Vol. 79 Monday, No. 76 April 21, 2014

Part II

Department of Defense

Department of the Army, Corps of Engineers 33 CFR Part 328

Environmental Protection Agency

40 CFR Parts 110, 112, 116, et al. Definition of ‘‘Waters of the United States’’ Under the Clean Water Act; Proposed Rule

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DEPARTMENT OF DEFENSE EPA–HQ–OW–2011–0880. Such from 8:30 a.m. to 4:30 p.m., Monday deliveries are accepted only during the through Friday, excluding legal Department of the Army, Corps of Docket’s normal hours of operation, holidays. The telephone number for the Engineers which are 8:30 a.m. to 4:30 p.m., Public Reading Room is 202–566–1744, Monday through Friday, excluding legal and the telephone number for the Water 33 CFR Part 328 holidays. Special arrangements should Docket is 202–566–2426. be made for deliveries of boxed FOR FURTHER INFORMATION CONTACT: Ms. ENVIRONMENTAL PROTECTION information. The telephone number for Donna Downing, Office of Water (4502– AGENCY the Water Docket is 202–566–2426. T), Environmental Protection Agency, Instructions: Direct your comments to 1200 Pennsylvania Avenue NW., 40 CFR Parts 110, 112, 116, 117, 122, Docket ID No. EPA–HQ–OW–2011– Washington, DC 20460; telephone 230, 232, 300, 302, and 401 0880. EPA’s policy is that all comments number 202–566–2428; email address: received will be included in the public [EPA–HQ–OW- 2011–0880; FRL–9901–47– [email protected]. Ms. Stacey Jensen, OW] docket without change and may be Regulatory Community of Practice made available on-line at http:// (CECW–CO–R), U.S. Army Corps of RIN 2040–AF30 www.regulations.gov, including any Engineers, 441 G Street NW., personal information provided, unless Washington, DC 20314; telephone Definition of ‘‘Waters of the United the comment includes information number 202–761–5856; email address: States’’ Under the Clean Water Act claimed to be Confidential Business [email protected]. AGENCY: U.S. Army Corps of Engineers, Information (CBI) or other information SUPPLEMENTARY INFORMATION: The Department of the Army, Department of whose disclosure is restricted by statute. SWANCC and Rapanos decisions Defense; and Environmental Protection Do not submit information that you resulted in the agencies evaluating the Agency (EPA). consider to be CBI, or otherwise jurisdiction of waters on a case-specific protected, through http:// ACTION: Proposed rule. basis far more frequently than is best for www.regulations.gov or email. The clear and efficient implementation of SUMMARY: The Environmental Protection http://www.regulations.gov Web site is the CWA. This approach results in Agency (EPA) and the U.S. Army Corps an ‘‘anonymous access’’ system, which confusion and uncertainty to the of Engineers (Corps) are publishing for means EPA will not know your identity regulated public and results in public comment a proposed rule or contact information unless you significant resources being allocated to defining the scope of waters protected provide it in the body of your comment. these determinations by Federal and under the Clean Water Act (CWA), in If you send an email directly to EPA State regulators. The agencies are light of the U.S. Supreme Court cases in without going through http:// proposing this rule to fully carry out U.S. v. Riverside Bayview, Rapanos v. www.regulations.gov, your email their responsibilities under the Clean United States, and Solid Waste Agency address will be automatically captured Water Act. The agencies are providing of Northern Cook County v. U.S. Army and included as part of the comment clarity to regulated entities as to Corps of Engineers (SWANCC), and that is placed in the public docket and whether individual water bodies are Rapanos v. United States (Rapanos). made available on the Internet. If you jurisdictional and discharges are subject This proposal would enhance protection submit an electronic comment, EPA to permitting, and whether individual for the nation’s public health and recommends that you include your water bodies are not jurisdictional and aquatic resources, and increase CWA name and other contact information in discharges are not subject to permitting. program predictability and consistency the body of your comment and with any Developing a final rule to provide the by increasing clarity as to the scope of disk or CD–ROM you submit. If EPA intended level of certainty and ‘‘waters of the United States’’ protected cannot read your comment due to predictability, and minimizing the under the Act. technical difficulties and cannot contact number of case-specific determinations, you for clarification, EPA might not be will require significant public DATES: Submit comments on or before able to consider your comment. Avoid July 21, 2014. involvement and engagement. Such the use of special characters and any involvement and engagement will allow ADDRESSES: Submit your comments, form of encryption, and ensure that the agencies to make categorical identified by Docket ID No. EPA–HQ– electronic files are free of any defects or determinations of jurisdiction, in a OW–2011–0880 by one of the following viruses. For additional information manner that is consistent with the methods: about EPA’s public docket, visit the EPA • scientific body of information before the Federal eRulemaking Portal: http:// Docket Center homepage at http:// agencies—particularly on the category www.regulations.gov. Follow the www.epa.gov/epahome/dockets.htm. of waters known as ‘‘other waters.’’ instructions for submitting comments. Docket: All documents in the docket • The agencies propose to define Email: [email protected]. Include are listed in the http:// ‘‘waters of the United States’’ in section EPA–HQ–OW–2011–0880 in the subject www.regulations.gov index. Some (a) of the proposed rule for all sections line of the message. information, however, is not publicly • of the CWA to mean: Traditional Mail: Send the original and three available, e.g., CBI or other information navigable waters; interstate waters, copies of your comments to: Water whose disclosure is restricted by statute. including interstate wetlands; the Docket, Environmental Protection Certain other material, such as territorial seas; impoundments of Agency, Mail Code 2822T, 1200 copyrighted material, is publicly traditional navigable waters, interstate Pennsylvania Avenue NW., Washington, available only in hard copy. Publicly waters, including interstate wetlands, DC 20460, Attention: Docket ID No. available docket materials are available the territorial seas, and tributaries, as EPA–HQ–OW–2011–0880. electronically at http:// defined, of such waters; tributaries, as • Hand Delivery/Courier: Deliver www.regulations.gov or in hard copy at defined, of traditional navigable waters, your comments to EPA Docket Center, the Water Docket, EPA Docket Center, interstate waters,1 or the territorial seas; EPA West, Room 3334, 1301 EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, Constitution Avenue NW., Washington, 1 ‘‘Interstate waters’’ in this preamble refers to all DC 20460, Attention Docket ID No. DC. The Public Reading Room is open interstate waters including interstate wetlands.

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and adjacent waters, including adjacent purposes of evaluating a significant change to the regulatory status of water wetlands. Waters in these categories nexus, as well as the basis for transfers. The agencies propose, for the would be jurisdictional ‘‘waters of the determining which ecoregions or first time, to exclude by regulation United States’’ by rule—no additional hydrologic-landscape regions should be certain waters and features over which analysis would be required. The so identified. The agencies also solicit the agencies have as a policy matter agencies emphasize that the categorical comment on whether the legal, generally not asserted CWA jurisdiction. finding of jurisdiction for tributaries and technical and scientific record would Codifying these longstanding practices adjacent waters was not based on the support determining limited specific supports the agencies’ goals of mere connection of a water body to subcategories of waters are similarly providing greater clarity, certainty, and downstream waters, but rather a situated, or as having a significant nexus predictability for the regulated public determination that the nexus, alone or sufficient to establish jurisdiction. and the regulators. Waters and features in combination with similarly situated Just as the agencies are seeking that are determined to be excluded waters in the region, is significant based comment on a variety of approaches, or under section (b) of the proposed rule on data, science, the CWA, and caselaw. combination of approaches, as to which will not be jurisdictional under any of In addition, the agencies propose that waters are jurisdictional, the agencies the categories in the proposed rule ‘‘other waters’’ (those not fitting in any also request comment on determining under section (a). There is no recapture of the above categories) could be which waters should be determined provision for these excluded waters in determined to be ‘‘waters of the United non-jurisdictional. The agencies seek the proposal. States’’ through a case-specific showing comment on how inconclusiveness of In light of the Supreme Court that, either alone or in combination with the science relates to the use of case- decisions in SWANCC and Rapanos, the similarly situated ‘‘other waters’’ in the specific determinations. As the science scope of regulatory jurisdiction in this region, they have a ‘‘significant nexus’’ develops, the agencies could determine proposed rule is narrower than that to a traditional navigable water, that additional categories of ‘‘other under the existing regulations. See 40 interstate water, or the territorial seas. waters’’ are similarly situated and have CFR 122.2 (defining ‘‘waters of the The rule would also offer a definition of a significant nexus and are United States’’). significant nexus and explain how jurisdictional by rule, or that as a class The rule does not affect longstanding similarly situated ‘‘other waters’’ in the they do not have such a significant permitting exemptions in the CWA for region should be identified. nexus and might not be jurisdictional. farming, silviculture, ranching and other The agencies acknowledge that there The agencies pose the questions specified activities. Where waters would may be more than one way to determine because of the strong intent to provide be determined jurisdictional under the which waters are jurisdictional as as much certainty to the regulated proposed rule, applicable exemptions in ‘‘other waters.’’ To best meet their goals public and the regulators as to which the CWA would continue to preclude and responsibilities, the agencies waters are and are not subject to CWA application of CWA permitting request comment on alternate jurisdiction. These comments on requirements. Finally, the agencies retain the approaches to determining whether alternate approaches will inform the existing regulatory definitions for the ‘‘other waters’’ are similarly situated agencies in addition to the comments on terms ‘‘adjacent’’ and ‘‘wetlands.’’ The and have a ‘‘significant nexus’’ to a the case-specific determination agencies propose for the first time to traditional navigable water, interstate proposed in the rule. define the terms ‘‘neighboring,’’ water, or the territorial seas. In the The agencies’ decision on how best to ‘‘riparian area,’’ ‘‘floodplain,’’ discussion of ‘‘other waters’’ later in the address jurisdiction over ‘‘other waters’’ preamble, the agencies seek comment ‘‘tributary,’’ and ‘‘significant nexus.’’ in the final rule will be informed by the on these other approaches and whether This proposal does not affect final version of the EPA’s Office of they could better meet the goals of Congressional policy to preserve the Research and Development synthesis of greater predictability and consistency primary responsibilities and rights of published peer-reviewed scientific through increased clarity, while states to prevent, reduce, and eliminate literature discussing the nature of simultaneously fulfilling the agencies’ pollution, to plan the development and connectivity and effects of streams and responsibility to the CWA’s objectives use of land and water resources, and to wetlands on downstream waters (U.S. and policies to protect water quality, consult with the Administrator with Environmental Protection Agency, public health, and the environment. respect to the exercise of the Connectivity of Streams and Wetlands Commenters will specifically be asked Administrator’s authority under the to comment on whether and how these to Downstream Waters: A Review and CWA. CWA section 101(b). alternate approaches may be more Synthesis of the Scientific Evidence, This proposal also does not affect consistent with the goal of clarity, and (Washington, DC: U.S. Environmental Congressional policy not to supersede, the CWA, the best available science, and Protection Agency, 2013)) (‘‘Report’’) abrogate or otherwise impair the the caselaw. and other available scientific authority of each State to allocate In particular, the agencies are information. quantities of water within its interested in comments, scientific and The agencies also propose to exclude jurisdiction and neither does it affect technical data, caselaw, and other specified waters from the definition of the policy of Congress that nothing in information that would further clarify ‘‘waters of the United States’’ in section the CWA shall be construed to which ‘‘other waters’’ should be (b) of the proposed rule. The agencies supersede or abrogate rights to considered similarly situated for propose no change to the exclusion for quantities of water which have been purposes of a case-specific significant waste treatment systems designed established by any state. CWA section nexus determination. The agencies seek consistent with the requirements of the 101(g). comment on a number of alternative CWA, no change to the exclusion for This proposal requests public 2 approaches. These alternatives include prior converted cropland, and no comment on issues associated with the potentially determining waters in 2 identified ecological regions The term ‘‘waters of the United States’’ does not Act of 2014 at 7 CFR 122.2. EPA and the Corps use include prior converted cropland, which is the USDA definition of prior converted cropland for (ecoregions) or hydrologic-landscape currently defined by the U.S. Department of purposes of determining jurisdiction under the regions are similarly situated for Agriculture (USDA) for purposes of the Agriculture CWA.

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agencies’ proposed regulatory definition I. National Technology Transfer and II. Background of ‘‘waters of the United States.’’ Advancement Act A. Executive Summary Because the agencies do not address the J. Executive Order 12898: Federal Actions To exclusions from the definition of Address Environmental Justice in The U.S. Environmental Protection ‘‘waters of the United States’’ for waste Minority Populations and Low-Income Agency (EPA) and the U.S. Army Corps treatment systems and prior converted Populations of Engineers (Corps) publish for public cropland or the existing definition of K. Environmental Documentation comment a proposed rule defining the ‘‘wetlands’’ in this proposed rule the Appendix A. Scientific Evidence scope of waters protected under the agencies do not seek comment on these Appendix B. Legal Analysis Clean Water Act (CWA), in light of the U.S. Supreme Court cases in U.S. v. existing regulatory provisions. This I. General Information notice also solicits information and data Riverside Bayview Homes, Solid Waste from the general public, the scientific A. How can I get copies of this Agency of Northern Cook County v. U.S. community, and tribal, state and local document and related information? Army Corps of Engineers (SWANCC), resource agencies on the aquatic and Rapanos v. United States resource, implementation, and 1. Docket. EPA and the Corps of (Rapanos). The purposes of the economic implications of a definition of Engineers have established an official proposed rule are to ensure protection ‘‘waters of the United States’’ as public docket for this action under of our nation’s aquatic resources and described in the proposal. The goal of Docket Id. No. EPA–HQ–OW–2011– make the process of identifying ‘‘waters the agencies is to ensure the regulatory 0880. The official public docket consists of the United States’’ less complicated definition is consistent with the CWA, of the document specifically referenced and more efficient. The rule achieves as interpreted by the Supreme Court, in this action, any public comments these goals by increasing CWA program and as supported by science, and to received, and other information related transparency, predictability, and provide maximum clarity to the public, to this action. Although a part of the consistency. This rule will result in as the agencies work to fulfill the CWA’s official docket, the public docket does more effective and efficient CWA permit objectives and policy to protect water not include Confidential Business evaluations with increased certainty and quality, public health, and the Information (CBI) or other information less litigation. This rule provides environment. whose disclosure is restricted by statute. increased clarity regarding the CWA The official public docket is the regulatory definition of ‘‘waters of the Table of Contents collection of materials that is available United States’’ and associated I. General Information for public viewing at the OW Docket, definitions and concepts. A. How can I get copies of this document and EPA West, Room 3334, 1301 EPA’s Office of Research and related information? Constitution Ave. NW., Washington, DC Development prepared a draft peer- B. Under what legal authority is this 20004. This Docket Facility is open from reviewed synthesis of published peer- proposed rule issued? 8:30 a.m. to 4:30 p.m., Monday through reviewed scientific literature discussing II. Background Friday, excluding legal holidays. The the nature of connectivity and effects of A. Executive Summary OW Docket telephone number is 202– streams and wetlands on downstream B. The Clean Water Act and Regulatory 566–2426. A reasonable fee will be waters (U.S. Environmental Protection Definition of Waters of the United States Agency, Connectivity of Streams and C. Background on Scientific Review and charged for copies. Wetlands to Downstream Waters: A Significant Nexus Analysis 2. Electronic Access. You may access Review and Synthesis of the Scientific 1. Scientific Synthesis this Federal Register document 2. Summary of Significant Nexus Evidence, (Washington, DC: U.S. electronically through the EPA Internet Environmental Protection Agency, Conclusions under the ‘‘Federal Register’’ listings at III. Proposed Definition of Waters of the 2013)) (‘‘Report’’). The Report is under United States http://www.regulations.gov. An review by EPA’s Science Advisory A. Summary of Proposed Rule electronic version of the public docket Board, and the rule will not be finalized B. Traditional Navigable Waters is available through EPA’s electronic until that review and the final Report C. Interstate Waters public docket and comment system, are complete. This proposal is also D. Territorial Seas EPA Dockets. You may use EPA Dockets supported by a body of peer-reviewed E. Impoundments at http://www.regulations.gov to view F. Tributaries scientific literature on the connectivity public comments, access the index of tributaries, wetlands, adjacent open G. Adjacent Waters listing of the contents of the official H. Other Waters waters, and other open waters to I. Waters That Are Not Waters of the United public docket, and to access those downstream waters and the important States documents in the public docket that are effects of these connections on the IV. Related Acts of Congress, Executive available electronically. For additional chemical, physical, and biological Orders, and Agency Initiatives information about EPA’s public docket, integrity of those downstream waters. A. Executive Order 12866: Regulatory visit the EPA Docket Center homepage Appendix A of this preamble Planning and Review at http://www.epa.gov/epahome/ B. Paperwork Reduction Act summarizes currently available dockets.htm. Although not all docket scientific literature and the Report that C. Regulatory Flexibility Act materials may be available D. Unfunded Mandates Reform Act are part of the administrative record for E. Executive Order 13132: Federalism electronically, you may still access any this proposal and explains how this F. Executive Order 13175: Consultation and of the publicly available docket scientific information supports the Coordination With Indian Tribal materials through the Docket Facility proposed rule. Additional data and Governments identified earlier. information likely will become available G. Executive Order 13045: Protection of during the rulemaking process, Children From Environmental Health B. Under what legal authority is this and Safety Risks proposed rule issued? including that provided during the H. Executive Order 13211: Actions public comment process, and by Concerning Regulations That The authority for this proposed rule is additional research, studies, and Significantly Affect Energy Supply, the Federal Water Pollution Control Act, investigations that take place before the Distribution, or Use 33 U.S.C. 1251, et seq. rulemaking process is concluded. The

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agencies are specifically requesting Pollution Control Act originally enacted The CWA leaves it to EPA and the information that would inform the in 1948.) As stated in section 101(a), the Corps to define the term ‘‘waters of the decision on how best to address ‘‘other objective of the CWA is to restore and United States.’’ Existing regulations (last waters.’’ At the conclusion of the maintain the chemical, physical, and codified in 1986) define ‘‘waters of the rulemaking process, the agencies will biological integrity of the Nation’s United States’’ as traditional navigable review the entirety of the completed waters. Prior to the CWA, the Rivers and waters, interstate waters, all other administrative record and determine at Harbors Appropriations Act of 1899 waters that could affect interstate or that time what, if any, adjustments are protected navigation and protected foreign commerce, impoundments of appropriate for the final rule. some waters from discharges of waters of the United States, tributaries, ‘‘Waters of the United States,’’ which pollution. the territorial seas, and adjacent include wetlands, rivers, streams, lakes, The 1899 Act continues in force and wetlands. 33 CFR 328.3; 40 CFR 122.2. ponds and the territorial seas, provide applies primarily to the ‘‘navigable The U.S. Supreme Court addressed many functions and services critical for waters of the United States.’’ The 1948 the scope of ‘‘waters of the United our nation’s economic and Federal Water Pollution Control Act States’’ protected by the CWA in United environmental health.3 In addition to called for programs eliminating or States v. Riverside Bayview Homes, 474 providing habitat, rivers, lakes, ponds reducing the pollution of interstate U.S. 121 (1985), which involved and wetlands cleanse our drinking waters and tributaries thereof, and wetlands adjacent to a traditional water, ameliorate storm surges, provide improving the sanitary condition of navigable water in Michigan. In a invaluable storage capacity for some surface and underground waters. The unanimous opinion, the Court deferred flood waters, and enhance our quality of jurisdictional scope of the CWA is to the Corps’ judgment that adjacent life by providing myriad recreational ‘‘navigable waters,’’ defined in section wetlands are ‘‘inseparably bound up’’ opportunities, as well as important 502(7) of the statute as ‘‘waters of the with the waters to which they are water supply and power generation United States, including the territorial adjacent, and upheld the inclusion of benefits. A desire to protect these vital seas.’’ Both the legislative history and adjacent wetlands in the regulatory resources led Congress to pass the CWA the caselaw confirm that ‘‘waters of the definition of ‘‘waters of the United in 1972 in order to restore and maintain United States’’ in the CWA are not States.’’ The Court observed that the the chemical, physical, and biological limited to the traditional navigable broad objective of the CWA to restore integrity of our nation’s waters while waters. It is the CWA definition that is the integrity of the nation’s waters recognizing, preserving, and protecting the subject of this proposed rule. ‘‘incorporated a broad, systemic view of the primary responsibilities and rights The term ‘‘navigable waters’’ is used the goal of maintaining and improving of states to prevent, reduce, and in a number of provisions of the CWA, water quality.... Protection of aquatic eliminate pollution within their borders. including the section 402 National ecosystems, Congress recognized, Decades of experience implementing the Pollutant Discharge Elimination System demanded broad federal authority to CWA’s programs and existing science (NPDES) permit program, the section control pollution, for ‘[w]ater moves in provide strong support for the 404 permit program, the section 311 oil hydrologic cycles and it is essential that regulatory and policy underpinnings of spill prevention and response program,4 discharge of pollutants be controlled at the proposed rule. The proposed rule the water quality standards and total the source.’ In keeping with these views, was developed with an enhanced maximum daily load programs under Congress chose to define the waters understanding of the importance of all section 303, and the section 401 state covered by the Act broadly.’’ Id. at 133 aspects of tributary, wetland, and lake water quality certification process. (citing Senate Report 92–414). and pond systems and the ecological However, while there is only one CWA The issue of CWA regulatory functions and services they provide. definition of ‘‘waters of the United jurisdiction over ‘‘waters of the United The proposed rule will reduce States,’’ there may be other statutory States’’ was addressed again by the documentation requirements and the factors that define the reach of a Supreme Court in Solid Waste Agency time currently required for making particular CWA program or provision.5 of Northern Cook County v. U.S. Army jurisdictional determinations. It will Corps of Engineers, 531 U.S. 159 (2001). provide needed clarity for regulators, 4 While section 311 uses the phrase ‘‘navigable In SWANCC, the Court (in a 5–4 stakeholders and the regulated public waters of the United States,’’ EPA has interpreted opinion) held that the use of ‘‘isolated’’ for identifying waters as ‘‘waters of the it to have the same breadth as the phrase ‘‘navigable nonnavigable intrastate ponds by waters’’ used elsewhere in section 311, and in other United States,’’ and reduce time and sections of the CWA. See United States v. Texas migratory birds was not by itself a resource demanding case-specific Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); sufficient basis for the exercise of analyses prior to determining United States v. Ashland Oil & Transp. Co., 504 Federal regulatory authority under the jurisdiction and any need for permit or F.2d 1317, 1324–25 (6th Cir. 1974). In 2002, EPA revised its regulatory definition of ‘‘waters of the plurality opinion in Rapanos noted that ‘‘there is enforcement actions. United States’’ in 40 CFR part 112 to ensure that no reason to suppose that our construction today The modern Clean Water Act was the actual language of the rule was consistent with significantly affects the enforcement of § 1342. . . . established by the Federal Water the regulatory language of other CWA programs. Oil The Act does not forbid the ‘addition of any Pollution Control Act Amendments of Pollution & Response; Non-Transportation-Related pollutant directly to navigable waters from any 1972, which was substantially amended Onshore & Offshore Facilities, 67 FR 47042, July 17, point source,’ but rather the ‘addition of any 2002. A district court vacated the rule for failure to in 1977 and 1987. (The 1972 pollutant to navigable waters.’ ’’ 547 U.S. at 743. comply with the Administrative Procedure Act, and Clean Water Act section 311(b)(1) provides: ‘‘[I]t is amendments were to the Federal Water reinstated the prior regulatory language. American the policy of the United States that there should be Petroleum Ins. v. Johnson, 541 F.Supp. 2d 165 (D. no discharges of oil or hazardous substances into 3 The agencies use the term ‘‘water’’ and ‘‘waters’’ DC 2008). However, EPA interprets ‘‘navigable or upon the navigable waters of the United States in the proposed rule in categorical reference to waters of the United States’’ in CWA section 311(b), [or] adjoining shorelines . . . or which may affect rivers, streams, ditches, wetlands, ponds, lakes, in the pre-2002 regulations, and in the 2002 rule to natural resources belonging to, appertaining to, or playas, and other types of natural or man-made have the same meaning as ‘‘navigable waters’’ in under the exclusive management authority of the aquatic systems. The agencies use the terms CWA section 502(7). United States.’’ (Emphasis added.) ‘‘Discharge’’ is ‘‘waters’’ and ‘‘water bodies’’ interchangeably in 5 For example, the CWA section 402 (33 U.S.C. broadly defined in CWA section 311(a)(2) to this preamble. The terms do not refer solely to the § 1342) program regulates discharges of pollutants include ‘‘any spilling, leaking, pumping, pouring, water contained in these aquatic systems, but to the from ‘‘point sources’’ to ‘‘waters of the United emitting, emptying or dumping,’’ with certain system as a whole including associated chemical, States,’’ whether these pollutants reach enumerated exceptions, and is not limited to point physical, and biological features. jurisdictional waters directly or indirectly. The source discharges.

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CWA. The Court noted that in the appropriate to apply the ‘‘significant traditional navigable water, interstate Riverside case it had ‘‘found that nexus’’ standard for CWA jurisdiction water or the territorial seas would not be Congress’ concern for the protection of that Justice Kennedy’s opinion applied ‘‘waters of the United States.’’ In water quality and aquatic ecosystems to adjacent wetlands to other categories addition, the proposed rule would for indicated its intent to regulate wetlands of water bodies as well (such as to the first time explicitly exclude some ‘inseparably bound up with the tributaries of traditional navigable features and waters over which the ‘‘waters’’ of the United States’ ’’ and that waters or interstate waters, and to agencies have not generally asserted ‘‘[i]t was the significant nexus between ‘‘other waters’’) to determine whether jurisdiction and in so doing would the wetlands and ‘navigable waters’ that they are subject to CWA jurisdiction, eliminate the authority of the agencies informed our reading of the CWA’’ in either by rule or on a case-specific basis. to determine in case specific that case. Id. at 167. The four dissenting Justices in circumstances that some such waters are Five years after SWANCC, the Court Rapanos would have affirmed the court jurisdictional ‘‘waters of the United again addressed the CWA term ‘‘waters of appeals’ application of the pertinent States.’’ of the United States’’ in Rapanos v. regulatory provisions, concluding that The agencies propose a rule that is United States, 547 U.S. 715 (2006). the term ‘‘waters of the United States’’ clear and understandable and that Rapanos involved two consolidated encompasses, inter alia, all tributaries protects the nation’s waters, consistent cases in which the CWA had been and wetlands that satisfy either the with the law and currently available applied to wetlands adjacent to plurality’s standard or that of Justice scientific and technical expertise. nonnavigable tributaries of traditional Kennedy. Id. at 810 & n.14 (Stevens, J., Continuity with the existing regulations, navigable waters. All Members of the dissenting). Neither the plurality nor the where possible, will reduce confusion Court agreed that the term ‘‘waters of Kennedy opinion invalidated any of the and will reduce transaction costs for the the United States’’ encompasses some regulatory provisions defining ‘‘waters regulated community and the agencies. waters that are not navigable in the of the United States.’’ To that same end, the agencies also traditional sense. A four-Justice The proposed rule would revise the propose, where consistent with the law plurality in Rapanos interpreted the existing definition of ‘‘waters of the and their scientific and technical United States’’ consistent with the term ‘‘waters of the United States’’ as expertise, categories of waters that are science and the above Supreme Court covering ‘‘relatively permanent, and are not jurisdictional, as well as cases. The proposed rule retains much standing or continuously flowing bodies categories of waters and wetlands that of the structure of the agencies’ of water. . .’’ id. at 739, that are require a case-specific significant nexus longstanding definition of ‘‘waters of the connected to traditional navigable evaluation to determine whether they United States,’’ and many of the existing waters, id. at 742, as well as wetlands are ‘‘waters of the United States’’ and provisions of that definition where with a continuous surface connection to protected by the CWA. Finally, the such relatively permanent water bodies, revisions are not required in light of agencies propose definitions for some of id. The Rapanos plurality noted that its Supreme Court decisions or other bases the terms used in the proposed reference to ‘‘relatively permanent’’ for revision. As a result of the Supreme regulation. waters did ‘‘not necessarily exclude Court decisions in SWANCC and streams, rivers, or lakes that might dry Rapanos, the scope of regulatory This preamble also presents several up in extraordinary circumstances, such jurisdiction of the CWA in this alternative options for determining the as drought,’’ or ‘‘seasonal rivers, which proposed rule is narrower than that jurisdictional status of certain ‘‘other contain continuous flow during some under the existing regulations. waters’’ that would rely less, or not at months of the year but no flow during The most substantial change is the all, on case-specific significant nexus dry months. . . .’’ Id. at 732 n.5 proposed deletion of the existing evaluations. The agencies may adopt (emphasis in original). regulatory provision that defines one or a combination of these options Justice Kennedy’s concurring opinion ‘‘waters of the ‘‘United States’’ as all for the final rule, after considering took a different approach than the other waters such as intrastate lakes, public comment and the evolving plurality’s. Justice Kennedy concluded rivers, streams (including intermittent scientific literature on connectivity of that the term ‘‘waters of the United streams), mudflats, sandflats, wetlands, waters. This preamble also seeks States’’ encompasses wetlands that sloughs, prairie potholes, wet meadows, comment on a number of other ways ‘‘possess a ‘significant nexus’ to waters playa lakes, or natural ponds, the use, that the agencies might provide even that are or were navigable in fact or that degradation or destruction of which greater clarity, certainty, and could reasonably be so made.’’ Id. at 759 could affect interstate or foreign predictability in determining which (Kennedy, J., concurring in the commerce including any such waters: ‘‘other waters’’ are and are not subject judgment) (quoting SWANCC, 531 U.S. Which are or could be used by interstate to CWA jurisdiction. The agencies at 167). He stated that wetlands possess or foreign travelers for recreational or evaluated extensive peer reviewed the requisite significant nexus if the other purposes; from which fish or science in making their determination wetlands, ‘‘either alone or in shellfish are or could be taken and sold in the proposed rule. However, the combination with similarly situated in interstate or foreign commerce; or agencies also seek additional [wet]lands in the region, significantly which are used or could be used for information that would enhance the affect the chemical, physical, and industrial purposes by industries in predictability and accuracy of its biological integrity of other covered interstate commerce. 33 CFR 328.3(a)(3); jurisdictional determinations. The waters more readily understood as 40 CFR 122.2. Under the proposed rule, agencies request the type of information ‘navigable.’ ’’ 547 U.S. at 780. Kennedy’s these ‘‘other waters’’ (those which do on the evolving scientific literature on opinion notes that such a relationship not fit within the proposed categories of connectivity of waters that could allow with navigable waters must be more waters jurisdictional by rule) would the agencies to rely less on case-specific than ‘‘speculative or insubstantial.’’ Id. only be jurisdictional upon a case- significant nexus evaluations. Because Justice Kennedy identified specific determination that they have a Under the proposed first section of ‘‘significant nexus’’ as the touchstone significant nexus as defined by the the regulation, section (a), the agencies for CWA jurisdiction, the agencies proposed rule. Waters in a watershed in propose to define the ‘‘waters of the determined that it is reasonable and which there is no connection to a United States’’ for all sections

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(including sections 301, 311, 401, 402, significant nexus and thus are ‘‘waters categories in the proposed rule under 404) of the CWA to mean: of the United States.’’ section (a), even if they would otherwise • All waters which are currently In paragraph (a)(6) of the proposed satisfy the regulatory definition. Those used, were used in the past, or may be rule, the rule would clarify that adjacent waters and features that would not be susceptible to use in interstate or foreign waters, rather than simply adjacent ‘‘waters of the United States’’ are: commerce, including all waters which wetlands, are ‘‘waters of the United • Waste treatment systems, including are subject to the ebb and flow of the States.’’ The rule would further clarify treatment ponds or lagoons, designed to tide; the meaning of ‘‘adjacent’’ by defining meet the requirements of the Clean • All interstate waters, including one of its elements, ‘‘neighboring.’’ The Water Act. interstate wetlands; related terms of ‘‘riparian area’’ and • Prior converted cropland. • The territorial seas; ‘‘floodplain’’ are also defined in the Notwithstanding the determination of • All impoundments of a traditional proposed rule. an area’s status as prior converted navigable water, interstate water, the The rule states that on a case-specific cropland by any other Federal agency, territorial seas or a tributary; basis ‘‘other waters’’ that have a • for the purposes of the Clean Water Act All tributaries of a traditional significant nexus to a traditional the final authority regarding Clean navigable water, interstate water, the navigable water, interstate water or the Water Act jurisdiction remains with territorial seas or impoundment; territorial seas are ‘‘waters of the United • EPA. All waters, including wetlands, States.’’ Unlike the categories of waters • Ditches that are excavated wholly adjacent to a traditional navigable water, in paragraphs (a)(1) through (6), which in uplands, drain only uplands, and interstate water, the territorial seas, would be jurisdictional by definition, have less than perennial flow. impoundment or tributary; and these ‘‘other waters’’ would not be • • Ditches that do not contribute flow, On a case-specific basis, other ‘‘waters of the United States’’ by either directly or through another water, waters, including wetlands, provided definition; rather, these ‘‘other waters’’ to a traditional navigable water, that those waters alone, or in would only be jurisdictional provided interstate water, the territorial seas or an combination with other similarly that they have been determined on a impoundment of a jurisdictional water. situated waters, including wetlands, case-specific basis to have a significant • The following features: located in the same region, have a nexus to a paragraph (a)(1) through Æ Artificially irrigated areas that significant nexus to a traditional (a)(3) water. Therefore, the rule also would revert to upland should navigable water, interstate water or the includes a definition of ‘‘significant application of irrigation water to that territorial seas. nexus.’’ area cease; As discussed in further detail below, ‘‘Significant nexus’’ is not itself a Æ artificial lakes or ponds created by the rule would not change the following scientific term. The relationship that excavating and/or diking dry land and provisions of the existing rule (although waters can have to each other and used exclusively for such purposes as some provisions have been connections downstream that affect the stock watering, irrigation, settling renumbered): Traditional navigable chemical, physical, or biological basins, or rice growing; waters; interstate waters; the territorial integrity of traditional navigable waters, Æ artificial reflecting pools or seas; and impoundments of ‘‘waters of interstate waters, or the territorial seas swimming pools created by excavating the United States.’’ In paragraph (a)(5) of is not an all or nothing situation. The and/or diking dry land; the proposed rule, the agencies propose existence of a connection, a nexus, does Æ small ornamental waters created by that all tributaries as defined in the not by itself establish that it is a excavating and/or diking dry land for proposed rule are ‘‘waters of the United ‘‘significant nexus.’’ There is a gradient primarily aesthetic reasons; States.’’ While tributaries are ‘‘waters of in the relation of waters to each other, Æ water-filled depressions created the United States’’ under the existing and this is documented in the Report. incidental to construction activity; regulation, the rule would for the first The agencies propose a case-specific Æ groundwater, including time include a regulatory definition of analysis in establishing jurisdiction over groundwater drained through ‘‘tributary.’’ these ‘‘other waters’’ as consistent with subsurface drainage systems; and With this proposed rule, the agencies the current science, the CWA, and the Æ gullies and rills and non-wetland conclude, based on existing science and caselaw. A case-specific analysis allows swales. the law, that a significant nexus exists for a determination of jurisdiction at the The rule does not affect longstanding between tributaries (as defined in the point on the gradient in the relationship exemptions in the CWA for farming, proposed rule) and the traditional that constitutes a ‘‘significant nexus.’’ In silviculture, ranching and other navigable waters, interstate waters, and the proposed regulation the rule defines activities, does not change regulatory the territorial seas into which they flow; the following terms: adjacent, exclusions for waste treatment systems and between adjacent water bodies (as neighboring, riparian area, floodplain, and prior converted cropland, and does defined in the proposed rule) and tributary, wetlands, and significant not change the regulatory status of water traditional navigable waters, interstate nexus. However, the agencies also transfers. Where waters would be waters, and the territorial seas, recognize that relying on a case-specific determined jurisdictional under the respectively. Consequently, this rule analysis provides less certainty to the proposed rule, applicable exemptions of establishes as ‘‘waters of the United regulated public on the jurisdictional the CWA would continue to preclude States,’’ all tributaries (as defined in the status of other waters and is considering application of CWA permitting proposal), of the traditional navigable other approaches, as discussed later in requirements. For example, if ‘‘other waters, interstate waters, and the this preamble. waters’’ are aggregated as similarly territorial seas, as well as all adjacent The proposed section (b) excludes situated in the region and determined to waters (including wetlands). This will specified waters and features from the be jurisdictional, any exempt activities eliminate the need to make a case- definition of ‘‘waters of the United that include a discharge to those waters specific significant nexus determination States.’’ Waters and features that are would remain outside the regulatory for tributaries or for their adjacent determined to be excluded under requirements of the CWA. Exempted waters because it has been determined section (b) of the proposed rule will not discharges are established under CWA that as a category, these waters have a be jurisdictional under any of the sections 402, 502, and 404 and include:

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Agricultural stormwater discharges; waters, or the territorial seas, and their waters is to prevent or delay a return flows from irrigated agriculture; adjacent waters and wetlands. Case- hydrological connection with normal farming, silvicultural, and specific jurisdictional determinations downstream waters and store water and/ ranching activities; upland soil and would still be required for the ‘‘other or pollutants. Given the large scale water conservation practices; waters’’ category in paragraph (a)(7) of systematic interactions that occur, and construction or maintenance of farm or the proposed rule. Under the alternate the substantial effects that result, among stock ponds or irrigation ditches; approaches affecting ‘‘other waters’’ tributaries, adjacent waters, and the maintenance of drainage ditches; and described later in the preamble, the downstream traditional navigable construction or maintenance of farm, agencies request comment on the case- waters, interstate waters, or the forest, and temporary mining roads. specific analysis. territorial seas, a significant nexus exists To provide additional clarity to A review of the scientific literature, that warrants making those categories of farmers, the agencies are today also including the Report of the peer- waters jurisdictional by rule. issuing an interpretive rule clarifying reviewed science, shows that tributaries States and tribes play a vital role in the applicability of the permitting and adjacent waters play an important the implementation and enforcement of exemption provided under section role in maintaining the chemical, the CWA. Section 101(b) of the CWA 404(f)(1)(A) of the CWA to discharges of physical, and biological integrity of states that it is Congressional policy to dredged or fill material associated with traditional navigable waters, interstate preserve the primary responsibilities certain agricultural conservation waters, and the territorial seas—and of and rights of states to prevent, reduce, practices based on the Natural other jurisdictional waters—because of and eliminate pollution, to plan the Resources Conservation Service their hydrological and ecological development and use of land and water conservation practice standards and that connections to and interactions with resources, and to consult with the are designed and implemented to those waters. Therefore, it is appropriate Administrator with respect to the protect and enhance water quality. This to protect all tributaries and adjacent exercise of the Administrator’s authority interpretive rule was developed in waters, because the tributaries, adjacent under the CWA. coordination with the U.S. Department waters, and the downstream traditional Of particular importance, states and of Agriculture, was signed by EPA and navigable waters, interstate waters, and tribes may be authorized by the EPA to the Army, and became effective the territorial seas function as an administer the permitting programs of immediately. The agencies recognize, integrated system. Water flows through sections 402 and 404. Forty-six states however, the value of receiving public tributaries to downstream traditional and the Virgin Islands are authorized to comment on the interpretive rule and navigable waters, interstate waters, and administer the NPDES program under are publishing it by separate notice in the territorial seas, and that water section 402, while two states administer the Federal Register. The public is carries pollutants that affect the the section 404 program. Additional encouraged to provide their comments chemical, physical, and biological CWA programs that utilize the on the interpretive rule to the docket on integrity of the (a)(1) through (a)(3) definition of ‘‘waters of the United the interpretive rule, Docket Id. No. waters, including water quality, States’’ and are of importance to the EPA–HQ–OW–2013–0820, and not to fisheries, recreation, and other states and tribes include the section 311 this docket. The interpretive rule and ecological services. oil spill prevention and response the request for comments can be found In discussing the significant nexus program, the water quality standards at http://water.epa.gov/lawsregs/ standard, Justice Kennedy stated: ‘‘The and total maximum daily load programs guidance/wetlands/agriculture.cfm and required nexus must be assessed in under section 303, and the section 401 at http://www.regulations.gov via terms of the statute’s goals and state water quality certification process. Docket Id. No. EPA–HQ–OW–2013– purposes. Congress enacted the [CWA] States and tribes, consistent with the 0820. to ‘restore and maintain the chemical, CWA, retain full authority to implement The proposed rule is expected to physical, and biological integrity of the their own programs to more broadly or reduce documentation requirements and Nation’s waters. . . .’ ’’ 547 U.S. at 779. more fully protect the waters in their the time it takes to make approved To protect the integrity of the waters state. Under section 510 of the Act, jurisdictional determinations by subject to the CWA, the significant unless expressly stated in the CWA, decreasing the number of jurisdictional nexus standard must be implemented in nothing in the Act precludes or denies determinations that require case-specific a manner that restores and maintains the right of any state or tribe to establish significant nexus analysis evaluations. It any of these three attributes of more protective standards or limits than will improve clarity for regulators, traditional navigable waters, interstate the Federal CWA. Many states and stakeholders and the regulated public by waters, or the territorial seas. Waters tribes, for example, protect defining certain categories of waters as adjacent to tributaries also provide groundwater, and some others protect ‘‘waters of the United States’’ that ecological functions that, in conjunction wetlands that are vital to their previously required case-specific with the functions provided by the environment and economy but which analyses prior to establishing CWA tributaries they are adjacent to, have a are outside the regulatory jurisdiction of jurisdiction through the approved significant influence on the chemical, the CWA. Nothing in this proposed rule jurisdictional determination procedures. physical, and biological integrity of would limit or impede any existing or A comprehensive review of a growing downstream traditional navigable future state or tribal efforts to further body of scientific literature, as well as waters, interstate waters, and the protect their waters. In fact, providing the agencies’ growing body of scientific territorial seas. greater clarity regarding what waters are and technical knowledge and field Examples of the important functions subject to CWA jurisdiction will reduce expertise, led the agencies to conclude provided by adjacent waters are the the need for permitting authorities, that it is reasonable to establish certain sequestering or transformation of including the states and tribes that have categories of waters that are pollutants to reduce inputs to tributaries authorized section 402 and 404 CWA jurisdictional by rule as they have a and subsequently to downstream (a)(1) permitting programs, to make significant nexus to an (a)(1) through through (a)(3) waters, water storage, and jurisdictional determinations on a case- (a)(3) water, specifically tributaries to sediment trapping. Thus, in some specific basis, leaving them with more traditional navigable waters, interstate instances, the significance of adjacent resources to protect their waters.

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This proposal also recognizes the the protection of the nation’s waters as rivers, lakes, and estuaries in unique role of states related to water provided under earlier statutory watersheds across the United States and quantity and as stated in the CWA. The schemes such as certain sections of the the strength of those connections. While proposal does not affect Congressional Rivers and Harbors Appropriations Act the scientific literature does not use the policy not to supersede, abrogate or of 1899 (‘‘RHA’’) (33 U.S.C. 03, 407, term ‘‘significant nexus,’’ there is a otherwise impair the authority of each 411) and the Federal Water Pollution substantial body of scientific literature state to allocate quantities of water Control Act of 1948 (62 Stat. 1155) and on the chemical, physical, and within its jurisdiction and neither does its subsequent amendments through biological connections between it affect the policy of Congress that 1970. The jurisdictional scope of the tributaries and adjacent waters and nothing in the CWA shall be construed CWA is ‘‘navigable waters,’’ defined in ‘‘other waters’’ and the downstream to supersede or abrogate rights to the statute as ‘‘waters of the United larger waters, and on the strength and quantities of water which have been States, including the territorial seas.’’ the effect of these connections. established by any state. CWA section CWA section 502(7). The CWA leaves it Connectivity is a foundational 101(g). to the agencies to define the term concept in hydrology and freshwater While a principal goal of this ‘‘waters of the United States.’’ Existing ecology. Connectivity is the degree to rulemaking is to improve clarity for agency regulations define ‘‘waters of the which components of a system are determining jurisdiction under the CWA United States’’ as traditional navigable joined, or connected, by various in light of the two most recent Supreme waters, interstate waters, all other transport mechanisms and is Court cases with the dual benefits of waters that could affect interstate or determined by the characteristics of improving certainty and greater foreign commerce, impoundments of both the physical landscape and the efficiency for determining whether waters of the United States, tributaries, biota of the specific system. The waters are covered, there are other tools the territorial seas, and adjacent structure and function of downstream and approaches underway to increase wetlands. 33 CFR 328.3; 40 CFR waters are highly dependent on the efficiency as well. For example, to 230.3(s). Counterpart and substantively constituent materials contributed by and improve efficiencies, the EPA and the similar regulatory definitions appear at transported through waters located Corps are working in partnership with 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, elsewhere in the watershed. states to develop new tools and 232.2, 300.5, part 300 App. E, 302.3 and Connectivity for purposes of resources that have the potential to 401.11. interpreting the scope of ‘‘waters of the improve precision of desk based The current regulatory definition of United States’’ under the CWA serves to jurisdictional determinations at lower ‘‘waters of the United States’’ provides demonstrate the ‘‘nexus’’ between cost and improved speed than the two specific exclusions from ‘‘waters of upstream water bodies and the existing primarily field-based the United States.’’ Waste treatment downstream traditional navigable water, approaches. In the normal course of systems designed to meet the interstate water, or the territorial sea. making jurisdictional determinations, requirements of the CWA and prior Based on the literature, the Office of information derived from field converted cropland are not ‘‘waters of Research and Development was able to observation is not always required in the United States’’ under the agencies’ assess the types of connections between cases where a ‘‘desktop’’ analysis current regulations. Under the the tributaries and adjacent waters and furnishes sufficient information to make regulations for prior converted the chemical, physical, and biological the requisite findings. However, for cropland, notwithstanding the integrity of downstream traditional more complex or difficult jurisdictional determination of an area’s status as prior navigable waters, interstate waters, and determinations, it may be helpful to converted cropland by any other Federal the territorial seas. However, as Justice Kennedy found in supplement such information with field agency, for the purposes of the Clean Rapanos, a mere hydrologic connection observation. Water Act, the final authority regarding may not suffice in all cases to establish EPA and the Corps are very interested Clean Water Act jurisdiction remains CWA jurisdiction and there needs to be in identifying other emerging with EPA. 33 CFR 328.3(a)(8). technologies or approaches that would ‘‘some measure of the significance of the save time and money and improve C. Background on Scientific Review and connection for downstream water efficiency for regulators and the Significant Nexus Analysis quality.’’ 547 U.S. at 784–785 (‘‘mere hydrologic connection should not regulated community in determining 1. Scientific Synthesis which waters are subject to CWA suffice in all cases; the connection may jurisdiction. The agencies specifically EPA’s Office of Research and be too insubstantial for the hydrologic invite comment on this topic. Development prepared a draft peer- linkage to establish the required nexus The proposed rule will benefit the reviewed synthesis of published peer- with navigable waters as traditionally nation by helping to protect the services reviewed scientific literature discussing understood’’). The literature does not and functions these important water the nature of connectivity and effects of use the term ‘‘significant’’ but does bodies provide consistent with the streams and wetlands on downstream provide information on the strength of overarching objective of the CWA. waters (U.S. Environmental Protection the effects on the chemical, physical, Agency, Connectivity of Streams and and biological functioning of the B. The Clean Water Act and Regulatory Wetlands to Downstream Waters: A downstream water bodies from the Definition of ‘‘Waters of the United Review and Synthesis of the Scientific connections among tributaries and States’’ Evidence, (Washington, DC: U.S. adjacent waters and ‘‘other waters’’ and The Federal Water Pollution Control Environmental Protection Agency, those downstream waters. Act Amendments, now known as the 2013), (the ‘‘Report’’)). The draft Report While ‘‘strength’’ of connections to Clean Water Act, were enacted in 1972. provides a review and synthesis of the and effects on the integrity of The objective of the CWA is to restore scientific information pertaining to downstream waters and the and maintain the chemical, physical, chemical, physical, and biological ‘‘significance’’ of the nexus to the and biological integrity of the Nation’s connections from streams, wetlands, integrity of downstream waters are waters. CWA section 101(a). Its specific and open waters such as oxbow lakes, clearly related inquiries, ‘‘significant’’ is provisions were designed to improve to downstream larger water bodies such not a scientific term but rather a

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determination of the agencies in light of water in rivers, transport sediment and they are appropriately jurisdictional by the law and science. The relative organic matter, provide habitat for many rule. strength of downstream effects informs species, and take up or change nutrients The Report is currently undergoing the agencies’ conclusions about the that could otherwise impair peer review by EPA’s Scientific significance of those effects for purposes downstream waters. The Report also Advisory Board (SAB) and is available of interpreting the CWA. The data and concludes that wetlands and open at http://yosemite.epa.gov/sab/ conclusions in the Report concerning waters in floodplains of streams and sabproduct.nsf/fedrgstr_activites/ the strength of the relevant connections rivers and in riparian areas (transition Watershed%20Connectivity%20Report? and effects of certain types of waters on areas between terrestrial and aquatic OpenDocument. A previous version of downstream waters provide a ecosystems) have a strong influence on the Report dated October 11, 2011 foundation for the agencies’ downstream waters. Such waters act as underwent an independent peer review determinations that certain waters have the most effective buffer to protect organized by the Eastern Research effects on the chemical, physical, and downstream waters from nonpoint Group, Inc. (ERG). The purpose of the biological integrity of traditional source pollution (such as nitrogen and ERG-organized peer review was to navigable waters, interstate waters, or phosphorus), provide habitat for determine whether the review and the territorial seas that are ‘‘significant’’ breeding fish and aquatic insects that interpretation of the scientific literature and thus constitute a significant nexus. also live in streams, and retain was complete and correct, and if the As clarified in the proposed definition floodwaters, sediment, nutrients, and conclusions in the Report were of ‘‘significant nexus’’ and consistent contaminants that could otherwise supported by the evidence. ERG was with Justice Kennedy’s guidance, for an negatively impact the condition or responsible for identifying and selecting effect to be significant it must be more function of downstream waters. the expert reviewers, managing the than speculative or insubstantial. Regarding wetlands and open waters review, organizing and facilitating a The Office of Research and located outside of floodplains and one-day peer review meeting, and Development’s review and synthesis of riparian areas, the Report finds that they preparing the peer review summary more than a thousand publications from provide many benefits to rivers, lakes, report. ERG provided the reviewers with peer-reviewed scientific literature and other downstream waters. If the a letter of instruction and the technical focuses on evidence of those wetland or open water has a surface or charge, which asked for their comments connections from various categories of shallow subsurface water connection to on the various aspects of the draft waters, evaluated singly or in aggregate, the river network, it affects the report. ERG convened the one-day meeting which affect downstream waters and the condition of downstream waters. Where on January 31, 2012, in Washington, DC. strength of that effect. Much of the the wetland or open water is not The meeting was closed to the public scientific literature relied on does not connected to the river network through use the terms traditional navigable and considered an internal EPA surface or shallow subsurface water, the waters, interstate waters, or the deliberative process. Observers from type and degree of connectivity varies territorial seas. However, evidence of EPA and the Corps attended to listen to geographically, topographically, and strong chemical, physical, and the discussions. At the close of the ecologically, such that the significance biological connections to larger rivers, meeting, the reviewers developed some of the connection is difficult to estuaries and lakes applies to that subset brief highlights of their discussions, generalize across the entire group of of rivers, estuaries and lakes that are which were provided with written post- waters. traditional navigable waters, interstate meeting comments from individual waters, or the territorial seas. The Lastly, the Report concludes that to reviewers in a report from ERG titled objectives of the Report are (1) to understand the health, behavior, and ‘‘Peer Review Meeting of EPA’s Draft provide a context for considering the sustainability of downstream waters, the Report: Connectivity of Streams and evidence of connections between effects of small water bodies in a Wetlands to Downstream Waters—A downstream waters and their tributary watershed need to be considered in Review and Synthesis of the Scientific waters, and (2) to summarize current aggregate. The contribution of material Evidence, Post-Meeting Comments,’’ understanding about these connections, by, or an important water-retention dated February 16, 2012. The Office of the factors that influence them, and the function of, a particular stream, other Research and Development revised its mechanisms by which the connections open water, or wetland might be small, Report in response to the peer review affect the function or condition of but the aggregate contribution by an comments and submitted the Report to downstream waters. The connections entire class of streams, other open the SAB for peer review and a public and mechanisms discussed in the waters, and wetlands (e.g., all process. This peer review report is Report include transport of physical ephemeral streams in the river network) available in the docket for the proposed materials and chemicals such as water, can be substantial. rule. wood, sediment, nutrients, pesticides, In the proposed rule, the agencies The agencies have identified key and mercury; functions that adjacent interpreted the scope of ‘‘waters of the aspects of the Report throughout this waters perform, such as storing and United States’’ in the CWA based on the preamble and in Appendix A. The cleansing water; movement of organisms information and conclusions in the Report summarizes and assesses much or their seeds and eggs; and hydrologic Report, other relevant scientific of the currently available scientific and biogeochemical interactions literature, the agencies’ technical literature that is part of the occurring in and among surface and expertise, and the objectives and administrative record for this proposal, groundwater flows, including hyporheic requirements of the Clean Water Act. In and informs the agencies during this zones and alluvial aquifers. light of this information, the agencies rulemaking. Additional data and The Report concludes that the made judgments about the nexus information will become available scientific literature clearly demonstrates between the relevant waters and the during the rulemaking process, that streams, regardless of their size or significance of that nexus and including that provided during the how frequently they flow, strongly concluded that tributaries and adjacent public comment process, and by influence how downstream waters waters, each as defined by the proposed additional research, studies, and function. Streams supply most of the rule, have a significant nexus such that investigations that take place before the

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rulemaking process is concluded. The contaminants, and many of the category of such ‘‘other waters’’ is agencies have relied on the best organisms found in downstream jurisdictional by rule. These ‘‘other available scientific data and traditional navigable waters, interstate waters’’ may provide numerous information—peer-reviewed literature— waters, and the territorial seas. functions of potential benefit to and would find, to the extent possible, Tributary streams are biologically traditional navigable waters, interstate additional peer-reviewed literature to be connected to downstream traditional waters, and the territorial seas, the most useful submissions. At the navigable waters, interstate waters, and including storage of floodwater; conclusion of the rulemaking process, the territorial seas by dispersal and retention of nutrients, metals, and the agencies will review the entirety of migration of aquatic and semi-aquatic pesticides; and re-charge of groundwater the completed administrative record, organisms, including fish, amphibians, sources of river baseflow. The functions including the final Report reflecting plants, and invertebrates, that use both of these ‘‘other waters’’ may affect SAB review, and make any adjustments upstream and downstream habitats downstream traditional navigable to the final rule that are appropriate during one or more stages of their life waters, interstate waters, and the based on this record. As noted below, cycles, or provide food resources to territorial seas, depending on the the agencies particularly intend to downstream communities. Chemical, characteristics of the connection to the review the rule provisions related to physical, and biological connections river network. For ‘‘other waters,’’ ‘‘other waters’’ in light of this record, between tributary streams and connectivity varies within a watershed and are soliciting comment on several downstream traditional navigable and over time, making it difficult to alternative approaches to applying the waters, interstate waters, and the generalize about their connections to, or science and the law for determining territorial seas interact via processes isolation from, traditional navigable whether ‘‘other waters’’ are similarly such as nutrient spiraling, in which waters, interstate waters, and the situated and have a ‘‘significant nexus’’ tributary stream communities assimilate territorial seas. These ‘‘other waters’’ to a traditional navigable water, and chemically transform large would be evaluated on a case-specific interstate water, or the territorial seas. quantities of nitrogen that would basis under the proposed rule. otherwise increase nutrient loading Under the existing regulations, ‘‘other 2. Summary of Significant Nexus downstream. waters’’ (such as intrastate rivers, lakes Conclusions As discussed in this preamble and and wetlands that are not otherwise As the agencies developed this Appendix A, adjacent waters, as defined jurisdictional under other sections of proposed definition of ‘‘waters of the in this proposal, perform the requisite the rule) could be determined to be United States,’’ the agencies carefully functions for them to be considered jurisdictional if the use, degradation or considered available scientific literature ‘‘waters of the United States’’ by rule. destruction of the water could affect and propose a rule consistent with their Adjacent waters are either directly interstate or foreign commerce. conclusions that a particular category of chemically, physically, or biologically Jurisdictional decisions for these waters waters either alone or in combination connected with traditional navigable are being made on a case-specific basis. with similarly situated waters in the waters, interstate waters, and the As a practical matter in the past, the region, significantly affects the territorial seas they are adjacent to, or agencies generally relied on the chemical, physical, or biological they are connected to such waters presence of migratory birds to indicate integrity of traditional navigable waters, through tributaries. These chemical, an effect on interstate commerce. In interstate waters, or the territorial seas. physical, and biological connections 2001, the Supreme Court in SWANCC As discussed in this preamble and affect the integrity of downstream rejected the use of migratory birds as a Appendix A, tributaries as proposed to traditional navigable waters, interstate sole basis to establish jurisdiction over be defined perform the requisite waters, and the territorial seas through such ‘‘isolated’’ intrastate nonnavigable functions for them to be considered the export of channel-forming sediment waters. ‘‘waters of the United States’’ by rule. and woody debris, storage of local The proposed rule provides that Tributary streams exert a strong groundwater sources of baseflow for ‘‘other waters’’ can be jurisdictional influence on the character and downstream waters and their tributaries, where there is a case-specific showing functioning of downstream traditional and transport of organic matter. of a significant nexus to traditional navigable waters, interstate waters, and Wetlands and open waters located in navigable waters, interstate waters, or the territorial seas, either individually riparian and floodplain areas remove the territorial seas. ‘‘Significant nexus’’ or cumulatively. All tributary streams, and transform nutrients such as nitrogen is not itself a scientific term. The including perennial, intermittent, and and phosphorus. They provide nursery science of connections and effects on ephemeral streams, are physically and habitat for fish, and colonization the chemical, physical, or biological chemically connected to downstream opportunities for stream invertebrates. integrity of traditional navigable waters, traditional navigable waters, interstate Adjacent waters, including those interstate waters, or the territorial seas waters, and the territorial seas via located in riparian and floodplain areas, informs an analysis of the facts and channels and associated alluvial serve an important role in the integrity circumstances of the waters being deposits where water and other of traditional navigable waters, considered under a ‘‘significant nexus’’ materials are concentrated, mixed, interstate waters, and the territorial seas analysis. transformed, and transported. because they also act as sinks for water, Scientific literature establishes that Headwater streams (which can be sediment, nutrients, and contaminants ‘‘other waters’’ can have a relationship ephemeral, intermittent or perennial), in that could otherwise negatively impact to each other and connections particular, supply most of the water to traditional navigable waters, interstate downstream that affect the chemical, downstream traditional navigable waters, and the territorial seas. physical, or biological integrity of waters, interstate waters, and the Finally, some non-adjacent waters traditional navigable waters, interstate territorial seas and are the most may have, in certain circumstances, a waters, or the territorial seas. This abundant stream-type in most river significant nexus to traditional relationship is not an all or nothing networks. In addition to water, tributary navigable waters, interstate waters, and situation. The existence of a connection, streams supply sediment, wood, organic the territorial seas, but at this time the a nexus, does not by itself establish that matter, nutrients, chemical agencies are not proposing that a it is a ‘‘significant nexus.’’ There is a

