with affected
waters, compared to national averages3 101
Table IV-3: Demographic characteristics of communities within HUC12 watersheds experiencing wetland
area changes, compared to national averages3 104
Table IV-4: Demographic characteristics of communities within HUC12 watersheds with affected waters,
compared to national averages3 104
Table IV-5: Socioeconomic characteristics of communities within HUC12 watersheds experiencing
wetland area changes, wastewater discharges, and proximity to RMP sites, compared to national
averages3 107
Table IV-6: Socioeconomic characteristics of communities within HUC12 watersheds with affected
waters, wastewater discharges, and proximity to RMP sites, compared to national averages3 108
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List of Tables
Table IV-7: Demographic characteristics of communities within HUC12 watersheds experiencing wetland
area changes, wastewater discharges, and proximity to RMP sites, compared to national averages3
110
Table IV-8: Demographic characteristics of communities within HUC12 watersheds with affected waters,
wastewater discharges, and proximity to RMP sites, compared to national averages3 Ill
Table IV-9: Cumulative environmental burden, defined by exceedances of environmental indicators, of
communities within HUC12 watersheds experiencing wetland area changes, compared to national
averages3 112
Table IV-10: Cumulative environmental burden, defined by exceedances of environmental indicators, of
communities within HUC12 watersheds with affected waters, compared to national averages3 112
Table V-l: Socioeconomic characteristics of communities within HUC12 watersheds that overlap with
Tribal areas, compared to communities that fall outside of Tribal areas 116
Table V-2: Demographic characteristics of communities within HUC12 watersheds that overlap with
Tribal areas, compared to communities that fall outside of Tribal areas 116
Table V-3: Cumulative environmental burden, defined by exceedances of environmental indicators, of
communities within HUC12 watersheds that overlap with Tribal areas, compared to communities
that fall outside of Tribal areas 117
Table VI-1: Affected Clean Water Act section 404 permits by industry sector 120
Table VI-2: Affected Clean Water Act section 404 permits by Cowardin classification 120
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List of Figures
List of Figures
Figure III-1: Cumulative increases in mitigation acres under the final rule during the 20-year analysis
period, relative to the secondary baseline of the 2020 NWPR, by HUC12 76
Figure III-2: Conceptual value diagram of public ecosystem service values from increased mitigation
requirements under the final rule 82
Figure IV-1: HUC12 watersheds experiencing wetland area changes under the final rule, as compared to
the 2020 NWPR 99
Figure IV-2: HUC12 watersheds experiencing changes in affected waters under the final rule, as
compared to the 2020 NWPR 100
Figure V-l: Tribal areas relative to HUC12 watersheds experiencing wetland area changes under the final
rule, as compared to the 2020 NWPR 114
Figure V-2: Tribal areas relative to HUC12 watersheds experiencing changes in affected waters under the
final rule, as compared to the 2020 NWPR 115
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Abbreviations
Abbreviations
ACS
American Community Survey
AFVO
Animal fats and vegetable oils
AJD
Approved jurisdictional determination
APA
Administrative Procedure Act
ASWM
Association of State Wetland Managers
BMP
Best management practice
BPJ
Best professional judgment
C&D
Construction and development
CBG
Census block group
CERCLA
Comprehensive Environmental Response, Compensation, and Liability Act
Corps
U.S. Army Corps of Engineers
CTs
Census tracts
EA
Economic analysis
ELI
Environmental Law Institute
E.O.
Executive Order
FOSC
Federal on-site coordinator
FR
Federal Register
FRP
Facility Response Plan
FTE
Full-time equivalent
HUC
Hydrologic unit code
HUC4
4-digit hydrologic unit code
HUC 12
12-digit hydrologic unit code
ICR
Information Collection Request
JD
Jurisdictional determination
LA
Load Allocation
LEDPA
Least environmentally damaging practicable alternative
MEP
Maximum extent practicable
MS4
Municipal Separate Storm Sewer System
MSGP
Multi-sector general permit
NAICS
North American Industry Classification System
NHD
National Hydrography Dataset
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Abbreviations
NOI
Notice of Intent
NPDES
National Pollutant Discharge Elimination System
NPFC
National Pollution Funds Center
NRC
National Response Center
NRCS
Natural Resources Conservation Service
NWI
National Wetlands Inventory
NWPR
Navigable Waters Protection Rule
OMB
Office of Management and Budget
OPA
Oil Pollution Act of 1990
0RM2
Operation and Maintenance Business Information Link, Regulatory Module
OSLTF
Oil Spill Liability Trust Fund
OSRO
Oil spill removal organization
PHMSA
Pipeline and Hazardous Materials Safety Administration
PJD
Preliminary jurisdictional determination
Rapanos
Rapanos v. United States, 547 U.S. 715 (2006)
RFA
Regulatory Flexibility Act
RHA
Rivers and Harbors Act
RPA
Resource and Programmatic Assessment
RPWWN
Wetlands adjacent to but not directly abutting relatively permanent waters
SBA
Small Business Administration
SBREFA
Small Business Regulatory Enforcement Fairness Act
SISNOSE
Significant Economic Impact on a Substantial Number of Small Entities
SPCC
Spill Prevention, Control and Countermeasure
SWANCC
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S.
159(2001)
SWMP
Stormwater management program
U.S. EPA
U.S. Environmental Protection Agency
TAS
Treatment in a Manner Similar as a State
TBEL
Technology-based effluent limit
TMDL
Total Maximum Daily Load
TNW
Traditional navigable waters
UMRA
Unfunded Mandates Reform Act
USD A
United States Department of Agriculture
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USGS
WLA
WTP
WQBEL
WQS
Abbreviations
United States Geological Survey
Wasteload allocation
Willingness to pay
Water quality-based effluent limit
Water quality standards
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Executive Summary
Executive Summary
Under the final rule, the U.S. Environmental Protection Agency and Department of the Army ("the
agencies") are exercising their authority to interpret "waters of the United States" to mean the waters
defined by the familiar 1986 regulations, with amendments to reflect the agencies' determination of the
statutory limits on the scope of the "waters of the United States" informed by the text of the relevant
provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme
Court precedent, and the agencies' experience and technical expertise after more than 30 years of
implementing the longstanding pre-2015 regulations defining "waters of the United States." The term
"waters of the United States" establishes the geographic jurisdictional scope of the Clean Water Act.
This action is a significant regulatory action (per Section 2(f)(4) of E.O. 12866) that was submitted to the
Office of Management and Budget (OMB) for review. Therefore, pursuant to Executive Orders 12866
(Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review), the
agencies have prepared this Economic Analysis (EA) to inform the public of potential effects associated
with this rulemaking. This analysis is not required by the Clean Water Act and the costs and benefits
analysis presented in the EA is not used by the agencies to help determine the extent of their authority
under the Clean Water Act.
This EA assesses the potential impacts of the final changes to the definition of "waters of the United
States" based on the potential effects to Clean Water Act programs that rely on that definition. A baseline
is a description of the world absent the final rule, and the economic analysis thus describes the world with
the final rule in place relative to that baseline. While the 2020 Navigable Waters Protection Rule (NWPR)
remains in the Code of Federal Regulations, two courts have vacated the rule and the agencies are now
implementing the definition of "waters of the United States" consistent with the pre-2015 regulatory
regime nationwide.1 As a result, the agencies consider two baselines in this EA: a primary baseline of the
pre-2015 regulatory regime,2 and a secondary baseline of the 2020 NWPR (85 FR 22250; June 22, 2020),
which was in effect from June 22, 2020 to August 30, 2021. The agencies' estimate based on the primary
baseline is that the final rule will have de minimis impact. This is the estimate that the agencies consider
to be the estimate that best reflects current circumstances.
On August 30, 2021, the U.S. District Court for the District of Arizona issued an order vacating and remanding the 2020
NWPR in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. The U.S. District Court for the District
of New Mexico also remanded and vacated the rule on September 27, 2021, in the case of Navajo Nation v. U.S.
Environmental Protection Agency. In light of these orders, the agencies have halted implementation of the 2020 NWPR and
have been interpreting "waters of the United States" consistent with the pre-2015 regulatory regime until further notice. EPA
and the Corps have separate regulations defining the statutory term "waters of the United States," but their interpretations
were substantially similar and remained largely unchanged between 1977 and 2015. See 42 FR 37122, 37124, 37127 (July
19, 1977); 44 FR 32854 (June 7, 1979). For convenience, the agencies in this preamble will generally cite the Corps'
longstanding regulations and will refer to them as "the 1986 regulations," "the pre-2015 regulations," or "the regulations in
place until 2015" as inclusive ofEPA's comparable regulations that were recodified in 1988 and of the exclusion for prior
converted cropland both agencies added in 1993.
The pre-2015 regulatory regime refers to the agencies' pre-2015 regulatory definition of "waters of the United States,"
implemented consistent with relevant case law and longstanding practice, as informed by applicable guidance, training, and
experience.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | xi
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Executive Summary
Although the definition of "waters of the United States" affects several Clean Water Act programs, the
quantitative analyses here focus on the Clean Water Act section 404 dredged and fill permits. These
permits are required for discharges of dredged or fill material to many types of water, and the cost
analysis focuses on costs to obtain permits, mitigation costs, and administrative costs to States for Clean
Water Act section 401 certifications for Clean Water Act section 404 permits. The monetized benefits
analysis focuses on the value of ecosystem services provided by wetland areas protected due to mitigation
requirements. Avoidance and minimization costs are not captured in the monetized benefits due to data
limitations. The agencies expect that there are important categories of benefits that are not monetized,
such as improvements in downstream water quality and reducing flood risk that could increase benefits to
the extent that they are not incorporated into the total value elicited in underlying studies.
Economic Analysis of Clean Water Act Jurisdictional Change under the Primary Baseline
The analysis of impacts relative to the primary baseline of the pre-2015 regulatory regime shows no
monetized benefits or monetized costs since the final rule restores very similar protections and would not
change current implementation sufficiently to quantifiably alter overall costs to the regulated public or
States and Tribes. Minor differences between the total scope of jurisdiction under the final rule and the
pre-2015 regulatory regime are possible based on how current agency guidance and practice compares to
the implementation practices described in the final rule. The agencies expect that there will be a slight and
unquantifiable increase in certain resources being found to be jurisdictional under the final rule in
comparison to the pre-2015 regulatory regime. These increases are related to changes in some respects to
the manner of implementing the relatively permanent standard and the significant nexus standard. As
these increases are de minimis and cannot be quantified, this rule is not economically significant relative
to the primary baseline.
The agencies expect implementation changes associated with the final rule to result in c/e minimis effects
to the Clean Water Act programs. As a result, the national annual quantified benefits of the Clean Water
Act programs are estimated to be c/e minimis, and the national quantified annual costs from the Clean
Water Act programs are estimated to be de minimis, as shown in Table ES-1. Per Executive Order (E.O.)
13563, the agencies have determined that the benefits of the final rule justify its costs, under the primary
baseline. The agencies acknowledge that there would likely be some administrative costs associated with
regulated entities as well as States, Tribes and localities reviewing the final rule language and ensuring
their activities going forward are in keeping with it. However, these administrative costs would be de
minimis. The agencies also acknowledge that there would likely be some minimal increased costs
associated with regulated entities obtaining permits and complying with mitigation requirements under
section 404 for the slight and unquantifiable increase in certain resources being found to be jurisdictional
under the final rule in comparison to the pre-2015 regulatory regime. However, as stated above, these
nationwide costs would be de minimis.
Table ES-1: Total national benefits and costs (2021$) relative to
primary baseline of the pre-2015 regulatory regime
Benefits
de minimis*
Costs
de minimis*
Net Benefits
de minimis*
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule xii
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Executive Summary
Table ES-1: Total national benefits and costs (2021$) relative to
primary baseline of the pre-2015 regulatory regime
There would likely be some costs and benefits associated with the final
rule, but on a nationwide level those costs and benefits would be so small
as to not be reasonably quantifiable.
Economic Analysis of Clean Water Act Jurisdictional Change Under the Secondary Baseline
The agencies also conducted an economic analysis relative to the secondary, or alternate, baseline of the
2020 NWPRto provide the public with best available information on the way the change in jurisdiction
under the final rule will impact various Clean Water Act programs, with an emphasis on the Clean Water
Act section 404 program because (1) the agencies have rich data from the section 404 program and (2)
experience shows the section 404 program to be the program most immediately and directly impacted by
changes to the definition of "waters of the United States." The economic analysis consists of a national
analysis of the benefits and costs of the final rule as they pertain to the Clean Water Act section 404
program and a series of qualitative assessments of the effects of the final rule on other Clean Water Act
programs. Here the agencies describe for the public the results of analyzing the final rule relative to the
secondary baseline of the 2020 NWPR.
The economic analysis under the secondary baseline has multiple components. First, it provides a national
quantitative assessment of the estimated benefits and costs of the final rule's potential effects on the Clean
Water Act section 404 program compared to the 2020 NWPR. The secondary baseline compares data
between the pre-2015 regulatory regime (i.e., the primary baseline) and the 2020 NWPR. This is because
the primary baseline poses c/e minimis changes in comparison to the final rule and because the data
available for this analysis are most strongly associated with prior jurisdictional determinations and section
404 permitting decisions made under the pre-2015 regulatory regime and the 2020 NWPR. This benefit-
cost analysis builds upon a meta-analysis of wetland valuation studies. Relative to the meta-analysis used
in the economic analysis of the proposed rule (U.S. EPA and Army, 2021), the agencies have: (1)
incorporated 11 additional studies into the meta-data (3 freshwater wetland and 8 saltwater wetland
valuation studies), (2) developed a "pooled" meta-analytic model based on meta-data from freshwater and
saltwater wetland valuation studies, and (3) implemented a benefit transfer methodology that uses a
radius-based approach to determine market extent. Second, it contains qualitative assessments of certain
programs that depend at least in part upon the definition of "waters of the United States," including the
section 311 and section 402 programs. Third, environmental justice and Tribal impact analyses assess
how the benefits associated with the final rule are distributed across vulnerable and Tribal communities
relative to society at large. Lastly, a sector impact analysis delves into which economic sectors would be
subject indirectly to the impacts of the final rule; though indirect, those impacts are included in aggregate
in this analysis.
The agencies note that the economic analysis of the secondary baseline is subject to various layers of
uncertainty regarding the potential implications of the change in Clean Water Act jurisdiction as well as
data limitations. Notably, the main challenge is quantifying the amount, type, and location of water
resources that are affected by the changing definition of "waters of the United States." For this analysis,
the agencies were able to rely on approximately one year of 2020 NWPR Clean Water Act section 404
implementation data to help predict the change between the secondary baseline of the 2020 NWPR and
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule xiii
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Executive Summary
the final rule (see Section III.C.2.1 for detail). There are uncertainties associated with both the estimation
of benefit and cost estimates. The benefit estimates, in particular, do not reflect the full scope of benefits
of this rule, as they omit known sources of benefits that are inherently difficult to quantify. Many of the
benefits provided by these water features can be episodic and highly dispersed, making them inherently
difficult to accurately quantify their aggregate effect over time and across landscapes. Examples of these
benefit categories include the ability to sequester carbon, reduce soil erosion, and retain flood waters. For
a discussion of the unquantified benefits, see section III.C.6 on analytical uncertainties.
The qualitative assessments for the Clean Water Act section 311 and 402 programs provide a national
assessment of the potential effects of this rule in cases where the agencies currently lack the datasets to
quantitatively assess the effects. The qualitative analyses are intended to provide information on the
potential direction of the effects.
National Analysis of Potential Effects and Benefits and Costs of the Final Rule on Clean Water Act
Section 404 under the Secondary Baseline
This rule could affect requirements to obtain Clean Water Act section 404 permits for certain activities in
waters where jurisdictional status would change in comparison to the 2020 NWPR. Where applicable, it
may also affect requirements for permittees to mitigate unavoidable impacts from those activities. In
comparison to the 2020 NWPR secondary baseline, there are likely to be more jurisdictional waters under
the final rule. In the context of the 2020 NWPR secondary baseline, with these additional waters there
may be an increased need to demonstrate that impacts have been minimized to the maximum extent
practicable, as well as an increased need for and amount of mitigation to offset impacts of activities.
Table ES-2 presents national estimates of the increase in wetland mitigation acres between the 2020
NWPR and the final rule. Relative to the 2020 NWPR secondary baseline, permanent wetland mitigation
acres are estimated to increase by 1,406.3 annually and temporary mitigation acres by 265.1 annually.
Under the final rule, the increase in wetland mitigation acres would accumulate over time. The
cumulative increase in wetland acres from an increase in mitigation requirements over a 20-year
timeframe (between 2023 and 2042) is 32,099.5 acres.
Table ES-2: Estimated national increase in wetland mitigation acres under the final rule relative
to the secondary baseline of 2020 NWPR
Annual Average Increase in Wetland Mitigation Acres
Cumulative Increase in Wetland Mitigation
Acres (20 years)1
Permanent
Temporary
Total
Permanent
Temporary
Total
1,406.3
265.1
1,671.4
28,122.1
3,977.4
32,099.5
1 The cumulative increase in the permanent wetland mitigation acres assumes a linear trend over a 20-year period from
2023 to 2042. The temporary increase in wetland mitigation acres assumes a linear trend over a 15-year period from 2028 to
2042. The 5-year lag in benefits from mitigation measures for temporary impacts is based on discussion with the Corps and
accounts for the time required for temporarily impacted areas to return to their original state.
It is possible to estimate, quantify, and value some but not all the potential effects of the final rule.
Accordingly, for the secondary baseline, the agencies focused on potential Clean Water Act section 404
program impacts of the final rule for which data are sufficient to develop quantitative estimates. Inputs for
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule xiv
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Executive Summary
this analysis include the Clean Water Act section 404 permit data from the U.S. Army Corps of
Engineers" (Corps') Operation and Maintenance Business Information Link, Regulatory Module (ORM2)
database, which the agencies used to predict the number of permits potentially affected by the final rule,
as well as Corps ORM2 data on jurisdictional determinations (JD), which the agencies used to identify
affected resources that may change status under the final rule, as compared to the 2020 NWPR. To
estimate potential costs, the agencies used a similar methodology as used in the analysis of the 2020
NWPR (U.S. EPA and Army, 2020a). As shown in Table ES-3, total estimated national annualized social
costs (including permitting and mitigation costs and State costs from increases in section 401 reviews)
ranged from $218 million to $547 million at a 3% discount rate. Using a 7% discount rate, total estimated
national annualized costs range from $227 million to $569 million. The national cost estimates presented
in the proposal analysis did not include cost estimates for those States that the agencies considered to
have State-level permitting programs commensurate with the proposed regulations. However, the
agencies received public comments recommending that the national level cost and benefit estimates
include these States. As a result, the national cost and benefit estimates presented in the economic
analysis for the final rule are for all States, except Hawaii and the District of Columbia which lacked
sufficient data to base estimates on. Appendix C presents State-level cost estimates.
Table ES-3: Total national annualized compliance costs, relative to the secondary baseline of
the 2020 NWPR (millions 2021$)
Cost Category
3% Discount Rate1
7% Discount Rate1
Low
High
Low
High
Mitigation Costs
$175.8
$390.3
$182.6
$405.5
Permit Costs
$41.7
$136.2
$43.3
$141.5
State costs from
increases in section 401
reviews
$0.6
$21.0
$0.7
$21.8
Total2
$218.0 +A
$547.5 + A
$226.6 +A
$568.7 +A
1 Total costs annualized over the 2023-2042 analysis period. Reflects expected costs in 49 States (excludes Hawaii and
District of Columbia).
2 The "A" represents unquantified costs such as those for avoidance and minimization efforts required under Clean Water
Act section 404 permits and those costs that may occur under the Clean Water Act section 311, 401, and 402 programs.
To estimate benefits, the agencies relied upon a wetland valuation meta-analysis function. The meta-
analysis uses the results of multiple wetland valuation studies to derive an underlying valuation function
that can be adjusted and applied nationally (see Appendix B for detail). The agencies applied several
benefit transfer approaches which differed in their assumptions of the extent of the market for wetlands.
This included benefit transfer approaches which assumed market extents of 50-, 100-, and 200-miles from
county centroids, and a benefit transfer approach which assumed market extents were limited to state
boundaries. In general, larger market extents lead to larger benefits. As shown in Table ES-4, the
estimated annualized national benefits under the secondary baseline of the 2020 NWPR, using a 3%
discount rate, range between $1,402 million (using a 50-mile radius as market extent) and $2,190 million
(using a 200-mile radius as market extent). The agencies note that even though mean per household
willingness-to-pay (WTP) is lower for larger market areas (because of larger baseline wetland areas), the
summation of values over larger populations leads to larger aggregate population-level WTP. Using a 7%
discount rate, total estimated national annualized benefits range from $1,206 million to $1,885 million.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | xv
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Executive Summary
Table ES-4: Total national annualized benefits, relative to the secondary baseline of the 2020
NWPR (millions 2021$)
Extent of the
market
Number of affected
households in 2019
(millions)1'2'3
Average household
WTP per 100 acres
(2021$)1'4
Total annualized benefits
(millions 2021$)1'5'6
3% Discount Rate
7% Discount Rate
50-mile Radius
120.0
$7.59
$1,401.7 + B
$1,205.5 + B
100-mile Radius
$2.70
$1,601.0+ B
$1,377.2 + B
200-mile Radius
$1.41
$2,189.8+ B
$1,884.6 + B
State-level
$1.24
$2,034.5 + B
$1,752.3 + B
1 Based on the number of households in all States excluding Hawaii and the District of Columbia.
2 Number of households is based on 2019 American Community Survey data. The agencies accounted for population growth
and the change in the number of households throughout the 2023-2042 study period using population projections from
Hauer et al. (2021).
3 The same number of acres are protected under the rule regardless of what radii are used. However, the acreage of
protected wetlands that households have WTP for does vary based on the radius selected. The radii chosen also effects the
proportion of protected wetlands that are considered either local or non-local.
4 For buffer-level market extents, benefit estimates are based on a benefit transfer application of the Pooled Model to 50-
mile, 100-mile, and 200-mile buffers of county centroids for counties in the conterminous United States (excluding Hawaii,
Alaska, and the District of Columbia; see Appendix B for detail). For the state-level market extent, benefit estimates are
based on a benefit transfer application of the Pooled Model to all States (excluding Hawaii and the District of Columbia; see
Appendix D for detail). The household WTP per 100 acres estimates shown are averages across States or Counties.
5Total benefits are annualized over the 2023-2042 analysis period. Given data limitations, benefits could not be calculated
for Alaska at a level finer than the State (i.e., at a county-equivalent level) for the 50-mile, 100-mile, and 200-mile buffer
market extents. National benefits for the three buffer market extents include estimated benefits for Alaska using a State-
specific benefit transfer.
6 The "B" represents unquantified benefits such as those for wetlands and streams protected through avoidance and
minimization efforts required under Clean Water Act section 404 permits, carbon sequestration benefits, and those benefits
that may occur under the Clean Water Act section 311, 401, and 402 programs.
The monetized benefit estimates do not fully account for all benefits, such as the water quality benefits
associated with avoidance and minimization efforts and benefits associated with upstream and
downstream connectivity of wetlands. Many of the benefits provided by these water features can be
episodic and highly dispersed, making it inherently difficult to accurately quantify their aggregate effect
over time and across landscapes. For a discussion of the unquantified benefits, see Section III.C.3 on
analytical uncertainties. Relative to the secondary baseline of the 2020 NWPR, using a 3 percent discount
rate, the low estimates for benefits and costs result in net benefits of $1,184 million. Similarly, the high
estimates for benefits and costs result in net benefits of $1,642 million. Different factors led to the ranges
for costs and benefits, such that low/high benefits are not necessarily correlated with low/high costs.3 Net
benefits could thus range from $854 million (if low benefit estimates are combined with high cost
estimates) to $1,972 million (if high benefit estimates are combined with low cost estimates). The
unquantified costs (A) and unquantified benefits (B) would also contribute B-A to any estimate of net
benefits, though this unquantified estimate is not expected to negate the positive net benefits. Thus, under
Because low and high estimates of benefits and costs are driven by different factors (i.e., extent of the market vs. mitigation
cost per acre or linear foot), they are unlikely to be correlated.
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E.O. 13563, the agencies would interpret the benefits of this rule as justifying its costs, as compared to the
secondary baseline of the 2020 NWPR.
The monetized benefit estimates do not have a linear relationship to estimated acres of avoided wetland
losses. The primary reason is the wide range of estimated household ("HH") WTP for avoided wetland
losses (see the Table ES-5 below). The average household ("HH") WTP estimate varies geographically,
by county, as do estimates of avoided losses of wetlands. Relevant factors, such as household income and
geographic region of the country contribute to this observed variation in HH WTP. In particular, the
proportion of wetlands that are forested has a large effect on HH WTP. The Table ES-5 shows that the
average HH WTP for both forested local and non-local wetlands have wider ranges and higher mean
values than the non-forested wetlands categories.
Table ES-5: WTP per 100 acres by wetland type (2021$)
WTP per 100 Acres1
Wetland Type
Minimum
Mean
Maximum
Local, forested
$1.62
$28.55
$56.35
Local, non-forested
$0.23
$3.07
$6.14
Non-local, forested
$0.07
$1.28
$2.59
Non-local, non-forested
$0.01
$0.15
$0.30
1 The WTP values per 100 acres are based on the estimated minimum, mean, and maximum values
across all counties included in the analysis.
The geographic variation in population density also contributes to the non-linear relationship between
benefit estimates and avoided wetland losses. An acre of protected wetlands generates significantly more
benefits in a highly populated urban area compared with a rural area, due to the much larger number of
households estimated to value it. The Table ES-5 also shows the importance of whether a protected
wetland is considered local or non-local. Both forested and non-forested local wetlands have a
significantly higher WTP than forested and non-forested non-local wetlands. The numbers of local and
non-local wetlands valued by households are a direct result of the buffer distances chosen, and the
national benefit estimates demonstrate a high sensitivity to the buffer distances for both local avoided
wetland losses (i.e., 30 miles) and non-local avoided wetland losses (i.e., 50, 100, and 200 miles). The
combination of these factors results in some counties in some states being particularly influential in the
wetlands benefit transfer results.
Outside of this rulemaking, the agencies plan to further refine aspects of their approach to valuing
benefits associated with preserving wetlands, including incorporating ecosystem service effects. The
agencies plan to undertake peer review on aspects of their approach including examination of influential
variables and the agencies" application of the meta-analysis.
State and Tribal Secondary Baseline Protections
The agencies examined the extent to which waters were protected by State and Tribal laws and
regulations while the 2020 NWPR was in effect. The agencies assessed State programs under the 2020
NWPR jurisdictional change with respect to aquatic resource protections and water quality protections for
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"waters of the State." States with more protective State regulations on "waters of the State" may see fewer
costs and benefits associated with this final rule in comparison to those States with fewer State
regulations on "waters of the State." After receiving public comment on the proposed method for
assessing State costs and benefits, the agencies have changed this portion of the analysis to a qualitative
discussion of State regulatory programs. The agencies do not exclude any portions of costs and benefits
for given States from the overall quantitative analysis. The assessments of current State programs can be
found in the Supplementary Material to this EA (U.S. EPA and Army, 2022a; hereafter, "regulatory
compendium").4
Potential Effects of the Final Rule Relative to Secondary Baseline on Other Major Clean Water Act
Programs
The definition of "waters of the United States" affects the implementation of other Clean Water Act
programs, including the section 303(c) water quality standards program, the section 311 oil spill
prevention program, the section 401 water quality certification program, and the section 402 NPDES
permit program. A revised definition of "waters of the United States" will affect these Clean Water Act
programs at both the federal and State level. Potential effects may vary based on a State's authority under
its own State law to address aquatic resources and their capacity to address these aquatic resources
through non-regulatory efforts.
Clean Water Act Section 402
Facilities that currently have a NPDES permit under Clean Water Act section 402 or under an authorized
State program can be assumed to either discharge to a "water of the United States" or to waters that
convey pollutants downstream to a jurisdictional water. It is possible that over time some dischargers
could have forgone permits due to the 2020 NWPR's narrower definition of "waters of the United States";
however, this is not something the agencies observed during the one year the rule was implemented. It is
possible that reinstating protections on certain receiving waters may move the compliance point for a
given discharger and result in incremental costs to meet any more stringent limits if the discharger sought
relaxed limits after the 2020 NWPR was promulgated, but these costs are expected to be minimal. The
incremental costs would be more likely if the State did not protect these immediate receiving waters under
State law.
Clean Water Act Section 311
Section 311 of the Clean Water Act, Oil Spill Prevention, Preparedness, Reporting and Response,
includes two main components that address the risk and harm from oil spills: (1) spill prevention
requirements contained in the EPA's Spill Prevention, Control, and Countermeasure (SPCC) and worst
case discharge preparedness requirements in EPA's Facility Response Plan (FRP) regulations for non-
transportation related facilities and in the United States Coast Guard and Department of Transportation
4 Available in the docket for this rule, Docket ID Number EPA-HQ-OW-2021-0602. This document is also referred to as the
Updated State Snapshots.
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regulations for transportation-related facilities, and (2) spill notification and response, as described under
the National Contingency Plan.
Applicability of the SPCC and FRP depends on whether there is a reasonable expectation that a discharge
from the facility could reach navigable waters based on geographical and locational aspects of the facility,
and therefore changes in Clean Water Act jurisdiction could affect the need for compliance with both
SPCC and FRP requirements for some facilities. The agencies estimate that approximately 550,000
facilities are currently subject to SPCC requirements and about 3,800 facilities are subject to FRP
requirements.
The agencies do not believe the 2020 NWPR caused a substantive change to the compliance costs subject
to SPCC and FRP requirements or changed the number of pipeline or rail operators that are required to
prepare and maintain facility response plans. The agencies believe that most facilities still chose to
continue to implement spill prevention measures that are considered good engineering practices for their
industry, such as secondary containment, overfill prevention, practices to ensure the safe transfer of oil to
bulk storage containers and visual inspections of bulk storage containers while the agencies pursue this
rulemaking. The agencies also did not observe that changes in the scope of "waters of the United States"
under the 2020 NWPR had a material effect on spill notification and response. Accordingly, the agencies
anticipate that impacts of the final rule on the Clean Water Act section 311 program would not be
significant.
Clean Water Act Section 303
The potential effect of the definitional change on the number of waterbodies added to the impaired waters
list (and subsequent total maximum daily load (TMDL) development) is uncertain. Absent the application
of the Clean Water Act to waters that would return to being jurisdictional under the final rule, States and
Tribes can still choose to impose similar State or Tribal law requirements on these waters irrespective of
federal mandates. Some States have developed standards for certain categories of water (e.g., ephemeral
features) that could be jurisdictional under the final rule but not jurisdictional under the secondary
baseline of the 2020 NWPR, and others have not. The development and revision of Statewide or Tribal
water quality standards is typically an ongoing process, so changes that the 2020 NWPR could have
precipitated might not have appeared during the year that it was in effect.
Changes in Clean Water Act jurisdiction could lead to requests for changes in TMDL waste load
allocations (WLAs) for point sources and load allocations (LAs) for nonpoint sources. The agencies do
not know what share of the currently more than 73,000 completed TMDLs nationwide covered waters
were affected by the 2020 NWPR under the secondary baseline and would return to being jurisdictional
under the final rule.
Clean Water Act Section 401
Under the final rule, the number of Clean Water Act section 404 permits would be expected to increase
since certain features would no longer be categorically excluded from the definition of "waters of the
United States." An increase in Clean Water Act section 404 permits could result in costs to States and
authorized Tribes by increasing the number of section 401 reviews and required staff time.
Simultaneously, it could increase environmental and social benefits related to section 401 reviews.
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Forty-seven States and one U.S. territory have been authorized to administer all or parts of the Clean
Water Act section 402 program. States that have not been authorized to administer the section 402
program and Tribes authorized to administer section 401 would continue to have the opportunity to
complete section 401 certification on EPA-issued section 402 permits. If there are a larger number of
EPA-issued section 402 permits, then there would be an increase in the number of section 401 reviews,
associated staff time and associated environmental and social benefits.
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I Introduction and Overview
I. Introduction and Overview
Under the final rule, the U.S. Environmental Protection Agency and Department of the Army ("the
agencies") are exercising their authority to interpret "waters of the United States" to mean the waters
defined by the regulations in place prior to the 2015 Clean Water Rule defining "waters of the United
States," with amendments to reflect the agencies' determination of the statutory limits on the scope of the
"waters of the United States" informed by Supreme Court precedent, the best available science, and the
agencies' experience and technical expertise. "Waters of the United States" is a foundational term
establishing the geographic jurisdictional scope of the Clean Water Act.
On January 20, 2021, the Biden administration issued Executive Order 13990 entitled "Protecting Public
Health and the Environment and Restoring Science to Tackle the Climate Crisis." Executive Order 13990
directs federal agencies to review all existing regulations, orders, guidance documents, policies, and any
other similar agency actions promulgated, issued, or adopted between January 20, 2017, and January 20,
2021, including the Navigable Waters Protection Rule (2020 NWPR). Executive Order 13990 also
specifically revoked Executive Order 13778 of February 28, 2017 ("Restoring the Rule of Law,
Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule"), which had
resulted in promulgation of the 2020 NWPR. Beginning on June 9, 2021, the agencies filed declarations
from EPA Assistant Administrator Radhika Fox and Acting Assistant Secretary of the Army for Civil
Works Jaime A. Pinkham in multiple district court challenges to the 2020 NWPR, stating that the
agencies had completed their review of the 2020 NWPR and determined the rule must be replaced.5
On August 30, 2021, the U.S. District Court for the District of Arizona issued an order vacating and
remanding the 2020 NWPR. Pascua Yaqui Tribe v. EPA, No. 4:20-cv-00266, 2021 WL 3855977 (D.
Ariz. Aug. 30, 2021). On September 2, 2021, the Department of the Army directed the U.S. Army Corps
of Engineers (Corps) to resume conducting approved jurisdictional determinations nationwide consistent
with the pre-2015 "waters of the United States" regulatory regime. The pre-2015 regulatory regime refers
to the agencies' pre-2015 regulatory definition of "waters of the United States" at 33 CFR 328.3,
implemented consistent with relevant case law and longstanding practice, as informed by applicable
guidance, training, and experience. On September 27, 2021, the U.S. District Court for the District of
New Mexico also remanded the 2020 NWPR to EPA and the Army and vacated the rule. Navajo Nation
v. EPA, No. 2:20-cv-00602 (D.N.M. Sept. 27, 2021).
The agencies are exercising their authority to interpret "waters of the United States" to mean the waters
defined by the regulations in place prior to the 2015 Clean Water Rule defining "waters of the United
States," with amendments to reflect the agencies' determination of the statutory limits on the scope of the
"waters of the United States" informed by Supreme Court precedent, the best available science, and the
agencies' experience and technical expertise. As a result of the Pascua Yaqui and Navajo Nation vacaturs,
this rule generally will establish a familiar legal framework.
5 Declarations of Radhika Fox and Jaime A. Pinkham, filed in Conservation Law Found, et al. v, EPA et al., 20-cv-10820-DPW
(D. Mass. Jim. 9, 2021) as well as in every other district court challenge to the 2020 NWPR.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule
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I Introduction and Overview
This Economic Analysis (EA) assesses the potential impacts of the changes to the definition of "waters of
the United States" based on the potential effects on the Clean Water Act programs that rely on the
definition of "waters of the United States." Two baselines are presented: a primary baseline of the pre-
2015 regulatory regime and a secondary baseline of the 2020 NWPR. For purposes of meeting the
statutory and executive order requirements for a significant rulemaking, the primary baseline of the pre-
2015 regulatory regime is used. This analysis is consistent with the fact that the agencies are
implementing the pre-2015 regulatory regime since the Pascua Yaqui and Navajo Nation vacaturs. An
economic analysis using the secondary baseline of the 2020 NWPR is also provided because it provides
the public with best available information about the forecast of impacts of the final rule compared to the
2020 NWPR. This method of using two baselines is consistent with the EPA's Guidelines for Preparing
Economic Analyses (U.S. EPA, 2010) and the Office of Management and Budget (OMB) Circular A-4
(U.S. Office of Management and Budget, 2003) regarding developing multiple baselines.
I.A Overview of Economic Analysis
This EA is organized as follows. Chapter One provides an overview of this document, with the EA
conducted relative to two baselines. Chapter Two qualitatively describes how State regulatory programs
potentially function in concert with federal protections. Chapter Three contains the analysis of the
potential impacts of this rule on Clean Water Act programs and a national-scale evaluation of the Clean
Water Act section 404 program, relative to the secondary baseline. Chapter Four provides an
Environmental Justice Analysis relative to the secondary baseline. Chapter Five presents a Tribal Impacts
Analysis relative to the secondary baseline, and Chapter Six presents a Sector Impact Analysis relative to
the secondary baseline.
Chapter One is organized as follows. The remainder of this section provides a high-level overview of the
methodology used in Chapter Three. Section l.B includes a summary of changes in Clean Water Act
jurisdiction between the two baselines and the final rule. Section l.C summarizes how the Cowardin
Classification system was used as part of assessing the change in scope of jurisdiction. Section l.D
includes the complete results of the economic analysis relative to the primary baseline. Finally, Section
l.E contains the chapter summary.
For the secondary baseline analysis, the agencies considered a geospatial analysis of the regulatory option
by identifying specific waterbodies that would potentially not be jurisdictional under the 2020 NWPR but
would be jurisdictional under the final rule. However, the agencies determined that they could not easily
approximate the categories of waters that the 2020 NWPR does and does not protect using the most
comprehensive and nationally consistent geospatial surface hydrology and wetland data available, the
National Hydrography Dataset (NHD; U.S. Geological Survey, n.d.) and the National Wetlands Inventory
(NWI; U.S. Fish and Wildlife Service (U.S. FWS), n.d.). For example, certain waters were categorically
excluded under the 2020 NWPR (e.g., ephemerals); however, such features may be jurisdictional as non-
relatively permanent waters based on a case-specific significant nexus analysis under the final rule. Thus,
the agencies did not use the NHD or NWI to assess potential changes in jurisdiction as a result of
replacing the 2020 NWPR with the final rule. Rather, the agencies used Clean Water Act section 404
jurisdictional determination data to estimate the change in waters requiring permit protection under the
two regulatory regimes. For the primary baseline, the extent of this analysis is nested within Section I.B.3,
and the overall conclusion is that the differences are de minimis between the primary baseline and final
rule. For the secondary baseline, outcomes of approved jurisdictional determinations (AJDs) under the
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I Introduction and Overview
pre-2015 regulatory regime are compared to those from the 2020 NWPR. AJDs that were based on either
the Rapanos Guidance or 2020 NWPR were used to estimate the probability of different types of water
features being a "water of the United States" under either regulatory regime. By contrast, the agencies did
not use preliminary jurisdictional determinations (PJDs) to estimate probabilities because under a PJD,
the site owner voluntarily waives or sets aside questions regarding Clean Water Act jurisdiction over a
particular site and thus moves forward without a formal determination assuming all waters will be treated
as jurisdictional. The difference in the probability of being a "water of the United States" under these two
regulatory regimes was used to estimate the likely extent of change in jurisdiction for different types of
water features. This approach allowed the agencies to perform a national analysis of the potential change
in benefits and costs to society of moving from the secondary baseline of the 2020 NWPR to the final
rule. See Section III.C.2 for more details.
This national analysis is limited to the Clean Water Act section 404 program for two reasons. First, the
agencies do not have sufficient national data to perform a similar analysis for the waters affected by the
Clean Water Act sections 402, 311, and other programs. Secondly, the agencies continue to believe that
likely jurisdictional changes under the 2020 NWPR did not have a substantial effect on the universe of
activities covered by these other Clean Water Act programs during the short time it was in effect, as
discussed in more detail in Sections III.A (section 311), III.B (section 402), and III.D (sections 303 and
401).
There are several supporting documents to this EA, including an updated snapshot of the applicable
regulatory and legal framework currently in place in States and on Tribal lands to provide context for how
aquatic resources are protected (see Supplementary Material), a detailed appendix of how change in
jurisdictional scope was quantified (Appendix A), a wetland meta-analysis (Appendix B), the State-level
results of the overall analysis (Appendix C), a sensitivity analysis of national benefits from increases in
wetland mitigation requirements (Appendix D), mapped NHD stream mileage and NWI wetland acreage
by State (Appendix E), State-level results for the environmental justice analysis (Appendix F), a sector
impact analysis which tracks economic sectors that tend to directly or indirectly be involved in Clean
Water Act section 404 permitting (Appendix G), and alternative permit cost estimates using Sunding and
Zilberman (2002) values (Appendix H). Additional appendices are provided to detail protocols used in
analyses or to summarize findings via supplementary figures and tables.
EPA's Science Advisory Board (SAB) also reviewed aspects of the proposed rule EA. On March 7, 2022,
the Chartered SAB unanimously voted to review the scientific and technical basis of the proposed rule.
The SAB formed a Work Group of its chartered members which issued a draft review on May 9, 2022,
and the SAB issued their final review on July 5, 2022 (EPA-SAB-22-005). All materials related to the
SAB's review are available in the docket for this rule and on the SAB's website. The SAB's review was
generally favorable towards the approaches taken in the proposed rule EA. The SAB made
recommendations for improvement of the EA, particularly regarding the environmental federalism
approach and the continued non-monetization of certain benefits. The SAB indicated that the agencies'
plans for expanding the environmental justice analysis for this rule were appropriate and provided
recommendations for improving and clarifying the analysis. Many of the substantive recommendations
provided by the SAB on the EA were also received as part of the public notice process on the proposed
rule. A memorandum summarizing the agencies' interactions with the SAB and the SAB's review of the
proposed rule and its supporting documents is available in the docket for this rule.
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I Introduction and Overview
I.B Summary of the Final Changes in Clean Water Act Jurisdiction Relative to
the Secondary Baseline
I.B.I The Pre-2015 Regulatory Regime Baseline
The definition of the term "waters of the United States" in the 1986 regulations6 is defined at paragraph
(a) of that rule as follows:
1. All waters which are currently used, or were used in the past, or may be susceptible to use in
interstate or foreign commerce, including all waters which are subject to the ebb and flow of the
tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams),
mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural
ponds, the use, degradation or destruction of which could affect interstate or foreign commerce
including any such waters:
i. Which are or could be used by interstate or foreign travelers for recreational or other
purposes; or
ii. (From which fish or shellfish are or could be taken and sold in interstate or foreign
commerce; or
iii. Which are used or could be used for industrial purposes by industries in interstate
commerce;
4. All impoundments of waters otherwise defined as waters of the United States under this
definition;
5. Tributaries of waters identified in paragraphs (a)(1) through (4) of this section;
6. The territorial seas;
7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in
paragraphs (a)(1) through (6) of this section;
8. Waters of the United States do not include prior converted cropland. Notwithstanding the
determination of an area's status as prior converted cropland by any other Federal agency, for the
purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction
remains with EPA.
6 EPA and the Corps have separate regulations defining the statutory term "waters of the United States," but their interpretations
were substantially similar and remained largely unchanged between 1977 and 2015. See, e.g., 42 FR 37122, 37144 (July 19,
1977); 44 FR 32854, 32901 (June 7,1979). For convenience, in this document and in the preamble the agencies will
generally cite the Corps' longstanding regulations and will refer to them as "the 1986 regulations," "the pre-2015
regulations," or "the regulations in place until 2015." These references are inclusive of EPA's comparable regulations that
were recodified in 1988 and of the exclusion for prior converted cropland, which both agencies added in 1993.
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I Introduction and Overview
9. Waste treatment systems, including treatment ponds or lagoons designed to meet the
requirements of CWA (other than cooling ponds as defined in 40 CFR 423.1 l(m) which also
meet the criteria of this definition) are not waters of the United States.
Due to Supreme Court decisions, the agencies' implementation of the 1986 regulations differs from the
straight text of the regulations. The agencies' pre-2015 practice is informed by applicable agency
guidance documents and consistent with Supreme Court's decisions in United States v. Riverside Bayview
Homes, SWANCC, and Rapanos and longstanding agency practice. When this document refers to the
categories of "waters of the United States" used in the 1986 regulations, the agencies are specifically
referring to the categories as they are implemented under the pre-2015 regulatory regime.
Under pre-2015 practice, the agencies assert jurisdiction over the following waters without need for a
significant nexus analysis:
traditional navigable waters, interstate waters, and the territorial seas;7
wetlands adjacent to traditional navigable waters, interstate waters, and the territorial seas;
impoundments of jurisdictional waters;8
non-navigable tributaries of traditional navigable waters, interstate waters, or the territorial seas
that are relatively permanent (/'. e., where the tributaries typically flow year-round or have
continuous flow at least seasonally); and
wetlands that directly abut such tributaries.
Under pre-2015 practice, the agencies assess whether the following waters are jurisdictional based on a
case-specific analysis to determine whether they have a significant nexus with a traditional navigable
water, interstate water, or the territorial seas:
non-navigable tributaries that are not relatively permanent;
wetlands adjacent to non-navigable tributaries that are not relatively permanent; and
wetlands adjacent to, but that do not directly abut, a relatively permanent non-navigable tributary.
Under pre-2015 practice, the agencies utilize the 2003 SWANCC Guidance for determinations that are
made under the (a)(3) category of that rule. The Guidance stated that in light of the SWANCC decision,
the agencies should not assert Clean Water Act jurisdiction over waters under the (a)(3) category of the
1986 regulations, where the sole basis available for asserting jurisdiction rests on any of the factors listed
in the "Migratory Bird Rule" and also established coordination procedures for paragraph (a)(3) "other
7 Although interstate waters and the territorial seas were not addressed in the Supreme Court decisions, the agencies have long
recognized that protecting these waters, along with traditional navigable waters is a fundamental aim of the Clean Water
Act, and thus have treated such waters in a similar manner to traditional navigable waters. All three categories of waters are
waters where the federal interest is indisputable.
8 Impoundments were not addressed directly by the Riverside Bayview, SWANCC, or Rapanos Supreme Court decisions, but
under pre-2015 practice impoundments of jurisdictional waters remain jurisdictional.
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I Introduction and Overview
waters." See 68 FR 1991, 1995 (January 15, 2003) ("field staff should seek formal project-specific
Headquarters approval prior to asserting jurisdiction over such waters, including permitting and
enforcement actions"). While the agencies' regulations have long authorized the assertion of jurisdiction
on a case-specific basis over waters that do not fall within the jurisdictional provisions by water type,
since SWANCC and the issuance of the SWANCC Guidance with its requirement of headquarters approval
over determinations under that provision, the agencies have not in practice asserted jurisdiction over
paragraph (a)(3) "other waters" under the pre-2015 regulatory regime.9
I.B.2 The 2020 NWPR Baseline
The agencies' definition of "waters of the United States" under the 2020 NWPR, the secondary baseline,
encompassed the following waters:
• The territorial seas and traditional navigable waters (traditional navigable waters) (paragraph (a)(1)
waters under the 2020 NWPR);
• Tributaries (paragraph (a)(2) waters under the 2020 NWPR);
• Lakes and ponds, and impoundments of jurisdictional waters (paragraph (a)(3) waters under the 2020
NWPR); and
• Adjacent wetlands (paragraph (a)(4) waters under the 2020 NWPR).
The 2020 NWPR grouped the territorial seas and traditional navigable waters (including waters which are
subject to the ebb and flow of the tide) as "waters of the United States" into paragraph (a)(1) of that
definition to simplify the regulation. The 2020 NWPR eliminated interstate waters as a separate,
standalone category of jurisdictional waters. Under the 2020 NWPR, interstate waters were jurisdictional
only where they fell within another category of jurisdictional waters under the rule.
The agencies included tributaries of the territorial seas and traditional navigable waters as "waters of the
United States" in the 2020 NWPR. The 2020 NWPR defined "tributary" to mean:
A river, stream, or similar naturally occurring surface water channel that contributes surface
water flow to a paragraph (a)(1) water in a typical year either directly or indirectly through one or
more paragraph (a)(2) through (4) waters. A tributary must be perennial or intermittent in a
typical year. The alteration or relocation of a tributary does not modify its jurisdictional status as
long as it continues to satisfy the flow conditions of this definition. A tributary does not lose its
jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a
typical year through a channelized non-jurisdictional surface water feature, through a
subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or through a debris
pile, boulder field, or similar natural feature. The term tributary includes a ditch that either
9 Note that when the 2015 Clean Water Rule was in effect, the agencies did assert jurisdiction over waters that would have been
known as paragraph (a)(3) "other waters," by rule if they were adjacent waters as defined by that rule and on a case-specific
basis if they fell within the provisions requiring case-specific significant nexus determinations. The 2020 NWPR also
asserted jurisdiction over certain lakes and ponds that would have been jurisdictional as paragraph (a)(3) "other waters."
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relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long
as the ditch satisfies the flow conditions of this definition.
"Perennial" was defined as "surface water flowing continuously year-round." "Intermittent" was defined
as "surface water flowing continuously during certain times of the year and more than in direct response
to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts)."
"Ephemeral" was defined as "surface water flowing or pooling only in direct response to precipitation
(e.g., rain or snow fall)." The 2020 NWPR's definition of "tributary" included only those rivers and
streams with perennial and intermittent flow. The agencies used the term "reach" in the 2020 NWPRto
mean a section of a stream or river along which similar hydrologic conditions exist, such as discharge,
depth, area, and slope.
Ditches were not a standalone category in the 2020 NWPR, but they were jurisdictional if they were
traditional navigable waters (including tidal ditches) or if they were tributaries. The term "tributary," as
defined in the 2020 NWPR, included those ditches that either relocated a tributary, were constructed in a
tributary, or were constructed in adjacent wetlands as long as those ditches satisfied the flow conditions of
the 2020 NWPR's "tributary" definition. The term "ditch" was defined as "a constructed or excavated
channel used to convey water." Portions of ditches constructed in adjacent wetlands were also
jurisdictional as adjacent wetlands if they satisfied the definition of "tributary."
The 2020 NWPR included lakes, ponds, and impoundments of jurisdictional waters as a separate category
of "waters of the United States." "Lakes and ponds, and impoundments of jurisdictional waters" were
defined to mean:
standing bodies of open water that contribute surface water flow to a territorial sea or traditional
navigable water in a typical year either directly or through one or more jurisdictional waters. A
lake, pond, or impoundment did not lose its jurisdictional status if it contributed surface water
flow to a downstream jurisdictional water in a typical year through a channelized non-
jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature,
or through a debris pile, boulder field, or similar natural feature. A lake or pond, or impoundment
of a jurisdictional water was also jurisdictional if it were inundated by flooding from a territorial
sea, a traditional navigable water, a tributary, or another jurisdictional lake, pond, or
impoundment of a jurisdictional water in a typical year.
The fourth and final category of "waters of the United States" in the 2020 NWPR was adjacent wetlands.
The 2020 NWPR defined "adjacent wetlands" as those wetlands that:
(i) abut, meaning to touch at least at one point or side of, a territorial sea, a traditional navigable
water, a tributary, or a lake, pond, or impoundment of a jurisdictional water; (ii) are inundated by
flooding from a territorial sea, a traditional navigable water, a tributary, or a lake, pond, or
impoundment of a jurisdictional water in a typical year; (iii) are physically separated from a
territorial sea, a traditional navigable water, a tributary, or a lake, pond, or impoundment of a
jurisdictional water only by a natural berm, bank, dune, or similar natural feature; or (iv) are
physically separated from a territorial sea, a traditional navigable water, a tributary, or a lake,
pond, or impoundment of a jurisdictional water only by an artificial dike, barrier, or similar
artificial structure so long as that structure allows for a direct hydrologic surface connection
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between the wetlands and the jurisdictional water in a typical year, such as through a culvert,
flood or tide gate, pump, or similar artificial feature. An adjacent wetland was jurisdictional in its
entirety when a road or similar artificial structure divided the wetland, as long as the structure
allowed for a direct hydrologic surface connection through or over that structure in a typical year.
The 2020 NWPR listed 12 types of non-jurisdictional waters, also known as excluded waters. The first
exclusion made clear that waters or water features that were not explicitly included as "waters of the
United States" were not jurisdictional. The agencies retained two existing exclusions for prior converted
cropland and waste treatment systems, though they defined those categories in regulatory text for the first
time. The agencies defined "prior converted cropland" in the regulatory text as:
Any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose,
or having the effect, of making production of an agricultural product possible. EPA and the Corps
will recognize designations of prior converted cropland made by the Secretary of Agriculture. An
area is no longer considered prior converted cropland for purposes of the Clean Water Act when
the area is abandoned and has reverted to wetlands, as defined in paragraph (c)(16) of this section.
Abandonment occurs when prior converted cropland is not used for, or in support of, agricultural
purposes at least once in the immediately preceding five years. For the purposes of the Clean
Water Act, the EPA Administrator shall have the final authority to determine whether prior
converted cropland has been abandoned.
The agencies clarified that a designation of "prior converted cropland" for purposes of the Clean Water
Act no longer applied if the area had been abandoned and reverted to wetlands.
In the 2020 NWPR, the agencies defined "waste treatment systems" to include "all components, including
lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain,
concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to
discharge (or eliminating any such discharge)."
The 2020 NWPR also excluded the following waters from the definition of "waters of the United States:"
• groundwater, including groundwater drained through subsurface drainage systems;
• ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
• diffuse stormwater run-off and directional sheet flow over upland;
• ditches that are not specifically included as the territorial seas, traditional navigable waters, or
tributaries, as well as those portions of ditches that were constructed in adjacent wetlands that did not
satisfy the conditions of the "adjacent wetlands" definition;
• artificially irrigated areas, including fields flooded for agricultural production, that would revert to
upland should application of irrigation water to that area cease;
• artificial lakes and ponds including water storage reservoirs and farm, irrigation, stock watering, and
log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as
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those artificial lakes and ponds were not impoundments of jurisdictional waters that met the
conditions of the definition of "lakes and ponds, and impoundments of jurisdictional waters;"
• water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental
to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the
purpose of obtaining fill, sand, or gravel;
• stormwater control features constructed or excavated in upland or in non-jurisdictional waters to
convey, treat, infiltrate, or store stormwater run-off; and
• groundwater recharge basins, water reuse, and wastewater recycling structures, including detention,
retention, and infiltration basins and ponds, constructed or excavated in upland or in non-
jurisdictional waters.
The 2020 NWPR included definitions for "high tide line," "ordinary high water mark," "snowpack,"
"tidal waters and waters subject to the ebb and flow of the tide," "typical year," "upland," and "wetlands"
in its regulatory text. The definitions for "wetlands", "high tide line", and "ordinary high water mark"
remained unchanged from prior codified definitions in the Corps' 1986 regulations. The agencies defined
the term "upland" in their regulations for the first time. "Upland" was defined in the 2020 NWPR as any
land area that under normal circumstances did not satisfy all three wetland factors (hydrology,
hydrophytic vegetation, and hydric soils) identified in the definition of "wetland" and that did not lie
below the ordinary high water mark or the high tide line of a jurisdictional water.
I.B.3 The Final Rule and How It Compares to Prior Regimes
In this rule, the agencies are exercising their discretionary authority 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 Supreme Court precedent, the best available science, and the agencies' experience and technical
expertise. This rule thus defines "waters of the United States" to include the familiar types of waters in
the 1986 regulations - traditional navigable waters, interstate waters, impoundments, tributaries, the
territorial seas, adjacent wetlands, and waters that do not fall within the other categories - while adding,
where appropriate, a requirement that waters also meet either the significant nexus standard or the
relatively permanent standard. The final rule is as follows:
In this rule, consistent with the general framework of the 1986 regulations, the agencies interpret the term
"waters of the United States" at paragraph (a) to include:
(1) Waters which are:
(i) Currently used, or were used in the past, or may be susceptible to use in interstate or
foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(ii) The territorial seas; or
(iii) Interstate waters, including interstate wetlands;
(2) Impoundments of waters otherwise defined as waters of the United States under this
definition, other than impoundments of waters identified under paragraph (a)(5) of this section;
(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section:
(i) That are relatively permanent, standing or continuously flowing bodies of water; or
(ii) That either alone or in combination with similarly situated waters in the region,
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significantly affect the chemical, physical, or biological integrity of waters identified in
paragraph (a)(1) of this section;
(4) Wetlands adjacent to the following waters:
(i) Waters identified in paragraph (a)(1) of this section; or
(ii) Relatively permanent, standing or continuously flowing bodies of water identified in
paragraph (a)(2) or (a)(3)(i) of this section and with a continuous surface connection to
such waters; or
(iii) Waters identified in paragraph (a)(2) or (3) of this section when the wetlands either
alone or in combination with similarly situated waters in the region, significantly affect
the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of
this section;
(5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4)
of this section:
(i) That are relatively permanent, standing or continuously flowing bodies of water with a
continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3)(i) of
this section; or
(ii) That either alone or in combination with similarly situated waters in the region,
significantly affect the chemical, physical, or biological integrity of waters identified in
paragraph (a)(1) of this section.
The final rule under paragraph (b) also establishes exclusions from the definition of "waters of the United
States" even where they otherwise meet the terms of paragraphs (a)(2) through (5) of the rule:
(1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the
requirements of the Clean Water Act;
(2) Prior converted cropland designated by the Secretary of Agriculture. The exclusion would
cease upon a change of use, which means that the area is no longer available for the production of
agricultural commodities. Notwithstanding the determination of an area's status as prior
converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the
final authority regarding Clean Water Act jurisdiction remains with EPA;
(3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that
do not carry a relatively permanent flow of water;
(4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;
(5) 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;
(6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by
excavating or diking dry land to retain water for primarily aesthetic reasons;
(7) Waterfllled 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; and
(8) Swales and erosional features (e.g., gullies, small washes) characterized by low volume,
infrequent, or short duration flow.
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Under paragraph (c) of the final rule, the following definitions apply:
(1) Wetlands means those areas that are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally
include swamps, marshes, bogs, and similar areas.
(2) Adjacent moans bordering, contiguous, or neighboring. Wetlands separated from other waters
of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like
are "adjacent wetlands."
(3) High tide line means the line of intersection of the land with the water's surface at the
maximum height reached by a rising tide. The high tide line may be determined, in the absence of
actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine
shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation
lines, tidal gages, or other suitable means that delineate the general height reached by a rising
tide. The line encompasses spring high tides and other high tides that occur with periodic
frequency but does not include storm surges in which there is a departure from the normal or
predicted reach of the tide due to the piling up of water against a coast by strong winds such as
those accompanying a hurricane or other intense storm.
(4) Ordinary high water mark means that line on the shore established by the fluctuations of
water and indicated by physical characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of
litter and debris, or other appropriate means that consider the characteristics of the surrounding
areas.
(5) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or
cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall
of the water surface can no longer be practically measured in a predictable rhythm due to masking
by hydrologic, wind, or other effects.
(6) Significantly affect means a material influence on the chemical, physical, or biological
integrity of waters identified in paragraph (a)(1) of this section. For purposes of determining
whether waters, either alone or in combination with similarly situated waters in the region, have a
material influence on the chemical, physical, or biological integrity of waters identified in
paragraph (a)(1) of this section, the functions identified in paragraph (c)(6)(i) below will be
assessed and the factors identified in paragraph (c)(6)(h) below will be considered:
(i) Functions to be assessed:
(A) Contribution of flow;
(B) Trapping, transformation, filtering, and transport of materials (including
nutrients, sediment, and other pollutants);
(C) Retention and attenuation of floodwaters and runoff;
(D) Modulation of temperature in waters identified in paragraph (a)(1) of this
section; or
(E) Provision of habitat and food resources for aquatic species located in waters
identified in paragraph (a)(1) of this section;
(ii) Factors to be considered:
(A) The distance from a water identified in paragraph (a)(1) of this section;
(B) Hydrologic factors, such as the frequency, duration, magnitude, timing, and
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rate of hydrologic connections, including shallow subsurface flow;
(C) The size, density, or number of waters that have been determined to be
similarly situated;
(D) Landscape position and geomorphology; and
(E) Climatological variables such as temperature, rainfall, and snowpack.
I.B.3.1 Traditional Navigable Waters, Territorial Seas and Interstate Waters
I.B.3.1.1 Treatment in the Final Rule
The agencies have long defined traditional navigable waters as "[a] 11 waters which are currently used, or
were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters
which are subject to the ebb and flow of the tide." Under the final rule, the agencies make no changes to
the definition of traditional navigable waters. The agencies issued guidance in 2007 regarding traditional
navigable waters that helped inform determinations of whether a water is a traditional navigable water
(see Appendix D in U.S. Army Corps of Engineers, 2007). This guidance was used under pre-2015
practice and was applied under each subsequent regulation. The agencies will continue to use this
guidance to determine whether a water is a traditional navigable water for the purposes of the Clean
Water Act and the agencies' implementing regulations under this final rule.
Consistent with the Clean Water Act10 and past regulations, the agencies' final rule includes "the
territorial seas" as "waters of the United States." The territorial seas establish the seaward limit of "waters
of the United States" and are clearly jurisdictional under the Clean Water Act.
The final rule defines "waters of the United States" to include interstate waters, including interstate
wetlands, consistent with the 1986 regulations. Under the final rule, interstate waters are "waters of the
United States" even if they are not traditional navigable waters or the territorial seas and do not connect to
such waters.
I.B.3.1.2 Comparison of the Final Rule to the Primary Baseline
The final rule combines traditional navigable waters, the territorial seas, and interstate waters under the
paragraph (a)(1) category, while the regulatory text from the 1980s separated each of these water types
into distinct categories of water. However, this change in the final rule is organizational and is not
intended to represent a change in scope of jurisdiction for these waters in comparison to the primary
baseline.
I.B.3.1.3 Comparison of the Final Rule to the Secondary Baseline
The final rule combines traditional navigable waters, the territorial seas, and interstate waters under the
paragraph (a)(1) category. The regulatory text from the 2020 NWPR combined only traditional navigable
waters and territorial seas under the paragraph (a)(1) category and had no separate category to cover
interstate waters.
10 See 33 U.S.C. 1362(7), defining "navigable waters" as "the waters of the United States, including the territorial seas."
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The 2020 NWPR explicitly excluded traditional navigable waters and the territorial seas under most of
the rule's (b)(1) exclusions for the first time, a change from longstanding practice. Under the final rule,
the agencies would return to the prior practice of the exclusions not applying to traditional navigable
waters, the territorial seas, or interstate waters, and thus will regulate all traditional navigable waters,
including waters subject to the ebb and flow of the tide, territorial seas, and interstate waters.
Interstate waters could only be jurisdictional under the 2020 NWPR if they also met one of the categories
of jurisdictional waters under paragraphs (a)(1) through (4) of that rule. Under the final rule, any interstate
waters, including wetlands, would be jurisdictional if they cross or serve as State boundaries. For
example, a wetland straddling a State line would be considered jurisdictional regardless of whether it
satisfies any of the conditions for jurisdiction under other categories of the final rule.
The agencies assume that the scope of jurisdiction for traditional navigable waters and territorial seas
under the final rule would not pose a change from the secondary baseline of the 2020 NWPR, except for
traditional navigable waters and territorial seas that were excluded under the 2020 NWPR. Such waters
would remain jurisdictional as traditional navigable waters and territorial seas under the final rule,
representing a change from the secondary baseline. This change would likely be de minimis and cannot be
accurately assessed using data from the ORM2 dataset (see Section I.B.3.1(4)). The agencies also expect
that there would be an increase in the scope of jurisdiction from the secondary baseline of the 2020
NWPR for interstate waters, including wetlands; however, the agencies have no way to assess this change
due to limitations within the ORM2 dataset (see Section I.B.3.1(4)).
I.B.3.1.4 Documentation in ORM2
Under the primary baseline of the pre-2015 regulatory regime, some Corps Districts chose to document an
aquatic resource as a relatively permanent water instead of a case-specific traditional navigable water for
ease of documentation and workload. Some AJDs for relatively permanent waters therefore are traditional
navigable waters; so, the ORM2 data on traditional navigable waters under the pre-2015 regulatory
regime likely underestimates the number of resources assessed under AJDs that are traditional navigable
waters. However, those aquatic resources would be captured in the relatively permanent waters category
described in the "Tributaries" section below. Similarly, for AJDs made under the 2020 NWPR, it is likely
that some traditional navigable waters could have been classified under that rule's paragraph (a)(2)
tributary category or paragraph (a)(3) lake, pond, or impoundment category in ORM2.
Waters that are territorial seas historically have been subsumed by the traditional navigable water
definition (i.e.. under the pre-2015 regulatory regime, if a resource was a territorial sea, it generally was
also a traditional navigable water, and therefore would be categorized as a traditional navigable water
rather than a territorial sea.11 "Territorial sea" is not a selectable, separate category in ORM2 under the
pre-2015 regulatory regime. The territorial seas thus are typically categorized as traditional navigable
waters in the ORM2 database under pre-2015 practice and have a separate category in ORM2 for AJDs
conducted under the 2020 NWPR.
11 The agencies acknowledge that while most territorial seas are also traditional navigable waters, portions of the territorial seas
that may not be navigable or capable of being used in interstate or foreign commerce but are still jurisdictional if they meet
the definition of "the territorial seas" in the Clean Water Act.
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The Rapanos AJD form associated with the pre-2015 regulatory regime, and the associated ORM2 data
do not indicate whether a water is jurisdictional as an "interstate water." Instead, these waters are
generally represented by other ORM2 categories of aquatic resources (including categories for traditional
navigable waters, tributaries, adjacent wetlands, and impoundments of jurisdictional waters). Because
"interstate waters" are not identified on the Rapanos AJD form or in the associated ORM2 data, the
agencies are unable to quantify the potential change in jurisdiction under the final rule relative to the
secondary baseline of the 2020 NWPR with respect to interstate waters.
I.B.3.2 Tributaries
I.B.3.2.1 Treatment in the Final Rule
A tributary for purposes of this rule includes rivers, streams, lakes, ponds, and impoundments, regardless
of their flow regime, that flow directly or indirectly through another water or waters to a traditional
navigable water, the territorial seas, or an interstate water. Waters through which a tributary may flow
indirectly include, for example, impoundments, wetlands, lakes, ponds, and streams. This is consistent
with pre-2015 practice. Lakes and ponds that are tributaries are discussed in Section I.B.3.3.
Under the final rule, tributaries, regardless of their flow regime, will be assessed under the relatively
permanent or significant nexus standard per paragraph (a)(3) of the final rule. Rivers, streams, lakes, and
ponds that are not tributaries and that do not meet the criteria for jurisdiction under one of the other
categories will be assessed under the relatively permanent or significant nexus standard per paragraph
(a)(5) of this rule (see Section I.B.3.6). All tributaries to traditional navigable waters, the territorial seas,
interstate waters, or jurisdictional impoundments that are relatively permanent, standing, or continuously
flowing waters and non-relatively permanent tributaries that have a significant nexus with a traditional
navigable water, the territorial seas, or interstate water are jurisdictional. Tributaries meet the relatively
permanent standard when they are relatively permanent, standing or continuously flowing bodies of
water. Under the final rule, non-relatively permanent tributaries would be evaluated according to the
significant nexus standard.
The agencies' longstanding interpretation of the Clean Water Act includes tributaries that are natural,
modified, or constructed waters, and the agencies are continuing this practice in the final rule. As
discussed further in the exclusions section, certain ditches are explicitly excluded from the definition of
"waters of the United States" where they are not paragraph (a)(1) waters: ditches (including roadside
ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow
of water. Under the final rule, a ditch is jurisdictional if it is a tributary that meets the relatively
permanent standard. If the ditch does not meet the conditions of paragraph (a)(1) and was excavated
wholly in dry land, draining only dry land, and has less than relatively permanent flow, the ditch is
considered non-jurisdictional, consistent with pre-2015 practice, even if it would otherwise be considered
a tributary. For non-relatively permanent ditches that are not constructed in dry land and draining only dry
land, where they are tributaries, the agencies would determine under paragraph (a)(3)(ii) of the final rule
if they have a case-specific significant nexus to a traditional navigable water, territorial sea, or interstate
water.
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I.B.3.2.2 Comparison of the Final Rule to the Primary Baseline
Generally speaking, the final rule is consistent with pre-2015 practice for tributaries being assessed via
application of the relatively permanent standard. Application of the relatively permanent standard for
tributaries will be largely consistent with the pre-2015 regulatory practice, though the agencies have
provided some small revisions to the standard compared to pre-2015 practice to add clarity regarding
implementation of the standard. Under the final rule, the relatively permanent standard encompasses
surface waters that have flowing or standing water year-round or continuously during certain times of the
year, whereas under pre-2015 practice tributaries are considered relatively permanent if they typically
flow year-round or have continuous flow at least seasonally (e.g., typically three months). Any associated
change in scope of jurisdiction is expected to be de minimis and cannot be estimated.
Under the final rule, the significant nexus standard will have two main differences from pre-2015
regulatory practice for tributaries. The first difference applies to the definition of "significantly affect" in
the final rule. The agencies have added specific factors and functions that will be considered as part of the
significant nexus analysis, and have noted that waters that meet the standard when they, either alone or in
combination with similarly situated waters in the region, have a material influence on traditional
navigable waters, the territorial seas, or interstate waters. The agencies have added this language to the
final rule to provide clarity to regulators, stakeholders, and the regulated public. Second, for tributaries
and their adjacent wetlands assessed under the standard, the scope of "in the region" differs between the
final rule and pre-2015 practice. The pre-2015 regulatory regime assesses the "relevant reach" of the
tributary (i.e.. a tributary of the same stream order) and wetlands adjacent to that "relevant reach" as the
geographic extent of the significant nexus analysis. Like pre-2015 practice, the agencies consider
tributaries and their adjacent wetlands to be "similarly situated" waters. The agencies consider similarly
situated waters to be "in the region" when they lie within the catchment area of the tributary of interest.
Accordingly, in implementing the significant nexus standard under this rule, all tributaries and adjacent
wetlands within the catchment area of the tributary of interest will be analyzed as part of the significant
nexus analysis. For purposes of a significant nexus analysis for tributaries and adjacent wetlands, the
agencies will identify the "region" as the catchment that drains to and includes the tributary of interest.
Catchments will be delineated from the downstream-most point of the tributary reach of interest and
include the land uphill that drains to that point. It is expected that this will slightly increase the number of
tributaries that are found to be jurisdictional under the significant nexus standard compared to pre-2015
practice; however, the overall proportion of resources that this would impact is likely small. For example,
when looking at data associated with jurisdictional determinations carried out under the Rapanos
Guidance (including AJDs, PJDs and JD Concurrences), the proportion of non-relatively permanent
tributaries that would be potentially impacted by this change in the significant nexus analysis is only
0.25% of all aquatic resources associated with jurisdictional determinations.12 This 0.25% represents
tributaries that were found to be non-jurisdictional via the significant nexus standard under pre-2015
practice. An unknown fraction of this 0.25% could potentially become jurisdictional under this final rule.
Because determinations are made on a case-specific basis and the agencies are unable to accurately
reassess prior determinations based on the final rule's new scope for "in the region," the agencies cannot
12 Date range considered: January 1, 2010 to April 9, 2021
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estimate what the potential change in jurisdiction with be for tributaries that are assessed under the
significant nexus standard as compared to the primary baseline.
Ditches that are tributaries are considered jurisdictional in a manner consistent with pre-2015 practice;
however, changes to tributary ditches assessed under a significant nexus analysis are discussed in the
above paragraph.
I.B.3.2.3 Comparison of the Final Rule to the Secondary Baseline
Broadly reviewing differences between the 2020 NWPR and the final rule, the final rule will assess if
streams meet the criteria to be a jurisdictional "tributary" via application of the relatively permanent
standard or the significant nexus standard where such waters flow directly or indirectly through another
water or waters to a traditional navigable water, the territorial seas, or an interstate water; whereas the
agencies defined "tributaries" as jurisdictional in the 2020 NWPR if they were perennial or intermittent
and contributed surface water flow to a traditional navigable water or the territorial seas in a "typical
year" either directly or through one or more waters that were jurisdictional under that rule, and excluded
ephemeral features (see Section I.B.2 for more details). While lakes, ponds, and impoundments can be
tributaries under the final rule, such waters would be assessed for jurisdiction under the lakes and ponds
and impoundments of jurisdictional waters category of the 2020 NWPR, unless excluded under that rule.
Tributaries evaluated under the final rule would be categorized as either relatively permanent waters that
are assessed under the relatively permanent standard or non-relatively permanent waters that are assessed
under the significant nexus standard. The final rule will continue to regulate the vast majority of waters
that met the 2020 NWPR's definition of "tributary," while also allowing for some streams that did not
meet the 2020 NWPR's definition of "tributary" to be jurisdictional in situations in which the waters in
question meet either the relatively permanent or significant nexus standard. Waters could also be
tributaries under the final rule when they were not under the 2020 NWPR because they are tributaries to
interstate waters not connected to a traditional navigable water or the territorial seas.
The 2020 NWPR did not cover any ephemeral streams; under the final rule, some of these excluded
ephemeral streams will be jurisdictional based on a case-specific significant nexus evaluation. Under the
2020 NWPR, some perennial and intermittent streams did not satisfy jurisdictional requirements due to
lack of contribution of surface flow to traditional navigable waters or the territorial seas in a typical year,
whereas such streams are jurisdictional under the final rule if they meet either the relatively permanent or
significant nexus standard. For example, although the 2020 NWPR allowed for ephemeral streams to
serve as a non-jurisdictional connection between upstream and downstream jurisdictional tributaries, it
did not protect perennial or intermittent streams that flowed into ephemeral features that did not
contribute surface water flow in a typical year to a downstream jurisdictional water, but such streams are
jurisdictional under the final rule if they meet either the relatively permanent or significant nexus
standard.
Relative to the secondary baseline of the 2020 NWPR, the final rule would therefore include more waters
as tributaries for the reasons articulated above.
Some ditches will be considered jurisdictional under the final rule that were not jurisdictional under the
2020 NWPR. The 2020 NWPR excluded all upland ditches regardless of flow (unless they met the
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conditions of paragraph (a)(1)) and limited which other ditches could be covered as tributaries, for
example by indicating that a ditch needed to relocate an "entire portion" of the tributary rather than divert
some of the flow and indicating that a ditch created in uplands would be excluded even where it drained a
wetland. Under the final rule a tributary ditch does not need to relocate a tributary, be constructed in a
tributary, or be constructed in an adjacent wetland to be considered a jurisdictional tributary, so long as it
meets the relatively permanent or significant nexus standard and is not excluded under paragraph (b).
Under the 2020 NWPR, however, a jurisdictional ditch had to satisfy one of these three criteria and
contribute perennial or intermittent flow to a traditional navigable water or the territorial seas in a typical
year. As a result, it is expected that there will be more jurisdictional ditches that are tributaries under the
final rule as compared to the secondary baseline.
The agencies have assessed stream reach data associated with jurisdictional determinations completed
nationally and within the arid Southwest (in the States of Arizona and New Mexico) and have found that
the 2020 NWPR caused a significant change in the number of stream reaches found to be non-
jurisdictional in the calendar year from June 22, 2020 to June 21, 2021, in these two States in comparison
to years in which the pre-2015 regulatory regime were implemented (U.S. EPA and Army, 2022b).13
Arizona had the highest proportion of non-jurisdictional stream findings across the nation, with
13 percent of all non-jurisdictional stream determinations in the nation in the first year the 2020 NWPR
was effective (June 22, 2020 to June 21, 2021). Given that spatially Arizona comprises only three percent
of the land in the United States, it is clear that the 2020 NWPR definition had more substantial effects in
some areas of the country than others.14 The agencies have also assessed approved jurisdictional
determination data utilizing the Cowardin classification system to identify the proportions of tributaries
found to be jurisdictional or non-jurisdictional under pre-2015 regulatory regime and under the 2020
NWPR (Section III.C.2) (Cowardin et al., 1979).
I.B.3.2.4 Documentation in ORM2
The Corps' ORM2 database does not directly track whether a tributary is a ditch or not under either the
pre-2015 regulatory regime or the 2020 NWPR. It also does not directly denote when a tributary is
subsumed by the paragraph (a)(1) waters under prior regimes. Lastly, there is no way to use ORM2 data
to assess for changes in flow regime along a stream reach.
However, the Cowardin classification system that is denoted in ORM2 does allow for an assessment of
what proportions of tributaries were found to be jurisdictional or non-jurisdictional under the pre-2015
regulatory regime and under the 2020 NWPR. This is the basis for assessing the difference in the change
of scope of jurisdiction for the secondary baseline. Given that there are de minimis changes to the
proportion of tributary resources that would have required 404 permits under the primary baseline as
compared to the final rule, the agencies are assessing the secondary baseline via a comparison of the pre-
2015 regulatory regime and the 2020 NWPR. See Section III.C.2 for more details.
13 Available in the docket for this rule, Docket ID Number EPA-HQ-OW-2021-0602.
14 Ibid.
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I.B.3.3 Lakes and ponds
I.B.3.3.1 Treatment in the Final Rule
Consistent with the pre-2015 regulatory regime, under the final rule lakes, ponds, and impoundments that
are not paragraph (a)(1) waters can be considered for jurisdiction under the paragraph (a)(3) category for
tributaries and under the paragraph (a)(5) category for intrastate waters that do not meet the jurisdictional
criteria under other categories. In addition, impoundments of jurisdictional waters continue to have their
separate category under the final rule (paragraph "(a)(2) Impoundments of jurisdictional waters" - see
Section I.B.3.4). Because impoundments would comprise a distinct category under the final rule, this
document discusses them separately. Lakes and ponds that are paragraph (a)(1) waters are discussed in
Section I.B.3.1. Lakes and ponds that are assessed under the paragraph (a)(5) category of the final rule are
discussed in Section I.B.3.6.
I.B.3.3.2 Comparison of the Final Rule to the Primary Baseline
Under the pre-2015 regulatory regime, lakes and ponds that are traditional navigable waters or interstate
waters are included as "waters of the United States." There is no change in jurisdiction for such waters as
discussed in Section I.B.3.1. Lakes and ponds that are tributaries are jurisdictional under the pre-2015
regulatory regime when they are relatively permanent waters or where they have a significant nexus to a
traditional navigable water, the territorial seas, or an interstate water. As discussed in Section I.B.3.2(2),
the agencies are making minor revisions to the relatively permanent standard for tributaries in the final
rule as compared to pre-2015 practice. The agencies anticipate there will be no practicable difference for
most lakes and ponds that would be jurisdictional as relatively permanent tributaries under the final rule
as compared to the primary baseline of the pre-2015 regulatory practice. For lakes and ponds that are
tributaries and are assessed under the significant nexus standard, the agencies are making changes to "the
region" that is assessed as part of a significant nexus analysis for tributaries and their adjacent wetlands,
as discussed in Section I.B.3.2.2. Thus, the agencies believe that there will be a slight increase in lakes
and ponds that are part of the tributary network and that are found to be jurisdictional under the final
rule's significant nexus standard compared to pre-2015 practice. However, the overall proportion of
resources that this would impact is likely small (see discussion in Section I.B.3.2), and the agencies are
unable to estimate what the potential change in jurisdiction will be.
Lakes and ponds considered for jurisdiction under paragraph (a)(5) of the final and the comparable
paragraph (a)(3) of the 1986 regulations as implemented consistent with pre-2015 practice are discussed
in Section I.B.3.6. The agencies final rule makes changes to the jurisdictional criteria considered for lakes
and ponds evaluated under paragraph (a)(5) of the final rule as compared to the jurisdictional criteria for
lakes and ponds evaluated underthe comparable paragraph (a)(3) under pre-2015 practice. This rule
replaces the interstate commerce test used in paragraph (a)(3) of the 1986 regulations with the relatively
permanent standard and the significant nexus standard for the comparable paragraph (a)(5) category in
this rule. Prior to the SWANCC decision, paragraph (a)(3) of the 1986 regulations provided a broad scope
of jurisdiction for waters considered under that category. However, as discussed in Section IB. 1, after the
SWANCC decision, in practice the agencies have not asserted jurisdiction over waters assessed under
paragraph (a)(3) of the 1986 regulations. Compared to the straight regulatory text of paragraph (a)(3) of
the 1986 regulations, the final rule's analogous paragraph (a)(5) category represents a decrease in
jurisdiction for waters considered under that category. Compared to pre-2015 practice, however, there
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will likely be waters determined to be jurisdictional under paragraph (a)(5) of the final rule that in
practice would not have been found jurisdictional, including lakes and ponds evaluated under paragraph
(a)(5). In particular, there are cases in which certain lakes and ponds that would be non-jurisdictional
under the pre-2015 regulatory regime baseline (when evaluated under paragraph (a)(3) of the 1986
regulations) may now be jurisdictional under the comparable paragraph (a)(5) of the final rule via the
relatively permanent standard, such as certain oxbow lakes and ponds.15 In addition, lakes and ponds
assessed under paragraph (a)(5) utilizing the significant nexus standard may also experience some
changes in jurisdiction when compared to pre-2015 practice.16 When looking at data associated with JDs
carried out under pre-2015 practice (including AJDs, PJDs and JD Concurrences), the proportion of non-
relatively permanent waters that would be potentially impacted by replacing the interstate commerce test
with the significant nexus standard is only 0.25% of all aquatic resources that underwent jurisdictional
determinations.17 This 0.25% represents isolated lacustrine features and isolated palustrine features that
likely would be ponds assessed under paragraph (a)(3) of the 1986 regulations consistent with pre-2015
practice that were found to be non-jurisdictional under pre-2015 practice. An unknown fraction of this
0.25% could potentially be determined jurisdictional under this final rule. The agencies cannot assess
what this unknown fraction would be, as each aquatic resource would require a case-specific analysis to
see if it meets the jurisdictional criteria established under paragraph (a)(5) of this final rule. These are
discussed in Section I.B.3.6.
1.B.3.3.3 Comparison of the Final Rule to the Secondary Baseline
Broadly reviewing differences between the 2020 NWPR and the final rule, the final rule returns to the
pre-2015 regulatory practice of incorporating lakes and ponds into other categories of waters and
including a separate category for impoundments of jurisdictional waters; whereas the 2020 NWPR
created a single regulatory category for lakes and ponds, and impoundments of jurisdictional waters.
Because impoundments comprise a distinct category under the final rule, this document discusses them
separately in Section I.B.3.4. For more details on the 2020 NWPR approach to lakes and ponds, see
Section I.B.2.
The agencies anticipate that there will be no practicable difference for most lakes and ponds that would be
jurisdictional as relatively permanent waters under the final rule as compared to the secondary baseline of
the 2020 NWPR. Traditional navigable waters and interstate waters were discussed previously in Section
I.B.3.1. As noted in that section, certain interstate lakes and ponds are jurisdictional under the final rule
that would not be jurisdictional under the 2020 NWPR, representing a small change from the secondary
baseline, but the agencies are unable to estimate that change.
There are cases in which certain lakes and ponds that would have been jurisdictional under the 2020
NWPR may not be jurisdictional under the final rule. The 2020 NWPR included as "waters of the United
States" lakes and ponds that are inundated by flooding from a traditional navigable water, a territorial sea,
15 Such waters would likely have been considered jurisdictional under paragraph (a)(3) of the 1986 regulations prior to the
SWANCC decision.
16 Similarly, these waters would likely have been considered jurisdictional under paragraph (a)(3) of the 1986 regulations prior to
the SWANCC decision.
17 Date range considered: January 1, 2010, to April 9,2021.
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a tributary as defined in that rule, or a jurisdictional lake, pond, or impoundment in a typical year, such as
certain oxbow lakes. Such waters may be considered jurisdictional under the final rule as tributaries
where they meet either the relatively permanent or significant nexus standard, although some may not be
part of the stream network and would need to be evaluated for jurisdiction under the final rule's (a)(5)
category. Some of the lakes and ponds which would have been found jurisdictional under the 2020
NWPR could be non-jurisdictional under the final rule if they do not meet either the relatively permanent
or significant nexus standard under the final rule's (a)(5) category. See Section I.B.3.6 for more details on
(a)(5) waters under the final rule.
There are also cases in which certain lakes and ponds considered non-jurisdictional under the 2020
NWPR would be jurisdictional under the final rule. Under the final rule, relatively permanent lakes and
ponds that are considered tributaries are jurisdictional, but such waters may not have met the requirements
for jurisdiction under the 2020 NWPR's lakes and ponds, and impoundments of jurisdictional waters
category. For example, lakes and ponds would not be jurisdictional under the 2020 NWPR if they do not
contribute flow in a typical year to a traditional navigable water or territorial seas or if they are tributaries
to interstate waters that do not ultimately connect to a traditional navigable water or the territorial seas. In
addition, non-relatively permanent lakes and ponds that are considered tributaries under the final rule
would undergo a case-specific significant nexus evaluation to determine their jurisdictional status. This
includes ephemeral lakes and ponds that were non-jurisdictional under the 2020 NWPR but could be
jurisdictional under the final rule.
I.B.3.3.4 Documentation in ORM2
From the available AJD data under the pre-2015 regulatory regime, the agencies are unable to parse
tributaries into lakes, ponds, or streams, as there is no field in ORM2 for the Corps to note this status
(although the agencies could parse out isolated features into lacustrine systems, as described in Section
I.B.3.3). Thus, the agencies are unable to estimate the percentage of non-relatively permanent lake and
pond tributaries which were deemed jurisdictional under the pre-2015 regulatory regime and, to predict
their status under the final rule in comparison with the secondary baseline. The agencies are also unable to
quantify how many lakes and ponds are upstream of ephemeral reaches that do not contribute surface
water flow to a downstream jurisdictional water in a typical year.
I.B.3.4 Impoundments
I.B.3.4.1 Treatment in the Final Rule
Under the final rule, impoundments can be created by impounding one of the "waters of United
States" that was jurisdictional under this rule's definition at the time the impoundment was
created, and impoundments of waters that at the time of assessment meet the definition of
"waters of the United States" under paragraph (a)(1), (a)(3), or (a)(4) of this rule, regardless of
the water's jurisdictional status at the time the impoundment was created. Waters that are
jurisdictional under paragraph (a)(5), do not categorically retain their jurisdictional status as
"waters of the United States" under paragraph (a)(2). However, a subsequently impounded
jurisdictional paragraph (a)(5) water may still be determined to be jurisdictional if it meets the
requirements of a category of "waters of the United States" other than paragraph (a)(2) at the
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time of assessment (i.e., as a traditional navigable water, territorial sea, interstate water,
jurisdictional tributary, jurisdictional adjacent wetland, or paragraph (a)(5) water).
I.B.3.4.2 Comparison of the Final Rule to the Primary Baseline
Under the final rule, impoundments of jurisdictional waters would be jurisdictional similar to the pre-
2015 regulatory regime. Interstate waters and impoundments were not addressed directly by the Riverside
Bayview, SWANCC, or Rapanos Supreme Court decisions.
The only change associated with the impoundments category in the final rule compared to the pre-2015
regulatory regime is the regulatory text for impoundments, which does not include impoundments of
paragraph (a)(5) waters. Instead, such impoundments would need to meet the jurisdictional criteria under
one of the other categories of the final rule to be jurisdictional. As previously discussed, under the pre-
2015 regulatory regime, however, in practice waters were not found to be jurisdictional under the
paragraph (a)(3) category following the SWANCC decision. Thus, this does not constitute a change from
pre-2015 practice for the impoundments category, and it will result in no difference in the scope of
jurisdiction for impoundments. As discussed elsewhere in this document (Sections I.B.3.2 and I.B.3.5),
however, there will be a small change in jurisdiction under the final rule as compared to pre-2015 practice
for tributaries and adjacent wetlands, and impoundments of those waters. The agencies are unable to
estimate what this small change would be as compared to pre-2015 for impoundments.
I.B.3.4.3 Comparison of the Final Rule to the Secondary Baseline
Under the 2020 NWPR, paragraph (a)(3) waters included lakes and ponds, and impoundments of
jurisdictional waters. As such, impoundments of jurisdictional waters had the same jurisdictional
requirements as lakes and ponds. See Section I.B.3.3(3). Many impoundments of "waters of the United
States" are impoundments of -relatively permanent tributaries and traditional navigable waters. These
impoundments are jurisdictional under the final rule, and many of these features would be jurisdictional
under the 2020 NWPR. Because more waters are jurisdictional under the final rule as tributaries and
adjacent wetlands than under the 2020 NWPR, impoundments of such waters would be jurisdictional
under the final rule but would not have been jurisdictional under the 2020 NWPR. For example, under the
2020 NWPR, impoundments of ephemeral streams would not have been found jurisdictional, but some of
these impoundments may be jurisdictional under the final rule where the streams meet the jurisdictional
criteria to be jurisdictional as tributaries. Additionally, regardless of the type of water being impounded
under the 2020 NWPR, if there was no direct outlet from the impoundment to downstream waters and no
inundation by flooding in a typical year, the impoundment would not have been jurisdictional. This is not
a requirement for impoundments of jurisdictional waters under the final rule. Many small impoundments
do not have outflows and are on steep enough terrain that backwater flooding conditions would not occur.
These impoundments were not jurisdictional under the 2020 NWPR but are under the final rule where
they impound jurisdictional waters.
For these reasons, it is likely that the final rule will result in more impoundments of "waters of the United
States" being found to be jurisdictional as compared to the secondary baseline. However, the agencies
cannot assess the scope of this change due to data constraints. Given that impoundments made up only
0.14% of ORM2 data associated with pre-2015 regulatory practice, the agencies find that the slight
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difference in jurisdiction between the 2020 NWPR and the final rule would be de minimis for this
category of waters.
I.B.3.4.4 Documentation in ORM2
ORM2 data for pre-2015 regulatory practice captures impoundments of jurisdictional waters as a separate
category. Where impoundments of jurisdictional waters are traditional navigable waters or tributaries,
they may be categorized as such in the database. ORM2 data for the 2020 NWPR does not separate
impoundments from lakes and ponds as they were assessed under the same category and therefore cannot
be used to differentiate the scope of jurisdiction between pre-2015 regulatory practice, the 2020 NWPR,
or the final rule.
I.B.3.5 Adjacent Wetlands
I.B.3.5.1 Treatment in the Final Rule
Consistent with the 1986 regulations, the agencies' final rule defines "adjacent" to mean "bordering,
contiguous, or neighboring." The final rule also states that "[w]etlands separated from other waters of the
United States by man-made dikes or barriers, natural river berms, beach dunes and the like are 'adjacent
wetlands,'" which is also consistent with the 1986 regulations. Adjacent wetlands that are jurisdictional
under the final rule include wetlands adjacent to traditional navigable waters, the territorial seas, and
interstate waters; wetlands adjacent to impoundments or to tributaries that are relatively permanent,
standing, or continuously flowing bodies of water and that have a continuous surface connection to such
waters; and wetlands adjacent to impoundments or to tributaries and that significantly affect the chemical,
physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters,
either alone or in combination with similarly situated waters in the region.
Adjacent wetlands under the final rule include those with an unbroken surface or shallow sub-surface
connection to jurisdictional waters, consistent with the pre-2015 regulatory regime. Such wetlands are
jurisdictional under the final rule where they are adjacent to traditional navigable waters, the territorial
seas, or interstate waters or where they are adjacent to jurisdictional tributaries or jurisdictional
impoundments and meet either the relatively permanent or significant nexus standards. Adjacent wetlands
under the final rule consistent with implementation under the pre-2015 approach would also include
wetlands that are physically proximate (i.e., reasonably close) to jurisdictional waters, either categorically
(when they are adjacent to a traditional navigable water, the territorial seas, or interstate waters) or where
they are adjacent to jurisdictional tributaries or jurisdictional impoundments and meet the significant
nexus standard.
Not all adjacent wetlands are jurisdictional under the final rule. Under the final rule, adjacent wetlands are
evaluated differently depending on the water to which they are adjacent (traditional navigable waters, the
territorial seas, interstate waters, impoundments, and tributaries). The agencies anticipate no change in
jurisdiction compared to pre-2015 practice for wetlands adjacent to traditional navigable waters, the
territorial seas, or interstate waters. Such wetlands are jurisdictional under both regulatory regimes
without the need for a significant nexus analysis.
Wetlands adjacent to tributaries that are relatively permanent, standing, or continuously flowing waters
would be analyzed in different ways, depending on whether they have a continuous surface connection to
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such waters. Adjacent wetlands with a continuous surface connection to a tributary or impoundment that
meets the relatively permanent standard or would be jurisdictional under the relatively permanent
standard without the need for further analysis. This includes wetlands that are abutting the tributaries.
Wetlands adjacent to but that do not have a continuous surface connection to a relatively permanent water
would require a case-specific significant nexus analysis to determine their jurisdictional status. Similarly,
all wetlands adjacent to non-relatively permanent waters would require a case-specific significant nexus
evaluation to determine their jurisdictional status. This approach does not represent a change from pre-
2015 practice.
I.B.3.5.2 Comparison of the Final Rule to the Primary Baseline
For wetlands adjacent to traditional navigable waters, the territorial seas, and interstate waters, the
agencies anticipate that there will be no change in jurisdiction for these waters under the final rule
compared to pre-2015 practice. Generally speaking, the final rule is consistent with the pre-2015 practice
for adjacent wetlands being assessed via application of the relatively permanent standard. The final rule
does, however, provide clarifying language that wetlands behind natural berms may on certain occasions
maintain a continuous surface connection with the waters to which they are adjacent. This change may
result in some wetlands adjacent to relatively permanent waters being determined to meet the relatively
permanent standard under the final rule, whereas they may have been assessed under the significant nexus
standard under pre-2015 practice. Some, but not all, of such wetlands may have been found to be
jurisdictional under pre-2015 practice after a case-specific significant nexus analysis. Where such
wetlands would have been found to not have a significant nexus with a traditional navigable water,
territorial sea, or interstate water under pre-2015 practice, this would represent a change in jurisdiction
under the final rule as compared to pre-2015 practice. The agencies are not able to quantify this change
but anticipate that it likely will be negligible.
The final rule changes which waters are considered "in the region" as compared to pre-2015 practice for
tributaries and their adjacent wetlands, as discussed in Section I.B.3.2. Additionally, the final rule's
definition of "significantly affect" provides specific factors and functions that should be considered as
part of the significant nexus analysis, also discussed in Section I.B.3.2. Thus, the agencies expect there
will be a slight increase in the number of adjacent wetlands found to be jurisdictional under the significant
nexus standard; however, the overall proportion of resources that this would impact is small. For example,
when looking at data associated with JDs carried out under pre-2015 practice (including AJDs, PJDs and
JD Concurrences), the proportion of adjacent wetlands assessed under a significant nexus analysis that
would be potentially impacted by this change is only 0.05% of all aquatic resources associated with
jurisdictional determinations.18 This 0.05% represents adjacent wetlands that were found to be non-
jurisdictional via the significant nexus standard under pre-2015 practice. An unknown fraction of this
0.05% could potentially become jurisdictional under this final rule. Because determinations are made on a
case-specific basis and the agencies are unable to accurately reassess prior determinations based on the
final rule's new scope for "in the region," the agencies cannot estimate what the potential change in
jurisdiction with be for tributaries that are assessed under the significant nexus standard as compared to
the primary baseline.
18 Date range considered: January 1, 2010 to April 9, 2021
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I.B.3.5.3 Comparison of the Final Rule to the Secondary Baseline
Changes in the adjacent wetlands category compared to the secondary baseline of the 2020 NWPR would
be due to both the revised definition for "adjacent wetlands" in the 2020 NWPR as well as revisions to the
other categories of waters that were considered jurisdictional as tributaries and as jurisdictional lakes and
ponds, and impoundments of jurisdictional waters. The elimination of interstate waters as a separate
category of jurisdiction under the 2020 NWPR also eliminated jurisdiction over wetlands adjacent to such
waters and their tributaries, where such interstate waters are jurisdictional only because they cross or
serve as State boundaries. Thus, the final rule likely includes more wetlands as "waters of the United
States" than the secondary baseline of the 2020 NWPR. The agencies are unable to quantify this change
in direct relation to regulatory categories.
The 2020 NWPR changed the longstanding definition of adjacent, which this final rule reestablishes.
Under the 2020 NWPR, wetlands were considered adjacent when they: abutted jurisdictional waters, were
inundated by flooding from jurisdictional waters in a typical year; when they were physically separated
from jurisdictional waters only by certain natural features; and when they were physically separated from
jurisdictional waters only by certain artificial structures that allowed for a direct hydrologic surface
connection between the wetlands and the jurisdictional waters in a typical year (see Section I.B.2 for more
details on jurisdiction under the 2020 NWPR).
The final rule includes more streams, such as certain ephemeral streams, as jurisdictional tributaries than
the 2020 NWPR, and therefore, likely would include more wetlands adjacent to those tributaries as
jurisdictional. However, because many of the additional streams the final rule includes as jurisdictional
compared to the 2020 NWPR are likely non-relatively permanent streams, the jurisdictional status of
wetlands adjacent to such streams must be determined according to the significant nexus standard; such
wetlands would not be categorically jurisdictional under the final rule. As discussed in Section I.B.3.2,
there may be some relatively permanent tributaries that are jurisdictional under the final rule that would
not be jurisdictional under the 2020 NWPR, and wetlands adjacent to such tributaries are jurisdictional
under the final rule where they meet either the relatively permanent or significant nexus standard. Such
wetlands, where they are jurisdictional under the final rule, represent a change in jurisdiction compared to
the 2020 NWPR.
Adjacent wetlands under the final rule include those with an unbroken surface or shallow sub-surface
connection to jurisdictional waters. Some of these wetlands may have been adjacent under the 2020
NWPR, for example, where they are directly abutting jurisdictional waters or where they are inundated by
flooding from a jurisdictional water in a typical year. However, others may not have been, including, for
example, those wetlands that are adjacent under the final rule solely due to a hydrological connection to a
jurisdictional water via an unbroken shallow subsurface connection.
Wetlands physically separated from jurisdictional waters by natural river berms, beach dunes, and the like
were considered adjacent under the 2020 NWPR and would continue to be considered adjacent under the
final rule. The final rule would also include wetlands separated from jurisdictional waters by artificial
dikes, barriers, or similar artificial structures as adjacent wetlands, regardless of whether the wetlands
have a direct hydrologic surface connection to those jurisdictional waters in a typical year via a culvert,
flood or tide gate, or similar feature. This differs from the 2020 NWPR which required a direct hydrologic
surface connection in a typical year for such wetlands to be jurisdictional.
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Finally, adjacent wetlands under the final rule consistent with implementation under the pre-2015
approach would also include wetlands that are physically proximate (/. e., reasonably close) to
jurisdictional waters, either categorically (for those wetlands adjacent to traditional navigable waters, the
territorial seas, or interstate waters) or through a significant nexus analysis. Such wetlands were only
adjacent under the 2020 NWPR if they were inundated by flooding in a typical year by a jurisdictional
water, if they were physically separated from a jurisdictional water only by a natural berm or similar
natural structure, or if they were physically separated from jurisdictional water only by an artificial
structure so long as that structure allows for a direct hydrologic surface connection in a typical year.
Otherwise, proximate wetlands were not considered adjacent under the 2020 NWPR. Under the final rule,
such wetlands that are adjacent to but not directly abutting relatively permanent waters and non-relatively
permanent waters would be jurisdictional only if they have significant nexus to a traditional navigable
water, territorial sea, or interstate water.
I.B.3.5.4 Documentation in ORM2
Given that there are de minimis changes to the proportion of tributary resources that would have required
Clean Water Act section 404 permits under the primary baseline, the agencies are assessing the secondary
baseline via a comparison of the pre-2015 regulatory regime and the 2020 NWPR. The specific adjacent
wetland category that cannot be surmised as fully jurisdictional or non-jurisdictional when comparing
pre-2015 practice as a proxy for the final rule and the 2020 NWPR is primarily for adjacent wetlands
evaluated under a significant nexus analysis. This makes a direct comparison to the 2020 NWPR
categories of adjacent wetlands challenging. The Cowardin classification system that is denoted in ORM2
does allow for an assessment of what proportions of palustrine features were found to be jurisdictional or
non-jurisdictional between the pre-2015 regulatory regime and under the 2020 NWPR. This is the basis
for assessing the difference in the potential change of scope in jurisdiction for the secondary baseline. See
Section III.C.2 for more details.
I.B.3.6 Intrastate Waters That Do Not Fall within Other Jurisdictional Provisions
I.B.3.6.1 Treatment in the Final Rule
As articulated in Section I.B.3.3 on lakes and ponds, the (a)(5) category of waters in the final rule will
allow for intrastate lakes and ponds, streams, and wetlands not identified in paragraphs (a)(1) through (4)
of the final rule to be considered for jurisdiction under the relatively permanent and significant nexus
standards. Under the final rule, paragraph (a)(5) waters that meet either the relatively permanent standard
or the significant nexus standard are jurisdictional.
Section I.B.3 provides additional discussion on the definition of "significantly affect" in this rule,
including the factors that will be evaluated and the functions that will be assessed as part of a significant
nexus analysis. In implementing the significant nexus standard, the agencies generally intend to analyze
waters under paragraph (a)(5) individually to determine if they significantly affect the chemical, physical,
or biological integrity of a paragraph (a)(1) water. This approach reflects the agencies' consideration of
public comments, as well as implementation considerations for waters assessed under paragraph (a)(5).
It is expected that relatively permanent lakes and ponds which are not part of tributary networks but
which have continuous surface connections to tributary systems are the most likely resources which could
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be considered jurisdictional paragraph (a)(5) waters. To illustrate, a relatively permanent lake located near
a tributary that meets the relatively permanent standard, but separated by a natural berm, to the extent that
berm provides evidence of a continuous surface connection, is jurisdictional as a paragraph (a)(5) water
under the relatively permanent standard. Similarly, a relatively permanent oxbow pond located near a
traditional navigable water, and connected to that traditional navigable water via a swale that provides a
continuous surface connection between the pond and the traditional navigable water, is jurisdictional as a
paragraph (a)(5) water under the relatively permanent standard. Wetlands with similar characteristics are
considered for jurisdiction under the final rule as adjacent wetlands. When an intrastate lake, pond, stream
or wetland that does not meet the jurisdictional criteria under other categories of the final rule does not
have a continuous surface connection, regardless of flow regime, it would be assessed as a paragraph
(a)(5) water via a significant nexus analysis. Some waters could be considered jurisdictional under
paragraph (a)(5) where they significantly affect the chemical, physical, or biological integrity of
traditional navigable waters, the territorial seas, or interstate waters, though the agencies anticipate that
more resources will likely be found jurisdictional under paragraph (a)(5) pursuant to the relatively
permanent standard.
I.B.3.6.2 Comparison of the Final Rule to the Primary Baseline
The agencies final rule makes changes to the jurisdictional criteria considered for intrastate waters
evaluated under paragraph (a)(5) of the final rule as compared to the jurisdictional criteria intrastate
waters evaluated under the comparable paragraph (a)(3) of the 1986 regulations, which is utilized under
pre-2015 practice. This rule replaces the interstate commerce test used in paragraph (a)(3) of the 1986
regulations with the relatively permanent standard and the significant nexus standard for the comparable
paragraph (a)(5) category in this rule. Prior to the SWANCC decision, paragraph (a)(3) of the 1986
regulations provided a broad scope of jurisdiction for waters considered under that category. However,
after the SWANCC decision, as discussed in Section I.B.I, in practice the agencies have not asserted
jurisdiction over waters assessed under paragraph (a)(3) of the 1986 regulations. Compared to the straight
regulatory text of paragraph (a)(3) of the 1986 regulations, the final rule's analogous paragraph (a)(5)
category represents a decrease in jurisdiction for waters considered under that category. However, there
will likely be waters that are jurisdictional under paragraph (a)(5) of the final rule that in practice would
not have been jurisdictional under the comparable paragraph (a)(3) category of the 1986 regulations as
implemented consistent with the pre-2015 regulatory regime. This includes waters evaluated under
paragraph (a)(5) pursuant to the relatively permanent standard, as discussed in Section I.B.3.6(1), and
waters evaluated under paragraph (a)(5) pursuant to the significant nexus standard. Similar to pre-2015
practice, waters evaluated under paragraph (a)(5) pursuant to the significant nexus standard will generally
be considered individually. When considered individually, there are likely few of these resources that
would feasibly be found to have a significant nexus. For example, there would be a higher likelihood for
the water to be jurisdictional as an (a)(5) water if it were substantially large, and/or in close proximity to
the nearest traditional navigable waters, territorial seas, or interstate waters ("paragraph (a)(1) waters").
For example, when looking at data associated with JDs carried out under the Rapanos Guidance utilized
consistent with pre-2015 practice (including AJDs, PJDs and JD Concurrences), the proportion of waters
considered under paragraph (a)(3) of the 1986 regulations which will require an assessment under either
the relatively permanent standard or significant nexus standard under the final rule is only 3.64% of all
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aquatic resources that underwent jurisdictional determinations.19 This 3.64% represents intrastate rivers,
streams, wetlands, lakes and ponds, and other types of waters that were found to be non-jurisdictional
after an evaluation under paragraph (a)(3) of the 1986 regulations under pre-2015 practice. An unknown
yet likely small fraction of this 4% could potentially become jurisdictional under this final rule under
either the relatively permanent standard or the significant nexus standard.
To delve into this matter more, the agencies reviewed AJD data under the 2015 Clean Water Rule, which
provided a very different avenue for finding certain intrastate waters to be jurisdictional. The number of
observations from the 2015 Clean Water Rule within ORM2 that could potentially have been comparable
to the implementation of paragraph (a)(5) of the final rule was so small that the dataset is not statistically
viable for comparison. In short, the number of features to which this applies is too small to use for
inferences of change in scope.
I.B.3.6.3 Comparison of the Final Rule to the Secondary Baseline
Under the 2020 NWPR, most waters that are assessed under paragraph (a)(5) of the final rule would have
fallen under the 2020 NWPR's paragraph (b)(1) exclusion for waters not identified in that rule's four
categories of "waters of the United States." Some waters evaluated under paragraph (a)(5) of the final rule
may have been jurisdictional under the 2020 NWPR's category for "lakes and ponds, and impoundments
of jurisdictional waters" (e.g., non-tributary lakes and ponds that are inundated by flooding in atypical
year from traditional navigable water, a territorial sea, jurisdictional tributary under the 2020 NWPR, or
jurisdictional lake and pond, or impoundment under the 2020 NWPR).
As discussed in previous sections, the agencies have been using data associated with pre-2015 practice to
estimate potential changes between the final rule and the 2020 NWPR, but there are also data constraints
which prevent a direct comparison of resources the 2020 NWPR found to be jurisdictional compared to
what the pre-2015 regulatory practice found jurisdictional for these non-navigable, intrastate waters.
Generally speaking, there are likely few resources from pre-2015 regulatory practice that would become
jurisdictional under the (a)(5) category under the final rule. The difference in scope of jurisdiction from
the primary baseline is expected to be de minimis. Applying that forward to the 2020 NWPR, where the
differences were also de minimis, the agencies believe that overall the changes in jurisdiction related to
(a)(5) waters in the final rule in comparison to the 2020 NWPR's approach to non-navigable, isolated,
intrastate waters will be de minimis.
I.B.3.6.4 Documentation in ORM2
Under pre-2015 regulatory practice, in ORM2 the water type "Isolate" was used as a catch-all for the
(a)(3) "other waters category" under that regime. This water type could be further broken down by
Cowardin classification into lacustrine, palustrine, and riverine resources.
Under the 2020 NWPR, most waters that would be evaluated under paragraph (a)(5) of the final rule were
captured under the paragraph (b)(1) water type of that rule in ORM2; however, there is no way to
differentiate these from other non-jurisdictional features excluded under paragraph (b)(1) of the 2020
19 Date range considered: January 1, 2010 to April 9, 2021.
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NWPR within 0RM2. Similarly there is no way to track which lake, ponds, and impoundments under
paragraph (a)(3) of the 2020 NWPR would be considered under paragraph (a)(5) of the final rule.
ORM2 data associated with the 2015 Clean Water Rule has multiple categories for waters evaluated
under paragraphs (a)(6), (a)(7), and (a)(8) of that rule20 which could be parsed in different ways to assess
the number of features that might be comparable to features that would be considered for jurisdiction
under paragraph (a)(5) of the final rule. However, the resources are very case-specific, and whether the
resource meets the relatively permanent standard, its size, its landscape position, and its distance from a
traditional navigable water, territorial sea, or interstate water are key factors under the final rule in
determining if it is jurisdictional. The data the agencies assessed had very few resources that might be
comparable, and of those that were likely comparable, there was too much uncertainty to ensure that they
would be truly comparable without further information.
I.B.3.7 Waters Excluded from the Definition of "Waters of the United States"
I.B.3.7.1 Treatment in the Final Rule
Under the final rule, certain waters are excluded from the definition of "waters of the United States,"
including waters added to the exclusions at paragraph (b) that would have generally not been considered
"waters of the United States" consistent with the agencies' longstanding practice and each of the
subsequent rules defining "waters of the United States." Excluded waters are non-jurisdictional and are
not subject to the regulation under the Clean Water Act. The agencies are listing these exclusions in the
regulatory text in a new paragraph (b) which consolidates the exclusions together in a single regulatory
section. Under the final 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 this rule. Paragraph (a)(1) waters (traditional navigable waters, the territorial seas, and interstate
waters) are not subject to the exclusions, consistent with longstanding practice (other than the 2020
NWPR).
Prior converted cropland and waste treatment systems have been excluded from the definition of "waters
of the United States" since 1993 and 1979, respectively, and those exclusions are continued in the final
rule. The agencies have clarified in the final rule that the exclusion for prior converted cropland applies to
those determinations made by the U.S. Department of Agriculture (USDA). This revision is instead to
restore 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. The agencies have
also added clarity to the regulatory text that the exclusion would cease upon a change of use, which
means that the area is no longer available for the production of agricultural commodities. The final rule
20 Paragraph (a)(6) of the 2015 Clean Water Rule was for adjacent waters, which included lakes and ponds which would be
considered under paragraph (a)(5) of the final rule but also included adjacent wetlands which would be evaluated under
paragraph (a)(4) of this final rule. Paragraphs (a)(7) and (a)(8) of the 2015 Clean Water Rule was for certain waters that did
not meet the jurisdictional criteria under other categories of that rule and could be considered on a case-specific basis, either
alone or with similarly situated waters in the region, for jurisdiction under that rule's significant nexus standard. Together,
these categories include categories of waters under the 2015 Clean Water Rule that will be evaluated under paragraph (a)(5)
of the final rule.
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would maintain the provision promulgated in 1993 that EPA retains final authority to determine whether
an area is subject to the requirements of the Clean Water Act. Additionally, the agencies have revised the
regulatory text of the waste treatment system exclusion to provide clarity, including deleting an obsolete
cross-reference and deleting a suspended sentence that had been featured only in the version of the
exclusion contained in EPA's NDPES regulations. These revisions are intended to provided clarity and do
not represent a change from the agencies' decades-long practice implementing the exclusion.
Additional exclusions are also included in regulatory text for waters and features that were generally not
considered "waters of the United States" consistent with the agencies' pre-2015 practice. These include:
ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry
a relatively permanent flow of water; artificially irrigated areas that would revert to dry land if the
irrigation ceased; 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; artificial reflecting or swimming pools or other small ornamental bodies of water created by
excavating or diking dry land to retain water for primarily aesthetic reasons; 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; and swales and erosional
features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.
I.B.3.7.2 Comparison of the Final Rule to the Primary Baseline
Consistent with pre-2015 practice, the agencies have clarified in the final rule that the exclusions do not
apply to traditional navigable waters, the territorial seas, or interstate waters. The agencies are continuing
the two longstanding exclusions that were part of the pre-2015 regulatory regime for waste treatment
systems and prior converted cropland. The changes to the regulatory text for the exclusion for waste
treatment systems are intended to provided clarity and are not intended to be a change from the agencies'
pre-2015 practice.
The regulatory text changes to the prior converted cropland exclusion to clarify that the exclusion will
cease when the area has changed use, so that it is no longer available for the production of agricultural
commodities, may represent a change from pre-2015 practice. The agencies have implemented both
"change in use" and "abandonment" for purposes of ceasing the exclusion for prior converted cropland
over the years. The preamble to EPA and the Corps' 1993 regulations, provided that land would lose its
prior converted status if it is abandoned and it exhibits wetland characteristics (abandonment).21 The
Federal Agriculture Improvement and Reform Act of 1996 amended the Food Security Act and changed
this "abandonment" principle, replacing it with a new approach referred to as "change in use."22 EPA and
the Corps did not address the 1996 amendments in rulemaking. In 2005, the Corps and National
Resources Conservation Service (NRCS) issued a joint Memorandum to the Field (U.S. Department of
Agriculture, 2005) in an effort to again align the Clean Water Act section 404 program with the Food
21 58 FR 45034 (August 25, 1993), available at https://www.loc.gov/item/fr058163/.
22 Public Law 104-127, 110 Stat. 888 (1996). Under the 1996 amendments, an area retains its status as prior converted cropland
for purposes of the wetland conservation provisions so long as it continues to be available for agricultural purposes. See
H.R. Conf. Rep. No. 104-494, at 380 (1996).
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Security Act by adopting the principle that a wetland can lose prior converted cropland status following a
"change in use." The Memorandum stated, "[a] certified [prior converted] determination made by NRCS
remains valid as long as the area is devoted to an agricultural use. If the land changes to a non-agricultural
use, the [prior converted] determination is no longer applicable and a new wetland determination is
required for CWA purposes." It defined "agricultural use" as "open land planted to an agricultural crop,
used for the production of food or fiber, used for haying or grazing, left idle per USDA programs, or
diverted from crop production to an approved cultural practice that prevents erosion or other
degradation." EPA was not a signatory of the 2005 memorandum and generally continued the
"abandonment" practice. The change in use policy was later declared unlawful by one district court
because it was found to effectively modify the 1993 preamble language without any rulemaking
process.23 Following this decision, the agencies did not implement "change in use" in areas subject to the
court's jurisdiction. The agencies rescinded the 2005 Memorandum following publication of the 2020
NWPR, on January 28, 2021. Given the rescission of the 2005 Memorandum, the agencies are currently
utilizing the "abandonment" principle for determining when an area can lose its prior converted cropland
status, consistent with the 1993 preamble. While the final rule is not intended to represent a change in
which waters are properly excluded under the prior converted cropland exclusion, there may be
differences in which resources lose their status as prior converted cropland under the final rule due to the
clarification in the final rule that "change in use" is the proper criteria to consider when determining if an
area is still prior converted cropland. The Corps does not track in ORM2 under pre-2015 practice if a
water meets the prior converted cropland exclusion and does not track if a resource has lost its status as
prior converted cropland. In addition, such a determination, under either the "abandonment" or "change in
use" principles would require very site-specific information. Thus, the agencies are unable to estimate
what this potential change in jurisdiction would be.
The agencies have interpreted certain waters to be generally non-jurisdictional under pre-2015 practice.
For example, the 1986 and 1988 preamble language both states that the agencies do not generally
consider certain waters to be "waters of the United States." The preamble to the 1986 regulations, for
example, explains that the agencies generally do not assert jurisdiction over "certain other features"
including: artificially irrigated areas which would revert to upland if the irrigation ceased; 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; artificial
reflecting or swimming pools or other small ornamental bodies of water created by excavating and/or
diking dry land to retain water for primarily aesthetic reasons; and 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." 51 FR 41217. In the Rapanos
Guidance, the agencies added an additional category to this list, explaining that "[s]wales or erosional
features (e.g., gullies, small washes characterized by low volume, infrequent, or short duration flow) are
generally not waters of the United States." Rapanos Guidance at 11-12. The agencies in the Rapanos
Guidance also provided additional clarity regarding ditches that were generally non-jurisdictional: ditches
(including roadside ditches) excavated wholly in and draining only uplands and that do not carry a
relatively permanent flow of water. Id. at 12.
23 New Hope Power Co. v. U.S. Army Corps ofEng 'rs, 746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010).
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To provide clarity on which waters are jurisdictional and which are not and to enhance certainty for the
public, the agencies are codifying exclusions for these features in the regulatory text in paragraph (b) and
removing the possibility that these waters could be found jurisdictional on a case-specific basis. The
agencies have made minor revisions to the text of the exclusions as compared to the 1986 preamble
language or the Rapanos Guidance (e.g., changing uplands to "dry land") to provide clarity and
consistency, but the agencies have not intended for these minor clarifying revisions to represent a change
in implementation. Because the agencies did not generally assert jurisdiction over these features in
practice, codifying exclusions for these features is not a significant change from the pre-2015 regulatory
regime. Many commenters supported codifying exclusions for these features.
I.B.3.7.3 Comparison of the Final Rule to the Secondary Baseline
The 2020 NWPR explicitly excluded waters that were not otherwise included in the definition of "waters
of the United States." The 2020 NWPR also continued some of the exclusions that were added to the
regulatory text of the 2015 Clean Water, many of which were waters that had been found to be generally
non-jurisdictional under pre-2015 practice but expanded the scope of some of those exclusions. The 2020
NWPR also differed from pre-2015 practice by explicitly allowing some exclusions to apply to traditional
navigable waters and the territorial seas. The list of exclusions in the final rule is generally consistent with
most of the exclusions under the 2015 Clean Water Rule and 2020 NWPR and will be familiar to the
public. Where the agencies assumed no changes or limited changes when comparing the exclusions
identified in paragraph (b) of the 2020 NWPR and those waters excluded under paragraph (b) of the final
rule, there is no further discussion. For example, many of the water features that are generally not
considered "waters of the United States" under the final rule would not be included in the 2020 NWPR's
definition of "waters of the United States" and therefore would be excluded under paragraph (b)(1) of the
2020 NWPR definition. In addition, groundwater, including groundwater drained through subsurface
drainage systems, and diffuse stormwater run-off and directional sheet flow over upland are not
considered "waters of the United States" under the final rule, and are explicitly excluded under the 2020
NWPR.
Waste Treatment Systems
Under the 2020 NWPR, the agencies retained an exclusion for waste treatment systems, but for the first
time added a definition of the term to the regulatory text to include all components, including lagoons and
treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or
eliminating any such discharge). The agencies have retained the waste treatment exclusion from the pre-
2015 regulations, with minor text edits to correct outdated cross-refences, but as discussed in Section
I.B.3.7(2) do not intend for these clerical corrections to change the application of the waste treatment
exclusion as compared to pre-2015 practice. Thus, the agencies do not anticipate a substantial change for
waste treatment systems under the final rule as compared to the secondary baseline of the 2020 NWPR
but note that if a system were located on a water whose jurisdictional status changes under the 2020
NWPR, the application of the exclusion would have likewise changed. It is anticipated that the final rule
which returns to language similar to the pre-2015 regulations with minor clerical corrections would not
create a substantial difference in jurisdictional status for waste treatment systems. Because this category
of exclusions under the 2020 NWPR applied to traditional navigable waters and the territorial seas (and
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because interstate waters was no longer an independent basis for jurisdiction under the 2020 NWPR),
there could be some waters that are paragraph (a)(1) waters under the final rule that would have been
excluded as waste treatment systems under the 2020 NWPR. The agencies are unable to quantify this
change.
Prior Converted Cropland
The 2020 NWPR provided a regulatory definition of prior converted cropland for purposes of the Clean
Water Act for the first time. Generally, the 2020 NWPR's approach to prior converted cropland
substantially broadened the scope of prior converted cropland and reduced the likelihood that it would
ever lose its excluded status. The 2020 NWPR provided that an area remains prior converted cropland for
purposes of the Clean Water Act unless the area is abandoned and has reverted to wetlands, defining
abandonment to occur 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 22339; 33 CFR 328.3(c)(9). The
2020 NWPR then presented a broad interpretation of "agricultural purposes," including but not limited to
crop production, haying, grazing, idling land for conservation uses (such as 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 such as hurricanes and drought. 85 FR 22321.Given the breadth of "agricultural purposes" under
the 2020 NWPR, former cropland that reverts to wetlands otherwise meeting the definition of "waters of
the United States" could have maintained its excluded prior converted cropland status simply by, for
example, being grazed or idled for habitat conservation once in five years. These wetlands could then
have been filled without triggering any Clean Water Act regulatory protection.
The 2020 NWPR's definition of prior converted cropland extended the Clean Water Act exclusion
beyond those areas that the USDA considers prior converted cropland under the Food Security Act.
Specifically, while USDA's implementation of prior converted cropland requires production of an
"agricultural commodity," the 2020 NWPR defined prior converted cropland to encompass any area used
to produce an "agricultural product," a term that introduced ambiguity and further distinguished the Clean
Water Act's prior converted cropland exclusion from USDA's approach. Compare 7 CFR 12.33(b) with
33 CFR 328.3(c)(9). The 2020 NWPR's definition provided that the agencies would recognize prior
converted cropland designations made by USDA, 33 CFR 328.3(c)(9), but the list of examples that the
2020 NWPR provides for "agricultural product" suggests the term is substantially broader than the
USDA's requirement for land used for "commodity crops."
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. Consistent with USDA's
definition, 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, most ditches) that are
located within the prior converted cropland area. Any area that has not reverted to a wetland that meets
this rule's definitions will not be considered a "water of the United States."
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The final rule also differs from the 2020 NWPR by clarifying that an area can lose its status as prior
converted cropland due to a change in use, whereas the 2020 NWPR utilized the "abandonment"
principle. The agencies believe that this clarification better aligns the agencies' implementation of which
waters are properly prior converted cropland with the USDA's interpretation, which also utilizes "change
in use" for determining if an area has lost its prior converted cropland status. The agencies believe that
this will change the number of areas that are able to maintain their prior converted cropland status, should
the area revert to a wetland that meets the final rule's definition of "waters of the United States," but are
unable to estimate this change.
The agencies anticipate that fewer waters would be excluded as prior converted cropland under the final
rule's language, compared to under the 2020 NWPR. However, the agencies are unable to quantify this
change. Not all prior converted cropland that has been officially designated by USDA's NRCS has been
mapped throughout the country. In addition, not all land that qualifies under the Food Security Act of
1985 as prior converted cropland has been officially designated as such. Further, NRCS is statutorily
prohibited from sharing data and information on program participants and their land, even with other
federal agencies.24 Therefore, NRCS data were not available for the agencies to identify potential effects
or changes in jurisdiction. Although estimates of the acreage of prior converted croplands have been made
in the past (e.g., 53 million acres; White House Office on Environmental Policy, 1993), the agencies
could not leverage this information in this analysis. In addition, the Corps does not document in ORM2
when waters met the prior converted cropland exclusion under the pre-2015 regulatory regime, and one
year of NWPR data is not sufficient to surmise how the 2020 NWPR's definition of prior converted
cropland would be implemented. No agency data exist to provide estimates on the current extent of prior
converted cropland or the comparable applicability between pre-2015 regulatory regime (that the final
rule will restore) and under the secondary baseline of the 2020 NWPR.
Ephemeral Features. Including Ephemeral Streams
The 2020 NWPR excluded ephemeral features, including ephemeral streams, swales, gullies, rills, and
pools, from the definition of "waters of the United States." As previously discussed, the exclusion for all
ephemeral features in 2020 NWPR is not retained in the final rule. For example, the final rule includes
those ephemeral streams, lakes, and ponds that meet the jurisdictional criteria under paragraphs (a)(1)
through (5) of the final rule. For example, an ephemeral lake that is an interstate water is jurisdictional
under the final rule but would not have been jurisdictional under the 2020 NWPR. Similarly, an
ephemeral stream that meets the criteria to be jurisdictional as a tributary under the final rule would be a
"water of the United States" under the final rule but would not have under the 2020 NWPR. Changes in
jurisdiction for ephemeral streams are discussed in section I.B.3.2. Consistent with pre-2015 practice,
24 Section 1619 of the Food, Conservation, and Energy Act of 2008 prohibits USDA, its contractors, and cooperators, from
disclosing information provided by an agricultural producer or owner of agricultural land concerning the agricultural
operation, farming or conservation practices, or the land itself, in order to participate in a USDA program, as well as
geospatial information maintained by USDA with respect to such agricultural land or operations, subject to certain
exceptions and authorized disclosures. Covered information may only be shared with other federal agencies outside USDA
for specific purposes under a cooperative program, i.e., not for general regulatory or enforcement purposes. Available at
https: //www, agriculture, senate, gov/imo/media/doc/110-246%20-
%20Food.%20Conservation.%20And%20Energv%20Act%200f%202008.pdf.
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features like non-wetland swales, gullies,25 and rills are not considered jurisdictional under the final rule
because they are not tributaries or because they do not have a significant nexus to a downstream
traditional navigable water, territorial sea, or interstate water, and such waters would not have been
jurisdictional under the 2020 NWPR. Thus, for swales, gullies, and rills, the agencies expect no change in
jurisdiction under the final rule as compared to the 2020 NWPR.
Ditches
Under the 2020 NWPR, all ditches that were not subject to jurisdiction as a territorial sea, traditional
navigable water, or tributary, as well as those portions of ditches that were constructed in an adjacent
wetland that did not satisfy the conditions of the "adjacent wetlands" definition were excluded. Some of
the ditches excluded under the 2020 NWPR would be considered non-jurisdictional under the final rule,
such as ditches (including roadside ditches) excavated wholly in and draining only dry land and that do
not carry a relatively permanent flow of water. In addition, non-relatively permanent ditches that are not
created in dry land and that lack a case-specific significant nexus would also be non-jurisdictional under
the final rule. Thus, ditches that would be non-jurisdictional under the final rule would not represent a
change from the ditch exclusion in the 2020 NWPR. However, other ditches that were excluded under the
2020 NWPR may be jurisdictional under the final rule if they cross State lines regardless of any
connection to a traditional navigable water or the territorial seas, are relatively permanent waters, or are
non-relatively permanent ditches that are not excavated wholly in and draining only dry lands with a case-
specific significant nexus to a traditional navigable water, territorial sea, or interstate water. The agencies
are unable to quantify this change.
Certain Other Features
The 2020 NWPR excluded "artificially irrigated areas, artificial lakes and ponds, and water filled
depressions," which included fields flooded for agricultural production, that would revert to upland
should application of irrigation water to that area cease. The text of the exclusion changed somewhat from
the 1986 and 1988 preamble language used under the final rule by adding "including fields flooded for
agricultural production" and with a slight modification from "if the irrigation ceased" to "should
application of irrigation water to that area cease," but the agencies anticipate that there would be little to
no change in the scope of jurisdiction for all of the features associated with these waters.
The 2020 NWPR excluded artificial lakes and ponds, including water storage reservoirs and farm,
irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-
jurisdictional waters, so long as those artificial lakes and ponds were not impoundments of jurisdictional
waters that met the conditions of the "lakes and ponds, and impoundments of jurisdictional waters"
definition in the rule. The 2020 NWPR's exclusion differs from the scope of waters that would be
considered non-jurisdictional in a few ways, including by identifying water storage reservoirs, farm
ponds, and log cleaning ponds as excluded types of artificial lakes and ponds, and not specifically
25 Some ephemeral streams are colloquially called "gullies." Regardless of the name they are given locally, some such ephemeral
streams could be found jurisdictional under the final rule if they cross State lines regardless of any connection to a TNW or
if they satisfy a significant nexus evaluation.
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including settling basins or artificial lakes and ponds used for rice growing in this category of exclusions.
The agencies are unable to quantify this change.
In the final rule, the exclusion of artificial lakes and ponds would be limited to those excavated fully in
uplands. Artificial ponds and lakes constructed or excavated in newly non-jurisdictional waters (waters
that were found to be jurisdictional prior to the 2020 NWPR) were excluded under the 2020 NWPR. For
example, under the 2020 NWPR an artificial pond could be constructed by impounding an ephemeral
stream, but such a pond would be jurisdictional under the final rule as an impoundment if the ephemeral
stream met the significant nexus standard to be jurisdictional. In addition, under the 2020 NWPR, an
artificial lake or pond created in a non-jurisdictional wetland would be excluded, but such a lake or pond
could be jurisdictional under the final rule, for example if it was a relatively permanent water that had a
continuous surface connection to a tributary that meets the relatively permanent standard via a swale. The
exclusion in the final rule would also not apply to those waters that are traditional navigable waters, the
territorial seas, or interstate waters, whereas it would under the 2020 NWPR. Therefore, some water
features could have been excluded under the 2020 NWPR that could be considered jurisdictional under
the final rule for this category. The agencies are unable to quantify this change.
The 2020 NWPR's exclusion for water-filled depressions constructed or excavated in upland or in non-
jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-
jurisdictional waters for the purpose of obtaining fill, sand, or gravel differs from the scope of waters that
will be not jurisdictional under the final rule. The 1986 and 1988 preamble language and the final rule
include additional specifications that such waters are generally non-jurisdictional unless and until the
construction or excavation operation is abandoned and the resulting body of water meets the definition of
"waters of the United States." Although not included in the regulatory text, in the preamble to the 2020
NWPR the agencies clarified that once a feature subject to this exclusion is no longer used for its original
purpose, it no longer qualifies for the exclusion. Similar to artificial lakes and ponds, water-filled
depressions and pits that met the terms of the exclusion that were constructed or excavated in non-
jurisdictional waters were non-jurisdictional under the 2020 NWPR, but that same condition does not
apply under the final rule. Under the final rule, this exclusion also not apply to waters that are traditional
navigable waters, the territorial seas, or interstate waters, whereas it would under the 2020 NWPR. The
agencies are unable to quantify this change.
Stormwater Control Features
The 2020 NWPR excluded stormwater control features constructed in upland or in non-jurisdictional
waters that convey, treat, infiltrate, or store stormwater run-off Similar to some of the other exclusions,
stormwater control features that met the terms of the exclusion and were constructed in non-jurisdictional
waters were non-jurisdictional under the 2020 NWPR. There is no such exclusion for stormwater control
features under the final rule and such waters were not listed as generally non-jurisdictional under the 1986
and 1988 preamble language, though some stormwater features would be non-jurisdictional under the
final rule. The agencies are unable to quantify this change.
Groundwater Recharge. Water Reuse, and Wastewater Recycling Structures
The 2020 NWPR excluded groundwater recharge, water reuse, and wastewater recycling structures,
including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in
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I—Introduction and Overview
non-jurisdictional waters. Similar to some of the other exclusions, structures that met the terms of the
exclusion that were constructed in non-jurisdictional waters were non-jurisdictional under the 2020
NWPR. The 1986 and 1988 preamble language that informs the exclusions in the final rule does not
include a similar category of waters generally considered non-jurisdictional. Such waters were likely not
considered jurisdictional under prior practice unless they were connected to the tributary network or were
jurisdictional impoundments, and even then, some such waters could be considered excluded under the
exclusion for waste treatment systems. Under the final rule, there is the potential for such waters to be
jurisdictional if they are traditional navigable waters, the territorial seas, or interstate waters or if they
meet either the relatively permanent or significant nexus standard and do not fall under the waste
treatment exclusion. The agencies are unable to quantify this change.
I.B.3.7.4 Documentation in ORM2
The agencies are unable to query ORM2 to determine how many waters have been determined to meet an
exclusion from the definition of "waters of the United States" under the pre-2015 regulatory regime and
are unable to quantify the magnitude of the changes in jurisdiction due to some of these exclusions.
I.B.4 Comparison of the Scope of Jurisdiction: Primary Baseline and Final Rule
Table 1-1: Regulatory Category Crosswalk between the Primary Baseline and the Final Rule
Water type
Pre-2015
Corresponding
Categories?*
Final Rule
Traditional
navigable
waters
(a)(1) Traditional
navigable waters
Yes
(a)(1) Traditional navigable waters,
territorial seas, interstate waters
Interstate
waters**
(a)(2) Interstate waters
Yes
(a)(1) Traditional navigable waters,
territorial seas, interstate waters
Territorial
seas**
(a)(6) Territorial Seas
Yes
(a)(1) Traditional navigable waters,
territorial seas, interstate waters
Impoundments
(a)(4) Impoundments of
jurisdictional waters
Yes
(a)(2) Impoundments of jurisdictional
waters (except impoundments of (a)(5)
waters)
Lakes and
Ponds
(a)(5) Tributaries (see also
(a)(3) waters)
As tributaries, yes
(see also (a)(5)
waters under the
final rule)
(a)(3) Tributaries (meeting relatively
permanent standard, or meeting significant
nexus standard) (see also (a)(5) waters)
Tributaries
(a)(5) Tributaries
Mostly
(a)(3) Tributaries (meeting relatively
permanent standard, or meeting significant
nexus standard)
Adjacent
Wetlands
(a)(7) Adjacent wetlands
(adjacent to (a)(1), (a)(2),
or (a)(6) waters, or
abutting relatively
permanent waters, or
adjacent to relatively
permanent or non-
relatively permanent
waters and meeting
significant nexus
standard)
Mostly
(a)(4) Adjacent wetlands (adjacent to (a)(1)
waters, or adjacent to relatively permanent
(a)(2)-(a)(3) waters with a continuous
surface connection, or adjacent to (a)(2)-
(a)(3) waters and meeting the significant
nexus standard)
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I—Introduction and Overview
Table 1-1: Regulatory Category Crosswalk between the Primary Baseline and the Final Rule
Water type
Pre-2015
Corresponding
Categories?*
Final Rule
Intrastate
Waters Not
Meeting Other
Categories of
Waters
(a)(3) Other waters that
could impact interstate or
foreign commerce***
No, but miniscule
impact to
jurisdiction
(a)(5) Intrastate lakes and ponds, streams,
or wetlands not identified in paragraphs
(a)(1) through (4) (and meeting relatively
permanent standard or significant nexus
standard)
* This column summarizes whether types of aquatic resources are expected to be found to be jurisdictional at a comparable
rate to those found to be jurisdictional under pre-2015 practice.
" Interstate waters are categorized under the Rapanos AJD form as any other type of resource; the distinction, which is not
captured in ORM2, is that these resources cross or serve as State boundaries. These resources are thus not separated within
ORM2 for aquatic resources associated with Rapanos AJDs. Similarly, territorial seas are categorized under the Rapanos AJD
form as traditional navigable waters.
"* While these resources should have required an analysis of their commerce links under (a)(3) under the pre-2015
regulatory regime, in practice, this became a 'catch all' category used by Corps staff in ORM2 to denote non-jurisdictional,
isolated resources.
I.B.5 Comparison of Scope of Jurisdiction: Secondary Baseline and Final Rule
Table 1-2: Regulatory Category Crosswalk between the Secondary Baseline and the Final Rule
Water type
2020 NWPR
Corresponding
Categories?*
Final Rule
Traditional
navigable waters
(a)(1) Traditional navigable
waters and territorial seas
Mostly
(a)(1) Traditional navigable waters,
territorial seas, interstate waters
Interstate
waters**
N/A
No
(a)(1) Traditional navigable waters,
territorial seas, interstate waters
Territorial seas
(a)(1) Territorial Seas
Yes
(a)(1) Traditional navigable waters,
territorial seas, interstate waters
Impoundments
(a)(3) Lakes and ponds, and
impoundments of jurisdictional
waters or (b)(1) Waters that are
not (a)(1)-(a)(4)
Mostly
(a)(2) Impoundments of
jurisdictional waters (except
impoundments of (a)(5) waters)
Lakes and Ponds
(a)(3) Lakes and ponds, and
impoundments of jurisdictional
waters or (b)(1) Waters that are
not (a)(1)-(a)(4)
As tributaries,
mostly (see also
(a)(5) waters
under the final
rule)
(a)(3) Tributaries (meeting
relatively permanent standard, or
meeting significant nexus
standard) (see also (a)(5) waters)
Tributaries***
(a)(2) Tributaries, (a)(3) Lakes
and ponds, and impoundments
of jurisdictional waters, or (b)(1)
or (b)(3) exclusions
No
(a)(3) Tributaries (meeting
relatively permanent standard or
significant nexus standard)
Adjacent
Wetlands***
(a)(4) Adjacent wetlands or (b)(1)
exclusions
No
(a)(4) Adjacent wetlands (adjacent
to (a)(1) waters, or adjacent to
relatively permanent (a)(2)-(a)(3)
waters with a continuous surface
connection, or adjacent to (a)(2)-
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I—Introduction and Overview
Table 1-2: Regulatory Category Crosswalk between the Secondary Baseline and the Final Rule
Water type
2020 NWPR
Corresponding
Categories?*
Final Rule
(a)(3) waters and meeting the
significant nexus standard)
Intrastate Waters
Not Meeting
Other Categories
of Waters
Paragraph (b) exclusions (see also
(a)(3) waters)***
Mostly
(a)(5) Intrastate lakes and ponds,
streams, or wetlands not
identified in paragraphs (a)(1)
through (4) (meeting relatively
permanent standard or significant
nexus standard)
* This column summarizes whether types of aquatic resources are expected to be found to be jurisdictional at a comparable
rate to those found to be jurisdictional under pre-2015 practice.
" Interstate waters were not an independent basis for jurisdiction under the 2020 NWPR. Such waters were jurisdictional
only were they met one of the other jurisdictional criteria under that rule.
""See descriptions within Section I.B for more details on how the 2020 NWPR's scope of jurisdiction was tied more heavily
to flow regime and certain surface hydrologic connections in a typical year rather than how waters significantly affect
traditional navigable waters or territorial seas.
I.C Assessing the Change in Scope of Jurisdiction with the Cowardin Classification
I.C.I Prior Methods for Assessing Change in Scope
The EA for the 2020 NWPR included national quantitative analyses and three in-depth case studies.
These efforts demonstrated the difficulty of comparing different jurisdictional regimes and quantifying
the environmental and economic effects. However, despite these challenges, the agencies recognize the
value of quantitative comparisons analyses to the extent possible.
Under the 2015 Clean Water Rule, a comparison of scope of jurisdiction from the baseline of pre-2015
practice to the new rule was carried out by forecasting the change in jurisdictional scope through analysis
of prior jurisdictional determinations. Specific regulatory definitions were assessed in one of two ways:
(1) Does the regulatory definition translate equally between rules? For example, the implementation of
traditional navigable waters has been generally comparable between rules, and therefore it has been
assumed that such resources would largely remain jurisdictional regardless of rule.26 (2) If the regulatory
definition does not translate equally between rules, what do the agencies forecast the change in
jurisdictional scope to be?
Because the 2020 NWPR had been in place for just over a year before its vacatur,27 and the agencies are
largely returning to a familiar regulatory approach that is similar to their pre-2015 regulatory regime, with
20 The 2020 NWPR did allow for most exclusions to apply to TNWs, which is a change from longstanding practice. The agencies
are returning to the prior practice that would not allow exclusions to apply to TNWs. Thus, there were potentially some
TNWs excluded under the 2020 NWPR that would be jurisdictional under both pre-2015 practice and the final rule.
27 The 2020 NWPR was subject to preliminary injunction by the U.S. District Court for the District of Colorado and thus the
agencies did not implement the 2020 NWPR in jurisdictions subject to the court's jurisdiction until April 2021.
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I Introduction and Overview
amendments to reflect the agencies' interpretation of the statutory limits on the scope of the "waters of the
United States," informed by the statute as a whole, the scientific record, relevant Supreme Court case law,
public comment, and the agencies' experience and expertise, one might think that carrying out a similar
review of change in jurisdictional scope would be straightforward. However, the definitions under the
2020 NWPR were significantly different from those in the pre-2015 regulatory regime and the final rule,
and information collected in jurisdictional determinations under the 2020 NWPR was does not contain the
same level of detail. Assessing the jurisdictional scope of individual aquatic resources would be more
subjective than similar prior assessments have been.
I.C.2 Assessing Change in Scope between Pre-2015 Practice and the 2020 NWPR
An alternative method for assessing the change in scope of jurisdiction has been used in this economic
analysis. This method relies on a field within the ORM2 database which has remained unchanged since
2010, the Cowardin code, which is associated with individual aquatic resources categorized by
hydromorphic characteristics, such as palustrine features (e.g., wetlands and ponds), lacustrine features
(e.g., lakes), and riverine features (e.g., streams and rivers). As this field has remained unchanged
regardless of definitional changes, the probability of jurisdictional findings under given rules can be
related to specific resource types as defined by the Cowardin classification system (Cowardin et al.,
1979). While data within ORM2 is imperfect in nature, the agencies consider this method of assessing
potential changes in the scope of jurisdiction is reliable. This method is described in detail in Chapter III
and in Appendix A. Public comment on this method was generally favorable with the technique. As such,
the agencies continue to use it for this economic analysis.
I.D Economic Analysis of the Final Rule using the Primary Baseline
The primary baseline for the economic analysis is the pre-2015 regulatory regime, which consists of the
1986 "waters of the United States" regulation (33 CFR 328.3), as informed by the 2003 SWANCC and
2008 Rapanos Guidance documents. The statutory requirements considered during development of the
final rule include the Regulatory Flexibility Act (RFA) and Small Business Regulatory Enforcement
Fairness Act (SBREFA), the Paperwork Reduction Act, the Unfunded Mandate Reform Act, and the
National Technology Transfer and Advancement Act. The analysis is also conducted pursuant to
Executive Orders 12866 (Regulatory Planning and Review), 12898 (Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income Populations), 13132 (Federalism), 13175
(Consultation and Coordination with Indian Tribal Governments), 13045 (Protection of Children from
Environmental Health Risks and Safety Risks), 13211 (Action Concerning Regulations that Significantly
Affect Energy Supply, Distribution, or Use), and 13563 (Improving Regulation and Regulatory Review).
Requirements with specific import for an economic and programmatic analysis are described below;
others are addressed in the preamble to the final rule.
I.D.I Unfunded Mandate Reform Act
The Unfunded Mandate Reform Act (UMRA) contains requirements for agencies when regulations
include unfunded federal mandates imposed by the federal government on State, Tribal, and local
governments. The final rule does not contain any unfunded mandate and does not significantly or
uniquely affect small governments. The final definition of "waters of the United States" applies broadly to
Clean Water Act programs. The action imposes no enforceable duty on any State, Tribal, or local
governments, or the private sector.
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I.D.2 Executive Order 12898 Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations
E.O. 12898 requires federal agencies to identify and address the disproportionately high and adverse
human health or environmental effects of their actions on minority and low-income populations, to the
greatest extent practicable and permitted by law. The agencies believe that the final rule does not have
disproportionately high and adverse human health or environmental effects on minority populations, low-
income populations, and/or indigenous peoples. The final rule is definitional in nature. The regulations
established in the final rule are founded on the familiar framework of the 1986 regulations and are
generally consistent with the pre-2015 regulatory regime. The agencies have, however, conducted an
environmental justice analysis for the final rule relative to the secondary baseline for informational
purposes.
I.D.3 Executive Orders 12866 Regulatory Planning and Review and 13563 Improving
Regulation and Regulatory Review
The final rule is a significant regulatory action that was submitted to OMB for review. However, because
the primary baseline is the pre-2015 regulatory regime and the regulations established in the final rule are
founded on the familiar framework of the 1986 regulations and are generally consistent with the pre-2015
regulatory regime, the world with the final rule is very similar to the world without this rule. The analysis
of such a rule is straightforward. The agencies acknowledge that there would likely to be some costs
associated with regulated entities as well as States, Tribes, and localities reviewing the final rule language
and ensuring their activities going forward are in keeping with it. However, these costs would be de
minimis. Any attempts to quantify them would be highly speculative and imprecise. Thus, the final rule
will have no monetized effect compared to the primary baseline and thus the benefits and the costs of the
rule are trivially different from $0. The agencies have determined that, relative to the primary baseline,
the benefits of this rule justify the costs (Table 1-3).
Table 1-3: Total national benefits and costs (millions 2021$)
relative to primary baseline of the pre-2015 regulatory regime
Benefits
de minimis
Costs
de minimis
Net Benefits
de minimis
I.D.4 Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act
The Regulatory Flexibility Act (RFA, 5 U.S.C. et seq., Public Law 96-354), as amended by the 1996
Small Business Regulatory Enforcement Fairness Act (SBREFA Public Law 104-121), requires federal
agencies to consider the economic impact that a new rule will have on small entities. The purpose of the
RFA and SBREFA laws is to ensure that, in developing rules, agencies identify and consider ways to
avoid undue impacts on small entities that will be affected by the regulation, whether as small businesses
or organizations that will be subject to regulatory requirements or as small governments that will be
responsible for complying with or administering the regulation. While the RFA does not require an
agency to minimize a rule's impact on small entities if there are legal, policy, factual, or other reasons for
not doing so, it does require that agencies:
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I Introduction and Overview
• Determine, to the extent feasible, the economic impact on small entities subject to the rule;
• Explore regulatory options for reducing any significant economic impact on a substantial number of
such entities; and
• Explain the ultimate choice of regulatory approach.
For proposed and final rules subject to notice and comment under the Administrative Procedure Act
(APA) or other statutes, the agencies must either certify that the rule "will not, if promulgated, have a
significant economic impact on a substantial number of small entities" ("SISNOSE") or prepare a
Regulatory Flexibility Analysis if the agency cannot make this certification. Small entities include small
businesses and small organizations as defined by the Small Business Administration (SBA), and
governmental jurisdictions with populations of less than 50,000.
The agencies certify that this rule will not have a significant economic impact on a substantial number of
small entities under the RFA. This action will not impose any requirements on small entities. This rule
would codify a regulatory regime very similar to the one currently being implemented nationwide due to
the vacatur of the 2020 definition of "waters of the United States." Additionally, the final rule does not
"subject" any entities of any size to any specific regulatory burden. It is designed to clarify the statutory
term "navigable waters," defined as "waters of the United States," which defines the scope of Clean
Water Act jurisdiction 33 U.S.C. 1362(7). The scope of Clean Water Act jurisdiction is informed by the
text, structure, and history of the Clean Water Act and Supreme Court case law, including the
geographical and hydrological factors identified in Rapanos v. United States, 547 U.S. 715 (2006). None
of these factors are readily informed by the RFA. See, e.g., Cement Kiln Recycling Coal. v. EPA, 255 F.3d
855 (D.C. Cir. 2001) ("[T]o require an agency to assess the impact on all of the nation's small businesses
possibly affected by a rule would be to convert every rulemaking process into a massive exercise in
economic modeling, an approach we have already rejected."); Michigan v. EPA, 213 F.3d 663 (D.C. Cir.