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gradient in the relation of waters to each under the rule. The Report indicates they could not determine that all ‘‘other other, and this is documented in the that there is evidence of very strong waters’’ were jurisdictional, or that all Report. The agencies propose a case- connections in some subcategories that ‘‘other waters’’ were not jurisdictional. specific analysis in establishing are not included as jurisdictional by Therefore, the proposed rule requires a jurisdiction over these ‘‘other waters’’ as rule. The agencies solicit comment on case-specific significant nexus consistent with the current science, the making such subcategories of waters evaluation to determine if such ‘‘other CWA, and the caselaw. A case-specific with very strong connections waters’’ are subject to CWA jurisdiction analysis allows for a determination of jurisdictional by rule as well as on and the agencies are requesting jurisdiction at the point on the gradient making subcategories of waters that do comment on several alternate in the relationship that constitutes a not have such connections subject to a approaches, including approaches that ‘‘significant nexus.’’ case-specific analysis or categorically would not include case-specific The support for a determination that non-jurisdictional under the rule. Such analysis, to inform the final rule. the nexus is significant will be based on comment should explain with Finally, the agencies are for the first a record that documents the scientific supporting documentation why a time proposing definitions for some of basis for concluding which functions particular subcategory of ‘‘other waters’’ the terms used in the proposed are provided by the waters and why might or might not have a significant regulation. their effects on a traditional navigable nexus to traditional navigable waters, Under section (a) the agencies water, interstate water, or the territorial interstate waters, or the territorial seas. propose to define the ‘‘waters of the seas are significant, including that they The agencies do not propose absolute United States’’ for all sections of the are more than speculative or standards such as flow rates, surface CWA to mean: insubstantial. The agencies considered acres, or a minimum number of • All waters which are currently multiple options for determining how functions for ‘‘other waters’’ to establish used, were used in the past, or may be best to balance the science and the a significant nexus. A determination of susceptible to use in interstate or foreign policy options available to address the relationship of ‘‘other waters’’ to commerce, including all waters which ‘‘other waters.’’ Those options ranged traditional navigable waters, interstate are subject to the ebb and flow of the from establishing jurisdiction over all waters, and the territorial seas, and tide; • ‘‘other waters’’ with a nexus to consequently the significance to these All interstate waters, including traditionally navigable waters, interstate waters, requires sufficient flexibility to interstate wetlands; waters, or the territorial seas, with the • The territorial seas; account for the variability of conditions • agencies determining categorically the across the country and the varied All impoundments of a traditional nexus to be significant, to declining to functions that different waters provide. navigable water, interstate water, the assert jurisdiction over any ‘‘other The case-specific analysis called for in territorial seas or a tributary; • All tributaries of a traditional waters.’’ the proposed rule recognizes geographic navigable water, interstate water, the The agencies did not adopt the all in and hydrologic variability in territorial seas or impoundment; or the all out approach to ‘‘other determining whether an ‘‘other water’’ waters.’’ Based on the information • All waters, including wetlands, or group of ‘‘other waters’’ possesses a adjacent to a traditional navigable water, currently available in the scientific ‘‘significant nexus’’ with traditional literature, applicable caselaw, and the interstate water, the territorial seas, navigable waters, interstate waters, or impoundment or tributary; and agencies’ policy judgment about how the territorial seas. best to provide clarity and certainty to • On a case-specific basis, other the public regarding the jurisdictional III. Proposed Definition of ‘‘Waters of waters, including wetlands, provided status of ‘‘other waters’’ the agencies the United States’’ that those waters alone, or in combination with other similarly today propose the case-specific A. Summary of Proposed Rule significant nexus analysis presented in situated waters, including wetlands, this rule and explained in the preamble. This proposed rule retains much of located in the same region, have a In addition to the proposed ‘‘other the structure of the agencies’ significant nexus to a traditional waters’’ approach in this rule, the longstanding definition of ‘‘waters of the navigable water, interstate water or the agencies are requesting comment on a United States,’’ and many of the existing territorial seas. range of alternate approaches to inform provisions of that definition where As discussed in further detail below, their decision on how best to address revisions are not warranted. The the agencies do not propose to change ‘‘other waters.’’ The agencies will agencies’ goal is to promulgate a rule the following provisions (although some consider the full administrative record, that is clear and understandable and provisions have been renumbered): including comments requested and protects the nation’s waters, supported Traditional navigable waters ((a)(1), see received, and the final Report, as by science and consistent with the law. Section III.B of this preamble); interstate revised in response to the SAB review, Continuity with the existing regulations, waters ((a)(2), see Section III.C of this when developing the final rule, and may where possible, will minimize preamble); the territorial seas ((a)(3), see adopt one of the alternative approaches confusion and will reduce transaction Section III.D of this preamble); and or combination of approaches and the costs for the regulated community and impoundments of ‘‘waters of the United proposal. the agencies. To that same end, the States’’ ((a)(4), see Section III.E of this The agencies solicit comment on agencies also propose, where supported preamble). In paragraph (a)(5), the identifying subcategories of ‘‘other by scientific literature and consistent agencies are proposing that tributaries to waters’’ that have a significant nexus to with the law, bright line categories of waters identified in paragraphs (a)(1) traditional navigable waters, interstate waters that are and are not through (a)(4) are ‘‘waters of the United waters, and the territorial seas and jurisdictional. Waters in the ‘‘other States.’’ While tributaries are ‘‘waters of could be jurisdictional by rule, and waters’’ category are not a per se the United States’’ under the existing subcategories of ‘‘other waters’’ where a jurisdictional category. While the regulation, the agencies propose for the significant nexus or its absence could agencies considered multiple options first time a regulatory definition of not be determined as a class and could for addressing jurisdiction over ‘‘other ‘‘tributary’’ and propose that only those be subject to a case-specific analysis waters,’’ the agencies concluded that waters that meet the definition and flow

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directly or indirectly to an (a)(1) through stock watering, irrigation, settling ecological processes and plant and (a)(3) water are ‘‘waters of the United basins, or rice growing; animal community structure in that States’’ (see Section III.F of this Æ artificial reflecting pools or area. Riparian areas are transitional preamble). In paragraph (a)(6), the swimming pools created by excavating areas between aquatic and terrestrial agencies propose that adjacent waters, and/or diking dry land; ecosystems that influence the exchange rather than simply adjacent wetlands, Æ small ornamental waters created by of energy and materials between those are ‘‘waters of the United States.’’ The excavating and/or diking dry land for ecosystems. The term floodplain means agencies also propose for the first time primarily aesthetic reasons; an area bordering inland or coastal Æ to define an aspect of adjacency— water-filled depressions created waters that was formed by sediment incidental to construction activity; ‘‘neighboring’’—and related terms (see Æ deposition from such water under Section III.G of this preamble). Finally, groundwater, including present climatic conditions and is the agencies propose to define ‘‘waters groundwater drained through inundated during periods of moderate to of the United States’’ to include on a subsurface drainage systems; and high water flows. Æ gullies and rills and non-wetland case-specific basis, other waters, The term tributary means a water swales. including wetlands, provided that those The agencies do not propose any physically characterized by the presence waters alone, or in combination with changes to the existing exclusions for of a bed and banks and ordinary high other similarly situated waters, waste treatment systems designed water mark, as defined at 33 CFR including wetlands, located in the same consistent with the requirements of the 328.3(e), which contributes flow, either region, have a significant nexus to a CWA and for prior converted cropland. directly or through another water, to a water identified in paragraphs (a)(1) The CWA and current regulations also water identified in paragraphs (a)(1) through (3). Unlike the per se provide a number of exemptions from through (4). In addition, wetlands, lakes, jurisdictional categories in paragraphs permitting for discharges associated and ponds are tributaries (even if they (a)(1) through (6) of this section, such with specific activities. The rule does lack a bed and banks or ordinary high ‘‘other waters’’ are not per se not affect any of the exemptions from water mark) if they contribute flow, jurisdictional under (a)(7); rather, these CWA section 404 permitting either directly or through another water ‘‘other waters’’ are only jurisdictional requirements provided by CWA section to a water identified in paragraphs (a)(1) provided that they have a significant 404(f), including those for normal through (3). A water that otherwise nexus to (a)(1) through (a)(3) waters. farming, silviculture, and ranching qualifies as a tributary under this Therefore, the agencies are providing a activities. CWA section 404(f); 40 CFR definition does not lose its status as a definition of ‘‘significant nexus’’ (see 232.3; 33 CFR 323.4. The rule also does tributary if, for any length, there are one Section III.H of this preamble). not affect either the existing statutory or more man-made breaks (such as The second section of the proposed and regulatory exemptions from NPDES bridges, culverts, pipes, or dams), or one regulation, section (b), excludes permitting requirements, such as for or more natural breaks (such as specified waters from the definition of agricultural stormwater discharges and wetlands at the head of or along the run ‘‘waters of the United States.’’ Those return flows from irrigated agriculture, of a stream, debris piles, boulder fields, waters and features would not be or the status of water transfers. CWA or a stream that flows underground) so ‘‘waters of the United States’’ even if section 402(l)(1); CWA section 402(l)(2); long as a bed and banks and an ordinary they would otherwise be included CWA section 502(14); 40 CFR 122.3(f); high water mark can be identified within the categories in (a)(1) through 40 CFR 122.2. The agencies propose for upstream of the break. A tributary, (a)(7) above. They are: the first time to exclude by rule in including wetlands, can be a natural, • Waste treatment systems, including section (b) certain waters and features man-altered, or man-made water and treatment ponds or lagoons, designed to over which the agencies have as a policy includes waters such as rivers, streams, meet the requirements of the Clean matter generally not asserted lakes, ponds, impoundments, canals, Water Act. jurisdiction (see Section III.I of this and ditches not excluded in paragraphs • Prior converted cropland. preamble). (b)(3) or (4). Notwithstanding the determination of Finally, in section (c) of the proposed The term wetlands means those areas an area’s status as prior converted rule the agencies define a number of that are inundated or saturated by cropland by any other Federal agency, terms, of which ‘‘adjacent’’ and surface or groundwater at a frequency for the purposes of the Clean Water Act ‘‘wetlands’’ are unchanged from existing and duration sufficient to support, and the final authority regarding Clean definitions The term adjacent means that under normal circumstances do Water Act jurisdiction remains with bordering, contiguous or neighboring. support, a prevalence of vegetation EPA. Waters, including wetlands, separated typically adapted for life in saturated • Ditches that are excavated wholly from other waters of the United States soil conditions. Wetlands generally in uplands, drain only uplands, and by man-made dikes or barriers, natural include swamps, marshes, bogs and have less than perennial flow. river berms, beach dunes and the like similar areas. • Ditches that do not contribute flow, are ‘‘adjacent waters.’’ The term The term significant nexus means that either directly or through another water, neighboring, for purposes of the term a water, including wetlands, either to a traditional navigable water, ‘‘adjacent’’ in this section, includes alone or in combination with other interstate water, the territorial seas or a waters located within the riparian area similarly situated waters in the region jurisdictional impoundment. or floodplain of a water identified in (i.e., the watershed that drains to the • The following features: paragraphs (a)(1) through (5) of this nearest water identified in paragraphs Æ artificially irrigated areas that section, or waters with a shallow (a)(1) through (3)),6 significantly affects would revert to upland should subsurface hydrologic connection or application of irrigation water to that confined surface hydrologic connection 6 The terms ‘‘in the region’’ and ‘‘watershed’’ are area cease; to such a jurisdictional water. The term used interchangeably in this document. The Æ riparian area means an area bordering a agencies have interpreted ‘‘in the region’’ to mean artificial lakes or ponds created by the watershed that drains to the nearest water excavating and/or diking dry land and water where surface or subsurface identified in paragraphs (a)(1) through (a)(3), which used exclusively for such purposes as hydrology directly influence the we refer to as the single point of entry watershed.

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the chemical, physical, or biological times, the frequency, volume, and waters’’ to include interstate waters integrity of a water identified in duration of flow are relevant without imposing a requirement that paragraphs (a)(1) through (3). For an considerations for determining if a they be traditional navigable waters effect to be significant, it must be more water body has the physical themselves or be connected to than speculative or insubstantial. Other characteristics suitable for navigation. A traditional navigable waters. The waters, including wetlands, are likelihood of future commercial precursor statutes to the CWA always similarly situated when they perform navigation, including commercial subjected interstate waters and their similar functions and are located waterborne recreation, can be tributaries to Federal jurisdiction. The sufficiently close together or sufficiently demonstrated by current boating or text of the CWA, specifically CWA close to a ‘‘water of the United States’’ canoe trips for recreation or other section 303 that establishes ongoing so that they can be evaluated as a single purposes. A determination that a water requirements for interstate waters, in landscape unit with regard to their is susceptible to future commercial conjunction with the definition of effect on the chemical, physical, or navigation, including commercial navigable waters, provides clear biological integrity of a water identified waterborne recreation, must be indication of Congress’ intent to protect in paragraphs (a)(1) through (3). supported by evidence. interstate waters that were previously This proposal does not affect the B. Traditional Navigable Waters subject to Federal regulation. Other scope of waters subject to state provisions of the statute provide EPA and the Corps’ existing assumption of the section 404 regulatory additional textual evidence of the scope regulations include within the program under section 404(g) of the of the primary jurisdictional term of the definition of ‘‘waters of the United CWA. See CWA section 404(g). The CWA. States’’ all waters that are currently scope of waters that are subject to state While congressional intent is clear, used, or were used in the past, or may and tribal permitting is a separate the agencies also have a longstanding be susceptible to use in interstate or inquiry and must be based on the regulatory interpretation that interstate foreign commerce, including all waters statutory language in CWA section 404. waters fall within the scope of CWA which are subject to the ebb and flow of States administer approved CWA jurisdiction. The agencies’ the tide. See, e.g., 33 CFR 328.3(a)(1); 40 section 404 programs for ‘‘waters of the interpretation was promulgated CFR 230.3(s)(1); 40 CFR 122.2 (‘‘waters United States’’ within the state, except contemporaneously with the passage of of the U.S.’’). This section of the those waters remaining under Corps the CWA and is consistent with the jurisdiction pursuant to CWA section regulation encompasses those waters statutory and legislative history of the 404(g)(1) as identified in a that are often referred to as ‘‘traditional CWA. Furthermore, the Supreme Court Memorandum of Agreement 7 between navigable waters.’’ The agencies do not has never addressed the CWA’s the state and the Corps. 40 CFR 233.14; propose to make any changes to this coverage of interstate waters, and it is 40 CFR 233.70(c)(2); 40 CFR section of the regulation. See, Appendix not reasonable to read its decisions in 233.71(d)(2). Clarification of waters that B, Legal Analysis. SWANCC and Rapanos to question the For purposes of CWA jurisdiction, are subject to assumption by states or jurisdictional status of interstate waters waters will be considered traditional tribes or retention by the Corps could be or to impose additional jurisdictional navigable waters, and thus (a)(1) waters made through a separate process under requirements on interstate waters. under the proposed rule, if: section 404(g). • They are subject to section 9 or 10 It is reasonable to assert jurisdiction C. Interstate Waters of the Rivers and Harbors over tributaries, adjacent wetlands and Appropriations Act of 1899; The existing EPA and Corps ‘‘other waters’’ that have a significant • A Federal court has determined that regulations define ‘‘waters of the United nexus to interstate waters consistent the water body is navigable-in-fact States’’ to include interstate waters, with the framework established by under Federal law; including interstate wetlands and the Justice Kennedy in Rapanos for • They are waters currently being agencies’ proposal today does not establishing jurisdiction over waters used for commercial navigation, change that provision of the regulations. with a significant nexus to traditional including commercial waterborne Interstate waters would continue to be navigable waters. Justice Kennedy’s recreation (for example, boat rentals, ‘‘waters of the United States’’ even if standard seeks to ensure that waters guided fishing trips, or water ski they are not navigable for purposes of Congress intended to subject to Federal tournaments); Federal regulation under (a)(1) and do jurisdiction are indeed protected, both • They have historically been used not connect to such waters. Moreover, by recognizing that waters and wetlands for commercial navigation, including because interstate waters are ‘‘waters of with a significant nexus to traditional commercial waterborne recreation; or the United States’’ under the CWA, the navigable waters and interstate waters • They are susceptible to being used agencies are proposing to continue to have important beneficial effects on in the future for commercial navigation, include as jurisdictional tributaries to those waters, and by recognizing that including commercial waterborne interstate waters, waters adjacent to polluting or destroying waters with a recreation. Susceptibility for future use interstate waters, waters adjacent to significant nexus can harm downstream may be determined by examining a tributaries of interstate waters, and jurisdictional waters. As Congress number of factors, including the ‘‘other waters’’ that have a significant intended to protect interstate waters, the physical characteristics and the capacity nexus to interstate waters. agencies propose to also protect of the water to be used in commercial As discussed in more detail in interstate waters by defining ‘‘waters of navigation, including commercial Appendix B to this preamble, the the United States’’ to include tributaries recreational navigation (for example, language of the CWA indicates that to interstate waters, waters adjacent to size, depth, and flow velocity), and the Congress intended the term ‘‘navigable interstate waters, waters adjacent to likelihood of future commercial tributaries of interstate waters, and navigation, including commercial 7 Link to Michigan’s and New Jersey’s ‘‘other waters’’ that have a significant Memorandum of Agreement with the Army Corps waterborne recreation. While a of Engineers identifying which waters of the US nexus to interstate waters. For traditional navigable water need not be remain under the Corps’ jurisdiction. http://water. additional discussion of the agencies’ capable of supporting navigation at all epa.gov/type/wetlands/initiative_index.cfm. interpretation of the CWA with respect

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to interstate waters, see Appendix B to (9th Cir. 2007), cert. denied, 554 U.S. integrity of traditional navigable waters, this preamble. 918 (2008). As a matter of policy and interstate waters, and the territorial seas. law, impoundments do not de-federalize With today’s proposed regulation, the D. Territorial Seas a water, even where there is no longer agencies confirm that these tributary The CWA and its existing regulations flow below the impoundment. Where waters have a significant nexus to a include ‘‘the territorial seas’’ as a ‘‘water flow continues below the traditional navigable water, interstate of the United States.’’ The agencies impoundment, it is straightforward to water, or territorial sea such that they propose to make no changes to that analyze the stream network, above and are ‘‘waters of the United States’’ provision of the regulation other than to below the impoundment, for connection without the need for a separate, case- move the provision to earlier in the to downstream traditional navigable specific significant nexus analysis. In regulation. The CWA defines ‘‘navigable waters, interstate waters, or the practice, under this proposal any water waters’’ to include the territorial seas at territorial seas. that meets the definition of tributary section 502(7). The CWA goes on to The agencies also note that an (and is not excluded under section (b) define the ‘‘territorial seas’’ as ‘‘the belt impoundment of a water that is not a of the proposed rule) is a ‘‘water of the of the seas measured from the line of ‘‘water of the United States’’ can become United States,’’ and the agencies would ordinary low water along that portion of jurisdictional if, for example, the only need to determine that a water the coast which is in direct contact with impounded waters become navigable-in- meets the definition of ‘‘tributary.’’ See the open sea and the line marking the fact and covered under paragraph (a)(1) Appendix A, Scientific Evidence (Part I, seaward limit of inland waters, and of the rule. Discussion of Major Conclusions 2.A; extending seaward a distance of three The existing agency regulations Part II, i); and Appendix B, Legal miles.’’ The territorial seas establish the provide that impoundments of ‘‘waters Analysis. seaward limit of ‘‘waters of the United Tributaries have a significant impact of the United States’’ remain ‘‘waters of States.’’ As the territorial seas are also on the chemical, physical, and the United States’’ and the agencies do clearly protected by the CWA (they are biological integrity of waters into which not propose any substantive revisions to also traditional navigable waters), it is they eventually flow—including reasonable to use for protecting the that component of the regulation. In traditional navigable waters, interstate territorial seas Justice Kennedy’s addition, tributaries to an impoundment waters, and the territorial seas—and significant nexus framework that of a ‘‘water of the United States’’ are they have a significant nexus and thus protects traditional navigable waters. ‘‘waters of the United States’’ under this are jurisdictional as a category. The The proposed rule reflects that. proposed rule. As a matter of law and great majority of tributaries are science, an impoundment does not cut headwater streams, and whether they E. Impoundments off a connection between upstream are perennial, intermittent, or The agencies do not propose to make tributaries and a downstream (a)(1) ephemeral, they play an important role any substantive changes to the existing through (a)(3) water, so tributaries above in the transport of water, sediments, regulatory language with respect to the impoundment are still considered organic matter, nutrients, and organisms impoundments of waters otherwise tributary to a downstream (a)(1) through to downstream environments. defined as ‘waters of the United States’ (a)(3) water even where the flow of Tributaries serve to store water, thereby under this definition. The changes water is impeded due to the reducing flooding, provide proposed are clarifying. impoundment. Scientific literature, as biogeochemical functions that help Impoundments are jurisdictional well as the agencies’ scientific and maintain water quality, trap and because as a legal matter an technical expertise, and practical transport sediments, transport, store and impoundment of a ‘‘water of the United knowledge confirm that impoundments modify pollutants, provide habitat for States’’ remains a ‘‘water of the United have chemical, physical, and biological plants and animals, and sustain the States’’ and because scientific literature effects on downstream waters (see biological productivity of downstream demonstrates that impoundments Appendix A, Scientific Evidence). rivers, lakes and estuaries. continue to significantly affect the Appendix A discusses the conclusion chemical, physical, or biological that it is reasonable to maintain 1. What is a ‘‘tributary’’ for purposes of integrity of downstream waters jurisdiction over impoundments of the proposed regulation? traditional navigable waters, interstate ‘‘waters of the United States’’ not only The proposed rule defines ‘‘tributary’’ waters, or the territorial seas. The as a legal matter, but because as a water physically characterized by Supreme Court has confirmed that impoundments do not sever the effects the presence of a bed and banks and damming or impounding a ‘‘water of the the impounded ‘‘waters of the United ordinary high water mark, as defined at United States’’ does not make the water States’’ have on the chemical, physical, 33 CFR 328.3(e), which contributes non-jurisdictional. See S. D. Warren Co. or biological integrity of (a)(1) through flow, either directly or through another v. Maine Bd. of Envtl. Prot., 547 U.S. (a)(3) waters. water, to a water identified in 370, 379 n.5 (2006) (‘‘[N]or can we agree paragraphs (a)(1) through (4). In F. Tributaries that one can denationalize national addition, wetlands, lakes, and ponds are waters by exerting private control over Under this proposal, the agencies tributaries (even if they lack a bed and them.’’). Similarly, when presented with provide a definition of ‘‘tributary’’ banks or ordinary high water mark) if a tributary to the Snake River which supported by the scientific literature. they contribute flow, either directly or flows only about two months per year The agencies also propose that all through another water to a water because of an irrigation diversion waters that meet the proposed definition identified in paragraphs (a)(1) through structure installed upstream, the Ninth of tributary are ‘‘waters of the United (3). A water that otherwise qualifies as Circuit has opined ‘‘it is doubtful that a States’’ by rule, unless excluded under a tributary under this definition does mere man-made diversion would have section (b), because tributaries and the not lose its status as a tributary if, for turned what was part of the waters of ecological functions they provide, alone any length, there are one or more man- the United States into something else or in combination with other tributaries made breaks (such as bridges, culverts, and, thus, eliminated it from national in the watershed, significantly affect the pipes, or dams), or one or more natural concern.’’ U.S. v. Moses, 496 F.3d 984 chemical, physical, and biological breaks (such as wetlands at the head of

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or along the run of a stream, debris indicators can be created by ephemeral, intermittent and ephemeral tributaries, piles, boulder fields, or a stream that intermittent, and perennial flows. including dry-land systems in the arid flows underground) so long as a bed and The agencies’ proposed definition of and semi-arid west, OHWM indicators banks and an ordinary high water mark ‘‘tributary’’ includes waters such as can be discontinuous within an can be identified upstream of the break. rivers, streams, lakes, impoundments, individual tributary due to the A tributary, including wetlands, can be wetlands, canals, and ditches not variability in hydrologic and climatic a natural, man-altered, or man-made excluded in section (b) that, either influences. The agencies proposed water and includes waters such as directly or through other tributaries, definition of ‘‘tributary’’ addresses these rivers, streams, lakes, ponds, convey water to traditional navigable circumstances and states that waters impoundments, canals, and ditches not waters, interstate waters, or the that meet the definition of tributary excluded in paragraph (b)(3) or (4). territorial seas. A tributary is a remain tributaries even if such breaks While the agencies have not defined longitudinal surface feature that results occur. A water that otherwise qualifies tributary in any previous regulation, this from directional surface water as a tributary under the proposed proposed definition is consistent with movement and sediment dynamics definition does not lose its status as a long-standing practice and historical demonstrated by the presence of bed tributary if, for any length, there are one implementation of CWA programs. It is and banks, bottom and lateral or more man-made breaks (such as important to note that today’s proposed boundaries, or other indicators of bridges, culverts, pipes, or dams), or one definition also is based on best available OHWM. The movement of water or more natural breaks (such as debris science and the intent of the CWA. through a tributary can transport piles, boulder fields, or a stream To meet this definition, a water need pollutants to downstream (a)(1) through segment that flows underground) so not contribute flow directly to an (a)(1) (a)(4) waters, as either chemicals long as a bed and banks and an ordinary through (a)(4) water. As the definition dissolved or suspended in the water high water mark can be identified makes clear, the water may contribute column or adsorbed to sediment upstream of the break. The presence of flow directly or may contribute flow to particles. a bed and banks and an ordinary high The existing Corps regulations define another water or waters which water mark upstream of the break OHWM as the line on the shore eventually flow into an (a)(1) through generally demonstrates that the tributary established by the fluctuations of water (a)(4) water. Essentially, the water must continues upstream of the break. and indicated by physical Waters that meet the definition of be part of a tributary system that drains characteristics such as a clear, natural tributary under the proposed rule are to an (a)(1) through (a)(4) water. Under line impressed on the banks, shelving, jurisdictional even if there is an the proposed definition, to be a changes in the character of soil, impoundment at some point along the ‘‘tributary,’’ in addition to requiring that destruction of terrestrial vegetation, the connection from the tributary to the a water contribute flow to a traditional presence of litter and debris, or other (a)(1) through (a)(3) water. navigable water, interstate water or the appropriate means that consider the Longstanding agency practice has territorial sea, the water must also have characteristics of the surrounding areas. identified tributaries as including a bed and banks and ordinary high 33 CFR 328.3(e). That definition is not ‘‘natural, man-altered or manmade’’ water mark (except where a wetland is changed by today’s proposed rule. In water bodies. Natural, man-altered, and a tributary), because these features many tributaries, the bed is that part of manmade tributaries provide many of generally are physical indicators of the channel below the OHWM, and the the same functions, especially as flow. The agencies identified these banks often extend above the OHWM. conduits for the movement of water and tributary characteristics as indicative Indicators of an OHWM may vary from pollutants to other tributaries or directly that the water is the type of hydrologic region to region across the country. to traditional navigable waters, feature protected under the CWA Under the proposed definition of interstate waters, or the territorial seas. because, for example, of a tributary’s tributary, the upper limit of a tributary The discharge of a pollutant into a ability to transport pollutants to is established where the channel begins. tributary generally has the same effect downstream traditional navigable Note that wetlands can be providing downstream whether the tributary waters, interstate waters, and the flow into a tributary at the upper limit waterway is natural or manmade (see territorial seas, and thereby have a of the channel and these would also be further discussion below and Appendix significant effect on the chemical, jurisdictional. The OHWM generally A). Given the extensive human physical, or biological integrity of a defines the lateral limits of a water, and modification of watercourses and water identified in paragraphs (a)(1) its absence generally determines hydrologic systems throughout the through (a)(4). whether a tributary’s channel or bed and country, it is often difficult to The flow in the tributary may be banks has ended such that the upper distinguish between natural ephemeral, intermittent or perennial, limit of the jurisdictional tributary is watercourses and watercourses that are but the tributary must drain, or be part identified. However, a natural or man- wholly or partly manmade or man- of a network of tributaries that drain, made break in bed and banks or OHWM altered. For example, tributaries that into an (a)(1) through (a)(4) water under does not constitute the upper limit of a have been channelized in concrete or today’s proposed rule. When tributary where bed and banks or otherwise have been human-altered, considering whether the tributary being OHWM can be found farther upstream, may still meet the definition of evaluated eventually flows to an (a)(1) as discussed below. tributaries under the agencies’ proposed through (a)(4) water, the tributary In many tributaries, there are often regulation so long as they still connection may be traced using direct natural or man-made breaks in the contribute flow to an (a)(1) through observation or U.S. Geological Survey presence of a bed and banks or ordinary (a)(4) water. The agencies’ proposed maps, aerial photography or other high water mark while hydrologic definition of tributary provides a non- reliable remote sensing information, or connectivity remains. For example, in exclusive list of the types of waters, other appropriate information. A bed some regions of the country where there natural, man-altered and man-made, and banks and ordinary high water mark is a very low gradient, the banks of a that may be tributaries: Wetlands, rivers, (OHWM) generally are physical tributary may be very low or may even streams, lakes, ponds, impoundments, indicators of water flow. These physical disappear at times. Also, in many canals, and ditches not excluded in

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paragraph (b)(3) or (4) of the proposed a clear explanation of their lateral and that crosses a state line. This is true for rule. upstream extent. all other features excluded under Under the agencies’ proposal, when a Tidal ditches subject to the ebb and section (b) as well. Ditches not excluded tributary flows through a wetland into flow of the tide are not evaluated as under paragraphs (b)(3) and (4) of the another tributary (e.g., a run-of-stream tributaries, but are jurisdictional under proposed regulation meet the definition wetland), losing its OHWM through the paragraph (a)(1) of the proposed of tributary where they have a bed and wetland, it remains a tributary, and the regulation as they are under the current banks and ordinary high water mark and wetland itself is considered a tributary. regulation. they contribute flow directly or Wetlands may contribute flow to a The agencies are proposing to clearly indirectly through another water to stream or river through channelized exclude from the definition of ‘‘waters (a)(1) through (a)(4) waters. Such flow or diffuse flow, and sometimes of the United States’’ two types of jurisdictional ditches may include, but both. Wetlands may also serve as water ditches that might otherwise be are not limited to, the following: sources at the upper limit of headwater evaluated as tributaries: Ditches that are • Natural streams that have been streams where the channel begins. In excavated wholly in uplands, drain only altered (e.g., channelized, straightened light of their potential to be important uplands, and have less than perennial or relocated); contributors of flow to tributaries to flow; and ditches that do not contribute • ditches that have been excavated in traditional navigable waters, interstate flow, either directly or through another ‘‘waters of the United States,’’ including waters, or the territorial seas, the water, to a water identified in jurisdictional wetlands; agencies propose a definition of paragraphs (a)(1) through (4). The • ditches that have perennial flow; tributary which includes such wetlands. proposed rule for the first time excludes and In other instances, wetlands may serve certain ditches by rule rather than • ditches that connect two or more as the connection between a tributary simply through preamble and guidance. ‘‘waters of the United States.’’ and another tributary or even a Even before the decisions in SWANCC In an effort to distinguish ditches that traditional navigable water, interstate and Rapanos, the agencies excluded are not ‘‘waters of the United States’’ water, or the territorial seas. For certain ditches from jurisdiction from those that are ‘‘waters of the wetland tributaries, water may flow because they either are not part of the United States,’’ the proposal states that through braided channels that also tributary system or because they are ditches with less than perennial flow include wetlands or through a run-of- excavated wholly in uplands, drain only that are excavated in uplands, rather stream wetland that does not have a bed uplands, and are dry for much of the than in wetlands or other types of and banks and OHWM. year, i.e. upland ditches. The agencies waters, for their entire length are not It is the agencies’ intent that the are proposing to continue this exclusion tributaries and are not ‘‘waters of the definitions in this proposed rule and, to provide improved consistency United States’’ under the proposed rule. provide as much clarity and regulatory and clarity, further define flow Ditches that are perennial generally certainty as possible. While it is characteristics of upland ditches that are have water present year round when important to include wetlands that and are not jurisdictional. The proposed rainfall is normal or above normal. connect upstream and downstream rule would exclude from jurisdiction Under this exclusion, water that only portions of a tributary as jurisdictional upland ditches with less than perennial stands or pools in a ditch is not waters because they have a significant flow. The scientific concept of perennial considered perennial flow and, nexus to downstream (a)(1) through flow is a widely accepted and well therefore, any such upland ditch would (a)(4) waters, the agencies recognize that understood hydrologic characteristic of not be subject to regulation. In addition, it may add an element of uncertainty to tributaries. Perennial flow means that ditches that do not contribute flow to the definition of tributary to include water is present in a tributary year the tributary system of a traditional features as tributaries which do not have round when rainfall is normal or above navigable water, interstate water or the a bed and bank and OHWM. An normal. Identifying upland ditches with territorial seas are not ‘‘waters of the alternate approach would be to clarify perennial flow is straightforward and United States,’’ even if the ditch has that wetlands that connect tributary will provide for consistent, predictable, perennial flow. segments are adjacent wetlands, and as and technically accurate determinations Historical evidence, such as such are jurisdictional waters of the at any time of year. The agencies photographs, prior delineations, or United States under (a)(6). In this specifically seek comment on the topographic maps, may be used to approach, a tributary would be defined appropriate flow regime for a ditch determine whether a water body was as having a bed and bank and OHWM, excavated wholly in uplands and excavated wholly in uplands and drains and the upper limit of the tributary draining only uplands to be included in only uplands, and has less than would be defined by the point where the exclusion of paragraph (b)(3). In perennial flow. Site characteristics may these features cease to be identifiable. particular, the agencies seek comment also be present to inform the (Note that natural or manmade breaks on whether the flow regime in such determination of whether the water would still not sever jurisdiction if a ditches should be less than intermittent body is a ditch, such as shape, tributary segment with a bed and bank flow or whether the flow regime in such sinuosity, flow indications, etc., as and OHWM could be identified ditches should be less than perennial ditches are often created in a linear upstream of the break.) Wetlands would flow as proposed. fashion with little sinuosity and may not be considered tributaries, but would Only those ditches not excluded by not connect to another ‘‘water of the remain jurisdictional as adjacent waters. the proposed regulation and that meet United States.’’ Ditches created by Wetlands that contribute flow, for the proposed definition of tributary are altering natural waters would be example at the upper reaches of the ‘‘waters of the United States.’’ Ditches considered ‘‘waters of the United tributary system, would be considered that are excluded from the definition of States,’’ so long as they contribute flow adjacent waters. The agencies request ‘‘waters of the United States’’ under to another jurisdictional water. Ditches comment on this alternate approach, as (b)(3) and (b)(4) cannot be recaptured may have been created for a number of well as any other suggestions and considered jurisdictional under any purposes, such as irrigation, water commenters may have on how to clarify of the jurisdictional categories in section management or treatment, and roadside the definition of tributaries and provide (a) of the proposed rule, such as a ditch drains. In order to be excluded,

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however, the ditch must be excavated pollutants to waters through these Id at 780. This conclusion is supported wholly in uplands, drain only uplands, features could be subject to other CWA by ‘‘the evident breadth of congressional and have less than perennial flow. authorities (e.g., CWA section 402 and concern for protection of water quality Ditches that do not contribute flow, its implementing regulations). and aquatic ecosystems.’’ Riverside either directly or through another water, The agencies request comment on all Bayview, supra, at 133; see also to a water identified in paragraphs (a)(1) aspects of the proposed definition of Milwaukee v. Illinois, 451 U.S. 304, 318 through (4) are not ‘‘waters of the tributaries and in particular on whether (1981) (describing the Act as ‘‘an all- United States.’’ and how this definition can be revised encompassing program of water to provide increased clarity as to the pollution regulation’’). In Rapanos, 2. What is not a tributary for purposes distinction between jurisdictional Justice Kennedy established a standard of this proposal? tributaries, as defined, and non- for determining whether wetlands Waters that do not contribute flow, jurisdictional features such as gullies, should be considered to possess the either directly or through another water, rills and non-wetland swales. The requisite nexus in the context of to a water identified in paragraphs (a)(1) agencies seek comments on how to assessing whether wetlands are through (4) of the proposed regulation provide greater regulatory certainty as to jurisdictional: ‘‘if the wetlands, either are not considered jurisdictional as which specific aquatic features are alone or in combination with similarly tributaries under the CWA. However, jurisdictional tributaries, and which are situated [wet]lands in the region, even if such waters are not ‘‘tributaries,’’ not. Commenters should explain how significantly affect the chemical, they may be jurisdictional under other any suggestions are consistent with the physical, and biological integrity of paragraphs of the proposed rule. Note Clean Water Act, applicable caselaw, other covered waters more readily that waters specifically listed under the and the scientific literature regarding understood as ‘navigable.’ ’’ 547 U.S. at proposed section (b), including ditches connectivity of aquatic features. 780. While Justice Kennedy focused on as defined in paragraphs (b)(3) and 3. Why do the agencies conclude all adjacent wetlands in light of the facts of (b)(4), would not be considered ‘‘waters tributaries are ‘‘waters of the United the cases before him, it is reasonable to of the United States’’ in any case. In States’’? utilize the same standard for tributaries. addition, ephemeral features located on As discussed in this preamble, based on agricultural lands that do not possess a Assertion of jurisdiction over a detailed examination of the scientific bed and bank are not tributaries. The tributaries as defined in this proposed literature, the agencies conclude that defined bed and bank no longer exists rule is appropriate under Rapanos both tributaries as they propose to define due to past normal farming practices as a legal matter and as a scientific them perform the requisite functions such as plowing or discing (see section matter based on available science and identified by Justice Kennedy for them the agencies’ professional judgment and 404(f)(1)(A)),8 and these farming to be considered, as a category, to be field expertise. The agencies conclude practices often pre-date the CWA. Such ‘‘waters of the United States.’’ Assertion based on their scientific and technical farm field features are not tributaries of jurisdiction over tributaries with a expertise that tributaries, as defined in even though they may contribute flow bed and banks and OHWM is also the proposed rule, in a watershed are during some rain events or snowmelt. consistent with Rapanos because five similarly situated and have a significant Section J below discusses in more Justices did not reject the current nexus alone or in combination with detail the agencies’ proposed rule regulations that assert jurisdiction over other tributaries because they excluding specific waters and features non-navigable tributaries of traditional significantly affect the chemical, from the definition of ‘‘waters of the navigable waters and interstate waters. physical, or biological integrity of United States.’’ Of importance with The agencies analyzed the Report and traditional navigable waters, interstate respect to tributaries is the exclusion of other scientific literature to determine waters, or the territorial seas. gullies, rills, non-wetland swales, and whether tributaries to traditional certain ditches. These features are not a. Legal Basis for Defining All navigable waters, interstate waters, or considered tributaries under this Tributaries as ‘‘Waters of the United the territorial seas have a significant proposed rule, even though rills and States’’ nexus to constitute ‘‘waters of the United States’’ under the Act such that gullies and non-wetland swales (as In Rapanos, both the plurality described in Section J), may contribute it is reasonable to assert CWA opinion and Justice Kennedy’s opinion jurisdiction over all such tributaries as flow to a tributary in systems with steep discussed the Court’s prior opinion in a category by rule. The agencies’ side slopes. Riverside Bayview to begin their analysis of the available scientific Non-jurisdictional geographic features analysis of the scope of the CWA. literature, including the Report, (e.g., non-wetland swales, ephemeral Justice Scalia stated, ‘‘In Riverside demonstrates through an ecological upland ditches) may still serve as a Bayview, we stated that the phrase rationale that tributaries draining to a confined surface hydrologic connection [‘waters of the United States’] in the Act traditional navigable water, interstate between an adjacent wetland or water referred primarily to ‘rivers, streams, water, or the territorial seas have a and a traditional navigable water, and other hydrographic features more significant nexus to such waters, interstate water or the territorial sea, conventionally identifiable as ‘‘waters’’’ especially because of their ability to provided there is an actual exchange of than the wetlands adjacent to such transport pollutants to such waters that water between those waters, and the features. 474 U.S., at 131 (emphasis would impair their chemical, physical, water is not lost to deep groundwater added).’’ Rapanos, 547 U.S. at 734. or biological integrity. through infiltration (i.e., transmission Justice Kennedy began, ‘‘As the One of the primary purposes and losses). In addition, these geographic plurality points out, and as Riverside functions of the CWA is to prevent the features may function as ‘‘point Bayview holds, in enacting the Clean discharge of petroleum wastes and other sources,’’ such that discharges of Water Act Congress intended to regulate chemical wastes, biological and medical at least some waters that are not wastes, sediments, nutrients and all 8 A discharge of dredged or fill material into an existing tributary which converts a ‘‘water of the navigable in the traditional sense. Ante other forms of pollutants into the U.S.’’ into a non-jurisdictional water requires at 12; Riverside Bayview, 474 U.S. at ‘‘waters of the United States,’’ because authorization under section 404 of the CWA. 133; see also SWANCC, supra, at 167.’’ such pollutants endanger the nation’s

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public health, drinking water supplies, characteristics of downstream waters. territorial seas and significantly affects shellfish, fin fish, recreation areas, etc. Tributaries, even when seasonally dry, these waters. Because the entire tributary system of are the dominant source of water in Within tributaries, there are processes the traditional navigable, interstate most rivers, rather than direct that occur that transform and export waters or the territorial seas is precipitation or groundwater input to nutrients and carbon to downstream interconnected, pollutants that are main stem river segments. waters, serving important source dumped into any part of the tributary One of the primary functions of functions that influence the chemical system eventually are washed tributaries is transporting sediment to integrity of downstream waters. Organic downstream to traditional navigable downstream waters. Tributaries, carbon, in both dissolved and waters, interstate waters, or the particularly headwaters, shape and particulate forms, exported from territorial seas where those pollutants maintain river channels by tributaries is consumed by downstream endanger public health and the accumulating and gradually or organisms. The organic carbon that is environment. episodically releasing sediment and exported downstream thus supports The CWA regulates and controls large woody debris into river channels. biological activity (including pollution at its source, in part because Sediment transport is also provided by metabolism) throughout the river most pollutants do not remain at the site ephemeral streams. Effects of the network. of the discharge, but instead flow and releases of sediment and large woody Tributaries have important effects on are washed downstream through the debris are especially evident at the chemical integrity of (a)(1) through tributary system to endanger drinking tributary-river confluences, where (a)(3) waters, acting as both sinks and water supplies, fisheries, and recreation discontinuities in flow regime and sources of chemical substances. They areas. These fundamental facts about the temperature demonstrate physical provide sink functions by trapping movement of pollutants and the alteration of river structure and function chemicals through absorption to interconnected nature of the tributary by headwater streams. sediments in the stream substrate (e.g., system demonstrate why all tributaries Tributaries have vitally important phosphorous adsorption to clay of traditional navigable waters, effects on the physical integrity of (a)(1) particles). They provide source interstate waters, and the territorial seas, through (a)(3) waters, contributing not functions by transporting chemicals to alone or in combination with other only the majority of the flow in these downstream (a)(1) through (a)(3) waters tributaries in a watershed have a waters but affecting the structure of the as chemicals dissolved in the waters or significant nexus with those waters. These effects occur even when as chemicals attached to suspended downstream waters. The significant the tributaries flow infrequently (such sediments. Thus the tributaries of a nexus relating to pollution transport (or as ephemeral tributaries) and even when watershed, alone or in combination, prevention of such transport) from all the tributaries are significant distances significantly affect the chemical tributaries of traditional navigable from the (a)(1) through (a)(3) water integrity of downstream waters. (such as some headwater tributaries). waters, interstate waters, and the (3) Tributaries Significantly Affect the Tributaries provide flow to downstream territorial seas to their downstream Biological Integrity of (a)(1) Through rivers necessary to support navigation. waters in and of itself justifies the (a)(3) Waters assertion of CWA jurisdiction over all The agencies conclude that the tributaries by rule. tributaries alone or together with other Tributaries, including intermittent tributaries in a watershed have a and ephemeral streams, are critical in b. The Agencies Conclude That significant effect on the physical the life cycles of many organisms Tributaries, as Defined in the Proposed integrity of downstream waters. capable of moving throughout river Rule, Have a Significant Nexus networks. In fact, many organisms, such (2) Tributaries Significantly Affect the The finding of significant nexus is as anadromous salmon, have complex Chemical Integrity of (a)(1) Through based on the chemical, physical, and life cycles which involve migration (a)(3) Waters biological interrelationship between a through the river network, from water, the tributary network, and Tributaries also influence the headwaters to downstream rivers and traditional navigable waters, interstate chemical composition of downstream oceans and back, over the course of their waters, and the territorial seas. Based on waters, through the transport and lives. Anadromous fish spend the their scientific and technical expertise, removal of chemical elements and majority of their life cycles in saltwater, the agencies conclude that tributaries, as compounds, such as nutrients, ions, but migrate upstream to inland defined in today’s proposed rule, have dissolved and particulate organic freshwater systems in order to spawn a significant nexus and are matter, pollutants, and contaminants. and reproduce. More generally, in appropriately identified as jurisdictional Ecosystem processes in tributaries addition to providing critical habitat for by rule. Rapanos, 547 U.S. at 781–82 (J. transform, remove, and transport these complex life cycle completion, Kennedy). (For more discussion, see substances to downstream waters. In tributaries provide refuge from Appendix A). turn, these chemical compounds can predators and adverse physical influence water quality, sediment conditions in rivers, and they are (1) Tributaries Significantly Affect the deposition, nutrient availability, and reservoirs of genetic- and species-level Physical Integrity of (a)(1) Through biotic functions in rivers. Because water diversity. These connections between (a)(3) Waters flow is the primary mechanism by tributaries and (a)(1) through (a)(3) Physical connections between which chemical substances are waters significantly influence the tributaries and traditional navigable transported downstream, chemical biologic integrity of these waters. waters, interstate waters, and the effects are closely related to Tributaries have important effects on territorial seas result from the hydrological connectivity. Long- the biological integrity of (a)(1) through hydrologic transport of numerous distance movement of contaminants (a)(3) waters, contributing materials to materials, including water, sediment provides another line of evidence for downstream food networks and and organic matter (e.g., leaves, wood) chemical connectivity between supporting populations for aquatic from tributaries to downstream waters. tributaries and traditional navigable species, including economically This transport affects the physical waters, interstate waters, and the important species such as salmon, etc.,

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and other essential habitat needs for tributary. They may be at the altered tributaries also provide corridors species that utilize both tributaries and headwaters of the tributary network for movement of organisms between downstream (a)(1) through (a)(3) waters. (e.g., a lake with no stream inlets that headwaters and traditional navigable These effects occur even when the has an outlet to the tributary network) waters, interstate waters, or the tributaries flow infrequently (such as or located outside of the headwaters, or territorial seas. The significant nexus ephemeral tributaries) and even when farther downstream from the headwaters between a tributary and a traditional the tributaries are large distances from (e.g., a lake with both a stream inlet and navigable water, interstate water, or the the (a)(1) through (a)(3) water (such as a stream outlet to the tributary network). territorial seas is not broken where the some headwater tributaries). When all Similarly, wetland tributaries are tributary flows through a culvert or the tributaries in a watershed are wetlands that are located within the other structure. The scientific literature considered together, these effects are stream channel itself or that form the recognizes that features that convey significant. start of the stream channel, such as water, whether they are natural, man- channel-origin wetlands that are part of made, or man-altered, provide the (4) Small, Intermittent, and Ephemeral the headwaters of the tributary network. connectivity between streams and Tributaries Significantly Affect the As noted above, while these wetlands downstream rivers. Chemical, Physical, and Biological may function as part of the ‘‘tributary Tributary ditches and other man- Integrity of (a)(1) Through (a)(3) Waters network,’’ the agencies are seeking made or man-altered waters, if they As discussed above, the agencies comment on whether it would provide meet the definition of ‘‘tributary,’’ have conclude that tributaries, including greater regulatory clarity to exclude a significant nexus to (a)(1) through headwaters, intermittent, and ephemeral such wetlands from the definition of (a)(3) waters due to their effects on the streams, and especially when all ‘‘tributary’’ because they generally lack chemical, physical, or biological tributaries in a watershed are a defined bed, bank and OHWM. These integrity of those downstream waters. considered in combination, have a features are well understood by the As described above, tributaries of all significant nexus to traditional public and agency field staff and have flow regimes have a significant nexus to navigable waters, interstate waters, or traditionally been the defining downstream (a)(1) through (a)(3) waters. the territorial seas based on their characteristics of tributaries. Rather, Due to the often straightened and contribution to the chemical, physical, wetlands in headwaters or connecting channelized nature of ditches, these and biological integrity of (a)(1) through tributaries would remain jurisdictional tributaries quickly move water (a)(3) waters. Tributaries, including as adjacent waters under the definition downstream to (a)(1) through (a)(3) headwater streams, within a watershed of ‘‘adjacent’’ and its supporting terms waters. Ditches and canals, like other draining to a traditional navigable (e.g., neighboring, floodplain, and tributaries, export sediment, nutrients, water, interstate water, or the territorial riparian area) in this proposal. and other materials downstream. Due to seas collectively shape the chemical, Tributary lakes and ponds serve many their often channelized nature, ditches physical, and biological integrity of important functions that affect the are very effective at transporting water (a)(1) through (a)(3) waters. chemical, physical, and biological and these materials, including nitrogen, Tributaries that are small, flow conditions downstream. Lakes can store downstream. It is the agencies’ position infrequently, or are a substantial floodwaters, sediment, and nutrients, as that ditches that meet the definition of distance from the nearest (a)(1) through these materials have the opportunity to tributary (which does not include (a)(3) water (e.g., headwater perennial, settle out, at least temporarily, as water ditches excluded under paragraphs intermittent, and ephemeral tributaries) moves through the lake downstream. (b)(3) and (b)(4)) provide the same are essential components of the Lakes, as with other tributaries, can also chemical, physical, and biological tributary network and have important contribute flow, nutrients, sediment, functions as other water bodies defined effects on the chemical, physical, and and other materials downstream. as tributaries under the proposed rule. biological integrity of (a)(1) through (6) Man-Made or Man-Altered (a)(3) waters, contributing many of the G. Adjacent Waters Tributaries Significantly Affect the same functions downstream as larger The agencies propose to revise the Chemical, Physical, and Biological streams. When their functional existing jurisdictional category of Integrity of (a)(1) Through (a)(3) Waters contributions to the chemical, physical, ‘‘adjacent wetlands,’’ which currently and biological conditions of This proposal expressly states that a limits consideration to only wetlands, to downstream waters are considered at a tributary, including wetlands, can be a include ‘‘adjacent waters.’’ The watershed scale, the scientific evidence natural, man-altered, or man-made proposed ‘‘adjacent waters’’ category supports a legal determination that they water body and includes waters such as would replace ‘‘adjacent wetlands’’ and meet the ‘‘significant nexus’’ standard rivers, streams, lakes, impoundments, would include wetlands and other articulated by Justice Kennedy in canals, and ditches that meet the waterbodies that meet the proposed Rapanos. definition of tributary and are not definition of adjacent, including excluded from the definition of ‘‘waters ‘‘neighboring.’’ To be jurisdictional, it (5) Tributary Lakes, Ponds, and of the United States’’ by paragraphs would be necessary to determine that a Wetlands Significantly Affect the (b)(3) and (b)(4) of the proposed rule. wetland or other waterbody meets the Chemical, Physical, and Biological The agencies’ proposed rule clarifies definition of ‘‘adjacent’’ water under Integrity of (a)(1) Through (a)(3) Waters that man-made and man-altered proposed paragraph (a)(6). Adjacent Although the above discussion refers tributaries are ‘‘waters of the United waters are integrally linked to the primarily to stream tributaries, lake, States’’ because man-made and man- chemical, physical, or biological pond and wetland tributaries also have altered tributaries perform many of the functions of the (a)(1) through (a)(5) the same or similar connections and same functions as natural tributaries, waterbodies to which they are adjacent. functions that significantly affect (a)(1) especially the conveyance of water that Waters adjacent to (a)(1) through (a)(3) through (a)(3) waters. Lakes and ponds carries nutrients, pollutants, and other waters have a significant nexus to those that contribute surface water to substances to traditional navigable (a)(1) through (a)(3) waters. Waters downstream (a)(1) through (a)(3) waters waters, interstate waters, or the adjacent to impoundments, (a)(4) and satisfy the agencies’ definition of territorial seas. Man-made and man- tributaries, (a)(5), are integrally linked to

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the chemical, physical, or biological inundated during periods of moderate to interpret and implement those terms functions of the impoundments or high water flows. consistent with existing policy and tributaries and, through those waters, practice. 1. What are ‘‘adjacent waters’’ under the The proposed rule also contains for are integrally linked to the chemical, proposed rule? physical or biological functions of the first time a definition of the term traditional navigable waters, interstate ‘‘Adjacent waters’’ are wetlands, ‘‘neighboring.’’ The term ‘‘neighboring’’ waters or the territorial seas. As such, ponds, lakes and similar water bodies has generally been interpreted broadly where waterbodies are adjacent to (a)(4) that provide similar functions which in practice. The agencies provide a or (a)(5) waters, they also have a have a significant nexus to traditional regulatory definition of ‘‘neighboring’’ navigable waters, interstate waters, and significant nexus to (a)(1) through (a)(3) that captures those waters that in the territorial seas. These include waters waters. See Appendix A, Scientific practice the agencies have identified as and wetlands that are adjacent to Evidence (Part I, Discussion of Major having a significant effect on the traditional navigable waters, interstate Conclusions 2.B–C; Part II, ii) and chemical, physical, and biological waters, and the territorial seas as well as integrity of traditional navigable waters, Appendix B, Legal Analysis. waters and wetlands adjacent to other interstate waters, or the territorial seas. The proposed rule proposes to change jurisdictional waters such as tributaries ‘‘Neighboring’’ is defined as including ‘‘adjacent wetlands’’ to ‘‘adjacent and impoundments. The inclusion of waters located within the riparian area waters’’ so that water bodies such as adjacent waters in this category is or floodplain of a water identified in ponds and oxbow lakes, as well as supported by the Report, the collective paragraphs (a)(1) through (5), or waters wetlands, adjacent to jurisdictional body of scientific literature, the with a confined surface or shallow waters are ‘‘waters of the United States’’ agencies’ growing body of scientific and subsurface hydrologic connection to by rule. Second, the proposed rule adds technical knowledge and practical such a jurisdictional water. a definition of the term ‘‘neighboring,’’ expertise addressing the connectivity The terms ‘‘riparian area’’ and a term which appears in the existing and ecological interactions of these ‘‘floodplain’’ are also defined to further definition of ‘‘adjacent.’’ The agencies waters on (a)(1) through (a)(3) waters, clarify how the agencies interpret the propose a definition for ‘‘neighboring’’ and by the determination made in this term ‘‘neighboring.’’ Those new terms to identify those adjacent waters that the rulemaking that all adjacent waters in a are found at paragraphs (c)(1) through agencies concluded have a significant watershed have a significant nexus with (c)(4) of the proposed rule. The agencies nexus to (a)(1) through (a)(3) waters. To their traditional navigable waters, emphasize that these terms help to bring greater clarity to the meaning of interstate waters or the territorial seas. identify waters, including wetlands, that ‘‘neighboring,’’ the proposed rule adds Under the existing rule, only wetlands may be ‘‘adjacent’’ and would, therefore, scientifically-based definitions for the adjacent to ‘‘waters of the United be ‘‘waters of the United States’’ under terms ‘‘riparian area’’ and ‘‘floodplain’’ States’’ are defined as ‘‘waters of the this proposed rule. Absolutely no to define the lateral reach of the term United States.’’ As noted in San uplands located in ‘‘riparian areas’’ and Francisco Baykeeper v. Cargill Salt, 481 ‘‘neighboring.’’ Under the proposed ‘‘floodplains’’ can ever be ‘‘waters of the F.3d 700 (9th Cir. 2007), this provision rule, all waters, including wetlands, United States’’ subject to jurisdiction of of the agencies’ regulations only defines adjacent to a water identified in the CWA. adjacent wetlands, not adjacent ponds, Most waters, including wetlands, that paragraphs (a)(1) through (5); would be as ‘‘waters of the United States.’’ Prior are neighboring to a water body are ‘‘waters of the United States.’’ The term to SWANCC, adjacent non-wetland found within its riparian zone or adjacent means bordering, contiguous or waters were often jurisdictional under floodplain. However, there are some neighboring. Waters, including the ‘‘other waters,’’ or ‘‘(a)(3)’’ provision neighboring waters that might be wetlands, separated from other waters of of the existing regulations which the located outside of the riparian zone or the United States by man-made dikes or agencies are proposing to eliminate. floodplain, such as wetlands barriers, natural river berms, beach Waters, including wetlands, that meet immediately next to a highly incised dunes and the like are ‘‘adjacent the proposed definition of adjacency, and manipulated stream that no longer waters.’’ The term neighboring, for including the new proposed definition has a riparian area or a floodplain. purposes of the term ‘‘adjacent,’’ of neighboring, have a significant nexus Waters, including wetlands, determined includes waters located within the to (a)(1) through (a)(3) waters, and this to have a shallow subsurface hydrologic riparian area or floodplain of a water proposed rule would include all connection or confined surface identified in paragraphs (a)(1) through adjacent waters, including wetlands, as hydrologic connection to an (a)(1) (5), or waters with a shallow subsurface ‘‘waters of the United States’’ by rule. through (a)(5) water would also be hydrologic connection or confined The existing definition of ‘‘adjacent’’ ‘‘waters of the United States’’ by rule as surface hydrologic connection to such a would be generally retained under adjacent waters falling within the jurisdictional water. The term riparian today’s proposal, with a clarification definition of ‘‘neighboring.’’ area means an area bordering a water with respect to an existing provision In circumstances where a particular where surface or subsurface hydrology addressing wetlands adjacent to other water body is outside of the floodplain directly influence the ecological wetlands. The proposed rule states that and riparian area of a tributary, but is processes and plant and animal the term adjacent means bordering, connected by a shallow subsurface community structure in that area. contiguous or neighboring. Waters, hydrologic connection or confined Riparian areas are transitional areas including wetlands, separated from surface hydrologic connection with between aquatic and terrestrial other waters of the United States by such tributary, the agencies will also ecosystems that influence the exchange man-made dikes or barriers, natural assess the distance between the water of energy and materials between those river berms, beach dunes and the like body and tributary in determining ecosystems. Finally, the term floodplain are ‘‘adjacent waters.’’ Within the whether or not the water body is means an area bordering inland or definition of ‘‘adjacent,’’ the terms adjacent. ‘‘Adjacent’’ as defined in the coastal waters that was formed by bordering and contiguous are well agencies’ regulations has always sediment deposition from such water understood, and for continuity and included an element of reasonable under present climatic conditions and is clarity the agencies would continue to proximity. See Riverside Bayview, 474 at