2000); Am. Trucking Ass'n v. EPA, 175 F.3d 1027, 1045 (D.C. Cir. 1999) ("[A]n agency may justify its
certification under the RFA upon the "factual basis" that the rule does not directly regulate any small
entities."); Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327, 343 (D.C. Cir. 1985) ("Congress did not
intend to require that every agency consider every indirect effect that any regulation might have on small
businesses in any stratum of the national economy.").
Under the RFA, the impact of concern is any significant adverse economic impact on small entities,
because the primary purpose of the initial regulatory flexibility analysis is to identify and address
regulatory alternatives "which minimize any significant economic impact of the proposed rule on small
entities." 5 U.S.C. 603. In this case, the agencies conclude that this rule will not significantly impact small
entities because it narrows the scope of jurisdiction from the text of the 1986 regulations. Because fewer
waters will be subject to the Clean Water Act under this rule than fall within the scope of the text of the
regulations in effect, this action will not affect small entities to a greater degree than the existing
regulations currently in effect. A key change is the deletion of the provision in the 1986 regulations that
defines "waters of the United States" as all paragraph (a)(3) "other waters" such as intrastate lakes, rivers,
streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect
interstate or foreign commerce including any such waters: which are or could be used by interstate or
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I Introduction and Overview
foreign travelers for recreational or other purposes; from which fish or shellfish are or could be taken and
sold in interstate or foreign commerce; or which are used or could be used for industrial purposes by
industries in interstate commerce. Under this rule, a broad interstate commerce connection is not
sufficient to meet the definition of "waters of the United States." Instead, waters must meet either the
relatively permanent standard or the significant nexus standard. Further, waters in a watershed in which
there is no connection to a traditional navigable water, the territorial seas, or an interstate water, would
not be "waters of the United States." In addition, this rule would explicitly exclude some features and
waters over which the agencies have not generally asserted jurisdiction, but which are not excluded in the
text of the 1986 regulations, 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." This rule
also provides new limitations on the scope of jurisdictional tributaries and most adjacent wetlands by
establishing a requirement that they meet either the relatively permanent standard or the significant nexus
standard. Together, these changes serve to narrow the scope of this rule in comparison to the text of the
regulation in effect. Because the rule narrows the scope of jurisdiction from the text of the 1986
regulations, this action will not have a significant adverse economic impact on a substantial number of
small entities, and therefore no regulatory flexibility analysis is required.
Nevertheless, the agencies recognize that the scope of the term "waters of the United States" is of great
national interest, including within the small business community. In light of this interest, the agencies
sought early input from representatives of small entities while formulating a definition of this term,
including holding a public meeting dedicated to hearing feedback from small entities on August 25, 2021
(see https://www.epa.gov/wotus/2021-waters-united-states-public-meeting-materials). A variety of small
entities such as farmers and ranchers, environmental and conservation non-profits, as well as building,
consulting, and brewing businesses provided their input on the rulemaking. This process has enabled the
agencies to hear directly from these representatives from the outset about how they should approach this
complex question of statutory interpretation.
I.E I.E. Summary
As discussed in this chapter, the agencies' ability to make quantitative estimates of changes in Clean
Water Act jurisdiction under the final rule relative to the pre-2015 regulatory practice (primary baseline)
and NWPR (secondary baseline) is limited by available data and the case-specific consideration of
jurisdiction for certain waters that would be required under the final rule. Compared to the pre-2015
regulatory practice, it is expected that the final rule will lead to a de minimis increase in jurisdictional
resources due to nuanced changes in the implementation of the significant nexus standard and the
assessment of non-navigable, isolated, intrastate waters via the relatively permanent standard and the
significant nexus standard. In reviewing the first year of implementation of the 2020 NWPR, the agencies
have ORM2 data that demonstrate the magnitude of the effects of the deregulatory scope of the 2020
NWPR, and analyses show ephemeral streams and wetlands to be much more affected than estimated in
the analysis of the 2020 NWPR in the 2020 NWPR's Economic Analysis (U.S. EPA and Army, 2020a).
No ephemeral streams were jurisdictional under the 2020 NWPR, whereas those that satisfy the
significant nexus standard would be jurisdictional under the final rule. Similarly, certain wetlands that
would be found jurisdictional under the final rule would not have been jurisdictional under the 2020
NWPR. This includes certain wetlands that would be jurisdictional under the final rule as adjacent but
that did not meet the requirements to be adjacent under the 2020 NWPR definition, and wetlands adjacent
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I Introduction and Overview
to those ephemeral streams that would be considered jurisdictional under the final rule. Some additional
streams that were not jurisdictional under the 2020 NWPR would be jurisdictional under the final rule
where they meet either the relatively permanent or significant nexus standard, if such streams do not
contribute surface water flow to a territorial sea or traditional navigable water in a typical year (e.g., an
intermittent or perennial stream that eventually dissipates on the desert floor with surface flow reaching a
downstream jurisdictional water only in atypical years), as the 2020 NWPR required. In addition, there
could be a subset of interstate waters that would be categorically jurisdictional under the final rule that
may not have been jurisdictional under the 2020 NWPR due to the elimination of interstate waters as a
standalone category of jurisdictional waters. The final rule would not affect the scope of jurisdictional
territorial seas or traditional navigable waters nor would it substantially affect the jurisdictional status of
most relatively permanent waters relative to the baseline. The final rule could result in an increase in
jurisdictional lakes and ponds and impoundments in comparison to the 2020 NWPR.
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II State and Tribal Regulatory Practice
II. State and Tribal Regulatory Practice
Clean Water Act programs including the section 303 water quality standards program, the section 311 Oil
Spill Prevention program, the section 401 water quality certification program, the section 402 NPDES
permit program, and the section 404 permit program for the discharge of dredged or fill material, rely on
the definition of "waters of the United States" for program implementation. A revised definition of
"waters of the United States" would affect these federal programs as implemented at the State or Tribal
level. Potential effects of this rule, however, will vary based on a State's independent legal authority and
programs under its own State law to protect aquatic resources. For this analysis, the agencies focus on
State regulatory practice as no Tribe administers the Clean Water Act section 402 or 404 permit
programs, and the majority of Tribes do not have approved water quality standards or issue Clean Water
Act section 401 water quality certifications.28
States implementing Clean Water Act programs such as TMDLs, impaired waters, delegated NPDES
programs, assumed dredged and fill programs will need to regulate discharges into all waters that the final
rule defines as jurisdictional. For those States that do not regulate as broadly as either the pre-2015
regulatory practice or the 2020 NWPR, the broader scope of jurisdiction under the final rule represents a
change. Programs in States that are typically implemented by the federal government (section 311 oil spill
programs and section 404 permitting programs) or triggered by federal permits (section 401 certification)
are affected by the definition of "waters of the United States." State regulatory programs operating under
State law are independent of Clean Water Act jurisdictional issues, and under all definitions of "waters of
the United States," they may be broader or more limited in scope than the applicable definition. Some
States do not have their own dredged and fill permitting program and rely on the Clean Water Act section
401 program to address dredged and fill activities that are permitted by the Corps.
28 This analysis does not consider how the 574 federally recognized Tribes might respond to a change in Clean Water Act
jurisdiction, nor does it include Tribes in its calculations of costs and benefits. Currently, 80 Tribes have been found eligible
to administer a Clean Water Act section 303(c) water quality standards program, and the EPA has approved water quality
standards (WQS) for 47 of these Tribes. The EPA has promulgated federal water quality standards for one additional Tribe,
and a few Tribes have water quality standards that are not current federally approved. Seventy-nine Tribes have the
authority to administer a Clean Water Act section 401 water quality certification program. Many Tribes may lack the
capacity to administer a water quality standards program or a certification program. Other Tribes may rely on the federal
government for enforcement of water quality standards, particularly for enforcement of non-Tribal members. Currently, no
Tribes have obtained treatment in a manner similar to a State (TAS) status to administer either the Clean Water Act section
402 or 404 programs. The agencies (or with a few exceptions for Clean Water Act section 402, the State) generally issue
Clean Water Act sections 402 and 404 permits on Tribal lands. A few Tribes have some type of permitting program for
discharges of dredged or fill material into "waters of the Tribe." Many Tribes may lack the capacity to administer either the
Clean Water Act section 402 or the 404 programs, to create permitting programs for discharges, or to expand permitting
programs that currently exist. Further, some Tribes have stated during Tribal consultation and engagement on the 2020
NWPR that they are not interested in seeking TAS for Clean Water Act programs like water quality standards and Clean
Water Act sections 402 and 404 if the federal government reduces the scope of the Clean Water Act jurisdiction. In addition,
this economic analysis does not account for potential effects related to subsistence fishing, rice growing, or cultural uses of
water that are unique to Tribes and their reliance on waters. This analysis also does not account for which Tribes regulate
waters as broadly as the Clean Water Act or have legal frameworks that permit them to regulate "waters of the Tribe" as
broadly.
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II State and Tribal Regulatory Practice
The Corps regulates the discharge of dredged or fill material into all "waters of the United States" in
forty-seven States29. However, most States have some form of State program implemented under State
authorities. Most of these programs are not comprehensive. They protect only some of the waters that are
jurisdictional under the Clean Water Act, and in some cases specifically addressed waters that are not
federally jurisdictional under the final rule. For this economic analysis, the agencies qualitatively assessed
which States have regulatory practices in place which are as broad or broader than the pre-2015
regulatory regime. The agencies additionally assessed which States made changes to their regulatory
practice in relation to Clean Water Act section 404 permitting, surface water protections, and water
quality protections while the 2020 NWPR was being implemented.
Under the baseline of pre-2015 practice, the final rule will have relatively minimal effects on States due to
the de minimis change in scope to jurisdiction under the final rule. Most States developed their regulatory
programs under pre-2015 practice (in many cases even before guidance reflecting Supreme Court
decisions). Under the secondary baseline of change from practice under the 2020 NWPR, States that
protected fewer waters as a result of the 2020 NWPR would need to comply with the scope of protections
proposed here. States that already regulate at or above the scope specified in the final rule would
theoretically not have waters that are affected by the final rule. For this secondary baseline analysis, the
agencies have attempted to identify which States already regulate as broadly as intended by this rule.
However, quantifying the extent of protections that States provide for "waters of the States" is not
feasible with the limited information available. While some States have the authority to regulate as
broadly or more broadly than the final rule, the implementation of those regulations is tied to a variety of
factors, such as budgets, staffing, availability of implementation tools, and government priorities. On the
other side of the spectrum of implementation, other States may have a dearth of regulations relating to
"waters of the States," but those States may be more actively implementing their more limited
regulations. Because of these nuances, the agencies do not have the capacity to assess how broadly or
narrowly State regulations apply to "waters of the States" in practice, nor do the agencies have the
capacity to assess the overlap between "waters of the States" and "waters of the United States."
The purpose of this chapter is to summarize the current status of Clean Water Act programs in the States
based on the agencies' current understanding and to describe how that information is used to characterize
the States' current "waters of the State" under the secondary baseline of the 2020 NWPR compared to the
level of jurisdiction required by this rule. The agencies recognize that the federal and State laws and
programs can overlap, and some States have more stringent requirements than the federal regulations. The
way in which these programs are administered and affect sources of water pollution will depend on the
regulatory requirements or permits issued. The agencies received comment on the accuracy of
assumptions for given States and Tribes outlined in the Economic Analysis for the Proposed Rule. This
input has been integrated into this Economic Analysis for the Final Rule and the associated
supplementary material.
29 Before 2020, only two States were approved to administer the Clean Water Act section 404 program for certain waters in those
States. In December 2020, Florida became the third State to receive EPA approval to administer the Clean Water Act section
404 program and began to administer its assumed permitting program on December 22, 2020. Permitting for assumed
section 404 programs is affected by the terms of federal jurisdiction.
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11. A "Waters of the State"
Each State has its own definition of "waters of the State," and many States define similar types of areas
and aquatic resources as "waters of the State." A few States also reference "waters of the United States"
within their definitions of "waters of the State." All State definitions are more inclusive than past and
current definitions of "waters of the United States" in at least some way. Most State definitions also
include some combination of groundwater and artificial waters. Some States do not include all waters
within the scope of their definition of "waters of the State," often including exemptions in their
regulations for certain types of "waters of the State," for certain industries, or for certain types of permits.
Effectively, about half of the States cover at least some surface waters beyond the scope of federal Clean
Water Act requirements.
All States have a definition of "wetlands" in their State laws and regulations. While these definitions also
vary widely in exact language, they all either recite, reference, incorporate, or outline similar factors as
the federal regulatory definition of "wetlands." Some are more inclusive than the federal regulatory
definition, while others incorporate the exact federal factors of a wetland. Many States have different
wetland definitions for tidal, nontidal, coastal, and freshwater wetlands. Isolated waters are rarely
explicitly included under these definitions, but at least 26 States have programs to cover all or some
isolated waters, including wetlands.30 The agencies do not have sufficient information at this time to
conclude that those 26 States are the only States that cover some or all isolated waters. The agencies
acknowledge that accounting for the existing State-level protection of all or some isolated waters,
including wetlands, would bring down both the estimated costs and benefits of this rulemaking.
II.B State Regulatory Practice
Within the economic analysis for the proposed rule, States that must expand their regulatory coverage
were assumed to realize benefits and costs from the rule, while States that currently protect waters at or
above the levels required by the proposed rule would not be affected by the rule and therefore were not
assumed to realize benefits and costs. For this economic analysis for the final rule, the agencies recognize
the merit in public comments received regarding the quantitative methodology used in the proposed rule -
namely that there are too many unknowns to dependably make quantitative assumptions on costs and
benefits within given States based on State regulatory programs. The agencies have shifted to a qualitative
assessment of potential costs and benefits related to State regulatory programs. Appendix C presents the
costs and benefits segmented by State. Table II-1 presents which States protect waters generally more
broadly than the final rule; however, the agencies do not have access to information needed to say
definitively whether States have the capacity to implement their State regulations.
During NWPR development, the agencies compiled information on State wetland and surface water
programs and regulations to describe the breadth of State authorities and to provide a current picture of
federal and State regulatory management of aquatic resources. Information was drawn from multiple State
and federal sources, as well as from previous analyses undertaken by independent associations and
institutions, including an Environmental Law Institute (ELI) report that "examines [the] limitations
imposed by State law that could constrain the ability of State agencies" to protect water resources in the
30 This count includes the twenty-five States that regulate the discharge of dredged and fill activities in isolated waters and one
additional State (Hawaii) that regulates point source discharges to isolated wetlands.
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absence of Clean Water Act regulation (see Appendix I in ELI, 2013). The agencies recognize that these
summaries do not necessarily capture all the complexities of State programs.31 Definitions for State and
territorial waters, including wetlands, were drawn from online directories of regulatory titles and code;
therefore, these were pulled directly from State laws. Information on State and territorial water laws and
programs was found through State and territorial agency websites. Information on the various Clean
Water Act programmatic areas (Clean Water Act sections 303, 311, 401, 402, and 404) was found
through EPA and Corps websites, numerous publications, maps, and from EPA regional staff. Corrections
were made based on input from State and territorial agencies during the 2020 NWPR rulemaking process,
resulting in the State Snapshots appendix within the Resource Programmatic Assessment (RPA) for the
2020 NWPR (U.S. EPA and Army, 2020b). Following the June 9, 2021 declaration that the agencies
intended to revise the definition of "waters of the United States," the agencies updated the State
Snapshots for this secondary baseline analysis. These updates followed the same logistical pathway as
prior efforts, but with a focus on what has changed in the time since the State Snapshots were created.
These updates also incorporate corrections based on input from State and territorial agencies during this
rulemaking's public comment period. The updated State Snapshots are provided as supplementary
material to this EA titled "Compendium of State and Tribal Regulatory Practice" (hereafter, referred to as
the "regulatory compendium"; U.S. EPA and Army, 2022a). This document is available on the EPA
website and in the docket for the final rule.32
II.B.l Regulation of Dredge and Fill Material
Twenty-three States regulate "waters of the State" that will not be subject to federal jurisdiction under the
final rule (Table II-l).33 These States either explicitly cover non-federally jurisdictional waters in the text
of their regulations or applied their broad regulatory authority in a way that would also capture some
waters that were no longer considered "waters of the United States."34 The regulatory compendium
reviews changes that occurred to regulatory practice while the 2020 NWPR was in place. Perhaps
predictably, such changes were related to the scope of State regulatory programs before the 2020 NWPR.
At least 11 States made changes to regulatory practice that have either been implemented or will be
implemented to alter the regulatory scope of their programs following promulgation of the 2020 NWPR.
Many of the States that strengthened protections already protected waters as or more broadly than the
final rule would require prior to the 2020 NWPR. Similarly, many of the States that weakened protections
31 While the ELI report is a readily available summary of potential limitations imposed by State law that could constrain States to
regulate waters in the absence of federal regulation, there is disagreement about the reliability of their findings. Some
commenters on the then-proposed 2015 Rule identified shortcomings and inaccuracies of the analysis and results that may
limit the degree to which the agencies can rely upon it
32 Available in the docket for this rule, Docket ID Number EPA-HQ-OW-2021-0602.
33 These numbers were compiled from research that was primarily conducted prior to 2015. While some States clearly regulate at
least some waters more broadly than baseline set by the pre-2015 regulatory regime, the agencies cannot at this time
determine whether all States that regulated beyond that baseline would also regulate beyond the scope of the final rule. It is
assumed that if they regulate beyond Rapanos Guidance practice, they also regulate beyond the scope of the 2020 NWPR
Additionally, these values have been updated based on changes to regulatory practice which occurred since the 2020 NWPR
was promulgated.
34 These States have been determined by the agencies to regulate beyond the scope of the pre-2015 regulatory regime based on
the findings of studies mentioned in the economic analysis prepared in support of the 2019 Rule, the 2020 NWPR, and this
analysis. For more information regarding the sources these findings were based on, see the regulatory compendium.
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were already not regulating waters as broadly as the Clean Water Act required before the 2020 NWPR
(see regulatory compendium).
The agencies are aware that many State dredged and fill programs were designed to complement rather
than replace federal permitting programs implemented by the Corps. As a result, States with programs
designed to address waters that are not federally jurisdictional may not have comprehensive programs that
capture all waters jurisdictional under the federal Clean Water Act section 404 regulatory program
implemented by the Corps. For purposes of the economic analysis, the agencies feel it is inaccurate to
represent that States that cover waters as broadly or more broadly than the scope set by the pre-2015
regulatory regime would not experience benefits or costs as a result of a change in baseline from the 2020
NWPR to pre-2015 regulatory practice. Simultaneously, the agencies do not have information available to
assess what portion of benefits and costs these (or any States) would bear as a result of this final rule. The
agencies understand that just because States have the authority to regulate more broadly, it does not mean
that they in practice would in the absence of federal protection.
Following promulgation of the 2020 NWPR, some States, in particular Indiana and Ohio, reduced
protections for aquatic resources. These two States now appear to protect aquatic resources less broadly
than the final rule would require and could experience greater benefits and costs. While some States that
have historically protected waters less broadly than the pre-2015 regulatory practice made substantial
changes to establish or expand State programs to cover waters no longer addressed under the 2020
NWPR, the agencies do not think these additional protections constitute changes that are substantial
enough to define their regulatory practice as being broader than the final rule would require. For purposes
of this analysis, Indiana and Ohio, along with the 27 other States (and the District of Columbia) that do
not protect waters as broadly as the final rule would definitely receive benefits and costs from
implementation of the final rule; however, the agencies do not limit the analyses to just these benefits and
costs. Instead, the agencies quantify benefit and costs for all States, which they acknowledge likely
overestimates both benefits and costs.
II.B.2 Surface Water Discharge Permitting
Twenty-one States regulate surface water discharges in "waters of the State" that were not subject to
federal regulation under the secondary baseline of the 2020 NWPR (Table II-l).35 These States either
explicitly cover non-federally jurisdictional waters in the text of their regulations or apply their broad
regulatory authority in a way that also captures some waters that would not have been considered "waters
of the United States" under the final rule.36 These 21 States include States which made substantial
changes to regulatory practice since the 2020 NWPR was promulgated. This included changes to
regulatory practice relating to water quality protections, such as changes to standards for issuing section
35 These numbers were compiled from research that was primarily conducted prior to 2015. These States were determined to
regulate at least some waters more broadly than the Clean Water Act, including the regulation of surface water discharges.
States without authorization for State NPDES programs were assumed to regulate less broadly. Values have been updated
based on changes to regulatory practice which occurred since the 2020 NWPR was promulgated.
36 These States have been determined by the agencies to regulate beyond the scope of jurisdiction under the final rule based on
the findings of studies mentioned in the economic analyses prepared in support of the 2019 Rule and the 2020 NWPR and
this analysis. For more information regarding the sources these findings were based on, see U.S. EPA and Department of the
Army, 2022a. Supplementary Material to the Economic Analysis for the Final Rule: Compendium of State and Tribal
Regulatory Practice. Available in the docket for this rule, Docket ID Number EPA-HQ-OW-2021-0602.
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401 certification or issuing orders to applicants to cover gap waters that would otherwise occur as part of
section 401 certification. At least 14 States made changes to regulatory practice that are being
implemented or will be implemented in a way that would expand the scope of surface water discharge
permitting (including changing the regulatory scope for "waters of the State") compared to prior State
practice. The 2020 NWPR economic analysis assumed that Indiana and Ohio would continue to protect
waters as or more broadly than the 2020 NWPR; however, as discussed above, they de-regulated certain
waters since the 2020 NWPR was promulgated. These States, along with 29 other States (and the District
of Columbia) that do not regulate surface waters as broadly as the final rule, would receive benefits and
costs from implementation of the final rule. However, the agencies do not have the information needed to
assess what proportion of benefits and costs would be received by these States.
II.C Incorporation of State Regulations in Economic Analysis
At present, the agencies do not have the information available to assess what change in environmental
benefits or compliance costs that individual States would bear under the final rule. Though, many States
already exceed the aquatic resource or surface water discharge protections of the final rule, how States
would interpret and apply their own State regulations is unknown. Consequently, the agencies do not have
the information to assess what proportion of total benefits and costs these States would receive. States
considered as having broader protections than the final rule, listed in Table II-1, would require would still
likely receive some benefits and costs from the final rule. Conversely, States listed in Table II-1 with less
stringent protections are likely to have higher costs and benefits. The proportions of total costs and
benefits within the given States are modeled in Appendix C for transparency purposes.
Table II-l reports the information described above for each State relative to either baseline, with 'Yes"
indicating fewer costs and benefits likely associated with the given State and 'No" indicating more
benefits and costs are likely associated with the given State.
Table 11-1: States' regulatory protections under the final rule
State
Regulates waters more broadly than the final rule requires
Section 404 Program
Surface Waters
Alabama
No
No
Alaska
No
No
Arizona
No
No
Arkansas
No
No
California
Yes
Yes
Colorado
No
No
Connecticut
Yes
Yes
Delaware
No
No
District of Columbia
No
No
Florida
Yes
Yes
Georgia
No
No
Hawaii
No
No
Idaho
No
No
Illinois
Yes
Yes
Indiana
No
No
Iowa
No
No
Kansas
No
No
Kentucky
No
No
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Table 11-1: States' regulatory protections under the final rule
State
Regulates waters more broadly than the final rule requires
Section 404 Program
Surface Waters
Louisiana
No
No
Maine
Yes
Yes
Maryland
Yes
Yes
Massachusetts
Yes
No
Michigan
Yes
Yes
Minnesota
Yes
Yes
Mississippi
No
No
Missouri
No
No
Montana
No
No
Nebraska
No
No
Nevada
No
No
New Hampshire
Yes
No
New Jersey
Yes
Yes
New Mexico
No
No
New York
Yes
Yes
North Carolina
Yes
Yes
North Dakota
No
No
Ohio
No
No
Oklahoma
No
No
Oregon
Yes
Yes
Pennsylvania
Yes
Yes
Rhode Island
Yes
Yes
South Carolina
No
No
South Dakota
No
No
Tennessee
Yes
Yes
Texas
No
No
Utah
No
No
Vermont
Yes
Yes
Virginia
Yes
Yes
Washington
Yes
Yes
West Virginia
Yes
Yes
Wisconsin
Yes
Yes
Wyoming
Yes
Yes
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III. Analysis of the Impacts of Clean Water Act Jurisdictional Changes
from the Secondary Baseline (2020 NWPR) to Final Rule
This portion of the economic analysis focuses on the impacts of the final rule on major programs under
sections 311, 402, and 404 of the Clean Water Act, relative to the secondary baseline of the 2020 NWPR.
The level of detail and scope of the analyses depend on the data available to quantify effects. For the
Clean Water Act sections 311 and 402 programs, the agencies conducted a qualitative analysis of the
impacts to assess the direction and potential magnitude of changes but did not quantify those effects due
to data limitations and expectations that these impacts would be small. For the Clean Water Act section
404 program, the agencies quantified the costs and benefits of the final rule relative to the secondary
baseline at the national level based on an assessment of permits and other data. Nationally the Clean
Water Act jurisdictional changes relative to the secondary baseline are estimated to result in benefits
between $1,402 and $2,190 million and total social costs ranging from $218 million to $548 million using
a 3 percent discount rate. Total social costs include cost of compliance (section 404 permitting and
mitigation costs) and State costs from an increased section 401 reviews. The agencies note that benefit
estimates do not fully account for all benefits, such as the water quality benefits associated with stream
mitigation and benefits associated with upstream and downstream connectivity of wetlands that may
expand beyond the boundary of the extent of the market used in in the analysis (e.g., 100-mile radius from
a county centroid) that can be substantial.
This chapter focuses on the potential effects associated with the change from the secondary baseline of
the 2020 NWPR to the final rule. The first three Sections (III.A, III.B, III.C) describe the potential effects
on the Clean Water Act section 311, section 402, and section 404 programs, respectively. Section III.D
covers other Clean Water Act programs.
The agencies anticipate that the impacts of the final rule may be most important for the section 404
program. Accordingly, the agencies estimated increases in required wetland mitigation areas and the
associated benefits and costs. The impacts of the final rule relative to the secondary baseline on other
Clean Water Act programs are anticipated to be small and are discussed qualitatively.
III.A Clean Water Act Section 311: Oil Spill Prevention, Preparedness, Reporting
and Response
Clean Water Act section 311 addresses the risk and harm from oil spills to waters of the "United States"
through two main program components:
• Spill prevention and preparedness, which has been addressed in the EPA's Spill Prevention,
Control and Countermeasure (SPCC) and Facility Response Plan (FRP) regulations for non-
transportation related facilities and in United States Coast Guard and Department of Transportation
regulations for vessels and transportation-related facilities.
• Spill notification and removal, as described under the National Contingency Plan.
This section describes these program components and discusses the potential impacts of the change in
waters subject to Clean Water Act jurisdiction.
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III.A.1 Spill Prevention and Preparedness
Under the authority of Clean Water Act section 311, EPA requires certain non-transportation-related
facilities to prepare SPCC plans if they have a reasonable potential to have a discharge of oil to navigable
waters or adjoining shorelines and meet other applicability criteria including aggregate oil storage
capacity (see SPCC rule at 40 CFR 112). Specifically, the SPCC rule applies to facilities "engaged in
drilling, producing, gathering, storing, processing, refining, transferring, distributing, using, and
consuming oils and oil products, which due to its location, could reasonably be expected to discharge oil
in quantities that may be harmful, as described in part 110 of this chapter, into or upon the navigable
waters of the United States or adjoining shorelines..." [40 CFF 112.1(b)] where "navigable waters" (as
opposed to "navigable waters of the United States") are defined at 40 CFR112.2 as "waters of the United
States, including the territorial seas."37
The agencies estimate that approximately 550,000 facilities in a broad spectrum of industry sectors,
including farms, oil production facilities, industrial sites, manufacturing plants, and retail establishments,
are currently subject to the SPCC rule and must prepare, implement, and maintain their SPCC Plan (U.S.
EPA, 2020). Approximately 40 percent of these facilities (230,000) are in the oil production sector, which
includes production, drilling, and workover.38 Other industry sectors with a significant share of facilities
include electric utilities (including distribution substations), real estate rental and leasing, and farms. On
an ongoing basis, approximately three percent of the universe of SPCC-regulated facilities are new
facilities that must develop an SPCC Plan and implement the spill prevention measures required by the
regulation (e.g., sized secondary containment, overfill prevention, and employee training) before they
start operating and handling oil. The remaining facilities must maintain their existing plan.39
Under the FRP rule at 40 CFR 112.20 et seq., EPA requires a subset of SPCC facilities that could,
because of their location, reasonably be expected to cause substantial harm to the environment by
discharging oil into or on the navigable waters or adjoining shorelines to prepare and submit an FRP to
the EPA Regional Administrator for the State where the facility is located. The EPA maintains an internal
database on FRP facilities, including their locations and characteristics. According to EPA's Emergency
Management-Oil Database, approximately 3,800 facilities are subject to FRP requirements.
Spill preparedness requirements also exist for onshore transportation-related facilities such as pipelines
and railcars. These programs derive their authority from Clean Water Act section 311 as amended by the
Oil Pollution Act of 1990 (OPA) and therefore are affected by changes in the scope of jurisdictional
37 The Clean Water Act [33 U.S.C. 1321(b)] sets as national policy that there "should be no discharges of oil or hazardous
substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the
contiguous zone, or in connection with activities under the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.] or
the Deepwater Port Act of 1974 [33 U.S.C. 1501 et seq.], or which may affect natural resources belonging to, appertaining
to, or under the exclusive management authority of the United States (including resources under the Magnuson-Stevens
Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.])." While Clean Water Act section 311 uses the phrase
"navigable waters of the United States," which traditionally means waters subject to jurisdiction under the RHA, EPA has
historically interpreted it to have the same breadth as the phrase "navigable waters" used elsewhere in section 311, and in
other sections of the Clean Water Act.
38 Workover refers to various interventions or maintenance activities on oil or gas wells such as replacing the production tubing.
39 Among other requirements, facilities with an existing Plan must amend their Plan when there is a change in operations that
materially affects the risk of a discharge and review their Plan at least once every five years.
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waters. Under 49 CFR 194, the operator of an onshore oil pipeline that, because of its location, could
reasonably be expected to cause substantial harm or significant and substantial harm to the environment
by discharging oil into or on any navigable "waters of the United States" or adjoining shorelines must
submit an oil spill response plan to the Pipeline and Hazardous Materials Safety Administration
(PHMSA) of the Department of Transportation. The pipeline operator needs to identify resources
necessary to respond to a worst-case discharge in operator-defined response zones.40 PHMSA reports 562
oil spill response plans from pipeline operators (PHMSA, personal communication, as of September 28,
2021).
Under 49 CFR 130, railroad owners or operators must prepare oil spill response plans to cover tank car
shipments of petroleum oils. Among other requirements, the basic written plan must describe the manner
of response to discharges that may occur during transportation; consider the maximum potential discharge
of the contents from the packaging; and identify private personnel and equipment available to respond to
a discharge.
Under OPA, States may impose additional requirements for facility response plans as long as these
requirements are at least as stringent as the federal standards. For example, both Alaska and Washington
State have regulations requiring facility response plans or comprehensive contingency plans for certain
large facilities such as refineries, refueling terminals, and pipelines. Both States further require public
participation in the planning process to ensure that the plans appropriately reflect community concerns
and priorities.
The revisions to the "waters of the United States" definition relative to the secondary baseline could result
in additional facilities being subject to planning requirements under section 311 of the Clean Water Act.
The following sections describe the potential impacts of the change in waters subject to Clean Water Act
jurisdiction on the SPCC and FRP programs and on spill prevention programs for transportation-related
sources.
III.A.1.1 Potential Impacts on SPCC Program
Changes in the scope of jurisdictional waters could result in additional facilities being subject to SPCC
requirements, as compared to the secondary baseline of the 2020 NWPR.
In determining whether a facility has a reasonable expectation of an oil discharge that could reach a
jurisdictional water, facility owners consider solely the geographical and locational aspects of the facility
[40 CFR 112. l(d)(l)(i)]. As the EPA describes in its SPCC Guidance, "the owner or operator should
consider the location of the facility in relation to a stream, ditch, gully, or storm sewer; the volume of
material likely to be spilled; drainage patterns; and soil conditions. An owner or operator may not
consider constructed features, such as dikes, equipment, or other manmade structures that prevent,
40 The worst-case discharge for planning purposes is the largest foreseeable discharge of oil (e.g., from a pipeline rupture, fire or
explosion) in adverse weather conditions (e.g., rain, currents, cold temperatures). 49 CFR 194.5 defines a "response zone" as
a "geographic area along a length of pipeline or including multiple pipelines, containing one or more adjacent line sections,
for which the operator must plan for the deployment of, and provide, spill response capabilities. The size of the zone is
determined by the operator after considering available capability, resources, and geographic characteristics."
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contain, hinder, or restrain a discharge as described in section 112.1(b), when making this determination."
(U.S. EPA, 2013, page 2-34).41
Typically, natural conveyances or stream channels are principal spill pathways for impacts to aquatic
resources in remote and undeveloped inland areas that lack engineered stormwater conveyance systems.
Manufacturing facilities and other facilities, such as storage facilities, located in developed areas may also
affect streams through discharges to stormwater drains or other engineered conveyance systems. Given
this, the agencies anticipate that owners or operators of facilities located in relatively less developed areas
would be more likely to base their applicability determination on whether there is a reasonable potential
for an oil discharge to reach waterbodies in the immediate proximity of the facility. The agencies lack
data on how many facilities used on the 2020 NWPR definition to determine that the facilities did not
have reasonable potential for an oil discharge to navigable waters or adjoining shorelines, and would
reach a different conclusion given the revised scope of "waters of the United States." The estimated
universe of SPCC-regulated facilities (550,000 facilities) is based on the number of establishments in
each industry sector and oil storage capacities and does not explicitly account for the location of the
facilities and reasonable potential for a discharge to a jurisdictional water. The agencies anticipate that the
inland onshore oil production and farm sectors would be the most likely to be affected by changes to the
scope of Clean Water Act jurisdiction given their locations.
This change would lead these facilities to incur compliance costs to develop and maintain their Plan. The
implementation of spill prevention measures could reduce the probability of the facility experiencing an
oil discharge. The benefits and costs depend on the stringency of applicable State or local requirements
and measures the facilities may implement voluntarily (such as following industry standards or
recommended practices), in the secondary baseline. Some States have requirements equivalent to those of
40 CFR 112, but these requirements often apply to only a subset of facilities based on aggregate storage
volume, facility type (e.g., farms, production, others), and type of oil (e.g., petroleum oils, non-petroleum
oils). Other States reference 40 CFR 112 explicitly. While the degree of State program overlap varies,42
potential impacts of the revised definition of "waters of the United States" relative to the secondary
baseline are expected to be less in States that have some overlapping requirements (e.g., Alaska,
California, Colorado, Delaware, Georgia, Hawaii) and which are regulating ephemeral streams and other
waters in the baseline.43 The agencies expect no change to compliance costs or spill risk for facilities
required to comply with equivalent State or Tribal regulations or that elect to voluntarily implement
SPCC measures. The reduction in probability is likely greatest for facilities that are exempt from State
41 The agencies note that guidance cannot impose legally enforceable requirements.
42 The EPA's regulatory impact analysis for the 2008 amendments to the SPCC regulation researched State regulations affecting
the spectrum of facilities subject to the federal SPCC rule and identified some States with complete, substantial, or partial
overlap with federal requirements. The degree of State overlap was somewhat higher for larger facilities (33 percent) as
compared to smaller facilities (10 percent); overall across the regulated facility universe, the EPA determined that
approximately 13 percent of the SPCC burden overlapped with some State requirements (U.S. EPA, 2008; Exhibit 5-22).
43 Ephemeral streams would not be categorically jurisdictional under the final rule. According to the Rapanos Guidance, the
agencies conduct a significant nexus analysis for certain types of waters referred to as "non-relatively permanent waters,"
which includes ephemeral features and some intermittent streams. See Rapanos Guidance at 7 ("'[Relatively permanent'
waters do not include ephemeral tributaries which flow only in response to precipitation and intermittent streams which do
not typically flow year-round or have continuous flow at least seasonally. However, Clean Water Act jurisdiction over these
waters will be evaluated under the significant nexus standardf.]").
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requirements. The agencies do not have sufficient data to quantify the benefits of the change in Clean
Water Act jurisdiction at this time.
III.A.1.1.1 Potential Impacts on FRP Program
The change in Clean Water Act jurisdiction could lead some facilities to incur FRP compliance costs to
maintain their FRP, maintain a contract with an oil spill removal organization (OSRO), and conduct
periodic drills and exercises to maintain preparedness. The incremental costs attributable to the final rule
depend on the stringency of any applicable State or local requirements and measures the facility may
implement voluntarily in the baseline, in accordance with recommended industry practices. The benefits
of these measures include enhanced preparedness and response and the associated reduction in the harm
caused by oil discharges.
The final rule could potentially affect FRP facilities primarily through changes in the applicability of
requirements to the facilities at two stages:
Changes to the overall applicability of 40 CFR 112: Changes in Clean Water Act jurisdiction that
makes the facility subject to the SPCC rule because the facility has a reasonable potential of a discharge
as described in 40 CFR 112.1(b) make the facility potentially also subject to the FRP requirements if it
meets other applicability criteria.
Changes to the FRP-specific self-identification applicability criteria at 40 CFR 112.20(f)(1): As
defined in 40 CFR 112.20(f)(1), a non-transportation related onshore facility is required to prepare and
implement an FRP if:
1. The facility transfers oil over water to or from vessels and has a total oil storage capacity
greater than or equal to 42,000 U.S. gallons, or
2. The facility has a total oil storage capacity of one million U.S. gallons or more, and at least
one of the following is true:
The facility does not have secondary containment for each aboveground storage area
sufficiently large enough to contain the capacity of the largest aboveground tank
within each storage area plus sufficient freeboard for precipitation.
The facility is located at a distance such that a discharge could cause injury to fish
and wildlife and sensitive environments.
The facility is located such that a discharge would shut down a public drinking
water intake.
The facility has had a reportable discharge greater than or equal to 10,000 U.S.
gallons in the last five years.
The criteria related to reportable discharges (item 2d in the list above) and to distance to sensitive
environments (2b) could be affected by a change in Clean Water Act jurisdiction.44 For example,
44 The criterion related to transfers over water to or from vessels is not expected to be affected by changes in Clean Water Act
jurisdiction because the involvement of vessels necessarily implies navigation and therefore federally regulated waters. The
secondary containment criterion is unrelated to the scope of Clean Water Act jurisdiction. The criterion related to public
drinking water intakes refers specifically to the potential for a discharge to shut down an intake. Public drinking water
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changing the scope of waters that trigger the "reportable discharge" applicability criterion may mean that
additional facilities need to prepare or maintain an FRP based on their spill history as the affected
resource would be marginally more likely to be a "water of the United States." The agencies expect the
change in assertions of Clean Water Act jurisdiction to have a small effect on the number of facilities that
would trigger FRP applicability due to reportable discharges. This is based on program data available for
3,802 FRP planholders that predate the 2020 NWPR and which show only two facilities with FRPs solely
because of reportable discharge history (i.e.. no other FRP applicability factor).45
A majority of FRP planholders (2,115 facilities) identify the potential to affect sensitive environments as
a determinant of FRP applicability. The potential effect of a change in Clean Water Act jurisdiction on
sensitive environments is difficult to assess a priori. The FRP regulation relies on a definition offish and
wildlife and sensitive environments" at 40 CFR 112.2 during the applicability evaluation by a facility
owner/operator and in the development of the FRP by the planholder (e.g., see Vulnerability Analysis in
Appendix F, section 1.4.2 of 40 CFR 112). As described in 40 CFR 112.2 and in Department of
Commerce/NOAA Guidance (1994), "fish and wildlife and sensitive environments" may include
wetlands, national and State parks, critical habitats for endangered/threatened species, wilderness and
natural areas, marine sanctuaries and estuarine reserves, conservation areas, preserves, wildlife areas,
wildlife refuges, wild and scenic rivers, recreational areas, national forests, public drinking water intakes,
federal and State lands that are research natural areas, heritage program areas, land trust areas, and
historical and archeological sites and parks. These areas may also include aquaculture sites, agricultural
surface water intakes, and unique habitats, such as bird nesting areas, critical biological resource areas,
designated migratory routes, and designated seasonal habitats. The Area Committee and the spill response
Unified Command Structure may consult with the natural resource management agencies, to determine
additional areas to be considered sensitive environments for the purposes of OPA. 40 CFR 112.20(g)(1)
requires FRP to be consistent with the National Contingency Plan and with the applicable Area
Contingency Plans. To the extent that Area Committees designate sensitive areas based on federally-
regulated waters, it is possible that the changes to Clean Water Act jurisdiction could alter this factor and
potentially FRP applicability. The agencies did not have sufficient information about the sensitive
environments considered in determining FRP applicability to assess the significance of the change caused
by the 2020 NWPR or by this rule.
A change in Clean Water Act jurisdiction may also affect the FRP harm designation assigned by the EPA
Regional Administrators. The EPA Regional Administrators may categorize a facility that meets multiple
criteria as higher risk, denoted as "significant and substantial harm." The EPA reviews all FRPs and must
approve the FRP for facilities categorized as significant and substantial harm. The EPA's Emergency
Management-Oil Database shows that, of the 55 FRP facilities with reportable discharge history, 52 FRP
facilities are categorized as significant and substantial harm facilities. It is uncertain whether the EPA
Regional Administrator would have categorized these facilities as lower risk (substantial harm) under the
system intakes are generally expected to draw from perennial streams which will be within scope of Clean Water Act
jurisdiction under the final rule (and were also under the scope of the 2020 NWPR).
45 Most of the 55 FRP planholders with histories of reportable discharges also triggered one or more of the other applicability
criteria, such as transfers over water (39 facilities), inadequate secondary containment (8 facilities), or potential to affect
drinking water intakes (28 facilities) or sensitive environments (47 facilities).
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secondary 2020 NWPR baseline and how changes to the "waters of the United States" definition could
affect the categorization of FRP facilities.
Available data are not sufficiently detailed to estimate the incremental costs and quantify the risk
reduction for changes in FRP applicability, but the agencies anticipate that few facilities could be affected
by the change in "waters of the United States" definition. To date, EPA received five requests by FRP
planholders to reconsider applicability of 40 CFR Part 112 following the promulgation of the 2020
NWPR. In three of these cases, EPA determined that the facilities did not have the potential to affect
"waters of the United States" under either the 2020 NWPR or the final rule definitions, leaving two cases
where the jurisdictional status of the waters that could potentially be affected by an oil discharge may
affect FRP applicability.
III.A.1.1.2 Potential Impacts on Transportation-Related Spill Prevention and Preparedness
The preparation of an FRP for a pipeline facility is based on the potential for a discharge to a
jurisdictional water or adjoining shorelines. The existing regulation gives pipeline operators the flexibility
to define planning areas and operators generally develop plans that cover response strategies over fairly
large geographical areas. Accordingly, the agencies expect marginal changes in the number of
jurisdictional water crossings, such as may result from the final rule, to have no material effect on the
number of FRPs that pipeline operators may develop or their planned response resources. For similar
reasons, the agencies anticipate no material impact on the number of rail operators required to develop a
facility response plan.
Pipeline integrity management requirements such as pipeline burial depth and inspection of water
crossings are specific to streams at least 100 feet wide and to commercially navigable waters.46 Since
these waters are jurisdictional under both 2020 NWPR and the final rule, the final rule will not affect
these requirements.
III.A.2 Spill Notification and Removal
Section 311(c) of the Clean Water Act as amended by OPA of 1990 authorizes response to discharges or
threats of discharges of oil. The Clean Water Act provides that the President shall ensure effective and
immediate removal of a discharge or substantial threat of discharge (1) into or on navigable "waters of the
United States," (2) on the adjoining shorelines to such waters, (3) into or on the waters of the exclusive
economic zone, or (4) that may affect natural resources belonging to, appertaining to, or under the
exclusive management authority of the United States. The Clean Water Act requires that oil discharges
and releases of reportable quantities of hazardous substances be reported to the National Response Center
(NRC), which in turn notifies the relevant federal on-scene coordinators (FOSC). FOSCs have the
authority to conduct, direct and coordinate response efforts to protect the environment, public health, and
worker safety and health under Clean Water Act sections 311(c) and (e). Most oil and chemical incidents
are addressed by the State, Tribal, or local governments and/or by responsible parties. The FOSC
determines the need for federal involvement under the Clean Water Act and the National Contingency
Plan.
46 Commercially navigable waters as defined by 49 CFR 195.450.
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Liability for response and cleanup costs falls to the responsible party if one can be identified. The Oil
Spill Liability Trust Fund (OSLTF) provides funding to cover removal costs incurred by the U.S. Coast
Guard and the EPA and by State and Tribal governments. The OSLTF may pay for uncompensated
removal costs and damages up to $1 billion per incident, of which no more than $500 million may be paid
for natural resource damages. The National Pollution Funds Center (NPFC), which manages the OSLTF,
seeks reimbursement from the responsible party for any response expenses, claims, and damage
assessment initiation paid by the Fund. One of the key criteria47 the NPFC applies when approving access
to the OSLTF is whether the oil spill incident affected or substantially threatened a water subject to Clean
Water Act jurisdiction. Accordingly, changes in the scope of jurisdictional waters can potentially affect
access to the OSLTF to oversee a responsible party's response to an oil spill or respond to an oil spill.
The jurisdictional status of the water impacted or threatened by a discharge determines oversight
authorities under the National Contingency Plan and what resources are available for removal or for
compensating damages. For waters that are non-jurisdictional, oversight falls on the States and Tribes,
with removal requirements depending on the State or Tribal requirements for the particular aquatic
resource. For waters within Clean Water Act jurisdiction under the final rule, the FOSC would oversee
the response and removal actions. More than 11,000 oil spills48 were reported to the NRC during calendar
year 2017 from sources other than offshore vessels or platforms. Of these incidents, more than 7,000
reportedly affected waters in general. The number of incidents that affected or threatened waters that
changed jurisdictional status under the 2020 NWPR is uncertain, since notifications to the NRC generally
do not provide sufficient detail on the aquatic resources at risk to determine jurisdictional status. This
limitation also makes it difficult to quantify the impact of the final rule.
The agencies expect the final rule will have a limited impact on the frequency of NRC notifications.
While impact to waters is one of the criteria for notifying the NRC of an incident, the NRC also receives
notifications for a wide range of incidents of public concern under CERCLA, Emergency Planning and
Community Right-to-Know Act, and other environmental or safety regulations. Because there are
potential penalties for failing to notify the NRC of a reportable incident but no adverse consequence from
unnecessarily reporting an incident, NRC notification generally has become standard operating procedure
for facility owners or operators and the agencies do not expect an increase in the number of notifications.
Changes in Clean Water Act jurisdiction could affect the response to reported incidents as responsibilities
for overseeing the response to some incidents shift from State, Tribal, or local governments to the FOSC.
During the period of 2001-2017, EPA FOSCs oversaw emergency removal activities for 1,064 incidents
involving the discharge of oil or substantial threat of a discharge to jurisdictional waters. The agencies
reviewed Pollution Reports for each of these emergency oil removal actions.49 These incidents either
involved active oil discharges or substantial threat of a discharge to jurisdictional waters.
47 Other criteria include whether the substance is an oil as opposed to a hazardous substance (which would be addressed by
CERCLA).
48 Count reflects NRC's Calendar Year 2017 incident data involving substances with names containing the terms "oil,"
"gasoline," or "diesel."
49 The Pollution Reports are available at https://response.epa.gov/ (U.S. EPA, n.d.).
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There are various possible outcomes of changes to the scope of Clean Water Act jurisdiction, including
for oil spill incidents affecting newly jurisdictional waters. These outcomes depend on the State
requirements and responsible party actions following the incident, but would tend to facilitate cleanup and
reduce environmental damages. They range from no change (in cases where the responsible party
assumes full responsibility for response and cleanup), to the transfer of the response burden from the State
or Tribe to the OSLTF. The economic implications of these changes are uncertain since they depend on
the location of the future spill, the stringency of State and local requirements, and other factors. It is
possible that a responsible party for a future spill affecting non-jurisdictional resources would face
increased response costs in cases where federal requirements are more stringent than State requirements.
State regulations cover the discharge to State waters or land of any substance that may be detrimental to
environmental quality and are generally similar to baseline oil discharge prohibition requirements under
the Clean Water Act. However, whereas the federal regulations cover spills of non-petroleum oils such as
animal fats and vegetable oils (AFVOs), some State requirements focus mainly on petroleum oils and
requirements for non-petroleum oils may be less stringent or may not apply. For example, Georgia
defines "oil" as "including but not limited to gasoline, crude oil, fuel oil, diesel oil, lubricating oil, sludge,
oil refuse, oil mixed with wastes, and another other petroleum related product." (Georgia Oil or
Hazardous Material Spills or Releases Act (Official Code of Georgia Annotated, section 12-14-1
[emphasis added]).50 The definition explicitly does not include non-petroleum oils such as AFVOs. There
may also be higher spill reporting requirement thresholds than provided by the Clean Water Act.
Accordingly, some additional discharges could become reportable.
Another key difference, even where the State requirements are otherwise equivalent to those of the Clean
Water Act, is the increased availability of resources to help defray removal costs or compensate affected
parties for damages not reimbursed by the RP.
There are limited data available for spills that occurred following 2020 NWPR promulgation to assess the
degree to which changes in jurisdictional scope may have affected FOSC oversight of incidents or access
to OSLTF resources. Information on spills is not typically tracked in a manner that would allow the
agencies to readily identify if a water feature impacted by a spill would have a different jurisdictional
status, following the 2020 NWPR promulgation. To date, EPA does not have an indication that the
definition of "waters of the United States" in the secondary baseline of the 2020 NWPR materially
affected the federal government's ability to oversee and address oil spills.
III.A.3 Uncertainty and Limitations for Assessing Potential Effects on Clean Water Act
Section 311 Program
There is significant uncertainty in the universe of facilities that could be affected by the final rule. EPA
does not have data on the number of facilities that may have determined that they were not SPCC-
regulated under the 2020 NWPR and may need to reconsider this determination under the final definition.
The SPCC rule does not require facility owners/operators to identify themselves to the EPA, unless these
facilities are subject to the FRP rule, requiring submittal of an oil spill response plan to the EPA. Whereas
owners or operators must comply with 40 CFR 112 and prepare and maintain an SPCC Plan, they do not
submit this Plan, a Notice of Intent (NOI), or any similar notification to the EPA. No national, State, or
50 See https://law.justia.com/codes/georgia/2010/title-12/chapter-14/12-14-l/.
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industry inventory of SPCC facilities exists, although the EPA has developed estimates of the universe of
facilities to support rulemaking and information collection requests (ICRs).
For some sectors, notably onshore oil production, detailed public data provide both the number and
location of individual equipment or facility components (e.g., oil wells). This information can be used to
characterize the potential distribution of oil production equipment, but this does not necessarily lead to
accurate identification of SPCC-regulated facility, since production tank batteries are not necessarily co-
located with oil wells and are typically connected to multiple wells. For other sectors, including farms,
manufacturing, and other facilities, publicly available data provide counts of facilities per county or State,
but does not indicate the aggregate storage capacity to assess SPCC applicability. None of the datasets
(except for inspected SPCC facilities and FRP-subject facilities) provide direct information to infer
reasonable potential for a discharge.
III.B Clean Water Act Section 402: National Pollutant Discharge Elimination
System (NPDES)
Section 402 of the Clean Water Act establishes the NPDES program to authorize the discharge of
pollutants51 from point sources to "waters of the United States," in compliance with applicable
requirements and conditions. The Clean Water Act requires a permit for discharges of pollutants to
"waters of the United States" from point sources, defined in the Act as any discernable, confined, and
discrete conveyances (e.g., pipes, ditches, channels, or concentrated animal feeding operations).
Typically, the compliance point for NPDES permits is the location where the effluent is being discharged
from the facility. See U.S. EPA, 2010NPDES Permit Writers' Manual at pages 8-1 to 8-5. NPDES
permits may incorporate different statutory and regulatory requirements depending on the source type,
volume of discharge, receiving waterbody, and State or Tribal water quality standards.
The NPDES permit program is administered by authorized States or EPA. EPA issues some NPDES
permits for discharges from federal facilities,52 most of the Tribal reservation lands,53 and U.S. Territories
(except the U.S. Virgin Islands) as well as all permits in the three States that have not been authorized to
administer the program (Massachusetts, New Hampshire, and New Mexico) and for certain activities in
States with only partial authority. EPA has authorized most (47) States to operate all or portions of the
Clean Water Act section 402 permitting program, and States assert jurisdiction over "waters of the State"
which must be as inclusive as "waters of the United States" but may be more expansive.
Agencies may issue individual or general permits. Individual permits may be issued when site-specific
limits, management practices, monitoring and reporting, or other facility-specific permit conditions are
needed. One individual permit is issued per one applicant; the individual permit may cover several outfall
51 Clean Water Act section 402 regulates discharges of the following categories of pollutants: (1) Conventional pollutants: BOD,
TSS, oil and grease, fecal coliform, and pH; (2) Toxic pollutants: 126 "Priority Pollutants" (40 CFR part 423), which
include metals (e.g., Cu, Pb, Hg) and organic compounds (e.g., PCBs, dioxin); (3) Non-conventional pollutants: all other
pollutants (e.g., chlorine, ammonia, nitrogen, phosphorus).
52 In general, federal facilities are defined as buildings, installations, structures, land, public works, equipment, aircraft, vessels,
other vehicles, and property, owned, constructed or manufactured for leasing to the federal government.
('https://www.epa.gov/enforcement/enforcement-and-compliance-federal-facilities')
53 The State of Maine has authority to issue NPDES permits on the territory of two Tribes.
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points. General permits are issued when multiple dischargers require permit coverage, sources and
discharges are similar, and permit conditions are relatively uniform. One general permit is issued for
multiple dischargers. The permit identifies coverage area, sources covered, and administrative processes
for dischargers to identify that they intend to be covered (e.g., whether the applicant must submit an NOI
to seek coverage under the general permit).
EPA's Integrated Compliance Information System (ICIS)-NPDES database contains approximately
250,000 unique permit numbers, including individual and general permits.54 Some facilities may have
more than one permit (e.g., an individual permit for process wastewater and a general permit for
stormwater).55
Facilities that currently have a NPDES permit under Clean Water Act section 402 or a State permit under
an authorized State program can be assumed to either discharge to a "water of the United States" or to
waters designated to be "waters of the State" by the authorized State in which they are located. The 2020
NWPR reduced the number of jurisdictional waters (i.e., certain ephemeral streams), potentially leading
to some facilities no longer being required to obtain NPDES coverage where the water to which they
discharged was no longer jurisdictional and the pollutants discharged from the point source were not
conveyed to a "water of the United States." In the 2020 NWPR analysis, the agencies anticipated such
circumstances to be more likely to happen in arid areas of the country (U.S. EPA and Army, 2020a).
Dischargers whose receiving waters or downstream waters were not jurisdictional under the Clean Water
Act or "waters of the State" could opt to: continue with their existing permit (status quo)-, formally
request a permit modification;56 or formally request to have their permit terminated, subject to anti-
backsliding permit requirements.
EPA does not have information indicating that a significant number of requests for permit modification or
termination followed the promulgation of the 2020 NWPR. EPA does acknowledge that there are likely
instances where permittees have inquired about potential permit changes and that if the 2020 NWPR were
in effect for an extended period of time, these types of inquiries could become more common in certain
areas where the 2020 NWPR had a significant effect on the number of jurisdictional water features, such
as the arid southwest. However, the agencies also do not expect the jurisdictional changes resulting from
the final rule relative to the secondary baseline of the 2020 NWPR to result in a material change in the
number of NPDES permits or in modifications to existing permit requirements.
After the 2006 Rapanos decision, several NPDES permit holders in the Western United States asserted
they no longer required a permit because of the potential non-jurisdictional status of a receiving water.
The agencies are aware that in some cases such inquiries have resulted in a permitting authority
determining that a discharger no longer needed a permit. There are several potential explanations for this,
related to the nature of the permitted activity, State requirements, and facility-level incentives.
54 This estimate includes both active and expired permits in ICIS-NPDES since facilities with expired permits can still operate
with administratively continued permits. It excludes "terminated" permits that are no longer binding. It also excludes
permits that did not have valid latitude/longitude coordinates or were not truly NPDES permits.
55 In this section, "facility" refers to plants, construction sites, or other types of point source dischargers.
56 This request could happen before or during their permit reissuance process.
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First, the nature of a traditional discharge permit where a facility is seeking to discharge wastewater is
different from a Clean Water Act section 404 permit (described in Section III.C below) where a developer
or landowner is, for example, seeking to fill a portion of a "water of the United States." There are
instances for a Clean Water Act section 402-permitted discharger to contribute to creating a perennial or
intermittent water feature where there once was an ephemeral stream because of continuous discharge
(i.e.. an "effluent-dependent" or "effluent-dominated" water). In these cases, the final rule will not affect
jurisdiction if the water meets the conditions of the "tributary" definition.
Second, EPA has authorized most States to administer portions or all of the Clean Water Act section 402
permitting program. In addition, some States assert State law jurisdiction over "waters of the State" which
is inclusive of "waters of the United States" but may be more expansive. These State law programs can,
and in some cases already do, cover waters that are not considered "waters of the United States." As
discussed in Chapter II, State programs may choose to issue permits for non-federally regulated waters
solely based on State authority. States may also revise water quality-based effluent limits (WQBELs) to
reflect attenuation or additional dilution farther downstream (to a water subject to the Clean Water Act)
from the source of the pollutant if the discharge point is no longer into a "water of the United States,"
subject to applicable anti-backsliding permit requirements (see Appendix A in U.S. EPA and Army,
2020b).
Additionally, existing facilities may have made the capital investments in wastewater treatment systems
that discharge to receiving waters that will no longer be jurisdictional and may willingly continue
operating under their permit and see no need to challenge jurisdictional status of the receiving waters.
Depending on the individual organization, industry standards or recommended practices, the facility may
implement treatment technologies or best management practices voluntarily but could still save on some
compliance costs. The following sections discuss the potential impacts of the final rule on the number of
permits and on permit requirements. Specifically, the sections describe potential permittee's responses by
permit type (i.e.. individual, general) potentially affected by a change in the definition of "waters of the
United States." The agencies anticipate that changes to the scope of jurisdictional waters under the final
rule are more likely to affect the scope of facilities covered by general permits (including stormwater), but
as discussed below any impacts are expected to be small nationwide.
III.B.l Potential Impacts on Individual NPDES Permits
The potential benefits and costs of the final rule relative to the secondary baseline of the 2020 NWPR and
related to Clean Water Act section 402 permits to discharge to newly jurisdictional receiving waters will
depend on multiple factors. One factor is the basis for the NPDES permit, specifically whether the permit
is based on technology-based effluent limits (TBEL) or WQBEL.57 Another factor is whether the
57 The EPA and State NPDES permitting agencies develop TBEL for all applicable pollutants of concern. TBELs are based on
national technology based effluent limitations and standards (i.e., effluent limitations guidelines and standards) that are
developed to establish minimum levels of pollutant controls for most direct and indirect dischargers for conventional
pollutants, non-conventional pollutants, and toxic pollutants and provide equity among dischargers within categories. In the
absence of national limitations and standards, TBELs are developed on a case-by-case, best professional judgment (BP J)
basis. Instead of the effluent guidelines approach, the statute provides for the EPA to establish secondary treatment
standards for publicly-owned treatment works.
If TBELs are not adequate to protect water quality to meet applicable water quality standards, the Clean Water Act requires
the permitting authority to include WQBEL as necessary to meet applicable State or Tribal water quality standards and that
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facility's discharge conveys to a "water of the United States" downstream from the newly jurisdictional
receiving reach. A third factor is whether the facility has the controls necessary to meet permit limits
based on the newly jurisdictional receiving reach.
Permittees may incur higher treatment costs to meet any revised limits based on the newly jurisdictional
receiving waters. Existing permittees may already have treatment technologies in place and may be able
to meet new permit conditions that reflect the newly jurisdictional receiving waters. New establishments
in the industrial categories that are subject to effluent limitations may face higher capital and operational
costs. A permittee discharging to a jurisdictional water that is not attaining water quality standards is
subject to more stringent limits based on a WQBEL which must also be consistent with any applicable
wasteload allocations in a TMDL. The permit could be revised to incorporate WQBELs that reflect lower
dilution or attenuation of the pollutant(s) occurring at the point where the effluent enters the newly
jurisdictional waters. Under this scenario, the permittee could incur additional costs as compared to
meeting the previous permit limits under the secondary baseline of the 2020 NWPR. More stringent
effluent limitations could have a positive impact on water quality in the receiving jurisdictional streams,
including downstream waters.
In practice, the agencies anticipate impacts of the final rule relative to the secondary baseline of 2020
NWPR on individual permits to be small. EPA did not see significant changes under the 2020 NWPR in
permittees seeking revisions to existing permit conditions and similarly does not expect significant
changes under the final rule. Given the relatively short period of time that the 2020 NWPR was in effect,
any shift that may have occurred during this period was likely marginal. However, if the 2020 NWPR had
remained in effect for a longer period of time this shifting effect would have become more pronounced.
III.B.2 Potential Impacts on General Permits
NPDES general permits cover dischargers with similar characteristics (e.g., within the same industry)
within a given geographical location. In most cases, a permittee is required to complete and submit an
NOI and comply with the terms of the general permit. Each permittee receives a unique NPDES number.
Because a large number of facilities can be covered under a single general permit, general permits may
offer a cost-effective option for permitting agencies. Nearly 60 percent of the general permits the agencies
analyzed are storm water permits.
Stormwater runoff is generated when precipitation from rain and snowmelt flows over land or impervious
surfaces instead of percolating into the ground. As the runoff travels (especially over paved streets,
parking lots, and building rooftops), it can accumulate debris, chemicals, sediment, and/or other pollutants
that may be detrimental to stream water quality; runoff can also gain velocity and be directed towards
waterbodies, thus increasing the probability of these pollutants reaching a stream. Polluted stormwater
runoff can harm or kill fish and other wildlife. Excess sedimentation can impair aquatic habitat, and high
are consistent with any EPA-established or EPA-approved TMDLs that may apply to the discharge. Currently, all States
have State water quality standards under Clean Water Act section 303, as well as listed impaired waters and TMDLs for
those impaired waters under Clean Water Act section 303(d). If a TMDL has been developed for the receiving waterbody,
States (or EPA regions) assign a waste load allocation to each point source discharge and a load allocation to nonpoint
sources such that predicted receiving water concentrations do not exceed water quality criteria. States and Tribes may
develop standards for non-jurisdictional waters under State or Tribal law, but these criteria are not enforceable under the
Clean Water Act. Clean Water Act section 402(p)(3)(B)(iii) provides for a unique standard to be used for controls of
municipal separate storm sewer systems (MS4s).
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volumes of runoff can cause stream bank erosion. Debris can clog waterways and potentially reach the
ocean where it can harm marine wildlife and degrade habitats.
Some stormwater discharges have been designated by statute, regulations, or on a case-by-case basis to
require coverage under a NPDES permit. Under Clean Water Act section 402(p), the EPA implemented
the stormwater program in two phases, with the Phase I rule issued in 1990 and the Phase II rule issued in
1999. The stormwater program regulates stormwater from some construction sites (i.e.. those disturbing
one or more acres of land, or disturbing less than one acre but part of a common plan of development or
sale that will disturb one or more acres), specific industrial sectors specified in the Phase I rule, and
discharges from some municipal separate storm sewer systems (MS4s). When the 2020 NWPR was
finalized, the EPA's ICIS-NPDES data used by the agencies included 120,989 stormwater permits,
including individual and general permits. Over 20 percent of the permitted dischargers analyzed (26,366)
were for stormwater discharges from construction and development activities. Dischargers with unknown
industry classification (missing SIC code) and in "other" categories accounted for 51 and 21 percent of
the total stormwater permits respectively. Industrial facilities covered under an industrial stormwater
permit, such as the EPA's Multi-Sector General Permit (MSGP) accounted for approximately five percent
of stormwater permit holders. MS4s accounted for less than one percent of all permittees covered under
the stormwater program.
III.B.2.1 Construction Stormwater
In general, the NPDES stormwater program requires permits for discharges from construction activities
that disturb one or more acres, and discharges from smaller sites that are part of a larger common plan of
development or sale. The Construction and Development (C&D) effluent limitations guidelines (ELGs)
apply to permits for stormwater discharges from all construction activities including clearing, grading,
and excavation, except operations that result in the disturbance of less than one acre of land area, unless
they are part of a common plan of development or sale that disturbs more than one acre (40 CFR
122.26(b)(14)(x) and 40 CFR 122.26(b)(15)). Under 40 CFR part 450 (the C&D ELGs), all covered
entities must: (1) design, install, and maintain erosion and sediment controls; (2) initiate soil stabilization
in disturbed areas immediately whenever any clearing, grading, excavating, or other earth disturbing
activities have ceased; (3) design, install, and maintain pollution prevention measures to minimize the
discharge of pollutants to surface waters; (4) prevent the discharge of the wastewater, fuels, oils, or other
pollutants used in vehicle and equipment operations and maintenance and equipment washing; and (5)
implement other best management practices (BMPs) to minimize adverse effects on surface water.
The agencies considered the potential effect of the revised definition of "waters of the United States" on
the issuance of Clean Water Act section 402 permits for stormwater from construction and development
sites. Due to data limitations and the lack of a strong basis for the necessary analytical assumptions, it is
not feasible to rigorously estimate the potential costs to the construction industry and corresponding
benefits of needing a Clean Water Act section 402 permit for stormwater discharges from construction
sites to newly jurisdictional waters. Both costs to the industry and the potential benefits from reducing the
environmental impacts from construction activities due to a change to the definition of "waters of the
United States" would likely be modest. First, projects disturbing at least one acre of land, and which in
turn require NPDES permit coverage, are presumed to be large enough to generate stormwater runoff that
could reach a jurisdictional water, either directly or through a conveyance such as a municipal storm
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sewer, and so would be required to obtain permit coverage under both the 2020 NWPR secondary
baseline and the final rule. Procedures typically required by construction storm water general permits have
been widely adopted as normal practices in the construction industry and are frequently required by local
ordinances. As a result, the requirements are not usually considered to impose a significant burden. An
increase in jurisdictional waters is not likely to change these circumstances for most areas of the country.
The exception may be for stormwater discharges from construction sites in arid States where many
streams are ephemeral (e.g., Arizona, Nevada, and New Mexico).
Second, many States and Tribes have specific designated uses and water quality criteria for ephemeral
streams in their State or Tribal water quality standard (WQS). Under the 2020 NWPR, WQBEL-based
NPDES permits still applied if the discharge reached State waters. Finally, even if not required by federal
law, developers may implement stormwater BMPs for a variety of reasons, including the need to comply
with local erosion and sediment control requirements and/or to operate in a manner consistent with
industry standards, the additional time required for obtaining an exemption from Clean Water Act section
402 permit requirements, or concerns about the public perception of operating without a permit. In the
2020 NWPR analysis, the agencies had expected minor changes, mostly at construction sites located in
arid States. Accordingly, the agencies also expect minor changes as a result of the final rule.
III.B.2.2 Industrial Stormwater
Available data are not sufficiently detailed to develop quantitative estimates of the potential costs and
environmental benefits associated with permits for stormwater discharges from regulated industrial
facilities discharging to newly jurisdictional waters under the final rule. However, qualitative analysis
suggests that potential impacts may be limited. Most industrial sectors regulated under the Phase I
stormwater rule are located in urbanized areas. Under the 2020 NWPR, any permitted entity that is
discharging to an ephemeral feature or other non-jurisdictional water is still required to have an NPDES
permit if their discharge conveys to a jurisdictional water. Moving the compliance point for NPDES
permits upstream may result in lower effluent limitations given the difference in pollutant dilution or
attenuation. However, regulated industrial sectors that are likely located near ephemeral streams represent
a minority of the regulated industrial stormwater universe. Additionally, these types of facilities are
generally large and due to their scale, may be more likely to discharge into perennial streams (outside of
the arid West) that are jurisdictional under both the secondary baseline of 2020 NWPR and the final rule.
Therefore, the agencies expect no benefits or costs for industrial facilities with stormwater discharges
regulated under the Phase I rule.
III.B.2.3 Municipal Separate Storm Sewer Systems (MS4s)
Stormwater runoff in cities and towns is commonly transported through MS4s, from which it is often
discharged, untreated, into local waters. To prevent harmful pollutants from being washed or dumped
into, and being discharged from, an MS4, certain MS4s are required by law to obtain NPDES permit
coverage and develop a stormwater management program (SWMP). The Stormwater Phase I rule,
promulgated in 1990, requires operators of medium and large MS4s serving populations of 100,000 or
more to obtain NPDES permit coverage for their stormwater discharges. The Stormwater Phase II rule,
promulgated in 1999, required most small MS4s serving populations between 10,000 and 100,000 in
urbanized areas, as well as small MS4s outside the urbanized areas that are designated by EPA or the
State, to obtain NPDES permit coverage for their stormwater discharges. Generally, Phase I MS4s are
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covered by individual permits and Phase II MS4s are covered by general permits. MS4 permits include
terms and conditions that are adequate to meet the MS4 standard of reducing pollutant discharges from
the MS4 to the "maximum extent practicable" (MEP), eliminating non-stormwater discharges to the MS4,
and including other such conditions that the permitting authority deems appropriate to protect water
quality.
An MS4 may have many different outfalls within its service area, some of which may discharge to waters
newly jurisdictional under the final rule. However, MS4s often implement their SWMPs uniformly across
their area without regard to the receiving water of a specific outfall. Thus, a change in jurisdictional status
of some receiving waters is not expected to have a noteworthy effect in terms of costs or benefits, unless
every outfall of a particular MS4 discharged to a non-jurisdictional water in the baseline and that
pollutants never reach a jurisdictional water. Therefore, the agencies expect minor change to costs or
water quality benefits from MS4s regulated under the EPA Phase I and Phase II stormwater rules.
III.B.3 Potential Impacts on Section 402 State Programs
As discussed in Section II.C, many States already exceed the aquatic resource or surface water discharge
protections under the final rule (see Table II-l in Section II.C for a list of States that fall into this
category). Accordingly, the agencies anticipate no changes to programs in these States, and no
incremental costs. Conversely, the return to status quo from the 2020 NWPR for States with less stringent
protections for their waters in comparison to "waters of the United States" may incur administrative costs
associated with this action. As discussed in Section II.C, the agencies are not quantifying such costs
because of paucity of data on how strictly and to what extent States regulate their given "waters of the
State." The NPDES program comprises five components: the NPDES permit program, authority to
regulate federal facilities, State pretreatment program, general permits program, and biosolids program
(U.S. EPA, 2019). Forty-seven States are currently authorized for the NPDES permit program and the
general permits program. Thirty-seven States are partially authorized for three or four components, and
eight States are fully authorized for all components. Only three States and the District of Columbia are not
authorized for any NPDES components.
States that continue current practices could experience no change in costs if they already run their own
fully authorized NPDES programs and regulate waters more broadly than the 2020 NWPR requires. Other
States that return to status quo from the 2020 NWPR could incur additional costs (e.g., staffing costs)
from conducting more Clean Water Act section 401 water quality certification reviews of EPA-issued
section 402 permits. In all cases except where States will continue to regulate more broadly than required
by the Clean Water Act, a higher number of permits issued by federal agencies is likely to increase State
costs associated with certification under Clean Water Act section 401.
States that would incur additional costs as a result of increased section 401 reviews on EPA-issued
section 402 permits would be 1) States with no authorized NPDES programs and 2) States with NPDES
programs that are not authorized for all components of the NPDES program and need to return to status
quo. Massachusetts, New Hampshire, and New Mexico are the only three States without NPDES
programs. Given that the percentage of section 401 reviews devoted to EPA-issued section 402 permits is
quite low, as the vast majority of section 401 reviews are for Corps-issued section 404 permits, the
agencies expect total section 401 costs resulting from changes to the section 402 program to be minimal.
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III.B.4 Uncertainty and Limitations for Assessing Potential Effects on Clean Water Act
Section 402 Program
There are multiple sources of uncertainty inherent in the analysis of the potential impacts of the revised
definition of "waters of the United States" on the Clean Water Act section 402 program.
First, there is significant uncertainty in the universe of entities that would be affected by a change in
jurisdictional scope. The discussion of the final rule's impacts in this report is based on the agencies'
2020 NWPR analysis (U.S. EPA and Army, 2020a) and the anticipated effects of the 2020 NWPR on
section 402 permits included in EPA's ICIS-NPDES database. The database is based on States' reporting
and may not account for all existing facilities and activities that may affect waters whose jurisdictional
status changed under the 2020 NWPR and under the final rule. For example, data on facilities or activities
subject to general permits or facilities with minor status under the Clean Water Act section 402 program
are limited. Some industrial facilities or activities subject to Clean Water Act section 402 requirements
may be underrepresented. Some facilities or activities have missing or invalid coordinates and available
coordinates for permitted dischargers can be those of the facility and not necessarily the outfall. This
limits the agencies' ability to precisely identify the receiving waterbody. The available data also do not
necessarily represent all future activities that could have adverse impacts on such waters. In particular,
specific locations of future construction activities as well as the potential for their stormwater discharges
to affect ephemeral streams are unknown. Similarly, demand for industrial domestic wastewater treatment
is driven by land development, and locations of future industrial domestic wastewater treatment facilities
are not known.
Second, there is also significant uncertainty regarding the response of permittees. Some entities have
incentives to voluntarily use technologies and best management practices, based on industry standards,
public relations, sustainability and related policies. For existing permittees, the time required for obtaining
exemption from Clean Water Act section 402 requirements may have served as an extra incentive to
maintain existing practices even where the receiving water changed status under the 2020 NWPR.
III.C Clean Water Act Section 404: Discharge of Dredged or Fill Material
Unless the activity is statutorily exempted,58 the Clean Water Act prohibits discharges of dredged or fill
material from a point source into "waters of the United States," including wetlands, without a permit.
Such discharges are regulated under Clean Water Act section 404, which is administered by the Corps
with oversight by the EPA. In addition, the States of Michigan, New Jersey, and Florida have assumed
administration of the Clean Water Act section 404 permitting program for certain waters within their
borders.
For a project to be permitted under the section 404 program, the permittee must demonstrate that, to the
extent practicable, the permittee has taken steps to avoid impacts to wetlands and other aquatic resources,
58 The statutory exemptions to Clean Water Act section 404 are set forth in subsection (f)(1). The first and most significant
section 404(f)(1) exemption is for normal and ongoing farming, silviculture and ranching activities. Other examples of
statutory exemptions are for maintenance, including emergency repair of recently damaged, currently serviceable structures,
and for construction or maintenance of farm ponds, irrigation ditches, farm or forest roads, and temporary roads for moving
mining equipment. These statutory exemptions may not apply in certain limited circumstances if the otherwise exempted
activity brings an area subject to jurisdiction into a use to which it was not previously subject, where the flow or circulation
of navigable waters may be impaired or the reach or waters reduced (Clean Water Act section 404(f)(2)).
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minimized potential impacts, and compensated for remaining unavoidable impacts if required. See, e.g.,
33 U.S.C. 1344(b)(1). This process, commonly referred to as the mitigation sequence, applies the
following mitigation steps in sequential order:
• Avoidance: Mitigating an aquatic resource impact by selecting the least-damaging project type,
spatial location, and extent compatible with achieving the purpose of the project. Avoidance is
achieved through an analysis of appropriate and practicable alternatives and a consideration of impact
footprint.
• Minimization: Mitigating an aquatic resource impact by managing the severity of a project's impact
on resources at the selected site. Minimization is achieved through the incorporation of appropriate
and practicable design and risk avoidance measures.
• Compensatory Mitigation: Mitigating an aquatic resource impact by replacing or providing
substitute aquatic resources for impacts that remain after avoidance and minimization measures have
been applied. Compensatory mitigation is achieved through appropriate and practicable restoration,
establishment, enhancement, or preservation of aquatic resource functions and services.
Avoidance and minimization steps assure that only projects that are the least environmentally damaging
practicable alternative (LEDPA) will receive legal authorization to discharge. The Corps may only permit
the LEDPA (40 CFR 230.10(a)). While this sounds straightforward, there are many variables at play and
they multiply in complexity depending on the type of project, the local market, the geographic context,
and the type, functionality, and local importance of the aquatic resources involved. The agencies were
unable to quantify and monetize benefits of the final rule with regard to the avoidance and minimization
steps because the steps permittees take are not tracked or recorded in a systematic way. Therefore, the
agencies' analysis focuses on benefits stemming from increases in compensatory mitigation requirements,
which is likely to understate the total benefits of the final rule.
Compensatory mitigation may be required to replace the loss of wetland and aquatic resource functions
by offsetting unavoidable adverse impacts which remain after appropriate and practicable avoidance and
minimization have been achieved. There are three mechanisms for providing compensatory mitigation (as
established by the regulations59) with mitigation banks and in-lieu fee programs preferable to permittee-
responsible mitigation:
• Mitigation bank: A site, or suite of sites, where aquatic resources are restored, established,
enhanced, or preserved for the purpose of providing compensatory mitigation for impacts authorized
by Corps permits. Mitigation banks sell compensatory mitigation credits to permittees with regulatory
requirements to offset aquatic resource impacts. The purchase of credits transfers responsibility for
compensation from the permittee to the mitigation bank. Large compensatory mitigation banks
generally provide compensation for multiple, smaller impacts.
• In-lieu fee program: A program involving the restoration, establishment, enhancement, or
preservation of aquatic resources through funds paid to a "governmental or non-profit natural
resources management entity" to satisfy compensatory mitigation requirements for Corps permits.
59 See 40 CFR 230-91-230.98 and 33 CFR 332.1-332.8.
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The fund payment transfers responsibility for compensation from the permittee to the in-lieu program
operator. In-lieu fee programs identify and initiate projects across their service area within set
timeframes from when funds are collected.
• Permittee-responsible mitigation: Aquatic resource restoration, establishment, enhancement, or
preservation activity undertaken by the permittee (or an authorized agent or contractor) to provide
compensatory mitigation for which the permittee retains full responsibility.
The agencies generally consider banks and in-lieu fee programs preferable to permittee-responsible
mitigation because they consolidate compensatory mitigation projects where ecologically appropriate, use
a watershed approach, provide a greater level of financial planning and scientific expertise, reduce
temporal losses of ecological functions, increase economic efficiency, and reduce uncertainty over project
success.
Two types of permits are available through the section 404 program: individual permits and general
permits. Individual permits are required for impacts that are more than minimal, individually and
cumulatively. The Corps evaluates potential environmental and socioeconomic effects of the proposed
activity and issues a public notice that describes the proposed project. The Corps reviews all comments
received and makes a final permit decision. Alternatively, letters of permission, a type of individual
permit, may be used to evaluate specific categories of activities with minor impacts that may not qualify
for an existing general permit.
General permits are suitable for activities that will have only minimal adverse effects individually or
cumulatively. General permits authorize activities the Corps has identified as being substantially similar
in nature and causing only minimal individual and cumulative environmental impacts. General permits
may authorize activities in a limited geographic area (e.g., county or State), a particular region of the
country (e.g., group of contiguous States), or the nation (called Nationwide Permits). The general permit
process eliminates individual review and allows certain activities (e.g., minor road maintenance, utility
line backfill) to proceed with little or no delay, provided that the conditions for the general permit are met.
EPA and the Corps divide responsibilities for enforcing CWA section 404 in accordance with the
"Memorandum of Agreement Concerning Federal Enforcement for the Section 404 Program of the Clean
Water Act" entered into on January 19, 1989, as modified by agreement on February 25, 1994.
EPA seeks penalties in enforcement actions that are appropriate to the violations, considering the forgone
economic benefit of noncompliance and a gravity amount to deter future violations. Therefore, in those
circumstances where EPA collects penalties for CWA section 404 violations, they are designed to be
proportionate to the violations. In a recent analysis, EPA evaluated penalties collected for section 404
violations from 2006 to 2022. Based on this analysis, EPA determined that approximately 53% of
administrative enforcement actions for section 404 violations resulted in no penalties and that the average
penalty for all administrative enforcement actions for section 404 violations was approximately $17,900.
EPA also determined that the average penalty for judicial and administrative enforcement actions was
approximately $40,100 (U.S. EPA, 2022).
The Corps also does not typically collect substantial penalties for CWA section 404 violations. An
analysis of the Corps' enforcement activities in fiscal year 2019 indicates that of all enforcement activities
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that the Corps initiated for unauthorized activities under CWA section 404, only approximately 1% of
activities were referred to EPA for potential enforcement, approximately 1% were resolved through
restoration orders, approximately 19% were resolved through voluntary restoration, and the remainder
were resolved using after-the-fact permits, determinations that no permits were required, determinations
to pursue no further action, or similar means (U.S. Army Corps of Engineers, 2022).
These potential costs of enforcement are included here for additional perspective, and the agencies do not
anticipate that this final rule will result in a change in regulatory violations relative to the secondary
baseline. The agencies note that it is long-standing and well-established policy of economic analysis for
the agencies to assume full compliance with the regulation; see, e.g., Section 5.4.1 of EPA's Guidelines
for Preparing Economic Analyses (U.S. EPA, 2010). Including the costs noted above in the summary of
this analysis would constitute double counting.
III.C.l Potential Effects of the Final Rule on the Clean Water Act Section 404 Program
Under the 2020 NWPR, the following features, among others, were no longer jurisdictional: wetlands that
are not adjacent to otherwise jurisdictional waters; rivers and streams that do not contribute surface water
flow to traditional navigable waters or the territorial seas in a typical year; ephemeral features, including
ephemeral streams, isolated lakes, ponds, and impoundments; and certain ditches. While some of these
features will similarly not be jurisdictional under the final rule, they will be assessed via significant nexus
analyses before such conclusions are reached. The 2020 NWPR also codified twelve exclusions; some of
which diverged drastically from pre-2015 regulatory practice and from the codified exclusions in the final
rule. Under the 2020 NWPR, permittees no longer needed to obtain section 404 permit coverage for
waters whose jurisdictional status has changed and did not need to mitigate impacts from their project
activities. The final rule removes these changes made by the 2020 NWPR and returns the federal
jurisdiction to approximately the same scope as under the pre-2015 regulatory regime.
At the time 2020 NWPR was promulgated, some States, Tribes, and localities had their own dredged/fill
programs already in place regulating these waters. As a result, developers and other permittees affecting
these non-jurisdictional waters in these areas could still have been required to take steps to avoid impacts
to wetlands and other aquatic resources. In these areas, the final rule will reinstate the federal jurisdiction
removed under the 2020 NWPR, but since these State, Tribal, or local program were in place, the final
rule does not meaningfully change what waters receive protection in these areas. However, as discussed
in Chapter II, the agencies are not quantifying this difference in costs to States with broad regulatory
protections.
Several potential overall effects on the Clean Water Act section 404 permit program are possible based on
the change in Clean Water Act jurisdiction between the 2020 NWPR and the final rule:
• Transfers: Under the 2020 NWPR, projects may have shifted away from areas containing waters that
required section 404 permits to areas with waters that were no longer jurisdictional (e.g., non-adjacent
wetlands and ephemeral features). All else being constant, profit-maximizing entities will aim to
avoid regulatory requirements and the associated costs. Therefore, the agencies expect that during the
period when the 2020 NWPR was in effect, there may have been a relative decrease in activity
affecting waters that remained jurisdictional and an increase in activity affecting waters that were
newly non-jurisdictional. The agencies do not have sufficient information from the period of time
when the 2020 NWPR was in effect to estimate how much of this type of shift in project activity
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occurred. Given the relatively short period of time that the 2020 NWPR was in effect, any shift that
may have occurred during this period was likely marginal. However, if the 2020 NWPR had remained
in effect for a longer period of time this shifting effect would have become more pronounced, in areas
where State, Tribal, or local programs did not provide regulatory protection for these waters that lost
federal jurisdiction under the 2020 NWPR. This potential shift in the types of waters impacted by
project activity, is separate from any consideration of changes in overall activity which may have
occurred under the 2020 NWPR.
• Permit and administrative costs: Several possible scenarios could result in changes to permit costs.
For projects that only affected waters that lost jurisdiction under the 2020 NWPR and where no State,
Tribal, or local permits were required, permitting costs would increase with the final rule. Costs
would also increase for the Corps as the overall permit volume would increase, and for States and
Tribes in terms of increased Clean Water Act section 401 certification reviews. It is uncertain whether
additional time delays associated with the permitting process would occur under the final rule; since,
jurisdictional determinations were often required under the 2020 NWPR to assess whether a section
404 permit was required.60 For projects that would still have required a permit under 2020 NWPR,
there may be additional costs and burden resulting from a larger number of waters affected by their
project being jurisdictional due to the final rule. This could lead to a greater likelihood of needing an
individual permit, which have higher costs than general permits.
• Mitigation sequence costs: Those projects that affect a water feature whose jurisdictional status
changes between the 2020 NWPR and the final rule will not only have increased permitting costs, but
they would also likely incur greater project costs from having to implement the mitigation sequence
required by their permit. Similarly, for projects that affect multiple waters, if some of those waters
were non-jurisdictional under 2020 NWPR but jurisdictional under the final rule, the permit costs
may not differ substantially, but these projects would likely be required to implement greater
avoidance, minimization, and compensatory mitigation measures under the final rule than under the
2020 NWPR. Avoidance and minimization measures are not tracked by the Corps, so they are
difficult to include in estimates of changes in costs. However, compensatory mitigation measures are
tracked by the Corps; as such, changes to mitigation levels and the resulting costs can be estimated.
• Benefits: Returning federal jurisdictional status lost under the 2020 NWPR to water features such as:
non-adjacent wetlands, ephemeral features, certain ditches, and certain lakes and ponds, for example,
would reduce impact areas from projects (from the minimization requirements), increase mitigation
measures, and reduce loss of wetlands acreage and stream linear feet. Additionally, potential impacts
of the final rule on the types of section 404 permits that would be issued (i.e., lower likelihood for
general permits; likely more individual permits with public hearings and fewer individual permits
with letters of permission) could result in increased protections for waters that were non-jurisdictional
under the 2020 NWPR. The protections for these waters from additional avoidance, minimization, or
60 The jurisdictional determination data from the one year that the 2020 NWPR was in effect shows an increase in the percentage
of jurisdictional determinations that resulted in Approved Jurisdictional Determinations (AID) relative to the pre-2015
practice. On average, AJDs take more time and effort than other types of jurisdictional determinations. However, it is
unclear if this was a temporary effect of a new definition being applied and the percentages would have returned to pre-2020
NWPR levels over time.
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compensation requirements would result in benefits to society over time, including wildlife habitat
support, recreation, and aesthetic benefits.
III.C.2 Quantitative Assessment of Potential National Impacts
To evaluate the potential impacts of the final rule, the agencies focused on potential Clean Water Act
section 404 program impacts for which data are sufficient to develop quantitative estimates at the national
level. Inputs for this analysis were derived using section 404 permit data from the Corps' ORM2 database
to identify aquatic resources and permits potentially affected by the final rule. To estimate costs, the
agencies relied on a similar methodology to that used in the 2020 NWPR analysis (U.S. EPA and Army,
2020a). To estimate benefits of wetland mitigation, the agencies used a meta-analysis of wetland
valuation studies described in detail in Appendix B. The agencies evaluated potential impacts of the final
rule relative to the secondary baseline of the 2020 NWPR (in the estimates of benefit and costs). National-
level estimates of benefits and costs are summarized below. Appendix C provides State-level results of
this analysis
III.C.2.1 Estimating Future Activity Requiring Clean Water Act Section 404 Permitting
The agencies started with ten years of Corps ORM2 Clean Water Act section 404 permit data for the
years 2010 through 2019 to derive average annual estimates of the: types, amount, and general location of
permitted projects; water features such as wetlands, streambanks, and shorelines affected by dredged or
fill activities; and the extent of impacts requiring compensatory mitigation under the section 404
permitting process.61 During much of this ten-year period, the pre-2015 regulatory practice was used to
determine the jurisdictional status of waters potentially affected by permitted projects. However, during
the years 2015 through 2019, the 2015 Clean Water Rule was in effect at varying time periods in 38
States. The section 404 permits issued in those States during the times that the 2015 Clean Water Rule
was in effect were removed from the dataset, so they do not factor into the average annual estimates.
Since these average annual estimates of permits, affected waters, and mitigation were derived from the
remaining data on permits and jurisdictional determinations based only on the pre-2015 regulatory
practice, the agencies consider them to be reasonably representative of future activity and regulatory
requirements that would apply on an annual basis under the final rule. The agencies acknowledge that
future shifts in land use activity, changing demographics, and even climate change will have an effect on
the characteristics and frequency of projects requiring 404 permits. Due to the inherent difficulty in
predicting these future effects to 404 permitting, the agencies chose to limit the analysis to 20 years and to
estimate changes at the resolution of the 12-digit hydrologic unit code (HUC12) watershed scale.
During this ten-year timeframe, the Corps issued 424,189 permits under the section 404 program that
were subject to the Rapanos Guidance, were not permits issued for mitigation or restoration activities, had
accurate coordinate data that enabled mapping to a HUC12 watershed, and had complete Cowardin
information, which remains consistent across regulatory regimes. See Appendix A for summary
information on this section 404 permit data analysis. Table III-1 shows the average annual estimated
increase in mitigation requirements relative to the secondary baseline of the 2020 NWPR, based on the
424,189 permits issued between 2010 and 2019 (see Appendix C for a breakout of the estimated increase
in mitigation requirements by State). The estimated mitigation requirements are based on an assumption
61 Calendar year 2019 was the most recent complete year of permit data available before the 2020 NWPR was promulgated.
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of a 1:1 ratio between authorized impacts and mitigation requirements.62 When mitigation required is
more than one acre per acre impacted, the additional acreage is generally to ensure that the mitigation
acres provide the same ecosystem services that the impacted acres would have, and thus the focus is on
the acres of impacts requiring compensatory mitigation rather than the acres of mitigation.
The Cowardin code categorizes individual aquatic resources categorized by their hydromorphic
characteristics, such as palustrine features (e.g., wetlands and ponds), lacustrine features (e.g., lakes), and
riverine features (e.g., streams and rivers). The Cowardin types with the largest estimated average annual
increase in mitigation requirements under the final rule include several palustrine types (general
palustrine (P), emergent (PEM), forested (PFO), scrub-shrub (PSS), and open water (POW)) as well as
two riverine types (general riverine (R) and ephemeral (R6)).63 The States of Florida, California,
Louisiana, Alaska, and Minnesota have the largest estimated average annual increase in mitigation
requirements under the final rule. These States are estimated to have the largest benefits and costs under
the final rule relative to the secondary baseline (see Appendix C).
Table 111-1: Estimated average annual increase in mitigation requirements under the final rule
relative to the secondary baseline, based on Clean Water Act section 404 permits issued in
2010-2019, by Cowardin code
Cowardin
Type
Permanent Impacts1,2,3
Temporary Impacts1,2,3
Acres
Linear Feet
Total
Permanent
Impacts
(Acres)4
Acres
Linear Feet
Total
Temporary
Impacts
(Acres)4
Estuarine
0.0
2.9
0.0
0.0
0.0
0.0
El
0.1
4.5
0.1
0.0
0.9
0.0
E2
0.2
6.4
0.2
0.0
2.1
0.0
Lacustrine
6.2
2,018.9
8.5
0.1
0.4
0.1
LI
15.4
827.3
16.3
2.7
42.7
2.8
L2
12.2
1,121.2
13.5
2.3
103.8
2.4
Marine
0.0
-0.1
0.0
0.0
0.0
0.0
Ml
0.0
-1.3
0.0
0.0
-0.2
0.0
M2
0.0
-1.4
0.0
0.0
-0.5
0.0
Palustrine
47.0
1,496.9
48.7
2.9
143.6
3.1
PAB
6.7
230.2
6.9
0.3
376.3
0.8
PEM
603.2
16,343.7
622.0
57.1
11,734.9
70.5
PFO
329.9
2,754.7
333.1
40.1
1,403.4
41.7
PML
0.5
0.0
0.5
0.0
0.0
0.0
POW
47.7
539.7
48.4
1.1
42.2
1.2
PRB
0.8
48.7
0.9
0.0
54.8
0.1
PSS
52.5
538.3
53.1
25.5
887.8
26.5
PUB
7.0
1,498.0
8.8
3.7
358.3
4.1
Riverine
3.6
25,397.8
32.7
20.5
6,815.0
28.3
02 This assumption helps account for different mitigation options (e.g., on-site, off-site, in-lieu fee, mitigation credits). For
example, the number of acres or linear feet per mitigation credit varies among and within Corps Districts, so translating
mitigation credit data listed in the ORM2 database into acreage and linear feet values is not straightforward.
03 The Cowardin code, as created by Lewis M. Cowardin et al. in 1979, does not include a category for ephemeral streams; this
category was created by the Corps in ORM2 for the sake of tracking ephemeral streams. U.S. Army Corps of Engineers
(n.d.) provides definitions for the major Cowardin categories and descriptions of the subcategories listed in Table III-1.
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Table 111-1: Estimated average annual increase in mitigation requirements under the final rule
relative to the secondary baseline, based on Clean Water Act section 404 permits issued in
2010-2019, by Cowardin code
Cowardin
Type
Permanent Impacts1,2,3
Temporary Impacts1,2,3
Acres
Linear Feet
Total
Permanent
Impacts
(Acres)4
Acres
Linear Feet
Total
Temporary
Impacts
(Acres)4
R1
0.0
0.8
0.0
0.0
0.1
0.0
R2
2.2
1,244.2
3.6
1.0
531.9
1.6
R3
0.4
468.5
0.9
0.2
164.3
0.4
R4
3.0
7,560.5
11.7
0.6
1,249.2
2.0
R5
0.9
2,735.6
4.0
0.5
1,262.7
1.9
R6
30.5
104,363.1
150.3
32.3
26,954.3
63.2
Riparian
7.8
2,371.0
10.5
0.3
176.6
0.5
RP1
1.3
348.9
1.7
1.1
342.1
1.5
RP2
2.8
197.8
3.0
0.6
25.8
0.7
Upland
26.0
472.7
26.6
1.9
8,576.0
11.7
Source: Analysis of Corps ORM2 and jurisdictional determination data.
1 Excludes mitigation type permits, permits issued when the 2015 Clean Water Rule was in effect, permits with
missing/inaccurate permit coordinates, and permits with missing or historical Cowardin codes.
2 The estimated impact area does not include most projects from New Jersey and Michigan, as they implemented the Clean
Water Act section 404 program in their States and so maintain their own separate data. For New Jersey and Michigan, only
permits issued on waters for which the Corps still retains jurisdiction are considered in the estimated average annual
mitigation requirement increases.
3 Includes 49 States (excludes Hawaii and District of Columbia).
4 Impacts in linear feet were converted to acres by multiplying total linear feet by an average total buffer width of 50 feet (25
feet on each side of the stream) and converting square feet to acres.
Under the final rule, the increase in wetland mitigation acres would accumulate over time. The
cumulative increases for permanent wetland mitigation acres assumes a linear trend over the 20-year
analysis period from 2023 to 2042, while the cumulative increases for temporary wetland mitigation acres
assumes a linear trend over a 15-year period from 2028 to 2042.64 The 5-year lag for temporary wetland
mitigation acres is based on discussions with the Corps and accounts for the time required for temporarily
impacted areas to return to their original state. Cumulative changes in avoided wetland losses are used in
the benefits assessment (Section III.C.2.3) and the environmental justice analysis (Section IV).
Table III-2 presents national totals for annual average increases in wetland mitigation acres and
cumulative increases over the 20-year analysis period.
04 For the proposal household WTP values used for the benefit estimates were based on a one-time payment for the additional
mitigation acres in a given year. However, the agencies received comments suggesting the use of an annual payment
approach for household WTP. The annual payment approach requires the accounting for cumulation of the mitigation acre
increases over the 2023-2042 analysis period. For further explanation see the lumpsum versus annual payment approach
discussions in Appendix B and Appendix D.
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Table 111-2: Estimated national increase in wetland mitigation acres under the final rule relative
to the secondary baseline of 2020 NWPR
Annual Average Increase in Wetland Mitigation Acres
Cumulative Increase in Wetland Mitigation
Acres1
Permanent
Temporary
Total
Permanent
Temporary
Total
1,406.3
265.1
1,671.4
28,122.1
3,977.4
32,099.5
1 The cumulative increase in the permanent wetland mitigation acres assumes a linear trend over a 20-year period from
2023 to 2042. The temporary increase in wetland mitigation acres assumes a linear trend over a 15-year period from 2028 to
2042. The 5-year lag in benefits from mitigation measures for temporary impacts is based on discussion with the Corps and
accounts for the time required for temporarily impacted areas to return to their original state.
Figure III-l shows the geographic distribution of cumulative increases in mitigation requirements under
the final rule during the 20-year analysis period, as compared to the secondary baseline of the 2020
NWPR, by HUC12.
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Figure 111-1: Cumulative increases in mitigation acres under the final rule during the 20-year analysis period, relative to the secondary
baseline of the 2020 NWPR, by HUC12
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lll.C.2.2 Potential Costs to Section 404 Program
The analysis of the final rule costs follows the same general approach the agencies used in the 2020
NWPR analysis (U.S. EPA and Army, 2020a). The final rule could increase costs in two ways:
1. Increased permit costs, including application costs, permitting time costs, and impact avoidance
and minimization costs, for projects affecting newly jurisdictional waters regulated under the
final rule, and
2. Increased compensatory mitigation costs when impacts occur on waters regulated under the Clean
Water Act.
To estimate permit cost increases, the agencies first determined how many section 404 permitted waters
on average are covered by either a single-water individual permit, a single-water general permit, a multi-
water individual permit, or a multi-water general permit in a given year, based on permits issued from
2010 to 2019. The agencies then used these averages to estimate what proportion of the waters that
became no longer regulated as "waters of the United States" under the 2020 NWPR, would be covered by
either a single-water individual or general permit. These single-water individual and general permits were
assumed to no longer be needed under the 2020 NWPR and the permit costs would not occur in the
baseline.
The number of permits considered in the permit cost analysis may differ from the number considered in
the mitigation cost analysis. The permit cost analysis considered only single-water section 404 permits
that potentially affect waters that became no longer jurisdictional under the 2020 NWPR. Multiple-water
permits were not considered in the permit cost analysis. This is based on the assumption that if one water
in a multi-water permit is no longer jurisdictional the permit would still be needed to cover the remaining
waters. The mitigation cost analysis considered both single-water and multiple-water permits with
mitigation requirements for waters that became no longer jurisdictional under the 2020 NWPR, excluding
permits issued for mitigation or restoration activities.
The agencies used the Corps' ORM2 section 404 permit database to determine the average annual number
of single-water permits affecting waters that became no longer jurisdictional under the 2020 NWPR. The
agencies then multiplied the average annual increase in the number of individual and general section 404
permits by Corps estimates of permit costs (U.S. EPA and Army, 2015).
The Corps estimated section 404 permit application costs to calculate incremental permit application costs
associated with the replacement of Nationwide Permit 26 (NWP 26) with a suite of new and modified
nationwide permits in the year 2000 (U.S. EPA and Army, 2015). The Corps analysis, which noted that
the costs were developed for "typical" projects affecting up to three acres of jurisdictional waters,
estimated costs for individual permits ranging from $10,000 to $24,000 and for general permits ranging
from $3,000 to $10,000 (1999$). For each permit type, the agencies used the low end of the range as the
low estimate and the high end of the range as the high estimate. The Corps' unit cost estimates are
adjusted from 1999$ to 2021$ using the CPI-U ($16,300 to $39,000 per individual permit; $4,900 to
$16,300 per general permit). Table III-3 shows the estimated average annual increase in the number of
individual and general section 404 permits, Corps unit application costs, and the estimated annualized
increase in permit costs for individual and general permits nationwide (estimated over a twenty-year
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timeframe from 2023 to 2042). Relative to the secondary baseline of the 2020 NWPR, annualized permit
costs range from $42 million to $136 million using a 3 percent discount rate and from $43 million to $142
million using a 7 percent discount rate. These cost estimates represent permitting costs associated with the
incremental change in permits required between the number of permits that would be required under
NWPR and the number that would be required under the final rule. These numbers do not reflect total
costs for 404 permitting under either regulatory regime, only the incremental difference between the two.
Accounting for the full permitting costs of the CWA 404 program is not necessary for estimating the
incremental cost and is beyond the scope of this economic analysis.
The estimated annual increase in permits is more than what was presented in the economic analysis for
the proposed rule. The estimated increase in permits presented in the proposal analysis did not include
permit estimates for those States that the agencies considered to have State-level permitting programs
commensurate with the proposed regulations. However, the agencies received public comments
recommending that these States should not be excluded from the analysis. As a result, the national
estimated increase in annual permits presented here is for the final rule are for all States, except Hawaii
and the District of Columbia which lacked sufficient data to base estimates on. The permit estimates in
Table III-3 also do not fully account for the change in permits for Michigan and New Jersey, as they
implement the Clean Water Act section 404 program in their States and so maintain their own 404 permit
data separate from the Corps ORM2 database. For New Jersey and Michigan, only permits issued on
waters for which the Corps still retains jurisdiction were available for estimating the increase in permits
for those States.
Table 111-3: National annualized permit costs from increases in section 404 permits, relative to
the secondary baseline of the 2020 NWPR (millions 2021$)
Permit
Type
Estimated
Average Annual
Increase in
Permits1,2
Unit Costs from Corps
NWP Analysis (2021$)
Estimated Increase in Permit Costs
(millions 2021$)1,3
3% Discount Rate
7% Discount Rate
Low
High
Low
High
Low
High
IP
151
$16,300
$39,000
$2.5
$6.1
$2.6
$6.3
GP
7,751
$4,900
$16,300
$39.1
$130.1
$40.6
$135.2
Total
7,902
$41.7
$136.2
$43.3
$141.5
1 Reflects annual increase in permits in 49 States (excludes Hawaii and District of Columbia).
2 Estimated average annual permit increases based on single-water section 404 permits issued in years 2010-2019 affecting
waters that became no longer jurisdictional under the 2020 NWPR.
3 Permit costs are calculated by multiplying the estimated average annual increase in the number of single-water individual
and general permits by the low and high unit costs for each permit type from the Corps NWP analysis ($16,300 to $39,000
per individual permit; $4,900 to $16,300 per general permit), and annualizing over the 2023-2042 analysis period.
To estimate costs from increases in mitigation requirements, the agencies multiplied the cost of each
mitigation acre or linear foot (low and high estimates) by the estimated average annual increase in
mitigation requirements and summed the acreage and linear feet values for each scenario. The increase in
mitigation requirements includes permanent and temporary impacts. Throughout the analysis period, the
agencies assumed that permittees would incur mitigation costs for both permanent and temporary impacts
for each project requiring mitigation (i.e., no time lag for temporary impacts is considered in cost
analysis). The Corps estimated State-specific per-acre costs of wetland mitigation and per linear foot
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estimates of stream mitigation by examining published studies and survey results, making phone inquiries
to Corps Districts and mitigation banks, and researching web sites (U.S. EPA and Army, 2015). A team
of Corps experts developed a range of values for each State. Costs for mitigation in estuarine
environments, whose jurisdictional status will not be affected by this rule, are not included where
explicitly identified by mitigation bank and in-lieu fee program fee schedules. Mitigation costs for each
State vary widely. Costs vary based on land acquisition costs, the nature of the work being done, demand
for mitigation in the State, as well as other factors. The unit costs identified here, based on mitigation
bank and in-lieu-fee program fee schedules, represent fully loaded unit costs and include the costs of land
acquisition, construction work completed on site, monitoring for mitigation success, and long-term
stewardship. While these are the costs assumed in the modeling carried out here, there are instances
where no credits are available for purchase from mitigation banks or in-lieu-fee programs, and in these
cases a permittee-responsible mitigation project would be required. This could occur on-site or off-site.
Due to the boutique nature of permittee responsible mitigation, this type of mitigation can cost more than
the purchase of credits from a mitigation bank or in-lieu fee program. In these cases, mitigation costs
could be greater than the state averages used for calculating mitigation costs for the analysis. In some
cases, where mitigation is occurring on the same tract of land as the permitted impacts and new land
would not have to be acquired, costs can be less than the purchase of credits from an off-site
compensatory mitigation alternative; however, the latter is often less expensive, because third-party
mitigation providers can achieve economies of scale and, therefore, mitigate impacts more efficiently. In
this case, the Corps" mitigation costs estimates may be an overestimate if completing a permittee
responsible project is feasible on the same tract of land (U.S. EPA and Army, 2015). As mentioned above,
for all these cases, the costs associated with mitigation can vary widely on a State, watershed, and even
site-specific basis.
Table III-4 provides annualized cost estimates from increased mitigation requirements nationwide, based
on a twenty-year timeframe from 2023 to 2042. Under the secondary baseline of the 2020 NWPR,
annualized mitigation costs range from $176 million to $390 million using a 3 percent discount rate and
from $183 million to $405 million using a 7 percent discount rate. As with the permitting cost estimates,
these mitigation cost estimates do not reflect total costs for mitigation under either regulatory regime,
only the incremental difference between the two, calculated by estimating the incremental change in
covered projects multiplied by the Corps" cost estimates for such projects. Accounting for the full
mitigation costs of the CWA 404 program is not necessary for estimating the incremental cost and is
beyond the scope of this economic analysis.
Table 111-4: National annualized mitigation costs from increases in mitigation requirements,
relative to the secondary baseline of the 2020 NWPR (millions 2021$)
Estimated Average
Estimated Increase in Mitigation Costs (Millions 2021$)1,2
Unit
Annual Mitigation
3% Discount Rate
7% Discount Rate
Change1,3
Low
High
Low
High
Acres
1,402.9
$97.1
$207.0
$100.9
$215.1
LF
233,832
$78.7
$183.3
$81.7
$190.4
Total
$175.8
$390.3
$182.6
$405.5
1 Reflects average annual mitigation change in 49 States (excludes Hawaii and District of Columbia).
2 Mitigation costs are calculated by multiplying the Corps' State-level costs for each mitigation acre or linear foot (low and
high estimates) by the expected increase in average annual mitigation requirements and annualizing the values over the
2023-2042 analysis period.
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Table 111-4: National annualized mitigation costs from increases in mitigation requirements,
relative to the secondary baseline of the 2020 NWPR (millions 2021$)
Estimated Average
Estimated Increase in Mitigation Costs (Millions 2021$)1,2
Unit
Annual Mitigation
3% Discount Rate
7% Discount Rate
Change1,3
Low
High
Low
High
3 Estimated average annual mitigation increases (both permanent and temporary) based on permits issued in years 2010-
2019 with mitigation requirements on waterways that became no longer jurisdictional under the 2020 NWPR, excluding
permits issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance
ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or temporary
losses of ecosystem services. The increase in mitigation requirements includes permanent and temporary impacts because
throughout the analysis period, permittees will incur costs for mitigation of both permanent and temporary impacts (i.e., no
5-year lag for temporary impacts in mitigation cost estimates).
Table III-5 provides total annualized section 404 program costs resulting from the final rule, or the sum of
permit and mitigation costs, based on a twenty-year timeframe from 2023 to 2042. Relative to the
secondary baseline of the 2020 NWPR, total national annualized costs range from $217 million to $733
million using a 3 percent discount rate and from $337 million to $762 million using a 7 percent discount
rate. These estimates are subject to the uncertainty discussed in Section III.C.3. The sources of
uncertainty come from data limitations and as well as parameter uncertainty used as input in this analysis
(e.g., the ratio used for estimating compensatory mitigation and per unit mitigation costs).
Table 111-5: Total national annualized compliance costs, relative to the secondary baseline of the
2020 NWPR (millions 2021$)
Cost Category
3% Discount Rate1
7% Discount Rate1
Low
High
Low
High
Mitigation Costs
$175.8
$390.3
$182.6
$405.5
Permit Costs
$41.7
$136.2
$43.3
$141.5
Total
$217.4
$526.5
$225.9
$546.9
1 Total costs annualized over the 2023-2042 analysis period. Reflects expected costs in 49 States (excludes Hawaii and
District of Columbia).
III.C.2.3 Potential Benefits of Increases in Wetland Mitigation Requirements
III.C.2.3.1 Conceptual value diagram of ecosystem service benefits
Figure III-2 provides a conceptual value diagram of how increased mitigation requirements resulting
from the final rule, on the left side of the diagram, can generate public ecosystem service benefits derived
from increased wetlands and streams, shown on the right.
Wetlands provide a wide range of ecosystem services that are directly used or appreciated by people,
including regulating, provisioning, cultural, and supporting ecosystem services (e.g., Brander, Brauer, et
al., 2012; Brander, Wagtendonk, et al., 2012; Chaikumbung et al., 2016; De Groot et al., 2018;
Ghermandi et al., 2010).
• Regulating services include flood protection (Ameli et al., 2019; Evenson et al., 2018; Lawrence
et al., 2019; Martinez-Martinez et al., 2014; Tang et al., 2020; Taylor et al., 2022; Watson, 2016;
Wu et al., 2008), water purification (Ewel, 1997; Ghermandi et al., 2010), erosion
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control/sediment retention (Hopkins et al., 2018; Richardson et al., 2011), groundwater recharge
(Cowdery et al., 2019; Harvey et al., 2004; Williams et al., 2015), and carbon sequestration (Nag
et al., 2017; Nahlik et al., 2016; Mitsch et al., 2013; Tangen et al., 2020). Some of these services
have been monetarily valued. See Lawrence et al. (2019) and Watson (2016) for examples of
monetized flood protection benefits via avoided property damages. Additionally, see Hopkins et
al. (2018) for an example of monetized sediment-bound nitrogen retention benefits.
Provisioning services relate to the food, water, and other resources provided by wetlands that are
consumed. These services include the maintenance of fisheries and wildlife for consumption (and
surface and groundwater supply).
Cultural services include all non-material benefits obtained from ecosystems and can include
recreational, educational, and spiritual benefits; preservation values (bequest, existence); and
aesthetic beauty.
Supporting services are necessary for the production of ecosystem services and include nutrient
cycling and soil formation.
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Figure 111-2: Conceptual value diagram of public ecosystem service values from increased mitigation requirements under the final rule
a Dashed lines indicate that there are multiple linkages from "valued ecosystem services and environmental conditions" to "benefit-relevant indicators" and from "benefit-relevant indicators" to
"measurable values and benefits."
b Per household willingness to pay (WTP) for wetland and stream preservation reflects the total amount that a household would be willing to voluntarily pay (their total value) for all improvements that
they understand to be caused by a given increase in wetland a rea/miles of streams, rather than go without those improvements. This is the conceptually correct measure of economic values for
households. This total value, in theory, includes all other values that households realize from wetlands and streams, including recreational benefits, flood risk reduction, existence value of wildlife
community, and etc. The extent to which per household WTP values include all ecosystem services partly depends on how ecosystem services associated with wetlands/streams were described to
respondents in the stated preference studies included in the meta-data.
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III.C.2.3.2 Estimated ecosystem service benefits of increased mitigation requirements
The analysis of the benefits of increased wetland mitigation requirements resulting from the final rule
follows the same general approach the agencies used in the 2020 NWPR analysis (U.S. EPA and Army,
2020a). This approach updates the meta-analysis of wetland valuation studies that provide data on the
public's WTP for wetland preservation developed for the proposed rule analysis (U.S. EPA and Army,
2021). The benefit transfer in the proposed rule analysis (U.S. EPA and Army, 2021) relied on
"freshwater only" meta-regression models (MRMs) after Moeltner et al. (2019) determined that pooling
saltwater and freshwater observations led to a suboptimal performance relative to the "freshwater only"
model.
To improve benefit transfer performance for the final rule, including overall accuracy and model
predictions for larger baseline wetland areas, the agencies augmented the meta-data for this economic
analysis to include 11 additional saltwater and freshwater wetland valuation studies from the U.S. and
Canada. The revised meta-data includes 52 observations—an 85.7 percent increase from the 28-
observation meta-data used for the proposal (U.S. EPA and Army, 2021).65 Using the augmented meta-
data from both freshwater and saltwater studies, the agencies used a stochastic search variable selection
(SSVS) procedure and re-estimated the MRM
in a Bayesian framework following Moeltner et al., 2019. Results from the SSVS algorithm indicated
freshwater and saltwater contexts to pool well across 5 out of 10 identified interaction dimensions (see
Table B-3 of Appendix B) implying that saltwater valuation studies may lend useful information in
estimating WTP for freshwater wetlands. In particular, information from saltwater studies may be helpful
in estimating the effect of baseline wetland areas and local wetlands on WTP for wetland preservation.
Because the output from the SSVS procedure generated a tighter distribution of WTP values due to the
increased sample size, the agencies used the pooled MRM (hereafter referred to as the "Pooled Model")
in the benefit transfer application for the final rule, rather than the freshwater only model (hereafter
"Freshwater Model").66 Appendix B provides additional detail on the meta-data and model estimation.
Second, following recommendations of the External Environmental Economics Advisory Committee (E-
EEAC) (Keiser, 2020), the agencies further refined the benefit transfer approach used in the Proposal EA
(for detail see Appendix H in U.S. EPA and Army, 2021). Specifically, the agencies used a radius-based
approach to estimate annual WTP values for avoiding wetland losses due to increased mitigation
requirements under final rule compared to the secondary baseline of the 2020 NWPR. This approach
relies on specific radial distances from the county centroid to define the extent of the market in benefit
transfer. To generate a range of estimates of benefits, the agencies used 50-, 100- and 200-mile radii
around county centroids. The buffer sizes are based only on U.S. studies in the meta-data which valued
wetland impacts, whether freshwater or saltwater wetlands. The one national study, Petrolia et al (2014),
65 Original studies included in the meta-data provide the total WTP value of wetland preservation and implicitly account for a
range of ecosystem services provided by wetlands. However, not all studies specifically mentioned different ecosystem
services in the survey instruments. For example, 83 percent (15 studies) valued flood protection, 56 percent (10 studies)
valued water purification, and only 22 percent (4 studies) valued carbon sequestration.
66 The agencies compared household WTP predictions between the two MRMs at the boundaries of the 95% highest density
posterior intervals (HDPI) for all combinations of forested and local wetland acres. Household WTP predictions using the
Pooled Model had a smaller range compared to the Freshwater Model.
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was not considered for the distance measurements that inform the chosen buffer sizes. For each study,
EPA first calculated the average within-study distance to the nearest and furthest wetlands for households
in the study, weighting the distance from the centroid of the census unit to the nearest or furthest wetland
by the population in each census unit. The census block group was the census unit used for most studies.
The agencies used census tracts for some studies that surveyed respondents over a large geographic
area.67
The 50-mile buffer size is based on the average population-weighted distance to the nearest wetland,
based on a U.S. study-weighted average (55 miles).68 The 100-mile buffer is based on the average
population-weighted distance to the nearest wetland, based on a study-weighted average (104 miles) of
only the 11 non-local U.S. studies. The 200-mile buffer is based on the average population-weighted
distance to the furthest wetland, based on a study-weighted average (194 miles) of only the 11 non-local
U.S. studies. The agencies also estimated benefits assuming that the market extent is limited to the State
boundaries.
The radius-based approach has several advantages over a State-specific approach, including the capacity
to value wetland impacts which may extend outside of administrative (e.g., State) boundaries, and better
representing local resource and demographic characteristics.69 Specifically, the estimated WTP for
avoided wetland losses accounts for county-specific wetland characteristics (i.e., baseline forested and
non-forested wetland areas), and different values for local and non-local wetland areas. The estimated
MRM used for benefits estimation indicates larger values generated for forested and local wetlands, as
shown by positive and significant coefficients on "forested" and "local" variables (see Appendix B for
detail). Accordingly, the agencies separated each county's baseline wetland acreage using the wetland
data layer from the Hydrologic and Water Quality System (HAWQS) (see Appendix E for baseline
wetland acreage by State and wetland type70) into four primary prediction wetland categories based on the
"local" and "forested" status of baseline wetland acres and the expected change under the final rule
relative to the baseline. Because the value of wetland preservation is affected by wetland type and
wetland proximity to the affected population, the agencies accounted for these factors in benefits analysis.
The agencies defined local wetlands based on the maximum average distance (30 miles) between census
block groups within the sampled area of studies valuing local wetlands and the affected resources. The
fraction of local wetlands is based on the acreage of wetlands within a 30-mile radius of county centroids
relative to the acreage within the entire buffer.71 To estimate per-household WTP values for avoiding
wetland losses for households in a given county, the agencies first obtained four separate WTP estimates
for each county, one for the wetland acreage associated with each combination of "local/non-local" and
"forested/not-forested." These values were then aggregated to estimate total WTP per household per year
67 The studies that used census tracts for measuring the distances between households and wetlands were: Eastern Research
Group (2016); Petrolia & Kim (2011); Hindsley and Yoskowitz, (2020); Loomis et al. (1991).
68 A single study may contribute multiple observations to the meta-data. The term, 'study-weighted' means that we estimated a
weighted average using the number observations contributed by the study as weights.
69 See Appendix B for more detail on this approach.
70 State-level wetland acreage values are used in the sensitivity analysis presented in Appendix D.
71 The 30-mile radius for local wetlands was based on estimates of the average distance from respondent households to the
nearest wetland from those studies that looked at changes to wetlands for areas that did not extend to State boundaries.
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for the estimated increases in wetland mitigation areas.72 Appendix B presents the detailed methodology
for generating benefit-transfer predictions based on the wetland meta-analysis.
To estimate the stream of future benefits from increases in wetland mitigation requirements in each
county buffer (i.e., 50, 100, and 200 miles), the agencies multiplied the average per-household WTP for
the estimated cumulative change in wetland areas in a given year by the number of households within
each county. Benefits from avoided wetland losses are estimated for all years from 2023 through 2042,
assuming that all benefits from average annual permanent mitigation changes begin accruing in 2023, and
benefits from average annual temporary mitigation changes begin in 2028.73 As noted, the 5-year lag in
benefits from mitigation measures for temporary impacts is based on discussions with the Corps and
accounts for the time required for temporarily impacted areas to return to their original state. Once a
temporarily affected area returns to its original state, mitigation acres for the temporary impacts
represents a net increase in wetland area. The agencies aggregated total discounted WTP values over the
2023 to 2042 period of analysis, using 3 and 7 percent discount rates. For each time period, the total
number of households is adjusted to reflect predicted population growth based on 2021 National
Aeronautics and Space Administration (NASA) Socioeconomic Data and Applications Center (SEDAC)
projections (Hauer et al., 2021).74 The agencies then annualized total WTP values for each county, using
3 percent and 7 percent discount rates, and aggregated county-level benefits to the national level (see
Appendix B for additional detail).75
Table III-6 presents total national annualized benefit estimates, based on annual WTP for wetlands for a
twenty-year timeframe from 2023 to 2042. Using a 3 percent discount rate, estimates range between
$1,402 million and $2,190 million under the baseline of the 2020 NWPR. Using a 7 percent discount rate,
estimates range between $1,206 million and $1,885 million under the baseline of the 2020 NWPR.
72 Aggregating over the four WTP values (i.e., four combinations of "local/non-local" and "forested"/ "non-forested") provides
unbiased estimates WTP for the avoided wetland losses valued by the county residents. As shown in Moeltner et al. (2019),
the Bayesian linear MRM developed for this analysis approximately satisfies the adding-up condition, a desirable theoretical
property.
73 Permanent mitigation changes are based on expected increases in mitigation to address authorized permanent impacts, which
permanently change an affected resource to dry land (e.g., for permanent road construction). Temporary mitigation changes
are based on expected increases in mitigation to address authorized temporary impacts, which includes impacts necessary
for construction activities that do NOT permanently change an affected resource to dry land, such as access fills, dewatering
of construction sites, or temporarily side-casting material from trenching.
74 These projections are based on Shared Socioeconomic Pathway 2 (SSP2) (Hauer et al., 2021). SSP2 is a "middle-of-the-
road" projection, where social, economic, and technological trends do not shift markedly from historical patterns.
Projections used for the proposal were based on data from Woods and Pool. The final analysis uses Hauer et al (2021) in
place of Woods and Pool for reasons of transparency. The code, methodology, and data used in population projection
estimates are all publicly available and easily accessible. Additionally, benefit estimates were compared between models
using both population projection data sources and results were similar.
75 The agencies chose to use counties rather than smaller geographic units such as census tracts or blocks for computational
efficiency. The agencies acknowledge that results would differ based on the geographic unit used but do not believe using
counties rather than smaller units makes a meaningful difference in the final results.
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Table 111-6: Total national annualized benefits, relative to the secondary baseline of the 2020
NWPR (millions 2021$)
Extent of the
market
Number of affected
households in 2019
(millions)1,2
Average household
WTP per 100 acres
(2021$)1'3
Total annualized benefits
(millions 2021$)1,4
3% Discount Rate 7% Discount Rate
50-mile Radius
120.0
$7.59
$1,401.7
$1,205.5
100-mile Radius
120.0
$2.70
$1,601.0
$1,377.2
200-mile Radius
120.0
$1.41
$2,189.8
$1,884.6
State-level
120.0
$1.24
$2,034.5
$1,752.3
1 Based on the number of households in all States excluding Hawaii and the District of Columbia.
2 Number of households is based on 2019 American Community Survey data. The agencies accounted for population growth
and the change in the number of households throughout the 2023-2042 study period using population projections from
Hauer et al. (2021).
3 For buffer-level market extents, benefit estimates are based on a benefit transfer application of the Pooled Model to 50-
mile, 100-mile, and 200-mile buffers of county centroids for all counties in conterminous United States except for Hawaii
and the District of Columbia (see Appendix B for detail). For the state-level market extent, benefit estimates are based on a
benefit transfer application of the Pooled Model to all States except for Hawaii and the District of Columbia (see Appendix D
for detail). The household WTP per 100 acres estimates shown are averages across States or Counties.
4Total benefits are annualized over the 2023-2042 analysis period. Given data limitations, benefits could not be calculated
for Alaska at a level finer than the State (i.e., at a county-equivalent level) for the 50-mile, 100-mile, and 200-mile buffer
market extents. National benefits for the three buffer market extents include estimated benefits for Alaska using a State-
specific benefit transfer.
This analysis presents the average, incremental, wetland benefit values presented in Table III-6 based on a
meta-analysis of total wetland valuation studies (Appendix B.l). The total valuations should encompass
all of the benefits that people derive from wetlands, from recreation to provisioning services to flood-risk
mitigation benefits, and, therefore, represent the incremental value to society from a given wetland area.
As Appendix Table B-l indicates, household WTP for wetland preservation varies considerably—from as
much as $8500 per 100 acres in one case (Johnston et al. 2002) to less than $1 per 100 acres (Blomquist
& Whitehead 1998; Hindsley & Yoskowitz 2020; Loomis et al. 1991; Pattison et al. 2011; Poor 1999;
Rudd et al. 2016; Whitehead & Blomquist 1991; Petrolia et al. 2014; Petrolia and Kim 2011). With the
exception of the Johnston et al. (2002) and Makriyannis et al. (2018) studies, all of the studies included in
Table B-l report WTP values < $1 per acre.
The average household WTP values used in this analysis reflect this WTP literature. However, the
specifics of survey instruments and methods may influence the elicitation of these values. Because
survey respondents are asked to value goods and services that are not traded directly in the market, their
elicited responses may suffer from many deficiencies that are noted in the economics literature.
Specifically for this rule, household respondents may not know the full extent of the ecosystem services
that they currently derive from wetlands. In cases where the survey instruments do not describe all of a
wctland's attributes, the valuations provided by households may be lower than if such information was
provided and understood.
Considering individual ecosystem service benefits provides some perspective on these wetland WTP
estimates. As an example, a recent analysis of National Flood Insurance Program (NFIP) payments from
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2001-2016 found that each acre of wetland loss increases NFIP claims by over $700 per year on average,
and this annual increase may exceed $3,000 per acre in developed watersheds (Taylor and Druckenmiller
2022). Many of the largest wetland area changes identified in this analysis occur in developed areas
(Figure III-l). Adapting these values for use in this benefit-cost analysis would require understanding the
extent to which individuals would pay to avoid these costs, which are currently borne by taxpayers.
Taylor and Druckenmiller (2022) note that these costs can be characterized as a transfer—not an
incremental cost or benefit. The fact that individuals do not generally bear NFIP costs may partially
explain the discrepancy between the household ex ante WTP values and these ex post revealed damages.
These revealed values for a single wetland ecosystem service, nevertheless, suggest that the wetland
benefit values presented in this analysis (based on household WTP) may potentially underestimate the
true societal benefit from wetland preservation by several orders of magnitude. In addition to flood-risk
mitigation, a given acre of wetland also provides other ecosystem services with values that may be
additive, including incremental water quality improvements and biomass production that sustains
economically valuable fisheries.
IH.C.2.4 Potential Impacts to States
Under the 2020 NWPR, States may have expanded existing programs or initiated new programs to protect
waters that became non-jurisdictional. With the final rule's return to the status quo, States may choose to
continue these program initiations or extensions, or they may choose to return to their procedures prior to
the 2020 NWPR. Costs associated with continued program initiations or extensions are not attributable to
the final rule since the process began as a response to the 2020 NWPR. However, as discussed in Section
III.C.2.2, the agencies anticipate additional section 404 permit volume under the final rule relative to the
secondary baseline of the 2020 NWPR, which means that States will either complete additional section
401 reviews for these permits or waive review. Under the secondary baseline of the 2020 NWPR, the
additional section 404 permit volume under the final rule will likely increase their section 401 review
costs.
The agencies estimated a range of values for cost per additional section 401 review. Values were gathered
from case studies conducted by the National Association of Wetland Managers (NAWM) (formerly the
Association of State Wetland Managers (ASWM)). NAWM surveyed 11 States76 and asked them for
estimates regarding the number of full-time equivalents (FTEs) required for Clean Water Act section 401
reviews. The agencies divided FTE estimates by the number of average annual section 404 permits for the
State (based on ORM2 data from 2010 to 2019), which yielded a range of estimates for FTEs required per
permit. NAWM asked States for FTE estimates for all section 401 reviews of federal permits, including
those issued by the Federal Energy Regulatory Commission, those issued under the Rivers and Harbors
Act (RHA) sections 9 and 10, and those issued by the Nuclear Regulatory Commission in addition to
section 404 permits. Most permits that States review are section 404 permits, although they are typically
not the most complex. For example, according to the NAWM case studies, 99 percent and 90 percent of
Clean Water Act section 401 certifications are for section 404 permits in Louisiana and North Carolina,
respectively (ASWM, 2011). Because most permits reviewed are Clean Water Act section 404 permits
76NAWM case studies on resources devoted to section 401 reviews include Delaware, Georgia, Idaho, Kentucky, Louisiana,
Missouri, North Carolina, South Carolina, Tennessee, Texas, and Wisconsin (ASWM, 2011).
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and there is no additional information for how many FTEs each State requires to only review section 404
permits, the agencies assumed that FTE estimates from NAWM are for section 404 permits only.
Dividing FTE estimates by the number of section 404 permits for the NAWM case study States and
multiplying by the average State employee salary yielded a range of section 401 review costs per permit
ranging between $79-$2,582, with an average review cost per permit of $1,046 (2021$). The agencies
multiplied these low, mean, and high values by the number of additional single-water section 404 permits
affecting waters that became no longer jurisdictional under the 2020 NWPR but would be subject to
section 401 review under the final rule.
Table III-7 provides estimated annualized State costs from increases in section 401 reviews, based on the
secondary baseline of the 2020 NWPR and a twenty-year analysis period from 2023 to 2042.
Table 111-7: Estimated annualized State costs from increases in section 401 reviews, relative to the
secondary baseline of the 2020 NWPR (million 2021$)
3% Discount Rate1
7% Discount Rate1
Low
Mid
High
Low
Mid
High
$0.6
LO
00
¦uy
$21.0
$0.7
00
00
¦uy
$21.8
1 State costs associated with increased volume of section 401 reviews are annualized over the 2023-2042 analysis period.
Includes anticipated costs for 49 States (excludes Hawaii and District of Columbia).
III.C.2.5 Benefit Cost Comparison
As shown in Table III-8, the benefits range from $1,402 million to $2,190 million, while social costs
range from $218 million to $547 million, both at a 3 percent discount rate. However, the agencies were
only able to estimate the benefits associated with impacted acreage, including wetland acres and linear
feet impacts converted to acres (see Section III.C.2.1), subject to compensatory mitigation and were
unable to estimate benefits associated with the avoidance and minimization aspects of the mitigation
sequence. For many projects, the avoidance and minimization steps that permittees are required to take
are all that is needed to prevent impacts to permitted waters. Furthermore, these benefit estimates do not
fully account for all potential benefit categories, and they do not include the changes to downstream water
quality and flood avoidance outside of the vicinity of wetlands. The agencies also did not estimate
benefits associated with other Clean Water Act programs, though they are not expected to be anywhere
near as substantial as the benefits from the section 404 permitting program. The total social cost estimates
include direct compliance costs from increases in mitigation requirements, changes in expected number of
permits required, and State costs from increases in section 401 reviews. Likewise, the agencies" estimate
of social costs does not include costs under other Clean Water Act programs (e.g., section 311 and 402)
though these are not expected to be anywhere near as substantial as the costs for the section 404
permitting program. Social cost totals also do not include costs associated with avoidance and
minimization measures. The placeholders, A and B, are included in the totals to reflect these categories of
costs and benefits, respectively, that the agencies did not monetize.
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Table 111-8: Total national annualized benefits and costs, relative to the secondary baseline of the
2020 NWPR (millions 2021$)
Benefit Cost Category
3% Discount Rate1'2'3'4'5
Low6
High7
7% Discount Rate1'2'3'4'5
Low6
High7
Mitigation costs
$175.8
$390.3
$182.6
$405.5
Permit costs
$41.7
$136.2
$43.3
$141.5
State costs from increases in
section 401 reviews
$0.6
$21.0
$0.7
$21.8
Total Social Costs
$218.0 +A
$547.5+A
$226.6 +A
$568.7 +A
Total Benefits
$1,401.7+ B
$2,189.8+ B
$1,205.5 + B
$1,884.6+ B
1 Total benefits and costs annualized over the 2023-2042 analysis period.
2 Reflects estimated benefits and costs for 49 States (excludes Hawaii and District of Columbia).
3 The benefits and costs for the final rule are considerably higher than the estimates in the proposal economic analysis. This is
due in large part to the inclusion of cost and benefit estimates for all States. In particular the addition of Florida had a
considerable effect on total benefits. Florida has 36% of the total average annual increase in required mitigation acres each
year in the country. Florida has an estimated 7.7 million affected households, the third highest State behind California and
Texas. Florida counties also have some of the highest estimates of household willingness-to-pay for avoided wetland losses.
The Florida counties of Duval, Clay, and Orange have HH WTP per 100 acres above the 90th percentile of the WTP for avoiding
local forested wetland losses, at $49.44, $51.07, and $50.12, respectively. Also of note is the large number of households in
Orange County and Duval County. The former has 544,593 projected households (ranked 35th/3,062). The latter has 389,893
projected households (ranked 53rd/3,062).
4The "A" represents unquantified costs such as those for avoidance and minimization efforts required under Clean Water Act
section 404 permits and those costs that may occur under the Clean Water Act section 311, 401, and 402 programs.
5 The "B" represents unquantified benefits such as those for wetlands and streams protected through avoidance and
minimization efforts required under Clean Water Act section 404 permits, carbon sequestration benefits, and those benefits
that may occur under the Clean Water Act section 311, 401 and 402 programs.
How benefit estimates are based on the 50-mile buffer to define the market extent.
7 High benefit estimates are based on the 200-mile buffer to define the market extent.
Note that other than discount rates, there are different drivers for the ranges for benefits and costs and it is
not necessarily the case that low costs apply to low benefits and high costs to high benefits. Relative to
the secondary baseline of the 2020 NWPR, the low estimates for benefits and costs result in net benefits
of $1,184 million at a 3 percent discount rate. Similarly, the high estimates for benefits and costs result in
net benefits of $1,642 million at a 3 percent discount rate. Different factors lead to the ranges for costs
and benefits, such that low/high benefits are not necessarily correlated with low/high costs. If
uncorrelated, net benefits could thus range from $854 million to $1,972 million.77 The unquantified costs
(A) and unquantified benefits (B) would also contribute B-A to any estimate of net benefits, though this
unquantified estimate is not expected to be substantially negative, that is, enough to negate the positive
net benefits. Thus, the agencies can reasonably conclude even under the secondary baseline that the
benefits would justify the costs.
Both benefit and cost estimates are subject to uncertainty. III.C.3 below documents data limitations and
potential sources of uncertainty in the benefit cost analysis (e.g., due to data gaps or necessary
methodological simplifications). To assess sensitivity of benefit and cost estimates to variability of
underlying parameters, the agencies developed a range of benefit and cost estimates based on alternative
77 Low and high estimates of benefits and costs are driven by different factors. Low and high benefit estimates are based on the
assumed extent of the market (i.e., 50-mile buffer vs. 100-mile buffer vs. 200-mile buffer), while low and high costs
estimates are based on the range of per acre mitigation costs.
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assumptions. For costs, the range is based on the low and high mitigation cost values provided by the
Corps. For benefits, low and high estimates are based on households' values for wetlands extending up to
50-, 100-, and 200-miles from county centroids. Appendix B provides additional detail on benefit transfer
methodology. Appendix D presents sensitivity benefit estimates using (1) a State-level application of the
Pooled Model, (2) different payment assumptions (i.e.. in the form of a lumpsum or annual payments), (3)
and a State-level application of the Freshwater Model.
III.C.3 Uncertainty and Limitations for Assessing Potential Effects on Clean Water Act
Section 404 Program
Certain categories of waters are not categorically jurisdictional.78 When a proposed project may impact
such waters, the Corps can assess jurisdictional status via a jurisdictional determination to determine
whether a section 404 permit is required for the project and which affected waters must be covered under
the permit. Because jurisdictional determinations are often required to assess the jurisdictional status of
affected waters, the scope of waters considered to be jurisdictional under different regulatory regimes is
subject to uncertainty. For many of these water features, their jurisdictional status under any regulatory
regime is unknown until a project is considered that might impact the water feature and the property
owner initiates a jurisdictional determination with the Corps, or State permitting authority. For this
analysis, the agencies have relied on jurisdictional determination data organized by Cowardin
classifications.
Although jurisdictional determinations are the first part of the overall Clean Water Act section 404
permitting process, not all property owners who request a jurisdictional determination for water features
on their property proceed with a project requiring a permit. There is an implicit assumption in applying
the jurisdictional probabilities from the AJD data, and the data on the proportion of jurisdictional
determinations that result in AJDs to permit data, that the likelihood of proceeding with a permit does not
vary depending on the type of jurisdictional determination that occurred.
Mitigation credits complicate efforts to quantify the amount of mitigation that would be required under
the final rule. This is because the number of acres or linear feet per credit varies among and within Corps
Districts depending on assessment practices. Converting the number of mitigation credits into a consistent
unit of measure for a national analysis is thus difficult without consulting individual permits. To avoid
conversion errors, the agencies focused on authorized impacts instead of attempting to convert the various
mitigation types into acre and linear feet.
The response of regulated entities to the revised definition of "waters of the United States" under the
secondary baseline of the 2020 NWPR is also unclear. For instance, regulated entities in some cases may
have continued using a protocol that avoids and minimizes impacts to non-jurisdictional waters—
regardless of State-level regulations—for example, to standardize their protocol across States. Also, the
response of regulated entities in States with less stringent requirements would likely depend on the type
of work, the stage of work (e.g., planning, active, completed, an on-going basis), local permitting
requirements, and the stringency of permit requirements that the entity faces in other areas.
78 Waters that are not categorically jurisdictional include non-navigable tributaries that are not relatively permanent, wetlands
adjacent to non-navigable tributaries that are not relatively permanent, and wetlands adjacent to but that do not directly abut
a relatively permanent non-navigable tributary.
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The 2020 NWPR's effect on permit costs is also unclear. It is expected that there was a reduced permit
burden for projects that did not need a permit under the 2020 NWPR but would have under the pre-2015
regulatory practice. The agencies also anticipate that under the 2020 NWPR, some permittees were able
to receive a general rather than a more expensive individual permit. However, permit costs depend on
many factors, including existing State, Tribal, and local requirements, which may not be as protective as
the section 404 permitting process under the Rapanos Guidance but still required some protections for
water features that became non-jurisdictional under the 2020 NWPR. Project owners still were required to
determine the jurisdiction of water features on their property, and there is evidence that the 2020 NWPR
resulted in an increase in the number of AJDs, relative to preliminary jurisdictional determination (PJDs)
or no JDs, requested by applicants who wanted confirmation that their impacted water features were
excluded. This shift towards more AJDs can increase costs and construction delays, all else equal.
However, since the 2020 NWPR was implemented for just slightly more than a year, it is difficult to
know if the shift to more AJDs would have been permanent or temporary.
Additionally, in keeping with the previous 2020 NWPR analyses, the agencies used a range of cost
estimates for section 404 individual and general permits from the most recent Corps analysis performed in
2000 (as described in U.S. EPA and Army, 2015). These Corps permitting costs are considered to be
reasonable estimates of the typical costs incurred by the majority of general and individual permittees.
There are additional permit cost estimates from Sunding and Zilberman (2002). The agencies consider the
Sunding and Zilberman (2002) estimates to be representative of larger and more complex projects that
often impact multiple waters, rather than the typical project that only impacts single water features.
Permits are still likely to be needed for large projects impacting multiple waters, even if one or more of
those waters would have been non-jurisdictional under the 2020 NWPR. As a result, the agencies chose to
use the Corps permitting costs rather than those from Sunding and Zilberman (2002) to estimate national
permit costs for the final rule. However, for comparative purposes, the agencies calculated permit costs
for the final rule using the Sunding and Zilberman (2002) estimates, which are presented in Appendix H.
The estimated increases in mitigation requirements are also subject to uncertainty, which affects both
estimated mitigation costs and estimated benefits:
• First, the agencies converted linear feet impacts to acres by multiplying linear feet by an average total
buffer width of 50 feet (25 feet on each side of the stream) and converting square feet to acres, but the
actual width for linear feet mitigation requirements may differ.
• Second, the ORM2 database that the agencies used to estimate increases in mitigation requirements
may have some data entry errors. For example, ORM2 entries for 3,007 single-water permits issued
between 2010 and 2019 did not list any authorized impacts but were flagged as requiring mitigation.
• Third, the agencies estimated the increase in mitigation requirements using the proportion of waters
from different Cowardin categories that are covered by section 404 permits under the Rapanos
Guidance and under the 2020 NWPR, which were based on jurisdictional determination data. Since
the 2020 NWPR proportions were based on a much shorter time span than the Rapanos proportions,
the change in the proportions between Rapanos and the 2020 NWPR are subject to uncertainty.
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When quantifying mitigation costs, the agencies accounted for uncertainty in State-level per acre and
linear foot costs by using the Corps' low and high estimates. However, for reasons presented in Section
III.C.2.2, the Corps' mitigation costs estimates may be an overestimate (U.S. EPA and Army, 2015).
In addition to typical limitations and uncertainties inherent in benefit transfer (Johnston and Bauer, 2020),
key limitations in the agencies' benefit analysis include:
• Extent of the market assumptions. Benefit estimates are highly sensitive to the assumed market extent
(Johnston and Bauer, 2020). As discussed in Section III.C.2.3, the agencies relied on the information
from the meta-data to define the market extent for benefits analysis (see Appendix B for details).
Because meta-data studies were not designed to test the appropriate market extent for WTP for
wetland preservation, they can only serve as examples of what the market extent may be. In addition,
this analysis assumed a homogenous market extent across all counties. Because the true market extent
is unknown and may differ from the values selected for the benefit transfer application, the estimated
benefits could be over- or under-estimated.
• Meta-data limitations. The majority of wetland studies included in the meta-data elicited values for
wetlands in rural areas (see Appendix B for detail). However, wetland values are likely to be higher
for urban wetlands compared to rural wetlands (Keiser, 2020). Because development and the
associated wetland loss typically occur in urban or suburban areas, the estimated WTP for avoiding
wetland losses near population centers may be biased downward. This limitation has been somewhat
ameliorated with the addition of studies that value wetlands in an urban setting (e.g., Lantz et al.,
2013; Nijhum, 2020).
• The extent of local wetland impacts. The estimated WTP for avoiding losses of local wetlands are
substantially higher compared to non-local wetlands (see Table III-9 for a range of estimated WTP for
avoiding losses of 100 acres by wetland type). As noted in Section III.C.2.3, the agencies relied on
the average distances between the sampled households and the wetlands valued in the meta-data
studies conducted at a sub-State level to define local impacts (i.e., wetlands located within a 30-mile
radius from the county centroid). Because the true extent of local effects is unknown and may differ
from the selected 30-mile radius, the estimated benefits of avoided local wetland losses may be
under- or overstated.
Table 111-9: WTP per 100 acres by wetland type (2021$)
Wetland Type
Minimum
WTP per 10
Mean
D Acres1
Maximum
Local, forested
$1.62
$28.55
$56.35
Local, non-forested
$0.23
$3.07
$6.14
Non-local, forested
$0.07
$1.28
$2.59
Non-local, non-forested
$0.01
$0.15
$0.30
1The WTP values per 100 acres ae based on the estimated minimum, mean, and maximum values
across all counties included in the analysis.
• The affected wetland area that is local and forested within each buffer. The agencies used the
HAWQS wetland data and ORM2 impacts data to identify local, forested, and non-forested wetlands
for each HUC12 within 30-, 50-, 100-, and 200-mile buffers circular buffers from county centroids. In
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calculating local and forested acres for HUC12s that were partially contained within these buffers, the
agencies assumed a homogenous spatial distribution of impacts and baseline wetland acres within
each HUC12 and applied the proportion of the HUC12 overlapping the buffer to the total impacts and
wetland acres for a given HUC12 to estimate local impacts and forested wetland values for each
buffer. The effect of this assumption on the estimated benefits is uncertain due to uncertainty in
geographic distribution of future section 404 projects. Three counties in Florida provide a good
example of the sensitivity of benefit estimates to estimates of local and forested wetland acres that are
protected. The counties of Duval, Clay, and Orange have HH WTP per 100 acres above the 90th
percentile of the WTP for avoiding local forested wetland losses, at $49.44, $51.07, and $50.12,
respectively. Orange County and Duval County have large numbers of households. The former has
544,593 projected households (ranked 35th/3,062). The latter has 389,893 projected households
(ranked 53rd/3,062). A slight increase in the estimates of forested local wetlands that are protected in
these counties would produce a disproportionately large increase in benefits.
• Estimating benefits for the State of Alaska. Given a limited NWI wetland data availability (only 22%
of the State has been mapped) and other differences between Alaska and the conterminous States in
terms of its geographic size and the types of wetlands impacted, the agencies used a State-level
application of the Pooled Model to estimate WTP for avoiding wetland losses in Alaska (see
Appendix C in U.S. EPA and Army, 2021 for detail on the State-level application of MRM). Given
significant data limitations and differences in the baseline wetland area (over 94 million acres) and
other resource characteristics in Alaska, and other resource characteristics compared to the
conterminous States, the estimated benefits for the State of Alaska are uncertain.
The agencies acknowledge that the meta-analysis benefit transfer approach does not account for all
potential benefits associated with wetland and stream protection. Beyond limiting the household WTP
estimates to just those wetland changes within 50-,100-, or 200- mile buffers or state boundaries,79 there
are additional ways that benefits are likely being underestimated. Although the estimated change in
wetlands acreage is relatively small and dispersed across the landscape, in the aggregate and over time
these changes have potential effects on larger water resources many miles downstream. There are other
categories of benefits not likely fully captured by the studies in the meta-analysis. For example, the
benefits of wetland carbon sequestration are not included. Wetlands sequester carbon from the
atmosphere through plant photosynthesis and by trapping sediment from runoff. The carbon is
sequestered in living vegetation as well as in litter, peats, organic soils, and sediments (e.g., Nag et al.,
2017; Nahlik et al., 2016; Tangen et al., 2020). Finally, the benefit estimates do not account for the ability
of wetlands to help allay the future effects of climate change. Future severe weather events are expected
to increase in duration, frequency, and intensity, and the ability of wetlands to reduce soil erosion and
retain flood waters will only become more valuable when these events occur (e.g., Bullock et al., 2003;
Lawrence et al., 2019; Tang et al., 2020; Watson, 2016; Williams et al., 2015). The agencies expect that
these unquantified and unmonetized benefits have the potential to be substantial.
79 Appendix D presents alternative benefit estimates calculated at the State level (i.e., household WTP is based on wetland
changes within State boundaries).
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III.D Other Clean Water Act Sections
III.D.l Clean Water Act Section 303: Water Quality Standards and Total Maximum Daily
Loads
Clean Water Act section 303 includes development of State or Tribal water quality standards, assessment
of water quality, and development of total maximum daily loads (TMDLs) for waters that are determined
to not meet applicable water quality standards.