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133–34 (‘‘Following the lead of the the bank-to-bank width of the water to Area of a Chain of Karst Wetlands in Environmental Protection Agency, see which the water is adjacent. The Central Pennsylvania, USA,’’ Wetlands 38 FR 10834 (1973), the Corps has agencies note that under the proposed 23:171–79 (2003); B.J. Cook, and F.R. determined that wetlands adjacent to rule any waters not fitting within (a)(1) Hauer, ‘‘Effects of Hydrologic navigable waters do as a general matter through (a)(6) categories would instead Connectivity on Water Chemistry, Soils, play a key role in protecting and be treated as ‘‘other waters.’’ and Vegetation Structure and Function enhancing water quality: . . . ‘For this Both confined surface and shallow in an Intermontane Depressional reason, the landward limit of Federal subsurface connections are forms of Wetland Landscape,’’ Wetlands 27:719– jurisdiction under Section 404 must direct hydrologic connections between 38 (2007). include wetlands that are in reasonable adjacent waters and (a)(1) through (a)(5) A shallow subsurface connection also proximity to other waters of the United waters. For purposes of this rule, exists, for example, when the adjacent States, as these wetlands are part of this confined surface connections consist of water and neighboring (a)(1) through aquatic system.’ ’’ quoting 42 FR 37128, permanent, intermittent or ephemeral (a)(5) water are in contact with the same July 19, 1977). Therefore, the surface connections through directional shallow aquifer. Shallow subsurface determination of whether a particular flowpaths, such as (but not limited to) connections may be found both within water meets the definition of swales, gullies, rills, and ditches. In the ordinary root zone and below the ‘‘neighboring’’ because the water is some cases, these connections will be a ordinary root zone (below 12 inches), connected by a shallow subsurface or result of ‘‘fill and spill’’ hydrology. A where other wetland delineation factors confined surface hydrologic connection directional flowpath is a path where may not be present. A combination of is made in the context of the terms water flows repeatedly from the wetland physical factors may reflect the presence ‘‘neighboring’’ and ‘‘adjacent’’ as used or open water to the nearby ‘‘water of of a shallow subsurface connection, in the regulation. the United States’’ that at times contains including (but not limited to) stream The element of reasonable proximity water originating in the adjacent hydrograph (for example, when the is informed by the scientific literature, wetland or open water as opposed to hydrograph indicates an increase in supplemented by agency practice, just directly from precipitation. flow in an area where no tributaries are which leads to a recognition of the role For the purposes of this rule, ‘‘fill and entering the stream), soil surveys (for of hydrologic connections in supporting spill’’ describes situations where example, exhibiting indicators of high a significant chemical, physical, and wetlands or open waters fill to capacity transmissivity over an impermeable biological relationship between water during intense precipitation events or layer), and information indicating the bodies, but this relationship can be high cumulative precipitation over time water table in the stream is lower than reduced as the distance between water and then spill to the downstream in the shallow subsurface. bodies increases. The agencies recognize jurisdictional water. Report at 5–62 Shallow subsurface connections are that in specific circumstances, the (citing T.C. Winter and D.O. Rosenberry, distinct from deeper groundwater distance between water bodies may be ‘‘Hydrology of Prairie Pothole Wetlands connections, which do not satisfy the sufficiently far that even the presence of during Drought and Deluge: A 17-year requirement for adjacency, in that the a hydrologic connection may not Study of the Cottonwood Lake Wetland former exhibit a direct connection to the support an adjacency determination. Complex in North Dakota in the water found on the surface in wetlands While the agencies’ best professional Perspective of Longer Term Measured and open waters. Water does not have judgment has always been a factor in and Proxy Hydrological Records,’’ to be continuously present in the determining whether a particular Climatic Change 40:189–209 (1998); confined surface or shallow subsurface wetland is ‘‘adjacent’’ under the existing S.G. Leibowitz, and K.C. Vining, hydrologic connection and the flow definition, the agencies recognize that ‘‘Temporal connectivity in a prairie between the adjacent water and the this may result in some uncertainty as pothole complex,’’ Wetlands 23:13–25 jurisdictional water may move in one or to whether a particular water connected (2003)). Water connected through such both directions. While they may provide through confined surface or shallow flows originates from the adjacent the connection establishing jurisdiction, subsurface hydrology is an ‘‘adjacent’’ wetland or open water, travels to the these shallow subsurface flows are not water. The agencies therefore request downstream jurisdictional water, and is ‘‘waters of the United States.’’ comment on whether there are other connected to those downstream waters For waters outside of the riparian area reasonable options for providing clarity by swales or other directional flowpaths or floodplain, confined surface for jurisdiction over waters with these on the surface. Surface hydrologic hydrologic connections (as described types of connections. connections via physical features or above) are the only types of surface Options could include asserting discrete features described above allow hydrologic connections that satisfy the jurisdiction over all waters connected for confined, direct hydrologic flows requirements for adjacency. Waters through a shallow subsurface hydrologic between an adjacent water and the (a)(1) outside of the riparian area or floodplain connection or confined surface through (a)(5) water that it neighbors. that lack a shallow subsurface hydrologic connection regardless of A shallow subsurface hydrologic hydrologic connection or a confined distance; asserting jurisdiction over connection is lateral water flow through surface hydrologic connection would be adjacent waters only if they are located a shallow subsurface layer, such as can analyzed as ‘‘other waters’’ under in the floodplain or riparian zone of a be found, for example, in steeply paragraph (a)(7) of the proposed rule. jurisdictional water; considering only sloping forested areas with shallow Application of the terms ‘‘riparian confined surface connections but not soils, or in soils with a restrictive layer area,’’ ‘‘floodplain,’’ and ‘‘hydrologic shallow subsurface connections for that impedes the vertical flow of water, connection’’ would be based in part on purposes of determining adjacency; or or in karst systems, especially karst best professional judgment and establishing specific geographic limits pans. K.J. Devito, et al., ‘‘Groundwater- experience applied to the definitions for using shallow subsurface or confined Surface Water Interactions in Headwater contained in this rule. The new surface hydrological connections as a Forested Wetlands of the Canadian definitions of riparian area and basis for determining adjacency, Shield,’’ Journal of Hydrology 181:127– floodplain are designed to provide including, for example, distance 47 (1996); M.A. O’Driscoll, and R.R. greater consistency, clarity, and limitations based on ratios compared to Parizek, ‘‘The Hydrologic Catchment certainty in determining the

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circumstances under which a particular possible from scientific literature any but which are not themselves water meets the definition of the term suggestions for additional clarification (independently) adjacent to an (a)(1) adjacent. The addition of these two of current explicit limits on adjacency, through (a)(5) water would, under the terms to the definition of ‘‘neighboring’’ such as a specific distance or a specific proposed rule, not be regulated under is based on the scientific literature and floodplain interval. (a)(6). However, waters, including agencies’ knowledge of and expertise on The agencies seek comment on wetlands, that are adjacent to a wetland river systems, which shows that water specific options for establishing that meets the definition of a tributary bodies such as wetlands, ponds, and additional precision in the definition of would be considered adjacent waters. oxbow lakes located within the riparian ‘‘neighboring’’ through: explicit areas and floodplains of (a)(1) through language in the definition that waters 2. Why do the agencies conclude that (a)(5) waters generally have substantial connected by shallow subsurface adjacent waters are ‘‘waters of the hydrologic and ecologic connections hydrologic or confined surface United States?’’ with the waters that they neighbor. hydrologic connections to an (a)(1) a. Legal Basis for Defining All Adjacent These proposed definitions are through (a)(5) water must be Waters as ‘‘Waters of the United States’’ adapted from scientific definitions using geographically proximate to the adjacent For those wetlands adjacent to the concepts that are most relevant and water; circumstances under which traditional navigable waters, Justice useful in the context of the CWA. Use waters outside the floodplain or riparian Kennedy stated in Rapanos that the of the floodplain in characterizing the zone are jurisdictional if they are agencies’ existing regulation ‘‘rests upon term ‘‘neighboring’’ is intended to reasonably proximate; support for or a reasonable inference of ecologic provide greater clarity and predictability against placing geographic limits on interconnection, and the assertion of in the determination of when waters are what waters outside the floodplain or jurisdiction for those wetlands is adjacent. The scientific literature clearly riparian zone are jurisdictional; sustainable under the Act by showing demonstrates the enhanced hydrologic determining that only waters within the adjacency alone.’’ 547 U.S. at 780. For connectivity that is present between a floodplain, only waters within the tributary and waters within the riparian area, or only waters within the all other adjacent waters, including floodplain of that tributary. There is, floodplain and riparian area (but not adjacent wetlands, Justice Kennedy has however, variability in the size of the waters outside these areas with a provided a framework for establishing floodplain, which is dependent on shallow subsurface or confined surface categories of waters which are per se factors such as the flooding frequency hydrologic connection) are adjacent; ‘‘waters of the United States.’’ First, he being considered, size of the tributary, identification of particular floodplain provided that wetlands are and topography. As a general matter, intervals within which waters would be jurisdictional if they ‘‘either alone or in large tributaries in low gradient considered adjacent; and any other combination with similarly situated topography will generally have large scientifically valid criteria, guidelines or [wet]lands in the region, significantly floodplains (e.g., the lower Mississippi parameters that would increase clarity affect the chemical, physical, and Delta) whereas small headwater streams with respect to neighboring waters. biological integrity of other covered located in steep gradients will have the Finally, the agencies are also waters more readily understood as smallest floodplains. It may thus be proposing to delete the parenthetical ‘navigable.’ ’’ 547 U.S. at 780. While the appropriate for the agencies to consider from the existing ‘‘adjacent wetlands’’ issue was not before the Supreme Court, a floodplain associated with a lower regulatory provision The phrase ‘‘other it is reasonable to also assess whether frequency flood when determining than waters that are themselves non-wetland waters have a significant adjacency for a smaller stream, and to wetlands’’ was intended to preclude nexus, as Justice Kennedy’s opinion consider a floodplain associated with a asserting CWA jurisdiction over makes clear that a significant nexus is higher frequency flood when wetlands that were simply adjacent to the touchstone for CWA jurisdiction. determining adjacency for a larger another wetland (such as an ‘‘isolated’’ Justice Kennedy also stated that the stream. When determining whether a wetland, as opposed to a wetland agencies could through regulation or water is located in a floodplain, the adjacent to a tributary). However, in adjudication identify categories of agencies will use best professional practice some wetlands that were waters that ‘‘are likely, in the majority judgment to determine which flood indeed adjacent to a tributary were of cases, to perform important functions interval to use (for example, 10 to 20 found to not meet the definition of for an aquatic system incorporating year flood interval zone). The agencies ‘‘adjacent’’ simply because another navigable waters.’’ 547 U.S. at 780–81. request comment on whether the rule adjacent wetland was located between Adjacent waters as defined in today’s text should provide greater specificity the adjacent wetland and the tributary. proposed rule, alone or in combination with regard to how the agencies will With this proposed change, the agencies with other adjacent waters in a determine if a water is located in the intend to ensure that all waters that watershed that drain to a traditional floodplain of a jurisdictional water. meet the proposed definition of navigable water, interstate water or the As noted above, the agencies retain ‘‘adjacent’’ are ‘‘waters of the United territorial seas, significantly affect the the general existing definition of States,’’ regardless of whether or not chemical, physical, or biological adjacency and have never interpreted another adjacent water is located integrity of those waters. Waters that are the term to include wetlands that are a between those waters and the tributary. adjacent to (a)(1) through (a)(5) waters, great distance from a jurisdictional If, for example, one wetland is in the including wetlands, oxbow lakes and water. The agencies intend to similarly riparian area of a ‘‘tributary’’ as defined adjacent ponds, are integral parts of interpret the new definition of in today’s proposed rule, and a different stream networks because of their ‘‘neighboring.’’ This new definition is wetland is in the floodplain of that ecological functions and how they designed to provide greater clarity by tributary, both wetlands would meet the interact with each other, and with identifying specific areas and definition of ‘‘adjacent’’ and be ‘‘waters downstream traditional navigable characteristics for jurisdictional of the United States,’’ even if the waters, interstate waters, or the adjacent waters, but the agencies request riparian wetland is located between the territorial seas. In other words, comment for additional clarification. floodplain wetland and the tributary. tributaries and their adjacent waters, Commenters should support where Waters located near an adjacent water and the traditional navigable waters,

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interstate waters, and territorial seas to that have a shallow subsurface or physical, and biological integrity of the which those waters flow, are an confined surface hydrologic connection (a)(4) and (a)(5) waters to which they are integrated ecological system, and with (a)(1) through (a)(5) waters. These adjacent, and those waters in turn discharges of pollutants, including characteristics ensure that the adjacent significantly affect the chemical, discharges of dredged or fill material, waters are part of ‘‘an aquatic system physical, or biological integrity of into these components of that ecological incorporating navigable waters,’’ 547 traditional navigable waters, interstate system, must be regulated under the U.S. at 781–82; and that they perform waters, and the territorial seas. CWA to restore and maintain the important functions to maintain the (2) Waters, Including Wetlands, chemical, physical, and biological chemical, physical, or biological Determined To Have a Confined Surface integrity of these waters. integrity of (a)(1) through (a)(3) waters. or a Shallow Subsurface Hydrologic The agencies’ proposed rule is In showing chemical, physical, and Connection Significantly Affect the consistent with the statute, the Supreme biological connections between adjacent Chemical, Physical, and Biological Court’s decisions, the best available waters and other jurisdictional waters, Integrity of (a)(1) Through (a)(3) Waters. science, and scientific and technical adjacent waters, including wetlands, The proposed rule includes as expertise. See both Appendices A and may be separated by land or other adjacent those waters that are B. features not regulated under the CWA, ‘‘neighboring’’ because they possess a but those intervening uplands do not shallow subsurface or confined surface b. Adjacent Waters Under This eliminate or impede the functional hydrologic connection to a Proposed Rule Have a Significant Nexus interactions between (a)(1) through jurisdictional water, and therefore can to (a)(1) Through (a)(3) Waters (a)(5) waters and the waters, including exchange water, along with chemicals The agencies’ proposal to determine wetlands, that are adjacent to them. For and organisms within that water, with ‘‘adjacent waters’’ to be jurisdictional by instance, two waters may be separated an (a)(1) through (a)(5) water, and rule is supported by the substantial by upland but be connected through subsequently have a significant effect, chemical, physical, and biological surface or shallow subsurface particularly in combination with other relationship between adjacent waters, connections with water and chemicals adjacent waters in the watershed, on the alone or in combination with similarly readily exchanging between them. chemical, physical, or biological situated waters, and (a)(1) through (a)(5) Similarly, uplands separating two integrity of a downstream traditional waters. Adjacent wetlands and other waters may not act as a barrier to navigable water, interstate water, and adjacent waters such as ponds and species that rely on and that regularly the territorial seas. oxbow lakes perform important move between the two waters. Confined surface connections that functions for the nearby streams and Therefore, the proposed rule reflects an provide a discrete pathway for water to lakes, and these functions are significant understanding that adjacent waters be exchanged between the potentially for the chemical, physical, and affect the chemical, physical, and adjacent wetland or water and an (a)(1) biological integrity of adjacent and biological integrity of waters to which through (a)(5) water present the clearest downstream waters. See Appendix A. they are adjacent and to (a)(1) through evidence of a hydrologic connection. One reason why the agencies propose (a)(3) waters even where the two waters Shallow subsurface connections are also in this rulemaking that all adjacent may be separated by features that are relevant, yet are more difficult to waters have a significant nexus with not jurisdictional, such as uplands, identify and document. Evidence shows their traditional navigable waters, berms, roads, levees, and similar that waters, including wetlands, located interstate waters, or the territorial seas features. The presence of these features outside of the riparian area or is closely related to a primary reason does not extinguish jurisdiction, a floodplain, but which still have a (explained above) why all tributaries of conclusion contained in the agencies’ shallow subsurface or confined surface navigable and interstate waters have a existing regulation at 33 CFR 328.3(c). hydrologic connection to an (a)(1) significant nexus with those waters. through (a)(5) water, will have a That is, all adjacent waters should be (1) Riparian and Floodplain Waters significant nexus to downstream (a)(1) jurisdictional by rule because the Significantly Affect the Chemical, through (a)(3) waters. Note that nothing discharge of many pollutants (such as Physical, and Biological Integrity of under the proposed rule would cause nutrients, petroleum wastes and other (a)(1) Through (a)(3) Waters the shallow subsurface connections toxic pollutants) into adjacent waters Riparian and floodplain waters, themselves to become jurisdictional. often flow into and thereby pollute the including wetlands, that are adjacent to Examples of confined surface water traditional navigable waters, interstate (a)(1) through (a)(3) waters play an hydrologic connections that waters, and the territorial seas. integral role in maintaining the demonstrate adjacency are swales, Based on science and agency chemical, physical, and biological gullies, and rills. The frequency, expertise, the agencies conclude that integrity of those waters. In addition, duration, and volume of flow associated adjacent waters, as defined in the riparian and floodplain waters, with these confined surface connections proposed rule, ‘‘are likely, in the including wetlands, that are adjacent to can vary greatly depending largely on majority of cases, to perform important (a)(4) and (a)(5) waters provide an factors such as precipitation, snowmelt, functions for an aquatic system important role in maintaining the landforms, soil types, and water table incorporating navigable waters.’’ chemical, physical, and biological elevation. It is the presence of this Rapanos, 547 U.S. at 781–82. The integrity of traditional navigable waters, hydrologic connection which provides agencies identified the characteristics of interstate waters, and the territorial seas. the opportunity for neighboring waters adjacent waters that as a class have a Among the ways in which riparian and to influence the chemical, physical, or significant nexus to (a)(1) through (a)(3) floodplain waters, including wetlands, biological integrity of (a)(1) through waters: They are waters that are that are adjacent to (a)(4) and (a)(5) (a)(5) waters. bordering to or are contiguous with waters significantly affect the chemical, In circumstances where a particular (a)(1) through (a)(5) waters, including physical, or biological integrity of water is outside of the floodplain and wetlands; they are waters that lie within traditional navigable waters, interstate riparian area of a jurisdictional water, a the riparian area or floodplain of (a)(1) waters, and the territorial seas is by connection can be established by through (a)(5) waters; or they are waters significantly affecting the chemical, confined surface or shallow subsurface

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hydrology that makes the water specific significant nexus analysis the agencies are proposing that ‘‘other neighboring, and thus adjacent. The depends on the functions they perform waters’’ are similarly situated if they scientific literature recognizes the role and their spatial arrangement within the perform similar functions and they are of hydrologic connections in supporting ‘‘region’’ or watershed. For other waters either (1) located sufficiently close a substantial chemical, physical, or that perform similar functions, their together so that they can be evaluated as biological relationship between water landscape position within the a single landscape unit with regard to bodies, but this relationship can be watershed (i.e., the ‘‘region’’) relative to their effect on the chemical, physical, or reduced as the distance between water each other or to a jurisdictional water is biological integrity of a water identified bodies increases because of various generally the determinative factor for in paragraphs (a)(1) through (a)(3), or (2) factors, such as soil characteristics, aggregating waters in a significant nexus located sufficiently close to a ‘‘water of geology, climate, precipitation patterns, analysis, which will focus on the degree the United States’’ for such an etc. The distance between water bodies to which the functions provided by evaluation of their effect. These criteria may be sufficiently great that even the those ‘‘other waters’’ affect the are explained in a subsequent section. presence of an apparent hydrologic chemical, physical, or biological Consistent with Justice Kennedy’s connection may not support an integrity of (a)(1) through (a)(3) waters opinion in Rapanos, the agencies adjacency determination. The greater and whether such effects are significant. propose today and are soliciting the distance, the less likelihood that See Appendix A, Scientific Evidence comment on establishing a case-specific there is an actual shallow subsurface or (Part I, Discussion of Major Conclusions analysis of whether ‘‘other waters,’’ confined surface hydrologic connection, 2.C; Part II, iii) and Appendix B, Legal including wetlands, that do not meet the because of the greater potential for the Analysis. criteria for any of the proposed water to infiltrate the soil to deeper Significant nexus is proposed to be jurisdictional categories in (a)(1) groundwater, or for transmission losses defined to mean that a water, including through (a)(6) and are not proposed to in any gully or swale (for example) that wetlands, either alone or in combination be excluded by rule under section (b), may appear to be hydrologic with other similarly situated waters in are susceptible to a case-specific connections. Within a watershed, the region (i.e., the watershed that analysis of whether they alone, or in wetlands and open waters that are drains to the nearest water identified in combination with other similarly closer to tributaries will have a higher paragraphs (a)(1) through (a)(3) of this situated waters, have a significant nexus probability of being hydrologically section), significantly affects the to a traditional navigable water, an connected and of being determined chemical, physical, or biological interstate water, or the territorial seas, adjacent than more distant waters, integrity of a water identified in and therefore are ‘‘waters of the United assuming that conditions governing type paragraphs (a)(1) through (a)(3) of this States.’’ and quantity of flows (e.g., slope, soil, section. For an effect to be significant, and aquifer permeability) are similar. it must be more than speculative or 1. Significant Nexus Analysis for ‘‘Other Report at 5–2. A determination of insubstantial. Other waters, including Waters’’ adjacency based on shallow subsurface wetlands, are similarly situated when a. ‘‘Other Waters’’ or confined surface hydrologic they perform similar functions and are connection outside the riparian area or located sufficiently close together or ‘‘Other waters’’ are those waters, floodplain requires clear sufficiently close to a ’’water of the including wetlands, that are subject to a documentation. United States’’ so that they can be case-specific significant nexus evaluated as a single landscape unit determination, and do not meet the H. ‘‘Other Waters’’ with regard to their effect on the criteria of any of the categories of waters The ‘‘other waters’’ paragraph of the chemical, physical, or biological in (a)(1) through (a)(6), and also are not proposed rule is at (a)(7). To be clear, integrity of a water identified in one of the waters and features excluded these ‘‘other waters’’ are not paragraphs (a)(1) through (a)(3). from the definition of ‘‘waters of the jurisdictional as a single category; Other waters with a significant nexus United States’’ in section (b). In the rather, as the proposed rule language can be found to be jurisdictional on a existing regulation, there is a non- states, ‘‘other waters’’ are jurisdictional case-specific basis where these waters exclusive list of the types of ‘‘other provided that they are found, on a case- do not fit within the definition of waters’’ which may be found to be specific basis, to have a significant another of the proposed categories of ‘‘waters of the United States.’’ The nexus to an (a)(1) through (a)(3) water. ‘‘waters of the United States’’ under agencies do not propose to re- Thus, the introductory phrase ‘‘on a paragraphs (a)(1) through (a)(6) and are promulgate this list of ‘‘other waters’’ case-specific basis’’ is designed to signal not excluded from the definition of because it is unnecessary and has led to clearly that this provision of the ‘‘waters of the United States’’ under confusion where it has been incorrectly definition of ‘‘waters of the United proposed section (b). read as an exclusive list. States’’ does not mean ‘‘other waters’’ A significant nexus analysis may be Of additional concern was that the are ‘‘waters of the United States’’ by based on a particular water alone or existing descriptive list of types of definition in the same way as those based on the effect that the water has in ‘‘other waters’’ includes some waters defined as jurisdictional in proposed combination with other similarly that would be jurisdictional under one paragraphs (a)(1) through (a)(6). situated waters in the region. Where of the proposed categories of ‘‘waters of ‘‘Other waters’’ will be evaluated effects will be analyzed in combination, the United States’’ that would be either individually, or as a group of the agencies will aggregate those effects. jurisdictional by rule, such as tributary waters where they are determined to be The agencies propose to interpret the streams. The agencies want to avoid similarly situated in the region. Waters ‘‘region’’ within which similarly questions of whether an intermittent are similarly situated where they situated waters would be aggregated as stream that meets the definition of perform similar functions and are the watershed that drains to the nearest tributary also needs a separate located sufficiently close together or traditional navigable water, interstate significant nexus analysis. Under the when they are sufficiently close to a water, or the territorial seas. proposed rule, that tributary stream jurisdictional water. How these ‘‘other For purposes of analyzing whether an does not require the significant nexus waters’’ are aggregated for a case- ‘‘other water’’ has a significant nexus, analysis. Removing the list of water

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types does not imply that any of the an ‘‘other water’’ be one the use, (a)(1) through (a)(3) water will be waters listed in the existing regulation degradation or destruction of which strongest with this nearest such water, are never jurisdictional under the could affect interstate or foreign and its drainage area is likely to be of proposed rule. When one of the waters commerce and to replace it with the a size commonly understood as a on the current enumerated list does not requirement that the ‘‘other water’’ meet ‘‘region.’’ fall under a proposed category for Justice Kennedy’s significant nexus The agencies generally use available jurisdiction (for example, adjacent standard. The current regulations assert mapping tools that are based on the waters under (a)(6) or tributaries under jurisdiction more broadly than what is National Hydrography Dataset (NHD) to (a)(5)), those waters would be proposed today. With this proposed demarcate boundaries of the single jurisdictional if found to have a regulation, the agencies would limit point of entry watershed. This point of significant nexus under proposed jurisdiction over ‘‘other waters’’ to only entry approach identifies a group of paragraph (a)(7) on a case-specific those that are determined on a case- waters that flow to a single location and basis. specific basis to have a significant nexus represents the scientifically appropriate to an (a)(1) through (a)(3) water. b. Significant Nexus sized area for conducting a significant For purposes of assessing whether a nexus evaluation in most cases. In the The agencies recognize that Supreme particular water is a ‘‘water of the arid West, the agencies recognize there Court decisions in SWANCC and United States’’ because it, alone or in may be situations where the single point Rapanos placed limits on the scope of combination with other similarly of entry watershed is very large, and it ‘‘other waters’’ that may be determined situated waters, has a significant nexus may be resource intensive to demarcate to be jurisdictional. Therefore, the to an (a)(1) through (a)(3) water, the watershed boundaries and all relevant agencies’ proposal today provides that agencies are proposing to define waters in the watershed. Under those waters not determined to be ‘‘significant nexus’’ plus each of the key circumstances, for practical jurisdictional as a category are elements used in the definition of administrative purposes the agencies jurisdictional only if they are ‘‘significant nexus.’’ could use the NHD mapping tool to determined on a case-specific basis to demarcate catchments surrounding the have a significant nexus to a traditional i. In the Region water to be evaluated that, in navigable water, an interstate water, or The agencies propose to interpret the combination, are roughly the size of the the territorial seas. The agencies also phrase ‘‘in the region’’ to mean the typical nearby 10-digit hydrologic unit request comment and information below watershed that drains to the nearest on how the science could support other traditional navigable water, interstate code (HUC–10) watershed. This approaches that could provide greater water, or the territorial seas through a combination of catchments would be regulatory certainty regarding the single point of entry. That concept is used for conducting a significant nexus jurisdictional status of ‘‘other waters’’, reflected in the definition of ‘‘significant evaluation. Such an approach can help including expanding the list of waters nexus’’ at (c)(7). Since Justice Kennedy resolve some practical concerns about jurisdictional by rule, expanding the list did not define the ‘‘region,’’ the agencies using available mapping tools on very of waters not jurisdictional by rule, and determined that because the movement large single point of entry watersheds in narrowing the ‘‘other waters’’ subject to of water from watershed drainage basins the arid West. a case-specific analysis, including to river networks and lakes shapes the The watershed includes all lands, eliminating the case-specific analysis development and function of these streams, wetlands, lakes, and other where the science does not support it. systems in a way that is critical to their waters within its boundaries. Only The agencies will review the long term health, the watershed is a waters within the watershed that meet administrative record, including reasonable and technically appropriate standards set out in (a)(1) through (a)(7) comments received, the scientific extent on which to identify waters that of the proposed rule would be literature, and the final Report, in together may have an effect on the considered ‘‘waters of the United determining how to address ‘‘other chemical, physical, or biological States.’’ In light of the scientific waters’’ in the final rule. integrity of a particular (a)(1), through literature, the longstanding approach of Justice Kennedy explained the (a)(3) water. See Appendix A, Scientific the agencies to implementation of the SWANCC decision in his concurring Evidence (Part I, Background; Part II, 4, CWA, and the statutory goals opinion in Rapanos: ‘‘In Solid Waste iii, A). underpinning Justice Kennedy’s Agency of Northern Cook Cty. v. Army The agencies choose to use the single significant nexus framework, the Corps of Engineers, 531 U.S. 159 (2001) point of entry watershed as the watershed draining to the nearest (a)(1) (SWANCC), the Court held, under the appropriate scale for the region. A single through (a)(3) water is the appropriate circumstances presented there, that to point of entry watershed is the drainage ‘‘region’’ for a significant nexus constitute ‘navigable waters’ under the basin within whose boundaries all analysis. precipitation ultimately flows to the Act, a water or wetland must possess a ii. Similarly Situated ‘significant nexus’ to waters that are or nearest single traditional navigable were navigable in fact or that could water, interstate water, or the territorial Justice Kennedy provided guidance to reasonably be so made.’’ 547 U.S. at 759. sea. There will likely be other the agencies that establishing a The agencies interpret the significant traditional navigable waters, interstate significant nexus requires examining nexus standard to apply to the ‘‘other waters, and ultimately the territorial whether a water ‘‘alone or in waters’’ portion of the existing seas further downstream from the combination with similarly situated regulation since the Court in SWANCC ‘‘nearest’’ such water, and these further [wet]lands in the region, significantly was considering the validity of the downstream waters would likely have affect[s] the chemical, physical, and Corps’ assertion of jurisdiction over larger watersheds, but the agencies biological integrity of other covered ponds and mudflats under (a)(3) of the determined that a reasonable waters more readily understood as Corps’ regulations (33 CFR 328.3). interpretation of ‘‘in the region’’ is the ‘navigable.’ ’’ 547 U.S. at 780. The To comport with the SWANCC and watershed that drains to the nearest (i.e. proposed rule adopts the concept of the Rapanos decisions, the agencies first downstream) such water. Any ‘‘alone or in combination with similarly propose to delete the requirement that nexus between other waters and an situated waters’’ test.

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The proposed regulation in the different soil and vegetation nexus must significantly affect the definition of ‘‘significant nexus’’ at characteristics, unless the ‘‘other chemical, physical, or biological (c)(7) clarifies that other waters, waters’’ perform similar functions and integrity of a downstream navigable including wetlands, are similarly are located sufficiently close to a ‘‘water water and that the requisite nexus must situated when they perform similar of the United States’’ to allow them to be more than ‘‘speculative or functions and are located sufficiently consistently and collectively function insubstantial,’’ Rapanos, at 780, and the close together or sufficiently close to a together to affect an (a)(1) through (a)(3) agencies propose to define significant ‘water of the United States’ so that they water. In determining whether other nexus in precisely those terms. can be evaluated as a single landscape waters are sufficiently close to each It is important to note that in unit with regard to their effect on the other or to a water of the United States, Rapanos, Justice Kennedy did not chemical, physical, or biological the agencies would also consider conclude that the wetlands adjacent to integrity of a water identified in hydrologic connectivity to each other or tributaries in the cases before the Court paragraphs (a)(1) through (a)(3) This a jurisdictional water. were not ‘‘waters of the United States.’’ combination of functionality and In determining whether groups of Rather, Justice Kennedy concluded that proximity to each other or to a ‘‘water other waters perform ‘‘similar the proper inquiry to determine their of the United States’’ meets the standard functions’’ the agencies would also jurisdictional status—whether or not the provided by Justice Kennedy. consider functions such as habitat, wetlands had a ‘‘significant nexus’’— Examining both functionality and water storage, sediment retention, and had not been made by the Corps or the proximity also limits the ‘‘other waters’’ pollution sequestration. These and other courts below. Justice Kennedy stated that can be aggregated for purposes of relevant considerations would be used that in both the consolidated cases determining jurisdiction. by the agencies to document the before the Court the record contained It is appropriate to analyze the hydrologic, geomorphic and ecological the types of evidence relevant to the chemical, physical, or biological effects characteristics and circumstances of the determination of a significant nexus ‘‘other waters’’ perform individually or waters. Examples include: according to the principles he together with all similarly situated documentation of chemical, physical, identified. Justice Kennedy stated ‘‘other waters’’ in the region under and biological interactions of the ‘‘[m]uch the same evidence should Justice Kennedy’ s standard. Today, the similarly situated ‘‘other waters;’’ aerial permit the establishment of a significant agencies are proposing to identify photography; topographical or terrain nexus with navigable-in-fact waters, factors to apply in the determination of maps and information; other available particularly if supplemented by further when ‘‘other waters’’ should be geographic information systems (GIS) evidence about the significance of the considered either individually or as a data; National Wetlands Inventory tributaries to which the wetlands are single landscape unit for purposes of a Maps; and state and local information. connected.’’ Id. Thus, Justice Kennedy significant nexus analysis. The agencies The evaluation would use any available concluded that ‘‘the end result in these propose that ‘‘similarly situated’’ site information and pertinent field cases and many others to be considered requires an evaluation of either a single observations where available, relevant by the Corps may be the same as that water or group of waters (i.e., a single scientific studies or data, or other suggested by the dissent, namely, that landscape unit) in the region that can relevant jurisdictional determinations the Corps’ assertion of jurisdiction is reasonably be expected to function that have been completed in the region. valid.’’ See Appendix B, Legal Analysis. together in their effect on the chemical, Under the proposed rule, the agencies The agencies will determine whether physical, or biological integrity of would assess the combined effects of the water they are evaluating, in downstream traditional navigable similarly situated ‘‘other waters’’ in the combination with other similarly waters, interstate waters, or the region on the chemical, physical, or situated waters in the region, has a territorial seas. biological integrity of (a)(1) through significant nexus to the nearest In addition, the agencies propose that (a)(3) waters in conducting a significant traditional navigable water, interstate ‘‘other waters’’ located close to a nexus analysis. The factors identified water or the territorial seas. Functions of jurisdictional water are more likely to above would be used by the agencies in waters that might demonstrate a influence such waters and therefore, to determining ‘‘other waters’’ in the significant nexus include sediment affect the integrity of downstream (a)(1) region that are similarly situated and trapping, nutrient recycling, pollutant through (a)(3) waters. These ‘‘other should, therefore, be considered trapping and filtering, retention or waters,’’ which do not meet the together in conducting a significant attenuation of flood waters, runoff proposed definition of adjacent waters, nexus analysis. The agencies recognize storage, export of organic matter, export may be assessed together when that consideration of these factors will of food resources, and provision of determining on a case-specific basis often limit aggregation of ‘‘other waters’’ aquatic habitat. A hydrologic whether a significant nexus exists, for purposes of assessing significant connection is not necessary to establish because of their similar functions and nexus or will require that ‘‘other a significant nexus, because, as Justice similar location in the landscape. waters’’ be considered individually with Kennedy stated, in some cases the lack Similarly situated waters may be no aggregation. of a hydrologic connection would be a identified as sufficiently close together sign of the water’s function in for purposes of this paragraph of the iii. Significant Nexus relationship to the traditional navigable proposed regulation when they are The agencies propose to define the water, interstate water or the territorial within a contiguous area of land with term ‘‘significant nexus’’ consistent with seas. These functional relationships relatively homogeneous soils, vegetation language in SWANCC and Rapanos. The include retention of flood waters or and landform (e.g., plain, mountain, proposed definition recognizes that not pollutants that would otherwise flow valley, etc.). As a general matter, it all waters have this requisite connection downstream to the traditional navigable would be inappropriate, for example, to to traditional navigable waters, water, interstate water or the territorial consider ‘‘other waters’’ as ‘‘similarly interstate waters, or the territorial seas seas. See 547 U.S. at 775 (citations situated’’ if these ‘‘other waters’’ are sufficient to be determined omitted) (J. Kennedy) (‘‘it may be the located in different landforms, have jurisdictional. Justice Kennedy was absence of an interchange of waters different elevation profiles, or have clear that waters with a significant prior to the dredge and fill activity that

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makes protection of the wetlands aquatic species present in the ‘‘other data that might further inform decisions critical to the statutory scheme’’). For water’’ and the tributary system (e.g., about ‘‘other waters.’’ In particular the example, a report that reviewed the amphibians, aquatic and semi-aquatic agencies solicit information about results of multiple scientific studies reptiles, aquatic birds); whether those whether current scientific research and concluded that depressional wetlands species show life-cycle dependency on data regarding particular types of waters lacking a surface outlet functioned the identified aquatic resources are sufficient to support the inclusion of together to significantly reduce or (foraging, feeding, nesting, breeding, subcategories of types of ‘‘other waters,’’ attenuate flooding. Report at 5–26 spawning, use as a nursery area, etc.); either alone or in combination with (citing A. Bullock and M. Acreman, and whether there is reason to expect similarly situated waters, that can ‘‘The Role of Wetlands in the presence or dispersal around the ‘‘other appropriately be identified as always Hydrological Cycle,’’ Hydrology and water,’’ and if so whether such dispersal lacking or always having a significant Earth System Sciences 7:358–389 extends to the tributary system or nexus. (2003)). beyond or from the tributary system to iv. Additional Request for Public When evaluating an ‘‘other water’’ the ‘‘other water.’’ Factors influencing Comment on ‘‘Other Waters’’ individually or cumulatively for the biological connectivity include species’ presence of a significant nexus to an life history traits, species’ behavioral As stated above, significant goals of (a)(1) through (a)(3) water, there are a traits, dispersal range, population size, the agencies in developing this variety of factors that can be considered timing of dispersal, distance between proposed rule are to provide greater that will influence the chemical, ‘‘other water’’ and an (a)(1) through clarity, certainty, and predictability to physical, or biological connections the (a)(3) water, the presence of habitat the public as to what waters are and are ‘‘other water’’ has with the downstream corridors or barriers, and the number, not subject to the jurisdiction of the (a)(1) through (a)(3) water. The area, and spatial distribution of habitats. CWA. The agencies will achieve these likelihood of a significant connection is Non-aquatic species or species such as goals consistent with the CWA, as greater with increasing size and non-resident migratory birds that are not interpreted by the Supreme Court, and decreasing distance from the identified demonstrating a life cycle dependency as supported by the best available (a)(1) through (a)(3) water, as well as on the identified aquatic resources are science. The agencies also will fulfill with increased density of the ‘‘other not evidence of biological connectivity their responsibility to the CWA’s waters’’ for ‘‘other waters’’ that can be for purposes of this rule. objectives and policies to protect water considered in combination with When making a jurisdictional quality, public health, and the similarly situated waters. determination for an ‘‘other water,’’ the environment. Evidence of chemical connectivity administrative record will include The agencies acknowledge that there and the effect on waters can be found by available information supporting the may be more than one way to determine identifying: Whether the properties of determination. In addition to location which waters are jurisdictional as the water in question are similar or and other descriptive information ‘‘other waters.’’ This proposal is for a dissimilar to an identified (a)(1) through regarding the water at issue, the record case-specific analysis of whether ‘‘other (a)(3) water; signs of retention, release, will include a clear explanation of the waters,’’ including wetlands, alone, or or transformation of nutrients or rationale for the jurisdictional in combination with other similarly pollutants; and the effect of landscape conclusion and a description of the situated waters located in the same position on the strength of the information used to determine whether region, have a significant nexus to a connection to the nearest ‘‘water of the the ‘‘other water’’ has a significant traditional navigable water, interstate United States,’’ and through it to an nexus. Information relevant to a finding water, or the territorial seas. The (a)(1) through (a)(3) water. In addition, that an ‘‘other water’’ alone or in agencies make this proposal based on an relevant factors influencing chemical combination with similarly situated analysis of the current state of the connectivity include hydrologic ‘‘other waters’’ in the region can come science available to them. In this connectivity (see physical factors, from many sources. Such information proposal, the agencies continue to below), surrounding land use and land need not always be specific to the water solicit additional science (peer-reviewed cover, the landscape setting, and whose jurisdictional status is being whenever possible) that could lead to deposition of chemical constituents (e.g. evaluated. Regional and national studies greater clarity, certainty, and acidic deposition). of the same type of water or similarly predictability of which waters are and Evidence of physical connectivity and situated waters can help to inform a are not within the jurisdiction of the the effect on (a)(1) through (a)(3) waters significant nexus analysis as long as CWA. can be found by identifying evidence of they are applicable to the water being To best meet their goals and physical connections, such as flood evaluated. Information derived from responsibilities, the agencies solicit water or sediment retention (flood field observation is not required in cases comment and information on the state prevention). Presence of indicators of where a ‘‘desktop’’ analysis can provide of the science, and its relation to the hydrologic connections between the sufficient information to make the CWA and the caselaw, to determine if other water and jurisdictional water are requisite findings. However, for more there are opportunities to provide also indictors of a physical connection. complex or difficult jurisdictional greater clarity, certainty, and Factors influencing physical determinations, it may be helpful to predictability for establishing connectivity include rain intensity, supplement such information with field jurisdiction over ‘‘other waters.’’ This duration of rain events or wet season, observation. includes the possibility of determining soil permeability, and distance of The agencies solicit comment that additional waters should be hydrologic connection between the regarding this approach to ‘‘other jurisdictional by rule such as in ‘‘other water’’ and the (a)(1) through waters,’’ recognizing that a case-specific paragraphs (a)(1) through (a)(6), and the (a)(3) water, depth from surface to water analysis of significant nexus is resource- possibility that additional waters should table, and any preferential flowpaths. intensive for the regulating agencies and be excluded from jurisdiction by rule Evidence of biological connectivity the regulated community alike. In such as in section (b). The agencies’ and the effect on waters can be found by addition, the agencies solicit comment decision on how best to address identifying: resident aquatic or semi- on additional scientific research and jurisdiction over ‘‘other waters’’ in the

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final rule will be informed by the final Waters not located in these identified reason, the agencies consider Level III version of the Report and other available ecoregions or other specified areas ecoregions to be the most appropriate scientific information. would be determined to not be similarly level for analysis. The ‘‘other waters’’ in The agencies request public comment situated and their effects would not be these ecoregions are within a contiguous on whether these alternative approaches aggregated for purposes of a significant area of land with relatively present options for determining the nexus determination. The result of not homogeneous soils, vegetation and jurisdictional status of ‘‘other waters’’ finding waters to be similarly situated landform (e.g., plain, mountain, valley, that could rely less, or not at all, on would most likely be a finding of no etc.), and generally provide similar case-specific analysis of whether waters significant nexus and no jurisdiction. functions to the downstream traditional are similarly situated for conducting a The agencies particularly seek comment navigable waters, interstate waters, or significant nexus analysis. Possible on whether the science supports the territorial seas. A possible list of alternative options to the case-specific differing approaches with respect to Level III ecoregions where waters are determination in the ‘‘other waters’’ which ‘‘other waters’’ are similarly similarly situated and aggregation could proposal are described below. The situated in certain areas of the U.S based be used include: agencies might adopt any combination on distinguishing factors in those areas. 1. Coast Range of today’s ‘‘other waters’’ proposal and The agencies also request comment on 4. Cascades the alternative options for the final rule, factors that could lead ‘‘other waters’’ to 6. Central California Foothills and after considering public comment and be aggregated in some areas but Coastal Mountains the evolving scientific literature on analyzed individually in other areas for 7. Central California Valley connectivity of waters. purposes of informing a case-specific 8. Southern California Mountains The agencies solicit comment on how significant nexus analysis. The agencies 9. Eastern Cascades Slopes and Foothills the agencies propose to find ‘‘other request comment on whether some 10. Columbia Plateau waters’’ to be similarly situated in this resource types are more or less likely to 27. Central Great Plains proposed rule, whether other methods be similarly situated than others, and if 34. Western Gulf Coastal Plain of identifying similarly situated ‘‘other there are ways to identify regions within 42. Northwestern Glaciated Plains waters’’ would be reasonable, and which aggregation of ‘‘other waters’’ 44. Nebraska Sand Hills whether no ‘‘other waters’’ should be would be routinely applied rather than 46. Northern Glaciated Plains determined to be similarly situated. In a case-specific determination. The 47. Western Corn Belt Plains each instance, the comments should agencies also request comment about address how the actions of the agencies whether ‘‘other waters’’ that are not 48. Lake Agassiz Plain would be consistent with the science, found in identifiable mapped regions 50. Northern Lakes and Forests including any science not currently should be analyzed individually on a 51. North Central Hardwood Forests before the agencies, the CWA, and the case-specific basis for a significant 59. Northeastern Coastal Zone caselaw. nexus, aggregated in some other way for 63. Middle Atlantic Coastal Plain The agencies considered multiple a significant nexus analysis, or 65. Southeastern Plains approaches and options for how best to categorically excluded from jurisdiction. 75. Southern Coastal Plain address whether ‘‘other waters’’ were An ecoregion is an area within the 78. Klamath Mountains/California High jurisdictional under the CWA. In United States that includes generally North Coast Range addition to the case-specific analysis in similar ecosystems and that has similar 81. Sonoran Basin and Range the proposal, the agencies seek types, qualities, and quantities of 83. Eastern Great Lakes Lowlands comment on the following alternatives: environmental resources. (J.M. Omernik, 84. Atlantic Coastal Pine Barrens 1. Determine by rule that ‘‘other ‘‘Perspectives on the Nature and 85. Southern California/Northern Baja waters’’ are similarly situated in certain Definition of Ecological Regions,’’ Coast areas of the country. Environmental Management See Map A in docket. The case-specific analysis in the 34(Supplement 1):S27–S38 (2004)). The agencies would consider the proposed rule approaches the question Ecoregions cover relatively large areas of ‘‘other waters’’ in a single point of entry of what ‘‘other waters’’ are similarly land or water, and contain watershed in these identified ecoregions situated for purposes of aggregation in characteristic, geographically distinct as similarly situated for purposes of the same manner throughout the U.S. assemblages of natural communities and aggregation for a significant nexus The agencies could determine by rule species. The biodiversity of flora, fauna analysis. The agencies expect that this that ‘‘other waters’’ are similarly and ecosystems that characterize an approach would lead to all similarly situated in only certain areas of the ecoregion tends to be distinct from that situated other waters within single point country, and not in other areas. Under of other ecoregions. (Id.) of entry watersheds within an ecoregion this option, the agencies would identify Level III ecoregions are the second being found jurisdictional through case- ecological regions (ecoregions) which most detailed level of ecoregions specific analysis of significant nexus. contain ‘‘other waters’’ that are nationally, with 105 Level III ecoregions Alternately, the agencies could ‘‘similarly situated’’ as provided in the in the conterminous United States, and determine that the similarly situated proposed rule. Where waters are have been refined over the years in waters within each ecoregion have a determined to be similarly situated, several state-level projects conducted in significant nexus and are jurisdictional those waters are aggregated for collaboration with the EPA and other by rule and therefore do not require a evaluation of whether they have a Federal and State agencies. U.S. case-specific significant nexus analysis. significant nexus to a traditional Environmental Protection Agency, The agencies request comment on the navigable water, interstate water, or the ‘‘Level III Ecoregions of the Continental list of ecoregions above and whether territorial seas. The agencies expect that United States,’’ map scale 1:7,500,000 this list is appropriate, and whether determining all ‘‘other waters’’ within (Corvallis, OR: U.S. EPA—National there are other ecoregions or distinct an ecoregion to be similarly situated Health and Environmental Effects areas that should be included or would result in these ‘‘other waters’’ Research Laboratory, 2013), available at excluded from this list. This list does being determined to have a significant http://www.epa.gov/wed/pages/ not include regions in Alaska or Hawaii nexus and being found jurisdictional. ecoregions/level_iii_iv.htm. For this and the agencies request comment on

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appropriate regions to use to analyze 34(Supplement 1):S71–S88 (2004)). significant nexus and are jurisdictional ‘‘other waters’’ in those states. The Hydrologic-landscape regions are based by rule. See Appendix A, Part II, iii.C(1). agencies also request comment on on a concept that reflects fundamental These waters would not require a case- whether using Level III ecoregions is hydrologic processes that are expected specific significant nexus analysis to appropriate or whether a finer gradation to affect water quality and other determine jurisdiction. of ecoregions would be more environmental characteristics. In addition, the agencies could appropriate. The agencies seek comment on the determine that other subcategories of The factors the agencies used in technical bases for using ecoregions and waters are not jurisdictional and lack a developing the list above are: hydrologic-landscape regions under this significant nexus to an (a)(1) through a. Density of ‘‘other waters’’ such that option. Commenters may also address (a)(3) water. Under this option the there can be periodic surface hydrologic whether some other method or agencies could conclude that ‘‘other connections among the waters, for combination of methods (certain waters’’ such as playa lakes in the Great example in West Coast vernal pools. ecoregions and hydrologic-landscape Plains, even in combination with other b. Soil permeability and surface or regions, for example) of mapping playa lakes in a single point of entry shallow subsurface flow such that the geographic boundaries is better watershed, lack a significant nexus and ‘‘other waters’’ can be considered supported by the science. Comments therefore are not jurisdictional. See hydrologically connected, such as many should also address whether and how Appendix A, Part II, iii.C(1). Texas coastal prairie wetlands. this option is consistent with the Under this approach, where a playa c. Water chemistry which indicates science and the caselaw. lake, or other excluded category of that the ‘‘other waters’’ are part of the If the agencies choose to determine by water, would be within a category same system and influenced by the rule that ‘‘other waters’’ in certain established by paragraphs (a)(1) through same processes. ecoregions or other geographic (a)(6) of the proposed rule (e.g., the d. Physical capacity of ‘‘other waters’’ boundaries are similarly situated, the playa is an interstate water or the playa to provide flood and sediment retention; agencies could also determine that is adjacent to an (a)(1) through (a)(5) this is a case where several small waters not located in identified water), the playas would be wetlands together may have a different ecoregions or otherwise specifically jurisdictional. (See R.W. Tiner, effect than a single large wetland identified areas are not similarly ‘‘Geographically Isolated Wetlands of providing the same function, for situated for purposes of establishing a the United States,’’ Wetlands 23(3):494– example prairie potholes in the significant nexus and jurisdiction. The 516 (2003); M.G. Forbes, et al., Missouri Coteau. agencies also request comment on ‘‘Nutrient Transformation and Retention e. Co-location of waters to each other whether ‘‘other waters’’ that are not by Coastal Prairie Wetlands, Upper Gulf or similarly to the tributary system such found in identifiable mapped ecoregions Coast, Texas,’’ Wetlands 32(4): 705–715 that their cumulative and additive or other areas should be analyzed (2012)). effects on pollutant removal through individually on a case-specific basis for The agencies seek comment on how parallel, serial, or sequential processing determining a significant nexus, and on they should categorize the remaining are apparent, such as the role of whether or not case-specific analysis of ‘‘other waters.’’ The agencies seek pocosins in maintaining water quality in whether there are similarly situated comment on whether these remaining estuaries. ‘‘other waters’’ in the area is advisable. ‘‘other waters’’ should be non- f. ‘‘Other waters’’ that are sufficiently 2. Determine by rule that certain jurisdictional because they would lack a near each other or the tributary system additional subcategories of waters significant nexus to a traditional and thus function as an integrated would be jurisdictional rather than navigable water, interstate water, or the habitat that can support the life cycle of addressed with a case-specific analysis, territorial seas. a species or more broadly provide and that other subcategories of waters There is substantial value to the habitat to a large number of a single would be non-jurisdictional. regulated public and all other species. The agencies could choose to stakeholders in providing increased The agencies request comment on the determine that there is science available certainty regarding which ‘‘other factors above and whether this list of to determine by rule that certain waters’’ are jurisdictional and which are factors is appropriate, and whether there additional subcategories of ‘‘other not. By expanding the categories of are other factors that should be included waters’’ are similarly situated and have waters determined jurisdictional and or excluded from this list. Comments a significant nexus and are expanding the categories of waters not should address the science that supports jurisdictional by rule rather than categorized as jurisdictional, the each comment. addressed with a case-specific agencies can better address the clarity, In addition to ecoregions, another significant nexus analysis under certainty, and predictability goals of this method of mapping boundaries where paragraph (a)(7). Such an approach rule. However, the agencies waters could be considered to be would lead to certain subcategories of acknowledge that the science may not similarly situated for a significant nexus ‘‘other waters’’ being determined be sufficient today to conclusively analysis would be to rely on hydrologic- jurisdictional in the same way that determine whether all categories of landscape regions. Hydrologic- waters under paragraphs (a)(1) through other waters significantly affect the landscape regions are groups of (a)(6) are jurisdictional without a case- chemical, physical and biological watersheds that are clustered together specific significant nexus analysis. integrity of (a)(1) through (a)(3) waters. on the basis of similarities in land- Under this option the agencies could The agencies seek comment on the surface form, geologic texture, and determine that waters such as prairie science used in support of the proposed climate characteristics. (D.M. Wolock, et potholes, Carolina and Delmarva bays, rule, plus any additional science they al. ‘‘Delineation and Evaluation of pocosins, Texas coastal prairie should consider when determining Hydrologic-Landscape Regions in the wetlands, western vernal pools, and jurisdiction. The agencies also seek United States Using Geographic perhaps other categories of waters, comment on how inconclusiveness of Information System Tools and either alone or in combination with the science relates to the use of case- Multivariate Statistical Analyses,’’ other waters of the same type in a single specific determinations. As the science Environmental Management point of entry watershed, have a develops, the agencies could determine

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that additional categories of ‘‘other the chemical, physical, or biological I. Waters That Are Not ‘‘Waters of the waters’’ are similarly situated and have integrity of waters more traditionally United States’’ a significant nexus and are understood as navigable. While the The agencies’ longstanding jurisdictional by rule, or that as a class agencies do not propose to determine regulations exclude waste treatment they do not have such a significant that no ‘‘other waters’’ are similarly systems designed to meet the nexus and might not be jurisdictional. situated and aggregated, the agencies requirements of the CWA and prior If waters are categorized as non- specifically seek comment on whether converted cropland from the definition jurisdictional because of a lack of and how choosing to find no ‘‘other of ‘‘waters of the United States.’’ The science available today, the agencies waters’’ similarly situated would be agencies propose no changes to these request comment on how to best consistent with the science, the CWA, exclusions and therefore they would accommodate evolving science in the continue as a part of this rulemaking. future that could indicate a significant and the caselaw. The agencies also propose to codify for nexus for these ‘‘other waters.’’ The agencies also considered and seek the first time longstanding practices that Specifically, the agencies request comment on all ‘‘other waters’’ in a have generally considered certain comment as to whether this should be single point of entry watershed being features and types of waters not to be done through subsequent rulemaking, or evaluated as a single landscape unit ‘‘waters of the United States.’’ Codifying through some other approach, such as with regard to their effect on traditional through a process established in this these longstanding practices supports navigable waters, interstate waters, and the agencies’ goals of providing greater rulemaking. the territorial seas. The agencies also seek comment on clarity, certainty, and predictability for how the science supports retaining the The agencies seek comment that the regulated public and the regulators. case-specific determination for the would inform a decision that these Under today’s proposal, the waters remaining ‘‘other waters’’ that are ‘‘other waters’’ in a single point of entry identified in section (b) as excluded neither specifically included nor watershed perform similar functions would not be ‘‘waters of the United excluded from jurisdiction. Retaining and are located sufficiently close States,’’, even if they would otherwise the case-specific analysis for these other together or to a paragraph (a)(1) through fall within one of the categories in (a)(1) waters would not enhance clarity of (a)(5) water so that they can be through (a)(7). jurisdiction for these other waters, but it aggregated and evaluated as a single The agencies propose ministerial would retain the ability for a landscape unit with regard to their actions with respect to the placement of jurisdictional determination consistent effects on the nearest (a)(1) through the two existing exemptions for waste with the objective of the CWA to restore (a)(3) water. Generally, the agencies treatment systems and prior converted and maintain the chemical, physical, anticipate that if the other waters in a cropland. They will be in proposed new and biological integrity of the nation’s single point of entry watershed are section (b). For the waste treatment waters. In the alternative, the agencies aggregated as a single unit, these waters systems exclusion, the agencies propose seek comment on whether it would be would be determined to have a to delete a cross-reference in the current appropriate to categorize remaining significant nexus and be jurisdictional. language to an EPA regulation that is no ‘‘other waters’’ as not jurisdictional. The longer in the Code of Federal The agencies recognize that if they agencies specifically seek comment on Regulations. The parenthetical to be how these ‘‘other waters’’ should be choose to aggregate all other waters in deleted states: ‘‘(other than cooling considered. a single point of entry watershed, there ponds as defined in 40 CFR 423.11(m) 3. Additional ‘‘other waters’’ likely is insufficient existing scientific which also meet the criteria of this approaches. information to support the definition).’’ The agencies do not The agencies request comment on determination that all ‘‘other waters’’ in consider this deletion to be a additional ‘‘other waters’’ approaches watersheds across the nation are substantive change to the waste considered, but not proposed by the similarly situated as provided in this treatment systems exclusion or how it is agencies. rule and described in the caselaw. There applied. In fact, the agencies do not The agencies could determine that no are also questions of how determining propose to make conforming changes to ‘‘other waters’’ are similarly situated, ‘‘other waters’’ in a single point of entry ensure that each of the existing and all significant nexus analyses would watershed to be similarly situated definitions of the ‘‘waters of the United be made on a case-specific basis for each reconciles with the portion of Justice States’’ for the various CWA programs individual ‘‘other water.’’ The agencies Kennedy’s opinion discussing have the exact same language with expect that this likely would result in ‘‘similarly situated’’ waters in the region respect to the waste treatment system few if any other waters being found that ‘‘significantly affect’’ the chemical, exclusion. The regulations jurisdictional. The agencies recognize physical, or biological integrity of implementing the various CWA that if they determine there are no waters more traditionally understood as programs were promulgated and similarly situated ‘‘other waters,’’ there navigable. While the agencies do not amended at different times and are issues about consistency with propose to determine that ‘‘other therefore there are some differences in existing scientific information and waters’’ in a single point of entry language. For example, compare EPA’s studies regarding the functional watershed are similarly situated and regulations for the section 402 program, relationship of ‘‘other waters’’ of the aggregated, the agencies seek comment 40 CFR 122.2 with the Corps’ same type, and their contribution to the on whether and how choosing to find regulations for the 404 program, 33 CFR chemical, physical, or biological 328.3. The agencies do not propose to such ‘‘other waters’’ similarly situated integrity of streams, rivers, lakes, and address the substance of the waste would be consistent with the science, similar waters. There are also questions treatment system exclusion and thus the CWA, and the caselaw. of how finding no ‘‘other waters’’ to be will leave each regulation as is with the similarly situated reconciles with the The agencies’ determination will be exception of deleting the cross- portion of Justice Kennedy’s opinion informed by the final version of the reference. discussing ‘‘similarly situated’’ waters Report and other available scientific In addition, this regulation does not in the region that ‘‘significantly affect’’ information. address or change in any way the many