States and Tribes typically develop water quality standards for general categories of waters, including
wetlands, in addition to creating site-specific standards and general standards that can apply more
broadly.
State water quality standards for waters jurisdictional under the Clean Water Act are required to be
consistent with the Clean Water Act, for example in terms of designating uses, criteria to protect those
uses, and anti-degradation policies. If a feature is not jurisdictional under the Clean Water Act, States and
authorized Tribes are not required to develop water quality standards for it under the Clean Water Act.
There is also no federal requirement under Clean Water Act section 303(d) for States to assess "non-
jurisdictional" waterbodies. Therefore, a change in the scope of Clean Water Act jurisdiction has the
potential to increase the number of waters that are assessed or otherwise identified as impaired pursuant to
Clean Water Act section 303(d). As a result of the final rule relative to the secondary baseline of the 2020
NWPR, States would be required to develop TMDL restoration plans for waters that were impaired but
were not so identified and not jurisdictional under the 2020 NWPR.
Relative to the secondary baseline of the 2020 NWPR, the final rule may affect the number of
waterbodies added to the impaired waters list (and subsequent TMDL development). States typically have
a set budget for water quality monitoring and assessment and monitor only a subset of waters in any year
since water quality sampling needs are often higher than budgets allow. The final rule may increase the
number of waters that States choose to monitor. Under the final rule relative to the secondary baseline of
the 2020 NWPR, States may need to reallocate monitoring resources to newly jurisdictional waters to
collect data in waters that meet the new definition of "tributary," the definition of "lakes and ponds, and
impoundments of jurisdictional waters," and the revised definition of "adjacent wetlands."
The development and revision of water quality standards is an ongoing process that operates independent
of changes to the definition of "waters of the United States"— absent Clean Water Act jurisdiction, States
and Tribes can still choose to regulate waters irrespective of federal mandates and can apply water quality
standards to non-federal waters. Therefore, some States continued implementing and/or developing
standards for certain categories of waters (e.g., ephemeral features) that were non-jurisdictional under the
2020 NWPR. The agencies have collected information relating to these changes in the regulatory
compendium. The agencies were unable to project additional costs related to development or revision of
water quality standards as a consequence of the final rule relative to the secondary baseline of the 2020
NWPR.
Changes in Clean Water Act jurisdiction may have in some circumstances led to requests for changes in
TMDL waste load allocations (WLAs) for point sources and load allocations (LAs) for nonpoint sources
and related margins of safety. Under the 2020 NWPR, TMDL revisions could have shifted additional
pollutant reduction responsibility to those sources discharging to jurisdictional waters downstream. Given
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IV Environmental Justice Analysis
that there are currently more than 73,000 completed TMDLs nationwide, revising even a small percentage
of them may require significant resources to complete (U.S. EPA and Army, 2018). However, the
agencies are unaware of any TMDL revisions that occurred as a result of the 2020 NWPR.
III.D.2 Clean Water Act Section 401: State and Tribal Roles
Under section 401 of the Clean Water Act, States, authorized Tribes, and interstate agencies have the
authority to review, certify, or deny any federal permits or licenses that may result in a discharge to
"waters of the United States" within their borders, including wetlands. States, authorized Tribes, and
interstate agencies make their decisions to deny, certify, or condition federal permits or licenses primarily
by ensuring the activity will comply with applicable water quality standards, effluent limitation
guidelines, new source performance standards, toxic pollutants restrictions, and other appropriate water
quality requirements of State or Tribal law. Clean Water Act section 401 certification is commonly
applied to Clean Water Act section 404 permits and RHA section 10 permits issued by the Corps, Clean
Water Act section 402 permits in the States where EPA issues NPDES permits, and Federal Energy
Regulatory Commission licenses for non-federal hydroelectric dams. States, authorized Tribes, and
interstate agencies may choose to waive their Clean Water Act section 401 certification authority, either
explicitly or through the passage of time (up to one year as mandated by section 401(a)(1)).
Under the final rule, the agencies estimate that the number of Clean Water Act section 404 permits will
likely increase since non-adjacent wetlands, ephemeral features, certain ditches, and certain lakes and
ponds will become jurisdictional based on a significant nexus analysis, whereas some of these waters
would have been found to be non-jurisdictional under the 2020 NWPR. As noted before, an increase in
section 404 permits could result in increased costs to States and authorized Tribes by increasing the
number of section 401 reviews and associated staff time. The vast majority of States have been authorized
to administer section 402 of the Clean Water Act, and any cost changes that would result from the final
rule due to Clean Water Act section 402 permitting are discussed in Section III.B. States that have not
been authorized to administer all or some of the Clean Water Act section 402 program and Tribes
authorized to administer Clean Water Act section 401 would continue to provide Clean Water Act section
401 certifications for EPA-issued section 402 permits. An increase in EPA-issued section 402 permits
could result in increased costs to States and authorized Tribes by increasing the number of section 401
reviews and associated staff time.
For waters whose jurisdictional status would change under the final rule relative to the secondary baseline
of the 2020 NWPR, federal license or permit applicants must obtain a section 401 certification or waiver
for the related federal license or permit in those waters. States and authorized Tribes can grant or deny
certification or can place additional conditions on these federally-issued permits or licenses through their
Clean Water Act section 401 authority, potentially enhancing environmental benefits and increasing costs
to permittees.
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IV. Environmental Justice Analysis
Executive Order (E.O.) 12898 (59 FR 7629, February 11, 1994) requires that, to the greatest extent
practicable and permitted by law, each federal agency must make the achievement of environmental
justice (EJ) part of its mission. E.O. 12898 provides that each federal agency must conduct its programs,
policies, and activities that substantially affect human health or the environment in a manner that ensures
such programs, policies, and activities do not have the effect of (1) excluding persons (including
populations) from participation in, or (2) denying persons (including populations) the benefits of, or (3)
subjecting persons (including populations) to discrimination under such programs, policies, and activities
because of their race, color, or national origin.
Executive Order 14008 (86 FR 7619, January 27, 2021) expands on the policy objectives established in
Executive Order 12898 and directs federal agencies to develop programs, policies, and activities to
address the disproportionately high and adverse human health, environmental, climate-related and other
cumulative impacts on disadvantaged, historically marginalized, and overburdened communities, as well
as the accompanying economic challenges of such impacts.
Executive Order 13563 (76 FR 3821, January 18, 2021) also indicates that federal agencies may consider
equity, human dignity, fairness, and distributional considerations, where appropriate and permitted by
law.
EPA also published "Technical Guidance for Assessing Environmental Justice in Regulatory Analysis"
(U.S. EPA, 2016) to provide recommendations that encourage analysts to conduct the highest quality
analysis feasible, recognizing that data limitations, time and resource constraints, and analytic challenges
will vary by media and circumstance.
The pre-2015 regulatory regime is the baseline used to formally meet the directives under E.O.s 12898
and 14008. This environmental justice analysis was conducted to provide the public with additional
information on the potential implications of the final rule, based on available data.80
IV.A Screening Analysis of the Final Rule using the Secondary Baseline of the
2020 NWPR
For the final rule, the agencies examined whether the change in benefits from the reinstatement of the pre-
2015 regime may be differentially distributed among communities with environmental justice concerns81
in the affected areas when compared to the secondary baseline of the 2020 NWPR.82 In determining the
potential for EJ concerns in affected areas, the agencies considered the following factors in this analysis:
population characteristics, proximity to effects of the final rule, and indicators of vulnerability to
80 It should be noted that the baseline (pre-2015 regulatory regime) could have pre-existing impacts for populations of concern
but this analysis focuses on the impacts of changes due to the final rule for populations of concern.
81 EPA's Technical Guidance for Assessing Environmental Justice in Regulatory Action (U.S. EPA, 2016) defines population
groups of concern as those identified under E.O. 12898 (minority, low-income, and indigenous populations) as well as sub-
populations that may be at greater risk for experiencing adverse effects, including those that rely on fish/wildlife for
subsistence, age groups, and gender groups (p. 6).
82 Section V includes a qualitative discussion of how the changes in benefits may affect Tribal areas across the United States.
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IV Environmental Justice Analysis
environmental risk or environmental hazard. The agencies assessed the demographic characteristics of the
populations affected by the final rule. The analysis defines the affected population as those residing
within the same watershed as wetland area changes anticipated under the final rule, following the
approach described in Section I.B. The demographic characteristics match those included in EPA's
EJSCREEN.
The agencies collected population-specific data from the U.S. Census Bureau's American Community
Survey (ACS) from 2015 to 2019 on:
• the percent of the population below twice the poverty threshold,83 referred to as low-income
population for the purpose of this analysis;
• the population categorized in various racial/ethnic groups, from which EPA calculated the percent of
the total population that belongs to a minority racial/ethnic group;84
• the percent of the population age 25 or older whose education is short of a high school diploma;
• the percent of linguistically isolated households where all members age 14 years and over speak a
non-English language and also speak English less than "very well;"
• the percent of the population under the age of five;
• the percent of the population over the age of 64; and
• the percent of the population that identifies only as Native American or Alaska Native.
The agencies also utilized environmental indicators included in EJSCREEN85:
• lifetime cancer risk from inhalation of air toxics;
• the air toxics respiratory hazard index, which is a ratio of exposure concentration to a health-based
reference concentration;
• diesel particulate matter level in air, (ig/m3;
• 2016 average annual PM25 levels in air, (ig/m3;
83 Poverty status is based on data from the Census Bureau's American Community Survey using a rationale established by EPA's
EJSCREEN. The rationale for using twice the poverty threshold rather than just the poverty threshold is described in
AppendixB of the EJSCREEN Technical Documentation (U.S. EPA, 2019).
84 The racial/ethnic categories are based on the breakout of ethnic/racial populations in Census data, which distinguishes racial
groups within Hispanic and non-Hispanic categories. Minority groups include: African American (non-Hispanic); Asian
(non-Hispanic); Native Hawaiian/Pacific Islander (non-Hispanic); American Indian/Alaska Native (non-Hispanic); Other
non-Hispanic; Hispanic/Latino.
85 Full descriptions of the environmental indicators included in EJSCREEN, including the rationale for including them in the
screening tool are described in the EJSCREEN Technical Documentation (U.S. EPA, 2019).
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IV Environmental Justice Analysis
• 2016 summer seasonal average of daily maximum eight-hour ozone concentration in air, parts per
billion;
• the count of vehicles at major roads within 500 meters, divided by distance in meters;
• the percent of housing units built pre-1960, as an indicator of potential lead paint exposure;
• the count of hazardous waste management facilities within five kilometers (or the nearest neighbor
outside of five kilometers), divided by distance to the facilities;
• the count of proposed and listed National Priorities List sites within five kilometers (or the nearest
neighbor outside of five kilometers), divided by distance to the sites;
• toxicity weighted stream concentrations divided by distance to the nearest stream segment, as
indicator of dischargers with NPDES permits under the Clean Water Act section 402 program; and
• the count of Risk Management Plan (RMP)86 facilities within five kilometers (or the nearest neighbor
outside of five kilometers), divided by distance to the facilities, as indicator of facilities that may be
subject to Facility Response Plan requirements under the Clean Water Act section 311 program.
The agencies compiled these data for all Census block groups across the country.87 The agencies then
intersected the Census block groups with HUC12 boundaries and used the intersecting area to
proportionally adjust the socioeconomic and environmental indicator data.88 These data were then
compared to national and State data to give context to each socioeconomic and environmental indicator.89
The agencies compared the demographic and environmental indicator metrics to national and State
metrics to identify communities where EJ concerns may exist for HUC12s affected by the final rule
relative to the secondary baseline of the 2020 NWPR.
This first analysis considers the spatial distribution of communities with environmental justice concerns
(based on their demographic characteristics only), in relation to estimated cumulative changes in wetland
areas and affected waters under the final rule, relative to the 2020 NWPR. Results of the analysis are
presented in the context of communities with environmental justice concerns and summarize selected
demographic characteristics in relation to national and State statistics. For reference, Figure IV-1 and
86 RMP facilities are those facilities required by the Clean Air Act (section 112(r)) to file risk management plans if they maintain
a quantity of substance, provided the substance is included on the List of Regulated Substances, that exceeds the defined
threshold quantity.
87 In line with the economic analysis, Hawaii and the District of Columbia were not included in the environmental justice analysis
due to a lack of data in the case of Hawaii and a lack of impacts in the case of the District of Columbia. These States were
also excluded from the analyses for the 2015 Clean Water Rule, the 2019 Repeal Rule, and the 2020 NWPR.
88 The socioeconomic data (based on population or household counts) was proportionally adjusted based on the ratio of the
intersect area to the total census block group or tract area. The environmental risk data were proportionally adjusted based
on the ratio of the intersect area to the total HUC12 area.
89 The national and State data does not include the population within HUC12 watersheds experiencing wetland area changes or
with affected waters.
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IV—Environmental Justice Analysis
Figure IV-2 show the spatial distribution of the cumulative changes to wetland area and affected waters
presented in the tables.
Figure IV-1: HUC12 watersheds experiencing wetland area changes under the final rule, as
compared to the 2020 NWPR
^ ' n '
X 1 *
r' \ XI il '¦ ** Q
PL
^|P»- % "¦
f: %
r<\
' •
» \ JpU »> -.
-/rf
r
-
- - v, • -.;j •/ .-'iv . ¦
fj ,-f^i '< ', ,:y ' y*\..^
.V^^V ^V' *' A :
" \ ' Ai, ..'v.-yv V *
-ji?
J£«L .. v*
-^4 , ^
l I Tribal Areas >1-50 (6.2%)
Wetland Area Changes (acres) >50 (0.2%)
,£0.5(90.1%) . §> changes
>0.5 -1 (3.5%) 0 100 200 Mj|es ''
I I I I I I I A
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IV—Environmental Justice Analysis
Figure IV-2: HUC12 watersheds experiencing changes in affected waters under the final rule, as
compared to the 2020 NWPR
Table IV-1 and Table IV-2 summarize the socioeconomic characteristics of HUC12 watersheds in
relation to national averages based on estimated cumulative changes in wetland area and affected waters,
respectively, under the final rule compared to the secondary baseline of the 2020 NWPR . Appendix F
presents comparisons in relation to State averages.
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IV—Environmental Justice Analysis
Table IV-1: Socioeconomic characteristics of communities within HUC12 watersheds experiencing wetland area changes, compared to national
averages3
Cumulative
Wetland
Area
Changes
(acres)
Total Number
of HUC12s (%
of Affected
HUC12s)
Percentage of
Individuals that
are Minorityb
Percentage of
Individuals that
are Low-
lncomec
Percentage of
Individuals with Less
than High School
Education
Percentage of
Households with
Linguistic
Isolation
Percentage of
Individuals
under Age 5
Percentage of
Individuals over
Age 64
Percentage of
Individuals that
Identify as
American Indian
and Alaska
Native Alone
(non-Hispanic)
A
II
O
Ln
38,980
(90.1%)
37.7%
30.9%
12.1%
4.3%
3.1%
15.9%
0.6%
>0.5-1
1,528 (3.5%)
43.2%
29.9%
12.1%
5.0%
3.2%
14.3%
0.5%
>1-50
2,673 (6.2%)
42.5%
30.0%
10.7%
4.1%
3.2%
14.9%
0.5%
>50
66 (0.2%)
75.3%
38.7%
20.8%
14.7%
3.2%
14.2%
0.2%
National Averages
32.2%
32.6%
12.8%
3.2%
3.1%
16.8%
1.6%
a. National averages represent the rest of the United States population, outside of the HUC12 watersheds experiencing wetland area changes.
b. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s experiencing wetland area changes under the
final rule.
c. Low-income is defined as the percent of individuals where the individual's income is less than or equal to twice the federal "poverty level." This is in line with the definition
of low-income used in EPA's EJSCREEN.
Source: U.S. EPA analysis, 2022
Table IV-2: Socioeconomic characteristics of communities within HUC12 watersheds with affected waters, compared to national averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%
of Affected
HUC12s)
Percentage of
Individuals that
are Minorityb
Percentage of
Individuals
that are Low-
lncomec
Percentage of
Individuals with Less
than High School
Education
Percentage of
Households
with Linguistic
Isolation
Percentage of
Individuals
under Age 5
Percentage of
Individuals over
Age 64
Percentage of
Individuals that
Identify as
American Indian
and Alaska
Native Alone
(non-Hispanic)
<= 1
16,647 (38.5%)
38.4%
33.5%
14.1%
5.7%
3.1%
16.6%
0.8%
>1-5
14,634 (33.8%)
37.0%
32.3%
12.7%
3.9%
3.1%
16.3%
0.8%
>5-50
11,105 (25.7%)
41.3%
30.0%
11.4%
4.4%
3.1%
15.0%
0.5%
>50
861 (2.0%)
40.1%
27.2%
10.2%
4.5%
3.2%
14.5%
0.4%
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IV—Environmental Justice Analysis
Table IV-2: Socioeconomic characteristics of communities within HUC12 watersheds with affected waters, compared to national averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%
of Affected
HUC12s)
Percentage of
Individuals that
are Minorityb
Percentage of
Individuals
that are Low-
lncomec
Percentage of
Individuals with Less
than High School
Education
Percentage of
Households
with Linguistic
Isolation
Percentage of
Individuals
under Age 5
Percentage of
Individuals over
Age 64
Percentage of
Individuals that
Identify as
American Indian
and Alaska
Native Alone
(non-Hispanic)
National Averages
32.2%
32.6%
12.8%
3.2%
3.1%
16.8%
1.6%
a. National averages represent the rest of the United States population, outside of the HUC12 watersheds with affected waters.
b. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s with affected waters under the final rule.
c. Low-income is defined as the percent of individuals where the individual's income is less than or equal to twice the federal "poverty level." This is in line with the definition
of low-income used in EPA's EJSCREEN.
Source: U.S. EPA analysis, 2022
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IV Environmental Justice Analysis
As shown, socioeconomic characteristics for HUC12s experiencing wetland area changes and changes to
affected waters due to the final rule are similar to national averages, the exception being HUC12s with
expected wetland area changes greater than 50 acres. For the few HUC12s (<1%) with wetland area
changes greater than 50 acres, the percentage of individuals that are minority, individuals that are low-
income, individuals with less than high school education, and households with linguistic isolation are
much larger than national averages (between eight to 40 percent greater than national averages). Areas
that will experience wetland changes due to the final rule all have higher percent people of color
regardless of the magnitude of the change. However, as that magnitude increase, so too does percent
people of color. The same trend is also evident for affected waters but with only a slight increase in the %
as the affected acreage increases.
Table IV-3 and Table IV-4 provide a breakdown of the racial/ethnic categories that comprise the minority
population in earlier tables. The tables compare demographic characteristics of HUC12 watersheds in
relation to national averages based on estimated cumulative changes in wetland area and affected waters,
respectively, under the final rule. The racial/ethnic category breakdown highlights the specific population
(individuals that identify as Hispanic or Latino alone) that largely influences the large jump in the
percentage of individuals that are minority between watersheds with wetland area changes between one
and 50 acres and wetland area changes greater than 50 acres. In addition, the breakdown also highlights
which racial/ethnic populations, namely individuals that identify as Black or African American alone
(non-Hispanic), individuals that identify as Asian alone (non-Hispanic), individuals that identify as some
other race alone (non-Hispanic), and individuals that identify as Hispanic or Latino alone, that are above
the national average across all watersheds experiencing wetland changes under the final rule.
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IV
—Environmental Justice Analysis
Table IV-3: Demographic characteristics of communities within HUC12 watersheds experiencing wetland area changes, compared to national
averages3
Cumulative
Wetland
Area
Changes
(acres)
Total Number
of HUC12s (%
of Affected
HUC12s)
Percentage of
Individuals that
Identify as
Black or African
American
Alone (non-
Hispanic)b
Percentage of
Individuals that
Identify as
American
Indian and
Alaska Native
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as Asian
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as
Native Hawaiian
and Other
Pacific Islander
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as Some
Other Race
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as Two
or More Races
Percentage of
Individuals that
Identify as
Hispanic or
Latino Alone
<= 0.5
38,980 (90.1%)
12.0%
0.6%
5.3%
0.1%
0.3%
2.3%
17.0%
>0.5-1
1,528 (3.5%)
11.8%
0.5%
6.6%
0.2%
0.2%
2.5%
21.3%
>1-50
2,673 (6.2%)
15.7%
0.5%
5.7%
0.2%
0.3%
2.6%
17.5%
>50
66 (0.2%)
12.3%
0.2%
3.8%
0.1%
0.3%
1.3%
57.3%
National Averages
8.6%
1.6%
3.4%
0.1%
0.1%
2.1%
16.3%
a. National averages represent the rest of the United States population, outside of the HUC12 watersheds experiencing wetland area changes.
b. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s experiencing wetland area changes under the
final rule.
Source: U.S. EPA analysis, 2022
Table IV-4: Demographic characteristics of communities within HUC12 watersheds with affected waters, compared to national averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%
of Affected
HUC12s)
Percentage of
Individuals that
Identify as
Black or
African
American
Alone (non-
Hispanic)b
Percentage of
Individuals
that Identify as
American
Indian and
Alaska Native
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as Asian
Alone (non-Hispanic)
Percentage of
Individuals that
Identify as
Native Hawaiian
and Other
Pacific Islander
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as Some
Other Race
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as Two
or More Races
Percentage of
Individuals that
Identify as
Hispanic or
Latino Alone
<= 1
16,647 (38.5%)
11.6%
0.8%
5.0%
0.1%
0.3%
2.0%
18.6%
>1-5
14,634 (33.8%)
11.6%
0.8%
4.5%
0.1%
0.3%
2.3%
17.4%
>5-50
11,105 (25.7%)
13.8%
0.5%
5.9%
0.1%
0.3%
2.5%
18.3%
>50
861 (2.0%)
10.8%
0.4%
6.2%
0.1%
0.2%
2.7%
19.8%
National Averages
8.6%
1.6%
3.4%
0.1%
0.1%
2.1%
16.3%
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Table IV-4: Demographic characteristics of communities within HUC12 watersheds with affected waters, compared to national averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%
of Affected
HUC12s)
Percentage of
Individuals that
Identify as
Black or
African
American
Alone (non-
Hispanic)b
Percentage of
Individuals
that Identify as
American
Indian and
Alaska Native
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as Asian
Alone (non-Hispanic)
Percentage of
Individuals that
Identify as
Native Hawaiian
and Other
Pacific Islander
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as Some
Other Race
Alone (non-
Hispanic)
Percentage of
Individuals that
Identify as Two
or More Races
Percentage of
Individuals that
Identify as
Hispanic or
Latino Alone
a. National averages represent the rest of the United States population, outside of the HUC12 watersheds with affected waters.
b. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s with affected waters under the final rule.
Source: U.S. EPA analysis, 2022
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IV Environmental Justice Analysis
Table IV-5 and Table IV-6 summarize the cumulative socioeconomic and environmental risk
characteristics of HUC12 watersheds based on estimated cumulative changes in wetland area and affected
waters, respectively, under the final rule. In particular, the environmental indicators considered in these
tables are proxies for other Clean Water Act programs affected by the final rule, including Clean Water
Act sections 402 and 311. For reference, Figure IV-1 and Figure IV-2 show the spatial distribution of the
cumulative changes to wetland area and affected waters presented in the tables.
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IV—Environmental Justice Analysis
Table IV-5: Socioeconomic characteristics of communities within HUC12 watersheds experiencing wetland area changes,
wastewater discharges, and proximity to RMP sites, compared to national averages3
Cumulative
Wetland
Area
Changes
(acres)
Total Number
of HUC12s (%)
with Wetland
Change,
Wastewater
Discharge,
and Proximity
to RMP sites
Average
Wastewater
Discharge
Concentration-
Distance
Ratiob
Average
RMP Site
Count-
Distance
Ratioc
Percentage of
Individuals that
are Minorityd
Percentage
of
Individuals
that are
Low-
Income8
Percentage
of
Individuals
with Less
than High
School
Education
Percentage
of
Households
with
Linguistic
Isolation
Percentage
of
Individuals
under Age
5
Percentage
of
Individuals
over Age 64
Percentage
of
Individuals
that
Identify as
American
Indian and
Alaska
Native
Alone
(non-
Hispanic)
A
II
O
Ln
30,448 (70.4%)
121.0
0.3
37.6%
30.9%
12.1%
4.3%
3.1%
15.7%
0.5%
>0.5-1
1,287 (3.0%)
13.0
0.4
43.5%
30.1%
12.2%
5.1%
3.2%
14.2%
0.5%
>1-50
2,205 (5.1%)
3.7
0.5
42.7%
30.0%
10.7%
4.1%
3.2%
14.6%
0.4%
>50
44 (0.1%)
0.5
0.6
72.6%
40.0%
23.5%
9.9%
3.5%
11.7%
0.2%
National Average for
Communities with
Wastewater Discharges and
in Proximity to RMP sites'
66.3
0.3
31.0%
32.1%
12.5%
3.1%
3.1%
16.7%
1.1%
a. National averages represent the rest of the United States population, outside of the HUC12 watersheds experiencing wetland area changes.
b. The wastewater discharge indicator is calculated as the toxicity-weighted stream concentration of Toxic Release Inventory (TRI)-reported pollutants in stream reach
segments within 500 meters(m) of the centroid of a CBG, divided by the distance to the reach segment in kilometers(km).
c. The RMP indicator is calculated as the count of RMP facilities within five kilometers (km) of the centroid of a CBG, each divided by the distance to the facilities in km.
d. The socioeconomic characteristic and environmental indicator data is calculated based on the proportion of the area of CBGs that intersects with HUC12s experiencing
wetland area changes under the final rule.
e. Low-income is defined as the percent of individuals where the individual's income is less than or equal to twice the federal "poverty level." This is in line with the
definition of low-income used in EPA's EJSCREEN.
f. The wastewater discharge and proximity to RMP sites indicators are available at the census block group. As a result, the socioeconomic variables at the same Census
boundary level were adjusted to only include communities with nonzero values for these indicators.
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 107
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IV—Environmental Justice Analysis
Table IV-6: Socioeconomic characteristics of communities within HUC12 watersheds with affected waters, wastewater discharges,
and proximity to RMP sites, compared to national averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%)
with Wetland
Change,
Wastewater
Discharge,
and Proximity
to RMP sites
Average
Wastewater
Discharge
Concentration-
Distance
Ratiob
Average
RMP Site
Count-
Distance
Ratioc
Percentage of
Individuals that
are Minorityd
Percentage
of
Individuals
that are
Low-
Income8
Percentage
of
Individuals
with Less
than High
School
Education
Percentage
of
Households
with
Linguistic
Isolation
Percentage
of
Individuals
under Age
5
Percentage
of
Individuals
over Age 64
Percentage
of
Individuals
that
Identify as
American
Indian and
Alaska
Native
Alone
(non-
Hispanic)
<= 1
12,349 (28.6%)
294.4
0.3
37.3%
33.2%
14.0%
5.1%
3.0%
16.4%
0.7%
>1-5
11,468 (26.5%)
3.3
0.3
36.9%
32.5%
12.7%
3.9%
3.1%
16.0%
0.7%
>5-50
9,392 (21.7%)
3.7
0.4
41.5%
30.0%
11.4%
4.5%
3.1%
14.9%
0.4%
>50
775 (1.8%)
1.9
0.4
38.4%
26.7%
9.8%
3.5%
3.2%
14.2%
0.4%
National Average for
Communities with
Wastewater Discharges and
in Proximity to RMP sites'
66.3
0.3
31.0%
32.1%
12.5%
3.1%
3.1%
16.7%
1.1%
a. National averages represent the rest of the United States population, outside of the HUC12 watersheds with affected waters.
b. The wastewater discharge indicator is calculated as the toxicity-weighted stream concentration of Toxic Release Inventory (TRI)-reported pollutants in stream reach
segments within 500 meters(m) of the centroid of a CBG, divided by the distance to the reach segment in kilometers(km).
c. The RMP indicator is calculated as the count of RMP facilities within five kilometers (km) of the centroid of a CBG, each divided by the distance to the facilities in km.
d. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s with affected waters under the final rule.
e. Low-income is defined as the percent of individuals where the individual's income is less than or equal to twice the federal "poverty level." This is in line with the
definition of low-income used in EPA's EJSCREEN.
f. The wastewater discharge and proximity to RMP sites indicators are available at the census block group. As a result, the socioeconomic variables were adjusted to
include communities with nonzero values for these indicators.
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 108
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IV Environmental Justice Analysis
As shown, the HUC12s with a confluence of changes to wetland areas or impacted waters and
environmental risk indicators associated with other programs affected by the final rule have similar
community socioeconomic characteristics to HUC12s with just changes to wetland areas or impacted
waters. In addition, the proximity to RMP facility indicator is similar across HUC12s, regardless of
whether or not there are projected changes in wetland area or impacted waters. Lastly, although the
wastewater discharge indicator is highest for HUC12s expected to experience a difference of one or fewer
impacted waters or wetland area changes less than 0.5 acres, the associated socioeconomic characteristics
are similar to national averages for watersheds with wastewater discharges and in proximity to RMP sites
(within five percent). For the few HUC12s with socioeconomic characteristics that differ from national
averages (e.g., HUC12s with wetland area changes greater than 50 acres), the wastewater discharge
indicator is lower than the national average.
Table IV-7 and Table IV-8 provide a breakdown of the racial/ethnic categories that comprise the minority
population in earlier tables in relation to environmental risk. The tables compare demographic
characteristics of HUC12 watersheds in relation to national averages based on estimated cumulative
changes in wetland area and affected waters, respectively, under the final rule. The results do not differ
much from the analyses highlighted in Table IV-3 and Table IV-4. In particular, the analysis similarly
highlights the specific population (individuals that identify as Hispanic or Latino alone) that largely
influences the large jump in the percentage of individuals that are minority between watersheds with
wetland area changes between one and 50 acres and wetland area changes greater than 50 acres.
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IV—Environmental Justice Analysis
Table IV-7: Demographic characteristics of communities within HUC12 watersheds experiencing wetland area changes, wastewater
discharges, and proximity to RMP sites, compared to national averages3
Cumulative
Wetland
Area
Changes
(acres)
Total Number
of HUC12s (%)
with Wetland
Change,
Wastewater
Discharge,
and Proximity
to RMP sites
Average
Wastewater
Discharge
Concentration-
Distance
Ratiob
Average
RMP Site
Count-
Distance
Ratioc
Percentage of
Individuals that
Identify as
Black or
African
American
Alone (non-
Hispanic)11
Percentage
of
Individuals
that
Identify as
American
Indian and
Alaska
Native
Alone (non-
Hispanic)
Percentage
of
Individuals
that
Identify as
Asian Alone
(non-
Hispanic)
Percentage
of
Individuals
that
Identify as
Native
Hawaiian
and Other
Pacific
Islander
Alone (non-
Hispanic)
Percentage
of
Individuals
that
Identify as
Some
Other Race
Alone (non-
Hispanic)
Percentage
of
Individuals
that
Identify as
Two or
More Races
Percentage
of
Individuals
that
Identify as
Hispanic or
Latino
Alone
A
II
O
Ln
30,448 (70.4%)
121.0
0.3
12.1%
0.5%
5.3%
0.1%
0.2%
2.3%
16.9%
>0.5-1
1,287 (3.0%)
13.0
0.4
12.0%
0.5%
6.7%
0.2%
0.2%
2.5%
21.4%
>1-50
2,205 (5.1%)
3.7
0.5
16.1%
0.4%
5.9%
0.2%
0.3%
2.6%
17.3%
>50
44 (0.1%)
0.5
0.6
12.5%
0.2%
4.9%
0.2%
0.3%
1.6%
52.9%
National Average for
Communities with
Wastewater Discharges and
in Proximity to RMP sites8
66.3
0.3
9.3%
1.1%
3.7%
0.1%
0.1%
2.1%
14.7%
a. National averages represent the rest of the United States population, outside of the HUC12 watersheds experiencing wetland area changes.
b. The wastewater discharge indicator is calculated as the toxicity-weighted stream concentration of Toxic Release Inventory (TRI)-reported pollutants in stream reach
segments within 500 meters(m) of the centroid of a CBG, divided by the distance to the reach segment in kilometers(km).
c. The RMP indicator is calculated as the count of RMP facilities within five kilometers (km) of the centroid of a CBG, each divided by the distance to the facilities in km.
d. The socioeconomic characteristic and environmental indicator data is calculated based on the proportion of the area of CBGs that intersects with HUC12s experiencing
wetland area changes under the final rule.
e. The wastewater discharge and proximity to RMP sites indicators are available at the census block group. As a result, the socioeconomic variables at the same Census
boundary level were adjusted to only include communities with nonzero values for these indicators.
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 110
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IV—Environmental Justice Analysis
Table IV-8: Demographic characteristics of communities within HUC12 watersheds with affected waters, wastewater discharges,
and proximity to RMP sites, compared to national averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%)
with Wetland
Change,
Wastewater
Discharge,
and Proximity
to RMP sites
Average
Wastewater
Discharge
Concentration-
Distance
Ratiob
Average
RMP Site
Count-
Distance
Ratioc
Percentage of
Individuals that
Identify as
Black or
African
American
Alone (non-
Hispanic)11
Percentage
of
Individuals
that
Identify as
American
Indian and
Alaska
Native
Alone (non-
Hispanic)
Percentage
of
Individuals
that
Identify as
Asian
Alone (non-
Hispanic)
Percentage
of
Individuals
that
Identify as
Native
Hawaiian
and Other
Pacific
Islander
Alone (non-
Hispanic)
Percentage
of
Individuals
that
Identify as
Some
Other Race
Alone (non-
Hispanic)
Percentage
of
Individuals
that
Identify as
Two or
More Races
Percentage
of
Individuals
that
Identify as
Hispanic or
Latino
Alone
<= 1
12,349 (28.6%)
294.4
0.3
11.1%
0.7%
4.8%
0.1%
0.3%
2.1%
18.4%
>1-5
11,468 (26.5%)
3.3
0.3
11.8%
0.7%
4.5%
0.1%
0.2%
2.3%
17.2%
>5-50
9,392 (21.7%)
3.7
0.4
14.0%
0.4%
6.1%
0.1%
0.3%
2.5%
18.1%
>50
775 (1.8%)
1.9
0.4
11.2%
0.4%
6.4%
0.2%
0.2%
2.8%
17.3%
National Average for
Communities with
Wastewater Discharges and
in Proximity to RMP sites8
66.3
0.3
9.3%
1.1%
3.7%
0.1%
0.1%
2.1%
14.7%
a. National averages represent the rest of the United States population, outside of the HUC12 watersheds with affected waters.
b. The wastewater discharge indicator is calculated as the toxicity-weighted stream concentration of Toxic Release Inventory (TRI)-reported pollutants in stream reach
segments within 500 meters(m) of the centroid of a CBG, divided by the distance to the reach segment in kilometers(km).
c. The RMP indicator is calculated as the count of RMP facilities within five kilometers (km) of the centroid of a CBG, each divided by the distance to the facilities in km.
d. The socioeconomic characteristic and environmental indicator data is calculated based on the proportion of the area of CBGs that intersects with HUC12s with affected
waters under the final rule.
e. The wastewater discharge and proximity to RMP sites indicators are available at the census block group. As a result, the socioeconomic variables were adjusted to
include communities with nonzero values for these indicators.
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 111
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IV—Environmental Justice Analysis
While the analyses thus far represent the socioeconomic characteristics and environmental indicators most
relevant to the final rule, cumulative exposure to environmental hazards beyond those relevant to the final
rule are important considerations for determining a community's potential for environmental justice
concern. Table IV-9 and Table IV-10 summarize the overall cumulative environmental burden for
HUC12 watersheds based on estimated cumulative changes in wetland area and affected waters,
respectively, under the final rule. The environmental indicators used to evaluate cumulative
environmental burden are defined at the beginning of this section.
Table IV-9: Cumulative environmental burden, defined by exceedances of environmental
indicators, of communities within HUC12 watersheds experiencing wetland area changes,
compared to national averages3
Cumulative
Wetland Area
Changes (acres)
Total Number
of HUC12s (% of
Affected
HUC12s)
Percentage of HUC12s with...
No Exceedances
1-3
Exceedances
4-8
Exceedances
9-11
Exceedances
A
II
O
In
38,980 (90.1%)
1.7%
10.8%
70.1%
17.4%
>0.5-1
1,528 (3.5%)
3.7%
5.4%
56.4%
34.4%
>1-50
2,673 (6.2%)
4.8%
6.4%
49.8%
39.1%
>50
66 (0.2%)
4.5%
3.0%
60.6%
31.8%
a. The exceedances are based on a comparison to national averages that represent the rest of the United States population,
outside of the HUC12 watersheds experiencing wetland area changes.
Source: U.S. EPA analysis, 2022
Table IV-10: Cumulative environmental burden, defined by exceedances of environmental
indicators, of communities within HUC12 watersheds with affected waters, compared to
national averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (% of
Affected
HUC12s)
Percentage of HUC12s with...
No Exceedances
1-3
Exceedances
4-8
Exceedances
9-11
Exceedances
<= 1
16,647 (38.5%)
3.1%
13.3%
73.1%
10.6%
>1-5
14,634 (33.8%)
1.8%
10.4%
70.7%
17.2%
>5-50
11,105 (25.7%)
0.8%
6.5%
59.3%
33.5%
>50
861 (2.0%)
0.1%
0.9%
52.5%
46.5%
a. The exceedances are based on a comparison to national averages that represent the rest of the United States population,
outside of the HUC12 watersheds with affected waters.
Source: U.S. EPA analysis, 2022
As shown, while some watersheds with wetland area changes and affected waters do not have any
exceedances of the environmental indicators included in EJScreen, the majority are exposed to
environmental risk from between four and eight different indicators. In other words, although we had
found that the socioeconomic characteristics and environmental indicators relevant to the rule of affected
watersheds weren't drastically different from national averages, the affected watersheds are already
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 112
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IV Environmental Justice Analysis
burdened by exposure to environmental risk. For the most part, the distribution of the environmental
indicator values within affected HUC12s is more right-skewed and centered around national average
values. However, as wetland area and the number of affected waters increases, the range of environmental
indicator values decreases. In other words, the more waters that are affected, the lesser the degree to
which the environmental indicator value for the few affected HUC12s on the trailing end of the
distribution exceeds the national average. This is, in part, due to the smaller universe of HUC12s with
large changes in wetland area and affected waters. This signal is most clearly seen with the environmental
indicators that represent proximity to hazardous waste and proximity to toxic wastewater discharges. By
contrast, the majority of the affected HUC12s are experiencing small changes and for this subset of
affected HUC12s, the few affected HUC12s on the trailing end of the distribution are well above the
national average, more so than HUC12s with larger changes. Even these small changes in wetland areas
and affected waters may lead to improved water quality and help to reduce cumulative environmental
burden where the magnitude of environmental burden from hazardous waste and toxic discharges is well
above the national average. Therefore, we may see a potential benefit for communities residing within or
in proximity to HUC12s already experiencing exceedances of four or more environmental indicators or
experiencing environmental burden to a magnitude far beyond the national average.
However, from the perspective of environmental indicators relevant to the final rule and socioeconomic
characteristics, this analysis shows that there isn't much potential for benefits to EJ concerns for a
majority of the affected HUC12s. This conclusion is mainly based on the very low percentage of HUC12s
that would be affected by the final rule and include communities with environmental justice concerns.
IV.B Uncertainty and Limitations
The analysis is built on the framework of HUC12s with summarized socioeconomic and environmental
risk data from a different spatial framework (Census block groups). The summary assumes even
population distribution within the respective Census block group to apportion socioeconomic data by the
ratio of intersect area to Census block group area. This has an uncertain effect on the results of the
analysis. The environmental risk indicator values were calculated for each HUC12 by calculating an area-
weighted average. This may mute the presence of Census geographies within the HUC12 with relatively
high environmental risk indicator values adjacent to Census geographies with relatively low
environmental risk indicator values.
A few of the analyses assume that benefits would be realized for communities living within the same
watershed boundaries as wetland area or affected waters changes. Downstream communities from the
water body changes could also benefit from the associated water quality changes.
The comparisons between HUC12s with wetland area changes and affected waters and national or State
averages do not hold statistical significance, so the conclusions drawn in this section are meant to be
informative rather than definitive.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 113
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V—Tribal Impact Analysis
V. Tribal impact Analysis
In addition to the anticipated Tribal response to the reinstatement of the pre-2015 regulatory regime
described in Chapter I, Figure V-l and Figure V-2 qualitatively summarize the overlap between Tribal
areas90 and the estimated changes in wetland area and affected waters under the final rule, as compared to
the secondary baseline of the 2020 NWPR.
Figure V-1: Tribal areas relative to HUC12 watersheds experiencing wetland area changes under
the final rule, as compared to the 2020 NWPR
As shown, Tribal areas overlap with wetland area changes throughout the country. In fact, over 90 percent
of Tribal area includes watersheds with wetland area changes or affected waters. In particular, there is a
confluence of Tribal area and relatively large estimated wetland area changes in southern California,
Arizona, and Minnesota.
90 Tribal lands used for this overlay were defined by the US Census TIGER/Line dataset (2020 American Indian/Alaska
Native/Native Hawaiian Area; U.S. Census Bureau, n.d.).
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 114
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V—Tribal Impact Analysis
Figure V-2: Tribal areas relative to HUC12 watersheds experiencing changes in affected waters
under the final rule, as compared to the 2020 NWPR
The overlap between Tribal areas and affected waters follows the same distribution as the wetland area
changes map. However, in addition to southern California, Arizona, Minnesota, Washington, and North
Dakota also show a confluence of Tribal area and relatively large changes to affected waters.
In addition to changes expected to wetland areas and affected waters (based on the section 404 Dredged
and Fill Material Permit program), the final rule will affect other EPA programs, like the Clean Water Act
section 311 oil spill prevention, preparedness and response programs (i.e.. the SPCC and FRP
regulations) and the Clean Water Act section 402 NPDES program. The following tables compare the
socioeconomic characteristics and cumulative environmental burden for HUC12s that fall within Tribal
areas compared to HUC12s that are outside of any Tribal areas. As shown, the majority of HUC12s
across the country (>90 percent) do not overlap with any Tribal areas.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 115
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V—Tribal Impact Analysis
Table V-1: Socioeconomic characteristics of communities within HUC12 watersheds that overlap with Tribal areas, compared to
communities that fall outside of Tribal areas
HUC12 Overlap with
Tribal Areas
Total Number
of HUC12s (%
of HUC12s)
Percentage of
Individuals
that are
Minority3
Percentage of
Individuals
that are Low-
Income13
Percentage of
Individuals
with Less
than High
School
Education
Percentage of
Households
with
Linguistic
Isolation
Percentage of
Individuals
under Age 5
Percentage of
Individuals
over Age 64
Percentage of
Individuals
that Identify
as American
Indian and
Alaska Native
Alone (non-
Hispanic)
Overlap with Tribal
Areas
9,019 (9.6%)
42.2%
35.3%
12.8%
4.8%
3.2%
16.6%
6.1%
No Overlap with
Tribal Areas
85,084
(90.4%)
38.4%
30.6%
11.9%
4.2%
3.1%
15.5%
0.4%
a. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s experiencing wetland area changes under the
final rule.
b. Low-income is defined as the percent of individuals where the individual's income is less than or equal to twice the federal "poverty level." This is in line with the definition
of low-income used in EPA's EJSCREEN.
Source: U.S. EPA analysis, 2022
Table V-2: Demographic characteristics of communities within HUC12 watersheds that overlap with Tribal areas, compared to
communities that fall outside of Tribal areas
HUC12 Overlap with
Tribal Areas
Total Number
of HUC12s (%
of HUC12s)
Percentage of
Individuals
that Identify
as Black or
African
American
Alone (non-
Hispanic)3
Percentage of
Individuals
that Identify
as American
Indian and
Alaska Native
Alone (non-
Hispanic)
Percentage of
Individuals
that Identify
as Asian
Alone (non-
Hispanic)
Percentage of
Individuals
that Identify
as Native
Hawaiian and
Other Pacific
Islander
Alone (non-
Hispanic)
Percentage of
Individuals
that Identify
as Some
Other Race
Alone (non-
Hispanic)
Percentage of
Individuals
that Identify
as Two or
More Races
Percentage of
Individuals
that Identify
as Hispanic or
Latino Alone
Overlap with Tribal
Areas
9,019 (9.6%)
7.7%
6.1%
3.0%
0.2%
0.2%
3.7%
21.3%
No Overlap with
Tribal Areas
85,084
(90.4%)
12.6%
0.4%
5.4%
0.1%
0.2%
2.3%
17.4%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 116
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V—Tribal Impact Analysis
Table V-2: Demographic characteristics of communities within HUC12 watersheds that overlap with Tribal areas, compared to
communities that fall outside of Tribal areas
HUC12 Overlap with
Tribal Areas
Total Number
of HUC12s (%
of HUC12s)
Percentage of
Individuals
that Identify
as Black or
African
American
Alone (non-
Hispanic)3
Percentage of
Individuals
that Identify
as American
Indian and
Alaska Native
Alone (non-
Hispanic)
Percentage of
Individuals
that Identify
as Asian
Alone (non-
Hispanic)
Percentage of
Individuals
that Identify
as Native
Hawaiian and
Other Pacific
Islander
Alone (non-
Hispanic)
Percentage of
Individuals
that Identify
as Some
Other Race
Alone (non-
Hispanic)
Percentage of
Individuals
that Identify
as Two or
More Races
Percentage of
Individuals
that Identify
as Hispanic or
Latino Alone
the area of CBGs that intersects with HUC12s experiencing wetland area changes under the
a. The socioeconomic characteristic data is calculated based on the proportion of
final rule.
Source: U.S. EPA analysis, 2022
Table V-3: Cumulative environmental burden, defined by exceedances of environmental indicators, of communities within HUC12
watersheds that overlap with Tribal areas, compared to communities that fall outside of Tribal areas
HUC12 Overlap with Tribal
Areas
Total Number of
HUC12s (% of
HUC12s)
Percentage of HUC12s with...
No Exceedances
1-3 Exceedances
4-8 Exceedances
9-11 Exceedances
Overlap with Tribal Areas
9,019 (9.6%)
11.2%
28.5%
55.7%
4.6%
No Overlap with Tribal Areas
85,084 (90.4%)
13.9%
16.4%
58.8%
10.9%
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 117
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V Tribal Impact Analysis
While the HUC12s that overlap with Tribal areas make up a small percentage (<10 percent) of all
HUC12s throughout the country, the socioeconomic characteristics don't widely differ from the HUC12s
that fall outside of any Tribal areas. The largest differences (between four to five percent) are with the
minority population percentage and low-income percentage. The difference between the minority
population percentage is largely driven by the larger proportions of individuals that identify as Hispanic
or Latino alone and individuals that identify as American Indian and Alaska Native Alone (non-
Hispanic). With regards to cumulative environmental burden, HUC12s that overlap with Tribal areas do
have a larger proportion of watersheds with exceedances for one to three environmental indicators, but a
smaller proportion of watersheds with exceedances for greater than four environmental indicators. The
environmental indicator values are similarly distributed between HUC12s that do and do not overlap with
Tribal areas. However, the range of environmental indicator values is generally greater for the HUC12s
that do not overlap with Tribal areas. For environmental indicator values above the national average,
values can be twice as large while some are several orders of magnitude larger than the national average.
In particular, the variables associated with proximity to hazardous waste and proximity to toxic
wastewater discharges can be 100,000 to 1,000,000 times larger than the national average. For example,
the national average value for the variable representing proximity to hazardous waste91 forHUC12s
without wetland area changes or affected waters is 0.01 while values for HUC12s that do not overlap with
Tribal areas can range up to 1,500. Overall, the analyses highlight that the HUC12s that overlap with
Tribal areas do not experience significantly greater cumulative environmental risk, either by the
magnitude of the individual environmental risk or by the cumulation of environmental risk, or include
relatively significant communities with environmental justice concerns.
91 Specifically defined as the count of hazardous waste management facilities within five kilometers (or the nearest neighbor
outside of five kilometers), divided by distance to the facilities
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VI Sector Impact Analysis
VI. Sector Impact Analysis
The agencies have conducted a sector impact analysis. This analysis identifies which types of entities
have historically sought permits associated with the Clean Water Act section 404 program, and how costs
to these entities may change in relation to the final rule's definition of "waters of the United States." Due
to the nature of the data used in this sector impact analysis, differentiation between small and large
entities is not feasible. The types of sectors identified for this analysis include: industrial sectors (e.g.,
mining, residential and commercial development, the energy sector; and public sectors such as State
departments of transportation, county governments, stormwater management agencies, and public
utilities). The Sector Impact Analysis identifies the different types of entities performing projects that
required a section 404 permit, but does not estimate how many of these projects impact waters that
change jurisdiction and may no longer need permitting. The approach for estimating changes in
permitting requirements is described earlier in Section III.C.2.
The final rule will not impose requirements on entities of any size. Instead, this rule establishes a
definition of "waters of the United States," a foundational term in determining the scope of key Clean
Water Act programs. The sector analysis provided herein is used to describe the potential impacts to
entities that may be affected by a change in jurisdictional status under the final rule.
As discussed in the Introduction, the agencies lack sufficient information that could be used to identify
specific water resources that will experience a jurisdictional change and the different regulated activities
that may be affected under the final rule. However, the agencies reviewed available information on the
type of entities that are regulated under the Clean Water Act section 404 program, with the purpose of
identifying sectors with entities that may be affected by a change in jurisdictional status.
A return to the pre-2015 regulatory regime relative to the secondary baseline of the 2020 NWPR is
expected to increase the number of waters under Clean Water Act jurisdiction for the Clean Water Act
section 404 program, which may increase the amount of avoidance, minimization, and mitigation
measures necessary to obtain Clean Water Act section 404 permit coverage and may increase the total
number of future Clean Water Act section 404 permits relative to the 2020 NWPR baseline. The agencies
reviewed national section 404 permit data from 2011 through 2020 to identify North American Industrial
Classification System (NAICS) codes corresponding to entities that obtained section 404 permit coverage
during that period. NAICS codes divide the economic activity into 20 sectors based on production
activity. The NAICS codes have a hierarchical structure with the first two digits identifying the sector and
the subsequent numbers identifying subsectors and specific activities. The agencies assigned private
sector permits to one or more NAICS industry codes.
The ORM2 database does not track the NAICS category of the permit applicant. The agencies categorized
the sector for each permit based on the reported project name, type of work performed, and project
description. The agencies identified the general category of work based on the listed work type, further
refining the sector based on key words in the project name and project description. For non-public
categories, the agencies assigned one or more NAICS code. Some permits provided enough information
to assign a single 6-digit NAICS code. Others did not provide enough information to be able to assign a
single 6-digit NAICS code, and in these cases the agencies assigned a broader industry (one or more 2- to
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 119
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VI—Sector Impact Analysis
5-digit NAICS).92 Table VI-1 presents the sectors identified and estimated number of affected entities.
The agencies were able to assign an industry sector to 98 percent of the Clean Water Act section 404
permits. For two percent of permits, the reported work type, project name, and project description did not
provide sufficient information to categorize the permit by a specific NAICS sector. These entities are
listed as ""Unassigned" in Table VI-1.
Table VI-1: Affected Clean Water Act section 404 permits by industry sector
NAICS
NAICS industry description
Number of affected permits
11
Agriculture
2,528
11251
Aquaculture
3,125
113310
Logging
1
2111
Oil and gas extraction
19,751
212
Mining (except oil and gas)
2,233
22111
Electric power generation
7,602
22112
Electric power transmission, control, and distribution
9,480
221210
Natural gas distribution
7,055
2361
Residential building construction
12,726
2361, 2362
Mixed use building construction
3,191
23621
Industrial building construction
1,357
23622
Commercial building construction
9,407
237310
Highway, street, and bridge construction
102,052
237990
Dredging
44,791
48211
Rail transportation
9,329
4861, 4862, 4869
Pipeline transportation of crude oil, natural gas, and
refined petroleum products
55,164
488119
Airport
18,116
562211
Hazardous waste treatment and disposal
805
562212
Solid waste landfills
258
713930
Marinas
27,956
Public
Public
73,927
Unassigned
Unassigned
9,344
Total
N/A
420,198
Table VI-2 summarizes the percent of permit records in each identified sector, stratified by Cowardin
classification.
Table VI-2: Affected Clean Water Act section 404 permits by Cowardin classification
NAICS
NAICS industry
description
Wetland type1
Estuarine
Lacustrine
Marine
Palustrine
Riparian
Riverine
Uplands
11
Agriculture
1%
1%
0%
20%
1%
78%
0%
11251
Aquaculture
15%
1%
79%
0%
0%
4%
0%
113310
Logging
0%
0%
0%
100%
0%
0%
0%
2111
Oil and gas
extraction
2%
0%
0%
34%
0%
63%
0%
92 For example, the agencies classified permits identified as single-family residential development, which could fall into either
NAICS 236115 or NAICS 236117, as NAICS 2361 Residential Building Construction. The agencies classified permits
identified as mining, with no mention of oil or gas but no other material listed, as NAICS 212 Mining (except oil and gas).
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 120
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VI—Sector Impact Analysis
Table VI-2: Affected Clean Water Act section 404 permits by Cowardin classification
NAICS
NAICS industry
description
Wetland type1
Estuarine
Lacustrine
Marine
Palustrine
Riparian
Riverine
Uplands
212
Mining (except oil
and gas)
9%
1%
2%
31%
2%
54%
1%
22111
Electric power
generation
4%
1%
1%
39%
1%
54%
1%
22112
Electric power
transmission,
control, and
distribution
1%
0%
0%
39%
0%
59%
0%
221210
Natural gas
distribution
1%
0%
1%
32%
0%
66%
0%
2361
Residential building
construction
3%
4%
1%
63%
2%
26%
0%
2361, 2362
Mixed use building
construction
2%
3%
1%
49%
2%
43%
1%
23621
Industrial building
construction
2%
1%
1%
63%
2%
30%
1%
23622
Commercial
building
construction
3%
6%
1%
59%
2%
28%
1%
237310
Highway, street,
and bridge
construction
6%
7%
2%
19%
2%
63%
0%
237990
Dredging
10%
35%
3%
3%
1%
48%
0%
48211
Rail transportation
2%
2%
1%
18%
2%
75%
1%
4861, 4862,
4869
Pipeline
transportation of
crude oil, natural
gas, and refined
petroleum products
4%
0%
1%
37%
1%
57%
0%
488119
Airport
7%
12%
5%
11%
2%
63%
0%
562211
Hazardous waste
treatment and
disposal
8%
7%
5%
32%
3%
45%
0%
562212
Solid waste landfills
2%
1%
0%
36%
2%
57%
2%
713930
Marinas
17%
47%
10%
3%
0%
23%
0%
Public
Public
3%
4%
2%
23%
1%
66%
0%
Unassigned
Unassigned
4%
8%
2%
48%
1%
36%
1%
1 Row cells may not add up to 100 percent due to rounding.
The amount of meaningful information within the work type, project name, and project description fields
that can be used to inform the NAICS code assignment varies considerably across permits, which adds
uncertainty to the characterization of affected entities. In some instances, the work type, project name,
and project description fields resulted in limited information on the specific activity that occurred, and the
agencies categorized these in broader industry categories (e.g., highway, street, bridge construction) that
may be representative of the entity performing the permitted work, but not the entity that would be
affected by the return to the pre-2015 regulatory regime. In addition, the agencies relied on keyword
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 121
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VI Sector Impact Analysis
categorization to identify the specific industry associated with the permitted work (e.g., marina, airport,
energy generation). The number of permits assigned to specific NAICS codes is limited by the keywords
developed, and it is likely that searching with keywords resulted in misclassification of some permits.
However, the agencies are unable to determine the number of misclassified permits without reviewing
each permit and creating new categories as needed. Therefore, the agencies do not have enough
information to quantify uncertainty associated with the analysis. The steps used to assign industry sectors
to Clean Water Act section 404 permits, including the key words used, are described further in Appendix
G, along with other information on the sector analysis.
The Sector Impact Analysis identifies the types of entities performing the permitted work. However, for
many categories such as dredging and road construction, it does not identify the sector category of the
actual project owner. This limits the ability of agencies to attribute the costs from the cost analysis to the
sectors identified in this analysis. For example, a construction project falls under the NAICS category
237310 for highway, street, and bridge construction. However, the construction firm building the road is
likely performing the work for another entity that owns the land, and any section 404 permitting costs for
the road construction would likely be passed directly to the property owner.
The agencies expect that the increase in future Clean Water Act section 404 permit obligations may result
in cost increases, unless States continued to require permits for waters that were no longer jurisdictional
under the 2020 NWPR. These increases are expected to extend to the universe of small entities required to
obtain Clean Water Act section 404 permit coverage approximately equal to their existing portion of the
overall section 404 regulatory burden.93
93 See EA tables for a discussion of the total estimated avoided costs.
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the EPA-Army Clean Water Rule. Retrieved from https://www.epa.gov/sites/default/files/2015 -
06/documents/508-final clean water rule economic analysis 5-20-15.pdf
U.S. Environmental Protection Agency, & U.S. Department of the Army (U.S. EPA and Army). (2018).
Resource and Programmatic Assessment for the Proposed Revised Definition of "Waters of the
United States Retrieved from https://www.regulations.gov/document/EPA-HO-OW-2017-
0203-15649
U.S. Environmental Protection Agency, & U.S. Department of the Army (U.S. EPA and Army). (2020a).
Economic Analysis for the Navigable Waters Protection Rule: Definition of "Waters of the
United States Retrieved from https://www.epa.gov/sites/default/files/202Q-
01/documents/econ analysis - nwpr.pdf
U.S. Environmental Protection Agency, & U.S. Department of the Army (U.S. EPA and Army). (2020b).
Resource and Programmatic Assessment for the Navigable Waters Protection Rule: Definition of
"Waters of the United States " Final Rule. Retrieved from
https://www.epa.gov/sites/default/files/202Q-01/documents/rpa - nwpr .pdf
U.S. Environmental Protection Agency, & U.S. Department of the Army (U.S. EPA and Army). (2021).
Economic Analysis for the Proposed "Revised Definition of 'Waters of the United States'" Rule.
Retrieved from https://www.epa.gov/svstem/files/documents/2021-11/revised-definition-of-
wotus nprm economic-analvsis.pdf
U.S. Environmental Protection Agency, & U.S. Department of the Army (U.S. EPA and Army). (2022a).
Supplementary Material to the Economic Analysis for the Final "Revised Definition of 'Waters of
the United States'" Rule.
U.S. Environmental Protection Agency, & U.S. Department of the Army (U.S. EPA and Army). (2022b).
Technical Support Document for the Final Rule: Definition of the "Waters of the United States".
U.S. Environmental Protection Agency (U.S. EPA). (2008). Regulatory Impact Analysis for the Final
Amendments to the Oil Pollution Prevention Regulations (40 CFR PART 112): Volume I.
Retrieved from
U.S. Environmental Protection Agency (U.S. EPA). (2010). NPDES Permit Writers' Manual.
U.S. Environmental Protection Agency (U.S. EPA). (2013). SPCC Guidance for Regional Inspectors.
U.S. Environmental Protection Agency (U.S. EPA). (2019). NPDES State Program Authorization
Information. Retrieved from https://www.epa.gov/npdes/npdes-state-program-information
U.S. Fish and Wildlife Service (U.S. FWS). (n.d.). National Wetlands Inventory: Wetlands Data Layer.
Retrieved from https://www.fws.gov/program/national-wetlands-inventorv/wetlands-data
U.S. Geological Survey, (n.d.). National Hydrography Dataset. Retrieved from
https://www.usgs.gov/national-hvdrographv/national-hvdrographv-dataset7at-
science support page related con=0#qt-science support page related con
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 128
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VII References
U.S. Office of Management and Budget. (2003). Circular A-4: Regulatory Analysis. Retrieved from
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf
Watson, K. B., Ricketts, T., Galford, G., Polasky, S., & O'Niel-Dunne, J. (2016). Quantifying Flood
Mitigation Services: The Economic Value of Otter Creek Wetlands and Floodplains to
Middlebury, VT. Ecological Economics,, 130, 16-24.
doi: doi :https ://doi .org/10.1016/i .ecolecon.2016.05.015
White House Office on Environmental Policy. (1993). Protecting America's Wetlands: A Fair, Flexible,
and Effective Approach. Retrieved from https://unioncountv-fl.gov/wp-content/uploads/47-
Protecting-Americas-Wetlands.pdf
Whitehead, J. C., & Blomquist, G. C. (1991). Measuring contingent values for wetlands: effects of
information about related environmental goods. Water Resources Research, 27(10), 2523-2531.
Whitehead, J. C., Groothuis, P. A., Southwick, R., & Foster-Turley, P. (2009). Measuring the economic
benefits of Saginaw Bay coastal marsh with revealed and stated preference methods. Journal of
Great Lakes Research, 35(3), 430-437.
Williams, C., & Tufford, D. (2015). Groundwater Recharge Rates in Isolated and Riverine Wetlands:
Influencing Factors. Journal of South Carolina Water Resources,, 2(1).
doi:doi:httPs://doi.org/10.34068/JSCWR.02.10
Wu, K., & A. Johnston, C. (2008). Hydrologic Comparison Between a Forested and a Wetland/Lake
Dominated Watershed Using SWAT. Hydrological Processes,, 22(10), 1431-1442.
doi: doi:https://doi.org/10.1002/hvp.6695
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 129
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Appendix A Using Cowardin Classification to Assess Change in Jurisdictional Scope
Appendix A Using Cowardin Classification to Assess Change in
Jurisdictional Scope
Performing an economic analysis of potential regulations first requires estimating how future activities
and outcomes under the final rule differ from future activities and outcomes under the baseline. For the
final rule's secondary baseline this requires predicting future activities and outcomes under the 2020
NWPR as well as the final rule. Since the final rule is intended to codify in regulation a definition of
"waters of the United States" that is very similar to the pre-2015 regulatory regime where the Rapanos
Guidance was used to determine jurisdiction, the agencies can leverage historical permit data to predict
future conditions under the final rule. Ten years of Corps Clean Water Act section 404 permit data for the
years 2010 through 2019 were used to derive average annual estimates of the: types, amount, and general
location of permitted projects; water features such as wetlands, streambanks, and shorelines affected by
dredged or fill activities; and the extent of mitigated impacts under the section 404 permitting process.
During most of this ten-year period, the pre-2015 regulatory practice was used to determine the
jurisdictional status of waters potentially affected by permitted projects. For part of this period, the 2015
Clean Water Rule was in effect in some States. All permits issued under the 2015 Clean Water Rule
during this period were removed from the data. Since these average annual estimates of permits, affected
waters, and mitigation were derived from data on permits and jurisdictional determinations based on the
Rapanos Guidance, the agencies consider them to be reasonably representative of future activity and
regulatory requirements under the final rule.
To perform the economic analysis the agencies had to first estimate the change in water features that
would likely be permitted under the 2020 NWPR if it would have continued to be in effect. The first step
in determining the probability of an impacted water being included in a permit is to derive the
probabilities that if a water feature receives an AJD that it will be a "waters of the United States." These
probabilities are sensitive to the water feature's characteristics, so these probabilities need to be derived
based on categories of these characteristics, and the Cowardin classification provides a convenient way to
categorize these waters.
The Cowardin classification is hierarchical with the highest level, System dividing into Subsystem, Class,
and Subclass levels. The Cowardin classification for water features is in two fields in the dataset:
COWARDINCATEGORY, which represents the System level, and COWARDINCODE, which
represents the code down to the Subclass level. The agencies calculate probabilities at the System level
and the Subsystem level. The Subsystem level can be derived from the COWARDIN CODE field.
The regulation that the determination was based on is also important. The two regulations that are
relevant for our analysis are RAPANOS and 2020 NWPR, which are entries found in the
JDFORMTYPE field. For the AJDs performed based on RAPANOS the resulting jurisdictional status
can be found in the JA field. For the AJDs performed based on 2020 NWPR the resulting jurisdictional
status can be found in the WATERS_TYPE field, where those entries beginning with "A" are "waters of
the United States" and those beginning with "B" are non-"waters of the United States." The difference
between the Rapanos probability and the 2020 NWPR probability for each of the Cowardin codes
represents the change in probabilities between to two regulatory regimes. The other possible entries in
JD FORM TYPE are: RAPANOS FORM used primarily before the Rapanos Guidance, and CWR for
those areas where 2015 Clean Water Rule was in effect. These entries were not be used for deriving AJD
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 130
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Appendix A —Using Cowardin Classification to Assess Change in Jurisdictional Scope
probabilities needed for the analysis. Table A-l provides the relevant fields used from the ORM2
database.
Table A-1: Relevant JD data fields for Estimating the Change
Fields
Description
JD ID
JD identifier associated with the water
WATERS ID
Unique identifier for water features
ACTION FOLDER ID
END DATE
Date the JD action was closed
Year
Added field to sort data by year
JD FORM TYPE
Indicates the regulation or guidance used to determine jurisdiction
JD TYPE CATERGORY
AJD, PJD, DELIN, NJD, OTHER
JA
Yes is Jurisdictional, No is Non-Jurisdictional
WATERS TYPE
Army codes used to identify waters, relevant for 2020 NWPR
COWARDIN CODE
Complete Cowardin code down to the Subclass level.
COWARDIN_CATEGORY
System level Cowardin code identifier
Using the relevant fields from the JD data, the AJD records based on Rapanos Guidance and AJDs based
on 2020 NWPR were grouped by Cowardin Category and Sub-category and the probabilities of being
found to be a "waters of the United States" were derived. Table A-2 shows these probabilities results. For
the Marine and Estuarine Cowardin categories there were an insufficient number of records at the
subcategory-level to use sub-categories and only the Cowardin category information was used to derive
probabilities. For the Upland category there are no corresponding subcategories.
Table A-2: Probability of an AJD Resulting in a "waters of the United States" Determination Under
the Rapanos Guidance and the 2020 NWPR
Water Feature Type
Approved Jurisdictional Determination
(AJD data based on Rapanos Guidance)94
Approved Jurisdictional Determination
(AJD data based on 2020 NWPR)95
Cowardin Category and
Sub-Category
Jurisdictional
Total
%
Jurisdictional
Jurisdictional
Total
%
Jurisdictional
Marine
5,927
5,947
100%
4
4
100%
Estuarine
14,061
14,126
100%
177
182
97%
Lacustrine
16,539
18,040
92%
184
1,329
14%
Lacustrine-Limnetic (LI)
4,810
5,585
86%
94
618
15%
Lacustrine-Littoral (L2)
10,191
10,750
95%
90
711
13%
Palustrine
51,864
90,620
57%
6,423
28,312
23%
Palustrine-Aqua Bed
(PAB)
711
1,022
70%
11
176
6%
Palustrine-Emergent
(PEM)
20,303
49,512
41%
2,639
17,266
15%
Palustrine- Forested
(PFO)
21,190
26,583
80%
3,030
7,257
42%
94 Rapanos Guidance jurisdictional determination data are from the years 2010-2019, and exclude all determinations based on the
2015 Clean Water Rule.
95 The 2020 NWPR jurisdictional determination data a from June, 2020 through July of 2021.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 131
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Appendix A —Using Cowardin Classification to Assess Change in Jurisdictional Scope
Table A-2: Probability of an AJD Resulting in a "waters of the United States" Determination Under
the Rapanos Guidance and the 2020 NWPR
Water Feature Type
Approved Jurisdictional Determination
(AJD data based on Rapanos Guidance)94
Approved Jurisdictional Determination
(AJD data based on 2020 NWPR)95
Cowardin Category and
Sub-Category
Jurisdictional
Total
%
Jurisdictional
Jurisdictional
Total
%
Jurisdictional
Palustrine-Open Water
(POW)
1,073
2,305
47%
164
1,331
12%
Palustrine-Scrub Shrub
(PSS)
4,658
5,938
78%
477
1,312
36%
Palustrine-
Unconsolidated Bottom
(PUB)
2,143
2,894
74%
101
953
11%
Riverine
51,695
62,689
82%
5,591
19,596
29%
Riverine-Tidal (Rl)
4,215
4,356
97%
68
74
92%
Riverine-Lower
Perennial (R2)
11,001
11,117
99%
582
716
81%
Riverine-Upper
Perennial (R3)
10,691
10,822
99%
946
1,007
94%
Riverine-Intermittent
(R4)
11,111
13,162
84%
3,508
4,547
11%
Riverine-Unknown
Perennial (R5)
6,681
6,860
97%
466
734
63%
Riverine-Ephemeral
(R6)
4,657
12,644
37%
21
12,518
0%
Riparian
2,895
3,075
94%
158
549
29%
Riparian-Lotic (RP1)
616
638
97%
63
91
69%
Riparian-Lentic (RP2)
249
286
87%
35
134
26%
Uplands
1,572
33,798
5%
0
271
0%
Assuming historical permit data are a good predictor of the type and quantity of future permitted projects,
these changes in probabilities can be applied to historical Rapanos Guidance permit data to estimate how
many water features would receive permit protection if the 2020 NWPR were to remain in place.
However, many permittees forgo the AJD process, which can be time consuming and expensive, and
instead use a PJD to voluntarily waive or set aside questions regarding Clean Water Act
jurisdiction over a particular site and thus move forward assuming all waters will be treated as
jurisdictional without making a formal determination. In some cases, the jurisdictional
determination process is bypassed altogether and all affected waters are treated as jurisdictional.
As a result, applying the change in probabilities estimated from the AJD data to the entirety of
the Rapanos Guidance permit data would likely overestimate the actual change in waters
receiving permit protection under 2020 NWPR. Therefore, the AJD-based probabilities should
only be applied to the proportion of historical permit data that likely received an AJD.
Using the historical jurisdictional determination data under both the Rapanos Guidance and the
2020 NWPR, the proportion of permits that likely received AJDs under each regulatory regime
can be estimated. Table A-3 provides the relative proportion of jurisdictional determinations that
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 132
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Appendix A —Using Cowardin Classification to Assess Change in Jurisdictional Scope
received AJDs or one of the less definitive options such as a PJD or no JD at all for both
regulatory regimes. These data are also broken out by the same Cowardin categories and sub-
categories as in Table A-2 above.
Table A-3: Proportion of Jurisdictional Determinations that Resulted in AJDs or Non-AJDs
under the Rapanos Guidance and the 2020 NWPR
Jurisdictional Determination Type
Water Feature Type
Rapanos Guidance
2020 NWPR
Cowardin Category and Sub-Category
AJD%
Non-AJD%
AJD%
Non-AJD%
Marine
24%
76%
2%
98%
Estuarine
25%
75%
7%
93%
Lacustrine
35%
65%
39%
61%
Lacustrine-Limnetic (LI)
34%
66%
45%
55%
Lacustrine-Littoral (L2)
35%
65%
36%
64%
Palustrine
18%
82%
56%
44%
Palustrine-Aqua Bed (PAB)
26%
74%
54%
46%
Palustrine-Emergent (PEM)
19%
81%
65%
35%
Palustrine- Forested (PFO)
20%
80%
43%
57%
Palustrine-Open Water (POW)
24%
76%
68%
32%
Palustrine-Scrub Shrub (PSS)
8%
92%
46%
54%
Palustrine-Unconsolidated Bottom (PUB)
12%
88%
61%
39%
Riverine
13%
87%
51%
49%
Riverine-Tidal (Rl)
24%
76%
10%
90%
Riverine-Lower Perennial (R2)
16%
84%
22%
78%
Riverine-Upper Perennial (R3)
14%
86%
24%
76%
Riverine-Intermittent (R4)
10%
90%
40%
60%
Riverine-Unknown Perennial (R5)
13%
87%
21%
79%
Riverine-Ephemeral (R6)
11%
89%
86%
14%
Riparian
23%
77%
55%
45%
Riparian-Lotic (RP1)
18%
82%
49%
51%
Riparian-Lentic (RP2)
22%
78%
56%
44%
Uplands
65%
35%
99%
1%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 133
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Appendix B Wetland Meta-Anaiysis
Appendix B Methodology for Generating Benefit-Transfer
Predictions based on Wetland Meta-Analysis
The analysis for estimating the benefits of increases in wetland mitigation requirements that would result
from the final rule relative to the baseline of the 2020 NWPR differs from the approach the agencies used
in the 2020 NWPR analysis (U.S. EPA and Army, 2020a). That analysis used a meta-analysis of the
wetland valuation studies that provide data on the public's willingness to pay (WTP) for wetland
preservation. However, the meta-analysis and benefit transfer have been updated, as explained in this
appendix.
The approach is based on the meta-analysis of wetland valuation studies by Moeltner et al. (2019) in
which the authors performed a meta-analysis of wetland valuation studies to estimate a benefit function
for preserving or restoring acres of wetlands. In their study, the researchers limited the meta-data to U.S.
based studies focused on valuation of freshwater wetlands, resulting in 21 observations taken from 11
studies.96 The study applies Bayesian estimation techniques (e.g., Moeltner et al., 2007; Moeltner et al.,
2009; Moeltner et al., 2014; Moeltner, 2015). They performed a Bayesian non-linear meta-regression that
ensures the benefits function meets a set of utility theoretic validity criteria. Those criteria are: sensitivity
to scope, a scope elasticity that is not restricted by the functional form of the benefit function, and the
adding-up condition which ensures dividing a change into smaller increments does not affect the total
benefit. Moeltner et al. (2019) also estimated a linear regression model that closely approximates the
adding-up condition.
The agencies used the non-linear model from Moeltner et al. (2019) for estimating foregone benefits
under the 2020 NWPR (85 FR 22250; June 22, 2020) and an updated version of the linear model for
estimating benefits of increased mitigation requirements for the proposed rule (U.S. EPA and Army,
2021).97
The Moeltner et al. (2019) meta-analysis used for estimating foregone benefits under the 2020 NWPR
was reviewed by E-EEAC (Keiser, 2020). E-EEAC found that "The meta-analysis used to estimate the
forgone benefits of removing wetlands from Clean Water Act protection is generally well done, but its
subsequent use for predicting wetland damages was less so, and the approach would benefit from
additional transparency and sensitivity analysis." Specifically, E-EEAC suggested several changes to the
meta-analysis and its application to benefit transfer, including:
• Augmenting meta-data to include a wide range of studies and, in particular, studies that value
wetlands in urban watersheds.
96 The original data for the meta-regression consisted of 38 observations from 17 stated preference studies identified in the
2017 Abt Associates wetlands literature review that contained WTP estimates potentially useful in a meta-analysis. Of those
observations, 17 observations from 6 studies target salt marshes or, more broadly, "coastal wetlands" and thus were
excluded from the freshwater model.
97 Both linear and non-linear models provide a good fit for the underlying data and satisfy adding up conditions (Moeltner et
al., 2019). Thus, both models are potentially good candidates for benefit transfer. Because it is easier to use and interpret the
linear model the agencies choose a linear version of the model over the non-linear version.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 134
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Appendix B Wetland Meta-Anaiysis
• Estimating WTP for avoiding for wetland losses in a State conditional on the size of wetland systems
in the State that are affected by the change of jurisdiction. 98
• Considering dropping ecosystem service indicators from the regression model or considering
alternative treatment the ecosystem service indicators in the benefit transfer application.
• Coding the dummy variable "lump sum" to "zero" for benefit estimation. 99
• Selecting a different extent of the market to estimate the value of changes in wetland acres.
The agencies have addressed many of the E-EEAC comments on application of the meta-analysis in the
context of this rule.
B.1. Meta-data
To improve MRM predictions, the agencies first augmented the 2019 meta-data to include additional
freshwater valuation studies (Lantz et al., 2013; Nijhum, 2020; Pattison et al., 2011; Rudd et al., 2016;
Hindsley and Yoskowitz, 2020). The agencies also added back eight saltwater studies included in the
2019 meta-data (see Moeltner et al. (2019) for detail). The revised meta-data includes 52 observations
from 24 studies (20 studies from the U.S. and four from Canada).100 As shown in Table B-l, sixteen
studies focused on valuing changes in freshwater wetlands and eight studies focused on saltwater
wetlands. Half of the studies (10 U.S. studies and two Canadian studies) value changes in local wetlands
(e.g., watersheds or counties) and the other half is focused on the value of changes in non-local wetlands.
The agencies carefully considered suitability of Canadian studies for inclusion in meta-analysis used for
valuing benefits of increased wetland protection in the United States. In addition to evaluating the studies'
quality, the agencies assessed similarities of the wetland characteristics, the market extent, and
demographic characteristics of the survey respondents in the Canadian studies and U.S. studies included
in the meta-data. Three of the four Canadian studies valued freshwater wetlands similar to those found in
the Midwest of the U.S. Lantz et al. (2013) valued wetland restoration programs in the Credit River
watershed that discharges to Lake Ontario. The study area includes a greater Toronto area that
experienced significant urban development pressure and therefore adds information on the value of
wetlands in the proximity to urban areas.101 Pattison et al. (2011) focused on valuation of wetland
retention and restoration in Manitoba. The southern portion of the province lies in the continental "prairie
98 E-EEAC recommends conducting a sensitivity analysis as follows: (1) varying the uniform assumption used the baseline
acres variable for all States and/or (2) tailoring the assumption to conditions in individual States.
99 Setting lumpsum to zero, requires accounting for cumulation of the mitigation acre increases over the 2023-2042 analysis
period. When the lumpsum variable is set to 1, the average annual increase in mitigation is used for each year in the analysis
under the assumption that the average annual increase holds constant over the 20-year period. The resulting household WTP
values are based on a one-time payment and an assumption that the mitigation acres will be protected in perpetuity.
100 The memorandum to Todd Doley and Steve Whitlock, U.S. EPA, Office of Water, entitled "Notes on inclusion of source
studies and data preparation for wetlands meta-data" (ICF, 2022) details reasons for selecting or excluding specific wetland
valuation studies from the meta-data and subsequent development of meta-regression (November 18, 2022; available in the
docket for this rule, Docket ID Number EPA-HQ-OW-2021-0602).
101 This is also the case for Nijhum (2020) who valued wetland preservation in the Northeast Swale of Saskatoon in the context
of rapid urbanization.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 135
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Appendix B — Wetland Meta-Analysis
pothole region," the latter of which also includes north-central Iowa. Lastly, Rudd et al. (2016) focused on
the value of wetland preservation in the mixed wood plains ecozone of southern Ontario. The mixed
wood plains is also a large ecoregion in the U.S. covering parts of central Minnesota and Wisconsin east
through Michigan, New York State, and most of New England.
In addition to similarities of the wetland characteristics valued in the Canadian studies and those valued in
the U.S. studies only, these studies also consider a similar extent of the market (i.e., province and
watershed level). Finally, the average income of the surveyed population in the Canadian studies ($74.2
thousand, 2021 USD) is comparable to the average income in population surveyed in the U.S. studies
($65.8 thousand, $2021). Adding the U.S. and Canadian studies increases the number of observations for
freshwater wetlands by 11 for a total of 32 observations.
The agencies also re-examined the feasibility of pooling freshwater and saltwater wetland studies as an
increase in the sample size may lead to improved efficiency of benefit transfer predictions. The eight
saltwater wetland studies provide an additional 20 observations. This increases the total number of
observations in the meta-data to 52 or by 62.5 percent compared to the freshwater only meta-data.
The following sections describe the results of the regression analysis and its application to the policy
context of the final rule.
Table B-1: Studies used in the 2022 saltwater and freshwater wetland pooled MRM
Change in
WTP/100
Author
Year
Target population
Wetland type
acres
WTP (2021$)
acres
Freshwater studies
Awondo et al.
2011
Maumee Bay SP, OH, visitors
unspec.
2,499
$212
$8.48
Beran, LJ.
1995
alISC HHs
forested
2,500
$40
$1.60
Beran, LJ.
1995
alISC HHs
forested
2,500
o
m
¦uy
$1.20
Beran, LJ.
1995
alISC HHs
forested
2,500
$36
$1.44
Blomquist &
unspec.
$3
$0.60
Whitehead
1998
all KY HHs
500
Blomquist &
forested
$8
$1.60
Whitehead
1998
all KY HHs
500
Blomquist &
forested
$7
$1.40
Whitehead
1998
all KY HHs
500
Blomquist &
forested
$21
$4.20
Whitehead
1998
all KY HHs
500
deZoysa
1995
selected MSAs, OH
unspec.
3,000
$120
$4.00
Hindsley & Yoskowitz
2020
Houston-Galveston Bay, TX HHs
unspec.
14,720
1
1
¦uy
$0.07
Credit River Watershed, Ontario,
$5.31
Lantz et al.
2013
Canada
unspec.
2,523
$134!
Credit River Watershed, Ontario,
$3.89
Lantz et al.
2013
Canada
unspec.
3,523
$137!
Loomis et al.
1991
all CA HHs
unspec.
58,000
$275
$0.47
Loomis et al.
1991
all CA HHs
unspec.
40,000
$455
$1.14
MacDonald et al.
1998
Atlanta region, GA
unspec.
330
$119
$36.06
Mullarkey & Bishop
1999
all Wl HHs
forested
110
$71
$64.55
Newell & Swallow
2013
Two townships, Rl
forested
29
$9
$31.03
Newell & Swallow
2013
Two townships, Rl
forested
45
$14
$31.11
Newell & Swallow
2013
Two townships, Rl
forested
69
$17
$24.64
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 136
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Appendix B — Wetland Meta-Analysis
Table B-1: Studies used in the 2022 saltwater and freshwater wetland pooled MRM
Author
Year
Target population
Wetland type
Change in
acres
WTP (2021$)
WTP/100
acres
Nijhum
2020
Saskatoon HHs
unspec.
163
$287!
$176.07
Pattison et al.
2011
Manitoba province, Canada
unspec.
94,918
$28^
$0.30
Pattison et al.
2011
Manitoba province, Canada
unspec.
133,903
00
00
-------
Appendix B Wetland Meta-Anaiysis
studies, with vague prior settings for all coefficients and the error variance (see Moeltner et al. (2019) for
detail). Because freshwater and saltwater wetlands may share pooled coefficients, the agencies used the
SSVS algorithm described in Moeltner et al. (2019) to determine whether pooling freshwater and
saltwater coefficients is appropriate.
The dependent variable in the meta-regression is the natural log of household WTP for the specified
change, expressed in per-acre terms. WTP is modeled as a function of "context-defining" and
"moderator" variables in the log-linear regression equation. Context-defining variables are those that are
relevant to the final rule including the baseline number of acres, the number of acres preserved or
restored, whether those acres are forested wetlands, whether they were described by the primary study to
provide several specific ecosystem services, and the study's region (e.g., Canada or U.S. Northeast).
Moderating variables generally refer to details on how the original study was conducted and are not
relevant to benefit transfer but are included to avoid omitted variable bias and to adjust for the study
characteristics (e.g., voluntary payment) to ensure that the meta-regression function used in benefit
transfer reflects the best benefit transfer practices and desired study characteristics (e.g., non-voluntary
payment such as income tax). Table B-2 presents the means and standard deviations of all explanatory
variables used in the Pooled and Freshwater Models.102 The model specification used to estimate the
benefit parameters for transfer in the Pooled Model is:
In. y}s - In - q= xf,pf + xmMpm + y (JL)' ^ + *6 + Equation 1
where v;, is the estimated WTP to obtain an increase (or avoid a loss) in wetland acres for observation j in
study 5, qojs and qijs are the corresponding baseline and policy-endpoint acres of wetlands, respectively,
and SjS is a standard error term with zero mean and variance of ce2. The left-hand side of the equation [In
jy, - \n(qi,jS - qojs)\ corresponds to the estimated per acre value for each observation from the meta-data.
This specification ensures that the estimated model meets adding-up requirements, as shown in Moeltner
et al. (2019). X represents explanatory variables in the context of freshwater wetlands and z represents all
identified interactions103 between these explanatory variables with an indicator for saltwater wetlands. For
ease of exposition, the explanatory variables on the right-hand side of Equation 1 have been separated
into fixed variables for which specific settings will be inserted for a given prediction context (x/s), and
102 To implement the E-EEAC recommendations regarding meta-regression specification, the agencies also estimated a
regression model without wetland ecosystem service indicators (i.e., regulating, provisioning, and cultural) and compared
the estimation results with the original models. Results of this analysis are not presented in Appendix B (see document in the
docket for detail). A comparison of the models without and with ecosystem service indicators shows a Bayes Factor of 1001.
In other words, the original meta-regression model is 1000 times more probable than the meta-regression without ecosystem
service indicators. This is a decisive difference. In addition, error variance essentially doubles for the models that do not
include ecosystem service indicators. These models also did not perform well in benefit transfer applications. In summary,
dropping wetland ecosystem service indicators leads to clearly inferior models.
103 The saltwater interaction terms modify the freshwater coefficients when the interaction terms are deemed important enough
to be included in the Bayesian model by the SSVS algorithm. We note that given the small sample size and multitude of
interaction terms, not all interactions could be identified (i.e., due to perfect collinearity). For example, the interaction
between 'nema' and 'salt' could not be identified due to its being collinear with the interaction between 'cult' and 'saltAll
identified interaction terms are shown in Table B-2.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 138
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Appendix B — Wetland Meta-Analysis
auxiliary variables whose influence will be averaged out in the prediction process (x„K). J3f. J3„, and S are
vectors of estimated parameters. The three ecosystem service indicators (regulating, provisioning, and
cultural) are treated as auxiliary variables. All other variables are fixed and will be given a specific setting
in benefit transfer prediction. This simple normal regression model with independent, homoscedastic error
is the best-fitting specification compared to models with more complex error structure (see Moeltner et al.
(2019) for detail on other specifications that allow for unobserved study-level heterogeneity and
observation-level heteroskedasticity). The model specification used for the Freshwater Model is similar to
the Pooled Model with all saltwater wetland interaction terms (z) excluded.
Table B-2: Meta-regression variable summary
Description
Pooled Model1
Freshwater Model2
Mean
Min
Max
Mean
Min
Max
Dependent variable
Inwtp
log(total WTP in 2021 dollars)
4.51
1.15
7.66
4.18
1.15
6.15
Context specific variables
Inyear
log(year of data collection - oldest)
2.39
0
3.43
2.10
0
3.43
Ininc
log(income in 2021 dollars)
11.11
10.74
11.58
11.07
10.74
11.58
sagulf
1 = S-Atlantic/Gulf (AL, AR, FL, GA,
0.15
0
0.16
0
1
KY, LA, MS, NC, OK, SC, TN, TX)
nema
1 = NE/mid-Atlantic (CT, DE, MA,
0.35
0
0.09
0
1
MD, ME, NH, NJ, NY, PA, Rl, VT)
nmw
N/Mid-West (IA, IL, IN, KS, Ml, MN,
0.23
0
0.38
0
i
MO, MT, NE, ND, OH, SD, Wl)
CAN
1 = Canadian study
0.19
0
0.31
0
1
local
1 = wetland is within 30 miles, on
average, of CBGs or counties in the
0.44
0
0.34
0
1
State
forest
1 = forested wetland
0.25
0
0.41
0
1
qo3
baseline acres (1000s)
282.6
0
2,131.0
260.1
0
1,307.2
qi3
policy acres (1000s)
334.6
0.1
2,382.0
314.4
0.5
1,616.1
(q0+qi)/23
the midpoint between baseline and
policy acres (1000s)
308.6
0
2,256.5
287.3
0.4
1,461.6
lumpsum
1 = a lump sum (single payment)
0.33
0
1
0.28
0
1
volunt
1 = payment mechanism is a
0.17
0
i
0.28
0
i
voluntary contribution
Auxiliary variables
prov
1 = provisioning function affected
0.4
0
1
0.25
0
1
reg
1 = regulating function affected
0.73
0
1
0.69
0
1
cult
1 = cultural function affected
0.67
0
1
0.63
0
1
Saltwater Interaction variables
salt
1 = saltwater wetland study
0.39
0
1
lnyear*salt
1.1
0
3.3
lninc*salt
4.29
0
11.51
sagulf* salt
0.06
0
1
local*salt
0.23
0
1
prov* salt
0.25
0
1
reg*salt
0.31
0
1
cult*salt
0.29
0
1
q0*salt3
122.6
0
2,131.0
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 139
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Appendix B — Wetland Meta-Analysis
Table B-2: Meta-regression variable summary
Description
Pooled Model1
Freshwater Model2
Mean
Min
Max
Mean
Min
Max
qi*salt3
141.1
0
2,382.0
(q0+qi)/2* salt3
131.8
0
2,256.5
1 Summary statistics are based on the 52 observations from the U.S. and Canadian freshwater and saltwater valuation studies.
2 Summary statistics are based on the 32 observations from the U.S. and Canadian freshwater valuation studies.
3 Models 1 and 2 do not include separate explanatory variables for baseline and policy acres and instead uses a single
explanatory variable that is the midpoint between them. Summary statistics for q0, qi, qo*salt, and qi*salt are provided for
informational purposes.
The freshwater model is estimated via Bayesian posterior simulation. The Bayesian estimation routine
provides distributions for each of the estimated parameters and is performed using Gibbs sampling (Train,
2009). The pooled model is estimated using the SSVS algorithm described in Moeltner et al. (2019). The
SSVS procedure is implemented by allowing for interaction terms of context-specific variables with a
binary indicator "saltwater". Table B-3 presents the posterior means and standard deviations for the
parameters of the two MRMs. Based on the estimated distributions of the parameters, the variables local,
forest, sagiilf CAN, prov, cult, and (q0+ql)/2 are the strongest predictors of WTP with more than 90% of
their probability mass on one side of zero (/'. e., a p(>0) >0.90 indicates that 90% of the probability mass
is to the left of zero and a p(>0) <0.10 indicates that 90% of the probability mass is to the right of zero)
as shown in columns four and eight. In other words, these variables either have clear positive effects
{local, forest, sagiilf CAN, cult) or negative effects (prov, (q0+ql)/2) on WTP. The main purpose of
saltwater interaction terms in the Pooled Model is to modify the freshwater coefficients when these terms
receive a high posterior probability of inclusion (p (in)). Of the 10 interaction terms included in the
model, five received low inclusion probabilities of less than 50 percent (const*salt, lnyear*salt,
lninc*salt, local*salt, (qQ + q-O/2 *salt) suggesting that the marginal effect of these variables on WTP is
similar in two wetland types. Four variables (prov*salt, cult*salt, reg*salt, and sagulf*salt) exceeded the
inclusion probability of 0.5 suggesting that the two wetland types differ across these four interactive
dimensions.
In general, the Pooled and Freshwater Models produce similar results. The regression results indicate that
wetland values elicited in a local context (from studies evaluating sub-State changes in wetlands) produce
values that, on average, exceed non-local values by a factor of 23.14 based on the Pooled model and by a
Factor of 16.6 based on the Freshwater Model.1"4 Additionally, when cultural services, and forested
wetlands are affected, wetland values respectively increase by factors of 2.35 and 6.72 based on the
Pooled Model, and 4.18 and 7.78 based on the Freshwater Model. A negative coefficient on the average
wetland area between the baseline and policy scenarios [(qo+qi)/2] aligns with economic theory and
indicates that WTP for wetland preservation diminishes as baseline wetland areas increase. However,
there are two notable differences between these two models: (1) the magnitude of coefficients on regional
indicators sagiilf, nema, nmw, and CAN is smaller; and (2) the coefficient on the regulating service
indicator (reg) now has a positive effect on WTP which is in line with prior expectations.
104 These factors are calculated using — 1.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 140
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Appendix B — Wetland Meta-Analysis
Although the magnitude of the effects differ between the Pooled and Freshwater Models, both models
support the conclusion that WTP for wetlands is greater when wetlands are local or forested and when
there is fewer wetlands in the baseline. The implications of the two notable differences are that, relative to
the Freshwater Model, (1) the Pooled Model will produce WTP estimates that are less influenced by the
region where wetlands reside, and (2) produce WTP estimates that on average increase when regulating
ecosystem services are present.
To evaluate models" performance in benefit transfer, the agencies obtained benefit transfer predictions
using the Pooled and Freshwater models. Comparison of the two models showed that the SSVS approach
(i.e.. Pooled Model) resulted in more efficient benefit estimates (i.e.. a tighter distribution of household
WTP) compared to the Freshwater Model due to a much larger sample size. Therefore, the agencies
selected the Pooled Model for estimating benefits from increased mitigation requirements.
Table B-3: Meta-regression results
Pooled Model1
Freshwater Model2
mean
std.
p(> o)3
p(in)4
mean
std.
p(> o)3
constant
-0.607
3.042
0.421
-1.575
3.089
0.304
Context-specific
Inyear
-1.263
0.400
0.002
-1.331
0.400
0.002
Ininc
0.227
0.291
0.782
0.290
0.292
0.839
sagulf
1.990
1.385
0.921
2.841
1.373
0.976
nema
-1.611
1.163
0.082
-2.061
1.167
0.038
nmw
1.166
1.085
0.857
1.728
1.085
0.940
CAN
3.109
1.649
0.968
4.079
1.648
0.990
local
3.184
0.579
1.000
2.868
0.627
1.000
prov
-3.456
0.693
0.000
-3.968
0.660
0.000
reg
0.349
0.599
0.717
-0.002
0.574
0.485
cult
1.210
0.736
0.945
1.644
0.723
0.983
forest
2.044
0.582
0.999
2.173
0.562
1.000
(qO+q l)/2
-0.001
0.001
0.088
-0.001
0.001
0.056
Moderators
volunt
-2.090
0.837
0.009
-2.573
0.809
0.002
lumpsum
2.226
0.566
1.000
2.724
0.545
1.000
Interactions
const*salt
-0.390
2.009
0.439
0.483
lnyear*salt
-0.097
0.771
0.424
0.304
lninc*salt
-0.119
0.303
0.339
0.204
sagulf* salt
-2.141
1.765
0.139
0.748
local*salt
0.346
0.702
0.660
0.348
prov* salt
4.951
0.930
1.000
1.000
reg*salt
6.399
1.154
1.000
1.000
cult*salt
2.405
2.354
0.832
0.706
(qO+ql)/2* salt
-0.001
0.001
0.144
0.030
Oe2
0.775
0.233
1.000
0.693
0.273
1.000
1 Model 1 is a log-linear model based on the 52 observations from the U.S. and Canadian saltwater and freshwater valuation
studies
2 Model 2 is a log-linear model based on the 32 observations from the U.S and Canadian freshwater valuation studies.
3 Prob(>0) equals the share of the posterior density to the right of zero.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 141
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Appendix B — Wetland Meta-Analysis
Table B-3: Meta-regression results
Pooled Model1
mean
std.
p(> 0)3
P(in)
Freshwater Model2
mean
std.
p(> 0)3
4 Prob(in) is estimated using the SSVS algorithm and indicates whether freshwater and saltwater contexts pool, rather than
deviate, along a particular dimension (the variables interacted with salt). Prob(in) greater than 0.5 indicates that saltwater and
freshwater wetlands are different along these interactive dimensions and these coefficients do not pool well.
B.3. WTP prediction
As discussed in Chapter III.C.2.3., the agencies used 50-mile, 100-mile, and 200-mile buffers of county
centroids to develop a range of benefit estimates. For comparison, the agencies also estimated benefits
using state boundaries as the market extent.1"5 The agencies also examined implementing a benefit
transfer approach using 100-mile buffers within census tracts, rather than county, centroids. Although
theoretically appropriate, this approach, given its finer geospatial scale, proved to be computationally
resource intensive and could not be implemented for the final rule. These radial approaches have several
advantages over a State-based approach:
• A spatially uniform approach to distance decay replaces the heterogeneous distance decay
implied by State-level benefit transfer. In this approach, wetland benefits do not arbitrarily stop at
State borders, nor does distance decay depend on States" geographic size.
• The radius-based approach, used to specify an outer distance boundary where benefits decline to
zero, also lends itself naturally to measuring wetland change that falls within an inner, local
distance boundary. By leveraging the ""local" parameter from the meta-regression models, the
radius-based approach accounts for additional value that accrues to households when avoided
wetland losses are local.1"6
• Using counties as unit of analysis allows to better account for local resource and demographic
characteristics. Feedback received during recent public listening sessions period suggested
probable differences in wetland valuation in rural versus urban areas. For example, in large,
western States, where most wetland gains/losses may fall in rural areas that are not well
represented by State level average socio-demographics, a radius-based approach is likely to
provide a more accurate measure of benefits to the affected households (e.g., county residents).
The agencies chose to use counties rather than smaller geographic units such as census tracts or
blocks for computational efficiency. The agencies acknowledge that results would differ based on
the geographic unit used but do not believe using counties rather than smaller units makes a
meaningful difference in the final results. County size is heterogeneous like State boundaries can
be. To address potential problems with large counties not fitting within the 50-, 100-, and 200-
mile radii, the agencies split large counties predominantly found in western States into smaller
areas that readily fell within the radii considered.
105 For description of the benefit transfer approach that relies on state boundaries to define the market extent see the 2020 NWPR
analysis (U.S. EPA and Army, 2020a).
100 The local buffer distance of 30-miles was based on a maximum distance from households to nearest wetland change in the set
of studies used to define the local variable in the regression model.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 142
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Appendix B Wetland Meta-Anaiysis
Given the identical steps taken to calculate WTP for increased mitigation requirements predictions using
three different radii (50-miles, 100-miles, and 200-miles), the agencies focus on describing the 100-mile
radius approach.
The 100-mile radius approach assumes that households hold a value for preserving wetlands that are up to
100 miles away from their residence (centroids of counties are used as a simplified representation of the
distance from a typical residency). Economic theory does not provide guidance as to the appropriate
extent of the market, so the meta-data is used to determine this threshold. The study-weighted average
distance to (freshwater and saltwater) the nearest wetlands in the meta-data when sub-setting to studies
that valued non-local wetland impacts is 99.44 miles.107 When excluding an outlier study by Petrolia et al.
(2014),108 a study-weighted average distance to the nearest wetlands is 51 miles, and the maximum
distance to the nearest wetlands is 213.5 miles. Given these results, the agencies estimated a range of
benefits using 50-, 100-, and 200-mile radii.
To estimate per-household WTP for a change in wetland acres, the agencies assigned location-specific
values to the following independent variables: baseline wetland acres within a 100-mile buffer of a given
county centroid (qo), the expected change in wetland mitigation acres under the final rule (qt — q0).
median household income (Ininc = log of 2021 median income),109 the proportion of the baseline and
change in acres that is forested, the proportion of the baseline and change in acres that is local, and the
region of the United States. The agencies defined 'local' as the proportion of wetlands within 30 miles of
a county centroid relative to wetlands within 100 miles of a county centroid.110 The value of qo for each
100-mile buffer of a county is the difference between the current total wetland acres and the expected
wetland impacts (in acres) under the 2020 NWPR. The value of qi for each 100-mile buffer of a county is
the difference between the current total wetland acres and the expected wetland impacts (in acres) under
the final rule. The increase in wetland mitigation acres, (qi-qo), is estimated as the reduction in wetland
losses from 2020 NWPR to the final rule. Given the difficulties of displaying all inputs used in the benefit
transfer at the county-level, Table B-4 lists the values for each variable at the State-level.111
107 The average is based on 10 U.S. saltwater and freshwater wetland studies that valued non-local wetland impacts. Given the
policy context and limitations of Canadian wetland data, the agencies excluded four Canadian studies from these estimates.
108 Petrolia et al. (2014) conducted a national survey of WTP for a large-scale restoration project in the Barataria-Terrebonne
National Estuary in coastal Louisiana.
109 The agencies evaluated WTP for avoiding wetland losses using both mean and median income values, the resulting WTP
estimates were nearly identical.
110 The 30-mile threshold is based on the distance between wetlands and the sampled population within studies that valued
wetlands at the sub-state level (e.g., watershed) in the meta-data. A single distance value was calculated for each study by
taking the average of the distances between census block group centroids in the sampled area to the nearest wetland. The
maximum distance to the nearest wetlands among those studies at the sub-state or province level was 28.4 miles.
111 These parameters are applied in alternative State-level benefit transfer applications presented in Appendix D. The county-
level inputs used in the radial benefit transfer approaches can be found in the docket.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 143
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Appendix B — Wetland Meta-Analysis
Table B-4: State-specific benefit transfer variables
State1
Median
HH income
(thous.
2021$)2
Region3
Baseline
acres
Prop,
forested
Prop.
Local
Wetlands
Proportion local
wetlands - Rapanos
impacts4
Proportion local
wetlands - NWPR
impacts4
Annual increase in
wetland mitigation
acres5
Cumulative increase in
wetland mitigation
acres5,6
(thous.)
acres
Baseline4
Permanent
Temporary
Permanent
Temporary
Permanent
Temporary
Permanent
Temporary
AK
81.9
NMW
-
0.43
0.09
0.09
0.09
0.09
0.09
98.0
13.6
1,960.1
203.4
AL
53.3
SAG
4,204.0
0.96
0.09
0.09
0.09
0.08
0.08
32.3
5.4
646.4
80.5
AR
50.2
SAG
2,408.5
0.97
0.08
0.07
0.06
0.08
0.07
12.0
2.5
239.2
37.7
AZ
62.1
354.1
0.82
0.10
0.06
0.06
0.13
0.12
12.9
1.5
258.8
22.2
CA
79.3
3,028.6
0.29
0.11
0.09
0.08
0.10
0.10
51.7
76.1
1,033.2
1,141.3
CO
76.3
2,002.3
0.16
0.10
0.12
0.12
0.09
0.09
4.2
0.7
83.7
11.0
CT
82.7
NMA
310.5
0.91
0.12
0.20
0.20
0.08
0.08
0.2
1.8
3.4
26.3
DE
72.0
SAG
263.3
0.93
0.14
0.15
0.15
0.08
0.08
0.7
0.2
13.3
3.4
FL
58.7
SAG
12,183.1
0.69
0.12
0.12
0.11
0.14
0.14
511.8
4.2
10,235.1
62.6
GA
61.9
SAG
6,548.3
0.95
0.08
0.08
0.07
0.09
0.09
25.7
1.2
514.6
18.1
IA
63.8
NMW
1,088.4
0.52
0.08
0.07
0.07
0.09
0.09
16.2
0.3
325.0
4.6
ID
58.8
1,324.8
0.23
0.08
0.09
0.10
0.14
0.14
1.9
0.1
37.7
1.5
IL
69.5
NMW
1,301.3
0.80
0.08
0.08
0.08
0.06
0.06
13.5
0.9
270.0
13.2
IN
59.4
NMW
1,055.9
0.78
0.09
0.11
0.11
0.10
0.10
62.0
0.7
1,239.7
10.3
KS
62.8
NMW
1,899.9
0.36
0.09
0.10
0.10
0.09
0.09
34.1
1.7
681.5
26.0
KY
53.3
NMW
465.6
0.92
0.06
0.07
0.07
0.10
0.10
49.6
0.9
992.4
14.2
LA
52.2
SAG
8,028.3
0.69
0.11
0.12
0.13
0.16
0.17
93.8
19.1
1,876.5
285.8
MA
85.6
NMA
695.8
0.91
0.13
0.11
0.11
0.07
0.07
0.3
1.2
5.6
17.6
MD
89.4
SAG
814.7
0.92
0.11
0.10
0.10
0.12
0.11
2.5
0.6
49.5
9.2
ME
61.1
NMA
2,548.3
0.90
0.13
0.11
0.11
0.11
0.11
2.1
0.1
41.7
1.9
Ml
60.2
NMW
7,797.0
0.90
0.11
0.04
0.04
0.07
0.07
1.9
0.0
37.7
0.6
MN
75.2
NMW
10,854.6
0.71
0.08
0.09
0.09
0.10
0.11
69.9
34.0
1,397.2
510.1
MO
58.5
NMW
1,386.5
0.81
0.08
0.06
0.06
0.06
0.06
9.5
1.0
190.6
15.4
MS
47.5
SAG
3,968.6
0.96
0.08
0.07
0.07
0.08
0.08
27.3
15.3
545.7
229.2
MT
58.0
3,227.1
0.14
0.10
0.06
0.07
0.10
0.10
5.6
0.1
112.6
1.7
NC
57.6
SAG
4,366.5
0.97
0.08
0.09
0.09
0.08
0.08
14.7
4.1
295.0
61.7
ND
68.4
NMW
1,509.0
0.02
0.09
0.11
0.11
0.10
0.10
23.2
5.1
464.1
76.2
NE
64.8
NMW
1,314.9
0.18
0.08
0.06
0.07
0.07
0.08
9.3
0.3
185.6
4.3
NH
80.9
NMA
310.2
0.84
0.11
0.05
0.05
0.11
0.11
0.8
0.2
15.7
3.0
NJ
87.0
NMA
889.2
0.90
0.17
0.05
0.05
0.09
0.09
0.3
0.0
5.9
0.6
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 144
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Appendix B — Wetland Meta-Analysis
Table B-4: State-specific benefit transfer variables
State1
Median
HH income
(thous.
2021$)2
Region3
Baseline
acres
Prop,
forested
Prop.
Local
Wetlands
Proportion local
wetlands - Rapanos
impacts4
Proportion local
wetlands - NWPR
impacts4
Annual increase in
wetland mitigation
acres5
Cumulative increase in
wetland mitigation
acres5,6
(thous.)
acres
Baseline4
Permanent
Temporary
Permanent
Temporary
Permanent
Temporary
Permanent
Temporary
NM
52.5
363.0
0.44
0.08
0.09
0.09
0.09
0.09
1.0
2.7
19.7
40.1
NV
63.6
1,033.2
0.25
0.07
0.03
0.03
0.05
0.05
1.5
0.1
29.3
2.1
NY
72.2
NMA
2,207.9
0.84
0.10
0.09
0.09
0.11
0.11
4.5
2.7
89.5
40.1
OH
59.7
NMW
538.9
0.80
0.09
0.08
0.08
0.10
0.10
21.2
1.8
424.0
27.1
OK
55.8
SAG
1,379.6
0.81
0.09
0.06
0.06
0.07
0.07
1.7
0.1
34.1
1.7
OR
66.2
1,895.8
0.20
0.09
0.10
0.11
0.10
0.10
33.7
0.7
673.0
11.1
PA
65.1
NMA
544.5
0.84
0.06
0.10
0.10
0.07
0.07
3.0
6.9
60.3
103.4
Rl
70.8
NMA
60.7
0.95
0.16
0.28
0.27
0.10
0.09
0.1
1.2
1.6
17.3
SC
56.1
SAG
3,932.6
0.94
0.10
0.09
0.09
0.09
0.09
21.7
0.6
434.1
8.7
SD
61.4
NMW
2,065.2
0.03
0.09
0.09
0.09
0.08
0.08
7.1
0.7
142.4
11.1
TN
56.2
SAG
1,165.7
0.94
0.09
0.08
0.07
0.06
0.06
8.5
0.5
169.1
8.2
TX
65.2
SAG
4,630.6
0.46
0.09
0.08
0.08
0.08
0.07
58.9
30.8
1,177.1
461.4
UT
75.5
758.8
0.11
0.08
0.13
0.13
0.15
0.14
4.9
1.6
98.8
23.6
VA
78.2
SAG
1,455.0
0.89
0.07
0.09
0.10
0.11
0.11
10.7
3.6
213.4
53.8
VT
65.3
NMA
86.1
0.79
0.03
0.12
0.15
0.15
0.15
0.7
0.4
14.1
6.3
WA
77.8
959.6
0.48
0.11
0.10
0.09
0.09
0.09
12.1
4.1
242.6
61.8
Wl
65.1
NMW
6,868.3
0.79
0.09
0.07
0.07
0.09
0.09
19.5
11.9
390.8
178.8
WV
49.2
SAG
57.1
0.64
0.05
0.12
0.09
0.07
0.07
4.4
1.7
87.9
25.8
WY
67.5
1,852.4
0.21
0.09
0.08
0.08
0.12
0.13
3.1
0.1
62.8
1.4
1 Hawaii and District of Columbia are excluded from the analysis. Wetlands have not been fully mapped for the State of Alaska. Based on current, incomplete wetland
mapping, Alaska has 93,821,779 million acres of baseline wetlands. Because this value greatly exceeds the maximum baseline acreage value in the meta-data (2,131,000),
using this value in the model produces large and unreliable results. Although the mean coefficient for the midpoint between the baseline and policy wetland area is negative,
approximately 9 percent of the distribution of coefficients fall within the positive value range. Thus, average benefit estimates based on the full range of potential midpoint
coefficient values are significantly higher when using actual baseline wetland acres in Alaska versus using the 2-million-acre cutoff. Therefore, the baseline wetlands value is
set to a threshold value of 2 million acres. The proportion of forested wetlands was calculated from currently available NWI wetland data in the State and the proportion of
local acres is set to the national average.
2 Median household income is taken from the 2019 American Community Survey (ACS) and converted to 2021$ using the Bureau of Economic Analysis' GDP deflator.
3 SAG = South Atlantic/Gulf, NMA = Northeast/Mid-Atlantic, NMW
North-West.
Northern/Mid-West. The omitted category includes States in the Arid or semi-Arid West and Pacific
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 145
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Appendix B — Wetland Meta-Analysis
Median
HH income
(thous.
2021$)2
Prop.
Proportion local
Proportion local
Annual increase in
Cumulative increase in
Baseline
Prop.
Local
wetlands-
- Rapanos
wetlands - NWPR
wetland mitigation
wetland mitigation
State1
Region3
acres
forested
Wetlands
impacts4
impacts4
acres5
acres5,6
(thous.)
acres
Baseline4
Permanent
Temporary
Permanent
Temporary
Permanent
Temporary
Permanent
Temporary
Table B-4: State-specific benefit transfer variables
4 Proportions of local baseline wetlands, Rapanos impacts, and NWPR impacts are based on the county-level averages of wetland areas within 30-mile buffer radii of county
centroids relative to 100-mile circular buffers.
5 In most cases, wetland impact mitigation requirements increase when moving from the secondary baseline of the 2020 NWPR to the final rule. However, there are a few
exceptions where mitigation requirements decrease. To calculate the difference in mitigation requirements between the 2020 NWPR and the final rule, the agencies use
"percent permitted" values estimated for major Cowardin categories under the 2020 NWPR and the final rule. For most Cowardin categories, the "percent permitted"
increases under the final rule relative to the 2020 NWPR. However, the "percent permitted" decreases under the final rule relative to 2020 NWPR for three Cowardin
categories: Marine, Sub-tidal Marine, and Intertidal Marine. Under the rulemaking, HUC12s in which section 404 permits primarily affect these three Cowardin categories
may have small decreases in mitigation requirements. This is the case for less than 1 percent of impacted HUC12s.
6 Cumulative wetland mitigation acres are the sum of permanent and temporary mitigation acres over the 20-year period of analysis, assuming linear trends and a 5-year
delay for temporary mitigation acres. This delay is based on discussions with the Corps and accounts for the time required for temporarily impacted areas to return to their
original state.
Source: EPA analysis
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule
146
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Appendix C Final Rule Analysis State-level Results
For each 100-mile buffer of a county the agencies consider different valuation scenarios based on the
"local" and "forested" status of acres for the baseline (cjo) and the estimated reduction in losses under the
final regulation. Wetlands located within a 30-mile buffer from county centroids are assumed to be
"local". In the equations provided below, the fractions of local wetlands and forested wetlands in a given
county buffer are given by (a) and (A,). The agencies assume that (i) the share of forested wetlands is
homogeneous across local and nonlocal acres, and that (ii) the share of forested wetlands applies equally
to the baseline acres and the reduction in acreage losses under the final regulation. The distribution of
local and non-local wetlands is, however, different between the baseline acres and the changes in wetland
losses under the final regulation because development projects tend to be located closer to populated
areas. Since the locations of baseline wetlands and reduced wetland losses under NWPR and under the
final rule differ, separate fractions of local wetlands are estimated for each. abase represents the fraction
of local baseline wetlands, a-Nperm and ccNtemp represent the fractions of local permanent and local
temporary impacts under NWPR, and ccRverm and aRtemp represent the fractions of local permanent and
local temporary impacts under the final rule.
The agencies relied on HAWQS wetland data and ORM2 impacts data to estimate baseline wetland areas,
forested and non-forested wetlands, and impacts within 30-mile (i.e., local wetlands) and 100-mile
circular buffers from county centroids. HAWQS wetlands data and ORM2 impacts data are spatially
aggregated to 12-digit hydrologic unit code (HUC) watershed boundaries. Spatial distribution of both
wetlands and impacts within 12-digit HUC watershed boundaries were assumed to be consistent across
the watershed. To determine the baseline wetland areas and impacts within each buffer, the agencies
intersected the 30-mile and 100-mile circular buffers with the 12-digit HUC watershed boundaries. The
proportion of the total area of the 12-digit HUC watershed within the buffer determined the proportion of
the baseline wetland area from the HAWQS and impacts from ORM2 data attributed to being within that
buffer. The agencies then estimated the fractions of local baseline wetland areas and local impacts by
dividing the baseline wetland areas and impacts within 30-mile buffers by the corresponding areas within
100-mile buffers.
Given these assumptions, the agencies estimate four per household WTP values for each area, one for
each combination of "local" and "forested." Each of these valuation scenarios is characterized by the
baseline acres (qo), policy acres (qi), and indicator settings for local and forested.
Additionally, the agencies estimate household WTP for each of these scenarios at each point in time
throughout the period of analysis. This is because qo and qi vary with the number of years that have
accumulated during the years in which permanent (j) and temporary (I) wetland impacts (under the 2020
NWPR and the final rule) are expected to occur.
Under the baseline scenario, baseline wetland acres are reduced over time given the wetland mitigation
acres that are expected to occur under 2020 NWPR, where permanent wetland mitigation acres
accumulate throughout the entire analysis period (i.e.. all 20 years, starting in 2023) and temporary
wetland mitigation acres accumulate after a 5-year delay (i.e., 15 years, starting in 2028). Under the
policy scenario, baseline wetland acres are reduced over time given the wetland mitigation acres that are
expected to occur under the final rule (i.e., a return to Rapanos Guidance), with permanent and temporary
wetland mitigation acres occurring over the same described time frames. Since the wetland mitigation
acres under the final rule are smaller relative to the 2020 NWPR, the change between qi and qo in a given
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 147
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Appendix C Final Rule Analysis State-level Results
year represents the cumulative acres of wetland preserved under the final rule up to that point in time.
Due to the compounding nature of these impacts, the acres of wetland preserved increases throughout the
period of analysis.112
Specifically, letting the total wetland acres be (cjor) and suppressing county-specific subscripts for
convenience), the four primary valuation scenarios are as follows:
Scenario I: Local, forested wetlands (local = 1 and forested = 1 in XfS)
asetfoT ^Nperm^^^^perm *7 ^Ntemp^^^^temp * 0
C[i ^(.^basetyOT CtRperrnRctpCtYlOSperrn *y ^Rternp^^V^^^^terrip * 0
Scenario II: Local, non-forested wetlands (local = 1 and forested = 0 inxfS)
q0 = (1 ~X)(ab
asetfoT ^Nperm^^^^perm *7 ^Ntemp^^^^temp * 0
tyl ^)(^baseRoT Ct^perrnRCLpCLTiOSperrn * j ^Rtemp^^'P^'^'^^temp * 0
Scenario III: Non-local, forested wetlands (local = 0 and forested = 1 in XfS)
q0 =A[(1 -ab
ase^QoT (1 ®Nperm
}NWPRperm*j (1
-------
Appendix C Final Rule Analysis State-level Results
assign a probability weight to each combination, based on sample proportions for the wetland service
indicators (prob (prov=l)=0.404; prob (reg= 1)=0.731; and prob (cult= 1)=0.673)).
The WTP estimate for a given primary scenario is calculated as the weighted sum of these 8 individual
predictions, with weights determined by the joint probability of observing a given combination for the
auxiliary variables. For example, the weight for the combination of "all l's" for the ecosystem service
indicators is derived as follows:
prob (prov= 1, reg= 1, cult= 1) = 0.404*0.731*0.673 = 0.199.
The sum of all weights for 8 combinations of auxiliary variables is equal to "1".
The agencies use the variable settings described above to develop the posterior mean of the predictive
WTP distribution, as well as the lower and upper bound of the corresponding highest posterior density
interval. Mathematically, the probability-weighted prediction of WTP for primary scenario p (p =1
through 4), for the r-th draw of parameters from the original Gibbs Sampler, can be expressed as:
yp,r = fwni * ®*P {*'fppf,r + + Yr (fl'lP ^ + «r) (qlp - 90iP) j Equation 2
where now subscript m denotes a specific combination of auxiliary variable settings, Mis the total
number of variable setting combinations (8), and nm is the probability weight for combination m. as
described above.
The scenario-specific settings for a given wetland type (e.g., "nonlocal," "forested", etc.) are based on the
corresponding acreage amounts q0p and qlp, and the settings for local and forested in Xfp, as discussed
above. All predictions for Gibbs Sampler iteration r receive the same error term er, drawn from a zero-
mean normal density with iteration-specific variance a",2 .
This process is repeated for all r=l... R draws of coefficients and variances from the original Gibbs
Sampler. The resulting set of draws characterizes the full posterior predictive distribution of the WTP for
yv. The agencies then obtained the posterior mean as well as the lower and upper bound of the
corresponding highest posterior density interval from the posterior distribution, as described in Moeltner
etal. (2019).
The end results of this analysis are full predictive distributions for WTP corresponding to each of the four
local/nonlocal and forested/non-forested combinations of wetland types for each State in the U.S.
These distributions can be further added up to obtain WTP for all local acres, all forested acres, all
nonlocal acres, and all non-forested acres, respectively. For the purpose of this analysis, the agencies
obtained the full posterior distribution of grand total WTP for the entire increase in wetland acres in a
given State by adding up each predictive draw over all four wetland types.
Following the best practices from the economic literature, the agencies truncated the WTP distribution at
the 99th percentile prior to estimating the mean, and lower and upper bounds of WTP (Moeltner and
Woodward, 2009).
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Appendix C Final Rule Analysis State-level Results
Estimating Total WTP
To estimate total WTP (TWTP) for water quality improvements for each 100-mile buffer of a county, the
agencies multiplied the per-household WTP values for the estimated average annual increases in wetland
areas protected as jurisdictional by the number of households within each county in a given year. Annual
benefits (TWTP) from avoided wetland losses are estimated for all years between 2023 and 2042. For
each time period, the total number of households is adjusted to reflect predicted population growth, so it
takes a different value for each year and county.113 The agencies then aggregate county-specific TWTP
for all time periods of interest to account for the following: (1) annual WTP accrual over time and (2) the
additional wetland acres that are protected as jurisdictional. A discount factor is applied to each time
period before aggregating over years to derive the present value (PV) of future streams of WTP, where /'
is the chosen discount rate. The agencies then calculated annualized total WTP values for each county
with both a 3 percent and 7 percent discount rate as shown below in Equation 3. Benefits from avoided
wetland losses are estimated for all years between 2023 and 2042. For this analysis, the agencies used a
simplified assumption that all benefits from mitigation measure to address permanent impacts on wetland
areas begin accruing in 2023. The agencies further assumed a 5-year lag in benefits from mitigation
measures to minimize temporary impacts on wetlands.
/ 2mz \ , ,
/ v1 HWTPtcx.HHtc\ / I x (1 + I)" \
=(2b (i+or-"°*)*l(i+o"' -v Equa,ion3
where:
TWTPt,s = Total household WTP in 2021$ for households in county (C) in year (T),
HWTPx s = Annual household WTP in 2021$ for households in county (C) in year (T),
HH t.s = The number of households residing in county (C) in year (T),
T = Year when benefits are realized,
/' = Discount rate (3 or 7 percent),
n = Duration of the analysis (20 years).
Values will also differ for each year since per household WTP is dependent on the cumulative wetland mitigation acres
under the 2020 NWPR and the final rule.
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Appendix C Final Rule Analysis State-level Results
The agencies generated annual household counts for each county throughout the period of analysis based
on projected population growth, using 2021 NASA Socioeconomic Data and Applications Center
(SEDAC) projections (Hauer et al., 2021).114
These household projections are based on population projections from Shared Socioeconomic Pathway 2 (SSP2) (Hauer et
al., 2021) and persons per household estimates from the 2019 American Community Survey (ACS). SSP2 is a "middle-of-
the-road" projection, where social, economic, and technological trends do not shift markedly from historical patterns.
Projections are only provided every 5 years. The agencies assumed linear extrapolation to impute projected values in
remaining years. Household projections were calculated by dividing the population projections by the persons per
household. Projections used for the proposal were based on data from Woods and Pool. The final analysis uses Hauer et al
(2021) in place of Woods and Pool for reasons of transparency. The code, methodology, and data used in population
projection estimates are all publicly available and easily accessible. Additionally, benefit estimates were compared between
models using both population projection data sources and results were similar.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 151
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Appendix C Final Rule Analysis State-level Results
Appendix C Final Rule Analysis: State-level Results
This appendix provides State-level results of the agencies' estimates of the benefits and costs relative to
the secondary baseline of the 2020 NWPR. The estimated benefits and costs are based on the 2023-2042
analysis period. Table C-l presents average annual increases in Clean Water Act section 404 program-
related permit and mitigation requirements (permanent and temporary) relative to the secondary baseline
of the 2020 NWPR, by State. Table C-2, Table C-3, and Table C-4 present permit costs, mitigation costs,
and total costs (sum of permit costs and mitigation costs), respectively, by State.
Table C-5 and Table C-6 present annualized benefits (in millions 2021$), using 3 percent and 7 percent
discount rates, respectively, from increased Clean Water Act section 404-related mitigation requirements
(and associated reductions in wetland losses) by State. Benefits are estimated using a benefit transfer
application of the Pooled Model to 50-mile, 100-mile, and 200-mile buffers of county centroids for
counties in the conterminous United States (excluding Hawaii, Alaska, and the District of Columbia). To
estimate State-level benefits, the agencies aggregated benefits across all counties in a given State (i.e..
State-level benefits are estimated for all households residing in a given State but include wetlands outside
of the State boundaries). Appendix D provides estimated benefits using state boundaries as the extent of
the market.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 152
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Appendix C—Final Rule Analysis State-level Results
Table C-1: Estimated average annual increase in Clean Water Act section 404-related permits
and mitigation requirements (permanent + temporary) by State, relative to the secondary
baseline of the 2020 NWPR
State
Average Annual Increase in Number of
Average Annual Increase in Mitigation
Permits1,3
Requirements2,3
Individual Permits
General Permits
Acres
Linear Feet
AK
11.4
63.9
110.9
551
AL
2.6
69.1
20.8
14,725
AR
2.0
268.1
11.5
2,606
AZ
1.8
108.1
13.3
963
CA
6.2
583.3
78.2
43,132
CO
1.4
104.1
3.9
863
CT
0.3
22.2
1.9
8
DE
0.2
5.6
0.7
154
FL
20.5
121.2
512.0
3,437
GA
2.4
89.3
24.4
2,243
IA
2.3
94.7
13.8
2,441
ID
0.5
61.9
1.2
717
IL
2.9
197.6
8.8
4,859
IN
2.1
131.9
27.3
30,776
KS
1.9
264.1
9.7
22,777
KY
0.8
69.1
16.2
29,905
LA
23.8
260.9
110.1
2,437
MA
0.3
28.8
1.4
48
MD
0.8
39.5
2.2
786
ME
1.2
84.4
2.2
1
Ml
10.8
167.3
1.8
92
MN
8.9
127.4
96.0
6,870
MO
2.2
404.1
7.9
2,300
MS
3.3
107.1
40.3
1,954
MT
0.6
53.8
5.1
561
NC
2.5
133.0
17.2
1,461
ND
1.2
105.2
23.7
3,997
NE
0.6
60.0
8.4
1,043
NH
0.3
70.8
1.0
7
NJ
0.1
1.6
0.3
12
NM
0.6
90.5
3.5
157
NV
0.3
78.4
1.0
484
NY
2.5
199.9
6.0
973
OH
2.0
258.1
14.4
7,498
OK
0.5
86.1
1.6
222
OR
2.6
47.1
31.9
2,194
PA
1.2
809.9
7.4
2,177
Rl
0.1
5.3
1.2
28
SC
1.5
39.8
21.5
669
SD
1.0
58.9
6.8
893
TN
3.7
182.1
5.7
2,908
TX
6.2
1,030.2
74.0
13,617
UT
0.7
88.4
5.1
1,224
VA
1.6
89.4
9.9
3,753
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 153
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Appendix C—Final Rule Analysis State-level Results
Table C-1: Estimated average annual increase in Clean Water Act section 404-related permits
and mitigation requirements (permanent + temporary) by State, relative to the secondary
baseline of the 2020 NWPR
State
Average Annual Increase in Number of
Permits1,3
Average Annual Increase in Mitigation
Requirements2,3
Individual Permits
General Permits
Acres
Linear Feet
VT
0.6
36.5
1.1
12
WA
4.6
55.3
10.7
4,831
Wl
5.3
236.5
23.3
7,085
WV
0.5
424.8
2.6
3,034
WY
0.1
36.2
2.8
347
Total
150.9
7,751.3
1,402.9
233,832
1 Estimated average annual permit increases based on single-water section 404 permits issued in years 2010-2019 affecting
waters that became no longer jurisdictional under the 2020 NWPR.
2 Estimated average annual mitigation increase (both permanent and temporary) based on permits issued in years 2010-
2019 with mitigation requirements on waterways that became no longer jurisdictional under the 2020 NWPR, excluding
permits issued for mitigation or restoration activities because the main purpose of these activities is to restore or enhance
ecosystem services provided by water resources as opposed to dredge and fill activities that lead to permanent or
temporary losses of ecosystem services. The increase in mitigation requirements includes permanent and temporary
impacts because throughout the analysis period, permittees will incur costs for mitigation of both permanent and temporary
impacts (i.e., no 5-year lag for temporary impacts in mitigation cost estimates).
3 Reflects increases in permit numbers and mitigation requirements in 49 States (excludes Hawaii and District of Columbia).
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 154
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Appendix C—Final Rule Analysis State-level Results
Table C-2: Estimated annualized permit costs by State, relative to the secondary baseline of the
2020 NWPR (thousands 2021$)
State
3% Discount Rate1,2
7% Discount Rate1,2
Low
High
Low
High
AK
$513
$1,529
$533
$1,589
AL
$392
$1,264
$407
$1,313
AR
$1,386
$4,580
$1,440
$4,757
AZ
$576
$1,887
$598
$1,960
CA
$3,048
$10,042
$3,167
$10,432
CO
$548
$1,802
$570
$1,872
CT
$117
$384
$121
$399
DE
$32
$103
m
m
¦uy
$107
FL
$955
$2,857
$992
$2,968
GA
$491
$1,595
$510
$1,657
IA
$517
$1,683
$537
$1,748
ID
$320
$1,058
$333
$1,099
IL
$1,046
$3,433
$1,086
$3,566
IN
$701
$2,298
$728
$2,387
KS
$1,365
$4,512
$1,418
$4,687
KY
$363
$1,193
$377
$1,240
LA
$1,716
$5,337
$1,783
$5,544
MA
$151
$497
$157
$516
MD
$213
$697
$222
$724
ME
$445
$1,463
$463
$1,520
Ml
$1,025
$3,242
$1,065
$3,367
MN
$793
$2,497
$823
$2,594
MO
$2,076
$6,872
$2,157
$7,139
MS
$596
$1,930
$619
$2,004
MT
$282
$928
$293
$964
NC
$714
$2,334
$741
$2,425
ND
$550
$1,813
$572
$1,883
NE
$313
$1,032
$325
$1,072
NH
$363
$1,201
$377
$1,248
NJ
$9
$29
$9
o
m
¦uy
NM
$467
$1,544
$485
$1,604
NV
$401
$1,329
$417
$1,381
NY
$1,051
$3,456
$1,091
$3,590
OH
$1,336
$4,412
$1,387
$4,583
OK
$443
$1,466
$460
$1,523
OR
$280
$892
$291
$927
PA
$4,107
$13,645
$4,267
$14,175
Rl
$28
$91
$29
$95
SC
$226
$729
$235
$757
SD
$314
$1,030
$327
$1,070
TN
$980
$3,204
$1,018
$3,328
TX
$5,303
$17,544
$5,509
$18,225
UT
$457
$1,511
$475
$1,570
VA
$478
$1,564
$496
$1,625
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 155
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Appendix C—Final Rule Analysis State-level Results
Table C-2: Estimated annualized permit costs by State, relative to the secondary baseline of the
2020 NWPR (thousands 2021$)
State
3% Discount Rate1,2
7% Discount Rate1,2
Low
High
Low
High
VT
$194
$636
$202
$661
WA
$357
$1,114
$371
$1,157
Wl
$1,282
$4,182
$1,332
$4,344
WV
$2,151
$7,149
$2,235
$7,427
WY
$184
$610
$191
$634
Total
$41,655
$136,200
$43,272
$141,489
1 For each State, permit costs are calculated by multiplying the estimated average annual increase in the number of single-
water individual and general permits (see Table C-l) by the low and high unit costs for each permit type from the Corps NWP
analysis ($16,300 to $39,000 per individual permit; $4,900 to $16,300 per general permit), summing the individual permit
and general permit values, and annualizing the values over the 2023-2042 analysis period.
2 Reflects expected costs in 49 States (excludes Hawaii and District of Columbia).
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 156
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Appendix C—Final Rule Analysis State-level Results
Table C-3: Estimated annualized mitigation costs by State, relative to the secondary baseline of
the 2020 NWPR (thousands 2021$
Cost Per Acre
(2021$)
Cost Per LF
(2021$)
Annualized Mitigation Costs1'2
State
(Thousands 2021$)
3% Discount Rate
7% Discount Rate
Low
High
Low
High
Low
High
Low
High
AK
$61,021
$119,104
$332
$763
$7,161
$14,041
$7,439
$14,587
AL
$61,021
$119,104
$301
$763
$5,865
$14,119
$6,093
$14,667
AR
$33,946
$61,468
$273
$610
$1,136
$2,365
$1,180
$2,457
AZ
$61,021
$94,921
$332
$763
$1,166
$2,058
$1,212
$2,138
CA
$237,304
$434,209
$332
$763
$33,883
$68,878
$35,199
$71,552
CO
$58,591
$81,915
$102
$407
$327
$693
$340
$720
CT
$371,963
$531,819
$332
$763
$737
$1,055
$765
$1,096
DE
$38,421
$282,504
$424
$791
$95
$333
$99
$346
FL
$61,021
$119,104
$332
$763
$33,355
$65,508
$34,650
$68,052
GA
$194,363
$307,365
$992
$1,102
$7,169
$10,258
$7,448
$10,656
IA
$41,555
$91,205
$102
$433
$844
$2,380
$877
$2,473
ID
$47,743
$91,627
$332
$763
$302
$673
$314
$699
IL
$72,834
$119,054
$258
$677
$1,949
$4,466
$2,025
$4,640
IN
$56,501
$80,231
$332
$719
$12,123
$25,042
$12,593
$26,014
KS
$61,021
$119,104
$102
$407
$2,993
$10,729
$3,110
$11,146
KY
$124,320
$186,480
$339
$853
$12,522
$29,399
$13,008
$30,540
LA
$11,300
$67,801
$332
$763
$2,115
$9,603
$2,197
$9,975
MA
$673,537
$702,114
$113
$226
$978
$1,025
$1,016
$1,064
MD
$70,815
$256,138
$624
$862
$664
$1,274
$690
$1,323
ME
$283,528
$423,323
$332
$763
$647
$966
$672
$1,004
Ml
$59,628
$147,806
$260
$1,122
$136
$382
$141
$397
MN
$10,502
$86,382
$332
$763
$3,389
$13,937
$3,521
$14,478
MO
$30,510
$91,531
$102
$458
$490
$1,831
$509
$1,902
MS
$29,380
$36,726
$301
$763
$1,825
$3,061
$1,896
$3,180
MT
$33,901
$41,811
$332
$763
$370
$660
$384
$686
NC
$29,883
$80,540
$336
$442
$1,034
$2,091
$1,074
$2,172
ND
$45,201
$67,801
$332
$763
$2,471
$4,795
$2,567
$4,981
NE
$61,021
$119,104
$102
$407
$635
$1,464
$660
$1,521
NH
$176,603
$249,008
$277
$831
$180
$257
$187
$267
NJ
$42,941
$339,005
$332
$763
00
1
¦uy
$123
$19
$128
NM
$58,591
$81,915
$332
$763
$264
$417
$274
$433
NV
$119,971
$223,524
$332
$763
$295
$621
$306
$645
NY
$81,361
$103,487
$350
$475
$857
$1,119
$890
$1,162
OH
$42,376
$244,084
$186
$1,526
$2,069
$15,403
$2,149
$16,001
OK
$56,162
$68,907
$266
$627
$151
$254
$157
$264
OR3
$61,586
$141,444
$332
$763
$2,773
$6,367
$2,880
$6,615
PA
$75,429
$222,495
$453
$977
$1,592
$3,890
$1,653
$4,041
Rl
$522,751
$616,967
$332
$763
$656
$785
$682
$816
SC
$112,124
$193,953
$664
$772
$2,943
$4,831
$3,057
$5,018
SD
$45,201
$67,801
$332
$763
$624
$1,179
$648
$1,225
TN
$42,376
$42,376
$271
$409
$1,059
$1,472
$1,101
$1,529
TX
$61,021
$119,104
$593
$1,017
$12,971
$23,340
$13,474
$24,246
UT
$61,021
$119,104
$332
$763
$740
$1,588
$769
$1,650
VA
$33,901
$226,004
$424
$791
$1,985
$5,373
$2,062
$5,582
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 157
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Appendix C—Final Rule Analysis State-level Results
Table C-3: Estimated annualized rr
the 2020 NWPR (thousands 2021$
litigation costs by State, relative to the secondary baseline of
State
Cost Per Acre
(2021$)
Cost Per LF
(2021$)
Annualized Mitigation Costs1'2
(Thousands 2021$)
3% Discount Rate
7% Discount Rate
Low
High
Low
High
Low
High
Low
High
VT
$124,302
$148,653
$332
$763
$146
$180
$152
$187
WA4
$78,337
$1,259,398
$332
$763
$2,517
$17,679
$2,615
$18,366
Wl
$80,005
$119,104
$332
$763
$4,347
$8,428
$4,516
$8,755
WV
$135,602
$203,403
$823
$933
$2,938
$3,468
$3,053
$3,603
WY
$47,084
$57,255
$332
$763
$256
$440
$266
$457
Total
$175,763
$390,299
$182,589
$405,457
1 For each State, costs are calculated by multiplying the cost of each mitigation acre or linear foot (low and high estimates)
by the expected increase in annual mitigation requirements (see Table C-l), summing the acreage and linear feet values, and
annualizing the values over the 2023-2042 analysis period.
2 Reflects expected costs in 49 States (excludes Hawaii and District of Columbia).
3The values for price per linear feet in Oregon have been updated since the Economic Analysis for the Proposed Rule to
reflect the national median values. Prior values had used price per acre of stream rather than linear feet.
4The values for acres in Washington are comparatively higher than other States. In Washington, the prices per acre are
conversions based on application of Credit-Debit methodology.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 158
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Appendix C—Final Rule Analysis State-level Results
Table C-4: Total estimated annualized costs by State, relative to the secondary baseline of the
2020 NWPR (thousands 2021$)
State
3% Discount Rate1
7% Discount Rate1
Low
High
Low
High
AK
$7,674
$15,571
$7,972
$16,175
AL
$6,258
$15,383
$6,501
$15,980
AR
$2,521
$6,945
$2,619
$7,214
AZ
$1,742
$3,945
$1,810
$4,098
CA
$36,931
$78,920
$38,365
$81,985
CO
$876
$2,495
$910
$2,592
CT
$853
$1,439
$886
$1,495
DE
$127
$436
$132
$453
FL
$34,310
$68,365
$35,643
$71,020
GA
$7,660
$11,852
$7,957
$12,313
IA
$1,361
$4,063
$1,414
$4,221
ID
$623
$1,731
$647
$1,798
IL
$2,995
$7,899
$3,111
$8,206
IN
$12,823
$27,340
$13,321
$28,402
KS
$4,359
$15,241
$4,528
$15,833
KY
$12,884
$30,592
$13,384
$31,780
LA
$3,832
$14,939
$3,981
$15,519
MA
$1,129
$1,522
$1,173
$1,581
MD
$878
$1,971
$912
$2,047
ME
$1,092
$2,429
$1,135
$2,524
Ml
$1,161
$3,624
$1,206
$3,765
MN
$4,182
$16,434
$4,344
$17,072
MO
$2,566
$8,703
$2,666
$9,041
MS
$2,421
$4,990
$2,515
$5,184
MT
$652
$1,588
$677
$1,650
NC
$1,748
$4,425
$1,816
$4,597
ND
$3,021
$6,608
$3,139
$6,865
NE
$948
$2,496
$985
$2,593
NH
$543
$1,459
$564
$1,515
NJ
$27
$152
$29
$158
NM
$731
$1,961
$759
$2,037
NV
$696
$1,951
$723
$2,026
NY
$1,907
$4,575
$1,981
$4,752
OH
$3,404
$19,815
$3,536
$20,585
OK
$594
$1,720
$617
$1,787
OR
$3,053
$7,260
$3,172
$7,542
PA
$5,699
$17,534
$5,920
$18,215
Rl
$684
$877
$711
$911
SC
$3,169
$5,559
$3,292
$5,775
SD
$938
$2,209
$975
$2,294
TN
$2,040
$4,676
$2,119
$4,858
TX
$18,274
$40,884
$18,983
$42,472
UT
$1,197
$3,100
$1,244
$3,220
VA
$2,463
$6,937
$2,559
$7,207
VT
$341
$816
$354
$848
WA
$2,874
$18,793
$2,985
$19,523
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 159
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Appendix C—Final Rule Analysis State-level Results
Table C-4: Total estimated annualized costs by State, relative to the secondary baseline of the
2020 NWPR (thousands 2021$)
State
3% Discount Rate1
7% Discount Rate1
Low
High
Low
High
Wl
$5,629
$12,610
$5,847
$13,100
wv
$5,090
$10,618
$5,287
$11,030
WY
$440
$1,050
$457
$1,090
Total
$217,418
$526,499
$225,861
$546,946
1 Reflects expected costs in 49 States (excludes Hawaii and District of Columbia).
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 160
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Appendix C—Final Rule Analysis State-level Results
Table C-5: Total national annualized benefits by State, relative to the baseline of the 2020 NWPR (millions 2021$, 3% discount rate)
State
Number of affected
households in 2019
(millions)1'2
Average household WTP per 100 acres (2021$)1,3
Annualized benefits (millions 2021$; 3% discount rate)13'4
50-mile radius
100-mile
radius
200-mile
radius
50-mile radius
100-mile radius
200-mile radius
AK
0.3
$1.12
$1.12
$1.12
$3.3
$3.3
$3.3
AL
1.9
$16.14
$5.59
$3.22
$35.4
$41.2
$59.9
AR
1.2
$16.19
$5.35
$2.76
$5.4
$6.7
$13.8
AZ
2.6
$3.84
$1.57
$0.87
$2.8
$3.2
$4.3
CA
13.0
$2.06
$0.77
$0.46
$63.6
$70.6
$78.4
CO
2.1
$1.63
$0.67
$0.44
$1.3
$1.4
$1.5
CT
1.4
$0.63
$0.19
$0.10
$0.1
$0.1
$0.2
DE
0.4
$0.56
$0.16
$0.09
$0.0
$0.0
$0.1
FL
7.7
$14.60
$6.52
$3.61
$775.4
$873.3
$1,062.7
GA
3.8
$17.27
$5.96
$2.60
$42.1
$48.5
$93.8
IA
1.3
$4.12
$1.52
$0.73
$2.4
$2.9
$5.2
ID
0.6
$2.13
$0.91
$0.48
$0.1
$0.1
$0.1
IL
4.8
$5.98
$1.78
$0.99
$11.0
$13.6
$25.7
IN
2.6
$6.90
$2.42
$1.42
$16.4
$21.6
$34.4
KS
1.1
$2.50
$1.05
$0.64
$4.2
$4.5
$6.1
KY
1.7
$14.63
$5.31
$3.10
$31.9
$43.9
$72.8
LA
1.7
$16.06
$7.39
$3.40
$58.1
$66.8
$91.7
MA
2.6
$0.50
$0.18
$0.10
$0.2
$0.3
$0.4
MD
2.2
$0.55
$0.24
$0.13
$0.5
$0.5
$0.8
ME
0.6
$0.58
$0.23
$0.12
$0.0
$0.0
$0.0
Ml
3.9
$5.51
$2.05
$0.84
$1.2
$1.9
$6.3
MN
2.2
$3.84
$1.38
$0.88
$17.3
$19.8
$29.0
MO
2.4
$4.98
$1.67
$0.87
$8.7
$9.4
$17.2
MS
1.1
$16.45
$5.51
$2.68
$17.1
$21.4
$35.4
MT
0.4
$3.33
$1.05
$0.55
$0.1
$0.1
$0.2
NC
4.0
$17.05
$5.74
$2.91
$26.1
$32.6
$62.0
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 161
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Appendix C—Final Rule Analysis State-level Results
Table C-5: Total national annualized benefits by State, relative to the baseline of the 2020 NWPR (millions 2021$, 3% discount rate)
State
Number of affected
households in 2019
(millions)1'2
Average household WTP per 100 acres (2021$)1,3
Annualized benefits (millions 2021$; 3% discount rate)13'4
50-mile radius
100-mile
radius
200-mile
radius
50-mile radius
100-mile radius
200-mile radius
ND
0.3
$1.03
$0.46
$0.32
$0.5
$0.5
$1.1
NE
0.8
$2.42
$0.90
$0.38
$2.7
$2.9
$3.7
NH
0.5
$0.58
$0.24
$0.14
$0.0
$0.0
$0.1
NJ
3.2
$0.56
$0.21
$0.10
$0.1
$0.2
$0.4
NM
0.8
$2.10
$0.65
$0.29
$0.0
$0.1
$0.1
NV
1.1
$1.61
$0.53
$0.27
$1.3
$1.5
$2.0
NY
7.3
$0.61
$0.24
$0.12
$0.4
$0.5
$1.0
OH
4.7
$5.96
$2.22
$1.23
$17.8
$21.1
$36.1
OK
1.5
$12.29
$4.14
$1.74
$2.2
$2.6
$7.5
OR
1.6
$2.25
$0.86
$0.52
$4.8
$5.3
$6.1
PA
5.1
$0.53
$0.17
$0.09
$0.4
$0.5
$1.0
Rl
0.4
$0.74
$0.23
$0.11
$0.1
$0.1
$0.1
SC
1.9
$15.88
$5.83
$3.20
$25.1
$30.1
$47.0
SD
0.3
$1.10
$0.40
$0.21
$0.2
$0.3
$0.5
TN
2.6
$15.66
$4.32
$2.39
$14.0
$20.6
$64.7
TX
9.7
$8.71
$3.12
$1.73
$188.5
$205.4
$283.3
UT
1.0
$1.12
$0.57
$0.32
$0.2
$0.2
$0.3
VA
3.2
$3.64
$1.51
$0.82
$4.6
1
LO
¦uy
$6.6
VT
0.3
$0.72
$0.30
$0.13
$0.0
$0.0
$0.0
WA
2.8
$2.76
$0.90
$0.55
$6.5
$7.0
$8.0
Wl
2.4
$5.46
$1.92
$1.10
$6.9
$8.4
$13.2
WV
0.7
$2.35
$0.79
$0.48
$0.4
$0.6
$1.4
WY
0.2
$1.50
$0.45
$0.22
$0.0
$0.0
$0.0
Total
120.0
-
-
-
$1,401.7
$1,601.0
$2,189.8
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 162
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Appendix C—Final Rule Analysis State-level Results
Table C-5: Total national annualized benefits by State, relative to the baseline of the 2020 NWPR (millions 2021$, 3% discount rate)
State
Number of affected
households in 2019
(millions)1'2
Average household WTP per 100 acres (2021$)1,3
Annualized benefits (millions 2021$; 3% discount rate)13'4
50-mile radius
100-mile
radius
200-mile
radius
50-mile radius
100-mile radius
200-mile radius
1 Based on the number of households in all States excluding Hawaii and the District of Columbia.
2 Number of households is based on 2019 American Community Survey data. The agencies accounted for population growth and the change in the number of households
throughout the 2023-2042 study period using population projections from Hauer et al. (2021).
3 Benefit estimates are based on a benefit transfer application of the Pooled Model to 50-mile, 100-mile, and 200-mile buffers of county centroids for counties in the
conterminous United States (excluding Hawaii, Alaska, and the District of Columbia; see Appendix B for detail).