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statutory exemptions from CWA Æ Groundwater, including In clarifying the list of waters not permitting requirements. The proposed groundwater drained through subject to CWA jurisdiction, the rule does not affect any of the subsurface drainage systems; and agencies did not include ‘‘puddles’’ exemptions provided by CWA section Æ Gullies and rills and non-wetland from the lists of waters generally not 404(f), including those for normal swales. considered jurisdictional in previous farming, silviculture, and ranching Most of these features and waters preambles or guidance documents. This activities. CWA section 404(f); 40 CFR have been identified by the agencies as is not because puddles are considered 232.3; 33 CFR 323.4. The proposed rule generally not ‘‘waters of the United jurisdictional, it is because ‘‘puddles’’ is also does not address or change the States’’ in previous preambles or not a sufficiently precise hydrologic statutory and regulatory exemptions guidance documents. The agencies’ term or a hydrologic feature capable of from NPDES permitting requirements have always preserved the authority to being easily understood. Because of the such as those for agricultural determine in a particular case that any lack of common understanding and stormwater discharges, return flows of these waters are a ‘‘water of the precision inherent in the term from irrigated agriculture, or the status United States.’’ One of the agencies’ ‘‘puddles,’’ the agencies determined that of water transfers. CWA section 402(l)(1) goals in this proposed rule is to increase adding puddles would be contrary to (exempting discharges composed clarity and certainty about the scope of the agencies’ stated goals of increased entirely of return flows from irrigated ‘‘waters of the United States.’’ To that clarity, predictability, and certainty. In agriculture from section 402 permit end, the agencies propose not simply addition, one commonly understood requirements); CWA section that these features and waters are meaning for the term ‘‘puddle’’ is a 502(14)(excluding agricultural ‘‘generally’’ not ‘‘waters of the United relatively small, temporary pool of stormwater discharges and return flows States,’’ but that they are expressly not water that forms on pavement or from irrigated agriculture from the term ‘‘waters of the United States’’ by rule. uplands immediately after a rainstorm, point source.); 40 CFR 122.3(f) The agencies would not retain the snow melt, or similar event. Such a (excluding return flows from irrigated authority to determine that any of these puddle cannot reasonably be considered agriculture from the NPDES program); waters was a ‘‘water of the United a water body or aquatic feature at all, 40 CFR 122.2 (excluding return flows States’’ because it would otherwise be because usually it exists for only a brief from irrigated agriculture or agricultural jurisdictional under section (a). For period of time before the water in the storm water runoff from the term point example, the agencies could not find puddle evaporates or sinks into the source.). that a water had a significant nexus and ground. Puddles of this sort obviously was an ‘‘other waters’’ under paragraph are not, and have never been thought to Finally, in new paragraphs (b)(3) (a)(7), or that it was an interstate water through (5), the agencies propose, for be, waters of the United States subject under paragraph (a)(2). These waters to CWA jurisdiction. Listing puddles the first time by rule, to exclude some would not be jurisdictional by rule. also could have created the waters and features that the agencies In determining that these features and misapprehension that anything larger have by longstanding practice generally waters are not ‘‘waters of the United than a puddle was jurisdictional. That is considered not to be ‘‘waters of the States,’’ the agencies are by the not the agencies’ intent. United States.’’ Specifically, the decisions of the Supreme Court. In Gullies are relatively deep channels agencies propose that the following are Riverside Bayview, the Supreme Court that are ordinarily formed on valley not ‘‘waters of the United States’’ deferred to the agencies’ regulations and sides and floors where no channel notwithstanding whether they would noted the difficulty of drawing lines previously existed. They are commonly otherwise be jurisdictional under identifying where waters end. The found in areas with low-density section (a): plurality opinion in Rapanos also noted vegetative cover or with soils that are • Ditches that are excavated wholly that there were certain features that highly erodible. See, e.g., N.C. Brady in uplands, drain only uplands, and were not primarily the focus of the and R.R. Weil, The Nature and have less than perennial flow. CWA. See 547 U.S. at 734. In this Properties of Soils, 13th Edition (Upper • Ditches that do not contribute flow, section of the proposed rule, the Saddle River, NJ: Prentice Hall, 2002). either directly or through another water, agencies are drawing lines and Rills are formed by overland water flows to a traditional navigable water, concluding that certain waters and eroding the soil surface during rain interstate water, the territorial seas or features are not subject to the storms. See, e.g., L.B. Leopold, A View impoundment. jurisdiction of the Clean Water Act. of the River (Cambridge: Harvard • The following features: A similar list of waters and features University Press, 1994). Rills are less not generally ‘‘waters of the United Æ Artificially irrigated areas that permanent on the landscape than States’’ was provided by the Corps in a would revert to upland should streams and typically lack an OHWM, 1986 preamble to the existing rule application of irrigation water to that whereas gullies are younger than defining ‘‘waters of the United States’’ area cease; streams in geologic age and also Æ (51 FR 41206, 41217, November 13, typically lack an OHWM; time has Artificial lakes or ponds created by 1986) and by the EPA in a 1988 excavating and/or diking dry land and shaped streams into geographic features preamble (53 FR 20764, June 6, 1988). distinct from gullies and rills. See, e.g., used exclusively for such purposes as In today’s proposed rule, the agencies American Society of Civil Engineers, stock watering, irrigation, settling have clarified and added to the list in Task Committee on Hydrology basins, or rice growing; order to provide a full description of the Æ Handbook, Hydrology Handbook (ASCE Artificial reflecting pools or waters that will not be ‘‘waters of the Publications, 1996). swimming pools created by excavating United States’’ by rule. The agencies The two main processes that result in and/or diking dry land; have never interpreted ‘‘waters of the the formation of gullies are downcutting Æ Small ornamental waters created by United States’’ to include groundwater and headcutting, which are forms of excavating and/or diking dry land for and the proposed rule explicitly longitudinal (incising) erosion. These primarily aesthetic reasons; excludes groundwater, including actions ordinarily result in erosional Æ Water-filled depressions created groundwater drained through cuts that are often deeper than they are incidental to construction activity; subsurface drainage systems. wide, with very steep banks, often small

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beds, and typically only carry water The agencies have long distinguished ditches) excavated wholly in and during precipitation events. The between ditches that are ‘‘waters of the draining only uplands and that do not principal erosional processes that United States’’ and ditches that are not carry a relatively permanent flow of modify streams are also downcutting ‘‘waters of the United States.’’ In a 1986 water.’’ The agencies recognize that the and headcutting. In streams, however, Corps preamble and a 1988 EPA term ‘‘relatively permanent’’ does not lateral erosion is also very important. preamble, the agencies each stated that align with more commonly understood The result is that streams, except on they generally do not consider non-tidal technical descriptions of flow regime. steep slopes or where soils are highly drainage and irrigation ditches The agencies therefore believe it is erodible, are characterized by the excavated on dry land to be ‘‘waters of appropriate to clarify the extent of this presence of bed and banks and an the United States.’’ 51 FR 41217, exclusion using the flow regime terms OHWM as compared to typical erosional November 13, 1986, 53 FR 20764, June that are familiar to the public and features that are more deeply incised. It 6, 1988. More recently, the agencies agency field personnel. The agencies should be noted that some ephemeral have stated that they generally would request comment on this formulation of streams are called ‘‘gullies’’ or the like not assert jurisdiction over ‘‘Ditches the ditch exclusion. The agencies when they are not ‘‘gullies’’ in the (including roadside ditches) excavated specifically seek comment on the technical sense; such streams where wholly in and draining only uplands appropriate flow regime for a ditch they are tributaries under the proposed and that do not carry a relatively excavated wholly in uplands and definition would be considered ‘‘waters permanent flow of water.’’ ‘‘Clean Water draining only uplands to be covered by of the United States,’’ regardless of the Act Jurisdiction Following the Supreme the exclusion in paragraph (b)(3). In name they are given locally. The Court’s Decision in Rapanos v. United particular, the agencies seek comment agencies request comment on how they States and Carabell v. United States’’ on whether the flow regime in such could provide greater clarity on how to (Dec. 2, 2008) at 1, 12 (2008 Rapanos ditches should be less than intermittent distinguish between erosional features guidance). flow or whether the flow regime in such such as gullies, which are excluded The agencies recognize that there ditches should be less than perennial from jurisdiction, and ephemeral have been inconsistencies in practice flow as proposed. tributaries, which are categorically implementing agency policy with The other type of ditch that would not jurisdictional. respect to ditches and this proposed be a ‘‘water of the United States’’ is a Non-wetland natural and man-made rule is designed to improve clarity, ditch that does not contribute flow, predictability, and consistency. With swales would not be ‘‘waters of the either directly or through another water, this proposal, the agencies would no United States’’ under this proposal. In to a water identified in paragraphs (a)(1) longer rely on ‘‘generally not’’ certain circumstances, however, swales through (4). Essentially, ditches that do jurisdictional but would clearly include areas that meet the regulatory not contribute flow to the tributary establish that specific types of ditches definition of ‘‘wetlands.’’ Swales system of a traditional navigable water, are not ‘‘waters of the United States’’ by generally are considered wetlands when interstate water or territorial sea would rule. Other ditches not excluded under they meet the applicable criteria in the not be ‘‘waters of the United States.’’ paragraphs (b)(3) or (b)(4), if they meet Corps of Engineers Wetland Delineation It is important to note, however, that the new proposed definition of Manual and the appropriate regional even when not jurisdictional waters, ‘‘tributary’’ would continue to be these non-wetland swales, gullies, rills supplement to that Wetland Delineation ‘‘waters of the United States,’’ as they Manual. Wetland swales would be and specific types of ditches may still be have been under the longstanding a surface hydrologic connection for evaluated as adjacent waters under implementation of the statute and proposed (a)(6) or as ‘‘other waters’’ purposes of the proposed definition of regulations by the agencies. adjacent under paragraph (a)(6) or for under proposed (a)(7) depending upon The first type of ditch that is excluded whether they meet the proposed purposes of a significant nexus analysis needs to meet all three criteria: (1) It is under paragraph (a)(7). For example, a definition of adjacent. Swales are excavated wholly in uplands; (2) it distinct from streams in that they are wetland may be a ‘‘water of the United drains only uplands, and (3) it has less States,’’ meeting the proposed definition non-channelized, shallow trough-like than perennial flow. Ditches that are of ‘‘neighboring’’ because it is connected depressions that carry water mainly excavated wholly in uplands means to such a tributary by a non- during rainstorms or snowmelt. Report ditches that at no point along their jurisdictional ditch that does not meet at A–19. Swales typically lack the length are excavated in a jurisdictional the definition of a ‘‘tributary.’’ In OHWM that is characteristic of wetland (or other water). Members of addition, these geographic features may jurisdictional streams. The agencies the public should consider whether a function as ‘‘point sources’’ under CWA request comment on how they could wetland is jurisdictional before section 502(14)), such that discharges of provide greater clarity on how to constructing a ditch that would drain pollutants to waters through these distinguish swales, which are excluded the wetland and connect either directly features would be subject to other CWA from jurisdiction, and ephemeral or through other waters to an (a)(1) tributaries, which are categorically through (a)(3) water. The ditch must regulations (e.g., CWA section 402). jurisdictional. also contain less than perennial flow to IV. Related Acts of Congress, Executive Finally, under paragraphs (b)(3) and be excluded under this proposed Orders, and Agency Initiatives (b)(4), the agencies propose to clearly provision. Perennial flow means that the exempt from the definition of ‘‘waters of flow in the ditch occurs year-round A. Executive Order 12866: Regulatory the United States’’ two types of ditches: under normal circumstances; therefore, Planning and Review and Executive (1) Ditches that are excavated wholly in excluded ditches must be dug only in Order 13563: Improving Regulation and uplands, drain only uplands, and have uplands, drain only uplands, and have Regulatory Review less than perennial flow, and (2) ditches ephemeral or intermittent flow. As Under Executive Order 12866 (58 FR that do not contribute flow, either noted above, the 2008 Rapanos 51735, October 4, 1993), this action is a directly or through another water, to a guidance stated that the agencies ‘‘significant regulatory action.’’ water identified in paragraphs (a)(1) generally would not assert jurisdiction Accordingly, the EPA and the Corps through (4). over ‘‘ditches (including roadside submitted this action to the Office of

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Management and Budget (OMB) for is independently owned and operated although voluntary, is also consistent review under Executive Orders 12866 and is not dominant in its field. with the President’s January 18, 2011 and 13563 (76 FR 3821, January 21, After considering the economic Memorandum on Regulatory Flexibility, 2011) and any changes made in impacts of this proposed rule on small Small Business, and Job Creation, which response to OMB recommendations entities, I certify that this proposed rule emphasizes the important role small have been documented in the docket for will not have a significant economic businesses play in the American this action. impact on a substantial number of small economy. This process has enabled the In addition, the EPA and the Corps of entities. See, e.g., Cement Kiln Recycling agencies to hear directly from these Engineers prepared an analysis of the Coalition v. EPA, 255 F.3d 855 (D.C. Cir. representatives, at a very preliminary potential costs and benefits associated 2001); Michigan v. EPA, 213 F.3d 663 stage, about how they should approach with this action. This analysis is (D.C. Cir. 2000); Am. Trucking Ass’n v. this complex question of statutory contained in ‘‘Economic Analysis of EPA, 175 F.3d 1027 (D.C. Cir. 1999); interpretation, together with related Proposed Revised Definition of Waters Mid-Tex Elec. Co-op, Inc. v. FERC, 773 issues that such representatives of small of the United States.’’ A copy of the F.2d 327 (D.C. Cir. 1985). entities may identify for possible analysis is available in the docket for Under the RFA, the impact of concern consideration in separate proceedings. this action. is any significant adverse economic The agencies have also prepared a impact on small entities, because the report summarizing their small entity B. Paperwork Reduction Act primary purpose of the initial regulatory outreach to date, the results of this This action does not impose any flexibility analysis is to identify and outreach, and how these results have information collection burden under the address regulatory alternatives ‘‘which informed the development of this provisions of the Paperwork Reduction minimize any significant economic proposed rule. This report is available impact of the rule on small entities.’’ 5 Act, 44 U.S.C. 3501 et seq. Burden is in the docket for this proposed rule U.S.C. 603. The scope of regulatory defined at 5 CFR 1320.3(b). An Agency (cite). jurisdiction in this proposed rule is may not conduct or sponsor, and a narrower than that under the existing D. Unfunded Mandates Reform Act person is not required to respond to, a regulations. See 40 CFR 122.2 (defining This proposed rule contains no collection of information unless it ‘‘waters of the United States’’). Because Federal mandates (under the regulatory displays a currently valid OMB control fewer waters will be subject to the CWA provisions of Title II of the Unfunded number. The OMB control numbers for under the proposed rule than are subject Mandates Reform Act of 1995 (UMRA), EPA’s CWA section 402 program may be to regulation under the existing 2 U.S.C. 1531–1538 for state, local, or found at 40 CFR 9.1. (OMB Control No. regulations, this action will not affect tribal governments or the private sector. 2040–0004, EPA ICR No. 0229.19). For small entities to a greater degree than This proposed rule does not directly the CWA section 404 regulatory the existing regulations. As a regulate or affect any entity and, program, the current OMB approval consequence, this action if promulgated therefore, is not subject to the number for information requirements is will not have a significant adverse requirements of sections 202 and 205 of maintained by the Corps of Engineers economic impact on a substantial UMRA. (OMB approval number 0710–0003). number of small entities, and therefore The agencies determined that this However, there are no new approval or no regulatory flexibility analysis is proposed rule contains no regulatory application processes required as a required. requirements that might significantly or result of this rulemaking that necessitate The proposed rule contemplated here uniquely affect small governments. a new Information Collection Request is not designed to ‘‘subject’’ any entities Moreover, the proposed definition of (ICR). of any size to any specific regulatory ‘‘waters of the United States’’ applies C. Regulatory Flexibility Act burden. Rather, it is designed to clarify broadly to CWA programs and the the statutory scope of ‘‘the waters of the subsequently affected entities, which The Regulatory Flexibility Act (RFA) United States, including the territorial are not uniquely applicable to small generally requires an agency to prepare seas’’ (33 U.S.C. 1362(7)), consistent governments. Thus, this proposed rule a regulatory flexibility analysis of any with Supreme Court precedent. This is not subject to the requirements of rule subject to notice-and-comment question of CWA jurisdiction will be section 203 of UMRA. rulemaking requirements under the informed by the tools of statutory Administrative Procedure Act or any construction and the geographical and E. Executive Order 13132: Federalism other statute unless the agency certifies hydrological factors identified in This proposed rule seeks to clarify the that the rule will not have a significant Rapanos v. United States, 547 U.S. 715 definition of the extent of CWA economic impact on a substantial (2006), which are not factors readily jurisdiction established by statute. State number of small entities. Small entities informed by the RFA. and local governments have well- include small businesses, small Nevertheless, the scope of the term defined and long-standing relationships organizations, and small governmental ‘‘waters of the United States’’ is a in implementing affected CWA jurisdictions. question that has continued to generate programs and these relationships will For purposes of assessing the impacts substantial interest, particularly within not be altered. Forty-six states and the of this final action on small entities, the small business community, because Virgin Islands have been authorized to ‘‘small entity’’ is defined as: (1) A small permits must be obtained for many administer the NPDES program under business that is a small industrial entity discharges of pollutants into those section 402, while two states administer as defined in the U.S. Small Business waters. In light of this interest, the EPA the section 404 program. This action Administration’s size standards (see 13 and the Corps determined to seek early will not have substantial direct effects CFR 121.201); (2) a small governmental and wide input from representatives of on the states, on the relationship jurisdiction that is a government of a small entities while formulating a between the national government and city, county, town, school district, or proposed definition of this term that the states, or on the distribution of special district with a population of less reflects the intent of Congress consistent power and responsibilities among the than 50,000; or (3) a small organization with the mandate of the Supreme various levels of government. Thus, that is any not-for-profit enterprise that Court’s decisions. Such outreach, Executive Order 13132 (64 FR 43255,

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August 10, 1999) does not apply to this F. Executive Order 13175: Consultation Order 13211 (66 FR 28355, May 22, action. Consistent with EPA and Corps and Coordination With Indian Tribal 2001), because it is not likely to have a policy to promote communications Governments significant adverse effect on the supply, between the agencies and state and local Subject to the Executive Order (E.O.) distribution, or use of energy. governments, and in recognition of the 13175 (65 FR 67249, November 9, 2000) I. National Technology Transfer and vital role states play in implementation Agencies may not issue a regulation that Advancement Act of the CWA, EPA voluntarily undertook has tribal implications, that imposes federalism consultation for this effort substantial direct compliance costs, and Section 12(d) of the National and met the terms of E.O. 13132 and that is not required by statute, unless Technology Transfer and Advancement EPA guidance for implementing the the Federal government provides the Act of 1995 (‘‘NTTAA’’), Public Law Order. EPA held a series of meetings funds necessary to pay the direct 104–113, 12(d) (15 U.S.C. 272 note) and outreach calls with state and local compliance costs incurred by tribal directs Federal agencies to use voluntary consensus standards in its governments and their representatives governments, or the Agencies consult regulatory activities unless to do so soliciting input on a potential rule to with tribal officials early in the process would be inconsistent with applicable define ‘‘waters of the United States.’’ of developing the proposed regulation and develops a tribal summary impact law or otherwise impractical. Voluntary As part of this consultation, early in statement. This action does not have consensus standards are technical the rulemaking process, EPA held three tribal implications as specified in E.O. standards (e.g., materials specifications, in-person meetings and two phone calls 13175. test methods, sampling procedures, and in the fall and winter of 2011. In compliance with the EPA Policy on business practices) that are developed or Organizations involved include the Consultation and Coordination with adopted by voluntary consensus National Governors Association, the Indian Tribes (May 4, 2011), EPA standards bodies. NTTAA directs National Conference of State consulted with tribal officials to gain an Federal agencies to provide Congress, Legislatures, the Council of State understanding of and, where through OMB, explanations when the Governments, the National Association appropriate, to address the tribal Agency decides not to use available and of Counties, the National League of implications of the proposed rule. In the applicable voluntary consensus Cities, the U.S. Conference of Mayors, course of this consultation EPA standards. the County Executives of America, the coordinated with the Corps, and the This proposed rulemaking does not National Associations of Towns and Corps jointly participated in aspects of involve technical standards. Therefore, Townships, the International City/ the consultation process. In the fall of the agencies are not considering the use County Management Association, and 2011 EPA sent a Tribal Consultation of any voluntary consensus standards. the Environmental Council of States. In Notification letter to all federally- J. Executive Order 12898: Federal addition, the National Association of recognized tribal leaders, via mail and Actions To Address Environmental Clean Water Agencies (NACWA) and email, inviting tribal officials to Justice in Minority Populations and the Association of Clean Water participate in outreach and consultation Low-Income Populations Administrators (ACWA) were invited to events and provide comments to EPA in Executive Order (E.O.) 12898 (59 FR participate. As part of the consultation coordination with the Corps. Close to 200 tribal representatives and more than 7629, Feb. 16, 1994) establishes Federal 12 counties, 8 associations and various executive policy on environmental state agencies and offices from five 40 tribes participated in the consultation process, which included justice. Its main provision directs states (Alaska, Wyoming, Kansas, Federal agencies, to the greatest extent Tennessee, and Texas) submitted multiple webinars and national teleconferences and face-to-face practicable and permitted by law, to written comments. In addition, EPA meetings. In addition, EPA received make environmental justice part of their held numerous outreach calls with state written comments from 3 tribes during mission by identifying and addressing, and local government agencies seeking the consultation period. In the spirit of as appropriate, disproportionately high their technical input. More than 400 E.O. 13175, and consistent with EPA and adverse human health or people from a variety of state and local and Corps policy to promote environmental effects of their programs, agencies and associations, including the communications between the agencies policies, and activities on minority Western Governors’ Association, the and tribal governments, the agencies populations and low-income Western States Water Council and the specifically solicit additional comment populations in the United States. Association of State Wetland Managers on this proposed action from tribal The agencies have determined that participated in various calls and officials. this proposed rule will not have meetings. disproportionately high and adverse G. Executive Order 13045: Protection of human health or environmental effects The agencies engaged in voluntary Children From Environmental Health federalism consultation on this rule and on minority or low-income populations. and Safety Risks The proposed rule defines the scope of we will continue to work closely with waters protected under the CWA. The the states with respect to development This action is not subject to E.O. 13045 because the environmental health increased clarity regarding the of a final rule. Additionally, EPA and or safety risks addressed by this action definition of ‘‘waters of the United the Corps are specifically soliciting do not present a disproportionate risk to States’’ will be of benefit to all comments on this proposed action from children. regulators, stakeholders, and interested state and local officials. The agencies parties. However, in the spirit of will include a detailed narrative of H. Executive Order 13211: Actions Executive Order 12898, we specifically intergovernmental concerns raised Concerning Regulations That request comment regarding potential during the course of the rule’s Significantly Affect Energy Supply, environmental justice issues raised by development and a description of the Distribution, or Use the proposed rule, and will fully agencies’ efforts to address them with This action is not a ‘‘significant consider those comments when the final rule. energy action’’ as defined in Executive preparing the final rule.

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K. Environmental Documentation rulemaking process, including that provided (lentic systems) on downstream waters. This during the public comment process, and by chapter is further subdivided into two broad The U.S. Army Corps of Engineers has additional research, studies, and categories of landscape settings based on prepared a draft environmental investigations that take place before the directionality of hydrologic flows: assessment in accordance with the rulemaking process is concluded. At the Bidirectional settings, in which wetlands and National Environmental Policy Act conclusion of the rulemaking process, the open waters can have two-way hydrologic (NEPA). The Corps has made a agencies will review the entirety of the exchanges with other water bodies (e.g., preliminary determination that the completed administrative record, including riparian and floodplain wetlands and open section 404 aspects of today’s proposed the final Report reflecting SAB review, and waters), and unidirectional settings, in which rule do not constitute a major Federal will make any adjustments to the final rule water flows only from the wetland or open deemed to be appropriate at that time. The water towards the downstream water (e.g., action significantly affecting the quality Report is under review by the Science most wetlands and open waters outside of of the human environment, and thus Advisory Board, and the rule will not be riparian areas and floodplains). Directionality preparation of an Environmental Impact finalized until that review and the final of hydrologic flow was selected as an Statement (EIS) will not be required. report are complete. Part I of this Appendix organizational principle for this section The proposed rule will increase and provides the conclusions of the review and because it has a dominant role in make more efficient the protection of synthesis. Part II provides additional detail of determining the types of connectivity and the aquatic environment. Additionally, the scientific literature and the agencies’ downstream effects (if any) of wetlands. the Corps complies with NEPA reasoning in support of this proposal. However, the use of these landscape settings for hydrologic directionality should not be programmatically for general permits, Part I: Synthesis of Peer-Reviewed Scientific construed as suggesting directionality of Literature and specifically for each and every geochemical or biological flows. Also, the standard individual permit application Background terms ‘‘unidirectional’’ and ‘‘bidirectional’’ before making final permit decisions. describe the landscape setting in which The implementation of the procedures The draft Report prepared by ORD reviews and synthesizes the peer-reviewed scientific wetlands and open waters occur, and do not prescribed in this proposed regulation literature on the connectivity or isolation of refer to wetland type or class. Four case would not authorize anyone (e.g., any streams and wetlands relative to large water studies from the literature examine evidence landowner or permit applicant) to bodies such as rivers, lakes, estuaries, and pertaining to connectivity and downstream perform any work involving regulated oceans. The purpose of the review and effects of oxbow lakes, Carolina and activities in ‘‘waters of the United synthesis is to summarize current Delmarva bays, prairie potholes, and vernal States’’ without first seeking and understanding about these connections, the pools in greater detail. factors that influence them, and the Chapter 6 presents and discusses key obtaining an appropriate CWA findings and major conclusions of the review, authorization, which concurrently mechanisms by which connected waters, singly or in aggregate, affect the function or which also are included at the end of each documents compliance with all condition of downstream waters. The focus review section and in this executive applicable environmental laws. of the Report is on surface and shallow summary. Appendix A subsurface connections from small or Summary of Major Conclusions temporary streams, non-tidal wetlands, and Based on the review and synthesis of more Scientific Evidence certain open waters. Specific types of connections considered in the Report include than a thousand publications from the peer- Overview of Scientific Literature on Aquatic transport of physical materials and chemicals reviewed scientific literature, the available Resource Connectivity and Downstream such as water, wood, and sediment, evidence supports three major conclusions: Effects nutrients, pesticides, and mercury; 1. The scientific literature demonstrates that streams, individually and cumulatively, In preparation for this proposal, more than movement of organisms or their seeds or exert a strong influence on the character and a thousand peer-reviewed scientific papers eggs; and hydrologic and biogeochemical functioning of downstream waters. All and other data that address connectivity of interactions occurring in surface and tributary streams, including perennial, aquatic resources and effects on downstream groundwater flows, including hyporheic intermittent, and ephemeral streams, are waters were reviewed and considered. EPA’s zones and alluvial aquifers. Office of Research and Development (ORD) The draft Report prepared by ORD consists chemically, physically, and biologically has prepared a draft peer-reviewed synthesis of six chapters. Following an executive connected to downstream rivers via channels of published peer-reviewed scientific summary and an introduction to the Report, and associated alluvial deposits where water literature discussing the nature of chapter 3 presents a conceptual framework and other materials are concentrated, mixed, connectivity and effects of tributaries and describing the hydrologic elements of a transformed, and transported. Headwater wetlands on downstream waters (U.S. watershed, the types of chemical, physical, streams (headwaters) are the most abundant Environmental Protection Agency, and biological connections that link them, stream-type in most river networks, and Connectivity of Streams and Wetlands to and watershed and climatic factors that supply most of the water in rivers. In Downstream Waters: A Review and Synthesis influence connectivity at various temporal addition to water, streams supply sediment, of the Scientific Evidence, (Washington, DC: and spatial scales. It also provides wood, organic matter, nutrients, chemical U.S. Environmental Protection Agency, background on the structure and function of contaminants, and many of the organisms 2013), hereinafter, ‘‘Report’’). This draft streams and wetlands viewed from an found in rivers. Streams are biologically Report similarly has been considered in the integrated watershed perspective. In a connected to downstream waters by the development of this proposal. The Report is discussion of connectivity, the watershed dispersal and migration of aquatic and semi- currently undergoing peer review led by scale is the appropriate context for aquatic organisms, including fish, EPA’s Scientific Advisory Board (SAB) and is interpreting technical evidence about amphibians, plants, microorganisms, and available at http://yosemite.epa.gov/sab/ individual watershed components, reviewed invertebrates, that use both up- and sabproduct.nsf/fedrgstr_activites/Watershed in subsequent chapters. Chapter 4 surveys downstream habitats during one or more %20Connectivity%20Report? the literature on stream networks (lotic stages of their life cycles, or provide food OpenDocument. The Report also underwent systems) in terms of chemical, physical, and resources to downstream communities. an earlier peer review, and the results of this biological connections between upstream and Chemical, physical, and biological peer review are available in the docket for downstream habitats. Two case studies from connections between streams and this proposed rule. The Report summarizes the literature examine in greater detail downstream waters interact via processes and assesses much of the currently available longitudinal connectivity and downstream such as nutrient spiraling, in which stream scientific literature that is part of the effects in prairie streams and arid streams of communities assimilate and chemically administrative record for this proposal. The the Southwest. Chapter 5 reviews the transform large quantities of nitrogen and agencies anticipate that additional data and literature on connectivity and effects of non- other nutrients that would otherwise increase information will become available during the tidal wetlands and certain open waters nutrient loading downstream.

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2. Wetlands and open waters in landscape 1. Conceptual Framework Overview example, all else being equal, materials settings that have bidirectional hydrologic Connectivity is a foundational concept in traveling shorter distances could enter the exchanges with streams or rivers (e.g., hydrology and freshwater ecology. The river with less transformation or dilution, wetlands and open waters in riparian areas structure and function of downstream waters thus increasing a beneficial or harmful effect. and floodplains) are chemically, physically, are highly dependent on the constituent In other cases, sequential transformations and biologically connected with rivers via materials contributed by and transported such as nutrient spiraling (defined and the export of channel-forming sediment and through water bodies located elsewhere in discussed below) connect distant water woody debris, temporary storage of local the watershed. Most of the materials in a bodies and produce beneficial effects on groundwater that supports baseflow in rivers, river, including water, sediment, wood, downstream waters. Infrequent events that and transport of stored organic matter. They organic matter, nutrients, chemical temporarily connect nearby or distant remove and transform excess nutrients such contaminants, and certain organisms, streams or wetlands to rivers also can have as nitrogen and phosphorus. They provide originate outside of the river, from upstream large, long-lasting effects. Most of the major nursery habitat for breeding fish, tributaries, wetlands, or other components of changes in sediment load and river channel colonization opportunities for stream the river system, and are transported to the structure that are critical to maintaining river invertebrates, and maturation habitat for river by water movement, wind, or other health—including meanders of rivers in stream insects. Moreover, wetlands in this means. Therefore, streams and wetlands floodplains and creation of oxbow lakes—are landscape setting serve an important role in fundamentally affect river structure and a result of large floods that provide the integrity of downstream waters because function by altering transport of various infrequent, intense connections with more they also act as sinks by retaining types of materials to the river. This alteration distant streams and riparian or floodplain of material transport depends on two key floodwaters, sediment, nutrients, and waters. factors: (1) Connectivity (or isolation) contaminants that could otherwise negatively Based on a review of the peer-reviewed between streams, wetlands and rivers that impact the condition or function of scientific literature, the Report identifies five enables (or prevents) the movement of downstream waters. functions by which streams, wetlands, and materials between the system components; open waters influence material transport into 3. Wetlands and open waters in landscape and (2) functions within streams and downstream waters: settings that lack bidirectional hydrologic wetlands that supply, remove, transform, • exchanges with downstream waters (e.g., provide refuge for, or delay transport of Source: The net export of materials, such many prairie potholes, vernal pools, and materials. as water and food resources playa lakes) provide numerous functions that The ORD Report defines connectivity as • Sink: The net removal or storage of can benefit downstream water quality and the degree to which components of a system materials, such as sediment and integrity. These functions include storage of are joined, or connected, by various transport contaminants floodwater; retention and transformation of mechanisms. Connectivity is determined by • Refuge: The protection of materials, nutrients, metals, and pesticides; and re- the characteristics of both the physical especially organisms charge of groundwater sources of river landscape and the biota of the specific • Transformation: The transformation of baseflow. The functions and effects of this system. Isolation is the opposite of materials, especially nutrients and diverse group of wetlands, which the Report connectivity; or the degree to which system chemical contaminants, into different refers to as ‘‘unidirectional wetlands,’’ affect components are not joined. Both connectivity physical or chemical forms the condition of downstream waters if there and isolation have important effects on • Lags: The delayed or regulated release of is a surface or shallow subsurface water downstream waters. For example, stream materials, such as storm water connection to the river network. In channels convey water and channel-forming These functions are not static or mutually unidirectional wetlands that are not sediment to rivers, whereas wetlands that exclusive (e.g., a wetland can be both a lack output channels can reduce flooding and connected to the river network through source of organic matter and a sink for store excess sediment. Materials transport surface or shallow subsurface water, the type nitrogen) and can change over time (e.g., one connects different ecosystem types, at and degree of connectivity varies wetland can be a water sink when geographically within a watershed and over multiple spatial and temporal scales. For example, streams flowing into and out of evapotranspiration is high and a water source time. Because such wetlands occur on a when evapotranspiration is low). Further, gradient of connectivity, it is difficult to wetlands or between lakes form continuous or seasonal connections across ecosystem some functions work in conjunction with generalize about their effects on downstream others. For example, a lag function can waters. Generalization for this class is further boundaries. Similarly, aquatic food webs connect terrestrial ecosystems, streams, include transformation of materials prior to complicated because, for certain functions wetlands, and downstream waters. their delayed release. In a particular stream, (e.g., sediment removal and water storage), Water movement through the river system wetland, or open water, the presence or downstream effects are due to wetland is the primary, but certainly not the only, absence of these functions depends upon the isolation, rather than connectivity. The mechanism providing physical connectivity biota, hydrology, and environmental literature reviewed does not provide within river networks. It provides a conditions in the watershed. sufficient information to evaluate or ‘‘hydraulic highway’’ that transports When considering effects on downstream generalize about the degree of connectivity chemical, physical, and biological materials waters, it is helpful to distinguish between (absolute or relative) or the downstream associated with the water (e.g., sediment, actual function and potential function of a effects of wetlands in unidirectional woody debris, contaminants, and organisms). stream, wetland, or open water. For example, landscape settings. However, evaluations of Because the movement of water is a wetland with appropriate conditions for individual geographically isolated wetlands fundamental to understanding watershed denitrification is a potential sink for nitrogen, or groups of geographically isolated wetlands connectivity, Chapter 3 begins with a review a nutrient that can be a contaminant when could be possible through case-by-case and an explanation of the hydrologic present in high concentrations. This function analysis. Further, while the review did not foundation of river systems, and terms and is conditional; if nitrogen were to enter a specifically address other unidirectional concepts used throughout the Report are wetland (from agricultural runoff, for water bodies, the conclusions apply to these defined. example), the wetland has the capacity to water bodies (e.g., ponds and lakes that lack Numerous factors influence watershed remove this nitrogen from the water. The surface water inlets) as well, since the same connectivity. Climate, watershed topography, wetland will not serve this function, principles govern hydrologic connectivity soil and aquifer permeability, the number however, if no nitrogen enters the wetland. between these water bodies and downstream and types of contributing waters, their spatial Even if a stream or wetland is not currently waters. distribution in the watershed, interactions serving an actual function, it has the Section 3 below provides an overview of among aquatic organisms, and human potential to provide that function when a the conceptual framework, with further alteration of watershed features, among other new material enters it, or when discussion of the key findings for streams, things, can act individually or in concert to environmental conditions change. Thus, riparian and floodplain areas, and influence stream and wetland connectivity potential functions play a critical role in unidirectional wetlands. to, and effects on, downstream waters. For protecting those waters from future impacts.

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2. Discussion of Major Conclusions Infrequent, high-magnitude events are within and near-bed animal life. Thus, the especially important for transmitting role of streams in influencing nutrient loads A. Streams materials from headwater streams in most can have significant repercussions for The scientific literature demonstrates that river networks. For example, headwater hypoxic areas in downstream waters. streams, individually or cumulatively, exert streams, including ephemeral and f. Headwaters provide critical habitat a strong influence on the character and intermittent streams, shape river channels by during one or more life cycle stages of many functioning of downstream waters. All accumulating and gradually or episodically organisms capable of moving throughout tributary streams, including perennial, releasing stored materials such as sediment river networks. This review found strong intermittent, and ephemeral streams, are and large woody debris. These materials evidence that headwaters provide habitat for chemically, physically, or biologically provide substrate, habitat for aquatic complex life-cycle completion, refuge from connected to downstream rivers via channels organisms, and slow the flow of water predators or adverse physical conditions in and associated alluvial deposits where water through channels. rivers, and reservoirs of genetic- and species- and other materials are concentrated, mixed, d. Connectivity between streams and rivers level diversity. Use of headwater streams as transformed, and transported. Headwater provides opportunities for materials, habitat is especially obvious for the many streams (headwaters) are the most abundant including nutrients and chemical species that migrate between small streams stream type in most river networks, and contaminants, to be sequentially altered as and marine environments during their life supply most of the water in rivers. In they are transported downstream. Although cycles (e.g., Pacific and Atlantic salmon, addition to water, streams supply sediment, highly efficient at transport of water and American eels, certain lamprey species), and wood, organic matter, nutrients, chemical other physical materials, streams are not the presence of these species within river contaminants, and many of the organisms pipes. They are dynamic ecosystems with networks provides robust evidence of found in rivers. Streams are biologically permeable beds and banks that interact with biological connections between headwaters connected to downstream waters by dispersal terrestrial and aquatic ecosystems above and and larger rivers. In prairie streams, many and migration of aquatic and semi-aquatic below the surface. The connections formed fishes swim upstream into tributaries to organisms, including fish, amphibians, by surface and subsurface streamflows act as release eggs, which develop as they are plants, microorganisms, and invertebrates, a series of complex chemical, physical, and transported downstream. Small streams also that use both up- and downstream habitats biological alterations that occur as materials provide refuge habitat for riverine organisms during one or more stages of their life cycles, move through different parts of the river seeking protection from temperature or provide food resources to downstream system. The amount and quality of such extremes, flow extremes, low dissolved communities. Chemical, physical, and materials that eventually reach a river are oxygen, high sediment levels, or the presence biological connections between streams and determined by the aggregate effect of these of predators, parasites, and competitors. downstream waters interact via processes sequential alterations that begin at the source B. Riparian/Floodplain Waters such as nutrient spiraling, in which stream waters, which can be at some distance from Wetlands and open waters in landscape communities assimilate and chemically the river. The greater the distance a material settings that have bidirectional hydrologic transform large quantities of nitrogen and travels between a particular stream reach and exchanges with streams or rivers (e.g., other nutrients that would otherwise increase the river, the greater the opportunity for that wetlands and open waters in riparian areas nutrient loading downstream. material to be altered in intervening stream and floodplains) are chemically, physically, Key findings: reaches, which can allow for uptake, or biologically connected with rivers via the a. Streams are hydrologically connected to assimilation, or beneficial transformation. export of channel-forming sediment and downstream waters via channels that convey One example of sequential alteration with woody debris, temporary storage of local surface and subsurface water year-round significant beneficial effects on downstream groundwater that supports baseflow in rivers, (perennial flow), weekly to seasonally waters is the process of nutrient spiraling, in and transport of stored organic matter. They (intermittent flow), or only in direct response which nutrients entering headwater streams remove and transform excess nutrients such to precipitation (ephemeral flow). Streams are transformed by various aquatic organisms as nitrogen and phosphorus. They provide are the dominant source of water in most and chemical reactions as they are nursery habitat for breeding fish, rivers, and the great majority of tributaries transported downstream by streamflow. colonization opportunities for stream are perennial, intermittent, and ephemeral Nutrients which enter the headwater stream invertebrates, and maturation habitat for headwater streams. For example, headwater (e.g., via overland flow) are first removed stream insects. Moreover, wetlands in this streams, which are the smallest channels from the water column by streambed algal landscape setting serve an important role in where stream flows begin, are the source of and microbial populations. Fish or insects the integrity of downstream waters because approximately 60% of the total mean annual feeding on algae and microbes take up some they also act as sinks by retaining flow to all northeastern U.S. streams and of those nutrients, which are subsequently floodwaters, sediment, nutrients, and rivers. released back to the stream via excretion and contaminants that could otherwise negatively b. Headwaters convey water into local decomposition, and the cycle is repeated. In impact the condition or function of storage compartments such as ponds, shallow each phase of the cycling process—from downstream waters. aquifers, or river banks and into regional and dissolved inorganic nutrients in the water Key Findings: alluvial aquifers. These local storage column, through microbial uptake, a. Riparian areas act as buffers that are compartments are important sources of water subsequent transformations through the food among the most effective tools for mitigating for baseflow in rivers. The ability of streams web, and back to dissolved nutrients in the nonpoint source pollution. The wetland to keep flowing even during dry periods water column—nutrients are subject to literature shows that collectively, riparian typically depends on the delayed (lagged) downstream transport. Stream and wetland wetlands improve water quality through release of local groundwater, also referred to capacities for nutrient cycling have important assimilation, transformation, or sequestration as shallow groundwater, originating from implications for the form and concentration of nutrients, sediment and other pollutants— these water sources, especially in areas with of nutrients exported to downstream waters. such as pesticides and metals—that can affect shallow groundwater tables and pervious e. The literature review found strong downstream water quality. These pollutants subsurfaces. For example, in the evidence that headwater streams function as enter wetlands via various pathways that southwestern United States, short-term nitrogen sources (export) and sinks (uptake include various sources such as dry and wet shallow groundwater storage in alluvial and transformation) for river networks. One atmospheric deposition, some runoff from floodplain aquifers, with gradual release into study estimated that rapid nutrient cycling in upland agricultural and urban areas, spray stream channels by intermittent and small streams that were free from agricultural drift, and subsurface water flows, as well as ephemeral streams, is a major source of or urban impacts removed 20–40% of the point sources such as outfalls, pipes, and annual flow in rivers. nitrogen that otherwise would be delivered to ditches. c. Even infrequent flows through downstream waters. Nutrients are necessary b. Riparian and floodplain areas connect ephemeral or intermittent channels influence to support aquatic life, but excess nutrients upland and aquatic environments through fundamental biogeochemical processes by create conditions leading to eutrophication both surface and subsurface hydrologic flow connecting the channel and shallow and hypoxia, in which oxygen concentrations paths. These areas are therefore uniquely groundwater with other landscape elements. fall below the level necessary to sustain most situated in watersheds to receive and process

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waters that pass over densely vegetated areas many parts of the country commonly use extensive drainage systems, total streamflow and through subsurface zones before reaching both streams and wetlands, including and baseflow are enhanced by directly streams and rivers. When contaminants reach wetlands in riparian and floodplain areas, to connecting potholes to stream networks. The a riparian or floodplain area, such materials hunt, forage, overwinter, rest, or hide from impacts of changing streamflow are can be sequestered in sediments, assimilated predators. numerous, including altered flow regime, into the wetland plants and animals, C. Unidirectional Wetlands stream geomorphology, habitat, and ecology. transformed into less harmful forms or The presence or absence of an effect of compounds, or lost to the atmosphere. Wetlands and open waters in landscape prairie pothole water storage on streamflow Wetland potential for biogeochemical settings that lack bidirectional hydrologic depends on many factors, including patterns transformations (e.g., denitrification) that can exchanges with downstream waters (e.g., of precipitation, topography and degree of improve the quality of water entering streams many prairie potholes, vernal pools, and human alteration. For example, in parts of and rivers is influenced by factors present in playa lakes) provide numerous functions that the prairie pothole region with low riparian areas and floodplains, including can benefit downstream water quality and precipitation, low stream density, and little anoxic conditions, shallow water tables, slow integrity. These functions include storage of human alteration, hydrologic connectivity organic matter decomposition, wetland plant floodwater; retention and transformation of between prairie potholes and streams or communities, permeable soils, and complex nutrients, metals, and pesticides; and re- rivers is likely to be low. topography. charge of groundwater sources of river b. Unidirectional wetlands act as sinks and c. Riparian and floodplain areas can reduce baseflow. The functions and effects of this transformers for various pollutants, flood peaks by storing and desynchronizing diverse group of wetlands, hereafter referred especially nutrients, which pose a serious floodwaters. They also can contribute to to as ‘‘unidirectional wetlands,’’ clearly affect pollution problem in the United States. In maintenance of flow by recharging alluvial the condition of downstream waters if there one study, sewage wastewaters were applied aquifers. Many studies have documented the is a surface or shallow subsurface water to forested unidirectional wetlands in Florida ability of riparian and floodplain areas to connection to the river network. In for a period of 4.5 years. More than 95% of reduce flood pulses by storing excess water unidirectional wetlands that are not the phosphorus, nitrate, ammonium, and from streams and rivers. One review of connected to the river network through total nitrogen were removed by the wetland wetland studies reported that riparian surface or shallow subsurface water, the type during the study period, and 66–86% of the and degree of connectivity varies wetlands reduced or delayed floods in 23 of nitrate removed was attributed to the process geographically within a watershed and over 28 studies. For example, peak discharges of denitrification. In another study, sizeable time. Because such wetlands occur on a between upstream and downstream gauging phosphorus retention occurred in gradient of connectivity, it is difficult to stations on the Cache River in Arkansas were unidirectional marshes that comprised only generalize about their effects on downstream reduced 10–20% primarily due to floodplain 7% of the lower Lake Okeechobee basin area waters. This evaluation is further water storage. in Florida. A unidirectional bog in complicated because, for certain functions d. Riparian and floodplain areas store large Massachusetts was reported to sequester (e.g., sediment removal and water storage), amounts of sediment and organic matter from nearly 80% of nitrogen inputs from various downstream effects arise from wetland sources, including atmospheric deposition, upland areas before those sediments enter the isolation, rather than connectivity. The and prairie pothole wetlands in the upper stream. For example, riparian areas have literature reviewed does not provide Midwest were found to remove >80% of the been shown to filter 80–90% of sediments sufficient information to evaluate or nitrate load via denitrification. A large leaving agricultural fields in North Carolina. generalize about the degree of connectivity (A. Cooper, et al., ‘‘Riparian Areas as Filters (absolute or relative) or the downstream unidirectional prairie marsh was found to for Agricultural Sediment,’’ Soil Science effects of wetlands in unidirectional remove 86% of nitrate, 78% of ammonium, Society of America Proceedings 51:416–420 landscape settings. However, evaluations of and 20% of phosphate through assimilation (1987); R.B. Daniels, and J.G. Gilliam, connectivity of individual wetlands or and sedimentation, sorption, and other ‘‘Sediment and Chemical Load Reduction by groups of wetlands could be possible through mechanisms. Together, these and other Grass and Riparian Filters,’’ Soil Science case-by-case analysis. Further, while the studies indicate that on-site removal of Society of America Journal 60:246–251 review did not specifically address other nutrients by unidirectional wetlands is (1996); R.J. Naiman, and H. Decamps, ‘‘The unidirectional water bodies, the conclusions significant and geographically widespread. Ecology of Interfaces: Riparian Zones,’’ apply to these water bodies (e.g., ponds and The effects of this removal on rivers are Annual Review of Ecology and Systematics lakes that lack surface water inlets) as well, generally not reported in the literature. 28:621–658 (1997)). since the same principals govern hydrologic c. Biological connectivity can occur e. Ecosystem function within a river connectivity between these water bodies and between unidirectional wetlands and system is driven by interactions between the downstream waters. downstream waters through movement of physical environment and the diverse Key Findings: amphibians, aquatic seeds, biological communities living within the a. Water storage by wetlands well outside macroinvertebrates, reptiles, and mammals. river system. Movements of organisms of riparian or floodplain areas can affect Many species in those groups that use both connect aquatic habitats and populations in streamflow. Hydrologic models of prairie stream and wetland habitats are capable of different locations through several processes potholes in the Starkweather Coulee subbasin dispersal distances equal to or greater than important for the survival of individuals, (North Dakota) that drain to Devils Lake distances between many unidirectional populations, and species, and for the indicate that increasing the volume of wetlands and river networks. Unidirectional functioning of the river ecosystem. For pothole storage across the sub-basin by wetlands can be hydrologically connected example, lateral expansion and contraction of approximately 60% caused simulated total directly to river networks through channels, the river in its floodplain results in an annual streamflow to decrease 50% during a non-channelized surface flow, or subsurface exchange of matter and organisms, including series of dry years and 20% during wet years. flows. A wetland surrounded by uplands is fish populations that are adapted to use Similar simulation studies of watersheds that defined as ‘‘geographically isolated.’’ Our floodplain habitat for feeding and spawning feed the Red River of the North in North review found that in some cases, wetland during high water. Refuge populations of Dakota and Minnesota demonstrated types such as vernal pools and coastal aquatic plants in floodplains can become qualitatively comparable results, suggesting depressional wetlands are collectively, and important seed sources for the river network, that the ability of potholes to modulate incorrectly, referred to as geographically especially if catastrophic flooding scours streamflow may be widespread across isolated. Technically, the term vegetation and seed banks in other parts of portions of the prairie pothole region. This ‘‘geographically isolated’’ should be applied the channel. Many invertebrates exploit work also indicates that reducing wetland only to the particular wetlands within a type temporary hydrologic connections between water storage capacity by connecting or class that are completely surrounded by rivers and floodplain wetland habitats, formerly isolated potholes through ditching uplands. Furthermore, ‘‘geographic isolation’’ moving into these wetlands to feed, or drainage to the Devils Lake and Red River should not be confused with functional reproduce, or avoid harsh environmental basins could increase stormflow and isolation, because geographically isolated conditions and then returning to the river contribute to downstream flooding. In many wetlands can still have hydrological and network. Amphibians and aquatic reptiles in agricultural areas already crisscrossed by biological connections to downstream waters.