4Total benefits are annualized over the 2023-2042 analysis period. Given data limitations, benefits could not be calculated for Alaska at a level finer than the State (i.e., at a
county-equivalent level) for the 50-mile, 100-mile, and 200-mile buffer market extents. National benefits for the three buffer market extents include estimated benefits for
Alaska using a State-specific benefit transfer (see Appendix D for details). Total annualized benefits for some states display as zero due to rounding.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule
163
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Appendix C—Final Rule Analysis State-level Results
Table C-6: Total national annualized benefits by State, relative to the baseline of the 2020 NWPR (millions 2021$, 7% discount rate)
State
Nu mber of affected
households in 2019
(millions)1'2
Average household WTP per 100 acres (2021$)1,3
Annualized benefits (millions 2021$; 7% discount rate)1,3,4
50-mile radius
100-mile radius
200-mile radius
50-mile radius
100-mile radius
200-mile radius
AK
0.3
$1.12
$1.12
$1.12
$2.9
$2.9
$2.9
AL
1.9
$16.14
$5.59
$3.22
$30.7
$35.6
$51.8
AR
1.2
$16.19
$5.35
$2.76
$4.6
$5.8
$11.9
AZ
2.6
$3.84
$1.57
$0.87
$2.4
$2.8
$3.7
CA
13.0
$2.06
$0.77
$0.46
$52.3
$58.1
$64.6
CO
2.1
$1.63
$0.67
$0.44
$1.1
$1.2
$1.2
CT
1.4
$0.63
$0.19
$0.10
$0.1
$0.1
$0.2
DE
0.4
$0.56
$0.16
$0.09
$0.0
$0.0
$0.1
FL
7.7
$14.60
$6.52
$3.61
$669.0
$753.5
$917.1
GA
3.8
$17.27
$5.96
$2.60
$36.3
$41.8
$81.0
IA
1.3
$4.12
$1.52
$0.73
$2.1
$2.5
$4.5
ID
0.6
$2.13
$0.91
$0.48
$0.1
$0.1
$0.1
IL
4.8
$5.98
$1.78
$0.99
$9.6
$11.9
$22.5
IN
2.6
$6.90
$2.42
$1.42
$14.3
$18.8
$30.0
KS
1.1
$2.50
$1.05
$0.64
$3.6
$3.9
$5.3
KY
1.7
$14.63
$5.31
$3.10
$27.8
$38.2
$63.3
LA
1.7
$16.06
$7.39
$3.40
$50.1
$57.6
$78.9
MA
2.6
$0.50
$0.18
$0.10
$0.2
$0.2
$0.3
MD
2.2
$0.55
$0.24
$0.13
$0.4
$0.5
$0.7
ME
0.6
$0.58
$0.23
$0.12
$0.0
$0.0
$0.0
Ml
3.9
$5.51
$2.05
$0.84
$1.1
$1.6
$5.5
MN
2.2
$3.84
$1.38
$0.88
$14.9
$17.1
$25.0
MO
2.4
$4.98
$1.67
$0.87
$7.6
$8.2
$15.0
MS
1.1
$16.45
$5.51
$2.68
$14.8
$18.4
$30.5
MT
0.4
$3.33
$1.05
$0.55
$0.1
$0.1
$0.1
NC
4.0
$17.05
$5.74
$2.91
$22.4
$28.0
$53.3
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 164
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Appendix C—Final Rule Analysis State-level Results
Table C-6: Total national annualized benefits by State, relative to the baseline of the 2020 NWPR (millions 2021$, 7% discount rate)
State
Nu mber of affected
households in 2019
(millions)1'2
Average household WTP per 100 acres (2021$)1,3
Annualized benefits (millions 2021$; 7% discount rate)1,3,4
50-mile radius
100-mile radius
200-mile radius
50-mile radius
100-mile radius
200-mile radius
ND
0.3
$1.03
$0.46
$0.32
$0.4
$0.4
$0.9
NE
0.8
$2.42
$0.90
$0.38
$2.4
$2.5
$3.2
NH
0.5
$0.58
$0.24
$0.14
$0.0
$0.0
$0.0
NJ
3.2
$0.56
$0.21
$0.10
$0.1
$0.2
$0.4
NM
0.8
$2.10
$0.65
$0.29
$0.0
$0.0
$0.1
NV
1.1
$1.61
$0.53
$0.27
$1.1
$1.3
$1.7
NY
7.3
$0.61
$0.24
$0.12
$0.3
$0.4
$0.8
OH
4.7
$5.96
$2.22
$1.23
$15.5
$18.4
$31.4
OK
1.5
$12.29
$4.14
$1.74
$1.9
$2.3
$6.4
OR
1.6
$2.25
$0.86
$0.52
$4.1
$4.6
$5.3
PA
5.1
$0.53
$0.17
$0.09
$0.3
$0.5
$0.9
Rl
0.4
$0.74
$0.23
$0.11
$0.1
$0.1
$0.1
SC
1.9
$15.88
$5.83
$3.20
$21.6
$26.0
$40.5
SD
0.3
$1.10
$0.40
$0.21
$0.2
$0.2
$0.4
TN
2.6
$15.66
$4.32
$2.39
$12.1
$17.8
$55.9
TX
9.7
$8.71
$3.12
$1.73
$161.0
$175.3
$241.5
UT
1.0
$1.12
$0.57
$0.32
$0.2
$0.2
$0.2
VA
3.2
$3.64
$1.51
$0.82
$4.0
$4.4
$5.7
VT
0.3
$0.72
$0.30
$0.13
$0.0
$0.0
$0.0
WA
2.8
$2.76
$0.90
$0.55
$5.6
$6.0
$6.9
Wl
2.4
$5.46
$1.92
$1.10
$5.9
$7.3
$11.4
WV
0.7
$2.35
$0.79
$0.48
$0.3
$0.5
$1.2
WY
0.2
$1.50
$0.45
$0.22
$0.0
$0.0
$0.0
Total
120.0
-
-
-
$1,205.5
$1,377.2
$1,884.6
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 165
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Appendix C—Final Rule Analysis State-level Results
Table C-6: Total national annualized benefits by State, relative to the baseline of the 2020 NWPR (millions 2021$, 7% discount rate)
State
Nu mber of affected
households in 2019
(millions)1'2
Average household WTP per 100 acres (2021$)1,3
Annualized benefits (millions 2021$; 7% discount rate)1,3,4
50-mile radius
100-mile radius
200-mile radius
50-mile radius
100-mile radius
200-mile radius
1 Based on the number of households in all States excluding Hawaii and the District of Columbia.
2 Number of households is based on 2019 American Community Survey data. The agencies accounted for population growth and the change in the number of households
throughout the 2023-2042 study period using population projections from Hauer et al. (2021).
3 Benefit estimates are based on a benefit transfer application of the Pooled Model to 50-mile, 100-mile, and 200-mile buffers of county centroids for counties in the
conterminous United States (excluding Hawaii, Alaska, and the District of Columbia; see Appendix B for detail).
4Total benefits are annualized over the 2023-2042 analysis period. Given data limitations, benefits could not be calculated for Alaska at a level finer than the State (i.e., at a
county-equivalent level) for the 50-mile, 100-mile, and 200-mile buffer market extents. National benefits for the three buffer market extents include estimated benefits for
Alaska using a State-specific benefit transfer (see Appendix D for details). Total annualized benefits for some states display as zero due to rounding.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule
166
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Appendix D Sensitivity Analysis of National Benefits
Appendix D Sensitivity Analysis of National Benefits
The approach for estimating benefits used for the final analysis follows the same basic approach used for
the proposal analysis, but does include some changes to the valuation function. To assess the sensitivity
of national benefits estimates to changes in the valuation function (/'. e., inclusion of saltwater studies in
MRM) and benefit transfer approach, the agencies estimated WTP for increased wetland mitigation
requirements using both the Pooled and Freshwater models in conjunction of alternative settings for the
lumpsum variable using the State-level approach to benefit transfer. A comparison of the national benefits
estimates across these alternatives is presented in Table D-3 below. Table D-3 also includes estimates
from the proposed rule analysis for comparative purposes. Although Table D-3 includes total national
benefits annualized using both 3 percent and 7 percent discount rates, the discussion below focuses on the
results based on the 3 percent discount rates.
To address the potential effects of (1) using a radius-based, rather than a State-specific, benefit transfer
approach and (2) using annual payments for the cumulative avoided wetland loss (from an increase in
mitigation requirements), rather than a lumpsum payment for the average annual avoided wetland losses
from one year to the next, the agencies analyzed the benefits from the Pooled Model using State-specific
benefit transfers and each payment assumption (i.e.. applying the State-level MRM settings from Table B-
4, Lumpsum=0 and Lumpsum=l). State-level annualized benefits based on the Pooled Model are
presented in Table D-l. Total national annualized benefits are presented in Table D-3 under the panel
"Pooled model using a State-specific benefit transfer approach".
For the lumpsum approach, the calculations for (f?0*'?1) are described in Scenarios I through IV in
Appendix C (U.S. EPA and Army, 2021)). However, the proposed rule analysis assumed a static baseline.
In the final rule analysis, the agencies accounted for potential changes to the baseline wetland areas from
year to year and adjusted calculations in scenarios I through IV as follows:
Scenario I: Local, forested wetlands (local = 1 and forested = 1 in XfS)
(Jq
asetfoT ^Nperm^^^ Rperm
^Ntemp^WPRtemp * 0
tyl baseRoT CtgperniRcipClYlOSperni ^RternpR^P^^^^ternp * 0
Scenario II: Local, non-forested wetlands (local = 1 and forested = 0 inxfS)
qo (1 ^)C.^baseRoT &Nperm^^^R Rperm
CtNtempNWPRtemp *
C[l (1 ty(.^baseRoT CC^per7nRcipClTlOSper7n CC^e7npRcipClTlOSte7np * /)
Scenario III: Non-local, forested wetlands (local = 0 and forested = 1 in XfS)
Ro ^-[(1 CCbase^RoT (1 &Nperm)NWPRperm (1 ^Ntemp^^^^^temp *
Rl ^base^tfoT ^Rperm}^^P^^'^^perm ^Rtemp>)^^P^'^'^^temp *
Scenario IV: Non-local, non-forested wetlands (local = 0 and forested = 0 in x&)
q0 = (1 -A)[(l -ab
ase^QoT (1 ®Nperm
}NWPRperm (1 (X-Ntemp)NWPRtemp * I]
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 167
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Appendix D Sensitivity Analysis of National Benefits
CJi (1 A)[(l &base^RoT (1 ^Rperm)^^P^^^^perm (1 ^Rtemp^^^-P^-^^^temp * I\
where / is an indicator variable equal to zero in the first 5 years of the analysis period and equal to 1 in
the last 15 years. Average annual increases in mitigation acres are calculated from the difference in
permanent wetland mitigation acres between the 2020 NWPR and the final rule, with temporary
mitigation acres included after a 5-year delay. Using the State of Texas in Table B-4 as an example, the
average annual increase in permanent mitigation acres in years 2023 through 2027 is 65.1, and the
average annual increase in permanent and temporary mitigation acres in years 2028-2042 is 104.0.
To address the potential effect of including saltwater studies in the meta-data, the agencies also estimated
WTP for increased mitigation requirements using the Freshwater Model. Appendix B presents a
comparison of the meta-regression results (which can be found in Table B-3) and describes the benefit
transfer methodology used in benefits estimation. State-level annualized benefits are presented in Table
D-2. Total national annualized benefits for both settings of lumpsum are presented in Table D-3 under the
panel "Freshwater Model using a State-specific benefit transfer approach".
Effects of using the lumpsum approach versus annual payments. Using the "Pooled Model and a State-
specific benefit transfer approach" (panel in Table D-3) the total national annualized benefits are slightly
lower, when payments are assumed to be made as a lumpsum ($1,965.5 million) compared to annual
payments ($2,034.5 million).
Effects of using the radius-based approach versus the State-level approach. The estimated national
benefits using the 50- and 100-mile radius approaches are approximately 31 and 21 percent lower than the
State-level benefit transfer application, and the 200-mile radius approach is approximately 8 percent
higher than the State approach. These differences are primarily driven by annualized benefits in the State
of Florida which has the largest increase in wetland mitigation acres (an increase in average annual
wetland mitigation acres of 516.0). For example, benefits for the State of Florida are 1.6 times as large
when compared to benefits estimates for this State using the 100-mile radius approach. The difference in
the total national annualized benefits estimates is directly attributable to the difference in benefit transfer
approaches.
Effects of adding saltwater studies to the meta-data. As shown in the "Freshwater Model using a State-
specific benefit transfer approach" panel in Table D-3, the total national annualized benefits ($2,274.2
million) are 12 percent higher compared to the national benefits estimated using the application of the
"Pooled Model" and lumpsum=0 (82 percent higher when comparing results based on lumpsum= l).115
The effects of using augmented meta-data and re-estimated MRMs. The agencies compared the estimated
national annualized benefits using the benefit transfer approach described in the proposed rule EA (Model
1) to the estimated national benefits using the Pooled Model and the identical benefit transfer approach
115 The substantial increase in total national annualized benefits under a lumpsum=l scenario is due to the relatively large
coefficient on the lumpsum variable in the Freshwater Model. Using the mean coefficient, payments made in the form of a
lumpsum result in an increase in WTP by a factor of 14.2 (when using the Pooled Model, the increase in WTP is by a factor
of 8.3).
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 168
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Appendix D Sensitivity Analysis of National Benefits
(i.e., using the State-specific benefit transfer application and lumpsum=l).U6 As shown, in the "Original
model using a State-specific benefit transfer approach" panel of Table D-3, The total national benefits
based on the 2021 MRM ($1,987.5 million) are one percent higher compared to the Pooled Model results
using a State-specific benefit transfer and lumpsum=1 ($1,965.5 million).
The MRM was re-estimated after WTP values and household income in the meta-data were adjusted to 2021$. The impacted
acres applied in the benefits transfer, which can be found in Table B-4, are identical to all other State-level benefit transfer
runs.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 169
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Appendix D —Sensitivity Analysis of National Benefits
Table D-1: Total national annualized benefits by State, from the Pooled Model using a State-specific benefit transfer approach
State
Number of affected
households in 2019
(millions)1,2
Average household WTP per 100 acres
(2021$)1'3
Total annualized benefits (millions 2021$)13'4
3% Discount rate
7% Discount rate
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
AK
0.3
$1.12
$10.17
$3.3
$3.2
$2.9
$3.1
AL
1.9
$3.09
$29.08
$20.9
$20.9
$18.1
$20.7
AR
1.2
$3.54
$33.22
$5.8
$5.8
$5.0
$5.7
AZ
2.6
$1.59
$11.80
$6.7
$5.1
$5.7
$5.0
CA
13.0
$0.50
$3.70
$70.0
$60.7
$58.6
$56.7
CO
2.1
$0.33
$2.44
$0.4
$0.3
$0.4
$0.3
CT
1.4
$0.15
$1.05
$0.0
$0.0
$0.0
$0.0
DE
0.4
$0.17
$1.20
$0.0
$0.0
$0.0
$0.0
FL
7.7
$2.94
$28.03
$1,426.8
$1,376.4
$1,232.4
$1,356.6
GA
3.8
$3.28
$30.91
$38.0
$36.8
$32.9
$36.3
IA
1.3
$1.40
$12.69
$3.2
$3.0
$2.8
$3.0
ID
0.6
$1.09
$9.88
$0.2
$0.1
$0.1
$0.1
IL
4.8
$1.29
$11.66
$8.5
$8.2
$7.4
$8.1
IN
2.6
$1.74
$15.71
$29.3
$27.5
$25.5
$27.4
KS
1.1
$0.96
$8.70
$4.0
$3.8
$3.5
$3.8
KY
1.7
$2.30
$20.72
$20.9
$19.7
$18.2
$19.6
LA
1.7
$4.09
$38.61
$82.4
$82.5
$71.0
$80.9
MA
2.6
$0.15
$1.02
$0.0
$0.0
$0.0
$0.0
MD
2.2
$0.23
$1.61
$0.2
1
o
¦uy
1
o
¦uy
1
o
¦uy
ME
0.6
$0.15
$1.04
$0.0
$0.0
$0.0
$0.0
Ml
3.9
$1.02
$9.37
$0.8
$0.7
$0.7
$0.7
MN
2.2
$1.25
$11.49
$26.4
$26.5
$22.6
$25.6
MO
2.4
$1.17
$10.64
$2.9
$2.8
$2.5
$2.8
MS
1.1
$3.13
$29.40
$12.5
$13.1
$10.7
$12.6
MT
0.4
$0.34
$2.53
$0.1
$0.1
$0.1
$0.1
NC
4.0
$3.22
$30.25
$24.9
$24.8
$21.4
$24.1
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 170
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Appendix D —Sensitivity Analysis of National Benefits
Table D-1: Total national annualized benefits by State, from the Pooled Model using a State-specific benefit transfer approach
State
Number of affected
households in 2019
(millions)1,2
Average household WTP per 100 acres
(2021$)1'3
Total annualized benefits (millions 2021$)13'4
3% Discount rate
7% Discount rate
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
ND
0.3
$0.28
$2.58
$0.4
$0.3
$0.3
$0.3
NE
0.8
$0.56
$5.10
$0.5
$0.4
$0.4
$0.4
NH
0.5
$0.25
$1.75
$0.0
$0.0
$0.0
$0.0
NJ
3.2
$0.19
$1.33
$0.0
$0.0
$0.0
$0.0
NM
0.8
$0.71
$5.27
$0.1
$0.1
$0.1
$0.1
NV
1.1
$0.31
$2.34
$0.1
$0.0
$0.1
$0.0
NY
7.3
$0.17
$1.21
$0.8
$0.6
$0.7
$0.6
OH
4.7
$2.06
$18.53
$21.2
$20.3
$18.4
$20.2
OK
1.5
$3.40
$31.91
$1.0
$1.0
$0.9
$1.0
OR
1.6
$0.39
$2.93
$2.5
$1.9
$2.1
$1.9
PA
5.1
$0.14
$0.98
$0.5
$0.4
$0.4
$0.4
Rl
0.4
$0.19
$1.32
$0.0
$0.0
$0.0
$0.0
SC
1.9
$3.47
$32.59
$17.2
$16.5
$14.9
$16.3
SD
0.3
$0.23
$2.14
$0.1
$0.1
$0.1
$0.1
TN
2.6
$3.04
$28.58
$7.7
$7.5
$6.7
$7.4
TX
9.7
$1.91
$17.97
$182.3
$182.9
$154.5
$174.5
UT
1.0
$0.45
$3.36
$0.3
$0.3
$0.3
$0.2
VA
3.2
$0.20
$1.38
$0.9
$0.7
$0.8
$0.6
VT
0.3
$0.28
$1.95
$0.0
$0.0
$0.0
$0.0
WA
2.8
$0.75
$5.57
$3.7
$2.9
$3.1
$2.8
Wl
2.4
$1.13
$10.31
$7.1
$7.2
$6.1
$7.0
WV
0.7
$0.12
$0.84
$0.0
$0.0
$0.0
$0.0
WY
0.2
$0.54
$4.02
$0.0
$0.0
$0.0
$0.0
Total
120.0
$2,034.5
$1,965.5
$1,752.3
$1,927.3
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 171
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Appendix D —Sensitivity Analysis of National Benefits
State
Number of affected
households in 2019
(millions)1,2
Average household WTP per 100 acres
(2021$)1'3
Total annualized benefits (millions 2021$)13'4
3% Discount rate
7% Discount rate
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
Table D-1: Total national annualized benefits by State, from the Pooled Model using a State-specific benefit transfer approach
1 Based on the number of households in all States excluding Hawaii and the District of Columbia.
2 Number of households is based on 2019 American Community Survey data. The agencies accounted for population growth and the change in the number of households
throughout the 2023-2042 study period (Hauer et al., 2021).
3 Benefit estimates are based on a benefit transfer application of the Pooled Model to all States except for Hawaii, and the District of Columbia (see Appendix B for detail).
When lumpsum = 0, the benefit transfer estimates the household WTP for the cumulative increase in wetland mitigation acres between the 2020 NWPWR and the final rule.
When lumpsum = 1, the benefit transfer estimates the household WTP for the year-to-year increase in wetland mitigation acres between the 2020 NWPWR and the final rule.
4Total benefits are annualized over the 2023-2042 analysis period. Total annualized benefits for some states display as zero due to rounding.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule
172
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Appendix D —Sensitivity Analysis of National Benefits
Table D-2: Total national annualized benefits by State, from the Freshwater Model using a State-specific benefit transfer approach
State
Number of
affected
households in
2019 (millions)1'2
Average household WTP per 100 acres
(2021$)1'3
Annualized benefits
millions 2021$)13'4
3% Discount rate
7% Discount rate
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
AK
0.3
$1.26
$18.91
$3.7
$5.9
$3.2
$5.8
AL
1.9
$4.07
$62.47
$27.4
$45.0
$23.8
$44.4
AR
1.2
$4.87
$74.83
$8.0
$13.0
$6.9
$12.8
AZ
2.6
$1.06
$13.32
$4.5
$5.8
$3.8
$5.6
CA
13.0
$0.32
$4.00
$44.7
$65.4
$37.4
$61.1
CO
2.1
$0.21
$2.69
$0.3
$0.3
$0.2
$0.3
CT
1.4
$0.06
$0.76
$0.0
$0.0
$0.0
$0.0
DE
0.4
$0.07
$0.85
$0.0
$0.0
$0.0
$0.0
FL
7.7
$3.21
$49.52
$1,557.8
$2,431.7
$1,345.5
$2,396.5
GA
3.8
$4.09
$62.91
$47.5
$75.0
$41.1
$73.9
IA
1.3
$1.58
$23.79
$3.6
$5.6
$3.1
$5.6
ID
0.6
$1.19
$17.94
$0.2
$0.3
$0.1
$0.3
IL
4.8
$1.45
$21.75
$9.5
$15.2
$8.3
$15.2
IN
2.6
$1.94
$29.03
$32.6
$50.8
$28.4
$50.6
KS
1.1
$1.06
$15.97
$4.4
$7.0
$3.9
$6.9
KY
1.7
$2.62
$39.16
$23.8
$37.2
$20.7
$37.0
LA
1.7
$5.16
$79.56
$104.0
$170.1
$89.6
$166.6
MA
2.6
$0.06
$0.70
$0.0
$0.0
$0.0
$0.0
MD
2.2
$0.09
$1.06
1
o
¦uy
1
o
¦uy
$0.1
$0.1
ME
0.6
$0.05
$0.61
$0.0
$0.0
$0.0
$0.0
Ml
3.9
$0.89
$13.32
$0.7
$1.0
$0.6
$1.0
MN
2.2
$1.12
$16.83
$23.8
$38.9
$20.3
$37.5
MO
2.4
$1.30
$19.53
$3.2
$5.2
$2.8
$5.1
MS
1.1
$4.11
$63.20
$16.4
$28.1
$14.0
$27.1
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 173
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Appendix D —Sensitivity Analysis of National Benefits
Table D-2: Total national annualized benefits by State, from the Freshwater Model using a State-specific benefit transfer approach
State
Number of
affected
households in
2019 (millions)1'2
Average household WTP per 100 acres
(2021$)1'3
Annualized benefits
millions 2021$)13'4
3% Discount rate
7% Discount rate
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
MT
0.4
$0.21
$2.64
$0.1
$0.1
$0.0
$0.1
NC
4.0
$4.26
$65.35
$32.9
$53.6
$28.3
$52.1
ND
0.3
$0.28
$4.27
$0.4
$0.6
$0.3
$0.5
NE
0.8
$0.63
$9.60
$0.5
$0.8
$0.4
$0.8
NH
0.5
$0.10
$1.19
$0.0
$0.0
$0.0
$0.0
NJ
3.2
$0.07
$0.87
$0.0
$0.0
$0.0
$0.0
NM
0.8
$0.48
$6.01
$0.1
$0.1
$0.1
$0.1
NV
1.1
$0.21
$2.70
$0.0
$0.1
$0.0
$0.1
NY
7.3
$0.06
$0.74
$0.3
$0.4
$0.2
$0.4
OH
4.7
$2.35
$35.27
$24.2
$38.6
$21.1
$38.4
OK
1.5
$4.94
$76.36
$1.5
$2.4
$1.3
$2.4
OR
1.6
$0.25
$3.20
$1.6
$2.1
$1.4
$2.0
PA
5.1
$0.06
$0.67
$0.2
$0.3
$0.2
$0.3
Rl
0.4
$0.08
$0.96
$0.0
$0.0
$0.0
$0.0
SC
1.9
$4.60
$70.78
$22.8
$35.9
$19.8
$35.5
SD
0.3
$0.23
$3.57
$0.1
1
o
¦uy
1
o
¦uy
1
o
¦uy
TN
2.6
$4.48
$69.28
$11.4
$18.2
$9.8
$18.0
TX
9.7
$2.64
$40.77
$252.1
$414.9
$213.6
$395.9
UT
1.0
$0.29
$3.62
$0.2
$0.3
$0.2
$0.3
VA
3.2
$0.07
$0.87
$0.3
$0.4
$0.3
$0.4
VT
0.3
$0.11
$1.32
$0.0
$0.0
$0.0
$0.0
WA
2.8
$0.50
$6.34
$2.5
$3.3
$2.1
$3.2
Wl
2.4
$1.10
$16.43
$6.9
$11.5
$5.9
$11.1
WV
0.7
$0.05
$0.60
$0.0
$0.0
$0.0
$0.0
WY
0.2
$0.34
$4.34
$0.0
$0.0
$0.0
$0.0
Total
120.0
$2,274.2
$3,585.2
$1,958.9
$3,515.2
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 174
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Appendix D —Sensitivity Analysis of National Benefits
State
Number of
affected
households in
2019 (millions)1'2
Average household WTP per 100 acres
Annualized benefits
millions 2021$)13'4
(2021$)1'3
3% Discount rate
7% Discount rate
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
Lumpsum=0
Lumpsum=l
Table D-2: Total national annualized benefits by State, from the Freshwater Model using a State-specific benefit transfer approach
1 Based on the number of households in all States excluding Hawaii and the District of Columbia.
2 Number of households is based on 2019 American Community Survey data. The agencies accounted for population growth and the change in the number of households
throughout the 2023-2042 study period (Hauer et al., 2021).
3 Benefit estimates are based on a benefit transfer application of the Freshwater Model to all States except for Hawaii, and the District of Columbia (see Appendix B for
detail). When lumpsum = 0, the benefit transfer estimates the household WTP for the cumulative increase in wetland mitigation acres between the 2020 NWPWR and the
final rule. When lumpsum = 1, the benefit transfer estimates the household WTP for the year-to-year increase in wetland mitigation acres between the 2020 NWPWR and the
final rule.
4Total benefits are annualized over the 2023-2042 analysis period. Total annualized benefits for some states display as zero due to rounding.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule
175
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Appendix D —Sensitivity Analysis of National Benefits
Table D-3: Comparison of the total national annualized benefits across the alternative models and benefit transfer approaches
Discount
rate
Number of affected
households in 2019
(millions)1,2
Average household WTP per 100 acres (2021$)1,3
Total annualized
benefits (millions
2021$)1,3,4
Lumpsum=0
Lumpsum=l
Lumpsum
=0
Lumpsum
=1
Pooled Model using a 50-mile radius benefit transfer approach
3%
120.0
$7.59
$1,401.7
7%
120.0
$7.59
$1,205.5
Pooled Model using a 100-mile radius benefit transfer approach
3%
120.0
$2.70
-
$1,601.0
-
7%
120.0
$2.70
-
$1,377.2
-
Pooled Model using a 200-mile radius benefit transfer approach
3%
120.0
$1.41
-
$2,189.8
-
7%
120.0
$1.41
-
$1,884.6
-
Pooled Model using a State-specific benefit transfer approach
3%
120.0
$1.24
$11.24
$2,034.5
$1,965.5
7%
120.0
$1.24
$11.24
$1,752.3
$1,927.3
Freshwater Model using a State-specific benefit transfer approach
3%
120.0
$1.43
$21.64
$2,274.2
$3,585.2
7%
120.0
$1.43
$21.64
$1,958.9
$3,515.2
2021 Model using a State-specific benefit transfer approach5
3%
120.0
-
$61.94
-
$1,987.5
7%
120.0
-
$61.94
-
$1,928.1
1 Based on the number of households in all States excluding Hawaii and the District of Columbia.
2 Number of households is based on 2019 American Community Survey data. The agencies accounted for population growth and the change in the number of households
throughout the 2023-2042 study period (Hauer et al., 2021).
3 Benefit estimates are based on benefit transfer applications to all States except for Hawaii, and the District of Columbia (see Appendix B for detail). When lumpsum = 0, the
benefit transfer estimates the household WTP for the cumulative increase in wetland mitigation acres between the 2020 NWPWR and the final rule. When lumpsum = 1, the
benefit transfer estimates the household WTP for the year-to-year increase in wetland mitigation acres between the 2020 NWPWR and the final rule. The household WTP per
acre estimates shown are averages across the States.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 176
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Appendix D —Sensitivity Analysis of National Benefits
Table D-3: Comparison of the total national annualized benefits across the alternative models and benefit transfer approaches
Discount
rate
Number of affected
households in 2019
(millions)1,2
Average household WTP per 100 acres (2021$)1,3
Total annualized
benefits (millions
2021$)1,3,4
Lumpsum=0
Lumpsum=l
Lumpsum
=0
Lumpsum
=1
4Total benefits are annualized over the 2023-2042 analysis period.
5 The original model used for the proposal was based on 28 observations from freshwater wetland valuation studies. The benefit transfer is based on Scenario 0 (U.S. EPA and
Army, 2021) and is applied to all States (except for Hawaii, and the District of Columbia) and assumes payments in the form of a lumpsum. The proportion of local wetlands is
assumed to be 0.0318 across all States. Furthermore, the approach does not account for changes in the baseline wetland acreage over time. Lastly, given the model has a
positive coefficient on go*gl, to produce reasonable WTP results, baseline wetland acreage is truncated at 1 million acres.
Economic Analysis for the Final "Revised Definition of'Waters of the United States'" Rule | 177
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Appendix E NHD Stream Mileage and Wetland Acreage by State
Appendix E Mapped NHD Stream Mileage and NWI Wetland
Acreage by State
This appendix summarizes stream and wetland resources in each State, based on an analysis of available
national-level data. We first describe the data and highlight uncertainty and limitations for the agencies'
ability to conduct a national-level analysis to evaluate 1) waters changing jurisdictional status; 2) the
relationship between these waters and facilities and activities covered under the Clean Water Act; and 3)
the potential impacts of changes in the level of regulation of jurisdictional and non-jurisdictional waters.
High-resolution NHD
For the final rule, the agencies considered using the U.S. Geological Survey's (USGS) NHD at high
resolution and the U.S. Fish and Wildlife Service's (U.S. FWS) NWI to estimate the potential effect of
the final rule on certain water types across the country. The agencies often refer to these national datasets
to ascertain the potential location and extent of streams, rivers, lakes, ponds, and wetlands. The high-
resolution NHD represents the water drainage network of the United States as mapped at a scale of
1:24,000 or better (1:63,360 or better in Alaska). The data are maintained in partnership with States and
other stewards. The NHD is not a regulatory dataset and does not indicate whether streams and other
features are jurisdictional for Clean Water Act purposes. The agencies determined that they could not
easily approximate the categories of waters that the 2020 NWPR does and does not regulate using the
NHD. For example, certain tributaries are not categorically jurisdictional under the 2020 NWPR as
implemented (e.g., non-relatively permanent waters such as all ephemeral streams and some intermittent
streams), and the jurisdictional status of such waters must be determined using a case-specific significant
nexus analysis under the final rule.
A summary of High Resolution NHD mapping by State is presented in Table E-l. However, for the
reasons discussed here, the agencies were not able to accurately identify waters that could change
jurisdictional status under the final rule using the NHD.
NWI
The agencies considered relying on a combination of the NWI and high-resolution NHD to identify
wetlands that may change jurisdictional status under the final rule. Like the NHD, while the NWI is the
best national dataset of the potential extent of wetlands across the country of which the agencies are
aware, it was not intended or designed for regulatory purposes. The agencies determined that they could
not easily approximate the categories of wetlands that the 2020 NWPR does and does not regulate using
the NWI. For example, wetlands must meet certain criteria to be jurisdictional as "adjacent wetlands"
under the 2020 NWPR, and it is difficult to model wetlands that would likely meet the 2020 NWPR's
criteria using the national datasets. In addition, not all adjacent wetlands are categorically jurisdictional
under the final rule, and the jurisdictional status of such waters must be determined using a case-specific
significant nexus analysis. Thus, the agencies did not use the NWI to assess potential changes in
jurisdiction as a result of replacing the 2020 NWPR with the final rule.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 178
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Appendix E NHD Stream Mileage and Wetland Acreage by State
Jurisdictional status of certain waters under the final rule
In addition to the limitations of the NHD and NWI datasets, the agencies face the confounding factor of
not being able to map under the final rule the jurisdictional status of certain waters as a category,
including:
• Non-navigable tributaries that are not relatively permanent;
• Wetlands adjacent to non-navigable tributaries that are not relatively permanent; and
• Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary.
According to the Rapanos Guidance, such waters are not categorically jurisdictional. Rather, the agencies
must conduct a case-specific significant nexus analysis to determine their jurisdictional status. Thus, for
purposes of this EA the agencies did not attempt to conduct a comprehensive national-scale analysis of
waters that would be jurisdictional based on a significant nexus analysis.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 179
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Appendix E —NHD Stream Mileage and Wetland Acreage by State
Table E-1: Mapped NHD Stream Mileage and NWI Wetland Acreage by State: The numbers and percentages of streams and wetlands
by category do not equate to a quantification of waters that will or will not be jurisdictional under the final rule. The data are
presented to illustrate the incomplete national coverage of the NHD data with regard to ephemeral streams.
State
NHD Streams
NWI Wetlands
Perennial
Intermittent
Ephemeral1
Other2
Miles
% of Total
Miles
% of Total
Miles
% of Total
Miles
% of Total
Acres
AK
666,417
48%
18,624
1%
82
0%
700,893
51%
-
AL
48,075
23%
69,415
33%
0
0%
95,602
45%
4,203,980
AR
20,915
9%
89,091
40%
30
0%
111,599
50%
2,408,523
AZ
4,194
1%
35,305
7%
249,591
51%
202,384
41%
354,060
CA
44,290
7%
85,290
13%
213,359
34%
291,058
46%
3,028,618
CO
32,715
7%
151,915
34%
66,955
15%
197,296
44%
2,002,309
CT3
7,593
35%
1,892
9%
-
0%
12,035
56%
310,505
DC3
26
19%
6
4%
-
0%
103
76%
319
DE3
2,404
26%
1,112
12%
-
0%
5,838
62%
263,327
FL
19,337
12%
8,123
5%
2
0%
127,332
82%
12,183,132
GA3
44,081
23%
53,965
28%
-
0%
93,464
49%
6,548,298
HI
IA
27,730
15%
72,310
39%
2,396
1%
82,259
45%
1,088,441
ID
54,355
30%
96,072
53%
8,551
5%
22,010
12%
1,324,822
IL
26,033
22%
78,490
65%
287
0%
15,676
13%
1,301,283
IN3-4
15,030
6%
33,453
13%
-
0%
217,363
82%
1,055,925
KS
19,065
10%
153,419
83%
316
0%
11,687
6%
1,899,863
KY
26,118
26%
59,695
60%
3
0%
13,133
13%
465,603
LA
34,365
25%
59,755
44%
24
0%
41,649
31%
8,028,273
MA3
8,519
51%
3,734
23%
-
0%
4,328
26%
695,752
MD3
13,399
53%
3,872
15%
-
0%
8,191
32%
814,720
ME
25,864
50%
13,413
26%
0
0%
12,893
25%
2,548,325
Ml3
29,251
36%
15,136
18%
-
0%
37,753
46%
7,796,982
MN
26,461
26%
38,028
37%
1
0%
38,269
37%
10,854,648
MO3
22,323
12%
141,077
76%
-
0%
21,160
11%
1,386,533
MS3
24,376
15%
114,831
70%
-
0%
23,982
15%
3,968,569
MT
49,899
13%
304,329
78%
3,627
1%
32,901
8%
3,227,102
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 180
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Appendix E —NHD Stream Mileage and Wetland Acreage by State
Table E-1: Mapped NHD Stream Mileage and NWI Wetland Acreage by State: The numbers and percentages of streams and wetlands
by category do not equate to a quantification of waters that will or will not be jurisdictional under the final rule. The data are
presented to illustrate the incomplete national coverage of the NHD data with regard to ephemeral streams.
State
NHD Streams
NWI Wetlands
Perennial
Intermittent
Ephemeral1
Other2
Miles
% of Total
Miles
% of Total
Miles
% of Total
Miles
% of Total
Acres
NC4
43,069
31%
49,442
35%
1
0%
47,726
34%
4,366,486
ND
5,926
7%
73,640
81%
0
0%
11,165
12%
1,508,999
NE
13,472
11%
98,408
11%
521
0%
15,144
12%
1,314,903
NH
8,281
44%
6,861
37%
3
0%
3,592
19%
310,193
NJ3
12,834
54%
1,064
4%
-
0%
10,081
42%
889,188
NM
7,124
3%
60,237
25%
156,822
66%
13,182
6%
363,015
NV
10,741
3%
26,141
8%
267,153
85%
11,487
4%
1,033,171
NY3
56,516
57%
20,921
21%
-
0%
21,236
22%
2,207,886
OH
26,905
29%
53,172
58%
9
0%
11,627
13%
538,919
OK
33,924
20%
115,235
69%
482
0%
17,777
11%
1,379,591
OR
77,102
24%
192,672
61%
23,402
1%
22,322
1%
1,895,761
PA3
43,800
51%
30,131
35%
-
0%
12,065
14%
544,458
Rl3
1,224
62%
92
5%
-
0%
647
33%
60,714
SC3
25,819
33%
31,934
41%
-
0%
19,731
25%
3,932,560
SD
12,070
7%
135,766
82%
2,809
2%
13,957
8%
2,065,241
TN
68,240
60%
32,065
28%
254
0%
12,984
11%
1,165,666
TX
36,044
7%
346,494
65%
84,783
16%
62,472
12%
4,630,573
UT
15,117
8%
83,888
45%
71,561
39%
13,927
8%
758,798
VA
36,123
33%
55,846
51%
4
0%
17,581
16%
1,454,954
VT3
22,677
86%
11
0%
-
0%
3,757
14%
86,122
WA
69,058
29%
148,082
62%
2,330
1%
21,204
9%
959,626
Wl3
27,876
32%
42,114
49%
-
0%
16,745
19%
6,868,324
WV
21,230
39%
27,505
50%
11
0%
6,220
11%
57,052
WY
34,404
12%
197,979
69%
35,683
12%
20,774
1%
1,852,425
Total
2,002,413
21%
3,532,050
37%
1,191,051
12%
2,828,260
30%
118,004,537
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 181
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Appendix E —NHD Stream Mileage and Wetland Acreage by State
Table E-1: Mapped NHD Stream Mileage and NWI Wetland Acreage by State: The numbers and percentages of streams and wetlands
by category do not equate to a quantification of waters that will or will not be jurisdictional under the final rule. The data are
presented to illustrate the incomplete national coverage of the NHD data with regard to ephemeral streams.
State
NHD Streams
NWI Wetlands
Perennial
Intermittent
Ephemeral1
Other2
Miles
% of Total
Miles
% of Total
Miles
% of Total
Miles
% of Total
Acres
Source: Based on the 2018 adjacency analysis of NHD at high resolution and NWI data completed for 2020 NWPR, using data extracted in 2017. See Section I.Afora
description of the limitations of the NHD and NWI data in characterizing the waters that may be potentially affected by the changes to the definition of "waters of the United
States" under the final rule as compared to the secondary baseline. The numbers and percentages of streams and wetlands by category do not equate to a quantification of
waters that will or will not be jurisdictional under the final rule.
1 The percentages for this category represent the percentages of streams in each State that the NHD at high resolution maps as ephemeral. Zero percent for this category
does not mean that the State has no ephemeral streams. Ephemeral streams are not independently mapped in many States. Often ephemeral streams are mapped in the
intermittent stream category or are not mapped at all, which can result in an overstatement of intermittent streams and an understatement of ephemeral streams. This table
is a summary of the available NHD data and may not accurately represent the types of waters in any given State.
2 Includes unclassified streams, artificial paths, canal, ditches, aqueducts, and other feature without attributes.
3 NHD has no stream miles mapped as ephemeral for these States. See FN 1 above.
4 NHD has a high percentage of streams that are not classified as perennial, intermittent, or ephemeral (unclassified streams) for these States.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 182
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Appendix F —State-Level Environmental Justice Results
Appendix F Environmental Justice Analysis State-level Results
The following tables use State-level averages as a comparison point against socioeconomic characteristics and considerations of environmental
risk for watersheds with wetland area changes or affected waters. Table F-l and Table F-2, similar to the comparisons made in Table IV-1 and
Table IV-2, summarize the exceedances of socioeconomic characteristics for HUC12 watersheds in relation to State averages based on estimated
changes in wetland area and affected waters, respectively, under the final rule.
Table F-1: Socioeconomic characteristics of communities within HUC12 watersheds experiencing wetland area changes, compared to
State averages3
Cumulative
Wetland Area
Changes
(acres)
Total Number
of HUC12s (%
of Affected
HUC12s)
Percentage of HUC12s that...
Have a Higher
Proportion of
Individuals
that are
Minority13
Have a Higher
Proportion of
Individuals
that are Low-
lncomec
Have a Higher
Proportion of
Individuals
with Less than
High School
Education
Have a Higher
Proportion of
Households
with Linguistic
Isolation
Have a Higher
Proportion of
Individuals
under Age 5
Have a Higher
Proportion of
Individuals
over Age 64
Have a Higher
Proportion of
Individuals
that Identify
as American
Indian and
Alaska Native
Alone (non-
Hispanic)
... than the State Average
A
II
O
In
38,980 (90.1%)
30.0%
47.2%
39.0%
25.1%
39.7%
57.3%
24.3%
>0.5-1
1,528 (3.5%)
43.8%
44.4%
36.8%
35.7%
45.8%
45.2%
23.4%
>1-50
2,673 (6.2%)
50.7%
41.7%
34.4%
40.0%
49.8%
40.3%
24.6%
>50
66 (0.2%)
59.1%
34.8%
43.9%
60.6%
50.0%
34.8%
13.6%
a. State averages represent the State population outside of the HUC12 watersheds experiencing wetland area changes.
b. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s experiencing wetland area changes under the
final rule.
c. Low-income is defined as the percent of individuals where the individual's income is less than or equal to twice the federal "poverty level." This is in line with the definition
of low-income used in EPA's EJSCREEN.
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 183
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Appendix F —State-Level Environmental Justice Results
Table F-2: Socioeconomic characteristics of communities within HUC12 watersheds with affected waters, compared to State
averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%
of Affected
HUC12s)
Percentage of HUC12s that...
Have a Higher
Proportion of
Individuals
that are
Minority13
Have a Higher
Proportion of
Individuals
that are Low-
lncomec
Have a Higher
Proportion of
Individuals
with Less than
High School
Education
Have a Higher
Proportion of
Households
with Linguistic
Isolation
Have a Higher
Proportion of
Individuals
under Age 5
Have a Higher
Proportion of
Individuals
over Age 64
Have a Higher
Proportion of
Individuals
that Identify
as American
Indian and
Alaska Native
Alone (non-
Hispanic)
... than the State Average
<= 1
16,647 (38.5%)
27.7%
48.2%
40.5%
22.2%
38.3%
61.0%
24.3%
>1-5
14,634 (33.8%)
30.6%
47.4%
40.2%
26.2%
40.4%
56.3%
24.2%
>5-50
11,105 (25.7%)
38.6%
44.1%
34.8%
32.9%
43.9%
48.0%
24.3%
>50
861 (2.0%)
44.8%
41.3%
27.4%
30.7%
45.8%
44.5%
25.4%
a. State averages represent the State population outside of the HUC12 watersheds with affected waters.
b. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s with affected waters under the final rule.
c. Low-income is defined as the percent of individuals where the individual's income is less than or equal to twice the federal "poverty level." This is in line with the definition
of low-income used in EPA's EJSCREEN.
Source: U.S. EPA analysis, 2022
As shown, not all of the socioeconomic characteristics trend in the same direction as wetland area changes and affected waters. In general, the
minority population, population with linguistic isolation, and population under five tends to trend with wetland area changes and affected waters.
In other words, as more wetland area changes or more waters are affected, there are more individuals under five, more individuals that are
minority, and more individuals that experience linguistic isolation. The opposite is true for the low-income population, population over 64, and
population with less than high school education.
Similar to Table IV-3 and Table IV-4, Table F-3 and Table F-4 provide a breakdown of the racial/ethnic categories that comprise the minority
population in earlier tables. The tables compare demographic characteristics of HUC12 watersheds in relation to State averages based on estimated
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 184
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Appendix F —State-Level Environmental Justice Results
changes in wetland area and affected waters, respectively, under the final rule. Although not always linear and not applicable to all racial/ethnic
categories, the racial/ethnic category breakdown generally shows that as wetland area changes and the number of affected waters increases, the
greater the chance that the proportion of individuals that identify as a minority category exceeds the State average.
Table F-3: Demographic characteristics of communities within HUC12 watersheds experiencing wetland area changes, compared to
State averages3
Cumulative
Wetland Area
Changes
(acres)
Total Number
of HUC12s (%
of Affected
HUC12s)
Percentage of HUC12s that...
Have a Higher
Proportion of
Individuals
that Identify
as Black or
African
American
Aloneb
Have a Higher
Proportion of
Individuals
that Identify
as American
Indian and
Alaska Native
Alone
Have a Higher
Proportion of
Individuals
that Identify
as Asian Alone
Have a Higher
Proportion of
Individuals
that Identify
as Native
Hawaiian and
Other Pacific
Islander Alone
Have a Higher
Proportion of
Individuals
that Identify
as Some Other
Race Alone
Have a Higher
Proportion of
Individuals
that Identify
as Two or
More Races
Have a Higher
Proportion of
Individuals
that Identify
as Hispanic or
Latino
... than the State Average
A
II
O
In
38,980 (90.1%)
25.5%
24.3%
25.3%
12.5%
16.5%
39.8%
27.4%
>0.5-1
1,528 (3.5%)
40.8%
23.4%
39.9%
18.8%
26.0%
50.4%
37.9%
>1-50
2,673 (6.2%)
44.2%
24.6%
45.5%
19.0%
31.8%
53.8%
38.9%
>50
66 (0.2%)
42.4%
13.6%
48.5%
21.2%
43.9%
45.5%
48.5%
a. State averages represent the rest of the United States population, outside of the HUC12 watersheds experiencing wetland area changes.
b. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s experiencing wetland area changes under the
final rule.
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 185
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Appendix F —State-Level Environmental Justice Results
Table F-4: Demographic characteristics of communities within HUC12 watersheds with affected waters, compared to State averages3
Percentage of HUC12s that...
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%
of Affected
HUC12s)
Have a Higher
Proportion of
Individuals
that Identify
as Black or
African
American
Aloneb
Have a Higher
Proportion of
Individuals
that Identify
as American
Indian and
Alaska Native
Alone
Have a Higher
Proportion of
Individuals
that Identify
as Asian Alone
Have a Higher
Proportion of
Individuals
that Identify
as Native
Hawaiian and
Other Pacific
Islander Alone
Have a Higher
Proportion of
Individuals
that Identify
as Some Other
Race Alone
Have a Higher
Proportion of
Individuals
that Identify
as Two or
More Races
Have a Higher
Proportion of
Individuals
that Identify
as Hispanic or
Latino
... than the State Average
<= 1
16,647 (38.5%)
23.1%
24.3%
20.2%
10.9%
12.9%
37.0%
23.9%
>1-5
14,634 (33.8%)
25.4%
24.2%
25.3%
12.2%
16.8%
39.3%
27.7%
>5-50
11,105 (25.7%)
34.6%
24.3%
38.4%
16.9%
25.6%
48.2%
35.8%
>50
861 (2.0%)
41.6%
25.4%
44.4%
22.5%
29.7%
57.7%
37.6%
a. State averages represent the rest of the United States population, outside of the HUC12 watersheds with affected waters.
b. The socioeconomic characteristic data is calculated based on the proportion of the area of CBGs that intersects with HUC12s with affected waters under the final rule.
Source: U.S. EPA analysis, 2022
Table F-5 and Table F-6, similar to the comparisons made in Table IV-9 and Table IV-10, summarize the cumulative socioeconomic and
environmental risk characteristics of HUC12 watersheds based on estimated cumulative changes in wetland area and affected waters, respectively,
under the final rule. In particular, the environmental indicators considered in these tables are proxies for other Clean Water Act programs affected
by the final rule, including Clean Water Act sections 402 and 311.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 186
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Appendix F —State-Level Environmental Justice Results
Table F-5: Socioeconomic characteristics of communities within HUC12 watersheds experiencing wetland area changes, wastewater
discharges, and proximity to RMP sites, compared to State averages3
Cumulative
Wetland
Area
Changes
(acres)
Total Number
of HUC12s (%)
with Wetland
Change,
Wastewater
Discharge,
and Proximity
to RMP sites
Average
Wastewater
Discharge
Concentration-
Distance
Ratiob
Average
RMP Site
Count-
Distance
Ratioc
Percentage of HUC12s that...
Have a
Higher
Proportion
of
Individuals
that are
Minorityd
Have a
Higher
Proportion
of
Individuals
that are
Low-
Income8
Have a
Higher
Proportion
of
Individuals
with Less
than High
School
Education
Have a
Higher
Proportion
of
Households
with
Linguistic
Isolation
Have a
Higher
Proportion
of
Individuals
under Age 5
Have a
Higher
Proportion
of
Individuals
over Age 64
Have a
Higher
Proportion
of
Individuals
that
Identify as
American
Indian and
Alaska
Native
Alone (non-
Hispanic)
... than the State Average
A
II
O
Ln
30,448 (70.4%)
121.0
0.3
38.1%
61.5%
50.9%
30.6%
49.9%
72.6%
32.5%
>0.5-1
1,287 (3.0%)
13.0
0.4
50.7%
51.7%
43.4%
40.7%
51.7%
52.0%
28.4%
>1-50
2,205 (5.1%)
3.7
0.5
57.4%
48.0%
39.9%
45.2%
56.2%
46.3%
28.1%
>50
44 (0.1%)
0.5
0.6
86.4%
47.7%
61.4%
88.6%
72.7%
50.0%
22.7%
a. State averages represent the State population outside of the HUC12 watersheds experiencing wetland area changes.
b. The wastewater discharge indicator is calculated as the toxicity-weighted stream concentration of Toxic Release Inventory (TRI)-reported pollutants in stream reach
segments within 500 meters(m) of the centroid of a CBG, divided by the distance to the reach segment in kilometers(km).
c. The RMP indicator is calculated as the count of RMP facilities within five kilometers (km) of the centroid of a CBG, each divided by the distance to the facilities in km.
d. The socioeconomic characteristic and environmental indicator data is calculated based on the proportion of the area of CBGs that intersects with HUC12s experiencing
wetland area changes under the final rule.
e. Low-income is defined as the percent of individuals where the individual's income is less than or equal to twice the federal "poverty level." This is in line with the definition
of low-income used in EPA's EJSCREEN.
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 187
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Appendix F —State-Level Environmental Justice Results
Table F-6: Socioeconomic characteristics of communities within HUC12 watersheds with affected waters, wastewater discharges, and proximity to
RMP sites, compared to State averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%)
with Wetland
Change,
Wastewater
Discharge,
and Proximity
to RMP sites
Average
Wastewater
Discharge
Concentration-
Distance
Ratiob
Average
RMP Site
Count-
Distance
Ratioc
Percentage of HUC12s that...
Have a
Higher
Proportion
of
Individuals
that are
Minority"1
Have a
Higher
Proportion
of
Individuals
that are
Low-
Income8
Have a
Higher
Proportion
of
Individuals
with Less
than High
School
Education
Have a
Higher
Proportion
of
Households
with
Linguistic
Isolation
Have a
Higher
Proportion
of
Individuals
under Age 5
Have a
Higher
Proportion
of
Individuals
over Age 64
Have a
Higher
Proportion
of
Individuals
that
Identify as
American
Indian and
Alaska
Native
Alone (non-
Hispanic)
... than the State Average
<= 1
12,349 (28.6%)
294.4
0.3
26.5%
48.1%
40.3%
20.5%
37.1%
59.4%
24.3%
>1-5
11,468 (26.5%)
3.3
0.3
30.2%
48.5%
41.0%
24.8%
39.3%
56.0%
25.3%
>5-50
9,392 (21.7%)
3.7
0.4
39.0%
45.1%
36.1%
32.2%
43.1%
48.2%
26.3%
>50
775 (1.8%)
1.9
0.4
44.7%
42.0%
28.5%
30.3%
45.9%
44.6%
26.6%
a. State averages represent the State population outside of the HUC12 watersheds with affected waters.
b. The wastewater discharge indicator is calculated as the toxicity-weighted stream concentration of Toxic Release Inventory (TRI)-reported pollutants in stream reach
segments within 500 meters(m) of the centroid of a CBG, divided by the distance to the reach segment in kilometers(km).
c. The RMP indicator is calculated as the count of RMP facilities within five kilometers (km) of the centroid of a CBG, each divided by the distance to the facilities in km.
d. The socioeconomic characteristic and environmental indicator data is calculated based on the proportion of the area of CBGs that intersects with HUC12s with affected
waters under the final rule.
e. Low-income is defined as the percent of individuals where the individual's income is less than or equal to twice the federal "poverty level." This is in line with the definition
of low-income used in EPA's EJSCREEN.
Source: U.S. EPA analysis, 2022
As with the analysis comparing all the HUC12s with affected waters or wetland area changes, the minority population, population with linguistic
isolation, and population under five similarly tends to trend with wetland area changes and, to a lesser degree, affected waters. In other words, as
more wetland area changes or more waters are affected, there are more individuals under five, more individuals that are minority, and more
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 188
-------
Appendix F —State-Level Environmental Justice Results
individuals that experience linguistic isolation. The opposite is true for the low-income population and population over 64. In addition, for
HUC 12s with wetland area changes greater than 50 acres, the majority of the population exceeds State averages for percent minority, the
percentage of households experiencing linguistic isolation, and the proportion of individuals under age five.
The following tables (Table F-7 and Table F-8) provide a breakdown of the racial/ethnic categories that comprise the minority population in earlier
tables. They follow a similar trend in that the racial/ethnic category breakdown generally shows that as wetland area changes and the number of
affected waters increases, the greater the chance that the proportion of individuals that identify as a minority category exceeds the State average.
Table F-7, in particular, shows that the large proportion of HUC 12s with wetland area changes greater than 50 acres and minority populations that
exceed State averages are likely driven by Hispanic or Latino and Asian populations.
Table F-7: Demographic characteristics of communities within HUC12 watersheds experiencing wetland area changes, wastewater
discharges, and proximity to RMP sites, compared to State averages3
Percentage of HUC12s that...
Cumulative
Wetland
Area
Changes
(acres)
Total Number
of HUC12s (%)
with Wetland
Change,
Wastewater
Discharge,
and Proximity
to RMP sites
Average
Wastewater
Discharge
Concentration-
Distance
Ratiob
Average
RMP Site
Count-
Distance
Ratioc
Have a
Higher
Proportion
of
Individuals
that
Identify as
Black or
African
American
Aloned
Have a
Higher
Proportion
of
Individuals
that
Identify as
American
Indian and
Alaska
Native
Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Asian Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Native
Hawaiian
and Other
Pacific
Islander
Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Some Other
Race Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Two or
More Races
Have a
Higher
Proportion
of
Individuals
that
Identify as
Hispanic or
Latino
... than the State Average
A
II
O
Ln
30,448 (70.4%)
121.0
0.3
31.3%
32.5%
31.0%
15.5%
20.8%
49.6%
33.7%
>0.5-1
1,287 (3.0%)
13.0
0.4
45.7%
28.4%
45.1%
21.4%
30.2%
54.7%
41.9%
>1-50
2,205 (5.1%)
3.7
0.5
51.7%
28.1%
53.1%
21.8%
38.3%
59.6%
45.4%
>50
44 (0.1%)
0.5
0.6
61.4%
22.7%
72.7%
27.3%
65.9%
63.6%
77.3%
a. State averages represent the State population outside of the HUC12 watersheds experiencing wetland area changes.
b. The wastewater discharge indicator is calculated as the toxicity-weighted stream concentration of Toxic Release Inventory (TRI)-reported pollutants in stream reach
segments within 500 meters(m) of the centroid of a CBG, divided by the distance to the reach segment in kilometers(km).
c. The RMP indicator is calculated as the count of RMP facilities within five kilometers (km) of the centroid of a CBG, each divided by the distance to the facilities in km.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule
| 189
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Appendix F —State-Level Environmental Justice Results
Table F-7: Demographic characteristics of communities within HUC12 watersheds experiencing wetland area changes, wastewater
discharges, and proximity to RMP sites, compared to State averages3
Cumulative
Wetland
Area
Changes
(acres)
Total Number
of HUC12s (%)
with Wetland
Change,
Wastewater
Discharge,
and Proximity
to RMP sites
Average
Wastewater
Discharge
Concentration-
Distance
Ratiob
Have a
Higher
Proportion
Average
of
RMP Site
Individuals
Count-
that
Distance
Identify as
Ratioc
Black or
African
American
Aloned
Percentage of HUC12s that...
Have a
Higher
Proportion
Have a
of
Higher
Individuals
Proportion
that
of
Identify as
Individuals
American
that
Indian and
Identify as
Alaska
Asian Alone
Native
Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Native
Hawaiian
and Other
Pacific
Islander
Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Some Other
Race Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Two or
More Races
... than the State Average
Have a
Higher
Proportion
of
Individuals
that
Identify as
Hispanic or
Latino
d. The socioeconomic characteristic and environmental indicator data is calculated based on the proportion of the area of CBGs that intersects with HUC12s experiencing
wetland area changes under the final rule.
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 190
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Appendix F —State-Level Environmental Justice Results
Table F-8: Demographic characteristics of communities within HUC12 watersheds with affected waters, wastewater discharges, and proximity to
RMP sites, compared to State averages3
Cumulative
Changes to
Affected
Waters
Total Number
of HUC12s (%)
with Wetland
Change,
Wastewater
Discharge,
and Proximity
to RMP sites
Average
Wastewater
Discharge
Concentration-
Distance
Ratiob
Average
RMP Site
Count-
Distance
Ratioc
Percentage of HUC12s that...
Have a
Higher
Proportion
of
Individuals
that
Identify as
Black or
African
American
Aloned
Have a
Higher
Proportion
of
Individuals
that
Identify as
American
Indian and
Alaska
Native
Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Asian Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Native
Hawaiian
and Other
Pacific
Islander
Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Some Other
Race Alone
Have a
Higher
Proportion
of
Individuals
that
Identify as
Two or
More Races
Have a
Higher
Proportion
of
Individuals
that
Identify as
Hispanic or
Latino
... than the State Average
<= 1
12,349 (28.6%)
294.4
0.3
22.1%
24.3%
19.3%
10.3%
12.8%
35.3%
22.3%
>1-5
11,468 (26.5%)
3.3
0.3
24.4%
25.3%
24.1%
11.8%
16.4%
38.1%
26.6%
>5-50
9,392 (21.7%)
3.7
0.4
33.2%
26.3%
36.9%
16.7%
25.3%
47.1%
35.1%
>50
775 (1.8%)
1.9
0.4
41.0%
26.6%
43.7%
22.6%
28.8%
56.3%
38.1%
a. State averages represent the State population outside of the HUC12 watersheds with affected waters.
b. The wastewater discharge indicator is calculated as the toxicity-weighted stream concentration of Toxic Release Inventory (TRI)-reported pollutants in stream reach
segments within 500 meters(m) of the centroid of a CBG, divided by the distance to the reach segment in kilometers(km).
c. The RMP indicator is calculated as the count of RMP facilities within five kilometers (km) of the centroid of a CBG, each divided by the distance to the facilities in km.
d. The socioeconomic characteristic and environmental indicator data is calculated based on the proportion of the area of CBGs that intersects with HUC12s with affected
waters under the final rule.
Source: U.S. EPA analysis, 2022
Table F-9 and Table F-10 summarize the overall cumulative environmental burden, as compared to State averages, for HUC12 watersheds based
on estimated cumulative changes in wetland area and affected waters, respectively, under the final rule. As shown, while some watersheds with
wetland area changes and affected waters do not have any exceedances of the environmental indicators included in EJScreen, the majority are
exposed to environmental risk from between four and eight different indicators. In addition, HUC 12 watersheds experiencing the greatest
cumulative environmental burden (exceedances of between nine and 11 different indicators) tend to increase with affected waters. While the prior
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 191
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Appendix F —State-Level Environmental Justice Results
tables indicate that the socioeconomic characteristics and environmental indicators relevant to the rule of affected watersheds are not drastically
different from State averages, the affected watersheds with the largest wetland area changes and changes to affected waters are those most
burdened by exposure to environmental risk. As such, since the final rule is expected to ease the environmental burden on the affected watersheds,
we may see a potential benefit for those watersheds. These conclusions do not vary when drawing conclusions based on State or national averages.
As a result, the conclusion discussed in Section IV that there isn't much potential for benefits to EJ concerns for a majority of the affected
HUC12s still applies.
Table F-9: Cumulative environmental burden, defined by exceedances of environmental indicators, of communities within HUC12
watersheds experiencing wetland area changes, compared to State averages3
Cumulative Wetland
Total Number of
HUC12s (% of Affected
HUC12s)
Percentage of HUC12s with...
Area Changes (acres)
No Exceedances
1-3 Exceedances
4-8 Exceedances
9-11 Exceedances
A
II
O
In
38,980 (90.1%)
2.6%
27.4%
58.8%
11.2%
>0.5-1
1,528 (3.5%)
1.7%
18.1%
55.7%
24.5%
>1-50
2,673 (6.2%)
3.9%
16.2%
54.8%
25.2%
>50
66 (0.2%)
0.0%
16.7%
68.2%
15.2%
a. The exceedances are based on a comparison to State averages that represent the State population outside of the HUC12 watersheds experiencing wetland area changes.
Source: U.S. EPA analysis, 2022
Table F-10: Cumulative environmental burden, defined by exceedances of environmental indicators, of communities within HUC12
watersheds with affected waters, compared to national averages3
Cumulative Changes to
Affected Waters
Total Number of
Percentage of HUC12s with...
HUC12s (% of Affected
HUC12s)
No Exceedances
1-3 Exceedances
4-8 Exceedances
9-11 Exceedances
<= 1
16,647 (38.5%)
3.2%
33.6%
57.5%
5.6%
>1-5
14,634 (33.8%)
2.4%
26.0%
60.6%
11.1%
>5-50
11,105 (25.7%)
2.4%
16.8%
57.2%
23.6%
>50
861 (2.0%)
0.7%
14.4%
53.5%
31.4%
a. The exceedances are based on a comparison to State averages that represent the State population outside of the HUC12 watersheds with affected waters.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule
| 192
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Appendix F —State-Level Environmental Justice Results
Table F-10: Cumulative environmental burden, defined by exceedances of environmental indicators, of communities within HUC12
watersheds with affected waters, compared to national averages3
Cumulative Changes to
Affected Waters
Total Number of
HUC12s (% of Affected
HUC12s)
Percentage of HUC12s with...
No Exceedances
1-3 Exceedances
4-8 Exceedances
9-11 Exceedances
Source: U.S. EPA analysis, 2022
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 193
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Appendix G Sector Impact Analysis State-level Results
Appendix G Sector Impact Analysis State-level Results
The agencies used the following steps to assign a sector to each affected section 404 permit, based on the
reported work type, project name, and project description. The agencies applied the steps in order, unless
otherwise noted.
Projects with any of the following terms in the project name are classified as "Public": city of,
town of, county, State, parish, township, municipality, municipal, department of, dept of, dot,
usdot, usda, dpw, village, Caltrans, nysdot, division of, dnr, odnr, md sha, kdfwr, agfc, ag&fc,
ahtd, nceep, achd, adcnr
Projects with "INDIAN TRIBE OR STATE 404 PROGRAM" in worktype are classified as
"TSP"
Projects with "DEVELOPMENT" as first worktype are classified as Development ("D"). Projects
with "TRANSPORTATION" as first worktype and "DEVELOPMENT" as another worktype
classified as Development ("D"). Projects are further classified as:
C if Commercial is only work type listed, if recreational project that doesn't include
residential, or if AI and C are the only work types listed.
I in Industrial is only work type listed, or if AI and I are only work types listed.
R (-M, -S, -X) if Residential is only work type listed, if AI and R are only work types listed,
or if R and Recreational are only work types listed. Project is mixed used (-X) if both single-
and multi-family listed. Otherwise, either single family (-S) or multi-family (-M).
X (Mixed Use) if more than one of Commercial, Industrial, and Residential work types listed.
AI if Associated Infrastructure is only work type listed.
Exceptions. If Industrial or Commercial or Associated Infrastructure development is listed
with Agriculture, Logging, Mining and Drilling, Energy Production (including generation,
transmission, pipelines), Airport, Marina, or Landfill then development is considered
secondary.
If D-I or D-C and "agriculture" appears in worktype, classified as Agriculture ("Ag").
If D-I or D-C and "logging" appears in worktype, classified as Logging ("Lg").
If D-I or D-C and "mining and drilling" appears in worktype, classified as Mining and
Drilling ("MD"). Classified as drilling ("MD-D") if "mining and drilling drilling" is
listed before "mining and drilling mining"; mining ("MD-M") if opposite; unknown
("MD-UK") otherwise.
If D-I or D-C and "energy generation" appears in the worktype, classified as Energy
Generation ("EG").
If D-I or D-C and "pipeline" appears in worktype, project name, or project description,
classified as Pipeline ("PL").
If D-I or D-C and "transmission" appears in worktype, project name, or project
description, classified as Transmission ("Trans").
If D-I or D-C and "distribution" appears in worktype, project name, or project
description, classified as Distribution ("Dist").
If D-I or D-C and "airport" appears in worktype, project name, or project description,
classified as Airport ("Airport").
If D-I or D-C and either "yacht club" or "marina" appears in worktype, project name, or
project description or "boat" or "dock" appears but not "residential", classified as Marina
("Marina").
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 194
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Appendix G Sector Impact Analysis State-level Results
If D-I or D-C and "landfill" appears in worktype, project name, or project description,
classified as Landfill ("Landfill").
In addition to projects classified as Agriculture in 3(f)(i) above, projects with "AGRICULTURE"
as first worktype listed are classified as Agriculture ("Ag").
Projects with "AQUACULTURE" as first worktype listed are classified as:
"Aquaculture-Plants" if "plant" appears in worktype.
"Aquaculture-Finfish" if "finfish" appears in worktype.
"Aquaculture-Shellfish" if "shellfish" appears in worktype.
"Aquaculture-UK" otherwise.
In addition to projects classified as Logging in 3(f)(ii) above, projects with "logging" in worktype
are classified as Logging ("Lg").
In addition to projects classified as "EG" in 3(f)(iv) above, projects with "ENERGY
GENERATION" as first worktype listed are classified as Energy Generation ("EG").
All EG projects with "utility" in worktype are further classified as Utility ("UL-EG"). See
#14, below.
Projects are further classified if following terms appear in worktype, project name, or project
description: coal, cogen, geothermal, hydropower, natural gas, nuclear, oil, solar, wind.
Otherwise considered unknown (-UK).
In addition to projects classified as MD in 3(f)(iii) above, projects with "MINING AND
DRILLING" as first worktype listed and
"MINING" as second worktype listed are classified as Mining ("MD-M").
"DRILLING" as second worktype listed are classified as Drilling ("MD-D").
Projects are further classified if following terms appear in worktype, project name, or project
description: shale gas, oil, gas, coal, gravel, peat, phosphate, rock, sand, other mineral.
Otherwise considered unknown (-UK).
In addition to projects classified as Trans in 3(f)(vi) above, projects with "transmission" in
worktype, project name, or project description are classified as Transmission ("Trans").
All Trans projects with "utility" in worktype are further classified as Utility ("UL-TD").
Projects with "TRANSPORTATION" as first worktype listed and "RAIL" as second worktype
listed, or with any of the following terms in the project name are classified as "Rail": rail,
railway, rr.
Projects with "CLEANUP HAZARDOUS OR TOXIC WASTES" listed in worktype are
classified as Cleanup of Hazardous or Toxic Waste ("CHTW").
In addition to projects classified as Pipeline in 3(f)(v) above, projects with
"TRANSPORTATION" as first worktype listed and "PIPELINE" as second worktype listed, or
with "pipeline" in worktype, project name, or project description are classified as Pipeline ("PL").
All PL projects with "utility" in worktype are further classified as Utility ("UL-PL").
If "gas" appears in worktype, project name, or project description but "oil" does not, further
classified as Natural Gas Pipeline ("PL-NG"). If "oil" but not "gas", Oil Pipeline ("PL-OIL").
Otherwise considered unknown ("PL-UK").
Projects with "utility" in worktype classified as Utility ("UL"). Further classified as:
If "water", "wwtp", or "interceptor" appears in worktype, project name, or project
description, classified as Water Utility ("UL-W").
If "sewer" or "sewage" appears in worktype, project name, or project description, classified
as Sewer Utility ("UL-S").
If "gas" or "pipeline" appears in worktype, project name, or project description, classified as
Natural Gas Distribution Utility ("UL-NG").
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 195
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Appendix G Sector Impact Analysis State-level Results
If any of the following appears in worktype, project name, or project description, classified as
EG Utility ("UL-EG"): energy generation, power, electric, generation, substation, energy, kv,
entergy, national grid.
In addition to projects classified as Marina in 3(f)(ix) above, if either "yacht club" or "marina"
appears in worktype, project name, or project description or "boat" or "dock" appears but not
"residential", classified as Marina ("Marina").
In addition to projects classified as Airport in 3(f)(viii) above, projects with "airport" or "air" in
worktype, project name, or project description classified as Airport ("Airport").
In addition to projects classified as Landfill in 3(f)(x) above, projects with "landfill" in worktype,
project name, or project description classified as Landfill ("Landfill").
Projects with "DREDGING" as first worktype listed or "bank stabilization" or "channelization"
in worktype are classified as Dredging ("Dr").
Projects with any of the following search terms in worktype, project name, or project description
are classified as Highway, Street, Bridge ("HSB"): highway, hwy, road, rd, roads, street, st,
bridge, culvert.
Remaining projects are unclassified ("Unknown").
The agencies then assigned an industry sector to each classification ID, as summarized in Table G-l.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 196
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Appendix G —Sector Impact Analysis State-level Results
Table G-1: NAICS classification crosswalk
Classification ID
NAICS
NAICS industry description
Ag
11
Agriculture
Airport
488119
Airport
Aquaculture-Finfish
11251
Aquaculture
Aquaculture-Plants
11251
Aquaculture
Aquaculture-Shellfish
11251
Aquaculture
CHTW
562211
Hazardous waste treatment and disposal
D-AI
2361, 2362
Mixed use building construction
D-C
23622
Commercial building construction
D-l
23621
Industrial building construction
D-R-M
2361
Residential building construction
D-R-S
2361
Residential building construction
D-R-UK
2361
Residential building construction
D-R-X
2361
Residential building construction
D-X
2361, 2362
Mixed use building construction
Dr
237990
Dredging
EG-COAL
22111
Electric power generation
EG-COGEN
22111
Electric power generation
EG-GEOTHERMAL
22111
Electric power generation
EG-HYDROPOWER
22111
Electric power generation
EG-NATURAL GAS
22111
Electric power generation
EG-NUCLEAR
22111
Electric power generation
EG-OIL
22111
Electric power generation
EG-SOLAR
22111
Electric power generation
EG-UK
22111
Electric power generation
EG-WIND
22111
Electric power generation
HSB
237310
Highway, street, and bridge construction
Landfill
562212
Solid waste landfills
Logging
113310
Logging
Marina
713930
Marinas
MD-D-COAL
212
Mining (except oil and gas)
M D-D-GAS
2111
Oil and gas extraction
MD-D-GRAVEL
212
Mining (except oil and gas)
MD-D-OIL
2111
Oil and gas extraction
M D-D-OTHER
MINERAL
212
Mining (except oil and gas)
MD-D-ROCK
212
Mining (except oil and gas)
M D-D-SAND
212
Mining (except oil and gas)
MD-D-SHALE GAS
2111
Oil and gas extraction
MD-D-UK
212
Mining (except oil and gas)
MD-M-COAL
212
Mining (except oil and gas)
MD-M-GAS
2111
Oil and gas extraction
MD-M-GRAVEL
212
Mining (except oil and gas)
MD-M-OIL
2111
Oil and gas extraction
MD-M-OTHER
MINERAL
212
Mining (except oil and gas)
MD-M-PEAT
212
Mining (except oil and gas)
MD-M-PHOSPHATE
212
Mining (except oil and gas)
MD-M-ROCK
212
Mining (except oil and gas)
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 197
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Appendix G —Sector Impact Analysis State-level Results
Table G-1: NAICS classification crosswalk
Classification ID
NAICS
NAICS industry description
MD-M-SAND
212
Mining (except oil and gas)
MD-M-SHALE GAS
2111
Oil and gas extraction
MD-M-UK
212
Mining (except oil and gas)
PL-NG
4861, 4862, 4869
Pipeline transportation of crude oil, natural gas, and refined
petroleum products
PL-OIL
4861, 4862, 4869
Pipeline transportation of crude oil, natural gas, and refined
petroleum products
PL-UK
4861, 4862, 4869
Pipeline transportation of crude oil, natural gas, and refined
petroleum products
PL-X
4861, 4862, 4869
Pipeline transportation of crude oil, natural gas, and refined
petroleum products
Public
Public
Public
Rail
48211
Rail transportation
Trans
22112
Electric power transmission, control, and distribution
TSP
Public
Public
UL-EG-COAL
22111
Electric power generation
UL-EG-COGEN
22111
Electric power generation
UL-EG-
HYDROPOWER
22111
Electric power generation
UL-EG-NATURAL GAS
22111
Electric power generation
UL-EG-OIL
22111
Electric power generation
UL-EG-SOLAR
22111
Electric power generation
UL-EG-UK
22111
Electric power generation
UL-EG-WIND
22111
Electric power generation
UL-PL-NG
221210
Natural gas distribution
UL-PL-OIL
4861, 4862, 4869
Pipeline transportation of crude oil, natural gas, and refined
petroleum products
UL-PL-UK
4861, 4862, 4869
Pipeline transportation of crude oil, natural gas, and refined
petroleum products
UL-PL-X
4861, 4862, 4869
Pipeline transportation of crude oil, natural gas, and refined
petroleum products
UL-TD
22112
Electric power transmission, control, and distribution
Unknown
Unassigned
Unassigned
Table G-2 summarizes the percent of permit costs in each identified sector, stratified by Cowardin
classification.