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d. Unidirectional wetlands occur along a physical, or biological entity, including, but Further, even geographically isolated gradient of hydrologic connectivity-isolation not limited to, water, heat energy, sediment, wetlands can be connected to other wetlands with respect to river networks, lakes, or wood, organic matter, nutrients, chemical and downstream waters through groundwater marine/estuarine water bodies. This gradient contaminants, and organisms, originate connections, occasional spillage, or includes, for example, wetlands that serve as outside of the river: They originate from biological connections. Thus, the term origins for stream channels that have either the upstream river network or other ‘‘geographically isolated’’ should not be used permanent surface water connections to the components of the river system, and then are to infer lack of hydrologic, chemical, or river network; wetlands with outlets to transported to the river by water movement biological connectivity. stream channels that discharge to deep or other mechanisms. Thus, the fundamental Lastly, to understand the health, behavior, groundwater aquifers; geographically isolated way in which streams and wetlands affect and sustainability of downstream waters, wetlands that have local groundwater or river structure and function is by altering effects of small water bodies in a watershed occasional surface water connections to fluxes of materials to the river. The control need to be considered in aggregate. The downstream waters; and geographically of material fluxes depends on two key contribution of material by a particular isolated wetlands that have minimal factors: (1) Functions within streams and stream and wetland might be small, but the hydrologic connection to other water bodies wetlands that affect material fluxes, and (2) aggregate contribution by an entire class of (but which could include surface and connectivity (or isolation) between streams streams and wetlands (e.g., all ephemeral subsurface connections to other wetlands). and wetlands and rivers that allows (or streams in the river network) might be The existence of this gradient among prevents) transport of materials between the substantial. For example, western vernal wetlands of the same type or in the same systems. pools typically occur within ‘‘vernal pool geographic region can make it difficult to Absence of channels does not, however, landscapes’’ or complexes of pools in which determine or generalize, from the literature mean that a wetland or open water is isolated swales connect pools to each other and to alone, the degree to which particular or only infrequently connected to seasonal streams, and in which the hydrology wetlands (individually or as classes), downstream waters. Areas that are and ecology are tightly coupled with the including geographically isolated wetlands, infrequently flooded by surface water can be local and regional geological processes that are hydrologically connected. connected more regularly through shallow formed them. The vernal pool basins, swales, e. A related issue is that spatial scale must groundwater or through dispersal among and seasonal streams are part of a single be considered when determining geographic biological populations and communities. surface water and shallow groundwater isolation. Individual wetlands that are Such wetlands and open waters also can system connected to the river network when geographically isolated could be connected to reduce flood peaks by storing flood waters, seasonal precipitation exceeds storage downstream waters when considered as a filter large amounts of sediment and capacity of the wetlands. Since rivers complex (a group of interacting wetlands). nutrients from upland areas, influence stream develop and respond over time and are This principle was demonstrated in a recent geomorphology by providing woody debris functions of the whole watershed, study that examined a depressional wetland and sediment, and regulate stream understanding the integration of complex on the Texas coastal plain. These temperature. They also serve as sources of contributions and effects over time is also wetlands have been considered as a type of food for river biota and sources of genetic necessary to have an accurate understanding geographically isolated wetlands. diversity for populations of stream of the system, taking into account the Collectively, however, they are invertebrates. duration and frequency of material export geographically and hydrologically connected Unidirectional wetlands can reduce and and delivery to downstream waters. In to downstream waters in the area. During an attenuate floods through water storage, and addition, when considering the effect of an almost 4-year study period, nearly 20% of the can recharge groundwater, thereby individual stream or wetland, it is important precipitation that fell on the wetland contributing to stream and river baseflow. to include the cumulative effect of all complex flowed as surface runoff through an These wetlands also affect nutrient delivery materials that originate from it, rather than intermittent stream to a nearby waterway, the and improve water quality by functioning as each material individually, to understand Armand Bayou. Thus, wetland complexes sources of food and as sinks for metals, that water body’s influence on downstream could have connections to downstream pesticides, excess nutrients. Biological waters. waters through stream channels even when connectivity can also occur between Part II: Additional Scientific Support the individual wetland components are unidirectional wetlands and downstream geographically isolated. waters, through movement of amphibians, i. Tributaries 3. Closing Comments aquatic insects, aquatic reptiles, migratory The agencies propose that all waters that The strong hydrologic connectivity of river birds, and riverine mammals that require or meet the proposed definition of tributary are networks is apparent in the existence of opportunistically use both river and wetland ‘‘waters of the United States’’ because they stream channels that form the physical or open water habitats. However, given a meet Justice Kennedy’s test for jurisdiction structure of the network itself. Given the geographically isolated wetland for which a under Rapanos. In other words, the agencies discussion above, it is clear that streams and surface water connection cannot be observed, are asserting that all tributaries have a rivers are much more than a system of it is difficult to assess its degree of significant nexus with traditional navigable physical channels for conveying water and connectivity with the river network without waters, interstate waters, and/or the other materials downstream, but the presence site-specific data. territorial seas. EPA and the Corps’ of physical channels is one strong line of Additionally, caution should be used in longstanding definition of ‘‘waters of the evidence for surface water connections from interpreting connectivity for wetlands based United States’’ has included tributaries. That tributaries, or water bodies of other types, to on their being designated as ‘‘geographically regulation was based on the agencies’ historic downstream waters. Physical channels are isolated’’ since (a) the term can be mistakenly view of the scope of the CWA and the general defined by continuous bed and bank applied to a heterogeneous group of wetlands scientific understanding about the ecological structures, which may include apparent that can include wetlands that are not and hydrological relationship between disruptions (such as by bedrock outcrops, geographically isolated, (b) wetlands with waters. braided channels, flow-through wetlands) permanent channels could be miscategorized Tributaries have a substantial impact on associated with changes in the material and as geographically isolated if the designation the chemical, physical, or biological integrity gradient over and through which water flows. is based on maps or imagery with inadequate of waters into which they eventually flow— The continuation of bed and banks down spatial resolution, obscured views, etc., and including traditional navigable waters, gradient from such disruptions is evidence of (c) wetland complexes could have interstate waters, and the territorial seas. The the surface connection with the channel that connections to downstream waters through great majority of tributaries are headwater is up gradient of the perceived disruption. stream channels even if individual wetlands streams, and whether they are perennial, The structure and function of rivers are within the complex are geographically intermittent, or ephemeral, they play an highly dependent on the constituent isolated. Thus, the term ‘‘geographically important role in the transport of water, materials that are stored in and transported isolated’’ should only be applied to groups of sediments, organic matter, pollutants, through them. Most of these materials, wetlands if they fit the technical definition nutrients, and organisms to downstream broadly defined here as any chemical, (i.e., they are surrounded by uplands). environments. Tributaries serve to store

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water (thereby reducing flooding), provide downstream waters by dispersal and contributions of tributaries to river flows are biogeochemical functions that help maintain migration, processes which have critical often readily measured or observed, water quality, trap and transport sediments, implications for aquatic populations of especially immediately below confluences, transport, store and modify pollutants, organisms that use both headwater and river where tributary flows increase the flow provide habitat for plants and animals, and or open water habitats to complete their life volume and alter physical conditions, such sustain the biological productivity of cycles or maintain viable populations. The as water temperature, in the main stream. downstream rivers, lakes and estuaries. scientific literature clearly demonstrates that The physical effects of tributaries are These conclusions are strongly supported in cumulatively, streams exert strong influence particularly clear after intense rainfall occurs the scientific literature, as discussed below. on the character and functioning of rivers. In over only the upper tributary reaches of a Headwater streams are the smallest light of these well documented connections river network. For example, a study of channels where stream flows begin, and often and functions, the agencies concluded that ephemeral tributaries to the Rio Grande in occur at the outer rims of a watershed. tributaries, as defined, alone or in New Mexico found that after a storm event Typically these are first-order streams (i.e., combination with other tributaries in a contributions of the stormflow from they do not have any other streams flowing watershed, significantly affect the chemical, ephemeral tributaries accounted for 76% of into them). However, headwater streams can physical, or biological integrity of a the flow of the Rio Grande. See, e.g., id. at include streams with multiple tributaries traditional navigable water, interstate water, 4–5 (citing E.R. Vivoni, et. al., ‘‘Analysis of flowing into them and can be perennial, or the territorial seas. The scientific literature a Monsoon Flood Event in an Ephemeral intermittent or ephemeral, but are still supports this conclusion for ephemeral Tributary and Its Downstream Hydrologic located near the channel origins of the tributaries, as well as for intermittent and Effects,’’ Water Resources Research tributary system in a watershed. perennial tributaries; for tributaries both near 42:W03404 (2006)). A key effect of tributaries Protection of tributaries under the CWA is to and far from the downstream traditional on the hydrologic response of river networks critically important because they serve many navigable water, interstate water, or the to storm events is dispersion, or the important functions which directly influence territorial seas; and for natural tributaries or spreading of water output from a drainage the integrity of downstream waters. It is man-altered tributaries, which may include basin over time. Hydrologic dispersion of necessary to regulate the entire tributary certain ditches and canals. connected tributaries influence the timing system to fulfill the objective of the CWA, The discussion below summarizes the key and volume of water reaching a river network because discharges of pollutants into the points in the literature regarding the outlet. See, e.g., id. at 4–5 to 4–6 (citing P. tributary system adversely affect the chemical, physical, and biological M. Saco and P. Kumar, ‘‘Kinematic chemical, physical, or biological integrity of connections and functions of tributaries that dispersion in stream networks coupling these waters. For example, destruction or significantly affect downstream waters. In hydraulics and network geometry,’’ Water modification of headwater streams has been addition, the evidence regarding headwater Resources Research 38:1244 (2002)). shown to affect the integrity of downstream streams and non-perennial streams, types of Tributaries also can reduce the amount of waters, in part through changes in hydrology, tributaries whose important functional water that reaches downstream rivers and chemistry and stream biota. M.C. Freeman, et relationships to downstream traditional minimize downstream flooding, often al., ‘‘Hydrologic Connectivity and the navigable waters and interstate waters might through infiltration or seepage through Contribution of Stream Headwaters to not be obvious, is summarized. The scientific channel beds and banks or through Ecological Integrity at Regional Scales,’’ literature does not use legal terms like evapotranspiration. See, e.g., id. at 4–8 (citing Journal of the American Water Resources ‘‘traditional navigable water,’’ ‘‘interstate S.K. Hamilton, et al., ‘‘Persistence of Aquatic Association 43:5–14. (2007); M.S. Wipfli., et water,’’ or ‘‘the territorial seas.’’ Rather, the Refugia between Flow Pulses in a Dryland al., ‘‘Ecological Linkages between literature assesses tributaries in terms of their River System (Cooper Creek, Australia),’’ Headwaters and Downstream Ecosystems: connections to and effects on downstream Limnology and Oceanography 50:743–754 Transport of Organic Matter, Invertebrates, waters in a watershed. While the agencies (2005); J.F. Costelloe, et.al., ‘‘Determining and Wood Down Headwater Channels,’’ define as ‘‘waters of the United States’’ Loss Characteristics of Arid Zone River Journal of the American Water Resources tributaries only in watersheds which drain to Waterbodies,’’ River Research and Association 43:72–85 (2007). Additionally, a traditional navigable water, interstate Applications 23:715–731 (2007)). activities such as discharging a pollutant into water, or the territorial seas, that distinction One of the primary functions of tributaries one part of the tributary system are well- does not affect the conclusions of the is transporting sediment to downstream documented to affect, at times, other parts of scientific literature with respect to the effects waters. Tributaries, particularly headwaters, the system, even when the point of discharge of tributaries on downstream waters. shape and maintain river channels by is far upstream from the navigable water that B. Tributaries Significantly Affect the accumulating and gradually or episodically experiences the effect of the discharge. In Physical Integrity of (a)(1) Through (a)(3) releasing sediment and large woody debris order to protect traditional navigable waters, Waters into river channels. Sediment transport is interstate waters, and the territorial seas it is also clearly provided by ephemeral streams. also critically important to protect tributaries Tributaries, even when seasonally dry, are the dominant source of water in most rivers, Effects of the releases of sediment and large as defined in today’s proposal that are woody debris are especially evident at upstream from those waters. rather than direct precipitation or groundwater input to main stem river tributary-river confluences, where A. The Agencies Have Concluded That segments. See, e.g., Report at 4–3 (citing T.C. discontinuities in flow regime and Tributaries, as Defined in the Proposed Rule, Winter, 2007, ‘‘The role of groundwater in temperature clearly demonstrate physical Have a Significant Nexus generating streamflow in headwater areas alteration of river structure and function by The scientific literature documents that and in maintaining base flow,’’ Journal of the headwater streams. Report at 4–10, 4–14. tributary streams, including perennial, American Water Resources Association Sediment movement is critical for intermittent, and ephemeral streams, and 43:15–25; P.A. Bukaveckas, ‘‘Rivers,’’ in G.E. maintaining the river network, including certain categories of ditches are integral parts Likens, ed., Encyclopedia of Inland Waters, rivers that are considered to be traditional of river networks because they are directly Vol. 1 (Elsevier: Oxford, 2009)). Distant navigable waters, as fluvial (produced by the connected to rivers via permanent surface headwaters with stronger connections to action of a river or stream) sediments are features (channels and associated alluvial groundwater or consistently higher eroded from some channel segments, and deposits) that concentrate, mix, transform, precipitation levels than downstream reaches deposited in others downstream to form and transport water and other materials, contribute more water to downstream rivers. channel features, stream and riparian habitat including food resources, downstream. In the northeastern United States headwater which supports the biological communities Tributaries transport, and often transform, streams contribute greater than 60% of the resident downstream, and influence the river chemical elements and compounds, such as water volume in larger tributaries, including hydrodynamics. See, e.g., J.L. Florsheim, et nutrients, ions, dissolved and particulate navigable rivers. See, e.g., id. (citing R.B. al., ‘‘Bank Erosion as a Desirable Attribute of organic matter and contaminants, influencing Alexander, et. al., ‘‘The role of headwater Rivers,’’ Bioscience 58:519–29 (2008); Report water quality, sediment deposition, nutrient streams in downstream water quality,’’ at 4–9 (citing M. Church, ‘‘Bed material availability, and biotic functions in rivers. Journal of the American Water Resources transport and the morphology of alluvial Streams also are biologically connected to Association 43:41–59 (2007)). The river channels,’’ Annual Review of Earth and

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Planetary Sciences: 325–354 (2006)). While al., ed., River Confluences, Tributaries and organic carbon that is exported downstream essential to river systems, too much sediment the Fluvial Network, (Chichester, UK: John thus supports biological activity (including can impair ecological integrity by filling Wiley & Sons, 2008), pp. 209–242)). In metabolism) throughout the river network. interstitial spaces, blocking sunlight particular, tributaries provide both cold and See, e.g., Report at 4–22 (citing S.G. Fisher transmission through the water column, and warm water refuge habitats that are critical and G.E. Likens, ‘‘Energy Flow in Bear Brook, increasing contaminant and nutrient for protecting aquatic life. Id. at 4–32. New Hampshire: An Integrative Approach to concentrations. Report at 4–9 (citing P.J. Because headwater tributaries often depend Stream Ecosystem Metabolism,’’ Ecological Wood and P.D. Armitage, ‘‘Biological Effects on groundwater inputs, temperatures in these Monographs 43: 421–439 (1973); J.L. Meyer, of Fine Sediment in the Lotic Environment,’’ systems tend to be warmer in the winter ‘‘The Microbial Loop in Flowing Waters,’’ Environmental Management 21:203–217 (when groundwater is warmer than ambient Microbial Ecology 28:195–199 (1994); J.B. (1997)). Over sedimentation thus can reduce temperatures) and colder in the summer Wallace, et al. ‘‘Multiple Trophic Levels of a photosynthesis and primary productivity (when groundwater is colder than ambient Forest Stream Linked to Terrestrial Litter within the stream network and otherwise temperatures) relative to downstream waters. Inputs,’’ Science 277:102–104 (1997); R.O. have harmful effects on downstream biota, Id. (citing G. Power, et al., ‘‘Groundwater and Hall and J.L. Meyer, ‘‘The Trophic including on the health and abundance of Fish: Insights from Northern North America,’’ Significance of Bacteria in a Detritus-Based fish, aquatic macrophytes (plants), and Hydrological Processes 13:401–422 (1999)). Stream Food Web,’’ Ecology 79:1995–2012 aquatic macroinvertebrates that inhabit Thus tributaries provide organisms with both (1998); R.O. Hall, et al., ‘‘Organic Matter downstream waters. See, e.g., Wood and warm water and coldwater refuges at Flow in Stream Food Webs with Reduced Armitage 1997. Headwater streams tend to different times of the year. Id. (citing R.A. Detrital Resource Base,’’ Ecology 81:3445– trap and store sediments behind large Curry, et al., ‘‘Use of Small Streams by Young 3463 (2000); C. Augspurger, et al., ‘‘Tracking structures, such as boulders and trees, that Brook Trout Spawned in a Lake,’’ Carbon Flow in a 2-Week-Old and 6-Week- are transported downstream only during Transactions of the American Fisheries Old Stream Biofilm Food Web,’’ Limnology infrequent large storm events. See Report at Society 126:77–83 (1997); C.V. Baxter, and and Oceanography 53:642–650 (2008)). 4–10, 4–12 (citing L.E. Benda, and T.W. F.R. Hauer, ‘‘Geomorphology, Hyporheic Much or most of the organic carbon that is Cundy, ‘‘Predicting deposition of debris Exchange and Selection of Spawning Habitat exported from tributaries has been altered flows in mountain channels,’’ Canadian by Bull Trout (Salvelinus confluentus),’’ either physically or chemically by ecosystem Geotechnical Journal 27:409–417 (1990); T. Canadian Journal of Fisheries and Aquatic processes within the tributary streams, Gomi and R.C. Sidle, ‘‘Bed load transport in Sciences 57: 1470–1481 (2000); T.R. Labbe, particularly by headwater streams. managed steep-gradient headwater streams of and K.D. Fausch, ‘‘Dynamics of Intermittent Nutrient export from tributaries has a large southeastern Alaska,’’ Water Resources Stream Habitat Regulate Persistence of a effect on downstream water quality, as excess Research 39:1336 (2003); L.E. Benda, et al., Threatened Fish at Multiple Scales,’’ nutrients from surface runoff from lawns and ‘‘Geomorphology of steepland headwaters: Ecological Applications 10:1774–1791 agricultural fields can cause algal blooms that The transition from hillslopes to channels,’’ (2000); M.J. Bradford, et al., ‘‘Ecology of reduce dissolved oxygen levels and increase Journal of the American Water Resources Juvenile Chinook Salmon in a Small Non- turbidity in rivers, lakes, estuaries, and Association 41:835–851 (2005); P.E. Bigelow, natal Stream of the Yukon River Drainage territorial seas. Water low in dissolved et al., ‘‘On Debris Flows, River networks, and and the Role of Ice Conditions on Their oxygen cannot support aquatic life; it is the Spatial Structure of Channel Distribution and Survival,’’ Canadian Journal widely-recognized that this phenomenon has Morphology,’’ Forest Science 53:220–238 of Zoology-Revue Canadienne De Zoologie resulted in the devastation of commercial (2007); J.P.R. Gooderham, et al., ‘‘Upstream 79:2043–2054 (2001)). For example, when and recreational fisheries in the northern Heterogeneous Zones: Small Stream Systems temperature conditions in downstream Gulf of Mexico. Committee on Environment Structured by a Lack of Competence?’’ waters are adverse, fish can travel upstream and Natural Resources, Integrated Journal of the North American Benthological and use tributaries as refuge habitat. Id. Assessment of Hypoxia in the Northern Gulf Society 26:365–374 (2007)). (citing Curry et al. 1997; M.A. Cairns, et al., of Mexico (Washington, DC: National Science Tributaries can greatly influence water ‘‘Influence of Summer Stream Temperatures and Technology Council, 2000). The amount temperatures in tributary networks. This is on Black Spot Infestation of Juvenile Coho of nitrogen that is exported downstream important because water temperature is a Salmon in the Oregon Coast Range,’’ varies depending on stream size, and how critical factor governing the distribution and Transactions of the American Fisheries much nitrogen is present in the system. growth of aquatic life, both directly (through Society 134:1471–1479 (2005)). Tributaries Nitrogen loss is greater in smaller, shallow its effects on organisms) and indirectly also help buffer temperatures in downstream streams, most likely because denitrification (through its effects on other physiochemical waters. Id. at 4–13 to 4–14 (citing D. Caissie, and settling of nitrogen particles occur at properties, such as dissolved oxygen and ‘‘The thermal regime of rivers: A review,’’ slower rates in deeper channels. Report at 4– suspended solids). Id. at 4–13 (citing J.D. Freshwater Biology 51:1389–1406 (2006). 16 (citing R.G. Alexander, et al., ‘‘Effect of Temperatures in tributaries affect Allan, Stream Ecology—Structure and Stream Channel Size on the Delivery of downstream water temperature many Function of Running Waters (New York, NY: Nitrogen to the Gulf of Mexico,’’ Nature kilometers away. Id. at 4–14 (citing B. Chapman & Hall, 1995)). For instance, water 403:758–761 (2000)). At low loading rates, Gardner, and P.J. Sullivan, ‘‘Spatial and temperature controls metabolism and level of the biotic removal of dissolved nitrogen from Temporal Stream Temperature Prediction: activity in cold-blooded species like fish, water is high and occurs primarily in small Modeling Nonstationary Temporal amphibians, and aquatic invertebrates. See, tributaries, reducing the loading to larger Covariance Structures,’’ Water Resources e.g., G.G. Ice, ‘‘Chapter 3: Stream tributaries and rivers downstream. At high Research 40:W01102 doi (2004); B.R. Temperature and Dissolved Oxygen,’’ in J.D. nitrogen loading rates, tributaries become Johnson, et al., ‘‘Use of Spatially Explicit nitrogen saturated and are not effectively able Stednick, ed., Hydrologic and Biological Physicochemical Data to Measure to remove nitrogen, resulting in high nitrogen Responses to Forest Practices (Springer, Downstream Impacts of Headwater Stream export to rivers. Id. at 4–18 (citing P.J. 2008). Temperature can also control the Disturbance,’’ Water Resources Research Mulholland, et al., ‘‘Stream Denitrification amount of dissolved oxygen in streams, as 46:W09526 (2010)). colder water holds more dissolved oxygen, across Biomes and Its Response to which fish and other fauna need to breathe. C. Tributaries Significantly Affect the Anthropogenic Nitrate Loading,’’ Nature Connections between tributaries and Chemical Integrity of (a)(1) Through (a)(3) 452:202–205 (2008)). The transport of downstream rivers can affect water Waters nitrogen and phosphorus downstream has temperature in river networks. See, e.g., Tributaries transform and export also been well-documented, particularly in Report at 4–13 (citing S. Knispel, and E. significant amounts of nutrients and carbon the cases of the Gulf of Mexico and the Castella, ‘‘Disruption of a Longitudinal to downstream waters, serving important Chesapeake Bay. Tributary streams in the Pattern in Environmental Factors and source functions that greatly influence the uppermost portions of the Gulf and Bay Benthic Fauna by a Glacial Tributary,’’ chemical integrity of downstream waters. watersheds transport the majority of Freshwater Biology 48:604–618 (2003); S.P. Organic carbon, in both dissolved and nutrients to the downstream waters; an Rice, et al., ‘‘The Ecological Importance of particulate forms, exported from tributaries is estimated 85% of nitrogen arriving at the Tributaries and Confluences,’’ in S.P. Rice, et consumed by downstream organisms. The hypoxic zone in the Gulf originates in the

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upper Mississippi (north of Cairo, Illinois) (i.e. increases moving downstream). Id. at 4– beneficial to downstream chemical integrity and the Ohio River Basins. D. Goolsby, et al., 20 (citing J.L Merriam, et al., ‘‘Characterizing where phosphorus sorbs to contaminants Topic Report 3, Flux and Sources of Nitrogen Dynamics, Retention and Transport such as metal hydroxide precipitates. Id. Nutrients in the Mississippi-Atchafalaya in a Tropical Rainforest Stream Using an in (citing J.A. Simmons, ‘‘Phosphorus Removal River Basin (Washington, DC: National situ N–15 Addition,’’ Freshwater Biology by Sediment in Streams Contaminated with Science and Technology Council Committee 47:143–160 (2002); M.R. Whiles, and W.K. Acid Mine Drainage,’’ Water Air and Soil on Environment and Natural Resources, Dodds, ‘‘Relationships between Stream Size, Pollution 209:123–132 (2010)). 1999). The export of nutrients from streams Suspended Particles, and Filter-Feeding Tributaries also store significant amounts in the Mississippi River Basin has an effect Macroinvertebrates in a Great Plains Drainage of nutrients and carbon, functioning as on anoxia, or low oxygen levels, in the Gulf. Network,’’ Journal of Environmental Quality important sinks (lags) for river networks so Report at 4–17 (citing N.N. Rabalais, et al., 31:1589–1600 (2002); R.O. Hall, et al., that they do not reach downstream ‘‘Gulf of Mexico Hypoxia, a.k.a. ‘the Dead ‘‘Hydrologic Control of Nitrogen Removal, traditional navigable waters, interstate Zone,’ ’’ Annual Review of Ecology and Storage, and Export in a Mountain Stream,’’ waters, or the territorial seas. Small tributary Systematics 33:235–263 (2002)). Similarly, Limnology and Oceanography 54:2128–2142 streams in particular often have the greatest nutrient loads from virtually the entire (2009)). Headwater streams have seasonal effect on downstream water quality, in terms 64,000 square mile watershed affect water cycles in the concentrations of phosphorous of storage and reducing inputs to quality in the Chesapeake Bay. Simulation and nitrogen that are delivered downstream downstream waters. For instance, uptake and tools have been used to determine the by accumulating nutrient derived from transformation of inorganic nitrogen often nutrient and sediment load reductions that temporarily growing streambed biomass. Id. occurs most rapidly in the smallest must be made at many different points (citing P.J. Mulholland, and W.R. Hill, tributaries. See, e.g., id. at 4–18 (citing B.J. throughout the entire watershed in order to ‘‘Seasonal Patterns in Streamwater Nutrient Peterson, et al., ‘‘Control of Nitrogen Export achieve acceptable water quality in the and Dissolved Organic Carbon from Watersheds by Headwater Streams,’’ mainstem of the Bay. These reductions Concentrations: Separating Catchment Flow Science 292:86–90 (2001)). Small tributaries included specific annual nitrogen caps on the Path and In-Stream Effects,’’ Water Resources affect the downstream delivery of nutrients upper reaches of the Susquehanna River in Research 33:1297–1306 (1997); P.J. such as phosphorus through abiotic New York State, more than 400 miles from Mulholland, ‘‘The Importance of In-stream processes; such streams can reduce the mouth of the Chesapeake Bay. See e.g., Uptake for Regulating Stream Concentrations phosphorus concentrations by sorption to U.S. Environmental Protection Agency (EPA), and Outputs of N and P from a Forested stream sediments. Region III, Chesapeake Bay Program Office, Watershed: Evidence from Long-Term Tributaries can also serve as a temporary Setting and Allocating the Chesapeake Bay Chemistry Records for Walker Branch or permanent source or sink for Basin Nutrient and Sediment Loads: The Watershed,’’ Biogeochemistry 70:403–426 contaminants, for instance substances like Collaborative Process, Technical Tools and (2004)). Such variations have been metals, sodium, and even dead fish carcasses Innovative Approaches, EPA 903–R–03–007 demonstrated to affect downstream that adversely affect organisms when (Washington, DC: EPA, 2003); Rabalais et al. productivity. Id. (citing P.J. Mulholland, et occurring at excessive or elevated 2002. al., ‘‘Longitudinal Patterns of Nutrient concentrations to reduce the amounts that Although tributaries export nutrients, Cycling and Periphyton Characteristics in reach downstream traditional navigable carbon, and contaminants downstream, they Streams: a Test of Upstream-Downstream waters, interstate waters, or the territorial also transform these substances. Phosphorous Linkage,’’ Journal of the North American seas. The transport of contaminants to and nitrogen arrive at downstream waters Benthological Society 14:357–370 (1995)). downstream waters can impact water quality having already been cycled, or taken up and Nitrification, the microbial transformation of downstream, if they are not stored in transformed by living organisms, many times ammonium to nitrate, affects the form of tributaries. See, e.g., id. at 4–26 (citing X. in headwater and smaller tributaries. Report downstream nutrient delivery. Nitrification Wang, et al., ‘‘Water Quality Changes as a at 4–19 to 4–20, 6–3 to 6–4 (citing J.R. occurs naturally in undisturbed headwater Result of Coalbed Methane Development in Webster, and B.C. Patten, ‘‘Effects of streams, but increases sharply in response to a Rocky Mountain Watershed,’’ Journal of the watershed perturbation on stream potassium ammonium inputs, thereby reducing American Water Resources Association and calcium dynamics,’’ Ecological potential ammonium toxicity from pollutant 43:1383–1399 (2007)). Tributaries can also Monographs 49:51–72 (1979); J.D. Newbold, inputs. Id. (citing Newbold, et al., serve as at least a temporary sink for et al., ‘‘Measuring nutrient spiraling in ‘‘Phosphorus Dynamics in a Woodland contaminants that would otherwise impair streams,’’ Canadian Journal of Fisheries and Stream Ecosystem: a Study of Nutrient downstream water quality. See, e.g., id. at Aquatic Sciences 38:860–863 (1981); J. Spiraling,’’ Ecology 64:1249–1265 (1983); 133–134 (citing W.L. Graf, Plutonium and the Elwood, et al., ‘‘Resource spiraling: An S.C. Chapra, Surface Water Quality Modeling Rio Grande: Environmental Change and operational paradigm for analyzing lotic (McGraw-Hill, 1996); E.S. Bernhardt, et al., Contamination in the Nuclear Age (New ecosystems,’’ in T.D. Fontaine and S.M. ‘‘Whole-system Estimates of Nitrification and York: Oxford University Press, 1994)). Bartell, ed., Dynamics of Lotic Ecosystems Nitrate Uptake in Streams of the Hubbard The distances and extent of metal (Ann Arbor, MI: Ann Arbor Science, 1983), Brook Experimental Forest,’’ Ecosystems contaminant transport was shown in separate pp. 3–23; S.H. Ensign, and M.W. Doyle, 5:419–430 (2002)). Denitrification, the studies in the upper Arkansas River in ‘‘Nutrient Spiraling in Streams and River removal of nitrate from streamwater through Colorado, and Clark Fork River in Montana, Networks,’’ Journal of Geophysical Research- transformation to atmospheric nitrogen, is where past mining activities impacted the Biogeosciences 111:G04009 (2006)). In widespread among headwater streams; headwater tributaries. River bed sediments addition, some of the nutrient that is taken research indicates that small, unimpacted showed that metals originating from the up as readily available inorganic forms is tributaries can reduce up to 40% of mining and smelting areas in the headwaters released back to the water as organic forms downstream nitrogen delivery through were reaching water bodies up to 550 km that are less available for biotic uptake. Id. at denitrification. Id. at 4–20 to 4–21 (citing P.J. downstream. Id. at 4–26 to 4–27 (citing E.V. 4–20 (citing P.J. Mulholland, et al., Mulholland, et al., ‘‘Stream Denitrification Axtmann, and S.N. Luoma, ‘‘Large-scale ‘‘Production of Soluble, High Molecular across Biomes and Its Response to Distribution of Metal Contamination in the Weight Phosphorus and Its Subsequent Anthropogenic Nitrate Loading,’’ Nature Fine-grained Sediments of the Clark Fork Uptake by Stream Detritus,’’ Verhandlungen 452:202–205 (2008)). Small tributaries also River, Montana, USA,’’ Applied des Internationalen Verein Limnologie affect the downstream delivery of nutrients Geochemistry 6:75–88 (1991); B.A. Kimball, 23:1190–1197 (1988); S.P. Seitzinger, et al., through abiotic processes. Streams can et al., ‘‘Effects of Colloids on Metal Transport ‘‘Bioavailability of DON from Natural and reduce phosphorus concentrations through in a River Receiving Acid Mine Drainage, Anthropogenic Sources to Estuarine sorption (i.e., ‘‘sticking’’) to stream Upper Arkansas River, Colorado, USA,’’ Plankton,’’ Limnology and Oceanography sediments. Id. at 4–21 (citing J.L. Meyer, Applied Geochemistry 10:285–306 (1995)). 47:353–366 (2002)). Similarly, nutrient ‘‘The Role of Sediments and Bryophytes in Military studies of the distribution, incorporated into particulates is not entirely Phosphorus Dynamics in a Headwater Stream transport, and storage of radionuclides (e.g., regenerated, but accumulates in Ecosystem,’’ Limnology and Oceanography plutonium, thorium, uranium) have provided longitudinally increasing particulate loads 24:365–375 (1979)). This is particularly convincing evidence for distant chemical

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connectivity in river networks because the on the Distribution and Relative Abundance Habitat,’’ Bioscience 59:573–583 (2009); C.D. natural occurrence of radionuclides is of the Alien Amphipod, Echinogammarus Anderson, ‘‘Considering spatial and temporal extremely rare. From 1942 to 1952, prior to berilloni (Catta, 1878) in a Karstic Stream scale in landscape-genetic studies of gene the full understanding of the risks of System (Westphalia, Germany),’’ Crustaceana flow,’’ Molecular Ecology 19:3565–3575 radionuclides to human health and the 77:909–922 (2004); A.D. Huryn et al., (2010)). environment, plutonium dissolved in acid ‘‘Landscape Heterogeneity and the D. Headwater Tributaries Significantly Affect was discharged untreated into several Biodiversity of Arctic Stream Communities: the Chemical, Physical, or Biological intermittent headwater streams that flow into A Habitat Template Analysis,’’ Canadian Integrity of (a)(1) Through (a)(3) Waters the Rio Grande at the Los Alamos National Journal of Fisheries and Aquatic Sciences Laboratory, New Mexico. Id. at 4–28 (citing 62:1905–1919 (2005)). Use of tributaries by As discussed above, the scientific literature W.L. Graf, Plutonium and the Rio Grande: salmon and other anadromous fish for supports the conclusion that tributaries, Environmental Change and Contamination in spawning is well-documented, but even non- including headwater streams, have a the Nuclear Age (New York: Oxford migratory species can travel great distances significant nexus to downstream waters University Press, 1994); S.L. Reneau, et al., within the river and tributary networks. See, based on their contribution to the chemical, ‘‘Geomorphic Controls on Contaminant e.g., id. at 4–31 (citing O.T. Gorman, physical, or biological integrity of (a)(1) Distribution along an Ephemeral Stream,’’ ‘‘Assemblage Organization of Stream Fishes: through (a)(3) waters. Headwater tributaries, Earth Surface Processes and Landforms The Effects of Rivers on Adventitious the small streams at the uppermost reaches 29:1209–1223 (2004)). Also during this time, Streams,’’ American Naturalist 128(4): 611– of the tributary network, are the most nuclear weapons testing occurred west of the 616 (1986); A. L. Sheldon, ‘‘Conservation of abundant streams in the United States. See, upper Rio Grande near Socorro, New Mexico Stream Fishes: Patterns of Diversity, Rarity, e.g., id. at 4–2 (citing T.L. Nadeau and M.C. (Trinity blast site) and in Nevada, where and Risk,’’ Conservation Biology 2:149–156 Rains, ‘‘Hydrological connectivity between fallout occurred on mountainous areas with (1988); N.P. Hitt and P.L. Angermeier, headwater streams and downstream waters: thin soils that are readily transported to ‘‘Evidence for Fish Dispersal from Spatial How science can inform policy,’’ Journal of headwater streams in the upper Rio Grande Analysis of Stream Network Topology,’’ the American Water Resources Association basin. The distribution of plutonium within Journal of the North American Benthological 43:118–133 (2007)). Collectively, they help the Rio Grande illustrates how headwater Society 27:304–320 (2008)). Tributaries also shape the chemical, physical, and biological integrity of downstream waters, and provide streams transport and store contaminated serve as an important source of food for biota many of the same functions as non- sediment that has entered the basin through in downstream rivers. Tributaries export headwater streams. See, e.g., id. at 1–7 to 1– fallout and from direct discharge. Los Alamos plankton, vegetation, fish eggs, insects, 8, 4–1. For example, headwater streams Canyon, while only representing 0.4% of the invertebrates like worms or crayfish, smaller reduce the amount of sediment delivered to drainage area at its confluence with the Rio fish that originate in upstream tributaries and downstream waters by trapping sediment Grande, had a mean annual bedload other food sources that drift downstream to from water and runoff. See, e.g., M. Dieterich contribution of plutonium almost seven be consumed by other animals. See, e.g., id. and N.H. Anderson, ‘‘Dynamics of Abiotic times that of the mainstem. Id. (citing Graf at 4–29 (citing D.J. Progar and A.R. Modenke, Parameters, Solute Removal and Sediment 1994). Much of the bedload contribution ‘‘Insect Production from Temporary and occurred sporadically during intense storms Retention in Summer-Dry Headwater Stream Perennially Flowing Headwater Streams in of Western Oregon,’’ Hydrobiologia 379: 1–15 that were out of phase with flooding on the Western Oregon,’’ Journal of Freshwater upper Rio Grande. Total estimated (1998). Headwater streams shape river Ecology 17:391–407 (2002)). For example, channels by accumulating and gradually or contributions of plutonium between the two many fish feed on drifting insects, and sources to the Rio Grande were episodically releasing sediment and large numerous studies document the downstream woody debris into river channels. They are approximately 90% from fallout to the drift of stream invertebrates that then are landscape and 10% from direct effluent also responsible for most nutrient cycling eaten by fish in larger rivers. See, e.g., id. at and removal, and thus transforming and discharge at Los Alamos National Laboratory. 4–29 to 4–30 (citing S. Nakano and M. Id. (citing Graf 1994). changing the amount of nutrients delivered Murakami, ‘‘Reciprocal Subsidies: Dynamic to downstream waters. See, e.g., Report at 4– C. Tributaries Significantly Affect the Interdependence between Terrestrial and 18 (citing B.J. Peterson, et al., ‘‘Control of Biological Integrity of (a)(1) Through (a)(3) Aquatic Food Webs,’’ Proceedings of the Nitrogen Export from Watersheds by Waters National Academy of Sciences USA 98:166– Headwater Streams,’’ Science 292: 86–90 Tributaries are biologically linked to 170 (2001); M.S. Wipfli and D.P. Gregovich, (2001)). A close connection exists between downstream waters through the movement of ‘‘Export of Invertebrates and Detritus from the water quality of these streams and the living organisms or their reproductive Fishless Headwater Streams in Southeastern water quality of traditional navigable waters, propagules, such as eggs or seeds. For Alaska: Implications for Downstream interstate waters, and the territorial seas. See, organisms that drift with water flow, Salmonid Production,’’ Freshwater Biology e.g., State of Ohio Environmental Protection biological connections depend on 47:957–969 (2002)). Agency, Nonpoint Source Impacts on hydrological connections. However, many Biological connectivity also allows gene Primary Headwater Streams (Columbus, OH: aquatic organisms are capable of active flow, or genetic connectivity, among tributary Ohio Environmental Protection Agency, movement with or against water flow, and and river populations. Gene flow is needed 2003). Activities such as discharging a others disperse actively or passively over to maintain genetic diversity in a species, a pollutant into one part of the tributary system land by walking, flying, drifting, or basic requirement for that species to be able are well-documented to affect other parts of ‘‘hitchhiking.’’ All of these different types of to adapt to environmental change. the system, even when the point of discharge movement form the basis of biological Populations connected by gene flow have a is far upstream from the navigable water that connectivity between headwater tributaries larger breeding population size, making them experiences the effect of the discharge. See, and downstream waters. less prone to the deleterious effects of e.g., F.M. Dunnivant and E. Anders, A Basic Headwater tributaries increase the amount inbreeding and local extinction. Id. at 4–33 Introduction To Pollutant Fate and and quality of habitat available to aquatic (citing R. Lande and S. Shannon, ‘‘The role Transport: An Integrated Approach With organisms. Under adverse conditions, small of genetic variation in adaptation and Chemistry, Modeling, Risk Assessment, and tributaries provide safe refuge, allowing population persistence in a changing Environmental Legislation (Hoboken, NJ: organisms to persist and recolonize environment,’’ Evolution 50:434–437 (1996)). John Wiley & Sons, Inc., 2006). downstream areas once adverse conditions Genetic connectivity exists at multiple scales Headwater streams provide unique habitat have abated. See, e.g., Report at 4–29 (citing and can extend beyond one a single river and protection for amphibians, fish, and J.L. Meyer and J.B. Wallace, ‘‘Lost Linkages catchment, and for species capable of long other aquatic or semi-aquatic species living and Lotic Ecology: Rediscovering Small distance movement (such as salmon), reveals in and near the stream that may use the Streams,’’ Pages 295–317 in M.C. Press, N. J. complex interactions among spatially distant downstream waters for other portions of their Huntly, and S. Levin, editors. Ecology: populations of aquatic organisms Id. (citing life stages. See, e.g., Report at 1–8; J.L. Meyer, Achievement and Challenge (Oxford, UK: J.M. Hughes, et al., ‘‘Genes in Streams: Using et al., ‘‘The Contribution of Headwater Blackwell Science, 2001); A. Meyer et al., DNA to Understand the Movement of Streams to Biodiversity in River Networks,’’ ‘‘The Effect of Low Flow and Stream Drying Freshwater Fauna and Their Riverine Journal of the American Water Resources

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Association 43(1): 86–103 (2007). They also systems,’’ Bioscience 52:905–916 (2002); C. Intermittent and ephemeral streams are serve as migratory corridors for fish. Augspurger, et al., ‘‘Tracking carbon flow in chemically, physically, and biologically Tributaries can improve or maintain a 2-week-old and 6-week-old stream biofilm connected to downstream waters, and these biological integrity and can control water food web,’’ Limnology and Oceanography connections have effects downstream. See, temperatures in the downstream waters. See, 53:642–650 (2008)). Disruptions in these e.g., id. In some areas, stormflows channeled e.g., Report at 4–14 (citing J.L. Ebersole, et. biological processes affect the ecological into alluvial floodplain aquifers by al., ‘‘Cold water patches in warm streams: functions of the entire downstream system. intermittent and ephemeral streams are the Physicochemical characteristics and the See, e.g., L.A. Kaplan, et al., ‘‘Patterns of major source of annual streamflow in rivers. influence of shading,’’ Journal of the Dissolved Organic Carbon in Transport,’’ Perennial flows are not necessary for American Water Resources Association Limnology and Oceanography 25: 1034–1043 chemical connections. Periodic flows in 39:355–368 (2003); B. Gardner, and P.J. (1980); R.L. Vannote, et. al., ‘‘The River ephemeral or intermittent tributaries can Sullivan, ‘‘Spatial and temporal stream Continuum Concept,’’ Canadian Journal of have a strong influence on biogeochemistry temperature prediction: Modeling Fisheries and Aquatic Sciences 37: 130–37 by connecting the channel and other nonstationary temporal covariance (1980). Headwater streams can help to landscape elements. See, e.g., Report at 4–16 structures,’’ Water Resources Research 40:1– maintain base flow in the larger rivers (citing H.M. Valett, et. al., ‘‘Biogeochemical 9 (2004); B.R. Johnson, et al., ‘‘Use of downstream, which is particularly important and Metabolic Responses to the Flood Pulse spatially explicit physicochemical data to in times of drought. See, e.g., Report at 4–4, in a Semiarid Floodplain,’’ Ecology 86(1): measure downstream impacts of headwater 4–66 (citing P.D. Brooks, and M.M. Lemon, 220–234 (2005)). This episodic connection stream disturbance,’’ Water Resources ‘‘Spatial variability in dissolved organic can be very important for transmitting a Research 46:W09526 (2010)). Headwater matter and inorganic nitrogen concentrations substantial amount of material into streams also provide refuge habitat for in a semiarid stream, San Pedro River, downstream rivers. See, e.g., id. (citing riverine organisms seeking protection from Arizona,’’ Journal of Geophysical Research- Nadeau and Rains (2007)). Ephemeral desert temperature extremes, flow extremes, low Biogeosciences 112:G03S05.D (2007); streams have been shown to export dissolved oxygen, high sediment levels, or Tetzlaff, and C. Soulsby, ‘‘Sources of particularly high sediment loadings. See, e.g., the presence of predators, parasites, and baseflow in larger catchments—using tracers id. at 4–10 (citing M.A. Hassan, competitors. See, e.g., id. at 4–32 (citing J.C. to develop a holistic understanding of runoff ‘‘Observations of Desert Food Bores,’’ Earth Scrivener, et al., ‘‘Juvenile Chinook salmon generation,’’ Journal of Hydrology 359:287– Surface Processes and Landforms 15:481–485 (Oncorhynchus tshawytscha) utilization of 302 (2008)). At the same time, the network (1990)). Ephemeral streams can also Hawks Creek, a small and nonnatal tributary of headwater streams can regulate the flow of temporarily and effectively store large of the Upper Fraser River,’’ Canadian Journal water into downstream waters, mitigating amounts of sediment that would otherwise of Fisheries and Aquatic Sciences 51:1139– low flow and high flow extremes, reducing wash downstream, contributing to the 1146 (1994); R.A. Curry, et al., ‘‘Use of small local and downstream flooding, and maintenance of downstream water quality streams by young brook trout spawned in a preventing excess erosion caused by and productive fish habitat. See, e.g., S.H. lake,’’ Transactions of the American flooding. See, e.g., United States, U.S. EPA Duncan, et al., ‘‘Transport of Road-Surface Fisheries Society 126:77–83 (1997); A.M. and USDA/ARS Southwest Watershed Sediment through Ephemeral Stream Pires, et al., ‘‘Seasonal changes in fish Research Center, EPA/600/R–08/134, ARS/ Channels,’’ Water Resources Bulletin 23(1): community structure of intermittent streams 2330462008: The Ecological and 113–119 (1987). This temporary storage of in the middle reaches of the Guadiana basin, Hydrological Significance of Ephemeral and sediment thus helps maintain the chemical Portugal,’’ Journal of Fish Biology 54:235–249 Intermittent Streams in the Arid and Semi- and biologic integrity of downstream waters. (1999); M.J Bradford, et al., ‘‘Ecology of arid American Southwest (Washington, DC: The Report provides case studies of prairie juvenile Chinook salmon in a small nonnatal U.S. EPA and USDA/ARS Southwest streams and Southwest intermittent and stream of the Yukon River drainage and the Watershed Research Center, Levick et al., ephemeral streams, two stream types whose role of ice conditions on their distribution 2008) (Levick et al. 2008). jurisdictional status has been called into and survival,’’ Canadian Journal of Zoology- F. Ephemeral and Intermittent Tributaries question in the past. These case studies Revue Canadienne De Zoologie 79:2043– Significantly Affect the Chemical, Physical, highlight the importance of these streams to 2054 (2001); M.A. Cairns, et al., ‘‘Influence or Biological Integrity of (a)(1) Through (a)(3) downstream waters, despite their small size of summer stream temperatures on black spot Waters and ephemeral or intermittent flow regime. infestation of juvenile coho salmon in the Tributaries do not need to flow perennially Prairie streams are frequently subjected to the Oregon Coast Range,’’ Transactions of the to have a significant nexus to downstream extremes of drying and flooding, and American Fisheries Society 134:1471–1479 waters. Approximately 59% of streams across intermittent or flashy hydrology is prevalent (2005); Wigington, P. J., et al., ‘‘Coho salmon the United States (excluding Alaska) flow in river networks throughout most of the dependence on intermittent streams,’’ intermittently or ephemerally; ephemeral and Great Plains. Report at 4–40 (citing W.J. Frontiers in Ecology and the Environment intermittent streams are particularly Matthews, ‘‘North American Prairie Streams 4:513–518 (2006)). Headwater streams serve prevalent in the arid and semi-arid as Systems for Ecological Study,’’ Journal of as a source of food materials such as insects, Southwest, where they account for over 81% the North American Benthological Society larvae, and organic matter to nourish the fish, of streams. Levick et al. 2008. Despite their 7:387–409 (1988); A.V. Zale et al., ‘‘The mammals, amphibians, and other organisms intermittent or ephemeral flow, these streams Physicochemistry, Flora, and Fauna of in downstream streams, rivers, and lakes. nonetheless perform the same important Intermittent Prairie Streams: A Review of the See, e.g., id. at 4–22, 4–24 (citing S.G., Fisher, ecological and hydrological functions Literature,’’ United States Fish and Wildlife and G.E. Likens, ‘‘Energy flow in Bear Brook, documented in the scientific literature as Service Biological Report 89:1–44 (1989); New Hampshire: An integrative approach to perennial streams, through their movement N.L. Poff, ‘‘A Hydrogeography of Unregulated stream ecosystem metabolism,’’ Ecological of water, nutrients, and sediment to Streams in the United States and an Monographs 43:421–439 (1973); J.L. Meyer, downstream waters. Id. The importance of Examination of Scale Dependence in Some ‘‘The microbial loop in flowing waters,’’ intermittent and ephemeral streams is Hydrological Descriptors,’’ Freshwater Microbial Ecology 28:195–199 (1994); J.B. documented in a 2008 peer-reviewed report Biology 36:71–91 (1996); W.K. Dodds, et al., Wallace, et al., ‘‘Multiple trophic levels of a by EPA’s Office of Research and ‘‘Life on the Edge: The Ecology of Great forest stream linked to terrestrial litter Development and the U.S. Department of Plains Prairie Streams,’’ Bioscience 54:205– inputs,’’ Science 277:102–104 (1997); R.O. Agriculture’s Agricultural Research Service, 216 (2004)). Prairie streams typically Hall, and J.L. Meyer, ‘‘The trophic which addresses the hydrological and represent a collection of spring-fed, perennial significance of bacteria in a detritus-based ecological significance of ephemeral and pools and reaches, embedded within larger, stream food web,’’ Ecology 79:1995–2012 intermittent streams in the arid and semi-arid intermittently flowing segments. Id. at 4–55 (1998); R.O. Hall, et al., ‘‘Organic matter flow Southwestern United States and their (citing T.R. Labbe, and K.D. Fausch, in stream food webs with reduced detrital connections to downstream waters; the report ‘‘Dynamics of Intermittent Stream Habitat resource base,’’ Ecology 81:3445–3463 (2000); is a state-of-the-art synthesis of current Regulate Persistence of a Threatened Fish at T. Gomi, et al., ‘‘Understanding processes knowledge of the ecology and hydrology in Multiple Scales,’’ Ecological Applications and downstream linkages of headwater these systems. Id. 10:1774–1791 (2000)). These streams have

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significant chemical, physical, and biological hydrological behavior and the connectivity of river riparian communities are supported by connections to downstream waters, despite rivers in the Southwest, but also examines water, sediment and nutrients exported to the extensive alteration of historical prairie evidence relevant to other Southwestern river from ephemeral tributaries; these regions by agriculture, water impoundment, streams. The chemical, physical, and riparian communities have a profound water withdrawals, and other human biological connections of Southwestern influence on the river attributes through activities, and the challenges these intermittent and ephemeral streams shading, allochthonous (originating from alterations create for assessing connectivity. highlighted in the case study are summarized outside of the channel) inputs of organic Id. (citing W.J. Matthews, and H.W. below. Flows from ephemeral streams are matter, detritus, wood, and invertebrates to Robinson, ‘‘Influence of Drainage one of the major drivers of the dynamic the river. Id. at 4–65 to 4–66 (citing S.V. Connectivity, Drainage Area and Regional hydrology of Southwest rivers (particularly of Gregory, et al., ‘‘An Ecosystem Perspective of Species Richness on Fishes of the Interior floods during monsoon seasons. Id. at 4–60, Riparian Zones: Focus on Links between Highlands in Arkansas,’’ American Midland 4–67 (citing DC Goodrich, et al., ‘‘Linearity Land and Water,’’ Bioscience 41:540–551 Naturalist 139:1–19 (1998); W.K. Dodds, et of Basin Response as a Function of Scale in (1991); R.J. Naiman, et al., Riparia: Ecology, al., ‘‘Life on the Edge: The Ecology of Great a Semiarid Watershed,’’ Water Resources Conservation, and Management of Plains Prairie Streams,’’ Bioscience 54:205– Research 33:2951–2965 (1997); F. Yuan, and Streamside Communities (Burlington, MA: 216 (2004)). The most notable connections S. Miyamoto, ‘‘Characteristics of Oxygen-18 Elsevier, Inc., 2005); J.C. Stromberg, et al., are via flood propagation, contaminated and Deuterium Composition in Waters from ‘‘Effects of Stream Flow Intermittency on sediment transport, nutrient retention, and the Pecos River in American Southwest,’’ Riparian Vegetation of a Semiarid Region the extensive transport and movement of fish Chemical Geology 255:220–230 (2008)). River (San Pedro River, Arizona),’’ River species (including eggs and larvae) Downstream river fishes and invertebrates Research and Applications 21:925–938 throughout these networks. Id. at 4–55 (citing are adapted to the variable flow regimes that (2005), M. Baillie, et al., ‘‘Quantifying Water H.F. Matthai, Floods of June 1965 in South are influenced strongly by ephemeral Sources to a Semiarid Riparian Ecosystem, Platte River Basin, Colorado, Water Supply tributary systems, which provide isolated San Pedro River, Arizona,’’ Journal of Paper 1850–B (Washington, DC: U.S. pools as refuges for fish during dry periods. Geophysical Research 112:G03S02 (2007); Geological Survey, 1969); A.J. Horowitz, et Id. at 4–68 to 4–69 (citing K.R. John, National Research Council, Riparian Areas: al., ‘‘The Effect of Mining on the Sediment- ‘‘Survival of Fish in Intermittent Streams of Functions and Strategies for Management trace Element Geochemistry of Cores from the Chirichua Mountains, Arizona’’ Ecology (Washington, DC: National Academy Press, the Cheyenne River Arm of Lake Oahe, South 45:112–119 (1964); T.R. Labbe, and K.D. 2002)). Dakota, USA,’’ Chemical Geology 67:17–33 Fausch, ‘‘Dynamics of Intermittent Stream E. Tributary Lakes, Ponds, and Wetlands (1988); DC Marron, ‘‘The Transport of Mine Habitat Regulate Persistence of a Threatened Significantly Affect the Chemical, Physical, Tailings as Suspended Sediment in the Belle Fish at Multiple Scales,’’ Ecological or Biological Integrity of (a)(1) Through (a)(3) Fourche River, West-central South Dakota, Applications 10:1774–1791 (2000); J.N. Waters USA,’’ International Association of Rinne, and D. Miller, ‘‘Hydrology, As discussed elsewhere in this preamble, Hydrologic Sciences 184:19–26 (1989); W.K. Geomorphology and Management: riparian and floodplain wetlands have a Implications for Sustainability of Native Dodds, et al., ‘‘Nitrogen Transport from significant nexus to downstream waters, and Tallgrass Prairie Watersheds,’’ Journal of Southwestern Fishes,’’ Reviews in Fisheries wetlands that are tributaries are a subset of Environmental Quality 25:973–981 (1996); Science 14:91–110 (2006); D.A. Lytle, et al., such wetlands. The fact that a wetland K.D. Fausch, and K.R. Bestgen, ‘‘Ecology of ‘‘Evolution of Aquatic Insect Behaviors tributary is in-stream often enhances its Fishes Indigenous to the Central and across a Gradient of Disturbance ability to filter pollutants and contaminants Southwestern Great Plains,’’ in F.L. Knopf Predictability,’’ Proceedings of the Royal that would otherwise make it downstream; and F.B. Samson, ed., Ecology and Society—Series B 275:453–462 (2008)). in-stream wetlands also attenuate Conservation of Great Plains Vertebrates, Ephemeral tributaries in the Southwest also floodwaters. Lakes and ponds serve many (New York, NY: Springer-Verlag, 1997), pp. supply water to mainstem river alluvial important functions that affect the chemical, 131–166; S.P. Platania, and C.S. Altenbach, aquifers, which aids in the sustaining river physical, and biological conditions ‘‘Reproductive Strategies and Egg Types of baseflows downstream. Id. at 4–64 (citing DC downstream. Lake tributaries can act as Seven Rio Grande Basin Cyprinids,’’ Copeia Goodrich, et al., ‘‘Linearity of Basin Response sinks, storing floodwaters, sediment, and 1998:559–569 (1998); K.M. Fritz, and W.K. as a Function of Scale in a Semiarid nutrients, as these materials have the Dodds, ‘‘Resistance and Resilience of Watershed,’’ Water Resources Research opportunity to settle out, at least temporarily, Macroinvertebrate Assemblages to Drying 33:2951–2965 (1997); J.B. Callegary, et al., as water moves through the lake to and Flood in a Tallgrass Prairie Stream ‘‘Rapid Estimation of Recharge Potential in downstream waters. See, e.g., R.W. Phillips, System,’’ Hydrobiologia 527:99–112 (2004); Ephemeral-Stream Channels using et al., ‘‘Connectivity and Runoff Dynamics in K.M. Fritz, and W.K. Dodds, ‘‘Harshness: Electromagnetic Methods, and Measurements Heterogeneous Basins,’’ Hydrological Characterization of Intermittent Stream of Channel and Vegetation Characteristics,’’ Processes 25(19): 3061–3075 (2011). The Habitat over Space and Time,’’ Marine and Journal of Hydrology 344:17–31 (2007)). attenuation of floodwaters can also maintain Freshwater Research 56:13–23 (2005); N.R. Ephemeral tributaries export sediment stream flows downstream. Id. Lakes, as with Franssen, et al., ‘‘Effects of Floods on Fish downstream during major hydrologic events; other tributaries, can also act as sources, Assemblages in an Intermittent Prairie the sediment, in turn, contributes to contributing flow, nutrient, sediment, and Stream,’’ Freshwater Biology 51:2072–2086 materials that comprise alluvial aquifers and other materials downstream. Total Maximum (2006); R.B. Alexander, et al., ‘‘Differences in shape the fluvial geomorphology (the science Daily Loads (TMDLs) for nutrients have been Phosphorus and Nitrogen Delivery to the of how rivers and streams form given the established for many in-stream lakes across Gulf of Mexico from the Mississippi River landscape setting) of downstream waters. Id. the country in recognition of the ability of Basin,’’ Environmental Science & Technology at 4–65 (citing G.C. Nanson, and J.C. Croke, lakes to transport nutrients downstream, 42:822–830 (2008); J.S. Perkins, and K.B. ‘‘A Genetic Classification of Floodplains,’’ contributing to downstream impairments. Gido, ‘‘Stream Fragmentation Thresholds for Geomorphology 4:459–486 (1992)). The See, e.g. Maine Department of Environmental a Reproductive Guild of Great Plains Fishes,’’ nutrient and biogeochemical integrity of Protection, Phosphorus Control Action Plan Fisheries 36:371–383 (2011)). downstream Southwestern rivers, such as the and Total Maximum Daily (Annual Southwestern intermittent and ephemeral San Pedro River, is heavily influenced by Phosphorous) Load Report, Daigle Pond, New streams exert strong influences on the nutrient export from ephemeral tributaries Canada, Aroostook County, Maine, Daigle structure and function of downstream waters, after storm flow events. Id. at 4–18, 4–66 Pond PCAP—TMDL Report, Maine DEPLW— and the case study (included in the Report) (citing P.D. Brooks, and M.M. Lemon, 0789 (Maine DEP, 2006); U.S. Environmental echoes many of the findings of the functions ‘‘Spatial Variability in Dissolved Organic Protection Agency, ‘‘Section 6 Echo Park of intermittent and ephemeral tributaries Matter and Inorganic Nitrogen Lake TMDLs,’’ Los Angeles Area Lakes generally, which are described above. The Concentrations in a Semiarid Stream, San TMDLs, January 2011 Revised Draft (2011). case study focuses on the heavily studied San Pedro River, Arizona,’’ Journal of Lakes can also serve as habitat for species Pedro River, located in southeast Arizona, in Geophysical Research-Biogeosciences that then move downstream. For instance, particular, as a representative example of the 112:G03S05 (2007)). Extensive downstream brook trout that are stocked in headwater

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lakes in Idaho and Montana are capable of Wetlands that serve as stream origins Dakota, Water Years 1981–98, Water- invading most downstream habitat, including connect via perennial, intermittent, or Resources Investigations Report 02–4113 through very steep channel slopes and ephemeral drainages to river networks. Id. at (Bismarck, ND: U.S. Geological Survey, waterfalls. S.B. Adams, et al., ‘‘Geography of 5–22 to 5–23 (citing M.C. Rains, et al., ‘‘The 2002), 33 p.; P. McEachern, et al., Invasion in Mountain Streams: Consequences Role of Perched Aquifers in Hydrological ‘‘Landscape Control of Water Chemistry in of Headwater Lake Fish Introductions,’’ Connectivity and Biogeochemical Processes Northern Boreal Streams of Alberta,’’ Journal Ecosystems 4(4): 296–307. These non-native in Vernal Pool Landscapes, Central Valley, of Hydrology 323:303–324 (2006); R.A. species can then affect the biological integrity California,’’ Hydrological Processes 20:1157– Gleason, et al. Estimating Water Storage of downstream waters by impacting 1175 (2006); M.C. Rains, et al., ‘‘Geological Capacity of Existing and Potentially populations of native fish species, such as Control of Physical and Chemical Hydrology Restorable Wetland Depressions in a cutthroat trout, downstream. See, e.g., J.B. in California Vernal Pools,’’ Wetlands Subbasin of the Red River of the North, U.S. Dunham, et al., ‘‘Alien Invasions in Aquatic 28:347–362 (2008); T.R. Morley, et al., ‘‘The Geological Survey Open-File Report 2007– Ecosystems: Toward an Understanding of Role of Headwater Wetlands in Altering 1159 (Reston, VA: U.S. Geological Survey, Brook Trout Invasions and Potential Impacts Streamflow and Chemistry in a Maine, USA 2007), 36 p.). In some cases, however, where on Inland Cutthroat Trout in Western North Catchment,’’ Journal of the American Water wetlands that serve as stream origins are America,’’ Reviews in Fish Biology and Resources Association 47:337–349 (2011)). already saturated prior to rainfall, they can Fisheries 12(4): 373–391 (2002). For example, Regardless of the permanence of flow, such convey stormwater quickly downstream and non-native trout were introduced in wetlands have an impact on downstream thus actually increase flood peaks. Id. at 227 headwater tributary lakes to the Little Kern water. Id. at 5–1 to 5–2. Wetland seeps, for (citing Bay, R., ‘‘Runoff from Small Peatland River in the southern Sierra Nevada and example, can form where groundwater Watersheds,’’ Journal of Hydrology 9:90–102 dispersed downstream, causing the near- discharges from breaks in slope. Id. at 5–21 (1969); A. Bullock, and M. Acreman, ‘‘The extinction of the native Little Kern golden (citing B.R. Hall, et al., ‘‘Environmental Role of Wetlands in the Hydrological Cycle,’’ trout. R.A. Knapp, and K.R. Matthews, Influences on Plant Species Composition in Hydrology and Earth System Sciences 7:358– ‘‘Effects on Nonnative Fishes on Wilderness Ground-water Seeps in the Catskill 389 (2003)). This is because the wetland soil, Lake Ecosystems in the Sierra Nevada and Mountains of New York,’’ Wetlands 21:125– if completely saturated, cannot store any Recommendations for Reducing Impacts,’’ in 134 (2001); M.A. O’Driscoll, and D.R. additional water, making the wetland enable D. N. Cole, et al., ed., Wilderness Science in DeWalle, ‘‘Seeps Regulate Stream Nitrate to store floodwater. a Time of Change Conference, Volume 5: Concentration in a Forested Appalachian Wetlands that serve as stream origins have Wilderness Ecosystems, Threats, and Catchment,’’ Journal of Environmental important chemical connections to Management, Missoula, Montana, May 23– Quality 39:420–431 (2010)). They often have downstream waters that affect the integrity of 27, 1999, Proceedings RMRS–P–15–VOL–5 perennial connections to the stream, those waters. These wetlands contain diverse (Ogden, UT: U.S. Department of Agriculture, providing important sources of water microbial populations that perform various Forest Service, Rocky Mountain Research downstream, particularly during summer chemical transformations, acting as source of Station, 2000), 312–317. These studies baseflow. Id. at 5–22 (citing T.R. Morley, et compounds and influencing the water quality demonstrate the ability of organisms to travel al., ‘‘The Role of Headwater Wetlands in downstream. Id. at 5–28 (citing K.R. Reddy, from tributary lakes to downstream waters, Altering Streamflow and Chemistry in a and R.D. DeLaune, Biogeochemistry of which is not limited to just non-native Maine, USA Catchment,’’ Journal of the Wetlands: Science and Applications, 774 p. species; many other species can also move American Water Resources Association (2008)). Sulfate-reducing bacteria found in downstream and back again. some headwater wetlands produce One type of wetlands located in-stream are 47:337–349 (2011)). In Maine, for example, unidirectional wetlands that are connected to seeps were found to provide 40 to 80% of methylated mercury, which is then the river network through a channel (e.g., stream water during baseflow periods. Id. In transported downstream by surface flows. Id. wetlands that serve as stream origins; a other cases, surface connections between (citing O.K. Linqvist, et al., ‘‘Mercury in the definition of ‘‘unidirectional wetlands’’ can channel origin wetlands and streams are Swedish Environment—Recent Research on be found in part I section 4.B above). These intermittent or ephemeral. For example, Causes, Consequences, and Remedial tributary wetlands are generally exemplary of California vernal pools spill water a great Measures,’’ Water Air and Soil Pollution tributary wetlands as a whole, and because number of days during the years via 55:xi-xiii (1991); G. Mierle, and R. Ingram, the Report focuses in part on these wetlands, channels, providing water downstream. Id. ‘‘The Role of Humic Substances in the they are discussed here in further detail. (citing M.C. Rains, et al., ‘‘The Role of Mobilization of Mercury from Watersheds,’’ These are wetlands from which a stream Perched Aquifers in Hydrological Water Air and Soil Pollution 56:349–357 channel originates. Report at 5–1 to 5–2. Connectivity and Biogeochemical Processes (1991); C.T. Driscoll, et al., ‘‘The Role of They are part of the stream network itself, in Vernal Pool Landscapes, Central Valley, Dissolved Organic Carbon in the Chemistry and along with first- and second-order California,’’ Hydrological Processes 20:1157– and Bioavailability of Mercury in Remote streams, form the headwaters of the river 1175 (2006); M.C. Rains, et al., ‘‘Geological Adirondack Lakes,’’ Water Air and Soil network. Such wetlands have a direct Control of Physical and Chemical Hydrology Pollution 80:499–508 (1995); B.A. Branfireun, hydrologic connection to the tributary in California Vernal Pools,’’ Wetlands et al., ‘‘In situ Sulphate Stimulation of network via unidirectional flow from 28:347–362 (2008)). In addition to surface Mercury Methylation in a Boreal Peatland: wetland to the headwater stream. Channel water connections, groundwater flow can Toward a Link Between Acid Rain and origin wetlands generally have important hydrologically connect wetlands that serve as Methylmercury Contamination in Remote chemical, physical, and biological effects on stream origins with the stream network. Id. Environments,’’ Global Biogeochemical (a)(1) through (a)(3) waters, including at 5–23. Cycles 13:743–750 (1999)). Wetlands, hydrologic, water quality, and habitat The hydrologic connection of the wetland including those that serve as stream origins, functions, regardless if the outflow from the to the stream can affect streamflow by are the principle sources of dissolved organic wetland to the stream is perennial, altering baseflow or storm flow through carbon (DOC) in forests to downstream intermittent, or ephemeral. Id. Like other several mechanisms, including surface waters. Id. (citing P.J. Mulholland, and E.J. wetlands, wetlands that serve as stream storage and groundwater recharge. Id. at 5– Kuenzler, ‘‘Organic Carbon Export from origins can transport channel-forming 25. Studies at the larger scale have shown Upland and Forested Wetland Watersheds,’’ sediment and woody debris, transport stored that wetlands, by storing water, reduce peak Limnology and Oceanography 24:960–966 organic matter, remove and transform streamflows and, thus, downstream flooding. (1979); N.R. Urban, et al., ‘‘Export of pollutants and excess nutrients such as Id. (citing J. Jacques, and D. L. Lorenz, Dissolved Organic Carbon and Acidity from nitrogen and phosphorus, attenuate and store Techniques for Estimating the Magnitude Peatlands,’’ Water Resources Research floodwaters, contribute to stream baseflow and Frequency of Floods of Ungauged 25:1619–1628 (1989); B.W. Eckhardt and T.R. through groundwater recharge, and provide Streams in Minnesota, Report 87–4170 Moore, ‘‘Controls on Dissolved Organic habitat for breeding fish, amphibians, (Washington, DC: U.S. Geological Survey, Carbon Concentrations in Streams of reptiles, birds, and other aquatic and semi- 1988); Vining, K.C., Simulation of Southern Quebec,’’ Canadian Journal of aquatic species that move from the wetlands Streamflow and Wetland Storage, Fisheries and Aquatic Sciences 47:1537–1544 to the river network. Id. at 5–41. Starkweather Coulee Subbasin, North (1990); J.-F. Koprivnjak and T.R. Moore,