Table G-2: Permit costs by Cowardin classification
NAICS industry
NAICS
description
Estuarine
Lacustrine
Marine
Palustrine
Riparian
Riverine
Uplands
11
Agriculture
1%
1%
0%
20%
1%
78%
0%
11251
Aquaculture
15%
1%
79%
0%
0%
4%
0%
113310
Logging
0%
0%
0%
100%
0%
0%
0%
2111
Oil and gas
extraction
2%
0%
0%
34%
0%
63%
0%
212
Mining (except
oil and gas)
9%
1%
2%
31%
2%
54%
1%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 198
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Appendix G —Sector Impact Analysis State-level Results
Table G-2: Permit costs by Cowardin classification
NAICS industry
NAICS
description
Estuarine
Lacustrine
Marine
Palustrine
Riparian
Riverine
Uplands
22111
Electric power
generation
4%
1%
1%
39%
1%
54%
1%
22112
Electric power
transmission,
control, and
distribution
1%
0%
0%
39%
0%
59%
0%
221210
Natural gas
distribution
1%
0%
1%
32%
0%
66%
0%
2361
Residential
building
construction
3%
4%
1%
63%
2%
26%
0%
2361, 2362
Mixed use
building
construction
2%
3%
1%
49%
2%
43%
1%
23621
Industrial
building
construction
2%
1%
1%
63%
2%
30%
1%
23622
Commercial
building
construction
3%
6%
1%
59%
2%
28%
1%
237310
Highway, street,
and bridge
construction
6%
7%
2%
19%
2%
63%
0%
237990
Dredging
10%
35%
3%
3%
1%
48%
0%
48211
Rail
transportation
2%
2%
1%
18%
2%
75%
1%
4861, 4862,
Pipeline
4%
0%
1%
37%
1%
57%
0%
4869
transportation of
crude oil, natural
gas, and refined
petroleum
products
488119
Airport
7%
12%
5%
11%
2%
63%
0%
562211
Hazardous waste
treatment and
disposal
8%
7%
5%
32%
3%
45%
0%
562212
Solid waste
landfills
2%
1%
0%
36%
2%
57%
2%
713930
Marinas
17%
47%
10%
3%
0%
23%
0%
Public
Public
3%
4%
2%
23%
1%
66%
0%
Unassigned
Unassigned
4%
8%
2%
48%
1%
36%
1%
Table G-3 summarizes the number of potentially affected permits by State and Cowardin classification,
stratified by industry sector.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 199
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—1
*—1
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
AK
Estuarine
0%
0%
0%
1%
3%
6%
0%
0%
16%
2%
1%
6%
18%
10%
1%
5%
3%
1%
0%
11%
18%
1%
AK
Lacustrine
0%
0%
0%
0%
0%
1%
0%
0%
12%
4%
0%
5%
10%
17%
0%
0%
5%
1%
0%
28%
13%
3%
AK
Marine
0%
1%
0%
0%
4%
3%
0%
0%
7%
1%
1%
3%
15%
11%
1%
13%
2%
1%
0%
21%
14%
1%
AK
Palustrine
0%
0%
0%
2%
11%
5%
0%
0%
25%
4%
3%
9%
15%
1%
1%
2%
3%
1%
0%
1%
15%
2%
AK
Riparian
0%
0%
0%
0%
36%
1%
0%
0%
15%
2%
1%
3%
20%
5%
3%
1%
2%
0%
0%
1%
8%
0%
AK
Riverine
0%
0%
0%
0%
11%
4%
0%
0%
2%
1%
0%
3%
23%
19%
2%
3%
4%
0%
0%
3%
22%
2%
AK
Uplands
0%
0%
0%
0%
53%
0%
6%
0%
12%
0%
0%
0%
18%
0%
0%
0%
0%
0%
0%
0%
12%
0%
AK
All water types
0%
0%
0%
1%
10%
5%
0%
0%
16%
2%
2%
7%
17%
7%
1%
4%
3%
0%
0%
5%
16%
1%
AL
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
2%
0%
0%
2%
19%
11%
0%
1%
3%
0%
0%
57%
6%
0%
AL
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
12%
31%
0%
0%
1%
0%
0%
46%
6%
5%
AL
Marine
0%
1%
0%
0%
0%
0%
0%
0%
2%
0%
0%
1%
24%
11%
0%
1%
2%
0%
0%
52%
6%
1%
AL
Palustrine
0%
0%
0%
0%
1%
1%
2%
4%
19%
2%
2%
8%
26%
1%
3%
4%
4%
1%
0%
3%
14%
3%
AL
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
10%
2%
2%
6%
28%
6%
0%
0%
12%
0%
0%
14%
20%
0%
AL
Riverine
0%
0%
0%
0%
2%
0%
0%
3%
4%
1%
1%
4%
31%
8%
3%
4%
5%
0%
0%
15%
17%
3%
AL
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
9%
45%
9%
0%
0%
0%
0%
0%
0%
36%
0%
AL
All water types
0%
0%
0%
0%
1%
0%
0%
2%
5%
1%
1%
3%
22%
14%
2%
2%
3%
0%
0%
28%
11%
3%
AR
Lacustrine
0%
0%
0%
0%
0%
0%
1%
0%
0%
0%
0%
0%
21%
48%
4%
1%
6%
0%
0%
12%
7%
0%
AR
Palustrine
3%
0%
0%
1%
0%
0%
18%
1%
1%
0%
0%
4%
16%
0%
2%
41%
1%
0%
0%
0%
9%
2%
AR
Riparian
2%
0%
0%
0%
0%
0%
0%
0%
2%
2%
2%
16%
39%
0%
6%
3%
0%
0%
0%
3%
26%
0%
AR
Riverine
1%
0%
0%
8%
0%
0%
4%
3%
0%
0%
0%
1%
23%
6%
1%
28%
7%
0%
0%
1%
17%
1%
AR
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
9%
0%
0%
18%
18%
0%
0%
0%
0%
0%
0%
55%
0%
AR
All water types
1%
0%
0%
7%
0%
0%
5%
2%
0%
0%
0%
1%
22%
7%
1%
28%
6%
0%
0%
2%
16%
1%
AZ
Lacustrine
0%
60%
0%
0%
0%
0%
0%
0%
0%
0%
0%
7%
7%
7%
0%
0%
0%
0%
0%
13%
7%
0%
AZ
Palustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
78%
0%
0%
0%
11%
0%
0%
0%
11%
0%
AZ
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
48%
14%
5%
5%
14%
5%
0%
0%
10%
0%
AZ
Riverine
0%
0%
0%
0%
1%
0%
1%
0%
2%
0%
0%
1%
54%
6%
8%
13%
3%
0%
0%
2%
8%
1%
AZ
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
17%
50%
17%
0%
0%
0%
0%
0%
0%
17%
0%
AZ
All water types
0%
0%
0%
0%
1%
0%
1%
0%
2%
0%
0%
1%
54%
6%
8%
12%
3%
0%
0%
2%
8%
1%
CA
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
13%
37%
17%
1%
1%
6%
1%
0%
11%
2%
8%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 200
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—I
*—I
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
CA
Lacustrine
0%
0%
0%
0%
0%
1%
0%
0%
1%
0%
0%
2%
18%
14%
0%
3%
14%
0%
0%
22%
21%
3%
CA
Marine
0%
0%
0%
0%
0%
0%
0%
0%
2%
1%
0%
1%
17%
14%
1%
4%
20%
2%
0%
29%
8%
1%
CA
Palustrine
0%
0%
0%
0%
0%
2%
2%
1%
5%
1%
1%
16%
46%
1%
2%
7%
4%
1%
0%
0%
7%
1%
CA
Riparian
1%
0%
0%
0%
1%
0%
0%
0%
8%
3%
0%
4%
38%
12%
2%
5%
16%
0%
0%
0%
7%
1%
CA
Riverine
0%
0%
0%
0%
0%
1%
11%
1%
2%
1%
0%
1%
22%
5%
22%
3%
9%
0%
0%
1%
15%
7%
CA
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
4%
0%
2%
80%
0%
0%
2%
4%
0%
0%
0%
7%
0%
CA
All water types
0%
0%
0%
0%
0%
1%
8%
1%
2%
1%
0%
4%
27%
6%
16%
3%
9%
0%
0%
3%
13%
6%
CO
Lacustrine
0%
0%
0%
0%
1%
0%
0%
1%
2%
1%
0%
5%
29%
17%
2%
2%
9%
0%
0%
18%
8%
4%
CO
Palustrine
0%
0%
0%
1%
1%
4%
2%
2%
6%
3%
0%
6%
36%
2%
5%
15%
3%
0%
0%
0%
11%
2%
CO
Riparian
1%
1%
0%
0%
1%
2%
0%
2%
3%
4%
1%
5%
13%
8%
6%
25%
6%
2%
0%
2%
21%
0%
CO
Riverine
0%
0%
0%
1%
0%
2%
0%
4%
1%
0%
0%
1%
35%
15%
4%
5%
13%
0%
0%
1%
16%
1%
CO
Uplands
0%
0%
0%
0%
0%
14%
0%
0%
0%
0%
0%
0%
14%
7%
7%
36%
0%
0%
0%
0%
7%
14%
CO
All water types
0%
0%
0%
1%
0%
2%
1%
3%
2%
1%
0%
2%
35%
12%
4%
8%
10%
0%
0%
1%
15%
1%
CT
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
23%
8%
1%
0%
16%
1%
0%
28%
18%
4%
CT
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
2%
0%
0%
0%
14%
4%
0%
0%
35%
0%
0%
0%
33%
12%
CT
Marine
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
0%
18%
9%
0%
0%
23%
0%
0%
30%
15%
2%
CT
Palustrine
1%
0%
0%
0%
0%
0%
4%
0%
2%
1%
0%
2%
55%
1%
0%
2%
4%
1%
0%
0%
20%
6%
CT
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
9%
0%
0%
0%
9%
0%
0%
18%
18%
0%
0%
36%
9%
CT
Riverine
0%
0%
0%
0%
0%
0%
1%
0%
0%
0%
0%
0%
21%
6%
1%
1%
9%
0%
0%
17%
40%
2%
CT
All water types
0%
0%
0%
0%
0%
0%
2%
0%
1%
0%
0%
1%
30%
5%
1%
1%
12%
1%
0%
16%
26%
4%
DE
Estuarine
0%
2%
0%
0%
0%
0%
0%
0%
8%
0%
0%
5%
14%
16%
5%
7%
4%
3%
0%
18%
18%
0%
DE
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
25%
0%
0%
0%
13%
0%
0%
0%
0%
0%
0%
0%
63%
0%
DE
Marine
0%
0%
0%
0%
0%
0%
0%
2%
0%
0%
0%
0%
21%
23%
2%
3%
10%
0%
0%
31%
10%
0%
DE
Palustrine
1%
0%
0%
0%
0%
1%
0%
0%
39%
2%
1%
10%
11%
4%
1%
4%
3%
1%
2%
3%
20%
1%
DE
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
25%
0%
0%
25%
0%
0%
0%
0%
0%
25%
0%
25%
0%
DE
Riverine
0%
0%
0%
0%
0%
0%
0%
0%
13%
2%
0%
3%
17%
10%
1%
3%
4%
1%
0%
1%
45%
0%
DE
Uplands
0%
0%
0%
0%
0%
33%
0%
0%
67%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
DE
All water types
0%
0%
0%
0%
0%
0%
0%
0%
20%
1%
0%
6%
14%
11%
2%
4%
4%
1%
1%
9%
25%
0%
FL
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
3%
0%
0%
1%
22%
19%
1%
0%
4%
0%
0%
36%
13%
1%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 201
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—1
*—1
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
FL
Lacustrine
0%
1%
0%
0%
0%
0%
0%
0%
5%
2%
0%
4%
21%
8%
1%
0%
4%
0%
0%
25%
25%
1%
FL
Marine
0%
0%
0%
0%
0%
0%
1%
0%
2%
0%
0%
0%
11%
8%
1%
0%
10%
0%
0%
59%
7%
1%
FL
Palustrine
0%
0%
0%
0%
0%
0%
3%
0%
29%
4%
1%
10%
22%
2%
1%
1%
4%
0%
0%
2%
18%
2%
FL
Riparian
0%
0%
0%
0%
2%
0%
2%
0%
9%
0%
1%
2%
34%
4%
4%
1%
3%
0%
0%
7%
26%
3%
FL
Riverine
0%
0%
0%
0%
0%
0%
1%
0%
6%
2%
0%
2%
29%
8%
2%
1%
5%
0%
0%
20%
22%
1%
FL
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
14%
4%
4%
4%
29%
25%
4%
0%
0%
0%
0%
4%
14%
0%
FL
All water types
0%
0%
0%
0%
0%
0%
1%
0%
13%
2%
1%
5%
22%
9%
1%
1%
5%
0%
0%
23%
16%
1%
GA
Estuarine
0%
0%
0%
0%
0%
0%
2%
0%
1%
0%
0%
1%
25%
22%
1%
1%
20%
1%
0%
19%
5%
2%
GA
Lacustrine
0%
0%
0%
0%
0%
0%
0%
2%
2%
0%
0%
1%
11%
11%
0%
2%
6%
0%
0%
60%
2%
2%
GA
Marine
0%
4%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
33%
20%
2%
0%
4%
0%
0%
16%
4%
18%
GA
Palustrine
0%
0%
0%
0%
1%
1%
4%
7%
10%
2%
2%
11%
30%
1%
2%
7%
3%
0%
0%
0%
9%
9%
GA
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
10%
0%
3%
27%
7%
20%
7%
3%
0%
0%
23%
0%
0%
GA
Riverine
0%
0%
0%
0%
0%
1%
1%
12%
7%
2%
1%
4%
33%
7%
2%
7%
6%
0%
0%
4%
11%
2%
GA
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
GA
All water types
0%
0%
0%
0%
0%
1%
2%
9%
7%
2%
1%
6%
30%
6%
2%
6%
6%
0%
0%
8%
9%
5%
HI
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
40%
20%
0%
0%
30%
0%
0%
0%
10%
0%
HI
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
HI
Marine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
31%
7%
0%
0%
21%
0%
0%
19%
21%
0%
HI
Palustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
33%
0%
0%
33%
33%
0%
0%
0%
0%
0%
0%
0%
0%
HI
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
HI
Riverine
1%
0%
0%
0%
0%
0%
1%
0%
1%
0%
0%
0%
43%
16%
2%
2%
22%
0%
0%
0%
12%
2%
HI
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
HI
All water types
1%
0%
0%
0%
0%
0%
1%
0%
1%
1%
0%
0%
39%
14%
1%
1%
24%
0%
0%
4%
13%
1%
IA
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
1%
7%
63%
0%
0%
5%
0%
0%
3%
19%
0%
IA
Palustrine
2%
0%
0%
0%
1%
0%
0%
1%
4%
1%
1%
10%
26%
3%
3%
6%
3%
0%
0%
0%
37%
2%
IA
Riparian
1%
0%
0%
0%
1%
1%
0%
0%
2%
1%
1%
4%
27%
15%
15%
7%
2%
0%
0%
4%
20%
4%
IA
Riverine
1%
0%
0%
0%
0%
0%
0%
1%
0%
0%
0%
1%
37%
23%
3%
4%
8%
0%
0%
2%
17%
1%
IA
Uplands
0%
0%
0%
0%
2%
0%
0%
2%
2%
0%
0%
2%
60%
7%
5%
2%
7%
2%
0%
0%
5%
2%
IA
All water types
1%
0%
0%
0%
0%
0%
0%
1%
1%
0%
0%
2%
33%
24%
3%
4%
7%
0%
0%
2%
19%
1%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 202
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—1
*—1
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
ID
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
2%
12%
30%
1%
0%
6%
0%
0%
40%
6%
1%
ID
Palustrine
4%
0%
0%
0%
1%
0%
1%
0%
28%
2%
0%
7%
33%
3%
2%
4%
3%
0%
0%
2%
10%
1%
ID
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
2%
0%
0%
1%
83%
1%
2%
1%
8%
0%
0%
0%
2%
0%
ID
Riverine
1%
0%
0%
0%
0%
0%
0%
0%
6%
1%
0%
2%
38%
21%
2%
1%
9%
0%
0%
5%
13%
1%
ID
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
0%
0%
0%
ID
All water types
1%
0%
0%
0%
0%
0%
0%
0%
7%
1%
0%
2%
36%
19%
2%
1%
8%
0%
0%
9%
11%
1%
IL
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
2%
31%
46%
1%
0%
4%
0%
0%
8%
4%
3%
IL
Palustrine
1%
0%
0%
0%
0%
0%
3%
0%
2%
2%
2%
6%
39%
3%
5%
22%
4%
1%
0%
0%
7%
2%
IL
Riparian
1%
0%
0%
0%
0%
0%
0%
1%
2%
2%
1%
6%
38%
9%
4%
17%
4%
1%
0%
2%
11%
2%
IL
Riverine
1%
0%
0%
0%
0%
0%
1%
0%
0%
0%
0%
1%
44%
14%
4%
13%
5%
0%
0%
2%
12%
2%
IL
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
7%
47%
7%
0%
7%
0%
0%
0%
7%
20%
7%
IL
All water types
1%
0%
0%
0%
0%
0%
1%
0%
1%
1%
0%
2%
41%
17%
4%
13%
5%
0%
0%
2%
10%
2%
IN
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
7%
1%
0%
5%
16%
58%
0%
0%
2%
0%
0%
5%
3%
2%
IN
Marine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
33%
0%
0%
0%
0%
0%
67%
0%
0%
IN
Palustrine
1%
0%
0%
0%
0%
3%
10%
0%
8%
3%
2%
7%
26%
2%
4%
13%
2%
0%
1%
1%
15%
4%
IN
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
3%
34%
7%
7%
0%
2%
0%
0%
0%
46%
1%
IN
Riverine
0%
0%
0%
0%
0%
1%
1%
0%
1%
1%
0%
2%
34%
12%
3%
7%
5%
0%
0%
1%
30%
1%
IN
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
50%
50%
0%
0%
0%
0%
0%
0%
0%
IN
All water types
0%
0%
0%
0%
0%
1%
2%
0%
3%
1%
0%
3%
29%
21%
3%
6%
4%
0%
0%
2%
22%
2%
KS
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
KS
Lacustrine
1%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
2%
23%
17%
0%
2%
9%
0%
0%
22%
18%
4%
KS
Palustrine
4%
0%
0%
0%
1%
3%
19%
15%
1%
0%
1%
3%
9%
1%
2%
29%
0%
1%
0%
0%
10%
1%
KS
Riparian
17%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
17%
67%
0%
0%
0%
0%
0%
0%
0%
0%
0%
KS
Riverine
16%
0%
0%
0%
0%
1%
4%
2%
1%
1%
0%
0%
30%
4%
4%
12%
2%
0%
0%
0%
21%
1%
KS
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
0%
0%
50%
0%
KS
All water types
14%
0%
0%
0%
0%
1%
6%
3%
1%
1%
0%
1%
28%
4%
3%
14%
2%
0%
0%
1%
20%
1%
KY
Estuarine
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
0%
0%
0%
0%
KY
Lacustrine
0%
0%
0%
0%
0%
0%
1%
0%
0%
0%
0%
1%
14%
51%
0%
0%
0%
3%
0%
17%
8%
5%
KY
Palustrine
0%
0%
0%
0%
0%
0%
7%
10%
2%
0%
2%
4%
39%
0%
3%
27%
1%
0%
0%
0%
3%
1%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 203
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—1
*—1
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
KY
Riparian
4%
0%
0%
0%
19%
0%
0%
0%
0%
0%
0%
4%
44%
11%
7%
0%
4%
0%
0%
0%
7%
0%
KY
Riverine
0%
0%
0%
0%
1%
0%
1%
7%
1%
1%
0%
2%
49%
7%
2%
11%
2%
0%
0%
3%
6%
3%
KY
All water types
0%
0%
0%
0%
1%
0%
2%
7%
1%
1%
0%
2%
46%
9%
2%
12%
2%
0%
0%
3%
6%
3%
LA
Estuarine
0%
0%
0%
7%
4%
5%
1%
1%
1%
0%
0%
1%
21%
8%
1%
32%
2%
0%
0%
5%
8%
1%
LA
Lacustrine
0%
1%
0%
4%
1%
5%
1%
1%
0%
0%
0%
1%
13%
5%
1%
16%
1%
0%
0%
10%
37%
1%
LA
Marine
0%
1%
0%
10%
3%
7%
1%
5%
1%
0%
0%
0%
16%
6%
0%
34%
2%
0%
0%
3%
8%
3%
LA
Palustrine
0%
0%
0%
2%
2%
2%
1%
1%
5%
1%
1%
3%
11%
2%
1%
21%
2%
1%
0%
2%
42%
1%
LA
Riparian
0%
0%
0%
2%
0%
4%
1%
1%
6%
1%
0%
3%
19%
5%
5%
26%
1%
0%
0%
6%
18%
1%
LA
Riverine
0%
0%
0%
2%
1%
2%
0%
4%
0%
0%
0%
0%
10%
5%
1%
25%
1%
0%
0%
7%
40%
1%
LA
Uplands
0%
0%
0%
3%
1%
5%
3%
0%
3%
2%
2%
5%
18%
3%
3%
15%
2%
0%
0%
5%
23%
5%
LA
All water types
0%
0%
0%
4%
2%
3%
1%
2%
2%
1%
0%
1%
14%
5%
1%
25%
2%
0%
0%
5%
30%
1%
MA
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
2%
0%
0%
0%
26%
10%
1%
1%
10%
1%
0%
11%
30%
7%
MA
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
3%
0%
0%
5%
15%
6%
2%
1%
5%
1%
0%
4%
54%
6%
MA
Marine
0%
1%
0%
0%
0%
0%
0%
0%
1%
0%
0%
0%
24%
11%
0%
0%
8%
0%
0%
18%
32%
3%
MA
Palustrine
0%
0%
0%
0%
0%
2%
1%
0%
5%
1%
1%
2%
61%
0%
1%
1%
3%
0%
0%
0%
15%
6%
MA
Riparian
0%
2%
0%
0%
0%
0%
4%
0%
12%
0%
0%
2%
37%
2%
0%
0%
0%
9%
2%
0%
21%
11%
MA
Riverine
0%
0%
0%
0%
0%
1%
1%
0%
2%
0%
0%
2%
36%
3%
2%
1%
3%
1%
0%
3%
43%
3%
MA
All water types
0%
0%
0%
0%
0%
1%
1%
0%
3%
0%
0%
2%
40%
4%
1%
1%
4%
1%
0%
4%
34%
4%
MD
Estuarine
0%
5%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
43%
21%
0%
0%
11%
0%
0%
14%
6%
0%
MD
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
16%
53%
0%
0%
5%
0%
5%
11%
11%
0%
MD
Marine
0%
7%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
30%
30%
1%
0%
2%
0%
0%
15%
15%
0%
MD
Palustrine
3%
0%
0%
0%
0%
1%
2%
0%
10%
13%
1%
5%
25%
7%
1%
1%
6%
0%
0%
0%
22%
1%
MD
Riparian
0%
0%
0%
0%
0%
2%
1%
0%
8%
6%
1%
5%
10%
9%
3%
0%
20%
1%
0%
0%
34%
1%
MD
Riverine
0%
3%
0%
0%
0%
0%
0%
0%
2%
1%
0%
1%
26%
12%
0%
1%
6%
0%
0%
6%
40%
0%
MD
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
0%
0%
0%
0%
MD
All water types
0%
4%
0%
0%
0%
0%
0%
0%
2%
2%
0%
1%
33%
16%
0%
0%
9%
0%
0%
9%
22%
0%
ME
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
2%
0%
2%
2%
20%
24%
0%
0%
10%
0%
0%
10%
29%
2%
ME
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
1%
11%
37%
0%
0%
5%
0%
0%
28%
14%
2%
ME
Marine
0%
9%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
35%
23%
0%
0%
4%
0%
0%
16%
12%
1%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 204
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—1
*—1
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
ME
Palustrine
0%
0%
0%
0%
0%
5%
2%
0%
17%
1%
1%
12%
16%
1%
0%
0%
3%
0%
0%
1%
39%
1%
ME
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
40%
20%
40%
0%
0%
0%
0%
0%
0%
0%
0%
ME
Riverine
0%
1%
0%
0%
0%
1%
0%
0%
5%
1%
0%
2%
23%
5%
1%
3%
4%
0%
0%
6%
48%
0%
ME
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
50%
0%
ME
All water types
0%
3%
0%
0%
0%
3%
1%
0%
10%
1%
1%
7%
22%
10%
0%
0%
4%
0%
0%
7%
30%
1%
Ml
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
50%
0%
0%
Ml
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
1%
18%
46%
0%
0%
3%
0%
0%
26%
4%
1%
Ml
Palustrine
0%
0%
0%
0%
0%
0%
1%
0%
24%
1%
1%
8%
32%
7%
1%
2%
3%
1%
0%
11%
6%
2%
Ml
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
47%
7%
0%
0%
7%
0%
0%
7%
27%
7%
Ml
Riverine
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
1%
26%
22%
0%
1%
3%
0%
0%
31%
12%
2%
Ml
All water types
0%
0%
0%
0%
0%
0%
0%
0%
2%
0%
0%
1%
20%
40%
0%
0%
3%
0%
0%
26%
5%
1%
MN
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
2%
1%
0%
5%
20%
44%
0%
0%
4%
0%
0%
10%
12%
1%
MN
Palustrine
2%
0%
0%
0%
1%
2%
1%
0%
9%
2%
0%
7%
36%
4%
4%
3%
3%
0%
0%
1%
24%
2%
MN
Riparian
12%
0%
0%
0%
0%
0%
0%
2%
5%
0%
0%
4%
40%
11%
0%
5%
5%
0%
0%
0%
16%
0%
MN
Riverine
1%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
1%
42%
18%
3%
1%
5%
0%
0%
2%
24%
1%
MN
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
11%
0%
0%
0%
44%
0%
0%
0%
22%
0%
0%
0%
22%
0%
MN
All water types
2%
0%
0%
0%
1%
1%
1%
0%
6%
1%
0%
5%
36%
12%
3%
2%
4%
0%
0%
2%
23%
1%
MO
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
26%
32%
0%
0%
1%
0%
0%
38%
1%
1%
MO
Palustrine
1%
0%
0%
0%
0%
13%
1%
3%
1%
1%
0%
4%
25%
1%
2%
27%
4%
0%
0%
1%
12%
2%
MO
Riparian
1%
0%
0%
0%
0%
14%
1%
0%
0%
0%
0%
0%
27%
0%
4%
3%
4%
0%
0%
0%
44%
3%
MO
Riverine
0%
0%
0%
0%
1%
3%
2%
1%
1%
0%
0%
1%
38%
10%
2%
9%
11%
0%
0%
1%
18%
2%
MO
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
20%
20%
20%
0%
0%
0%
0%
0%
0%
40%
0%
MO
All water types
0%
0%
0%
0%
1%
3%
1%
1%
1%
0%
0%
1%
34%
16%
1%
8%
7%
0%
0%
12%
13%
2%
MS
Estuarine
1%
5%
0%
0%
0%
0%
0%
0%
2%
1%
1%
2%
22%
7%
2%
8%
3%
0%
0%
27%
17%
1%
MS
Lacustrine
0%
0%
0%
0%
0%
0%
2%
0%
0%
0%
0%
2%
18%
18%
1%
1%
5%
0%
0%
27%
22%
5%
MS
Marine
0%
10%
0%
0%
0%
0%
0%
0%
2%
0%
2%
2%
25%
12%
2%
0%
6%
0%
0%
17%
19%
4%
MS
Palustrine
0%
0%
0%
0%
0%
1%
21%
0%
7%
2%
1%
8%
20%
1%
2%
18%
1%
0%
0%
0%
14%
3%
MS
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
5%
0%
4%
11%
26%
1%
3%
21%
5%
0%
0%
0%
22%
1%
MS
Riverine
0%
0%
0%
0%
0%
0%
15%
1%
1%
0%
0%
1%
24%
8%
3%
9%
2%
0%
0%
3%
30%
2%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 205
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—1
*—1
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
MS
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
29%
43%
0%
0%
0%
0%
0%
0%
0%
29%
0%
MS
All water types
0%
0%
0%
0%
0%
0%
16%
0%
3%
1%
1%
4%
23%
6%
3%
13%
2%
0%
0%
3%
23%
2%
MT
Estuarine
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
0%
0%
0%
MT
Lacustrine
0%
0%
0%
0%
0%
1%
0%
0%
13%
0%
0%
4%
10%
32%
0%
0%
5%
0%
0%
30%
4%
0%
MT
Palustrine
1%
0%
0%
0%
0%
1%
3%
0%
6%
1%
0%
5%
35%
1%
3%
29%
1%
0%
0%
1%
13%
0%
MT
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
25%
0%
8%
8%
17%
0%
0%
0%
33%
8%
MT
Riverine
1%
0%
0%
0%
1%
0%
1%
0%
1%
0%
0%
1%
32%
18%
5%
11%
12%
0%
0%
4%
13%
0%
MT
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
0%
50%
0%
MT
All water types
1%
0%
0%
0%
0%
1%
1%
0%
3%
0%
0%
2%
31%
16%
4%
13%
9%
0%
0%
5%
12%
0%
NC
Estuarine
0%
1%
0%
0%
0%
0%
0%
0%
6%
0%
0%
1%
23%
9%
0%
0%
2%
0%
0%
33%
23%
1%
NC
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
3%
0%
0%
2%
13%
28%
0%
0%
6%
0%
0%
39%
6%
2%
NC
Marine
0%
0%
0%
0%
0%
0%
0%
0%
28%
1%
0%
1%
10%
18%
1%
0%
6%
0%
0%
9%
26%
0%
NC
Palustrine
0%
0%
0%
0%
0%
2%
0%
4%
23%
4%
1%
9%
22%
1%
0%
8%
1%
0%
0%
1%
20%
2%
NC
Riparian
0%
0%
0%
0%
0%
1%
0%
0%
11%
1%
1%
6%
18%
3%
0%
5%
2%
0%
0%
1%
50%
1%
NC
Riverine
0%
0%
0%
0%
0%
2%
0%
2%
10%
3%
0%
5%
14%
8%
1%
4%
3%
0%
0%
2%
44%
1%
NC
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
29%
0%
0%
0%
14%
14%
14%
0%
0%
0%
0%
14%
14%
0%
NC
All water types
0%
0%
0%
0%
0%
2%
0%
2%
13%
3%
1%
6%
17%
8%
1%
5%
2%
0%
0%
6%
34%
1%
ND
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
2%
18%
16%
2%
5%
4%
0%
0%
42%
8%
2%
ND
Palustrine
1%
0%
0%
0%
0%
5%
5%
1%
0%
0%
0%
1%
30%
0%
11%
7%
3%
0%
0%
1%
34%
0%
ND
Riparian
0%
0%
0%
3%
0%
0%
0%
0%
0%
0%
0%
1%
45%
1%
25%
4%
3%
0%
0%
0%
16%
1%
ND
Riverine
2%
0%
0%
0%
0%
0%
1%
0%
0%
0%
0%
1%
32%
12%
3%
5%
8%
0%
0%
4%
31%
1%
ND
Uplands
11%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
22%
0%
33%
11%
0%
0%
0%
0%
0%
22%
ND
All water types
1%
0%
0%
0%
0%
3%
3%
1%
0%
0%
0%
1%
29%
5%
8%
6%
4%
0%
0%
7%
29%
1%
NE
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
1%
22%
55%
1%
1%
4%
0%
0%
11%
1%
3%
NE
Palustrine
2%
0%
0%
0%
0%
0%
1%
0%
1%
1%
0%
2%
40%
4%
3%
4%
3%
0%
0%
1%
32%
3%
NE
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
0%
0%
0%
0%
NE
Riverine
2%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
1%
47%
23%
5%
4%
5%
0%
0%
2%
7%
2%
NE
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
0%
0%
0%
0%
NE
All water types
2%
0%
0%
0%
0%
0%
0%
0%
1%
1%
0%
1%
40%
24%
3%
3%
4%
0%
0%
4%
13%
3%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 206
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—1
*—1
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
NH
Estuarine
0%
15%
0%
0%
0%
0%
0%
0%
9%
0%
0%
2%
11%
7%
0%
0%
4%
0%
0%
24%
25%
4%
NH
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
2%
0%
0%
6%
17%
13%
0%
0%
17%
0%
0%
32%
11%
2%
NH
Marine
0%
7%
0%
0%
0%
0%
0%
0%
4%
2%
0%
4%
27%
9%
0%
0%
7%
0%
0%
22%
18%
0%
NH
Palustrine
0%
0%
0%
0%
0%
0%
1%
0%
15%
1%
1%
12%
39%
2%
0%
0%
3%
0%
0%
3%
19%
3%
NH
Riparian
1%
0%
0%
0%
0%
1%
0%
0%
5%
4%
1%
8%
22%
8%
1%
1%
5%
0%
0%
4%
29%
9%
NH
Riverine
0%
0%
0%
0%
0%
0%
0%
0%
3%
0%
0%
2%
20%
6%
0%
0%
2%
0%
0%
2%
62%
1%
NH
All water types
0%
0%
0%
0%
0%
0%
0%
0%
8%
1%
1%
7%
28%
6%
0%
0%
6%
0%
0%
9%
30%
2%
NJ
Estuarine
0%
1%
0%
0%
0%
1%
0%
1%
2%
0%
0%
0%
27%
8%
1%
1%
3%
1%
0%
40%
14%
0%
NJ
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
25%
0%
0%
0%
0%
0%
0%
25%
50%
0%
NJ
Marine
0%
1%
0%
0%
0%
1%
0%
1%
0%
0%
0%
1%
24%
6%
0%
1%
7%
0%
0%
51%
10%
0%
NJ
Palustrine
0%
0%
0%
0%
0%
0%
0%
3%
20%
3%
0%
3%
28%
0%
3%
8%
10%
8%
0%
0%
18%
0%
NJ
Riparian
0%
0%
0%
0%
0%
30%
0%
0%
0%
0%
0%
0%
10%
10%
10%
20%
0%
10%
0%
0%
10%
0%
NJ
Riverine
0%
0%
0%
0%
0%
0%
1%
1%
1%
0%
0%
2%
40%
8%
0%
2%
7%
3%
1%
19%
13%
0%
NJ
All water types
0%
1%
0%
0%
0%
1%
0%
1%
2%
0%
0%
1%
29%
8%
1%
2%
5%
2%
0%
35%
13%
0%
NM
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
6%
13%
4%
0%
2%
15%
4%
0%
30%
28%
0%
NM
Palustrine
0%
0%
0%
0%
0%
0%
8%
0%
0%
3%
0%
3%
46%
3%
3%
11%
0%
0%
0%
0%
24%
0%
NM
Riparian
0%
0%
0%
0%
0%
0%
4%
2%
0%
0%
0%
0%
41%
12%
0%
2%
16%
0%
2%
0%
18%
2%
NM
Riverine
0%
0%
0%
1%
0%
1%
5%
0%
0%
0%
0%
0%
39%
6%
3%
25%
6%
1%
1%
1%
9%
1%
NM
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
0%
0%
0%
0%
NM
All water types
0%
0%
0%
1%
0%
1%
5%
0%
0%
0%
0%
0%
41%
6%
3%
23%
6%
1%
1%
1%
9%
1%
NV
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
0%
0%
0%
0%
NV
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
1%
43%
4%
0%
1%
4%
0%
0%
31%
12%
3%
NV
Palustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
1%
9%
1%
0%
87%
1%
0%
0%
0%
0%
1%
NV
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
0%
0%
50%
0%
NV
Riverine
0%
0%
0%
0%
0%
0%
7%
0%
0%
0%
0%
0%
31%
2%
15%
37%
1%
0%
0%
0%
5%
0%
NV
All water types
0%
0%
0%
0%
0%
0%
6%
0%
0%
0%
0%
0%
30%
2%
14%
39%
1%
0%
0%
1%
5%
0%
NY
Estuarine
0%
1%
0%
0%
0%
0%
0%
0%
1%
0%
0%
0%
39%
16%
0%
0%
13%
0%
0%
13%
17%
0%
NY
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
2%
0%
0%
1%
18%
35%
0%
0%
11%
0%
0%
24%
8%
1%
NY
Marine
0%
5%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
45%
11%
0%
0%
10%
0%
0%
16%
12%
0%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 207
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—1
*—1
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
NY
Palustrine
0%
0%
0%
0%
3%
11%
3%
7%
12%
2%
2%
11%
14%
1%
1%
9%
1%
1%
0%
1%
21%
2%
NY
Riparian
0%
0%
0%
0%
0%
2%
0%
2%
1%
0%
0%
2%
22%
11%
1%
7%
5%
0%
0%
0%
46%
0%
NY
Riverine
0%
0%
0%
0%
1%
2%
1%
2%
1%
0%
0%
1%
16%
12%
2%
3%
4%
0%
0%
5%
49%
1%
NY
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
43%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
14%
43%
0%
NY
All water types
0%
0%
0%
0%
1%
3%
1%
2%
3%
0%
0%
3%
21%
14%
1%
3%
6%
0%
0%
9%
31%
1%
OH
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
OH
Lacustrine
0%
0%
0%
1%
0%
0%
0%
0%
0%
1%
0%
1%
12%
45%
0%
0%
3%
0%
0%
17%
19%
1%
OH
Palustrine
0%
0%
0%
16%
0%
6%
14%
7%
3%
0%
0%
5%
9%
0%
1%
23%
1%
0%
0%
0%
13%
1%
OH
Riparian
0%
0%
0%
70%
0%
0%
0%
0%
4%
0%
0%
0%
17%
0%
0%
4%
0%
0%
0%
0%
4%
0%
OH
Riverine
0%
0%
0%
16%
0%
4%
8%
4%
1%
0%
0%
1%
17%
3%
1%
21%
3%
0%
0%
1%
16%
1%
OH
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
0%
OH
All water types
0%
0%
0%
16%
0%
5%
10%
5%
2%
0%
0%
2%
14%
4%
1%
21%
2%
0%
0%
1%
16%
1%
OK
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
1%
15%
9%
4%
0%
3%
0%
0%
17%
22%
25%
OK
Palustrine
0%
0%
0%
1%
0%
4%
0%
3%
1%
0%
0%
5%
14%
1%
0%
38%
1%
0%
0%
0%
33%
0%
OK
Riparian
0%
0%
0%
33%
0%
0%
0%
0%
0%
0%
0%
33%
0%
0%
0%
0%
17%
0%
0%
0%
17%
0%
OK
Riverine
0%
0%
0%
0%
0%
0%
1%
1%
1%
0%
0%
1%
25%
3%
2%
16%
4%
0%
0%
1%
43%
2%
OK
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
25%
50%
0%
0%
0%
0%
0%
0%
25%
0%
OK
All water types
0%
0%
0%
0%
0%
1%
1%
1%
1%
0%
0%
1%
24%
3%
2%
17%
4%
0%
0%
1%
42%
2%
OR
Estuarine
0%
1%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
28%
12%
1%
1%
6%
2%
0%
30%
17%
1%
OR
Lacustrine
2%
0%
0%
0%
0%
4%
2%
0%
0%
0%
0%
0%
16%
14%
2%
0%
10%
0%
0%
27%
22%
2%
OR
Marine
0%
0%
0%
0%
0%
5%
0%
0%
0%
0%
0%
0%
59%
0%
9%
0%
0%
0%
0%
18%
5%
5%
OR
Palustrine
0%
0%
0%
0%
0%
1%
22%
2%
6%
1%
1%
6%
16%
1%
2%
21%
1%
0%
0%
0%
18%
1%
OR
Riparian
0%
0%
0%
0%
0%
0%
0%
3%
3%
0%
0%
6%
23%
20%
0%
3%
17%
3%
0%
0%
23%
0%
OR
Riverine
0%
0%
0%
0%
0%
0%
6%
1%
1%
0%
0%
1%
30%
10%
1%
14%
6%
1%
0%
5%
22%
1%
OR
All water types
0%
0%
0%
0%
0%
1%
10%
1%
2%
1%
0%
2%
26%
8%
1%
15%
5%
1%
0%
5%
20%
1%
PA
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
9%
9%
0%
0%
0%
0%
0%
9%
69%
3%
PA
Lacustrine
0%
0%
0%
1%
0%
0%
0%
0%
1%
0%
0%
0%
14%
17%
0%
0%
4%
0%
0%
57%
3%
2%
PA
Marine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
60%
20%
0%
20%
0%
0%
0%
0%
0%
0%
PA
Palustrine
0%
0%
0%
57%
0%
2%
2%
2%
0%
0%
0%
1%
6%
0%
0%
13%
1%
0%
0%
0%
15%
0%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 208
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—1
*—1
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
PA
Riparian
0%
0%
0%
22%
1%
1%
0%
1%
4%
0%
0%
0%
35%
5%
1%
1%
4%
1%
0%
0%
23%
0%
PA
Riverine
0%
0%
0%
23%
0%
1%
1%
2%
0%
0%
0%
0%
24%
7%
1%
7%
4%
0%
0%
2%
27%
0%
PA
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
25%
0%
25%
25%
0%
0%
0%
0%
25%
0%
0%
0%
PA
All water types
0%
0%
0%
30%
0%
1%
1%
2%
0%
0%
0%
0%
21%
6%
1%
8%
3%
0%
0%
2%
24%
0%
Rl
Estuarine
0%
8%
0%
0%
0%
0%
3%
0%
0%
0%
0%
0%
25%
0%
0%
0%
5%
0%
0%
10%
50%
0%
Rl
Lacustrine
0%
0%
0%
0%
0%
8%
0%
0%
0%
0%
0%
0%
25%
0%
0%
0%
8%
0%
0%
8%
50%
0%
Rl
Marine
0%
2%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
11%
10%
0%
0%
9%
3%
0%
35%
21%
10%
Rl
Palustrine
0%
0%
0%
0%
0%
1%
6%
0%
3%
0%
0%
1%
56%
0%
0%
0%
6%
3%
0%
0%
17%
5%
Rl
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
64%
0%
0%
0%
0%
0%
0%
9%
27%
0%
Rl
Riverine
0%
0%
0%
0%
0%
1%
1%
2%
1%
0%
0%
0%
19%
4%
0%
1%
6%
1%
0%
3%
58%
4%
Rl
All water types
0%
1%
0%
0%
0%
1%
3%
1%
1%
0%
0%
1%
35%
3%
0%
0%
6%
2%
0%
9%
31%
5%
SC
Estuarine
0%
4%
0%
0%
0%
0%
2%
0%
2%
0%
0%
0%
40%
14%
0%
2%
6%
0%
0%
20%
8%
3%
SC
Lacustrine
0%
0%
0%
0%
0%
0%
1%
0%
1%
0%
0%
2%
41%
17%
1%
1%
7%
0%
0%
18%
5%
4%
SC
Marine
0%
1%
0%
0%
0%
0%
0%
0%
0%
1%
0%
1%
29%
41%
1%
0%
3%
0%
0%
10%
13%
1%
SC
Palustrine
0%
0%
0%
0%
0%
1%
2%
2%
16%
3%
2%
14%
39%
1%
1%
5%
3%
0%
0%
1%
6%
5%
SC
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
9%
0%
0%
0%
52%
0%
4%
0%
0%
0%
0%
13%
4%
17%
SC
Riverine
0%
0%
0%
0%
0%
0%
2%
1%
6%
1%
1%
2%
40%
7%
1%
6%
5%
0%
0%
17%
9%
3%
SC
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
13%
20%
0%
0%
53%
0%
0%
0%
0%
0%
13%
SC
All water types
0%
1%
0%
0%
0%
0%
1%
1%
8%
1%
1%
6%
39%
8%
1%
5%
4%
0%
0%
12%
7%
4%
SD
Lacustrine
0%
2%
0%
0%
0%
0%
1%
0%
5%
0%
0%
2%
21%
23%
2%
1%
7%
0%
0%
25%
9%
1%
SD
Palustrine
0%
0%
0%
0%
0%
2%
13%
4%
3%
3%
0%
3%
20%
0%
0%
11%
1%
0%
0%
0%
39%
0%
SD
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
33%
0%
0%
33%
33%
0%
0%
0%
0%
0%
SD
Riverine
3%
0%
0%
0%
0%
0%
0%
1%
1%
0%
0%
1%
34%
6%
1%
4%
6%
0%
0%
2%
40%
1%
SD
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
50%
0%
0%
0%
0%
0%
0%
0%
50%
0%
SD
All water types
2%
0%
0%
0%
0%
1%
4%
1%
2%
1%
0%
2%
29%
6%
1%
6%
5%
0%
0%
3%
37%
1%
TN
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
6%
11%
1%
0%
0%
0%
0%
72%
9%
1%
TN
Palustrine
0%
0%
0%
0%
0%
0%
1%
0%
5%
4%
1%
11%
25%
0%
2%
6%
4%
0%
0%
0%
36%
3%
TN
Riparian
0%
0%
0%
2%
2%
0%
2%
2%
0%
2%
0%
4%
22%
14%
4%
0%
2%
0%
0%
2%
42%
0%
TN
Riverine
1%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
1%
30%
22%
1%
3%
7%
0%
0%
4%
26%
1%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 209
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—I
*—I
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
TN
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
40%
40%
0%
0%
0%
0%
0%
20%
0%
0%
TN
All water types
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
1%
19%
16%
1%
2%
4%
0%
0%
35%
19%
1%
TX
Estuarine
0%
0%
0%
0%
0%
1%
0%
0%
2%
0%
0%
1%
16%
12%
1%
26%
2%
0%
0%
15%
17%
7%
TX
Lacustrine
0%
0%
0%
0%
0%
1%
1%
0%
1%
1%
0%
2%
32%
18%
1%
7%
5%
0%
0%
23%
5%
3%
TX
Marine
0%
1%
0%
0%
0%
0%
1%
0%
3%
0%
0%
2%
25%
16%
1%
10%
3%
1%
0%
27%
8%
1%
TX
Palustrine
0%
0%
0%
0%
0%
3%
0%
3%
0%
0%
0%
1%
4%
0%
1%
65%
1%
0%
0%
0%
5%
16%
TX
Riparian
0%
0%
0%
1%
0%
1%
1%
0%
2%
2%
1%
1%
20%
8%
7%
36%
4%
0%
0%
0%
16%
1%
TX
Riverine
0%
0%
0%
0%
0%
5%
1%
4%
1%
1%
0%
1%
12%
2%
3%
60%
1%
0%
0%
1%
7%
1%
TX
Uplands
0%
0%
0%
0%
0%
6%
0%
0%
3%
3%
0%
6%
22%
13%
6%
6%
0%
0%
0%
9%
25%
0%
TX
All water types
0%
0%
0%
0%
0%
4%
1%
3%
1%
0%
0%
1%
9%
2%
1%
59%
1%
0%
0%
2%
6%
9%
UT
Estuarine
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
UT
Lacustrine
2%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
4%
16%
40%
0%
4%
2%
0%
0%
20%
13%
0%
UT
Marine
0%
0%
0%
0%
0%
100%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
UT
Palustrine
1%
0%
0%
2%
0%
3%
1%
5%
9%
2%
1%
6%
21%
0%
3%
36%
0%
0%
0%
1%
6%
3%
UT
Riparian
0%
0%
0%
0%
0%
0%
0%
1%
2%
0%
1%
2%
40%
27%
2%
15%
6%
1%
0%
0%
2%
1%
UT
Riverine
1%
0%
0%
1%
0%
0%
12%
4%
1%
0%
0%
0%
28%
14%
1%
27%
4%
0%
0%
0%
4%
1%
UT
All water types
1%
0%
0%
1%
0%
1%
9%
4%
2%
1%
0%
1%
28%
14%
2%
27%
4%
0%
0%
1%
4%
1%
VA
Estuarine
0%
5%
0%
0%
0%
0%
0%
0%
1%
0%
0%
0%
26%
38%
0%
0%
5%
0%
0%
21%
3%
0%
VA
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
2%
1%
0%
1%
15%
47%
0%
0%
5%
0%
0%
24%
3%
1%
VA
Marine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
64%
0%
0%
0%
7%
0%
0%
14%
14%
0%
VA
Palustrine
1%
0%
0%
0%
0%
1%
3%
0%
14%
6%
4%
9%
29%
5%
1%
2%
3%
0%
0%
1%
15%
4%
VA
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
14%
0%
0%
14%
36%
0%
0%
0%
7%
0%
0%
0%
21%
7%
VA
Riverine
1%
0%
0%
0%
0%
2%
1%
0%
3%
2%
1%
2%
39%
10%
1%
3%
4%
0%
0%
5%
21%
4%
VA
Uplands
0%
0%
0%
0%
0%
0%
14%
0%
14%
0%
0%
0%
29%
14%
0%
0%
0%
0%
0%
14%
14%
0%
VA
All water types
0%
2%
0%
0%
0%
1%
1%
0%
4%
2%
1%
3%
32%
20%
1%
2%
4%
0%
0%
10%
13%
3%
VT
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
0%
12%
29%
0%
0%
8%
0%
0%
21%
26%
3%
VT
Palustrine
2%
0%
0%
0%
0%
6%
0%
0%
20%
4%
2%
10%
18%
0%
2%
2%
2%
0%
1%
0%
18%
15%
VT
Riverine
0%
0%
0%
0%
0%
1%
0%
0%
0%
0%
0%
0%
25%
11%
2%
0%
9%
0%
0%
1%
47%
2%
VT
All water types
1%
0%
0%
0%
0%
2%
0%
0%
6%
1%
0%
3%
21%
10%
2%
1%
7%
0%
0%
3%
35%
6%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 210
-------
Appendix G —Sector Impact Analysis State-level Results
Table G-3: Affected Clean Water Act section 404 permits by Cowardin classification and industry sector
State
Cowardin
NAICS
*—I
*—I
11251
113310
2111
212
22111
22112
221210
2361
2361, 2362
23621
23622
237310
237990
48211
4861, 4862,
4869
488119
562211
562212
713930
Public
Unassigned
WA
Estuarine
0%
11%
0%
0%
0%
0%
1%
0%
0%
0%
0%
0%
36%
6%
1%
2%
16%
0%
0%
7%
18%
1%
WA
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
1%
21%
7%
1%
1%
18%
0%
0%
33%
16%
2%
WA
Marine
0%
75%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
8%
1%
0%
0%
4%
0%
0%
4%
6%
1%
WA
Palustrine
0%
0%
0%
0%
0%
0%
1%
0%
19%
5%
2%
8%
23%
1%
6%
5%
3%
1%
0%
0%
21%
3%
WA
Riparian
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
1%
37%
4%
10%
5%
6%
1%
0%
0%
34%
1%
WA
Riverine
0%
0%
0%
0%
0%
1%
1%
0%
0%
0%
0%
1%
35%
9%
2%
1%
9%
0%
0%
6%
31%
3%
WA
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
80%
0%
0%
0%
0%
0%
0%
0%
20%
0%
WA
All water types
0%
33%
0%
0%
0%
0%
0%
0%
2%
1%
0%
1%
20%
4%
2%
1%
7%
0%
0%
7%
17%
2%
Wl
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
50%
25%
0%
0%
25%
0%
0%
0%
0%
0%
Wl
Lacustrine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
1%
11%
57%
0%
0%
14%
0%
0%
8%
6%
2%
Wl
Marine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
10%
60%
0%
0%
10%
0%
0%
0%
20%
0%
Wl
Palustrine
1%
0%
0%
0%
0%
0%
2%
0%
8%
1%
1%
11%
35%
2%
2%
4%
3%
0%
0%
0%
23%
3%
Wl
Riparian
0%
0%
0%
1%
0%
1%
1%
0%
3%
0%
1%
2%
55%
15%
3%
0%
3%
0%
0%
1%
15%
1%
Wl
Riverine
0%
0%
0%
0%
0%
0%
0%
0%
1%
0%
0%
2%
28%
35%
2%
1%
5%
0%
0%
3%
22%
1%
Wl
Uplands
0%
0%
0%
0%
0%
0%
6%
0%
11%
0%
0%
14%
20%
23%
3%
3%
11%
0%
0%
0%
6%
3%
Wl
All water types
0%
0%
0%
0%
0%
0%
1%
0%
3%
0%
0%
5%
25%
31%
2%
2%
7%
0%
0%
4%
18%
2%
WV
Estuarine
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
50%
0%
50%
0%
0%
0%
0%
WV
Lacustrine
0%
0%
0%
7%
0%
0%
0%
0%
0%
0%
0%
4%
22%
30%
4%
0%
7%
0%
0%
15%
11%
0%
WV
Palustrine
0%
0%
0%
39%
1%
13%
12%
5%
0%
0%
0%
1%
5%
0%
0%
22%
0%
0%
0%
0%
1%
0%
WV
Riparian
0%
0%
0%
15%
0%
0%
0%
0%
0%
0%
0%
0%
15%
0%
0%
54%
8%
0%
0%
0%
8%
0%
WV
Riverine
0%
0%
0%
22%
2%
7%
4%
4%
0%
0%
0%
0%
25%
5%
0%
23%
1%
0%
0%
0%
4%
1%
WV
Uplands
0%
0%
0%
93%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
7%
0%
0%
0%
0%
WV
All water types
0%
0%
0%
25%
2%
8%
5%
4%
0%
0%
0%
0%
21%
4%
0%
23%
1%
0%
0%
0%
4%
1%
WY
Lacustrine
2%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
2%
21%
23%
0%
0%
2%
2%
0%
39%
5%
5%
WY
Palustrine
0%
0%
0%
0%
1%
1%
0%
0%
3%
0%
0%
2%
27%
1%
3%
26%
1%
0%
0%
0%
31%
3%
WY
Riverine
1%
0%
0%
0%
1%
12%
0%
0%
0%
0%
0%
0%
17%
16%
2%
24%
4%
0%
0%
1%
20%
1%
WY
Uplands
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
0%
33%
67%
0%
0%
0%
0%
0%
WY
All water types
1%
0%
0%
0%
1%
9%
0%
0%
1%
0%
0%
1%
20%
12%
2%
24%
3%
0%
0%
2%
23%
2%
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 211
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Appendix H —Alternative Permit Cost Estimates
Appendix H Alternative Permit Cost Estimates using Sunding and
Zilberman (2002) Values
Sunding and Zilbcrman's cost data is based on 103 individual and general permit applications. It is not
clear if these are from a single or multiple years and what specific time period is covered. However, in a
typical year the Corps issues tens of thousands of permits, so the Sunding and Zilberman sample size is
almost certainly insufficiently large to represent the different types of projects covered. Furthermore, the
permit applications were not a randomly drawn sample. Instead, the study relied on outside parties that
must comply with 404 permitting requirements to provide permits to represent costs. Sunding and
Zilberman write, "[a] list of permitted projects was obtained from the National Association of Counties
(since county governments conduct the vast majority of road maintenance, flood control, and stormwater
management work) and from phone interviews with private developers and wetlands consultants/'.
Although Sunding and Zilberman point out that ""|t|he final data come from a roughly even mix of private
and public applicants (52% public agency applicants and 48% private entities),'' municipal projects are
often much larger and complex than typical permitted projects. Likewise, private developers often
perform projects where large tracts of land are subdivided into dozens of parcels.
The Sunding and Zilberman (2002) permit unit cost values have a wide range, as shown in Table H-l.
Their low values are lower than the Corps" low permit unit cost estimates, but their high values are 14 and
60 times greater than the Corps" high estimates for general and individual permits, respectively. Because
Sunding and Zilberman did not provide a cost breakdown by category for their estimates, their values
may include cost components that will remain under the final rule (e.g., costs associated with completing
a jurisdictional determination to determine whether a section 404 permit is required). The high-end
estimates from the Sunding and Zilberman (2002) paper also very likely represent large permits covering
multiple water features. These types of permits are still likely to be needed even if one or more of those
waters would have been non-jurisdictional under the 2020 NWPR. Thus, the agencies used the Corps"
low and high permit cost values to estimate the range of costs associated with the increase in required
section 404 permits (Section III.C.2.2).
Table H-1: Range of section 404 permit values (2021$
from Sunding and Zilberman (2002)
Permit Type
Low
High
Mean
Median
Base + Acre
General
$3,300
$227,800
$47,000
$19,200
$27,400 plus $15,100/acre
Individual
$11,400
$2,488,500
$441,700
$252,100
$71,100 plus $19,200/acre
This appendix presents alternative permit cost estimates resulting from the final rule using the "Base +
Acre" estimates from Sunding & Zilberman (2002). The "Base + Acre" estimates allow EPA to account
for the smaller, single-water projects for which the final rule will affect permit costs, relative to the 2020
NWPR, although the unit cost estimates may still include cost components that will remain under the final
rule. To apply the "Base + Acre" permit cost estimates from Sunding & Zilberman (2002), the agencies
estimated annual average acre impacts, with linear feet impacts converted to acres, of single-water general
and single-water individual permits for each HUC2 and Cowardin category. The agencies used the Corps"
ORM2 section 404 permit database for years 2010-2019, removing permits issued under the Clean Water
Rule and permits issued with a mitigation work type. The agencies reviewed the impact entries and
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 212
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Appendix H —Alternative Permit Cost Estimates
removed: (1) outliers likely caused by data entry issues and (2) projects associated with activities such as
oyster reef cultivation or restoration. In total, the agencies removed 362 records from the analysis of
"annual average acre impacts" by HUC2 and Cowardin category.
For the alternative permit cost estimates, the agencies needed to adjust the estimated "annual average acre
impacts" by HUC2 and Cowardin category to account for blank value issues. First, the estuarine values
were used for both estuarine and marine permit count change estimates. Second, when the "annual
average acre impacts" value was blank for a Cowardin subcategory (e.g., Palustrine - Moss-Lichens
(PML)) for a particular HUC2, the agencies used the estimate for the higher-level Cowardin category
(e.g., Palustrine) for the applicable HUC2. Lastly, if the value for the higher-level Cowardin category for
a particular HUC2 was still blank, the agencies used the average value for the higher-level Cowardin
category across all HUC2s. The final "annual average acre impacts" values for each HUC2/Cowardin
category can be found on the "Revised Average Impact Acres" tab in the "Alternative Permit Costs"
calculation spreadsheet.117
The agencies calculated the alternative permit costs resulting from the final rule following the same
methodology as described in Section III.C.2.2, except using the Sunding & Zilberman (2002) "Base +
Acre" unit cost estimates plus the "annual average impact acre" values instead of the Corps" unit cost
estimates. Table H-2 presents alternative annualized permit costs from increases in section 404 permits at
the national level, while Table H-3 presents alternative annualized permit costs at the HUC2/major
Cowardin category level. The estimated alternative national annualized permit costs are $268 million
using a 3 percent discount rate and $279 million using a 7 percent discount rate. These values are
approximately two times higher than the high estimates using the Corps" unit cost estimates ($136 million
using a 3 percent discount rate and $142 million using a 7 percent discount rate; see Section III.C.2.2 for
details).
Table H-2: Alternative national annualized permit costs from increases in section 404 permits,
relative to the secondary baseline of the 2020 NWPR
Permit
Type
Estimated
Average Annual
Increase in
Permits1,2
Unit Costs from Sunding &
Zilberman (2002)
(Base + Acre, 2021$)
Estimated Increase in Annualized Permit
Costs (millions 2021$)1,3
3% Discount Rate
7% Discount Rate
GP
7,751
$27,400 plus $15,100/acre
$242.5
$252.0
IP
151
$71,100 plus $19,200/acre
$25.7
$26.7
Total
7,902
$268.2
$278.6
1 Reflects annual increase in permits in 49 States (excludes Hawaii and District of Columbia).
2 Estimated average annual permit increases based on single-water section 404 permits issued in years 2010-2019 affecting
waters that became no longer jurisdictional under the 2020 NWPR.
3 Permit costs are calculated using the estimated average annual increase in the number of single-water general and
individual permits, the estimated "annual average impact acres" calculated at the HUC2/Cowardin category for general and
individual permits, and the applicable Sunding & Zilberman (2002) "Base + Acre" unit costs: (increases in # permits) * (base
cost + (acre cost * annual average impact acres)). The permit costs are annualized over the 2023-2042 analysis period,
discounting to year 2023.
117 Available in the docket for this rule, Docket ID Number EPA-HQ-OW-2021-0602.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule 213
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Appendix H —Alternative Permit Cost Estimates
Table H-3: Alternative annualized permit costs from increases in section 404 permits, relative to the secondary baseline of the 2020
NWPR, by HUC2/Cowardin category
HUC2
Major Cowardin
Category
Annual Average Increase in Permits
with Final Rule1,2
Annualized Permit Costs (Thousands 2021$)1,3
3% Discount Rate
7% Discount Rate
General
Individual
General
Individual
General
Individual
01
Estuarine
-0.1
0.0
-$2
$0
-$3
$0
01
Lacustrine
35.5
0.2
$1,033
$27
$1,073
$28
01
Palustrine
151.7
1.7
$4,713
$174
$4,896
$180
01
Riverine
27.1
0.3
$925
$23
$961
$24
01
Riparian
5.3
0.1
$194
$10
$201
$10
01
Upland
0.0
0.0
$0
$0
$0
$0
02
Estuarine
0.7
0.0
$25
$4
$26
$4
02
Lacustrine
28.2
0.2
$940
$19
$976
$20
02
Palustrine
238.2
2.5
$7,267
$262
$7,549
$273
02
Riverine
399.0
0.5
$12,069
$46
$12,538
00
^1-
¦uy
02
Riparian
8.7
0.2
$278
$15
$289
$16
02
Upland
0.8
0.0
$24
$3
$25
$3
03
Estuarine
0.3
0.0
$14
$1
$14
$1
03
Lacustrine
60.4
2.9
$1,865
$315
$1,938
$327
03
Palustrine
274.0
25.5
$9,070
$6,661
$9,422
$6,919
03
Riverine
108.7
1.5
$3,315
$221
$3,443
$229
03
Riparian
18.7
0.6
$563
$79
$585
$82
03
Upland
1.8
0.2
$65
$84
$67
$87
04
Estuarine
0.0
0.0
$0
$0
$0
$0
04
Lacustrine
289.2
13.8
$8,484
$1,134
$8,813
$1,178
04
Palustrine
160.1
7.2
$5,184
$778
$5,385
$809
04
Riverine
67.9
1.5
$2,031
$131
$2,110
$136
04
Riparian
7.1
0.1
$216
$14
$224
$15
04
Upland
0.7
0.1
$22
$7
$23
$7
05
Estuarine
0.0
0.0
$0
$0
$0
$0
05
Lacustrine
60.0
1.0
$1,813
$99
$1,883
$103
05
Palustrine
337.0
0.5
$9,878
$59
$10,262
$61
05
Riverine
749.3
2.1
$21,882
$179
$22,732
$186
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 214
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Appendix H —Alternative Permit Cost Estimates
Table H-3: Alternative annualized permit costs from increases in section 404 permits, relative to the secondary baseline of the 2020
NWPR, by HUC2/Cowardin category
HUC2
Major Cowardin
Category
Annual Average Increase in Permits
with Final Rule1,2
Annualized Permit Costs (Thousands 2021$)1,3
3% Discount Rate
7% Discount Rate
General
Individual
General
Individual
General
Individual
05
Riparian
7.2
0.0
$214
$6
$222
$6
05
Upland
0.8
0.0
$22
$0
$23
$0
06
Estuarine
0.0
0.0
$0
$0
$0
$0
06
Lacustrine
170.6
3.1
$5,090
$270
$5,287
$280
06
Palustrine
9.1
0.7
$273
00
00
¦uy
$284
$92
06
Riverine
25.0
0.3
$754
$41
$783
$43
06
Riparian
2.1
0.0
$62
o
1
¦uy
$65
o
1
¦uy
06
Upland
0.0
0.0
$1
$0
$1
$0
07
Estuarine
0.0
0.0
$0
$0
$0
$0
07
Lacustrine
152.3
2.1
$4,572
$246
$4,750
$255
07
Palustrine
173.5
6.6
$5,665
$992
$5,885
$1,030
07
Riverine
190.0
2.8
$5,907
$289
$6,137
$300
07
Riparian
17.0
0.7
$634
00
¦uy
$659
1
00
¦uy
07
Upland
2.4
0.0
LO
00
¦uy
$0
$89
$0
08
Estuarine
0.3
0.0
$15
$4
$15
$4
08
Lacustrine
19.1
0.8
$640
$124
$665
$128
08
Palustrine
132.9
13.3
$5,097
$2,658
$5,295
$2,762
08
Riverine
130.6
2.1
$3,821
$206
$3,970
$214
08
Riparian
6.3
1.4
$232
$365
$241
$379
08
Upland
29.3
7.8
$914
$1,045
$949
$1,085
09
Estuarine
0.0
0.0
$0
$0
$0
$0
09
Lacustrine
12.2
0.1
$390
00
1
¦uy
$406
00
1
¦uy
09
Palustrine
39.8
1.6
$1,265
$211
$1,314
$219
09
Riverine
3.9
0.2
$125
$21
$130
$21
09
Riparian
0.6
0.0
$16
$0
$17
$0
09
Upland
0.1
0.0
$4
$0
$4
$0
10
Estuarine
0.0
0.0
$0
$0
$0
$0
10
Lacustrine
207.6
1.1
$6,327
$228
$6,572
$237
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 215
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Appendix H —Alternative Permit Cost Estimates
Table H-3: Alternative annualized permit costs from increases in section 404 permits, relative to the secondary baseline of the 2020
NWPR, by HUC2/Cowardin category
HUC2
Major Cowardin
Category
Annual Average Increase in Permits
with Final Rule1,2
Annualized Permit Costs (Thousands 2021$)1,3
3% Discount Rate
7% Discount Rate
General
Individual
General
Individual
General
Individual
10
Palustrine
181.9
2.2
$5,579
$240
$5,796
$249
10
Riverine
374.1
2.2
$12,243
$223
$12,719
$231
10
Riparian
6.2
0.1
$204
$9
$212
$9
10
Upland
1.0
0.1
$31
$8
$32
$8
11
Estuarine
0.0
0.0
$0
$0
$0
$0
11
Lacustrine
15.8
0.5
$490
$44
$510
$46
11
Palustrine
61.3
0.9
$2,061
$113
$2,141
$118
11
Riverine
443.2
1.9
$13,719
$324
$14,252
$337
11
Riparian
1.8
0.1
$53
$14
$56
$14
11
Upland
0.6
0.1
$17
$5
$17
$6
12
Estuarine
0.1
0.0
$8
$1
$8
$1
12
Lacustrine
18.2
2.6
$654
$406
$680
$421
12
Palustrine
566.7
2.5
$19,163
$626
$19,908
$650
12
Riverine
415.1
0.8
$12,217
m
00
¦uy
$12,692
ID
00
¦uy
12
Riparian
5.8
0.0
$182
$6
$189
$6
12
Upland
0.8
0.1
$25
1
1
¦uy
$26
1
1
¦uy
13
Estuarine
0.0
0.0
$0
$0
$0
$0
13
Lacustrine
1.3
0.1
$40
00
1
¦uy
$41
00
1
¦uy
13
Palustrine
3.5
0.1
$112
i
i
¦uy
$117
i
i
¦uy
13
Riverine
103.8
0.4
$3,158
$36
$3,281
$37
13
Riparian
1.0
0.0
$30
$0
1
m
¦uy
$0
13
Upland
3.3
0.0
$95
$0
$98
$0
14
Estuarine
0.0
0.0
$0
$0
$0
$0
14
Lacustrine
2.3
0.2
00
ID
¦uy
$49
$71
$51
14
Palustrine
23.2
0.3
$739
$55
$767
$57
14
Riverine
72.7
0.4
$2,150
$55
$2,233
$57
14
Riparian
3.2
0.0
$100
$0
$104
$0
14
Upland
0.3
0.0
$9
$0
$9
$0
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 216
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Appendix H —Alternative Permit Cost Estimates
Table H-3: Alternative annualized permit costs from increases in section 404 permits, relative to the secondary baseline of the 2020
NWPR, by HUC2/Cowardin category
HUC2
Major Cowardin
Category
Annual Average Increase in Permits
with Final Rule1,2
Annualized Permit Costs (Thousands 2021$)1,3
3% Discount Rate
7% Discount Rate
General
Individual
General
Individual
General
Individual
15
Estuarine
0.0
0.0
$0
$0
$0
$0
15
Lacustrine
0.5
0.0
$30
$2
$31
$2
15
Palustrine
0.4
0.1
$12
$7
$12
$7
15
Riverine
153.1
1.9
$5,074
$301
$5,271
$313
15
Riparian
0.5
0.1
$16
$5
$17
$6
15
Upland
0.2
0.0
$7
$0
$8
$0
16
Estuarine
0.0
0.0
$0
$0
$0
$0
16
Lacustrine
5.7
0.5
$431
$42
$448
$43
16
Palustrine
16.3
0.3
$720
$28
$748
$29
16
Riverine
77.1
0.1
$2,211
$11
$2,297
$11
16
Riparian
8.9
0.0
$271
$1
$281
$1
16
Upland
0.0
0.0
$0
$0
$0
$0
17
Estuarine
-0.2
0.0
-$8
-$1
-$8
-$1
17
Lacustrine
41.1
2.8
$1,282
$226
$1,331
$235
17
Palustrine
58.3
3.0
$2,022
$351
$2,101
$365
17
Riverine
55.5
1.8
$1,822
$323
$1,893
$335
17
Riparian
14.6
0.2
$470
$28
$489
$29
17
Upland
0.2
0.0
$7
$0
$7
$0
18
Estuarine
0.0
0.0
$3
$1
$4
$1
18
Lacustrine
8.3
0.6
$334
$77
$347
$80
18
Palustrine
45.6
1.5
$2,284
$209
$2,373
$217
18
Riverine
504.0
3.0
$15,276
$543
$15,869
$564
18
Riparian
25.1
0.7
$805
$95
$836
$99
18
Upland
1.9
0.0
$57
$6
$59
$6
19
Estuarine
0.0
0.0
-$1
-$1
-$1
-$1
19
Lacustrine
3.9
0.3
$116
$78
$120
$81
19
Palustrine
51.1
10.8
$1,809
$3,702
$1,879
$3,846
19
Riverine
6.4
0.2
$248
$68
$258
$71
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 217
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Appendix H —Alternative Permit Cost Estimates
Table H-3: Alternative annualized permit costs from increases in section 404 permits, relative to the secondary baseline of the 2020
NWPR, by HUC2/Cowardin category
HUC2
Major Cowardin
Category
Annual Average Increase in Permits
with Final Rule1,2
Annualized Permit Costs (Thousands 2021$)1,3
3% Discount Rate
7% Discount Rate
General
Individual
General
Individual
General
Individual
19
Riparian
2.0
0.0
$67
$6
$69
$6
19
Upland
0.5
0.0
1
m
¦uy
$5
$32
$5
Total
7,751.3
150.9
$242,537
$25,692
$251,956
$26,690
1 Reflects annual increase in permits in 49 States (excludes Hawaii and District of Columbia).
2 Estimated average annual permit increases based on single-water section 404 permits issued in years 2010-2019 affecting waters that became no longer jurisdictional
under the 2020 NWPR.
3 Permit costs are calculated using the estimated average annual increase in the number of single-water general and individual permits, the estimated "annual average
impact acres" calculated at the HUC2/Cowardin category for general and individual permits, and the applicable Sunding & Zilberman (2002) "Base + Acre" unit costs:
(increases in # permits) * (base cost + (acre cost * annual average impact acres)). The permit costs are annualized over the 2023-2042 analysis period, discounting to year
2023.
Economic Analysis for the Final "Revised Definition of 'Waters of the United States'" Rule | 218
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