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‘‘Sources, Sinks, and Fluxes of Dissolved Raton, FL: CRC Press, 2009)). Specifically, Wetlands 30:609–619 (2010)). Mammals that Organic Carbon in Subarctic Fen wetlands reduce phosphorus, nitrate, and can disperse overland can also contribute to Catchments,’’ Arctic and Alpine Research ammonium by large percentages. Id. at 5–30 connectivity. Id. (citing C.E. Shanks, and G.C. 24:204–210 (1992); P. Kortelainen, ‘‘Content (citing F.E. Dierberg and P.L. Brezonik, Arthur, ‘‘Muskrat movements and population of Total Organic Carbon in Finnish Lakes and ‘‘Nitrogen and Phosphorus Mass Balances in dynamics in Missouri farm ponds and Its Relationship to Catchment a Cypress Dome Receiving Wastewater,’’ in streams,’’ Journal of Wildlife Management Characteristics,’’ Canadian Journal of K.C. Ewel and H.T. Odum, ed., Cypress 16:138–148 (1952); W.R. Clark, ‘‘Ecology of Fisheries and Aquatic Sciences 50:1477–1483 Swamps (Gainesville, FL: University Presses muskrats in prairie wetlands,’’ in H.R. (1993); T.A. Clair, et al., ‘‘Exports of Carbon of Florida, 1984), pp. 112–118; E.J. Dunne, et Murkin, et al., ed., Prairie Wetland Ecology: and Nitrogen from River Basins in Canada’s al., ‘‘Phosphorus Release and Retention by The Contribution of the Marsh Ecology Atlantic Provinces,’’ Global Biogeochemical Soils of Natural Isolated Wetlands,’’ Research Program, (Ames, IA: Iowa State Cycles 8:441–450 (1994); D. Hope, et al., ‘‘A International Journal of Environment and University Press, 2000), pp. 287–313). Insects Review of the Export of Carbon in River Pollution 28:496–516 (2006); T.E. Jordan, et also hitchhike on birds and mammals from Water: Fluxes and Processes,’’ Environmental al., ‘‘Comparing Functional Assessments of tributary wetlands to the stream network, Pollution 84:301–324 (1994); P.J. Dillon and Wetlands to Measurements of Soil which can then serve as a food source for L.A. Molot, ‘‘Effects of Landscape Form on Characteristics and Nitrogen Processing,’’ downstream waters. Id. (citing J. Figuerola, Export of Dissolved Organic Carbon, Iron, Wetlands 27:479–497 (2007)). These and A.J. Green, ‘‘Dispersal of Aquatic and Phosphorus from Forested Stream processes are important for protecting Organisms by Waterbirds: A Review of Past Catchments,’’ Water Resources Research downstream waters from pollutants from Research and Priorities for Future Studies,’’ 33:2591–2600 (1997); S.E. Gergel, et al., agricultural runoff. Wetland microbial Freshwater Biology 47:483–494 (2002); J. ‘‘Dissolved Organic Carbon as an Indicator of processes reduce other pollutants, such as Figuerola, et al., ‘‘Invertebrate Eggs Can Fly: the Scale of Watershed Influence on Lakes pesticides, hydrocarbons, heavy metals, and Evidence of Waterfowl-Mediated Gene Flow and Rivers,’’ Ecological Applications 9:1377– chlorinated solvents. Id. (citing R.R. Brooks, in Aquatic Invertebrates,’’ American 1390 (1999)). Export of DOC to downstream et al., ‘‘Cobalt and Nickel Uptake by the Naturalist 165:274–280 (2005)). Insects that waters supports primary productivity, effects Nyssaceae,’’ Taxon 26:197–201 (1977); C.M. are flight-capable also use both stream and pH and buffering capacity, and regulates Kao, et al., ‘‘Non-point Source Pesticide tributary wetlands, moving from the stream exposure to UV–B radiation. Id. at 5–29 Removal by a Mountainous Wetland,’’ Water to the wetland to find suitable habitat for (citing K.N. Eshelman and H.F. Hemond, Science and Technology 46:199–206 (2002); overwintering, refuge from adverse ‘‘The Role of Organic Acids in the Acid-base P.I. Boon, ‘‘Biogeochemistry and Bacterial conditions, hunting, foraging, or breeding. Id. Status of Surface Waters at Bickford Ecology of Hydrologically Dynamic at 5–33 (citing D.D. Williams, Watershed, Massachusetts,’’ Water Resources Wetlands,’’ in D. P. Batzer and R. R. Sharitz, ‘‘Environmental Constraints in Temporary Research 21:1503–1510 (1985); L.O. Hedin, et ed., Ecology of Freshwater and Estuarine Fresh Waters and Their Consequences for the al., ‘‘Patterns of Nutrient Loss from Wetlands (Berkeley, CA: University of Insect Fauna,’’ Journal of the North American Unpolluted Old-growth Temperate Forests: California Press, 2006), pp. 115–176). Benthological Society 15:634–650 (1996); A.J. Evaluation of Biogeochemical Theory,’’ Tributary wetlands have important Bohonak and D.G. Jenkins, ‘‘Ecological and Ecology 76:493–509 (1995); D.W. Schindler biological connections downstream that Evolutionary Significance of Dispersal by and P.J. Curtis, ‘‘The Role of DOC in impact the integrity of (a)(1) through (a)(3) Freshwater Invertebrates,’’ Ecology Letters Protecting Freshwaters Subjected to Climate waters. Emergent and aquatic vegetation 6:783–796 (2003)). Amphibians and reptiles, Warming and Acidification from UV found in wetlands disperse by water, wind, including frogs, toads, and newts, also move Exposure,’’ Biogeochemistry 36:1–8 (1997); and hitchhiking on migratory animals from between streams or rivers and tributary J.C. Nuff and G.P. Asner, ‘‘Dissolved Organic tributary wetlands downstream. Id. at 5–31 wetlands to satisfy part of their life history Carbon in Terrestrial Ecosystems: Synthesis (citing M.B. Soons and G.W. Heil, ‘‘Reduced requirements, feed on aquatic insects, and and a Model,’’ Ecosystems 4:29–48 (2001)). Colonization Capacity in Fragmented avoid predators. Id. (citing V.S. Lamoureux Wetlands also act as sinks and transformers Populations of Wind-Dispersed Grassland and D.M. Madison, ‘‘Overwintering Habitats for pollutants, including excess nutrients, Forbs,’’ Journal of Ecology 90:1033–1043 of Radio-Implanted Green Frogs, Rana through such processes as denitrification, (2002); M.B. Soons, ‘‘Wind Dispersal in clamitans,’’ Journal of Herpetology 33:430– ammonia volatilization, microbial and plant Freshwater Wetlands: Knowledge for 435 (1999); K.J. Babbitt, et al., ‘‘Patterns of biomass assimilation, sedimentation, Conservation and Restoration,’’ Applied Larval Amphibian Distribution Along a sorption and precipitation, biological uptake, Vegetation Science 9:271–278 (2006); C. Wetland Hydroperiod Gradient,’’ Canadian and long-term storage of plant detritus. Id. Nilsson, et al., ‘‘The Role of Hydrochory in Journal of Zoology-Revue Canadienne De (citing K.C. Ewel and H.T. Odum, Cypress Structuring Riparian and Wetland Zoologie 81:1539–1552 (2003); S.B. Adams, Swamps (Gainesville, FL: University Presses Vegetation,’’ Biological Reviews 85:837–858 et al., ‘‘Instream Movements by Boreal Toads of Florida, 1984); S.J. Nixon and V.J. Lee, (2010)). Similarly, fish move between the (Bufo boreas boreas),’’ Herpetological Review Wetlands and Water Quality: A Regional river network and wetlands during times of 36:27–33 (2005); D.M. Green, ‘‘Bufo Review of Recent Research in the United surface water connections, and tributary americanus, American Toad,’’ in M. Lannoo, States on the Role of Freshwater and wetlands by definition are connected on the ed., Amphibian Declines: The Conservation Saltwater Wetlands as Sources, Sinks, and surface to downstream waters. Id. at 5–32 Status of United States Species (Berkeley, Transformers of Nitrogen, Phosphorus, and (citing J.W. Snodgrass, et al., ‘‘Factors CA: University of California Press, 2005), pp. Various Heavy Metals, Technical Report Y– affecting the occurrence and structure of fish 692–704; T.W. Hunsinger and M.J. Lannoo, 86–2 (Vicksburg, MS: U.S. Army Corps of assemblages in isolated wetlands of the ‘‘Notophthalmus viridescens, Eastern Newt,’’ Engineers, Waterways Experiment Station, upper coastal plain, USA,’’ Canadian Journal in M. Lannoo, ed., Amphibian Declines: The 1986); C. Johnston, ‘‘Sediment and Nutrient of Fisheries and Aquatic Sciences 53:443– Conservation Status of United States Species Retention by Freshwater Wetlands: Effects on 454 (1996); K.D. Zimmer, et al., ‘‘Effects of (Berkeley, CA: University of California Press, Surface Water Quality,’’ Critical Reviews in fathead minnow colonization and removal on 2005), pp. 912–914; J.W. Petranka, and C.T. Environmental Control 21:491–565 (1991); a prairie wetland ecosystem,’’ Ecosystems Holbrook, ‘‘Wetland Restoration for K.R. Reddy, et al., ‘‘Phosphorus Retention in 4:346–357 (2001); M.J. Baber, et al., ‘‘Controls Amphibians: Should Local Sites Be Designed Streams and Wetlands: A Review,’’ Critical on fish distribution and abundance in to Support Metapopulations or Patchy Reviews in Environmental Science and temporary wetlands,’’ Canadian Journal of Populations?,’’ Restoration Ecology 14:404– Technology 29:83–146 (1999); W.J. Mitsch Fisheries and Aquatic Sciences 59:1441–1450 411 (2006); A.L. Subalusky, et al., and J.G. Gosselink, Wetlands, 4th edition (2002); M.A. Hanson, et al., ‘‘Biotic ‘‘Ontogenetic Niche Shifts in the American (Hoboken, NJ: John Wiley & Sons Inc., 2007); interactions as determinants of ecosystem Alligator Establish Functional Connectivity K.R. Reddy, and R.D. DeLaune, structure in prairie wetlands: An example between Aquatic Systems,’’ Biological Biogeochemistry of Wetlands: Science and using fish,’’ Wetlands 25:764–775 (2005); Conservation 142:1507–1514 (2009)). Applications (Boca Raton, FL: CRC Press, B.R. Herwig, et al., ‘‘Factors influencing fish Lake, pond, and wetland tributaries, 2008); R.H. Kadlec and S.D. Wallace, distributions in shallow lakes in prairie and including wetlands that serve as stream Treatment Wetlands, 2nd edition (Boca prairie-parkland regions of Minnesota, USA,’’ origins, have important chemical, physical,

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and biological connections downstream that through (a)(3) waters. Due to the often tailings, recreation or pollution control). See affect (a)(1) through (a)(3) waters. Their direct straightened and channelized nature of http://www.damsafety.org/layout/ hydrologic connection to the stream network ditches, these tributaries quickly move water subsection.aspx?groupid=14&contentid=47. facilitates the significant impact they have downstream to (a)(1) through (a)(3) waters. Many dams fulfill a combination of the above downstream. This impact on downstream Ditches and canals, like other tributaries, functions. Because the purpose of a dam is waters occurs regardless of whether their export sediment, nutrients, and other to retain water effectively and safely, the flow is perennial, intermittent, or ephemeral. materials downstream. Due to their often water retention ability of a dam is of prime Thus, lake, pond, and wetland tributaries channelized nature, ditches are very effective importance. Water may pass from the serve the same important functions as stream at transporting water and these materials, reservoir to the downstream side of a dam by: tributaries, which in turn greatly impact including nitrogen, downstream. See, e.g., passing through the main spillway or outlet downstream (a)(1) through (a)(3) waters, J.P. Schmidt, et al., ‘‘Nitrogen Export from works; passing over an auxiliary spillway; particularly when their functional Coastal Plain Field Ditches,’’ Journal of Soil overtopping the dam; seepage through the contributions to the chemical, physical, and and Water Conservation 62(4):235–243; J.S. abutments; and seepage under the dam. Id. biological conditions of downstream waters Strock, et al., ‘‘Managing Natural Processes in All water retention structures are subject to are combined at a watershed scale. Drainage Ditches for Nonpoint Source seepage through their foundations and F. Man-Made or Man-Altered Tributaries Nitrogen Control.’’ Journal of Soil and Water abutments. Department of the Army, U.S. Significantly Affect the Physical, Chemical Conservation 62(4): 188–196 (2007). Ditches Army Corps of Engineers, Engineering and and Biological Integrity of (a)(1) Through provide habitat for fish and other aquatic Design—Design, Construction and (a)(3) Waters organisms. See, e.g., P.C. Smiley, Jr., et al., Maintenance of Relief Wells, EM 1110–2– ‘‘Contribution of Habitat and Water Quality 1914 (Washington, DC: Department of the The agencies’ proposed rule clarifies that to the Integrity of Fish Communities in Army, 1992), p. 1–1. Thus waters behind a man-made and man-altered tributaries as Agricultural Drainage Ditches,’’ Journal of dam still maintain a hydrologic connection to defined in the proposed rule are ‘‘waters of Soil and Water Conservation 63(6):218A– downstream waters. the United States’’ because the significant 219A (2008). Fish and other aquatic Numerous studies have shown that dams nexus between a tributary and a traditional organisms utilize canals and ditches to move impede biotic movements, reducing navigable water or interstate water is not to different habitats, sometimes over long biological connectivity between upstream broken where the tributary flows through a distances. F.J. Rahel, ‘‘Biogeographic and downstream locations. Report at 3–48 culvert or other structure. Note that the Barriers, Connectivity and Homogenization (citing E.A. Greathouse, et al., ‘‘Indirect proposal excludes certain ditches from CWA of Freshwater Faunas: It’s a Small World after Upstream Effects Of Dams: Consequences Of jurisdiction by rule in paragraphs (b)(3) and All,’’ Freshwater Biology 52(4): 696–710 Migratory Consumer Extirpation In Puerto (b)(4). The scientific literature indicates that (2007). Rico,’’ Ecological Applications 16: 339–352 structures that convey water do not affect the These significant connections and (2006); C.J. Hall, et al., ‘‘The Historic connectivity between streams and functions continue even where the tributary Influence of Dams on Diadromous Fish downstream rivers. Indeed, because such has a natural or man-made break in its Habitat with a Focus on River Herring and structures can reduce water losses from channel, bed and banks, or OHWM. The Hydrologic Longitudinal Connectivity,’’ evapotranspiration and seepage, such presence of a channel, bed and banks, and Landscape Ecology 26: 95–107(2011)). Dams structures likely enhance the extent of OHWM upstream or downstream of the break alter but typically do not sever the hydrologic connectivity by more completely conveying is an indication that connections still exist. connection between upstream and the water downstream. downstream waters. (See Part II, section 2.C. Man-made and man-altered tributaries The significant nexus between a tributary include impoundments, ditches, canals, and a downstream water is not broken where of this appendix). Upstream of large dams channelized streams, piped, and the like. the tributary flows underground for a portion riparian areas are permanently inundated, Ditches and canals are wide-spread across of its length, such as in karst topography. The increasing hydrological connectivity. the United States. Ditches may have been hydrologic connection still exists, meaning Downstream, peak flows and the potential for streams that were channelized. They are that the chemical and biological connections overbank lateral flow are reduced; however, purposely constructed to allow the that are mediated by the hydrologic dams may also reduce flow variability hydrologic flow of the tributary to continue connection also still exist. Similarly, flow downstream, resulting in higher minimum downstream. Man-made and man-altered through boulder fields does not sever the flows and reduced flow intermittency and tributaries, despite human manipulation, hydrologic connection. When a tributary thereby increasing hydrological (and usually continue to have chemical, physical, flows through a wetland enroute to another potentially biological) connectivity. Id. or biological connections downstream and to or the same tributary, the significant nexus (citing N.L. Poff, et al., ‘‘Homogenization of serve important functions downstream. still exists even though the bed and banks or Regional River Dynamics by Dams and Because these tributaries are hydrologically ordinary high watermark is broken for the Global Biodiversity Implications,’’ connected to downstream waters, the length of the wetland. As discussed in Part Proceedings of the National Academy of chemical and some biological connections to II, section 1.G. of this appendix, in-stream Sciences of the United States of America 104: downstream waters that are supported by this wetlands provide numerous benefits 5732–5737 (2007)). Where an impoundment hydrologic connection are still intact. Often- downstream, and the presence of the wetland does stop flow, it also has significant effects times man-made tributaries create in stream can provide additional water on downstream waters. For example, the connections where they did not previously quality benefits to the receiving waters. Flow downstream segments have a reduced exist, such as canals that connect two rivers in flat areas with very low gradients may quantity of waters, less sediment, and in different watersheds. temporarily break the tributary’s bed and reduced species biological connectivity with Tributary ditches and other man-made or banks or OHWM, but these systems continue upstream refugia. man-altered waters that meet the definition to have a significant nexus downstream. Because dams reduce the amount of of ‘‘tributary’’ have a significant nexus to These are just illustrative examples of break sediment delivered downstream, the (a)(1) through (a)(3) waters due to their in ordinary high watermark; there are several reservoirs behind dams are actually very impact, either individually or with other other types, all of which do not break the effective at retaining sediment, which can tributaries, on the chemical, physical, or significant nexus between a tributary and the have significant effects in downstream biological integrity of those downstream downstream (a)(1) through (a)(3) water. waters. For instance, the Mississippi River’s waters. Tributary ditches and the like, as There are more than 80,000 dams in the natural sediment load has been reduced by with other tributaries, have chemical, United States, with over 6,000 exceeding 15 an estimated 50% through dam construction physical, and biological connections with meters in height. Report at 3–48 (citing U.S. in the Mississippi Basin. M.D. Blum, and H. downstream waters that substantially impact Army Corps of Engineers, National Inventory H. Roberts, ‘‘Drowning of the Mississippi those waters. Tributary ditches and canals of Dams (2009)). The purpose of a dam is to Delta Due to Insufficient Sediment Supply can have perennial, intermittent, or impound (store) water for any of several and Global Sea-Level Rise,’’ Nature ephemeral flow. As described above, reasons (e.g. flood control, human water Geoscience 2(7): 488–491 (2009). tributaries of all flow regimes have a supply, irrigation, livestock water supply, Man-made or man-altered tributaries significant nexus to downstream (a)(1) energy generation, containment of mine continue to have chemical, physical, and

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biological connections that significantly the chemical, physical, and biological Riparian waters take many different forms. affect the integrity of (a)(1) through (a)(3) integrity of the waters to which they are Some may be wetlands, which are defined in waters. Though the man-made or man-altered adjacent. Riparian areas and floodplains paragraph (c)(6) of the proposed rule. Others nature of such tributaries can change the often describe the same geographic region. may be ponds, oxbow lakes, or other types nature of the connections, it does not Report at 3–4. Therefore, the discussion of of open waters. Oxbow lakes, commonly eliminate them. Thus, man-made and man- the functions of waters, including wetlands, found in floodplains, are formed when river altered tributaries continue to serve the same in riparian areas will typically apply to meanders are cutoff from the rest of the river. important functions as ‘‘natural’’ tributaries, floodplains unless otherwise noted. Where Id. at 5–42. which in turn greatly impact downstream connections arise specifically from the act of b. Riparian and Floodplain Waters (a)(1) through (a)(3) waters, particularly when inundation of adjacent land during times of Significantly Affect the Physical Integrity of their functional contributions to the higher-than-normal water, the term (a)(1) Through (a)(3) Waters chemical, physical, and biological conditions ‘‘floodplain’’ is solely used to describe the of downstream waters are combined at a area. Scientific research shows waters and watershed scale. Riparian areas are transition zones between wetlands in riparian areas and floodplains to terrestrial and aquatic ecosystems that are be important in protecting the physical ii. Adjacent Waters distinguished by gradients in biophysical integrity of aquatic resources. Because Adjacent waters, including adjacent conditions, ecological processes, and biota. riparian and floodplain waters exhibit wetlands, alone or in combination with other Id., Report at 31. Waters including wetlands bidirectional exchange of water with the adjacent waters in the watershed, have a in riparian areas significantly influence waters to which they are adjacent, they play substantial impact on the chemical, physical, exchanges of energy and matter with aquatic an important role in determining the volume or biological integrity of traditional navigable ecosystems. See, e.g., id. (citing National and duration of stream flow. Riparian and waters, interstate waters, and the territorial Research Council, Riparian Areas: Functions floodplain waters also have an essential role seas. In addition, waters adjacent to and Strategies for Management (Washington, in regulating and stabilizing sediment tributaries serve many important functions DC: The National Academies Press, 2002). transport to downstream waters. These that directly influence the integrity of Floodplains are low gradient areas characteristics are fundamental to the downstream waters including traditional bordering stream or river channels, lakes, and physical integrity of streams as well as navigable waters, interstate waters, and the impoundments that were formed by sediment downstream traditional navigable waters, territorial seas. Adjacent waters store water, deposition from those waters under present interstate waters, and the territorial seas. which can reduce flooding of downstream climatic conditions. These natural Riparian and floodplain wetlands are waters, and the loss of adjacent waters has geomorphic features are inundated during important for the reduction or delay of been shown, in some circumstances, to moderate to high water events. Id. (citing L.B. floods. Id.at 3–22 (citing A. Bullock and M. increase downstream flooding. Adjacent Leopold, A View of the River (Cambridge, Acreman, ‘‘The Role of Wetlands in the waters maintain water quality and quantity, MA: Harvard University Press, 1994); W.R. Hydrological Cycle,’’ Hydrology and Earth trap sediments, store and modify potential Osterkamp, Annotated Definitions of System Sciences 7:358–389 (2003)). Waters in pollutants, and provide habitat for plants and Selected Geomorphic Terms and Related riparian areas control flooding during times animals, thereby sustaining the biological Terms of Hydrology, Sedimentology, Soil of high precipitation or snowmelt by productivity of downstream rivers, lakes and Science and Ecology, USGS Open File Report capturing water from overbank flow and estuaries, which may be traditional navigable 2008–1217 (Reston, VA: U.S. Department of storing excess stream water. Id. at 5–6. One waters, interstate waters, or the territorial the Interior, U.S. Geological Survey, 2008)). study found that peak flows in the Cache seas. The scientific literature and Report By ‘‘present climactic conditions,’’ the River in Arkansas decreased by 10–20% supports these conclusions, as discussed in agencies mean that currently or recently mainly because of floodplain water storage. greater detail below. active floodplains will be used to help Id. (citing R. Walton, et al., ‘‘Hydrology of the determine whether wetlands or waters are Black Swamp Wetlands on the Cache River, 1. Adjacent Waters Under This Proposed adjacent to ‘‘waters of the United States.’’ Arkansas,’’ Wetlands 16:279–287 (1996). Rule Have a Significant Nexus to (a)(1) The proposed definition is limited to the Research has shown that floodplain wetlands Through (a)(3) Waters present climactic conditions in order to best in Ohio store about 40% of the flow of small The discussion below summarizes the key represent the floodplain that has an active streams. Id. at 5–6 to 5–7 (citing D.E. Gamble, points made in the Report and explains the and significant relationship with the stream et al., An Ecological and Functional technical basis for supporting a conclusion or river channel. Historic floodplains that Assessment of Urban Wetlands in Central that adjacent waters, as defined in this played a role in the river or lake dynamics Ohio. Columbus, Ohio, EPA Technical Report proposed rule, have a significant nexus to in the past only will not be used to determine WET/2007–3B, (Columbus, OH: Ohio waters identified in paragraphs (a)(1) through whether a water is adjacent. Floodplains Environmental Protection Agency, Wetland (a)(3) of the proposed rule. The geographic formed under different climactic conditions Ecology Group, Division of Surface Water, position of an ‘‘adjacent’’ water relative to the that no longer connect to the stream channel 2007)). These and similar findings point to stream is indicative of the relationship they that formed them are terraces. Id. It should the close hydrological influence that waters share, with many of its defining be noted that ‘‘floodplain’’ as defined in in riparian and floodplain areas have on characteristics resulting from the movement today’s proposed rule does not necessarily streams. of materials and energy between the two. A equate to the 100-year floodplain as defined Some adjacent waters are bordering or review and analysis of the scientific literature by the Federal Emergency Management contiguous with (a)(1) through (a)(5) waters. supports the conclusion that individually or Agency (FEMA). However, the FEMA defined Because of their close physical proximity to in combination with similarly situated waters floodplain may often coincide with the nearby water bodies, they readily exchange in a watershed, adjacent waters have a current definition proposed in this rule. their waters through the saturated soils significant effect on the chemical, physical, Flood insurance rate maps are based on the surrounding the stream or through surface and biological integrity of downstream probability of a flood event occurring (e.g., exchange. This commingling of waters allows traditionally navigable waters, interstate 100-year floods have a 1% probability of bordering or contiguous waters to both waters, and the territorial seas. occurring in a given year or 500 year-floods provide chemically transformed waters to have a 0.2% probability of occurring in a streams and to absorb excess stream flow. a. Riparian and Floodplain Waters particular year). Flood insurance rate maps Flow between neighboring waters and Significantly Affect the Chemical, Physical, are not based on an ecological definition of streams is more longitudinal (downslope) at or Biological Integrity of (a)(1) Through (a)(3) the term ‘‘floodplain,’’ and therefore may not headwaters and more lateral further Waters be appropriate for identifying adjacent downstream. Id. at 5–38, Table 5–3. These Waters, including wetlands, often lie wetlands and waters for the purposes of connections in part determine stream flow within landscape settings that have CWA jurisdiction. Flood insurance rate maps volume and duration. Waters, including bidirectional hydrological exchange with are developed by applying models and other wetlands, in riparian areas connect to (a)(1) through (a)(5) waters (e.g., wetlands information to identify areas that would be neighboring water bodies through various and open waters in riparian areas and flood inundated by a flood event of a particular surface and subsurface connections. See, e.g., plains). Such waters play an integral role in probability of recurring. id. at 3–4 (citing National Research Council,

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Riparian Areas: Functions and Strategies for sunlight transmission through the water R. Montgomery, ‘‘Large Woody Debris Jams, Management (Washington, DC: National column, inhibiting plant photosynthesis and Channel Hydraulics and Habitat Formation Academy Press, 2002)). Floodplains, warming the water in the stream. Sediment in Large Rivers,’’ Regulated Rivers: Research similarly, are closely associated with the may fill the interstitial spaces between rocks & Management 12:201–221 (1996); R.J. groundwater found beneath and beside river in a streambed, which many fish and aquatic Naiman and H. Decamps, ‘‘The Ecology of channels (which are considered shallow species use for mating, reproduction, and Interfaces: Riparian Zones,’’ Annual Review aquifers) and waters in floodplains readily shelter from predators. This kind of physical of Ecology and Systematics 28:621–658 exchange water with such aquifers. Id. at 3– degradation of tributary streambeds results in 91997); A.M. Gurnell, et al., ‘‘Large Wood 14 (citing J.A. Stanford and J. V. Ward, ‘‘An less suitable habitat available for animals and and Fluvial Processes,’’ Freshwater Biology Ecosystem Perspective of Alluvial Rivers: fish that move between upstream and 47:601–619 (2002)). Also, the riparian Connectivity and the Hyporheic Corridor,’’ downstream waters. Riparian waters that vegetation that overhangs streams provides Journal of the North American Benthological retain sediments thus protect downstream shade, providing a critically important Society 12:48–60 (1993); C. Amoros and G. waters from the effects of excess sediment. function of reducing fluctuations in water Bornette, ‘‘Connectivity and Biocompexity in Oxbow lakes play similar roles in the temperature helping to reduce excessive algal Waterbodies of Riverine Floodplains,’’ floodplain as they are an integral part of production and to maintain life-supporting Freshwater Biology 47:761–776 (2002); G.C. alluvial floodplains of meandering rivers. Id. oxygen levels in streams and other waters. Id. Poole, et al., ‘‘Multiscale Geomorphic Drivers at 5–42 (citing K.O. Winemiller, et al., ‘‘Fish at 5–9 (citing S.V. Gregory, et al., ‘‘An of Groundwater Flow Paths: Subsurface Assemblage Structure in Relation to Ecosystem Perspective of Riparian Zones: Hydrologic Dynamics and Hyporheic Environmental Variation among Brazos River Focus on Links between Land and Water,’’ Diversity,’’ Journal of the North American Oxbow Lakes,’’ Transactions of the American Bioscience 41:540–551 (1991); E.C. Volkmar Benthological Society 25:288–303 (2006)). Fisheries Society 129:451–468 (2000), K. and R.A. Dahlgren, ‘‘Biological Oxygen Riparian and floodplain wetlands are Glinska-Lewczuk, ‘‘Water Quality Dynamics Demand Dynamics in the Lower San Joaquin frequently contiguous with streams and other of Oxbow Lakes in Young Glacial Landscape River, California,’’ Environmental Science & water bodies and significantly influence the of NE Poland in Relation to Their Technology 40:5653–5660 (2006)). Even hydrology of such water bodies. Id. at 5–6 Hydrological Connectivity,’’ Ecological small changes in water temperature can have (citing R.J. Naiman, et al., Riparia: Ecology, Engineering 35:25–37 (2009)). They connect significant impacts on the type and number Conservation, and Management of to rivers by periodic overland flow, typically of species present in waters, with higher Streamside Communities (Burlington, MA: from the river during flooding events, and temperatures generally associated with Elsevier Academic Press, 2005); P. Vidon, et bidirectional shallow subsurface flow degraded habitat which supports only those al., ‘‘Hot Spots and Hot Moments in Riparian through fine river soils (bidirectional means species that can tolerate higher temperatures Zones: Potential for Improved Water Quality flow from river to lake and lake to river). Id. and reduced levels of dissolved oxygen. Management,’’ Journal of the American at 5–43 to 5–44. Oxbow lakes generally have Higher water temperatures are associated Water Resources Association 46:278–298 an important influence on the condition and with streams and rivers with less valuable (2010)). Floodplain wetlands are important function of rivers. Id. at 5–48 to 5–49. That recreational and commercial fisheries. As for the reduction or delay of floods. Id. (citing influence can vary with the distance from the discussed below, these physical A. Bullock and M. Acreman, ‘‘The Role of river and the age of the oxbow, reflecting the characteristics of headwater streams Wetlands in the Hydrological Cycle,’’ frequency and nature of the exchange of influence what types of organisms live in the Hydrology and Earth System Sciences 7:358– materials that takes place between the two region. 389 (2003)). Oxbow lakes also retain flood water bodies. Headwaters and nearby wetlands supply waters. Id. at 5–44. Adjacent ponds generally Because adjacent waters support riparian downstream waters with dissolved organic function similarly to oxbow lakes. vegetation, they affect the capacity of riparian carbon as a result of decomposition processes Waters in riparian areas filter sediment vegetation to influence stream flow, from dead organic matter such as plants. The washed down from uplands and collect morphology, and habitat provided in the biological consequences of this dissolved sediment from overbank flow as the river or nearby water body. Vegetation in riparian organic carbon are discussed in more detail stream floods. Id. at 5–7. For example, waters influences the amount of water in the below. The presence of dissolved organic riparian areas were observed to collect 80– stream by capturing and transpiring stream carbon can affect how light penetrates the 90% of the sediment from farmlands in a flow and intercepting groundwater and water, an important factor in the growth of study in North Carolina. Id. (citing A. overland flow. Id. at 3–22, 5–7 (citing P. plants, algae, and other primary producers, Cooper, et al., ‘‘Riparian Areas as Filters for Meyboom, ‘‘Three Observations on and can protect aquatic organisms from the Agricultural Sediment,’’ Soil Science Society Streamflow Depletion by Phreatophytes,’’ harmful effects of UV–B radiation. Id. at 5– of America Proceedings 51:416–420 (1987); Journal of Hydrology 2:248–261 (1964)). 28 to 5–29 (citing K.N. Eshelman and H.F. Hemond, ‘‘The role of organic acids in the R.B. Daniels and J.G. Gilliam, ‘‘Sediment and Riparian vegetation in adjacent waters also acid-base status of surface waters at Bickford Chemical Load Reduction by Grass and reduces stream bank erosion, serving to Watershed, Massachusetts,’’ Water Resources Riparian Filters,’’ Soil Science Society of maintain the physical integrity of the Research 21:1503–1510 (1985); J.E. Hobbie America Journal 60:246–251 (1996); R.J. channel. See, e.g., id. at 5–8 (citing C.E. and R.G. Wetzel, ‘‘Microbial control of Naiman and H. Decamps, ‘‘The Ecology of Beeson and P. F. Doyle, ‘‘Comparison of Bank dissolved organic carbon in lakes: Research Interfaces: Riparian Zones,’’ Annual Review Erosion at Vegetated and Non-Vegetated for the future,’’ Hydrobiologia 229:169–180 of Ecology and Systematics 28:621–658 Channel Bends,’’ Journal of the American (1992); D.W. Schindler and P.J. Curtis, ‘‘The (1997)). Maintaining the equilibrium between Water Resources Association 31:983–990 role of DOC in protecting freshwaters sediment deposition and sediment transport (1995)). In addition, inputs of woody debris subjected to climate warming and is important to maintain the physical shape from aquatic vegetation into waters make acidification from UV exposure,’’ and structure of stream channels. Significant important contributions to the channel’s Biogeochemistry 36:1–8 (1997); K.R. Reddy changes to upstream channels can affect the geomorphology and the stream’s aquatic and R.D. DeLaune, Biogeochemistry of chemical, physical, and biological condition habitat value. Id. (citing N.H. Anderson and Wetlands: Science and Applications, (Boca of downstream (a)(1) through (a)(3) waters. J. R. Sedell, ‘‘Detritus Processing by Raton, FL: CRC Press, 2008)). The physical effects of excess sediment can Macroinvertebrates in Stream Ecosystems,’’ impair chemical and ecological integrity in a Annual Review of Entomology 24:351–377 c. Riparian and Floodplain Waters variety of ways. Id. at 5–9 (citing P.J. Wood (1979); M.E. Harmon, et al., ‘‘Ecology of Significantly Affect the Chemical Integrity of and P.D. Armitage, ‘‘Biological Effects of Fine Coarse Woody Debris in Temperature (a)(1) Through (a)(3) Waters Sediment in the Lotic Environment,’’ Ecosystems,’’ Advances in Ecological As stated above in the section on Environmental Management 21:203–217 Research 15:133–302 (1986); F. Nakamura tributaries, pollutants such as petroleum (1997)). Excess sediment is linked to and F. J. Swanson, ‘‘Effects of Coarse Woody waste products and other harmful pollutants increasing contaminant and nutrient Debris on Morphology and Sediment Storage dumped into any part of the tributary system concentrations, all of which tributaries can of a Mountain Stream System in Western are likely to flow downstream, or to be transmit downstream, affecting water quality. Oregon,’’ Earth Surface Processes and washed downstream, and thereby pollute Excess sediment may block and absorb Landforms 18:43–61 (1993); T.E. Abbe and D. traditional navigable waters, interstate

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waters, and the territorial seas from which Ecology of Hydrologically Dynamic Perspective of Riparian Zones: Focus on American citizens take their drinking water, Wetlands,’’ in D.P. Batzer and R.R. Sharitz, Links between Land and Water,’’ Bioscience shellfish, fin fish, water-based recreation, and ed., Ecology of Freshwater and Estuarine 41:540–551 (1991); P. Vidon, et al., ‘‘Hot many other uses. Some wetlands perform the Wetlands (Berkeley, CA: University of Spots and Hot Moments in Riparian Zones: valuable function of trapping or filtering out California Press, 2006), pp. 115–176; W.J. Potential for Improved Water Quality some pollutants (such as fertilizers, silt, and Mitsch and J.G. Gosselink, Wetlands, 4th Management,’’ Journal of the American some pesticides), thereby reducing the edition, (Hoboken, NJ: John Wiley & Sons Water Resources Association 46:278–298 likelihood that those pollutants will reach Inc., 2007); K.R., Reddy and R.D. DeLaune, (2010)). Riparian waters are therefore and pollute the tributaries of the downstream Biogeochemistry of Wetlands: Science and important in maintaining the conditions navigable or interstate waters (and eventually Applications (Boca Raton, FL: CRC Press, important for denitrification, which in turn pollute those downstream waters 2008). These chemical processes reduce or protects streams, rivers, lakes and other themselves). However, many other pollutants eliminate pollution that would otherwise waters from nitrogen pollution. (such as petroleum wastes and toxic enter streams, rivers, lakes and other waters Plant uptake of dissolved nitrogen in chemical wastes), if dumped into wetlands or and subsequently downstream traditional subsurface flows also accounts for large other waters that are adjacent to tributary navigable waters, interstate waters, or the quantities of nitrogen removal. Riparian streams, may reach those tributaries territorial seas. The removal of the nutrients forests have been found to remove 75% of themselves, and thereafter flow downstream nitrogen and phosphorus is a particularly dissolved nitrate transported from to pollute the nation’s drinking water supply, important role for riparian waters. Nutrients agricultural fields in Maryland. Id. (citing P. fisheries, and recreation areas. are necessary to support aquatic life, but the Vidon, et al., ‘‘Hot Spots and Hot Moments Riparian and floodplain waters play a presence of excess nutrients can lead to in Riparian Zones: Potential for Improved critical role in controlling the chemicals that eutrophication and the depletion of oxygen Water Quality Management,’’ Journal of the nearby waters and in waters far downstream. enter streams and other ‘‘waters of the United American Water Resources Association States’’ and as a result are vital in protecting See, e.g., id. at 1–8. Eutrophication is a large 46:278–298 (2010)). Likewise, riparian forests the chemical, physical, and biological problem in waters across the United States in Georgia remove 65% of nitrogen and 30% integrity of downstream (a)(1) through (a)(3) including such significant ecosystems as the of phosphorus from agricultural sources. Id. waters. Runoff (the water that has not Chesapeake Bay and Lake Spokane in at 5–11 to 5–12 (citing Vidon, et al. 2010). A evaporated or infiltrated into the Washington. W.M. Kemp, et al., Pennsylvania forest removed 26% of the groundwater) from uplands is a large source ‘‘Eutrophication of Chesapeake Bay: nitrate from the subsurface. Id. at 5–12 (citing of pollution, but research has shown that Historical Trends and Ecological J.D. Newbold, et al., ‘‘Water Quality wetlands and other riparian waters trap and Interactions,’’ Marine Ecology Progress Series Functions of a 15-Year-Old Riparian Forest chemically transform a substantial amount of 303(21):1–29 (2005); D.J. Moore and J. Ross, Buffer System,’’ Journal of the American the nutrients, pesticides, and other pollutants Spokane River and Lake Spokane Dissolved Water Resources Association 46:299–310 before they enter streams, river, lakes and Oxygen Total Maximum Daily Load: Water (2010)). The vegetation associated with other waters. Quality Improvement Report, Publication No. Chemicals and other pollutants enter 07–10–073 (Spokane, WA: Washington State riparian waters also removes nitrogen from waters from point sources, non-point sources, Department of Ecology, 2010); R.R. Murphy, subsurface flows. Therefore, the conservation atmospheric deposition, upstream reaches, et al., ‘‘Long-Term Trends in Chesapeake Bay of riparian waters helps protect downstream and through the hyporheic zone, a region Seasonal Hypoxia, Stratification, and waters from influxes of dissolved nitrogen. beneath and alongside a stream bed where Nutrient Loading,’’ Estuaries and Coasts Phosphorus is another potentially harmful surface water and shallow groundwater mix. 34(6):1293–1309 (2011). Eutrophication is the nutrient that is captured and processed in Id. at 5–10 (citing SW. Nixon and V.J. Lee, process by which plants and algae grow in riparian waters. Id. (citing T.A. Dillaha and Wetlands and Water Quality: A Regional waters to such an extent that the abundance S.P. Inamdar, ‘‘Buffer Zones as Sediment Review of Recent Research in the United of vegetation monopolizes the available Traps or Sources,’’ in N.E. Haycock, T.P. States on the Role of Freshwater and oxygen, detrimentally affecting other aquatic Burt, K.W.T. Goulding, and G. Pinay, ed., Saltwater Wetlands as Sources, Sinks, and organisms. Id. Oxbow lakes also have high Buffer Zones: Their Processess and Potential Transformers of Nitrogen, Phosphorus, and mineralization rates, suggesting that similar in Water Protection, Proceedings of the Various Heavy Metals, Technical Report Y– to adjacent wetlands they process and trap International Conference on Buffer Zones, 86–2, (Vicksburg, MS: U.S. Army Corp of nutrients from runoff. Report at 5–45 to 5– September 1996 (Hertfordshire, UK: Quest Engineers, Waterways Experiment Station, 46 (citing K.O. Winemiller, et al., ‘‘Fish Environmental, 1997), pp. 33–42; A.N. 1986); D.F. Whigham and T.E. Jordan, Assemblage Structure in Relation to Sharpley and S. Rekolainen, ‘‘Phosphorus in ‘‘Isolated Wetlands and Water Quality,’’ Environmental Variation among Brazos River Agriculture and Its Environmental Wetlands 23:541–549 (2003); S.L.Whitmire Oxbow Lakes,’’ Transactions of the American Implications,’’ in H. Tunney, et al., ed., and S.K. Hamilton, ‘‘Rates of Anaerobic Fisheries Society 129:451–468 (2000)). Phosphorus Losses from Soil to Water Microbial Metabolism in Wetlands of Protection of these waters therefore helps (Cambridge, UK: CAB International, 1997), Divergent Hydrology on a Glacial maintain the chemical integrity of the pp. 1–54; G.C. Carlyle and A.R. Hill, Landscape,’’ Wetlands 28:703–714 (2008)). nation’s waters. ‘‘Groundwater Phosphate Dynamics in a Throughout the stream network, but The removal of nitrogen is an important River Riparian Zone: Effects of Hydrologic especially in headwater streams and their function of all waters, including wetlands, in Flowpaths, Lithology, and Redox adjacent wetlands, chemicals are the riparian areas. Riparian areas regularly Chemistry,’’ Journal of Hydrology 247:151– sequestered, assimilated, transformed, or lost remove more than half of dissolved nitrogen 168 (2001)). Biogeochemical processes, to the atmosphere by microbes, fungi, algae, found in surface and subsurface water by sedimentation, and plant uptake account for and macrophytes present in riparian waters plant uptake and microbial transformation. high rates of removal of particulate and soils. Id. (citing SW. Nixon and V.J. Lee, Id. at 5–11 (citing P. Vidon, et al., ‘‘Hot Spots phosphorus in riparian areas. Id. (citing C.C. Wetlands and Water Quality: A Regional and Hot Moments in Riparian Zones: Hoffmann, et al., ‘‘Phosphorus Retention in Review of Recent Research in the United Potential for Improved Water Quality Riparian Buffers: Review of Their States on the Role of Freshwater and Management,’’ Journal of the American Efficiency,’’ Journal of Environmental Saltwater Wetlands as Sources, Sinks, and Water Resources Association 46:278–298 Quality 38:1942–1955 (2009)). The amount of Transformers of Nitrogen, Phosphorus, and (2010)). Denitrification in surface and contact the water has with nearby soils Various Heavy Metals, Technical Report Y– subsurface flows is highest where there is determines the ability of the riparian area to 86–2, (Vicksburg, MS: U.S. Army Corp of high organic matter and/or anoxic remove phosphorus. Id. This function of Engineers, Waterways Experiment Station, conditions. Id. Denitrification occurs in upstream riparian waters is crucial for 1986); C. Johnston, ‘‘Sediment and Nutrient wetland soils where there is high organic maintaining the chemical and biological Retention by Freshwater Wetlands: Effects on matter, low oxygen, denitrifying microbes, integrity of the waters to which they are Surface Water Quality,’’ Critical Reviews in and saturated soil conditions, and rates adjacent, and for preventing eutrophication Environmental Control 21:491–565 (1991); increase with proximity to streams. Id. (citing in downstream traditional navigable waters, P.I. Boon, ‘‘Biogeochemistry and Bacterial S.V. Gregory, et al., ‘‘An Ecosystem interstate waters, and the territorial seas.

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d. Riparian and Floodplain Waters absent or limited, particularly in headwater invertebrates between stream channels and Significantly Affect the Biological Integrity of systems where vegetative litter alone makes forested floodplains,’’ Journal of the North (a)(1) Through (a)(3) Waters up the base of the aquatic food web. The American Benthological Society 13:524–531 Waters and wetlands located in both maintenance of floodplain waters is therefore (1994); C. T. Robinson, et al., ‘‘The fauna of riparian areas and floodplains support the an important component of protecting the dynamic riverine landscapes,’’ Freshwater biological integrity of downstream (a)(1) biological integrity of downstream waters Biology 47:661–677 (2002); J.S. Richardson, through (a)(3) waters in a variety of ways. into which the headwaters flow. et al., ‘‘Riparian communities associated with They provide habitat for aquatic and water- The waters, including wetlands, in the Pacific Northwest headwater streams: tolerant plants, invertebrates, and vertebrates, riparian area play an important role in the Assemblages, processes, and uniqueness,’’ and provide feeding, refuge, and breeding removal of pesticides. Id. at 5–14 (citing P. Journal of the American Water Resources areas for invertebrates and fish. Seeds, plants, Vidon, et al., ‘‘Hot Spots and Hot Moments Association 41:935–947 (2005); C. Ilg, et al., and animals move between waters in the in Riparian Zones: Potential for Improved ‘‘Long-term reactions of plants and riparian zone and floodplains and the Water Quality Management,’’ Journal of the macroinvertebrates to extreme floods in adjacent streams, and from there colonize or American Water Resources Association floodplain grasslands,’’ Ecology 89:2392– utilize downstream waters, including 46:278–298 (2010). Microbes near plant roots 2398 (2008); D.E. Shoup, and D. H. Wahl, traditional navigable waters. break down these pesticides. See, e.g., id. ‘‘Fish diversity and abundance in relation to Organic matter from adjacent wetlands is (citing G. Voos, and P.M. Groffman, interannual and lakespecific variation in critical to aquatic food webs, particularly in ‘‘Relationships between microbial biomass abiotic characteristics of floodplain lakes of headwaters, where it is the primary source of and dissipation of 2,4–D and dicamba in the lower Kaskaskia River, Illinois,’’ energy flow due to low light conditions that soil,’’ Biology and Fertility of Soils 24:106– Transactions of the American Fisheries inhibit photosynthesis. Id. at 5–13 (citing J.L. 110 (1996)). Uptake by aquatic plants has Society 138:1076–1092 (2009)). Likewise, Tank, et al., ‘‘A Review of Allochthonous also been shown to be an important seeds, plant fragments, and whole plants Organic Matter Dynamics and Metabolism in mechanism of removal of the pesticides move between riparian and floodplain waters Streams,’’ Journal of the North American alachlor and atrazine. Id. (citing K.G. and the river network. Id. at 5–15 (citing R.L. Benthological Society 29:118–146 (2010)). Paterson and J.L. Schnoor, ‘‘Fate of Alachlor Schneider, and R.R. Sharitz, ‘‘Hydrochory Headwater streams tend to be located in and Atrazine in a Riparian Zone Field Site,’’ and regeneration in a bald cypress water heavily vegetated areas compared to larger Water Environment Research 64:274–283 tupelo swamp forest,’’ Ecology 69:1055–1063 waters, so they are more likely to contain leaf (1992)). Riparian waters also trap and hold (1988); B. Middleton, ‘‘Hydrochory, seed litter, dead and decaying plants, and other pesticide contaminated runoff preventing it banks, and regeneration dynamics along the organic matter that forms the basis of from harming neighboring waters. landscape boundaries of a forested wetland,’’ headwater food webs. The organic matter is Riparian areas are dynamic places that Plant Ecology 146:169–184 (2000); C. processed by microbes and insects that make support a diversity of aquatic, amphibious, Nilsson, et al., ‘‘The role of hydrochory in the energy available to higher levels of stream and terrestrial species adapted to the unique structuring riparian and wetland vegetation,’’ life such as amphibians and fish. Studies habitat created by periodic flooding events. Biological Reviews 85:837–858 (2010)). have shown that macroinvertebrates rely on Id. at 5–15 (citing W.J. Junk, et al., ‘‘The flood Hydrological connections are often drivers leaf inputs in headwater streams and that pulse concept in river-floodplain systems,’’ of biological connections, and flooding excluding organic litter from a stream in D.P. Dodge, ed., Proceedings of the events enhance the existing connections resulted in significant changes to the food International Large River Symposium Ottawa between floodplain waters and the river web at multiple levels. Id. (citing G.W. (Ottawa, Canada: Canadian Special network. As a result, waters within Minshall, ‘‘Role of Allochthonous Detritus in Publication of Fisheries and Aquatic floodplains have important functions for the Tropic Structure of a Woodland Sciences 106, 1989), pp. 110–127; K. aquatic health. Many species have cycles Springbrook Community,’’ Ecology 48:139– Tockner, et al., ‘‘An Extension of the Flood timed to flooding events, particularly in 149 (1967); J.B. Wallace, et al., ‘‘Multiple Pulse Concept,’’ Hydrological Processes circumstances where flooding is associated Trophic Levels of a Forest Stream Linked to 14:2861–2883 (2000); C.T. Robinson, et al., with annual spring snowmelt or high Terrestrial Litter Inputs,’’ Science 277:102– ‘‘The Fauna of Dynamic Riverine precipitation. Id. at 5–15 to 5–17, 5–20 (citing 104 (1997); J.L. Meyer, et al., ‘‘Leaf Litter as Landscapes,’’ Freshwater Biology 47:661–677 J.R. Thomas, et al., ‘‘A landscape perspective a Source of Dissolved Organic Carbon in (2002)). Plants, invertebrates, and vertebrates of the stream corridor invasion and habitat Streams,’’ Ecosystems 1:240–249 (1998)). use waters, including wetlands, in the characteristics of an exotic (Dioscorea Fish and amphibian species found in riparian areas for habitat, nutrients, and oppositifolia) in a pristine watershed in headwaters travel downstream and in turn breeding. As a result, the waters, including Illinois,’’ Biological Invasions 8:1103–1113 become part of the food web for larger wetlands, in the riparian areas act as sources (2006); L.M. Tronstad, et al., ‘‘Aerial aquatic organisms in rivers and other waters. of organisms, particularly during inundation colonization and growth: Rapid invertebrate Organic material provided by riparian waters events, replenishing neighboring waters with responses to temporary aquatic habitats in a to small, headwater streams is therefore organisms, seeds, and organic matter. river floodplain,’’ Journal of the North important not only to the small streams that Inundation and hydrological connectivity of American Benthological Society 26:460–471 directly utilize this source of energy to riparian areas greatly increase the area of (2007); A. Gurnell, et al., ‘‘Propagule support their biological populations but also aquatic habitats and species diversity. Id. at deposition along river margins: Linking to the overall biological integrity of 5–15 to 5–16 (citing W.J. Junk et al. 1989; R. hydrology and ecology,’’ Journal of Ecology downstream waters that also benefit from the Jansson, et al., ‘‘Hydrochory Increases 96:553–565 (2008)). Waters within movement of fish and other species that Riparian Plant Species Richness: A floodplains act as sinks of seeds, plant contribute to the food web of larger streams Comparison between a Free-Flowing and a fragments, and invertebrate eggs, allowing for and rivers. Regulated River,’’ Journal of Ecology cross-breeding and resulting gene flow across Floodplain water bodies, including oxbow 93:1094–1103 (2005)). Aquatic animals, time. Id. at 5–19 to 5–21 (citing K.M. Jenkins, lakes, accumulate organic carbon, an including amphibians and fish, take and A.J. Boulton, ‘‘Connectivity in a dryland important function influenced by the size advantage of the waters present in riparian river: Short-term aquatic microinvertebrate and frequency of floods from adjacent rivers. areas, either inhabiting them or moving recruitment following floodplain See, e.g., id. at 5–45 (citing A. Cabezas, et al., between the riparian water and neighboring inundation,’’ Ecology 84:2708–2723 (2003); ‘‘Changing Patterns of Organic Carbon and waters. Id. at 5–15, 5–17, 5–19 (citing G.H. D. Frisch, and S.T. Threlkeld, ‘‘Flood- Nitrogen Accretion on the Middle Ebro Copp, ‘‘The habitat diversity and fish mediated dispersal versus hatching: Early Floodplain (NE Spain),’’ Ecological reproductive function of floodplain recolonisation strategies of copepods in Engineering 35:1547–1558 (2009)). These ecosystems,’’ Environmental Biology of floodplain ponds,’’ Freshwater Biology stored chemicals are available for exchange Fishes 26:1–27 (1989); L.A. Smock, et al., 50:323–330 (2005); B. Vanschoenwinkel, et with river water when hydrological ‘‘Lotic macroinvertebrate production in three al., ‘‘Wind mediated dispersal of freshwater connections form. Organic materials are the dimensions: Channel surface, hyporheic, and invertebrates in a rock pool metacommunity: basis for the food web in stream reaches floodplain environments,’’ Ecology 73:876– Differences in dispersal capacities and where photosynthetic production of energy is 886 (1992); L.A. Smock, ‘‘Movements of modes,’’ Hydrobiologia 635:363–372 (2009)).

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Micro- and macroinvertebrates colonize foraging, hunting, and breeding sites for fish Otters in Massachusetts,’’ Journal of Wildlife nutrient rich waters within floodplains and amphibians. Id. at 5–15 (citing G.H. Management 58:18–23 (1994)). Several during periods of inundation, facilitating an Copp, ‘‘The Habitat Diversity and Fish species of amphibians and reptiles including increase in population and sustaining them Reproductive Function of Floodplain frogs, snakes and turtles use both streams and though times of limited resources and Ecosystems,’’ Environmental Biology of neighboring waters. Id. at 1–10, 5–4 to 5–5 population decline. Id. at 5–19 (citing W.J. Fishes 26:1–27 (1989); J.S. Richardson, et al., (Table 5–1), 5–15 (citing J.S. Richardson, et Junk, et al., ‘‘The flood pulse concept in ‘‘Riparian Communities Associated with al., ‘‘Riparian Communities Associated with river-floodplain systems,’’ in D.P. Dodge, ed., Pacific Northwest Headwater Streams: Pacific Northwest Headwater Streams: Proceedings of the International Large River Assemblages, Processes, and Uniqueness,’’ Assemblages, Processes, and Uniqueness,’’ Symposium Ottawa (Ottawa, Canada: Journal of the American Water Resources Journal of the American Water Resources Canadian Special Publication of Fisheries Association 41:935–947 (2005)). Association 41:935–947 (2005)). Movement and Aquatic Sciences 106, 1989), pp. 110– Plants and animals move back and forth between wetlands and the river network also 127; B. Malmqvist, ‘‘Aquatic invertebrates in between riparian or floodplain waters and occurs by the dispersal of seed and plant riverine landscapes,’’ Freshwater Biology the river network. This movement is assisted fragments and the wind dispersal of 47:679–694 (2002); C. Ilg, et al., ‘‘Long-term in some cases when flooding events create invertebrates. Id. at 5–15, 5–20 (citing R.L. reactions of plants and macroinvertebrates to hydrological connections. For instance, these Schneider and R.R. Sharitz, ‘‘Hydrochory and extreme floods in floodplain grasslands,’’ floodplain and riparian wetlands provide Regeneration in a Bald Cypress Water Tupelo Ecology 89:2392–2398 (2008)). Such animals refuge, feeding, and rearing habitat for many Swamp Forest,’’ Ecology 69:1055–1063 are adapted to high floods, desiccation fish species. Id. at 5–17 (citing C.H. Wharton, (1988); B. Middleton, ‘‘Hydrochory, Seed (drying out), or other stresses that come with et al., The Ecology of Bottomland Hardwood Banks, and Regeneration Dynamics Along the these regular, systemic fluctuations. Id. at 5– Swamps of the Southeast: A Community Landscape Boundaries of a Forested 20 (citing Jenkins and Boulton 2003). Profile, FWS/OBS–81/37 (Washington, DC: Wetland,’’ Plant Ecology 146:169–184 (2000); Floodplain waters therefore maintain various U.S. Department of the Interior, Fish and A.M. Gurnell, ‘‘Analogies Between Mineral biological populations, which periodically Wildlife Service, Biological Services Sediment and Vegetative Particle Dynamics replenish adjacent jurisdictional waters, Program, 1982); M.P. Matheney and C.F. in Fluvial Systems,’’ Geomorphology 89:9–22 serving to maintain their biological integrity. Rabeni, ‘‘Patterns of Movement and Habitat (2007); A. Gurnell, et al., ‘‘Propagule Plants and animals use waters, including Use by Northern Hogsuckers in an Ozark Deposition Along River Margins: Linking wetlands, in the riparian areas and Stream,’’ Transactions of the American Hydrology and Ecology,’’ Journal of Ecology floodplains for habitat, food, and breeding. Fisheries Society 124:886–897 (1995); A.A. 96:553–565 (2008); C. Nilsson, et al., ‘‘The Oxbow lakes in the floodplain provide Pease, et al., ‘‘Habitat and Resource Use by Role of Hydrochory in Structuring Riparian critical fish habitat needed for feeding and Larval and Juvenile Fishes in an Arid-Land and Wetland Vegetation,’’ Biological Reviews rearing, leading researchers to conclude that River (Rio Grande, New Mexico),’’ 85:837–858 (2010); L.M. Tronstad, et al., the entire floodplain should be considered a Freshwater Biology 51:475–486 (2006); J.A. ‘‘Aerial Colonization and Growth: Rapid single functional unit, essential to the river’s Henning, et al., ‘‘Use of Seasonal Freshwater Invertebrate Responses to Temporary Aquatic biological integrity. Id. at 5–17 (citing D.E. Wetlands by Fishes in a Temperate River Habitats in a River Floodplain,’’ Journal of Shoup and D.H. Wahl, ‘‘Fish Diversity and Floodplain,’’ Journal of Fish Biology 71:476– the North American Benthological Society Abundance in Relation to Interannual and 492 (2007); C.A. Jeffres, et al., ‘‘Ephemeral 26:460–471 (2007)). Animals, particularly Lake-Specific Variation in Abiotic Floodplain Habitats Provide Best Growth migratory fish, may thus move between Characteristics of Floodplain Lakes of the Conditions for Juvenile Chinook Salmon in a adjacent waters and (a)(1) through (a)(3) Lower Kaskaskia River, Illinois,’’ California River,’’ Environmental Biology of waters. And even when some species do not Transactions of the American Fisheries Fishes 83:449–458 (2008)). Seeds ingested by traverse the entire distance from adjacent Society 138:1076–1092 (2009)). Since animals such as carp are dispersed in stream waters to downstream waters, the adjacent ponds are structurally and channels and associated waters. See, e.g., id. downstream waters still benefit from the biologically similar to oxbow lakes they serve at 5–16 (citing B.J.A. Pollux, et al., ecological integrity that persists because of similar functions relative to the nearby river ‘‘Consequences of Intraspecific Seed-Size the close relationship that adjacent waters or stream. Waters, including wetlands, in the Variation in Sparganium emersum for have with nearby waters. This is because the riparian areas also provide food sources for Dispersal by Fish,’’ Functional Ecology chemical and biological properties that arise stream invertebrates, which colonize during 21:1084–1091 (2007)). Also, phytoplankton from interactions between adjacent waters inundation events. Id. at 5–19 (citing W.J. move between floodplain wetlands and the and tributaries move downstream and Junk, et al., ‘‘The Flood Pulse Concept in river network. Id. at 5–17 (citing D.G. support the integrity of (a)(1) through (a)(3) River-Floodplain Systems,’’ in D.P. Dodge, Angeler, et al., ‘‘Phytoplankton community waters. ed., Proceedings of the International Large similarity in a semiarid floodplain under Biological connections between adjacent River Symposium Ottawa (Ottawa, Canada: contrasting hydrological connectivity waters and river systems do not always Canadian Special Publication of Fisheries regimes,’’ Ecological Research 25:513–520 increase with hydrologic connections. In and Aquatic Sciences 106, 1989), pp. 110– (2010)). In turn, the primary productivity some cases, the lack of connection improves 127; C. Ilg, et al., ‘‘Long-term Reactions of conditions in the floodplain results in large the biological contribution provided by Plants and Macroinvertebrates to Extreme populations of phytoplankton that enrich riparian waters towards neighboring streams, Floods in Floodplain Grasslands,’’ Ecology river networks when hydrological rivers, and lakes. For instance, the periodic 89:2392–2398 (2008)). Riparian waters also connections form. Id. (citing P.W. Lehman, et hydrologic disconnectedness of oxbow lakes form an integral part of the food web, linking al., ‘‘The Influence of Floodplain Habitat on is necessary for the accumulation of primary producers and plants to higher the Quantity and Quality of Riverine plankton, an important source of carbon animals. Id. (citing B. Malmqvist, ‘‘Aquatic Phytoplankton Carbon Produced During the more easily assimilated by the aquatic food Invertebrates in Riverine Landscapes,’’ Flood Season in San Francisco Estuary,’’ chain than terrestrial forms of carbon. Id. at Freshwater Biology 47:679–694 (2002); Aquatic Ecology 42:363–378 (2008)). This 5–46 (citing C. Baranyi, et al., ‘‘Zooplankton G.U.Y. Woodward and A.G. Hildrew, ‘‘Food influx of carbon into the river system Biomass and Community Structure in a Web Structure in Riverine Landscapes,’’ nourishes the downstream waters, for Danube River Floodplain System: Effects of Freshwater Biology 47:777–798 (2002), T.K. example, supporting fisheries. Hydrology,’’ Freshwater Biology 47:473–482 Stead, et al., ‘‘Secondary Production of a However, even when hydrological (2002); S. Keckeis, et al., ‘‘The Significance Stream Metazoan Community: Does the connections are absent, some organisms can of Zooplankton Grazing in a Floodplain Meiofauna Make a Difference?,’’ Limnology move between riparian waters and their System of the River Danube,’’ Journal of and Oceanography 50:398–403 (2005), D.J. neighboring tributaries by overland Plankton Research 25:243–253 (2003)). Woodford and A.R. McIntosh, ‘‘Evidence of movement in order to complete their life Similarly, some degree of hydrological Source-Sink Metapopulations in a Vulnerable cycle. River-dwelling mammals, such as river disconnectedness is important in increasing Native Galaxiid Fish Driven by Introduced otters, move from the river to riparian the number of mollusk species and Trout,’’ Ecological Applications 20:967–977 wetlands. Id. at 5–18 (citing D.G. Newman macroinvertebrate diversity in oxbow lakes, (2010)). Likewise, floodplains are important and C.R. Griffin, ‘‘Wetland Use by River which in turn support the diversity of

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mollusks throughout the aquatic system. Id. intermittent or ephemeral conveyances and these waters can reduce peak streamflow, at 5–46 to 5–47 (citing W. Reckendorfer, et can contribute flow to downstream waters via and thus, downstream flooding. Id. at 5–25 al., ‘‘Floodplain Restoration by Reinforcing their surface hydrologic connection. Id. at 5– (citing A. Bullock, and M. Acreman, ‘‘The Hydrological Connectivity: Expected Effects 22 (citing M.C. Rains, et al., ‘‘The Role of Role of Wetlands in the Hydrological Cycle,’’ on Aquatic Mollusc Communities,’’ Journal Perched Aquifers in Hydrological Hydrology and Earth System Sciences 7:358– of Applied Ecology 43:474–484 (2006); K. Connectivity and Biogeochemical Processes 389 (2003); P. McEachern, et al., ‘‘Landscape Obolewski, et al., ‘‘Effect of Hydrological in Vernal Pool Landscapes, Central Valley, Control of Water Chemistry in Northern Connectivity on the Molluscan Community California,’’ Hydrological Processes 20:1157– Boreal Streams of Alberta,’’ Journal of Structure in Oxbow Lakes of the Lyna River,’’ 1175 (2006); M.C. Rains, et al., ‘‘Geological Hydrology 323:303–324 (2006)). Antecedent Oceanological and Hydrobiological Studies Control of Physical and Chemical Hydrology moisture conditions, available wetland 38:75–88 (2009). in California Vernal Pools,’’ Wetlands storage, and evaporation rates could impact 2. Confined Surface and Shallow Subsurface 28:347–362 (2008); B.P. Wilcox, et al., water storage, as some waters connected to Hydrologic Connections Significantly Affect ‘‘Evidence of Surface Connectivity for Texas jurisdictional waters via discrete features the Chemical, Physical, or Biological Gulf Coast Depressional Wetlands,’’ may actually reduce flows in the streams Integrity of (a)(1) Through (a)(3) Waters Wetlands 31:451–458 (2011)).The surface they neighbor during dry periods. Id. at 5– hydrologic connection of the neighboring 26 (citing A. Bullock, and M. Acreman, ‘‘The Wetlands and open waters, including those water to the jurisdictional water and the Role of Wetlands in the Hydrological Cycle,’’ outside the riparian zone and floodplain, can close proximity of the waters enhance the Hydrology and Earth System Sciences 7:358– be connected downstream through neighboring waters substantial effects the 389 (2003)). Thus, wetlands and open waters unidirectional flow from the wetland or open waters have on downstream (a)(1) through with a confined hydrologic connection to water to a nearby tributary. Such connections (a)(3) waters. Wetlands and open waters that jurisdictional waters may function as a sink can occur through a confined surface or a are connected to (a)(1) through (a)(5) waters in dry periods if storage capacity is not shallow subsurface hydrologic connection. through a confined surface hydrologic exceeded and evaporation rates surpass Report at 3–7, 5–23. Outside of the riparian connection will have an impact on groundwater recharge. Id. at 5–26 to 5–27. zone and floodplain, surface hydrologic downstream (a)(1) through (a)(3) waters, Wetlands and open waters with confined connections between adjacent waters and regardless of whether the outflow is surface connections can affect the chemical jurisdictional waters can occur via confined permanent, intermittent, or ephemeral. See, integrity of waters to which they connect. flows (e.g. a swale, gully, ditch, or other e.g., id. at 5–1 to 5–2. Such waters can affect water quality of discrete feature). For purposes of this rule, Wetlands and open waters with confined jurisdictional waters through source and sink confined surface connections are defined as surface connections can affect the physical functions, often mediated by transformation permanent, intermittent or ephemeral surface integrity of waters to which they connect. of chemical constituents. The surface connections through directional flowpaths, Such waters can provide an important source hydrologic connections to nearby such as (but not limited to) swales, gullies, of baseflow to the streams to which they are jurisdictional waters provide pathways for rills, and ditches. In some cases, these adjacent, helping to sustain the water levels materials transformed in the wetlands and connections will be a result of ‘‘fill and spill’’ in the nearby streams. Id. at 5–22 (citing T.R. open waters (such as methylmercury or hydrology. A directional flowpath is a path Morley, et al., ‘‘The Role of Headwater degraded organic matter) to reach and affect where water flows repeatedly from the Wetlands in Altering Streamflow and the nearby waters and the downstream (a)(1) wetland or open water to the nearby Chemistry in a Maine, USA catchment,’’ through (a)(3). Id. at 5–27. Functions that jurisdictional water that at times contains occur in the wetlands and open waters can water originating in the wetland or open Journal of the American Water Resources water as opposed to just directly from Association 47:337–349 (2011); M.C. Rains, affect downstream (a)(1) through (a)(3) waters precipitation. For the purposes of this rule, et al., ‘‘The Role of Perched Aquifers in when compounds that are transformed in ‘‘fill and spill’’ describes situations where Hydrological Connectivity and wetland environments move to downstream wetlands or open waters fill to capacity Biogeochemical Processes in Vernal Pool waters via the surface hydrologic connection. during intense precipitation events or high Landscapes, Central Valley, California,’’ Id. at 5–28 (citing T.C. Winter and J.W. cumulative precipitation over time and then Hydrological Processes 20:1157–1175 (2006); LaBaugh, ‘‘Hydrologic Considerations in spill to the downstream jurisdictional water. M.C. Rains, et al., ‘‘Geological Control of Defining Isolated Wetlands,’’ Wetlands Id. at 5–62 (citing T.C. Winter and D.O. Physical and Chemical Hydrology in 23:532–540 (2003)). For example, Rosenberry, ‘‘Hydrology of Prairie Pothole California Vernal Pools,’’ Wetlands 28:347– methylmercury (which can form in Wetlands during Drought and Deluge: A 17- 362 (2008); B.P. Wilcox, et al., ‘‘Evidence of peatlands) can be transported through year Study of the Cottonwood Lake Wetland Surface Connectivity for Texas Gulf Coast entrainment with organic matter exports, and Complex in North Dakota in the Perspective Depressional Wetlands,’’ Wetlands 31:451– can move through surface flows from of Longer Term Measured and Proxy 458 (2011)) and T.M. Lee, et al., Effect of peatlands with confined surface connections Hydrological Records,’’ Climatic Change Groundwater Levels and Headwater to downstream waters. Id. at 5–28 (citing O. 40:189–209 (1998); S.G. Leibowitz, and K.C. Wetlands on Streamflow in the Charlie Creek Linqvist, et al., ‘‘Mercury in the Swedish Vining, ‘‘Temporal connectivity in a prairie Basin, Peace River Watershed, West-Central Environment—Recent Research on Causes, pothole complex,’’ Wetlands 23:13–25 Florida, U.S. Geological Survey Scientific Consequences, and Remedial Measures,’’ (2003)). Water connected through such flows Investigations Report 2010–5189 (Reston, Water Air and Soil Pollution 55:xi–xiii originate from the adjacent wetland or open Virginia: U.S. Department of the Interior, U.S. (1991); G. Mierle, and R. Ingram, ‘‘The Role water, travel to the downstream jurisdictional Geological Survey, 2010). Waters with a of Humic Substances in the Mobilization of water, and are connected to those confined surface connection to downstream Mercury from Watersheds,’’ Water Air and downstream waters by swales or other jurisdictional waters can affect streamflow by Soil Pollution 56:349–357 (1991); V.L. St. directional flowpaths on the surface. altering baseflow or stormflow through Louis, et al., ‘‘Importance of Wetlands as A confined surface hydrologic connection, several mechanisms, including surface Sources of Methyl mercury to Boreal Forest which may be perennial, intermittent or storage and groundwater recharge. Report at Ecosystems,’’ Canadian Journal of Fisheries ephemeral, supports periodic flows between 5–25. Wetlands effectively store water and Aquatic Sciences 51:1065–1076 (1994); the adjacent water and the jurisdictional because the entire aboveground portion of C.T. Driscoll, et al., ‘‘The Role of Dissolved water. For example, wetland seeps are likely the wetland basin is available for water Organic Carbon in the Chemistry and to have perennial connections to streams that storage, in contrast to upland areas where Bioavailability of Mercury in Remote provide important sources of baseflow, soil particles or rock reduce water storage Adirondack Lakes,’’ Water Air and Soil particularly during summer. Id. at 5–22 volume for a given volume of that soil or rock Pollution 80:499–508 (1995); P. Porvari, and (citing T.R. Morley, et al., ‘‘The Role of (i.e., the specific yield). Id. at 5–25 (citing M. Verta, ‘‘Total and Methyl mercury Headwater Wetlands in Altering Streamflow A.I. Johnson, Specific Yield—Compilation of Concentrations and Fluxes from Small Boreal and Chemistry in a Maine, USA catchment,’’ Specific Yields for Various Materials, USGS Forest Catchments in Finland,’’ Journal of the American Water Resources Water Supply Paper 1662–D (Washington, Environmental Pollution 123:181–191 Association 47:337–349 (2011)). Other DC: U.S. Department of the Interior, U.S. (2003)). The mercury that is transported wetlands are connected to streams via Geological Survey, 1967)). By storing water, downstream can enter the food chains of the

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(a)(1) through (a)(3) waters and negatively between riparian/floodplain waters and the history requirements. Id. at 5–33 (citing D.D. impact wildlife inhibiting those downstream river network. Id. at 5–31. Because such Williams, ‘‘Environmental Constraints in waters. Id. at 5–28. Export of dissolved waters are at least periodically hydrologically Temporary Fresh Waters and Their organic matter from neighboring waters connected to the nearby jurisdictional Consequences for the Insect Fauna,’’ Journal connected via a confined surface connection tributary network on the surface, dispersal of of the North American Benthological Society can have potentially negative effects on organisms can occur actively through the 15:634–650 (1996); A.J. Bohonak and D.G. downstream waters because contaminants, surface connection or via wind dispersal, Jenkins, ‘‘Ecological and Evolutionary such as MeHg and other trace metals, can be hitchhiking, walking, crawling, or flying. See, Significance of Dispersal by Freshwater adsorbed to the organic matter. Id. at 5–28 e.g., id. at 5–31. For example, waterborne Invertebrates,’’ Ecology Letters 6:783–796 (citing E.M. Thurman, Organic Geochemistry dispersal of aquatic and emergent plants can (2003)). Neighboring waters with a confined of Natural Waters (Boston, MA: Martinus occur between the jurisdictional water and surface hydrologic connection to Nijhoff/Dr. W. Junk Publishers, 1985); C.T. the neighboring water due to the periodic jurisdictional waters help to maintain various Driscoll, et al., ‘‘The Role of Dissolved hydrologic connection to the tributary biological populations, which periodically Organic Carbon in the Chemistry and system. Id. at 5–31 (citing C. Nilsson, et al., replenish adjacent jurisdictional waters, Bioavailability of Mercury in Remote ‘‘The Role of Hydrochory in Structuring serving to maintain the biological integrity of Adirondack Lakes,’’ Water Air and Soil Riparian and Wetland Vegetation,’’ Biological (a)(1) through (a)(3) waters. Pollution 80:499–508 (1995)). Dissolved Reviews 85:837–858 (2010)). Fish can also A shallow subsurface hydrologic organic matter, however, is also an important move between the jurisdictional water and connection is lateral water flow through a source of energy for downstream aquatic the neighboring water to which it is shallow subsurface layer, such as can be communities. Id. at 5–28 (citing J.E. Hobbie connected via a surface hydrologic found in steeply sloping areas with shallow and R.G. Wetzel, ‘‘Microbial control of connection during periodic surficial soils and soils with a restrictive horizon that dissolved organic carbon in lakes: Research hydrologic connections. Id. at 5–32 (citing prevents vertical water flow, or in karst for the future,’’ Hydrobiologia 229:169–180 J.W. Snodgrass, et al., ‘‘Factors affecting the systems. K.J. Devito, et al., ‘‘Groundwater- (1992); K.R. Reddy and R.D. DeLaune, occurrence and structure of fish assemblages Surface Water Interactions in Headwater Biogeochemistry of Wetlands: Science and in isolated wetlands of the upper coastal Forested Wetlands of the Canadian Shield,’’ Applications, 774 p. (2008)). Wetlands with plain, USA,’’ Canadian Journal of Fisheries Journal of Hydrology 181:127–47 (1996); confined surface hydrologic connections to and Aquatic Sciences 53:443–454 (1996); M.A. O’Driscoll and R.R. Parizek, ‘‘The the stream are connected to jurisdictional K.D. Zimmer, et al., ‘‘Effects of fathead Hydrologic Catchment Area of a Chain of tributary system and therefore can efficiently minnow colonization and removal on a Karst Wetlands in Central Pennsylvania, transport dissolved organic carbon and other prairie wetland ecosystem,’’ Ecosystems USA,’’ Wetlands 23:171–79 (2003); B.J. Cook dissolved organic matter to the nearby 4:346–357 (2001); M.J. Baber, et al., ‘‘Controls and F.R. Hauer, ‘‘Effects of Hydrologic jurisdictional water and downstream (a)(1) on fish distribution and abundance in Connectivity on Water Chemistry, Soils, and through (a)(3) waters. See, e.g., I.F. Creed, et temporary wetlands,’’ Canadian Journal of Vegetation Structure and Function in an al., ‘‘Cryptic Wetlands: Integrating Hidden Fisheries and Aquatic Sciences 59:1441–1450 Intermontane Depressional Wetland Wetlands in Regression Models of the Export (2002); M.A. Hanson, et al., ‘‘Biotic Landscape,’’ Wetlands 27:719–38 (2007). of Dissolved Organic Carbon from Forested interactions as determinants of ecosystem Shallow subsurface connections may be Landscapes,’’ Hydrological Processes structure in prairie wetlands: An example found below the ordinary root zone (below 17:3629–3648 (2003). Adjacent waters with a using fish,’’ Wetlands 25:764–775 (2005);, 12 inches), where other wetland delineation surface hydrologic connection to B.R. Herwig, et al., ‘‘Factors influencing fish factors may not be present. The presence of jurisdictional waters can also improve water distributions in shallow lakes in prairie and an aquiclude (impervious layer) near the quality through assimilation, transformation, prairie-parkland regions of Minnesota, USA,’’ surface leads to shallow subsurface flows or sequestration of nutrients and other Wetlands 30:609–619 (2010)). Mammals and through the soil, which favors local pollutants. Report at 5–29 (citing, e.g., K.R. aquatic and semi-aquatic amphibians and groundwater flowpaths that connect to Reddy, and R.D. DeLaune, Biogeochemistry reptiles that can disperse overland can also nearby wetlands or streams. Report at 3–38. of Wetlands: Science and Applications, 774 contribute to connectivity, as can aquatic Wetlands with shallow subsurface p. (2008)). These processes can occur during birds, particularly given the close proximity connections can affect the physical integrity times of lower hydroperiods when water is of the neighboring water to the jurisdictional of waters to which they connect. In general, not present in the surface hydrologic water. Mammals and birds can act as the volume and sustainability of streamflow connection between the adjacent water and transport vectors for hitchhikers like algae or within river networks depends on the jurisdictional water. Pollutants can be aquatic insects. Id. at 5–32 (citing J.P. contributions from groundwater, especially attenuated or retained in such adjacent Roscher, ‘‘Alga Dispersal by Muskrat in areas with shallow groundwater tables and waters through processes including Intestinal Contents,’’ Transactions of the pervious (meaning water can easily pass denitrification, ammonia volatilization, American Microscopical Society 86:497–498 through) subsurfaces. Id. at 3–12 (citing J.J. microbial and plant biomass assimilation, (1967)); J. Figuerola and A.J. Green, de Vries, ‘‘Seasonal Expansion and sedimentation, sorption and precipitation ‘‘Dispersal of Aquatic Organisms by Contraction of Stream Networks in Shallow reactions, biological uptake, and long-term Waterbirds: a Review of Past Research and Groundwater Systems,’’ Journal of Hydrology storage in plant detritus. Id. at 5–29 (citing Priorities for Future Studies,’’ Freshwater 170:15–26 (1995); T.C. Winter, ‘‘The Role of K.R. Reddy, et al., ‘‘Phosphorus Retention in Biology 47:483–494 (2002); J. Figuerola, et al., Groundwater in Generating Streamflow in Streams and Wetlands: A Review,’’ Critical ‘‘Invertebrate Eggs Can Fly: Evidence of Headwater Areas and in Maintaining Base Reviews in Environmental Science and Waterfowl-Mediated Gene Flow in Aquatic Flow,’’ Journal of the American Water Technology 29:83–146 (1999); K.R. Reddy Invertebrates,’’ American Naturalist 165:274– Resources Association 43:15–25 (2007); G.R. and R.D. DeLaune, Biogeochemistry of 280 (2005)). Amphibians and reptiles move Kish, et al., ‘‘A Geochemical Mass-Balance Wetlands: Science and Applications, 774 p. between streams and their adjacent waters to Method for Base-Flow Separation, Upper (2008)). Through retention and mitigation of satisfy part of their life-history requirements. Hillsborough River Watershed, West-Central pollutants and other chemical compounds, Id.at 5–33, Table 5–2. The hydrologic Florida, 2003–2005 and 2009,’’ USGS adjacent waters with a surface hydrologic connection between neighboring waters with Scientific Investigations Report 2010–5092 connection to jurisdictional waters can a surface connection to the jurisdictional (Washington, DC: U.S. Department of the substantially improve water quality water allows for that movement to occur Interior, U.S. Geological Survey, 2010). downstream. either in the water or over land. Aquatic Because wetlands with shallow subsurface Wetlands and open waters with confined insects that use both streams and their connections to streams and rivers provide surface connections can affect the biological adjacent waters can move outside of the some of these groundwater contributions, integrity of waters to which they connect. stream network to the nearby wetland or they influence the flow regime. Wetlands Movement of organisms between these open water to seek suitable habitat for connected via shallow subsurface adjacent waters and the nearby jurisdictional overwintering, refuge from adverse connections also can act as water sinks when water is governed by many of the same conditions, hunting, foraging or breeding, evapotranspiration is high, but as water factors that affect movement of organisms and then return to the stream for other life- sources when evapotranspiration is low. Id.

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at 3–25. As a result, these adjacent waters EM 1110–2–1913 (Washington, DC, 3313_3684_3723-9515-,00.html. All earth and moderate peak flows, reduce downstream Department of the Army, 2000), p. 1–1. rock-fill dams are subject to seepage through flooding, and provide runoff to help maintain Man-made berms and the like are fairly the embankment, foundation, and abutments. baseflow for streams during times of low common along streams and rivers across the Department of the Army, U.S. Army Corps of flows. United States and often accompany stream Engineers, Seepage Analysis and Control for Wetlands and other waters with shallow channelization. S.B. Franklin, et al., Dams, EM 1110–2–1901, (Washington, DC: subsurface connections affect the chemical ‘‘Complex Effects of Channelization and Department of the Army, Original 1986— and biological integrity of downstream Levee Construction on Western Tennessee Revised 1993), Page 1–1; Department of the waters in ways similar to wetlands with Floodplain Forest Function,’’ Wetlands 29(2): Army, U.S. Army Corps of Engineers, surface connections. The distance between 451–464 (2009). One study conducted in Engineering and Design: General Design and these wetlands and jurisdictional waters may Portland, Oregon found that 42% of surveyed Construction Considerations for Earth and influence the connectivity since wetlands wetlands had dams, dikes, or berms. M. Rock-filled Dams, EM 1110–2–2300 with shorter distances to the stream network Kentula, et al., ‘‘Tracking Changes in (Washington, DC: Department of the Army, will have higher hydrological and biological Wetlands with Urbanization: Sixteen Years of 2004), pp. 6–1 to 6–7. Concrete gravity and connectivity than wetlands located further Experience in Portland, Oregon, USA,’’ arch dams similarly are subject to seepage from the same network. Id. at 3–43. The Wetlands 24(4):734–743 (2004). Likewise, through the foundation and abutments. distance between the wetland and water may over 90% of the tidal freshwater wetlands of Department of the Army, U.S. Army Corps of also influence whether waters are connected the Sacramento-San Joaquin Delta have been Engineers, Seepage Analysis and Control for via surface or shallow subsurface hydrologic diked or leveed. C. Simenstad, et al., Dams, EM 1110–2–1901 (Washington, DC: connections, as wetlands and open waters ‘‘Preliminary Results from the Sacramento- Department of the Army, Original 1986— that are closer to rivers and streams will have San Joaquin Delta Breached Levee Wetland Revised 1993), Page 1–1. Levees and the like a higher probability of being connected than Study,’’ Interagency Ecological Program for are subject to breaches and breaks during more distant waters, assuming that the Sacramento-San Joaquin Estuary times of floods. C. Nilsson, et al., conditions governing type and quantity of Newsletter 12(4):15–21 (1999). At least ‘‘Fragmentation and Flow Regulation of the flows (e.g. slope, soil and aquifer 40,000 kilometers of levees, floodwalls, World’s Large River Systems,’’ Science permeability) are similar. Id at 5–2. For embankments, and dikes are estimated across 308(5720):405–408 (2005). Levees are wetlands connected to tributaries through the United States, with approximately 17,000 similarly subject to failure in the case of groundwater flows, less distant wetlands/ kilometers of levees in the Upper Mississippi extreme events, such as the extensive levee waters are generally connected through Valley alone. SE. Gergel, et al., failures caused by Hurricanes Katrina and shallower flowpaths, assuming similar soil ‘‘Consequences of Human-altered Floods: Rita. J.W. Day, et al., ‘‘Restoration of the and geologic properties. Id. at 3–11 (Figure Levees, Floods, and Floodplain Forests along Mississippi Delta: Lessons from Hurricanes 3–5), 3–42. These shallower subsurface flows the Wisconsin River,’’ Ecological Katrina and Rita,’’ Science 315(5819): 1679– have the greatest interchange with surface Applications 12(6): 1755–1770 (2002). 1684 (2007). In designing levees and similar waters and travel between points in the Adjacent waters separated from the structures, seepage control is necessary to shortest amount of time. Id. at 3–42. tributary network by dikes, levees, berms and prevent possible failure caused by excessive 3. Adjacent Waters, Including Wetlands, the like continue to have a hydrologic uplift pressures, instability of the Separated From Other ‘‘Waters of the United connection to downstream waters. This is downstream slope, piping through the States’’ by Man-Made Dikes or Barriers, because berms and similar features typically embankment and/or foundation, and erosion Natural River Berms, Beach Dunes and the do not block all water flow. Indeed, even of material by migration into open joints in Like Significantly Affect the Chemical, dams, which are specifically designed and the foundation and abutments. Id.; D.A. Physical, or Biological Integrity of (a)(1) constructed to impound large amounts of Kovacic, et al., ‘‘Effectiveness of Constructed Through (a)(3) Waters water effectively and safely, do not prevent Wetlands in Reducing Nitrogen and The terms earthen dam, dike, berm, and all water flow, but rather allow seepage Phosphorus Export from Agricultural Tile levee are used to describe similar structures under the foundation of the dam and through Drainage,’’ Journal of Environmental Quality whose primary purpose is to help control the dam itself. See, e.g., International Atomic 29(4): 1262–1274 (2000); U.S. Department of flood waters. Such structures vary in scale Energy Agency, Factsheet on Investigating the Interior, Bureau of Reclamation, Upper and size. A levee is an embankment whose Leaks through Dams and Reservoirs, http:// Colorado Region, see http://www.usbr.gov/ primary purpose is to furnish flood www.tc.iaea.org/tcweb/publications/ uc/provo/progact/damsafety.html; protection from seasonal high water and factsheets/sheet20dr.pdf; U.S. Bureau of International Atomic Energy Agency, which is therefore subject to water loading Reclamation, Provo Office, Safety of Dams, Investigating Leaks through Dams and for periods of only a few days or weeks a http://www.usbr.gov/uc/provo/progact/ Reservoirs, see http://www-tc.iaea.org/ year. Earthen embankments that are subject damsafety.html; Federal Energy Regulatory tcweb/publications/factsheets/sheet20dr.pdf; to water loading for prolonged periods Commission (FERC), ‘‘Chapter 14: Dam California Division of Safety of Dams, (longer than normal flood protection Safety Performance Monitoring Program,’’ Embankment Design, see http:// requirements) are called earth dams. There Engineering Guidelines for the Evaluation of damsafety.water.ca.gov/guidelines/ are a wide variety of types of structures and Hydropower Projects (FERC, 2005), pp. 14– embankment.htm. an even wider set of construction methods. 36 to 14–39. The rate at which water moves through the These range from a poorly constructed, low Seepage is the flow of a fluid through the embankment depends on the type of soil in earthen berm pushed up by a backhoe to a soil pores. Seepage through a dam, through the embankment, how well it is compacted, well-constructed, impervious core, riprap the embankments, foundations or abutments, the foundation and abutment preparation, lined levee that protects houses and or through a berm is a normal condition. D.A. and the number and size of cracks and voids cropland. Generally, levees are built to Kovacic, et al., ‘‘Effectiveness of Constructed within the embankment. All but the smallest detach the floodplain from the channel, Wetlands in Reducing Nitrogen and earthen dams are commonly built with decreasing overbank flood events. S.B. Phosphorus Export from Agricultural Tile internal subsurface drains to intercept water Franklin, et al., ‘‘Complex Effects of Drainage,’’ Journal of Environmental Quality seeping from the reservoir (i.e., upstream Channelization and Levee Construction on 29(4): 1262–1274 (2000); Federal Energy side) to the downstream side. Department of Western Tennessee Floodplain Forest Regulatory Commission (FERC), ‘‘Chapter 14: the Army, U.S. Army Corps of Engineers, Function,’’ Wetlands 29(2): 451–464 (2009). Dam Safety Performance Monitoring Construction Control for Earth and Rock- The investigation methods to determine the Program,’’ Engineering Guidelines for the filled Dams, EM 1110–2–1911, September 30, presence or absence of the hydrologic Evaluation of Hydropower Projects (FERC, 1995, Washington, DC 20314–1000, Page 1– connection depend on the type of structure, 2005), pp. 14–36 to 14–39. This is because 1. Where it is not intercepted by a subsurface the underlying soils, the presence of water seeks paths of least resistance through drain, the seepage will emerge downstream groundwater, and the depth of the water the berm or dam and its foundation. from or at the toe of the embankment. table. Department of the Army, U.S. Army Michigan Department of Environmental Michigan Department of Environmental Corps of Engineers, Engineering and Quality, Seepage Through Earth Dams (2002), Quality, Seepage Through Earth Dams (2002), Design—Design and Construction of Levees, http://www.michigan.gov/deq/0,1607,7-135- http://www.michigan.gov/deq/0,1607,7-135-

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3313_3684_3723-9515-,00.html. Seepage may Wetlands,’’ Soil Science Society of America Rita,’’ Science 314(5798): 449–452 (2006); vary in appearance from a ‘‘soft,’’ wet area to Journal 65(2):557–577 (2001). Every flowing P.A. Keddy, et al., ‘‘The Wetlands of Lakes a flowing ‘‘spring.’’ It may show up first as watercourse transports not only water, but Pontchartrain and Maurepas: Past, Present an area where the vegetation is lush and sediment—eroding and rebuilding its banks and Future,’’ Environmental Reviews 15: 43– darker green. Cattails, reeds, mosses, and and floodplains continually. Federal 77 (2007). When berms are periodically other marsh vegetation may grow in a Interagency Stream Restoration Working overtopped by water, wetlands and waters seepage area. Michigan Department of Group, Stream Corridor Restoration: behind the barriers are directly connected to Environmental Quality, Seepage Through Principles, Processes and Practices, USDA and interacting with the nearby stream and Earth Dams (2002), http://www.michigan. National Engineering Handbook Part 653 its downstream waters. In addition, surface gov/deq/0,1607,7-135-3313_3684_3723-9515- (1999). Different deposition patterns occur waters move to and from adjacent soils ,00.html. under varying levels of streamflow, with (including adjacent wetland soils) Engineered berms are typically designed to higher flows having the most influence on continually. Along their entire length, interfere with the seasonal pattern of water the resulting shape of streambanks and streams alternate between effluent (water- level (hydroperiod) of the area behind the floodplains. Id. In relatively flat landscapes gaining) and influent (water-losing) zones as berm, reducing the frequency and severity of drained by low-gradient streams, this natural the direction of water exchange with the inundation. Berms are not designed to process deposits the most sediment on the streambed and banks varies. Federal eliminate all hydrologic connection between bank immediately next to the stream channel Interagency Stream Restoration Working the channel on one side and the area behind while floodplains farther from the channel Group, Stream Corridor Restoration: the berm on the other. It is almost always are usually lower-lying wetlands Principles, Processes and Practices, USDA impracticable to build a berm that will not (‘‘backswamps’’ or ‘‘backwater wetlands’’) National Engineering Handbook Part 653 be overtopped by a flood of maximum that receive less sediment. See, e.g., C.A. (1999). The adjacent areas involved in this severity, and most berms are not designed to Johnston, et al., ‘‘The Potential Role of surface water exchange with a stream or river withstand severe floods. See, e.g., Riverine Wetlands as Buffer Zones,’’ in N.E. are known as the hyporheic zone. Hyporheic Department of the Army, U.S. Army Corps of Haycock, et al., ed., Buffer Zones Their zone waters are part of total surface waters Engineers, Seepage Analysis and Control for Processes and Potential in Water Protection temporarily moving through soil or sediment. Dams, EM 1110–2–1901, (Washington, DC: (Quest International, 1997), pp. 155–170. The Like within-channel waters, these waters are Department of the Army, Original 1986— somewhat elevated land thus built up at oxygenated and support living communities Revised 1993), Page 1–1. Levees are designed streamside is called a natural levee, and this of organisms in the hyporheic zone. to allow seepage and are frequently situated entirely natural landform is physically and Because a hydrologic connection between on foundations having natural covers of hydrologically similar to narrow, man-made adjacent wetlands and waters and relatively fine-grain impervious to berms. See, e.g., L.B. Leopold, et al., Fluvial downstream waters still exists despite the semipervious soils overlying pervious sands Processes in Geomorphology (Toronto: presence of a berm or the like, the chemical and gravels. Department of the Army, U.S. General Publishing Co. Ltd., 1964). Natural and biological connections that rely on a Army Corps of Engineers, Engineering and levees are discontinuous, which allows for a hydrologic connection also exist. For Design: Design Guidance for Levee hydrologic connection to the stream or river instance, adjacent waters behind berms can Underseepage, ELT 1110–2–569, via openings in the levees and thus the still serve important water quality functions, Washington, DC: Department of the Army, periodic mixing of river water and backwater. serving to filter pollutants and sediment 2005), pp. 1–9. These surface strata constitute C.A. Johnston, et al., ‘‘Nutrient Dynamics in before they reach downstream waters. impervious or semipervious blankets when Relation to Geomorphology of Riverine Wetlands behind berms can function to filter considered in connection with seepage. Wetlands,’’ Soil Science Society of America pollutants before they enter the nearby Principal seepage control measures for Journal 65(2): 557–577 (2001). In addition, tributary, with the water slowly released to foundation underseepage are (a) cutoff streams with natural levees, in settings with the stream through seepage or other trenches, (b) riverside impervious blankets, no human interference whatsoever, retain hydrological connections. See, e.g., L.L. (c) landslide berms, (d) pervious toe trenches, hydrologic connection with their wetlands Osborne and D.A. Kovacic, ‘‘Riparian and (e) pressure relief wells. Department of behind the levees by periodic flooding during Vegetated Buffer Strips in Water-Quality the Army, U.S. Army Corps of Engineers, high water and via seepage through and Restoration and Stream Management,’’ Engineering and Design—Design and under the levee. Similarly, man-made berms Freshwater Biology 29(2): 243–258 (1993); Construction of Levees, EM 1110–2–1913 are typically periodically overtopped with D.A. Kovacic, et al., ‘‘Effectiveness of (Washington, DC, Department of the Army, water from the near-by stream, and as Constructed Wetlands in Reducing Nitrogen 2000), p. 1–1. Overtopping of an previously mentioned, are connected via and Phosphorus Export from Agricultural embankment dam is very undesirable seepage. Tile Drainage,’’ Journal of Environmental because the embankment materials may be Waters, including wetlands, separated from Quality 29(4): 1262–1274 (2000). Their eroded away. Additionally, only a small a stream by a natural or man-made berm ability to retain sediment and floodwaters number of concrete dams have been designed serve many of the same functions as those may be enhanced by the presence of the to be overtopped. Water normally passes discussed above on other adjacent waters. berm. For instance, some backwater wetlands through the main spillway or outlet works; it Furthermore, even in cases where a in floodplain/riparian areas exhibit higher should pass over an auxiliary spillway only hydrologic connection may not exist, there sedimentation rates than streamside during periods of high reservoir levels and are other important considerations, such as locations. E.J. Kuenzler, et al., ‘‘Distributions high water inflow. All embankment and most chemical and biological factors, that result in and Budgets of Carbon, Phosphorus, Iron and concrete dams have some seepage. See, e.g., a significant nexus between the adjacent Manganese in a Floodplain Swamp http://www.damsafety.org/layout/ wetlands or waters and the nearby ‘‘waters of Ecosystem,’’ Water Resources Research subsection.aspx?groupid=14&contentid=47. the United States,’’ and (a)(1) through (a)(3) Institute Report 157 (Chapel Hill, NC: However, it is important to control the waters. University of North Carolina, 1980); C.A. seepage to prevent internal erosion and The movement of surface and subsurface Johnston, et al., ‘‘Nutrient Dynamics in instability. Proper dam construction, and both over berms and through soils and berms Relation to Geomorphology of Riverine maintenance and monitoring of seepage adjacent to rivers and streams is a hydrologic Wetlands,’’ Soil Science Society of America provide control. connection between wetlands and flowing Journal 65(2): 557–577 (2001). The presence Berm-like landforms known as natural watercourses. The intermittent connection of of manmade levees can actually increase levees occur naturally and do not isolate surface waters over top of, or around, natural denitrification rates, meaning that the adjacent wetlands from the streams that form and manmade berms further strengthens the adjacent waters can more quickly transform them. Natural levees and the wetlands and evidence of hydrologic connection between nitrogen. SE. Gergel, et al., ‘‘Do Dams and waters behind them are part of the wetlands and flowing watercourses. Both Levees Impact Nitrogen Cycling? Simulating floodplain, including along some small natural and man-made barriers can be topped the Effects of Flood Alterations on streams and streams in the Arid West. C.A. by occasional floods or storm events. See, Floodplain Denitrification,’’ Global Change Johnston, et al., ‘‘Nutrient Dynamics in e.g., R.E. Turner, et al., ‘‘Wetland Biology 11(8): 1352–1367 (2005). However, Relation to Geomorphology of Riverine Sedimentation from Hurricanes Katrina and the presence of manmade berms does limit

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the ability of the river to connect with its Terrestrial Ecosystems,’’ Fisheries 24(10):6– provide critical habitats for species that adjacent wetlands through overbank flooding 15 (1999); S.S. Schwartz and D.G. Jenkins, utilize both the wetlands and the nearby and thus limits sediment, water and nutrients ‘‘Temporary Aquatic Habitats: Constraints (a)(1) through (a)(3) waters, supporting high transported from the river to the adjacent and Opportunities,’’ Aquatic Ecology 34:3–8 diversity and structure. Habitat uses include waters. Id.; J.L. Florsheim and J.F. Mount, (2000); D.T. Bilton, et al., ‘‘Dispersal in basic food, shelter, and reproductive ‘‘Changes in Lowland Floodplain Freshwater Invertebrates,’’ Annual Review of requirements. Aquatic insects, amphibians, Sedimentation Processes: Pre-disturbance to Ecology and Systematics 32:159–81 (2001). and resident and migratory birds all use Post-rehabilitation, Cosumnes River, CA,’’ One example of adjacent waters behind interdunal wetlands as critical habitat, and Geomorphology 56(3–4):305–323 (2003). berms and the like are interdunal wetlands the wetlands provide better shelter than the However, the presence of a berm does not located in coastal areas, including some areas nearby exposed beach. D.A. Albert, Borne of completely eliminate the transport of of the Great Lakes and along barrier islands. the Wind: An Introduction to the Ecology of sediments and water from the river to the Interdunal wetlands form in swales or Michigan Sand Dunes (Lansing, MI: nearby adjacent wetland, as suspended depressions within open dunes or between Michigan Natural Features Inventory, 2000), sediments and water can overflow both beach ridges along the coast and experience 63 pp.; S.M. Smith, et al., ‘‘Development of natural and man-made levees, though the a fluctuating water table seasonally and Vegetation in Dune Slack Wetlands of Cape transport is usually more pronounced in yearly in synchrony with sea or lake level Cod National Seashore (Massachusetts, settings with natural levees. See, e.g., R.E. changes. W.E. Odum, ‘‘Non-Tidal Freshwater USA),’’ Plant Ecology 194(2): 243–256 (2008). Turner, et al., ‘‘Wetland Sedimentation from Wetlands in Virginia,’’ Virginia Journal of In marine coastal areas, the wetlands are Hurricanes Katrina and Rita,’’ Science Natural Resources Law 7: 421–434 (1988); often the only freshwater system in the 314(5798):449–452 (2006); P.A. Keddy, et al., D.A. Albert, Borne of the Wind: An immediate landscape, thus providing critical ‘‘The Wetlands of Lakes Pontchartrain and Introduction to the Ecology of Michigan Sand drinking water for the species that utilize Maurepas: Past, Present and Future,’’ Dunes (Lansing, MI: Michigan Natural both the wetlands and the nearby (a)(1) Environmental Reviews 15:43–77 (2007). Features Inventory, 2000), 63 pp.; D.A. through (a)(3) waters, although some Sediment deposition over levees is Albert, Between Land and Lake: Michigan’s interdunal wetlands are brackish in nature. particularly enhanced by extreme events like Great Lakes Coastal Wetlands, Bulletin E– See, e.g., C.M. Heckscher and C.R. Bartlett, hurricanes. Id.; D.J. Reed, et al., ‘‘Reducing 2902 (East Lansing, MI: Michigan Natural ‘‘Rediscovery and Habitat Associations of the Effects of Dredged Material Levees on Features Inventory, Michigan State Photuris Bethaniensis McDermott Coastal Marsh Function: Sediment University Extension, 2003), 96 pp; D.A. (Coleoptera: Lampyridae),’’ The Coleopterists Deposition and Nekton Utilization,’’ Albert, Natural Community Abstract for Bulletin 58(3): 349–353 (2004). Environmental Management 37(5):671–685 Interdunal Wetland (Lansing, MI: Michigan Wetlands behind the extensive levee (2006). Wetlands behind berms, where the Natural Features Inventory, 2007), 6 pp. For system in the Yazoo Basin are an example of system is extensive, can help reduce the those along the ocean coast, they are adjacent waters behind man-made barriers. A impacts of storm surges caused by typically formed as a result of oceanic regional hydrogeomorphic approach hurricanes. J.W. Day, et al., ‘‘Restoration of processes where the wetlands establish guidebook for the Yazoo Basin of the Lower the Mississippi Delta: Lessons from behind relict dune ridges (dunes that were Mississippi River Alluvial Valley assesses the Hurricanes Katrina and Rita,’’ Science formed along a previously existing coast functions of these wetlands. R.D. Smith and 315(5819):1679–1684 (2007). line). Wetlands in the interdunal system are C.V. Klimas, A Regional Guidebook for Adjacent waters, including wetlands, in close proximity to each other and to the Applying the Hydrogeomorphic Approach to separated from water bodies by berms and surrounding (a)(1) through (a)(3) waters. Assessing Wetland Functions of Selected the like maintain ecological connection with Their proximity to one another and to the Regional Wetland Subclasses, Yazoo Basin, those water bodies. Though a berm may (a)(1) through (a)(3) waters indicates a close Lower Mississippi River Alluvial Valle, reduce habitat functional value and may physical relationship between interdunal Prepared for the U.S. Army Corps of prevent some species from moving back and wetland systems and the traditional Engineers, ERDC/EL TR–02–4 (2002). An forth from the wetland to the river, many navigable waters, interstate waters, or the extensive levee system was built along the major species that prefer habitats at the territorial seas. Despite the presence of the river system to prevent flooding of the interface of wetland and stream ecosystems beach dunes, interdunal wetlands have Mississippi River, resulting in drastic effects remain able to utilize both habitats despite chemical, physical, or biological connections to the hydrology of the basin. Id. at 47. the presence of such a berm. Additional that greatly influence the integrity of the Despite the alteration of hydrology in the species that are physically isolated in either nearby (a)(1) through (a)(3) waters. The basin, extensive wetlands systems still exist stream or wetlands habitat still interact wetlands are hydrologically connected to behind the man-made and natural levees and ecologically with species from the other these (a)(1) through (a)(3) waters through maintain a hydrologic connection to the river component. Thus, adjacent wetlands with or unconfined, directional flow and shallow system. These wetlands detain floodwater, without small berms can retain numerous subsurface flow during normal precipitation detain precipitation, cycle nutrients, export organic carbon, remove elements and similarities in ecological function. For events and extreme events. As previously compounds, maintain plant communities, example: Wetland bird species such as noted, they are linked to the rise and fall of and provide fish and wildlife habitat. Id. The wading birds are able to utilize both wetland the surrounding tides—the water-level functions in turn provide numerous and and adjacent stream/ditch habitats; wetland fluctuations of the nearby (a)(1) through (a)(3) substantial benefits to the nearby river. amphibians would be able to bypass the berm waters are important for the dynamics of the in their adult stage; aquatic invertebrates and wetlands. D.A. Albert, Between Land and 4. Conclusions Regarding Adjacent Waters fish would still interact with terrestrial/ Lake: Michigan’s Great Lakes Coastal The scientific literature documents that wetland predators and prey in common food Wetlands, Bulletin E–2902 (East Lansing, MI: waters which are adjacent to (a)(1) through web relationships despite the presence of a Michigan Natural Features Inventory, (a)(5) waters, including wetlands, oxbow berm. See, e.g., G.S. Butcher, and B. Zimpel, Michigan State University Extension, 2003), lakes and adjacent ponds, are integral parts ‘‘Habitat Value of Isolated Waters to 96 pp. The wetlands provide floodwater of tributary networks to (a)(1) through (a)(3) Migratory Birds,’’ Prepared by Cornell storage and attenuation, retaining and slowly waters because they are directly connected to Laboratory of Ornithology and The Cadmus releasing floodwaters before they reach the streams via permanent surface features that Group, Inc. for U.S. Environmental nearby (a)(1) through (a)(3) waters. Like other concentrate, mix, transform, and transport Protection Agency Office of Wetlands adjacent wetlands, interdunal wetlands also water and other materials, including food Protection, (Washington, DC: Cornell and have important chemical connections to the resources, downstream to larger rivers. Cadmus, 1991); M.F. Willson and K.C. nearby (a)(1) through (a)(3) waters, as they Adjacent wetlands and other adjacent waters Halupka, ‘‘Anadromous Fish as Keystone serve important water quality benefits. The filter pollutants before they enter the Species in Vertebrate Communities,’’ wetlands store sediment and pollutants that tributary system, they attenuate flow during Conservation Biology 9(3):489–497 (1995); would otherwise reach the surrounding (a)(1) flood events, they regulate flow rate and C.J. Cederholm, et al., ‘‘Pacific Salmon through (a)(3) waters. The wetlands are timing, they trap sediment, and they input Carcasses: Essential Contributions of biologically connected to the surrounding organic material into rivers and streams, Nutrients and Energy for Aquatic and (a)(1) through (a)(3) waters. For instance, they providing the basic building blocks for their

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healthy functioning. These waters also are areas are considered to be ‘‘adjacent.’’ As Handbook for Developing Watershed Plans to biologically connected to downstream waters such, wetlands that are ‘‘other waters’’ Restore and Protect Our Waters: Planning & by providing habitat and refuge to many typically will have unidirectional flow. As Implementation Steps (Washington D.C.: U.S. species, and storing and releasing food mentioned in Part II, section 2.B. above, EPA, March 2008); P.J. Wigington, et al., sources. The scientific literature many unidirectional wetlands are considered ‘‘Oregon Hydrologic Landscapes: A demonstrates that adjacent waters in a adjacent and interact with downstream Classification Framework,’’ Journal of the watershed together exert a strong influence jurisdictional waters through channels, American Water Resources Association on the character and functioning of rivers, shallow subsurface flow, or by providing 49.1:163–82 (2013). Anthropogenic actions streams and lakes. additional functions such as storage and and natural events can have widespread Adjacent waters, as defined, alone or in mitigating peak flows. Unidirectional effects within the watershed that collectively combination with other adjacent waters in a wetlands that lack a confined surface impact the quality of the relevant traditional watershed, significantly affect the chemical, connection or a shallow subsurface navigable water, interstate water or territorial physical, or biological integrity of traditional connection to downstream waters and are sea. United States, U.S. EPA and USDA/ARS navigable waters, interstate waters, and the surrounded by uplands will typically fall Southwest Watershed Research Center, EPA/ territorial seas. Based on studies of waters in under the definition of ‘‘other waters,’’ and 600/R–08/134, ARS/2330462008: The riparian areas, flood plains, and their are often referred to in scientific literature Ecological and Hydrological Significance of hydrologic connections through the tributary and policy as ‘‘geographically isolated Ephemeral and Intermittent Streams in the system there is sufficient scientific evidence waters.’’ The term ‘‘geographically isolated’’ Arid and Semi-arid American Southwest regarding the important functions of these should not be used to implicate the lack of (Washington, D.C.: U.S. EPA and USDA/ARS adjacent wetlands to demonstrate that, alone connectivity to downstream waters, as these Southwest Watershed Research Center, or in combination with similarly situated wetlands are often connected to downstream Levick et al., 2008) (Levick, et. al.). For these waters in the region, wetlands and open waters through deeper groundwater reasons, it is more appropriate to conduct a waters adjacent to any tributary have a connections, biological connections, or significant nexus determination at the significant effect on the chemical, physical, spillage. The degree of connectivity of such watershed scale than to focus on a specific or biological integrity of traditional navigable wetlands will vary depending on landscape site, such as an individual stream segment. waters, interstate waters, or the territorial features such as distance from downstream The watershed size reflects the specific water seas. The reviewed scientific literature waters and proximity to other wetlands of management objective, and is scaled up or supports the conclusion that adjacent waters similar nature that as a group connect to down as is appropriate to meet that objective. generally play a larger role in the ecological jurisdictional downstream waters. Report at If the objective is to manage the water quality condition of smaller tributary systems, 3–43, 5–2. in a particular receiving water body (the which, in turn, determines the effects on the For purposes of assessing whether a ‘‘target’’ water body), the watershed should chemical, physical, and biological health of particular water is a ‘‘water of the United include all those waters that are contributing larger downstream waters. States’’ because it, alone or in combination to that target water since they will primarily with other similarly situated waters, has a determine the quality of the receiving water. iii. ‘‘Other Waters’’ significant nexus to an (a)(1) through (a)(3) The watershed that drains to the single The Report includes a focused evaluation water, the agencies are proposing to define point of entry to a traditional navigable of the connections and effects to downstream each of the elements of Justice Kennedy’s water, interstate water or territorial sea is a waters for several regional types of streams significant nexus standard in the definition logical spatial framework for the evaluation and wetlands: Prairie streams, southwest of ‘‘significant nexus.’’ of the nexus. This is because, from a water intermittent and ephemeral streams, oxbow A. In the Region quality management perspective, the (a)(1), lakes, Carolina and Delmarva bays, prairie The agencies have determined that because (a)(2) or (a)(3) water is the downstream potholes, and vernal pools. These regional the movement of water from watershed affected water whose quality is dependent on types were chosen for evaluation because drainage basins to river networks and lakes the condition of the contributing upstream they represent a broad geographic area as shapes the development and function of waters, including streams, lakes, and well as a diversity of water types based on these systems in a way that is critical to their wetlands. To restore or maintain the health their origin, landscape setting, hydrology, long term health, the watershed is a of the downstream affected water, it is and other factors. Most prairie streams and reasonable and technically appropriate standard practice to evaluate the condition of southwest intermittent and ephemeral interpretation of Justice Kennedy’s standard. the waters that are in the contributing streams are likely to be considered tributaries See, e.g., D.R. Montgomery, ‘‘Process watersheds and to develop a plan to address to (a)(1) through (a)(3) waters (with the Domains and the River Continuum,’’ Journal the issues of concern. The functions of the exception of streams, for example, located in of the American Water Resources Association contributing waters are inextricably linked closed basins, which lack an (a)(1) through 35:397–410 (1999). and have a cumulative effect on the integrity (a)(3) water or a connection thereto); Using a watershed as the framework for of the downstream traditional navigable similarly, most oxbow lakes are likely to be conducting significant nexus evaluations is water, interstate water or territorial sea. The considered adjacent to (a)(1) through (a)(5) scientifically supportable. Watersheds are size of that watershed can be determined by waters. Carolina and Delmarva bays, prairie generally regarded as the most appropriate identifying the geographic area that drains to potholes, and vernal pools may or may not spatial unit for water resource management. the nearest traditional navigable water, be considered adjacent to (a)(1) through (a)(5) See, e.g., J.M. Omernik and R.G. Bailey, interstate water or the territorial seas, and waters. Where waters are not considered ‘‘Distinguishing Between Watersheds and then using that point of entry watershed to tributaries (e.g. waters in a solely intrastate Ecoregions,’’ Journal of the American Water conduct a significant nexus evaluation. P.E. closed basin that does not contain a Resources Association 33.5: 939–40 (1997); Black, ‘‘Watershed Functions,’’ Journal of the traditional navigable water, interstate water, D.R. Montgomery, ‘‘Process Domains and the American Water Resources Association or a territorial sea, or a connection thereto) River Continuum,’’ Journal of the American 33.1:1–11 (1997). or where waters, including wetlands, do not Water Resources Association 35: 397–410 The Corps is organized based on meet the proposed regulatory definition of (1999); T.C. Winter ‘‘The Concept of watersheds and has used watershed adjacent, they should be evaluated to Hydrologic Landscapes,’’ Journal of the framework approaches for water sources, determine whether they are (a)(7) waters. The American Water Resources Association 37: navigation approaches for over 100 years, agencies seek comment on establishing such 335–49 (2001); J.S. Baron, et al., ‘‘Meeting and in the regulatory program since its categories, as well as on other options for Ecological and Societal Needs for inception. Also, using a watershed addressing ‘‘other waters.’’ Freshwater,’’ Ecological Applications 12: framework is consistent with over two The term ‘‘other waters’’ refers to waters 1247–60 (2002); J.D. Allan, ‘‘Landscapes and decades of practice by EPA and many other that cannot be considered ‘‘adjacent’’ to Riverscapes: The Influence of Land Use on governmental, academic, and other entities downstream jurisdictional waters and that Stream Ecosystems,’’ Annual Review of which recognize that a watershed approach are not tributaries of such waters. ‘‘Other Ecology Evolution and Systematics 35: 257– is the most effective framework to address waters’’ are found outside the riparian zone 84 (2004); United States, EPA 841–B–08–002: water resource challenges. U.S. and the floodplain, as waters within these U.S. Environmental Protection Agency, Environmental Protection Agency, The

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Watershed Protection Approach Framework contaminants from reaching downstream Role of Wetlands in the Hydrological Cycle,’’ (Oct. 1991). The agencies both recognize the waters. Hydrology and Earth System Sciences 7:358– importance of the watershed approach by In the aggregate, similarly situated 389 (2003)). Some of the important factors investing in opportunities to advance wetlands may have significant effects on the which influence the variability of their watershed protection and in developing quality of water many miles away, functions and connectivity include the useful watershed tools and services. For particularly in circumstances where topography, geology, soil features, antecedent example, EPA is allowing states that are numerous similarly situated waters are moisture conditions, and seasonal position of reorganizing programs to function on a located in the region and are performing like the water table relative to the wetland. Report watershed basis to have short-term backlogs functions that combine to influence at 5–25. on CWA section 402 National Pollution downstream waters. See, e.g., A. Jansson et When proposing that ‘‘other waters’’ are Discharge Elimination System (NPDES) al., ‘‘Quantifying the Nitrogen Retention sufficiently close and should be considered permit review—without penalty. This Capacity of Natural Wetlands in the Large- similarly situated, it is recognized that they flexibility gives states time to synchronize Scale Drainage Basin of the Baltic Sea,’’ are more likely to have similar influence with the reissuance of major and minor permits Landscape Ecology 13:249–262 (1998); W.J. regard to their effect on the chemical, within a watershed. By managing NPDES Mitsch et al., ‘‘Reducing Nitrogen Loading to physical, or biological integrity of a permits on a watershed basis, all the permits the Gulf of Mexico from the Mississippi River downstream water identified in paragraphs for discharges to the water body can be Basin: Strategies to Counter a Persistent (a)(1) through (a)(3). If a water is a great coordinated and the most efficient and Ecological Problem,’’ BioScience 51(5): 373– distance from a group of similar ‘‘other equitable allocation of pollution control 388 (2001); M.G. Forbes, et al., ‘‘Nutrient waters,’’ it may be performing some of the responsibility can be made. U.S. Transformation and Retention by Coastal same functions as those in the group, but Environmental Protection Agency, Why Prairie Wetlands, Upper Gulf Coast, Texas,’’ their distance from each other or from Watersheds?, EPA 800–F–96–001 (February Wetlands 32(4):705–15 (2012). Cumulatively, downstream (a)(1) through (a)(3) waters will 1996). Applying a watershed approach many small wetlands can hold a large decrease the probability that it has some kind continues to be a priority of EPA, and is one amount of snowmelt and precipitation, of chemical, physical, or biological of the three key strategies the agency is using reducing the likelihood of flooding connectivity to the downstream water, to drive progress toward the Agency’s health downstream. Report at 5–25 (citing D.E. assuming that conditions governing the type and environmental goals over the next five Hubbard and R.L. Linder, ‘‘Spring Runoff and quantity of flows (e.g. slope, soil, and years. U.S Environmental Protection Agency, Retention in Prairie Pothole Wetlands,’’ aquifer permeability, etc.) are similar. Id. at FY 2011–2015 Strategic Plan: Achieving Our Journal of Soil and Water Conservation 5–2, 5–41. Vision, 2010. 41(2):122–125 (1986)). Consideration of the aggregate effects of B. Similarly Situated Scientists can and do routinely classify wetlands and other waters often gives the similar waters and wetlands into groups for most complete information about how such Scientists routinely aggregate the effects of a number of different reasons; because of waters influence the chemical, physical, or groups of waters, multiplying the known their inherent physical characteristics, biological integrity of downstream waters. In effect of one water by the number of similar because they provide similar functions, many watersheds, wetlands have a waters in a specific geographic area, or to a because they were formed by similar disproportionate effect on water quality certain scale. This kind of functional geomorphic processes, and by their level of relative to their surface area because wetland aggregation of non-adjacent (and other types biological diversity, for example. Classifying plants slow down water flow, allowing of waters) is well-supported in the scientific suspended sediments, nutrients, and literature. See, e.g., R.J. Stevenson and F.R. wetlands based on their functions is also the Hauer, ‘‘Integrating Hydrogeomorphic and basis for the U.S. Army Corps of Engineers pollutants to settle out. They filter these Index of Biotic Integrity Approaches for hydrogeomorphic (HGM) classification of materials out of the water received from large Environmental Assessment of Wetlands,’’ wetlands. M.M. Brinson, A Hydrogeomorphic areas, absorbing or processing them, and then Journal of the North American Benthological Classification for Wetlands (Washington, releasing higher quality water. National Society 21(3): 502–513 (2002); S.G. D.C.: U.S. Army Corps of Engineers, 1993). Research Council, Wetlands: Characteristics Leibowitz, ‘‘Isolated Wetlands and Their The HGM method is a wetlands assessment and Boundaries (Washington, D.C.: National Functions: An Ecological Perspective,’’ approach pioneered by the Corps in the Academy Press, 1995), p. 38. For an Wetlands 23:517–531 (2003); D. Gamble, et 1990s, and extensively applied via regional individual wetland, this is most pronounced al., An Ecological and Functional handbooks since then. The Corps HGM where it lies immediately upstream of a Assessment of Urban Wetlands in Central method uses a conceptual framework for drinking water intake, for example. See, e.g., Ohio, Ohio EPA Technical Report WET/ identifying broad wetland classes based on C.A. Johnston, et al., ‘‘The Cumulative Effect 2007–3B (Columbus, OH: Ohio common structural and functional features, of Wetlands on Stream Water Quality and Environmental Protection Agency, 2007); which includes a method for using local Quantity,’’ Biogeochemistry 10:105–141 C.R. Lane and E. D’Amico, ‘‘Calculating the attributes to further subdivide the broad (1990). Ecosystem Service of Water Storage in classes into regional subclasses. Assessment The structure and function of a river are Isolated Wetlands using LiDAR in North methods like the HGM provide a basis for highly dependent on the constituent Central Florida, USA,’’ Wetlands 30:967–977 determining if waters provide similar materials that are stored in, or transported (2010); B.P. Wilcox, et al., ‘‘Evidence of functions based on their structural attributes through the river. Most of the materials found Surface Connectivity for Texas Gulf Coast and indicator species. Scientists also directly in rivers originate outside of them. Thus, the Depressional Wetlands,’’ Wetlands measure attributes and processes taking place fundamental way that ‘‘other waters’’ are able 31(3):451–8 (2011). Similarly, streams and in particular types of waters during in-depth to affect river structure and function is by rivers are routinely aggregated by scientists to field studies that provide reference providing or altering the materials delivered estimate their combined effect on information that informs the understanding to the river. Report at 1–13. Since the downstream waters in the same watershed. of the functions performed by many types of alteration of material fluxes depends on the This is because chemical, physical, or aquatic systems nationwide. functions within these waters and the degree biological integrity of downstream waters is These waters, primarily depressional of connectivity, it is appropriate to consider directly related to the aggregate contribution wetlands, small open waters and peatlands, both these factors for purposes of significant of upstream waters that flow into them, are known to have important hydrologic, nexus under this provision. including any tributaries and connected water quality, and habitat functions which Numerous factors affect chemical, wetlands. As a result, the scientific literature vary as a result of the diverse settings in physical, and biological connectivity, and the Report consistently documents that which they exist across the country. For operating at multiple spatial and temporal the health of larger downstream waters is example, a report that reviewed the results of scales, and interacting with each other in directly related to the aggregate health of multiple scientific studies concluded that complex ways, to determine where waters located upstream, including waters depressional wetlands lacking a surface components of aquatic systems fall on the such as wetlands that may not be outlet functioned together to significantly connectivity-isolation gradient at a given hydrologically connected but function reduce or attenuate flooding. Report at 5–26 time. Some of these factors include climate, together to prevent floodwaters and (citing A. Bullock and M. Acreman, ‘‘The watershed characteristics, spatial distribution

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patterns, biota, and human activities and at 3–31 to 3–33. Lack of connection does not flow from an ‘‘other water’’ to downstream alterations. Id. at 3–33. Recognizing the necessarily translate to lack of impact; even waters depend on several factors, including limits on the ability to observe or document when lacking connectivity, waters can still the intervening distance and the properties of all of these interacting factors, it is reasonable impact chemical, physical, and biological the rock or unconsolidated sediments to look for visible patterns in the landscape conditions downstream. Id. at 3–29, 3–31. between the water bodies (i.e., the hydraulic and waters that are often indicative of the The physical effect that ‘‘other waters’’ conductivity of the material). Id. at 5–24. connectivity factors, in determining what have downstream is less obvious than the Surface and groundwater hydrological waters to aggregate. Due to relative similarity physical connections of waters that are connections are those generating the capacity of soils, topography, or groundwater adjacent or waters that are tributary, due to for ‘‘other waters’’ to affect downstream connections, for example, there may be a the physical distance of ‘‘other waters’’ from waters, as water from the ‘‘other water’’ may group of wetlands scattered throughout a the stream network. Despite this physical contribute to baseflow or stormflow through watershed, at similar distances from the distance, they are frequently connected in groundwater recharge. Id. at 5–25. tributaries in the watershed and performing some degree through either surface water or Contributions to baseflow are important for similar functions. It is appropriate to assess groundwater systems; over time, impacts in maintaining conditions that support aquatic the significance of the nexus of those waters one part of the hydrologic system will be felt life in downstream waters. As discussed in the aggregate, consistent with Justice in other parts. T.C. Winter and J.W. LaBaugh, further below, even in cases where waters Kennedy’s standard. ‘‘Hydrologic Considerations in Defining lack a connection to downstream waters, they C. Significant Nexus Isolated Wetlands,’’ Wetlands 23:532–540 can influence downstream water through (2003) at 538. For example, ‘‘other waters’’ water storage and mitigation of peak flows. The scientific literature regarding ‘‘other that overspill into downstream water bodies Id. at 5–36. waters’’ documents their functions, including during times of abundant precipitation are The chemical effects that ‘‘other waters’’ the chemical, physical, and biological impact connected over the long term. Id. at 539. have on downstream waters are linked to they can have downstream. Available Wetlands that lack surface connectivity in a their hydrologic connection downstream, literature indicates that ‘‘other waters’’ have particular season or year can, nonetheless, be though a surface connection is not needed for important hydrologic, water quality, and highly connected in wetter seasons or years. a water to influence the chemical integrity of habitat functions that have the ability to Report at 5–22 to 5–25. Many ‘‘other waters’’ the downstream water. Because the majority affect downstream waters if and when a interact with groundwater, either by of ‘‘other waters’’ are hydrologically connection exists between the ‘‘other water’’ receiving groundwater discharge (flow of connected to downstream waters via surface and downstream waters. Report at 6–1. groundwater to the ‘‘other water’’), or groundwater connections, most ‘‘other ‘‘Other waters’’ generally fit into the category contributing to groundwater recharge (flow of waters’’ can affect water quality downstream of unidirectional waters as described in the water from the ‘‘other water’’ to the (although these connections do not meet the Report. However, there are some groundwater), or both. Id. at 5–23 (citing R.F. definition of adjacency). D.F. Whigham and unidirectional waters that are in fact adjacent Lide, et al., ‘‘Hydrology of a Carolina Bay T. E. Jordan, ‘‘Isolated Wetlands and Water under (a)(6) to (a)(1) through (a)(5) waters Located on the Upper Coastal Plain of Quality,’’ Wetlands 23:541–549 (2003) at 542. (e.g., neighboring waters that are outside of Western South Carolina,’’ Wetlands 15:47–57 ‘‘Other waters’’ can act as sinks and the riparian area and/or floodplain but that (1995); K.J. Devito, et al., ‘‘Groundwater transformers for nitrogen and phosphorus, have a surface or shallow subsurface Surface-Water Interactions in Headwater metals, pesticides, and other contaminants hydrologic connection to (a)(1) through (a)(5) Forested Wetlands of the Canadian Shield,’’ that could otherwise negatively impact waters). Connectivity of ‘‘other waters’’ to downstream waters. Report at 5–30 (citing downstream waters that do not meet the Journal of Hydrology 181:127–47 (1996); R.K. definition of adjacent will vary within a Matheney and P.J. Gerla, ‘‘Environmental R.R. Brooks, et al., ‘‘Cobalt and Nickel watershed and over time, which is why a Isotopic Evidence for the Origins of Ground Uptake by the Nyssaceae,’’ Taxon 26:197–201 case-specific significant nexus determination and Surface Water in a Prairie Discharge (1977); H.F. Hemond, ‘‘Biogeochemistry of for ‘‘other waters’’ is necessary under (a)(7). Wetland,’’ Wetlands 16:109–120 (1996); D.O. Thoreau’s Bog, Concord, Massachusetts,’’ See, e.g., id. at 6–2. The types of chemical, Rosenberry and T.C. Winter, ‘‘Dynamics of Ecological Monographs 50:507–526 (1980); physical, and biological connections between Water-Table Fluctuations in an Upland C.B. Davis, et al., ‘‘Prairie Pothole Marshes as ‘‘other waters’’ and downstream waters are between Two Prairie-Pothole Wetlands in Traps for Nitrogen and Phosphorus in described below for illustrative purposes. As North Dakota,’’ Journal of Hydrology Agricultural Runoff,’’ in B. Richardson, ed., described in the preamble above, when the 191:266–289 (1997); J.E. Pyzoha, et al., ‘‘A Selected Proceedings of the Midwest agencies are conducting a case-specific Conceptual Hydrologic Model for a Forested Conference on Wetland Values and determination for significant nexus under Carolina Bay Depressional Wetland on the Management, June 17–19, 1981, St. Paul, MN, (a)(7), they examine the connections between Coastal Plain of South Carolina, USA,’’ (St. Paul, MN: The Freshwater Society, 1981), the water (including any similarly situated Hydrological Processes 22:2689–2698 pp. 153–163; H.F. Hemond, ‘‘The Nitrogen waters in the region) and downstream waters (2008)). Factors that determine whether a Budget of Thoreau’s Bog,’’ Ecology 64:99–109 and determine if those connections water recharges groundwater or is a site of (1983); K.C. Ewel and H.T. Odum, ed., significantly affect the chemical, physical, or groundwater discharge include topography, Cypress Swamps, (Gainesville, Florida: biological integrity of the downstream water, geology, soil features, and seasonal position University of Florida Press, 1984); J.T. using any available site-information and field of the water table relative to the water. Id. at Moraghan, ‘‘Loss and Assimilation of 15N- observations where available, relevant 5–24 (citing P.J. Phillips and R.J. Shedlock, nitrate Added to a North Dakota Cattail scientific studies or data, or other relevant ‘‘Hydrology and Chemistry of Groundwater Marsh,’’ Aquatic Botany 46:225–234 (1993); jurisdictional determinations that have been and Seasonal Ponds in the Atlantic Coastal- C.M. Kao, et al., ‘‘Non-point Source Pesticide made on similar resources in the region. Plain in Delaware, USA,’’ Journal of Removal by a Mountainous Wetland,’’ Water The hydrologic connectivity of ‘‘other Hydrology 141:157–78 (1993); R.J. Shedlock, Science and Technology 46:199–206 (2002); waters’’ to downstream waters occurs on a et al., ‘‘Interactions between Ground-Water P.I. Boon, ‘‘Biogeochemistry and Bacterial gradient and can include waters that have and Wetlands, Southern Shore of Lake- Ecology of Hydrologically Dynamic groundwater or occasional surface water Michigan, USA,’’ Journal of Hydrology Wetlands,’’ in D.P. Batzer and R.R. Sharitz, connections (through overland flow) to the 141:127–55 (1993); D.O. Rosenberry and T.C. ed., Ecology of Freshwater and Estuarine tributary network and waters that have no Winter, ‘‘Dynamics of Water-Table Wetlands (Berkeley, CA: University of hydrologic connection to the tributary Fluctuations in an Upland Between two California Press, 2006), pp. 115–176; E.J. network. Id. at 5–1. The connectivity of Prairie-Pothole Wetlands in North Dakota,’’ Dunne, et al., ‘‘Phosphorus Release and ‘‘other waters’’ to downstream waters will Journal of Hydrology 191:266–89 (1997); J.E. Retention by Soils of Natural Isolated vary within a watershed as a function of local Pyzoha, et al., ‘‘A Conceptual Hydrologic Wetlands,’’ International Journal of factors (e.g. position, topography, and soil Model for a Forested Carolina Bay Environment and Pollution 28:496–516 characteristics). Id. at 3–41 to 3–43. Depressional Wetland on the Coastal Plain of (2006); T.E. Jordan, et al., ‘‘Comparing Connectivity also varies over time, as the South Carolina, USA,’’ Hydrological Functional Assessments of Wetlands to tributary network and water table expand Processes 22: 2689–98 (2008)). Similarly, the Measurements of Soil Characteristics and and contract in response to local climate. Id. magnitude and transit time of groundwater Nitrogen Processing,’’ Wetlands 27:479–497

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(2007); S.L. Whitmire and S.K. Hamilton, Fragmented Populations of Wind-Dispersed amphibians and small reptile species, such as ‘‘Rates of Anaerobic Microbial Metabolism in Grassland Forbs,’’ Journal of Ecology frogs, toads, and newts, commonly use both Wetlands of Divergent Hydrology on a 90:1033–1043 (2002); M.B. Soons, ‘‘Wind tributaries and ‘‘other waters,’’ during one or Glacial Landscape,’’ Wetlands 28:703–714 Dispersal in Freshwater Wetlands: more stages of their life cycle, and can at (2008)). Also see, e.g., T.M. Isenhart, Knowledge for Conservation and times disperse over long distances. Id. (citing Transformation and Fate of Nitrate in Restoration,’’ Applied Vegetation Science V.S. Lamoureux and D.M. Madison, Northern Prairie Wetlands, Ph.D. Dissertation 9:271–278 (2006); C. Nilsson, et al., ‘‘The ‘‘Overwintering Habitats of Radio-Implanted (Ames, Iowa: Iowa State University, 1992). Role of Hydrochory in Structuring Riparian Green Frogs, Rana clamitans,’’ Journal of The body of published scientific literature and Wetland Vegetation,’’ Biological Reviews Herpetology 33:430–435 (1999); K.J. Babbitt, and the Report indicate that sink removal of 85:837–858 (2010)). Mammals that disperse et al., ‘‘Patterns of Larval Amphibian nutrients and other pollutants by ‘‘other overland can also contribute to connectivity Distribution along a Wetland Hydroperiod waters’’ is significant and geographically and can act as transport vectors for Gradient,’’ Canadian Journal of Zoology- widespread. Report at 5–30. Water quality hitchhikers such as algae. Id. at 5–32 (citing Revue Canadienne De Zoologie 81:1539– characteristics of ‘‘other waters’’ are highly C.E. Shanks and G.C. Arthur, ‘‘Muskrat 1552 (2003); S.B. Adams, et al., ‘‘Instream variable, depending primarily on the sources Movements and Population Dynamics in Movements by Boreal Toads (Bufo boreas of water, characteristics of the substrate, and Missouri Farm Ponds and Streams,’’ Journal boreas),’’ Herpetological Review 36:27–33 land uses within the watershed. D.F. of Wildlife Management 16:138–148 (1952); (2005); D.M. Green, ‘‘Bufo americanus, Whigham and T.E. Jordan, ‘‘Isolated J.P. Roscher, ‘‘Alga Dispersal by Muskrat American Toad,’’ in M. Lannoo, ed., Wetlands and Water Quality,’’ Wetlands Intestinal Contents,’’ Transactions of the Amphibian Declines: The Conservation 23:541–549 (2003) at 541. These variables American Microscopical Society 86:497–498 Status of the United States Species (Berkeley, inform whether an ‘‘other water’’ has a (1967); W.R. Clark, ‘‘Ecology of Muskrats in CA: University of California Press, 2005), pp. significant nexus to an (a)(1) through (a)(3) Prairie Wetlands,’’ in H. R. Murkin, et al., ed., 692–704; T.W. Hunsinger and M. J. Lannoo, water. For instance, some prairie potholes 2000, pp. 287–313)). Invertebrates also utilize ‘‘Notophthalmus viridescens, Eastern Newt,’’ may improve water quality and may birds and mamals to hitchhike, and these in M. Lannoo, ed., 2005, pp. 912–914; J.W. efficiently retain nutrients that might hitchhikers can be an important factor Petranka and C.T. Holbrook, ‘‘Wetland otherwise cause water quality problems structuring invertebrate metapopulations in Restoration for Amphibians: Should Local downstream; in such systems it may be their ‘‘other waters’’ and in aquatic habitats Sites Be Designed to Support lack of a direct hydrologic connection that separated by hundreds of kilometers. Id. Metapopulations or Patchy Populations?,’’ enables the prairie potholes to more (citing J. Figuerola and A.J. Green, ‘‘Dispersal Restoration Ecology 14:404–411 (2006)). effectively retain nutrients. Id. at 543. of Aquatic Organisms by Waterbirds: A Even when a surface or groundwater ‘‘Other waters’’ can be biologically Review of Past Research and Priorities for hydrologic connection between a water and connected to each other and to downstream Future Studies,’’ Freshwater Biology 47:483– a downstream water is visibly absent, many waters through the movement of seeds, 494 (2002); J. Figuerola, et al., ‘‘Invertebrate waters still have the ability to substantially macroinvertebrates, amphibians, reptiles, Eggs Can Fly: Evidence of Waterfowl- influence the integrity of downstream waters. birds, and mammals. Report at 5–31 to 5–33; Mediated Gene Flow in Aquatic However, such circumstances would be S.G. Leibowitz, ‘‘Isolated Wetlands and Their Invertebrates,’’ American Naturalist 165:274– uncommon. Id. at 5–22 to 5–25. Aquatic Functions: An Ecological Perspective,’’ 280 (2005); M.R. Allen, ‘‘Measuring and systems that may seem disconnected Wetlands 23:517–531 (2003) at 519. The Modeling Dispersal of Adult Zooplankton,’’ hydrologically are often connected but at movement of organisms between ‘‘other Oecologia 153:135–143 (2007); D. Frisch, et irregular timeframes or through subsurface waters’’ and downstream waters is governed al., ‘‘High Dispersal Capacity of a Broad flow, and perform important functions that by many of the same factors that affect Spectrum of Aquatic Invertebrates Via can be vital to the chemical, physical, or movement of organisms between adjacent Waterbirds,’’ Aquatic Sciences 69:568–574 biological integrity of downstream waters. wetlands and downstream waters (See Part II (2007)). Numerous flight-capable insects use Some wetlands that are not adjacent may be Section 2.A.d.). Report at 5–31. Generally, both ‘‘other waters’’ and downstream waters; hydrologically disconnected most of the time ‘‘other waters’’ are further away from stream these insects move outside the tributary but connected to the stream network during channels than adjacent waters, making network to find suitable habitat for rare high-flow events. The lack of a hydrologic connectivity less frequent, and overwintering, refuge from adverse hydrologic connection also allows for water increasing the number and variety of conditions, hunting, foraging, or breeding, storage in ‘‘other waters,’’ attenuating peak landscape barriers over which organisms and then can return back to the tributary streamflows, and, thus, downstream flooding, must disperse. Id. Plants, though non-mobile, network for other lifecycle needs. Id. at 5–33 and also reducing nutrient and soil pollution have evolved many adaptations to achieve (citing D.D. Williams, ‘‘Environmental in downstream waters. Report at 5–25 to 5– dispersal over a variety of distances, Constraints in Temporary Fresh Waters and 26, 5–36. Prairie potholes a great distance including water-borne dispersal during Their Consequences for the Insect Fauna,’’ from any tributary, for example, are thought periodic hydrologic connections, Journal of the North American Benthological to store significant amounts of runoff. Id. at ‘‘hitchhiking’’ on or inside highly mobile Society 15:634–650 (1996); A.J. Bohonak and 5–36 (citing R.P. Novitzki, ‘‘Hydrologic animals, and more typically via wind D.G. Jenkins, ‘‘Ecological and Evolutionary Characteristics of Wisconsin’s Wetlands and dispersal of seeds and/or pollen. Id. at 5–31 Significance of Dispersal by Freshwater Their Influence on Floods,’’ in P. Greeson, et (citing S.M. Galatowitsch and A.G. van der Invertebrates,’’ Ecology Letters 6:783–796 al., ed., Wetland Functions and Values: The Valk, ‘‘The Vegetation of Restored and (2003)). Amphibians and reptiles also move Status of Our Understanding, Proceedings of Natural Prairie Wetlands,’’Ecological between ‘‘other waters’’ and downstream the National Symposium on Wetlands Applications 6:102–112 (1996); H.R. Murkin waters to satisfy part of their life history (Minneapolis, MN: American Water and P.J. Caldwell, ‘‘Avian Use of Prairie requirements. Id. at 5–33. Alligators in the Resources Association, 1979), pp. 377–388; Wetlands,’’ in H.R. Murkin, et al., ed., Prairie Southeast, for instance, can move from D.E. Hubbard and R.L. Linder, ‘‘Spring Wetland Ecology: The Contribution of the tributaries to shallow, seasonal limesink Runoff Retention in Prairie Pothole Marsh Ecology Research Program, (Ames, IA: wetlands for nesting, and also use these Wetlands,’’ Journal of Soil and Water Iowa State University Press, 2000), pp. 249– wetlands as nurseries for juveniles; sub- Conservation 41:122–125 (1986); J. Jacques 286; J.M. Amezaga, et al., ‘‘Biotic Wetland adults then shift back to the tributary and D.L. Lorenz, ‘‘Techniques for Estimating Connectivity—Supporting a New Approach network through overland movements. Id. the Magnitude and Frequency of Floods in for Wetland Policy,’’ Acta Oecologica- (citing A.L. Subalusky, et al., ‘‘Ontogenetic Minnesota,’’ Water Resources Investigations International Journal of Ecology 23:213–222 Niche Shifts in the American Alligator Report 87–4170, (St. Paul, MN: U.S. (2002); J. Figuerola and A.J. Green, ‘‘Dispersal Establish Functional Connectivity between Geological Survey, 1988); K.C. Vining, of Aquatic Organisms by Waterbirds: a Aquatic Systems,’’ Biological Conservation ‘‘Simulation of Streamflow and Wetland Review of Past Research and Priorities for 142:1507–1514 (2009); A.L. Subalusky, et al., Storage, Starkweather Coulee Subbasin, Future Studies,’’ Freshwater Biology 47:483– ‘‘Detection of American Alligators in North Dakota, Water Years 1981–98,’’ Water- 494 (2002); M.B. Soons and G.W. Heil, Isolated, Seasonal Wetlands,’’ Applied Resources Investigations Report 02–4113 ‘‘Reduced Colonization Capacity in Herpetology 6:199–210 (2009)). Similarly, (Bismarck, North Dakota: U.S. Geological

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Survey, 2002); R.A. Gleason, et al., Geological Survey Scientific Investigations significant nexus and are thus categorically Estimating Water Storage Capacity of Report 2009–5250 (Reston, VA: U.S. jurisdictional. The specific categories of Existing and Potentially Restorable Wetland Geological Survey, 2010)). Similar to ‘‘other waters’’ for which there is currently Depressions in a Subbasin of the Red River wetlands, ponds are often used by evidence of a significant nexus are discussed of the North, U.S. Geological Survey Open- invertebrate, reptile, and amphibian species below: File Report 2007–1159 (Reston, VA: U.S. that also utilized downstream waters for a. Prairie potholes are a complex of Geological Survey, 2007); D.L. Lorenz, et al., various life history requirements, particularly glacially formed wetlands, usually occurring ‘‘Techniques for Estimating the Magnitude because many ponds, particularly temporary in depressions that lack permanent natural and Frequency of Peak Flows on Small ponds, are free of predators, such as fish, that outlets, that are found in the central United Streams in Minnesota Based on Through prey on larvae. The American toad and States and Canada. Report at 5–57. The vast Water Year 2005,’’ USGS Scientific Eastern newt are widespread habitat area they occupy is variable in many aspects, Investigations Report 2009–5250, (Reston, generalists that can move among streams, including climatically, topographically, VA: U.S. Geological Survey, 2010)). Filling wetlands, and ponds to take advantage of geologically, and in terms of land use and wetlands reduces water storage capacity in each aquatic habitat, feeding on aquatic alteration, which imparts variation on the the landscape and causes runoff from invertebrate prey, and avoiding predators. potholes themselves. Prairie potholes rainstorms to overwhelm the remaining See, e.g., Id. at 5–33 (citing K.J. Babbitt et al., demonstrate a wide range of hydrologic available water conveyance system. See, e.g., ‘‘Patterns of Larval Amphibian Distribution permanence, from holding permanent C.A. Johnston, et al., ‘‘The Cumulative Effect along a Wetland Hydroperiod Gradient,’’ standing water to wetting only in years with of Wetlands on Stream Water Quality and Canadian Journal of Zoology-Revue high precipitation, which in turn influences Quantity,’’ Biogeochemistry 10:105–141 Canadienne De Zoologie 81:1539–1552 the diversity and structure of their biological (1990); A.L. Moscrip and D.R. Montgomery, (2003); D.M. Green, ‘‘Bufo americanus, communities. Owing in large part to their ‘‘Urbanization, Flood Frequency, and Salmon American Toad,’’ in M. Lannoo, ed., spatial and temporal variability, individual Abundance in Puget Lowland Streams,’’ Amphibian Declines: The Conservation prairie potholes span the entire continuum of Journal of the American Water Resources Status of United States Species, (Berkeley, connectivity to and isolation from the river Association 33:1289–1297 (1997); N.E. CA: University of California Press, 2005), pp. network and other bodies of water. Potholes Detenbeck, et al., ‘‘Evaluating Perturbations 692–704; T.W. Hunsinger and M.J. Lannoo, generally accumulate and retain water and Developing Restoration Strategies for ‘‘Notophthalmus viridescens, Eastern Newt,’’ effectively due to the low permeability of Inland Wetlands in the Great Lakes Basin,’’ in M. Lannoo, ed., Amphibian Declines: The their underlying soil, which can modulate Wetlands 19(4): 789–820 (1999); N.E. Beck, et Conservation Status of United States Species, flow characteristics of nearby streams and al., ‘‘Relationship of Stream Flow Regime in (Berkeley, CA: University of California Press, rivers. Potholes also can accumulate the Western Lake Superior Basin to 2005), pp. 912–914; J.W. Petranka and C.T. chemicals in overland flow, thereby reducing Watershed Type Characteristics,’’ Journal of Holbrook, ‘‘Wetland Restoration for chemical loading to other bodies of water. Hydrology 309(1–4): 258–276 (2005). Amphibians: Should Local Sites Be Designed When potholes are artificially connected to Wetlands, even when lacking a hydrologic to Support Metapopulations or Patchy streams and lakes through drainage, isolation connection downstream, improve Populations?,’’ Restoration Ecology 14:404– is eliminated and they become sources of downstream water quality by accumulating 411 (2006)). Additionally, stream networks water and chemicals. Potholes also support a nutrients, trapping sediments, and that are not part of the tributary system (e.g., community of highly mobile organisms, from transforming a variety of substances. See, streams in closed basins without an (a)(1) plants to invertebrates that move among e.g., National Research Council, Wetlands: through (a)(3) water or losing streams and potholes and that can biologically connect Characteristics and Boundaries (Washington, other streams that cease to flow before the entire complex to the river network. DC: National Academy Press, 1995), p. 38. reaching downstream (a)(1) through (a)(3) Based on these connections and the strength Under today’s proposal, on a case-specific waters) may likewise have a significant of their effects, individually or in basis, ‘‘other waters’’ that have a significant impact on the chemical, physical, or combination with other prairie potholes in nexus to an (a)(1) through (a)(3) water are biological integrity of downstream waters. the watershed, on the chemical, physical, or ‘‘waters of the United States’’ under (a)(7). Non-tributary streams may be connected via biological integrity of an (a)(1) through (a)(3) The scientific literature and data in the groundwater to downstream waters. Such water, the agencies could conclude by rule Report and elsewhere support that some streams may also provide habitat to insect, that prairie potholes have a significant nexus ‘‘other waters’’ (including some of those in amphibian, and reptile species that also use and are jurisdictional. The agencies’ the case studies), along with other similarly the tributary network. determination will be informed by the final situated waters in the region, do greatly affect i. Additional Request for Public Comment on version of the Report and other available the chemical, physical, or biological integrity ‘‘Other Waters’’ scientific information. of (a)(1) through (a)(3) waters, and thus The agencies are considering whether to b. Carolina and Delmarva bays are ponded would be jurisdictional under (a)(7). determine by rule that prairie potholes, depressional wetlands that occur along the Though much of the literature cited in the Carolina and Delmarva bays, pocosins, Texas Atlantic coastal plain from northern Florida Report relates to ‘‘other waters’’ that are coastal prairie wetlands, western vernal to New Jersey. Id. at 5–49. Most bays receive wetlands, the Report indicates that non- pools, and perhaps other categories of waters, water through precipitation, lose water wetland waters that are not (a)(1) through either alone or in combination with ‘‘other through evapotranspiration, and lack natural (a)(6) waters also can have chemical, waters’’ of the same type in a single point of surface outlets. Both mineral-based and peat- physical, or biological connections that entry watershed have a significant nexus and based bays have shown connections to significantly impact downstream waters. For are jurisdictional. R.W. Tiner, shallow groundwater. Bays typically are in instance, non-adjacent ponds or lakes that are ‘‘Geographically Isolated Wetlands of the proximity to each other or to open waters, not part of the tributary network can still be United States,’’ Wetlands 23(3):494–516 providing the potential for surface water connected to downstream waters through (2003); M.G. Forbes, et al., ‘‘Nutrient connections in large rain events via overland chemical, physical, and biological Transformation and Retention by Coastal flow. Fish are reported in bays that are connections. Lake storage has been found to Prairie Wetlands, Upper Gulf Coast, Texas,’’ known to dry out, indirectly demonstrating attenuate peak streamflows in Minnesota. Id. Wetlands 32(4): 705–715 (2012). These surficial connections. Amphibians and at 5–25 (citing J. Jacques and D.L. Lorenz, waters would not require a case-by-case reptiles use bays extensively for breeding and Techniques for Estimating the Magnitude analysis. At the same time, the agencies for rearing young. These animals can and Frequency of Floods of Ungauged could determine by rule that playa lakes, and disperse many meters on the landscape and Streams in Minnesota, USGS Water- perhaps other categories of waters, do not can colonize, or serve as a food source to, Resources Investigations Report 84–4170 have a significant nexus and are not downstream waters. Similarly, bays foster (Washington, DC: U.S. Geological Survey, jurisdictional. These waters would not be abundant insects that have the potential to 1988); D.L. Lorenz, et al., Techniques for subject to a case-by-case analysis of become part of the downstream food chain. Estimating the Magnitude and Frequency of significant nexus. As the science develops, Humans have ditched and channelized a Peak Flows on Small Streams in Minnesota the agencies may determine that additional high percentage of bays, creating new surface Based on Data through Water Year 2005, U.S. categories of ‘‘other waters’’ have a connections to ‘‘other waters’’ and allowing

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transfer of nutrients, sediment, and other jurisdictional. The agencies’ determination abundant and in close proximity to other pollutants such as methylmercury. Based on will be informed by the final version of the coastal prairie wetlands and function these connections and the strength of their Report and other available scientific together cumulatively. (N. Enwright, et al., effects, individually or in combination with information. The jurisdictional status of ‘‘Using Geographic Information Systems other Carolina or Delmarva bays in the vernal pools located in other areas will be (GIS) to Inventory Coastal Prairie Wetlands watershed, on the chemical, physical, or determined on a case-by-case significant Along the Upper Gulf Coast, Texas,’’ biological integrity of an (a)(1) through (a)(3) nexus analysis with any similar situated Wetlands 31:687–697 (2011)). Collectively as water, the agencies could conclude by rule waters in the single point of entry watershed. a complex, Texas coastal prairie wetlands that Carolina and Delmarva bays have a For example, insects and amphibians that may be geographically and hydrologically significant nexus and are jurisdictional. The can live in streams or permanent pools connected to each other via swales and agencies’ determination will be informed by opportunistically use glaciated vernal pools connected to downstream waters, the final version of the Report and other in the Northeast and Midwest as alternative contributing flow to those downstream available scientific information. breeding habitat, refuge from predators or waters. (B.P. Wilcox, et al., ‘‘Evidence of c. Vernal pools are shallow, seasonal environmental stressors, hunting or foraging Surface Connectivity for Texas Gulf Coast wetlands that accumulate water during habitat, or stepping-stone corridors for Depressional Wetlands,’’ Wetlands colder, wetter months and gradually dry up dispersal and migration. 31(3):451–458 (2011)). Cumulatively, these during warmer, drier months. Id. at 5–66. d. The word pocosin comes from the wetlands can control nutrient release levels Western vernal pools are seasonal wetlands Algonquin Native American word for and rates to downstream waters, as they associated with topographic depressions, ‘‘swamp on a hill,’’ and these evergreen capture, store, transform and pulse releases soils with poor drainage, mild, wet winters shrub and tree dominated landscapes are of nutrients to those waters. (M.G. Forbes, et and hot, dry summers in western North found from Virginia to northern Florida, but al., ‘‘Nutrient Transformation and Retention America from southeastern Oregon to mainly in North Carolina. (C.J. Richardson, by Coastal Prairie Wetlands, Upper Gulf northern Baja California, Mexico (Id. at 5–67, ‘‘Pocosins: Hydrologically Isolated or Coast, Texas,’’ Wetlands 32(4): 705–715 citing E.T. Bauder and S. McMillan, ‘‘Current Integrated Wetlands on the Landscape?,’’ (2012)). Based on these connections and the Distribution and Historical Extent of Vernal Wetlands 23(3):563–576 (2003)). Usually, strength of their effects, individually or in Pools in Southern California and Northern there is no standing water present in these combination with other coastal prairie Baja California, Mexico,’’ pp. 56–70 in C.W. peat-accumulating wetlands, but a shallow wetlands in the watershed, on the chemical, Witham, et al., editors, Ecology, water table leaves the soil saturated for much physical, or biological integrity of an (a)(1) Conservation, and Management, 1998). of the year. They range in size from less than through (a)(3) water, the agencies could Because their hydrology and ecology are so an acre to several thousand acres. The slow conclude by rule Texas coastal prairie tightly coupled with the local and regional movement of water through the dense wetlands have a significant nexus and are geological processes that formed them, organic matter in pocosins removes excess jurisdictional. The agencies’ determination western vernal pools typically occur within nutrients deposited by rainwater. The same will be informed by the final version of the ‘‘vernal pool landscapes,’’ or complexes of organic matter also acidifies the water. This Report and other available scientific pools in which swales connect pools to each pure water is slowly released to downstream information. other and to seasonal streams (Id. at 5–67 to waters and estuaries, where it helps to The agencies could also conclude that 5–68, citing W.A. Weitkamp, et al., maintain the proper salinity, nutrients, and playa lakes in the Great Plains even in ‘‘Pedogenesis of a Vernal Pool Entisol- acidity. (Id.) Because pocosins are the combination with other playa lakes in a Alfisol-Vertisol Catena in Southern topographic high areas on the regional single point of entry watershed always lack California,’’ Soil Science Society of America landscape, they serve as the source of water a significant nexus and therefore are not Journal 60:316323 (1996); D.W. Smith and for downstream areas. Pocosins often have jurisdictional. Playa lakes are round, shallow W.L. Verrill, ‘‘Vernal Pool-Soil-Landform seasonal connections to drainageways wetlands found primarily in the High Plains, Relationships in the Central Valley, leading to estuaries or are contiguous with a subregion of the Great Plains in the western California,’’ pp. 15–23 in C.W. Witham, et al., other wetlands draining into perennial and Midwestern United States. (D.A. Haukos, editors, Ecology, Conservation, and streams or estuaries. (R.W. Tiner, and L.M. Smith, ‘‘Past and Future Impacts of Management of Vernal Pool Ecosystems— ‘‘Geographically Isolated Wetlands of the Wetland Regulations on Playas,’’ Wetlands Proceedings from a 1996 Conference United States,’’ Wetlands 23(3):494–516 23(3):577–589 (2003); R.W. Tiner, (California Native Plant Society, Sacramento, (2003)). Other pocosins have been ditched ‘‘Geographically Isolated Wetlands of the CA,1998); M.C. Rains, et al., ‘‘The Role of and are directly connected to streams. (Id.) United States,’’ Wetlands 23(3):494–516 Perched Aquifers in Hydrological The draining of pocosins and decreased (2003)). Each playa typically occurs within a Connectivity and Biogeochemical Processes salinity in estuaries may be having a negative closed or terminal watershed, where all water in Vernal Pool Landscapes, Central Valley, effect on brown shrimp in North Carolina. in the watershed drains to the playa. (D.A. California,’’ Hydrological Processes 20:1157– (Id.) Based on these connections and the Haukos, and L.M. Smith, ‘‘Past and Future 1175 (2008)). Despite differences in geology, strength of their effects, individually or in Impacts of Wetland Regulations on Playas,’’ climate, and biological communities, some combination with other pocosins in the Wetlands 23(3):577–589 (2003)). As such, common findings about the hydrologic watershed, on the chemical, physical, or playas typically do not drain to an (a)(1) connectivity of vernal pools in different biological integrity of an (a)(1) through (a)(3) through (a)(3) water. Most playas are fed by regions, including Western vernal pools, water, the agencies could conclude by rule precipitation and associated runoff, though a include evidence for temporary or permanent pocosins have a significant nexus and are few are fed by groundwater. (R.W. Tiner, outlets, frequent filling and spilling of higher jurisdictional. The agencies’ determination ‘‘Geographically Isolated Wetlands of the pools into lower elevation swales and stream will be informed by the final version of the United States,’’ Wetlands 23(3):494–516 channels, and conditions supporting Report and other available scientific (2003)). Most playas fill with water only after subsurface flows through pools without information. spring rainstorms when freshwater collects in perched aquifers to nearby streams. Non- e. Along the Gulf of Mexico from western the round depressions of the otherwise flat glaciated vernal pools in western states are Louisiana to south Texas, freshwater landscape of west Texas, Oklahoma, New reservoirs of biodiversity and can be wetlands occur as a mosaic of depressions, Mexico, Colorado, and Kansas. Although connected genetically to other locations and ridges, intermound flats, and mima mounds. playas play a role in groundwater recharge of aquatic habitats through wind- and animal- (M.G. Forbes, et al., ‘‘Nutrient the Ogallala Aquifer, in local floodwater mediated dispersal. Based on these Transformation and Retention by Coastal storage, and in provision of wildlife habitat, connections and the strength of their effects, Prairie Wetlands, Upper Gulf Coast, Texas,’’ available scientific literature indicates that individually or in combination with other Wetlands 32(4): 705–715 (2012)). These their chemical, physical, or biological western vernal pools in the watershed, on the coastal prairie wetlands were formed connections to and effects on (a)(1) through chemical, physical, or biological integrity of thousands of years ago by ancient rivers and (a)(3) waters are of a limited and tenuous an (a)(1) through (a)(3) water, the agencies bayous and once occupied almost a third of nature. could conclude by rule that western vernal the landscape around Galveston Bay, Texas. The agencies seek comment, data, and pools have a significant nexus and are Texas coastal prairie wetlands are locally information on whether there are

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subcategories of ‘‘other waters’’ or specific case. Id. at 167. SWANCC did not invalidate to the facts of the cases before them, and did combinations of characteristics that are (a)(3) or other parts of the regulatory not foreclose the possibility that in some ‘‘likely, in the majority of cases, to perform definition of ‘‘waters of the United States.’’ cases the plurality’s standard might apply. N. important functions for an aquatic ecosystem Five years after SWANCC, the Court again Cal. River Watch v. City of Healdsburg, 496 incorporating navigable waters,’’ and, thus, addressed the CWA term ‘‘waters of the F.3d 993, 999–1000 (9th Cir. 2007), cert. should be per se jurisdictional. For example, United States’’ in Rapanos v. United States, denied, 552 U.S. 1180 (2008); United States if there are additional studies addressing the 547 U.S. 715 (2006). Rapanos involved two v. Gerke Excavating, Inc., 464 F.3d 723, 725 connectivity of prairie potholes in the Red consolidated cases in which the CWA had (7th Cir. 2006), cert. denied, 552 U.S. 810 River Valley, including the factors been applied to wetlands adjacent to (2007). The Fifth and Sixth Circuits did not influencing that connectivity and how it is nonnavigable tributaries of traditional choose a controlling standard because the important to particular downstream waters, navigable waters. All Members of the Court waters at issue satisfied both standards. that would be relevant information. agreed that the term ‘‘waters of the United United States v. Lucas, 516 F.3d 316, 326– States’’ encompasses some waters that are not 27 (5th Cir. 2008), cert. denied, 555 U.S. 822 Appendix B navigable in the traditional sense. A four- (2008); United States v. Cundiff, 555 F.3d Legal Analysis Justice plurality in Rapanos interpreted the 200, 210–13 (6th Cir. 2009), cert. denied, 558 term ‘‘waters of the United States’’ as U.S. 818 (2009). The Eleventh Circuit has Background covering ‘‘relatively permanent, standing or held that only the Kennedy standard Congress enacted the Federal Water continuously flowing bodies of water . . . ,’’ determines jurisdiction. United States v. Pollution Control Act Amendments of 1972, id. at 739, that are connected to traditional Robison, 505 F.3d 1208 (11th Cir. 2007), cert. Public Law 92–500, 86 Stat. 816, as amended, navigable waters, id. at 742, as well as denied sub nom United States v. McWane (33 U.S.C. 1251 et seq.) (Clean Water Act or wetlands with a ‘‘continuous surface and McWane v. United States, 555 U.S. 1045 CWA) ‘‘to restore and maintain the chemical, connection . . .’’ to such water bodies, id. (2008). No Circuit Court has held that only physical, and biological integrity of the (Scalia, J., plurality opinion). The Rapanos the plurality standard applies. Nation’s waters.’’ 33 U.S.C. 1251(a).9 The plurality noted that its reference to U.S. Supreme Court first addressed the scope ‘‘relatively permanent’’ waters did ‘‘not Traditional Navigable Waters of ‘‘waters of the United States’’ protected by necessarily exclude streams, rivers, or lakes EPA and the Corps are proposing no the CWA in United States v. Riverside that might dry up in extraordinary changes to the existing regulation related to Bayview Homes, 474 U.S. 121 (1985), which circumstances, such as drought,’’ or traditional navigable waters and at paragraph involved wetlands adjacent to a traditional ‘‘seasonal rivers, which contain continuous (a)(1) will continue to assert jurisdiction over navigable water in Michigan. In a unanimous flow during some months of the year but no all waters which are currently used, or were opinion, the Court deferred to the Corps’ flow during dry months . . . .’’ Id. at 732 n.5 used in the past, or may be susceptible to use ecological judgment that adjacent wetlands (emphasis in original). Justice Kennedy’s in interstate or foreign commerce, including are ‘‘inseparably bound up’’ with the waters concurring opinion took a different approach. all waters which are subject to the ebb and to which they are adjacent, and upheld the Justice Kennedy concluded that ‘‘to flow of the tide. See e.g., 33 CFR 328.3(a)(1); inclusion of adjacent wetlands in the constitute ‘navigable waters’ under the Act, 40 CFR 230.3(s)(1); 40 CFR 122.2 (‘‘waters of regulatory definition of ‘‘waters of the United a water or wetland must possess a ‘significant the U.S.’’)). These ‘‘(a)(1) waters’’ are the States.’’ Id. at 134. The Court observed that nexus’ to waters that are or were navigable ‘‘traditional navigable waters.’’ These (a)(1) the broad objective of the CWA to restore and in fact or that could reasonably be so made.’’ waters include all of the waters defined in 33 maintain the integrity of the Nation’s waters Id. at 759 (citing SWANCC, 531 U.S. at 167, CFR part 329, which implements sections 9 ‘‘incorporated a broad, systemic view of the 172). He concluded that wetlands possess the and 10 of the Rivers and Harbors Act, and by goal of maintaining and improving water requisite significant nexus if the wetlands numerous decisions of the Federal courts, quality. . . . Protection of aquatic ‘‘either alone or in combination with plus all other waters that are navigable-in- ecosystems, Congress recognized, demanded similarly situated [wet]lands in the region, fact (e.g., the Great Salt Lake, UT and Lake broad federal authority to control pollution, significantly affect the chemical, physical, Minnetonka, MN). for ‘[w]ater moves in hydrologic cycles and and biological integrity of other covered To determine whether a water body it is essential that discharge of pollutants be waters more readily understood as constitutes an (a)(1) water under the controlled at the source.’ In keeping with ‘navigable.’ ’’ 547 U.S. at 780. Justice regulations, relevant considerations include these views, Congress chose to define the Kennedy’s opinion notes that such a Corps regulations, prior determinations by waters covered by the Act broadly.’’ Id. at relationship with navigable waters must be the Corps and by the Federal courts, and case 132–33 (citing Senate Report 92–414). more than ‘‘speculative or insubstantial.’’ Id. law. Corps districts and EPA regions would The issue of CWA jurisdiction over ‘‘waters at 780. In Rapanos, the four dissenting determine whether a particular water body is of the United States’’ was addressed again by Justices, who would have affirmed the court a traditional navigable water based on the Supreme Court in Solid Waste Agency of of appeals’ application of the pertinent application of those considerations to the Northern Cook County v. U.S. Army Corps of regulatory provisions, concluded that the specific facts in each case. Engineers, 531 U.S. 159 (2001) (SWANCC). In term ‘‘waters of the United States’’ As noted above, the (a)(1) waters include, SWANCC, the Court (in a 5–4 opinion) held encompasses, inter alia, all tributaries and but are not limited to, waters that meet any that the use of ‘‘isolated’’ nonnavigable wetlands that satisfy either the plurality’s of the tests set forth in 33 CFR part 329 (e.g., intrastate ponds by migratory birds was not standard or that of Justice Kennedy. Id. at 810 the water body is (a) subject to the ebb and by itself a sufficient basis for the exercise of & n.14 (Stevens, J., dissenting). Neither the flow of the tide, and/or (b) the water body is Federal regulatory authority under the CWA. plurality nor the Kennedy opinions presently used, or has been used in the past, The SWANCC Court noted that in Riverside invalidated any of the regulatory provisions or may be susceptible for use (with or it had ‘‘found that Congress’ concern for the defining ‘‘waters of the United States.’’ without reasonable improvements) to protection of water quality and aquatic The Circuit Courts of Appeals are not transport interstate or foreign commerce). ecosystems indicated its intent to regulate uniform as to the controlling standard for The Corps districts have made wetlands ‘inseparably bound up’ with the ‘‘waters of the United States’’ under Rapanos. determinations in the past under these ‘waters of the United States’ ’’ and that ‘‘it The First, Third and Eighth Circuits have regulations for purposes of asserting was the significant nexus between the concluded that CWA jurisdiction exists if jurisdiction under sections 9 and 10 of the wetlands and ‘navigable waters’ that either Justice Kennedy’s standard or the Rivers and Harbors Act of 1899 (33 U.S.C. informed our reading of the CWA’’ in that plurality’s standard is met. United States v. 401 and 403). Pursuant to 33 CFR 329.16, the Johnson, 467 F.3d 56, 66 (1st Cir. 2006), cert. Corps maintains lists of final determinations 9 The 1972 legislation extensively amended the denied, 552 U.S. 948 (2007); U.S. v. Donovan, of navigability for purposes of Corps Federal Water Pollution Control Act (FWPCA), 661 F.3d. 174, 176 (3rd Cir. 2011), cert. jurisdiction under the Rivers and Harbors Act which was originally enacted in 1948. Further amendments to the FWPCA enacted in 1977 denied, 132 S.Ct. 2409 (2012); U.S. v. Bailey, of 1899. While absence from the list should acknowledged the popular name of the statute as 571 F.3d 791, 798–99 (8th Cir. 2009). The not be taken as an indication that the water the Clean Water Act. See Public Law 95–217, 91 Seventh and Ninth Circuits limited their is not navigable (§ 329.16(b)), Corps districts Stat. 1566; 33 U.S.C. 1251 note. holdings that the Kennedy standard applied and EPA Regions rely on any final Corps

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determination that a water body meets any of navigability does not depend on the Oklahoma, supra, at 591, 42 S.Ct. 406. In the tests set forth in part 329. particular mode in which such use is or may contrast, admiralty jurisdiction extends to If the Federal courts have determined that be had—whether by steamboats, sailing water routes made navigable even if not a water body is navigable-in-fact under vessels or flatboats—nor on an absence of formerly so, see, e.g., Ex parte Boyer, 109 Federal law for any purpose, that water body occasional difficulties in navigation, but on U.S. 629, 631–632, 3 S.Ct. 434, 27 L.Ed. 1056 qualifies as a ‘‘traditional navigable water’’ the fact, if it be a fact, that the stream in its (1884) (artificial canal); and federal subject to CWA jurisdiction under 33 CFR natural and ordinary condition affords a regulatory authority encompasses waters that 328.3(a)(1) and 40 CFR 230.3(s)(1). Corps channel for useful commerce. only recently have become navigable, see, districts and EPA regions are guided by the Holt State Bank, 270 U.S. at 56. e.g., Philadelphia Co. v. Stimson, 223 U.S. relevant opinions of the Federal courts in In U.S. v. Utah, 283 U.S. 64 (1931) and 605, 634–635, 32 S.Ct. 340, 56 L.Ed. 570 determining whether such water bodies are U.S. v. Appalachian Elec. Power Co, 311 U.S. (1912), were once navigable but are no ‘‘currently used, or were used in the past, or 377 (1940), the Supreme Court held that so longer, see Economy Light & Power Co. v. may be susceptible to use in interstate or long as a water is susceptible to use as a United States, 256 U.S. 113, 123–124, 41 foreign commerce’’ (33 CFR 328.3(a)(1); 40 highway of commerce, it is navigable-in-fact, S.Ct. 409, 65 L.Ed. 847 (1921), or are not CFR 230.3(s)(1)) or ‘‘navigable-in-fact.’’ even if the water has never been used for any navigable and never have been but may The definition of ‘‘navigable-in-fact’’ commercial purpose. U.S. v. Utah, at 81–83 become so by reasonable improvements, see derives from a long line of cases originating (‘‘The question of that susceptibility in the Appalachian Elec. Power Co., supra, at 407– with The Daniel Ball, 77 U.S. 557 (1870). The ordinary condition of the rivers, rather than 408, 61 S.Ct. 291. With respect to the federal Supreme Court stated: of the mere manner or extent of actual use, commerce power, the inquiry regarding Those rivers must be regarded as public is the crucial question.’’); U.S. v. navigation historically focused on interstate navigable rivers in law which are navigable Appalachian Elec. Power Co., 311 U.S. at 416 commerce. See The Daniel Ball, 1229*1229 in fact. And they are navigable in fact when (‘‘Nor is lack of commercial traffic a bar to supra, at 564. And, of course, the commerce they are used, or are susceptible of being a conclusion of navigability where personal power extends beyond navigation. See Kaiser used, in their ordinary condition, as or private use by boats demonstrates the Aetna v. United States, 444 U.S. 164, 173– highways for commerce, over which trade availability of the stream for the simpler 174, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). In and travel are or may be conducted in the types of commercial navigation.’’) contrast, for title purposes, the inquiry customary modes of trade and travel on Appalachian Power further held that a water depends only on navigation and not on water. is navigable-in-fact even if it is not navigable interstate travel. See Utah, supra, at 76, 51 S.Ct. 438. This list of differences is not The Daniel Ball, 77 U.S. at 563. and never has been but may become so by exhaustive. Indeed, ‘‘[e]ach application of In The Montello, the Supreme Court reasonable improvements. 311 U.S. at 407– [the Daniel Ball] test . clarified that ‘‘customary modes of trade and 08. . . is apt to uncover travel on water’’ encompasses more than just In 1971, in Utah v. United States, 403 U.S. variations and refinements which require further elaboration.’’ Appalachian Elec. navigation by larger vessels: 9 (1971), the Supreme Court held that the Great Salt Lake, an intrastate water body, was Power Co., supra, at 406, 61 S.Ct. 291. The capability of use by the public for navigable under Federal law even though it PPL Montana v. Montana, 565 U.S. purposes of transportation and commerce ‘‘is not part of a navigable interstate or ___(2012). affords the true criterion of the navigability international commercial highway.’’ Id. at 10. Also of note are two decisions from the of a river, rather than the extent and manner In doing so, the Supreme Court stated that courts of appeals. In FPL Energy Marine of that use. If it be capable in its natural state the fact that the Lake was used for hauling Hydro, a case involving the Federal Power of being used for purposes of commerce, no of animals by ranchers rather than for the Act, the D.C. Circuit reiterated the fact that matter in what mode the commerce may be transportation of ‘‘water-borne freight’’ was ‘‘actual use is not necessary for a navigability conducted, it is navigable in fact, and an ‘‘irrelevant detail.’’ Id. at 11. ‘‘The lake determination’’ and repeated earlier Supreme becomes in law a public river or highway. was used as a highway and that is the gist Court holdings that navigability and capacity The Montello, 87 U.S. 430, 441–42 (1874). In of the federal test.’’ Id. of a water to carry commerce could be shown that case, the Court held that early fur trading Most recently, the Supreme Court through ‘‘physical characteristics and using canoes sufficiently showed that the Fox explained: experimentation.’’ FPL Energy Marine Hydro River was a navigable water of the United The Daniel Ball formulation has been LLC v. FERC, 287 F.3d 1151, 1157 (D.C. Cir. States. The Court was careful to note that the invoked in considering the navigability of 2002). In that case, the D.C. Circuit upheld bare fact of a water’s capacity for navigation waters for purposes of assessing federal a FERC navigability determination that was alone is not sufficient; that capacity must be regulatory authority under the Constitution, based upon three experimental canoe trips indicative of the water’s being ‘‘generally and and the application of specific federal taken specifically to demonstrate the river’s commonly useful to some purpose of trade or statutes, as to the waters and their beds. See, navigability. Id. at 1158–59. agriculture.’’ Id. at 442. e.g., ibid.; The Montello, 20 Wall. 430, 439, The 9th Circuit has also implemented the In Economy Light & Power, the Supreme 22 L.Ed. 391 (1874); United States v. Supreme Court’s holding that a water need Court held that a waterway need not be Appalachian Elec. Power Co., 311 U.S. 377, only be susceptible to being used for continuously navigable; it is navigable even 406, and n. 21, 61 S.Ct. 291, 85 L.Ed. 243 waterborne commerce to be navigable-in-fact. if it has ‘‘occasional natural obstructions or (1940) (Federal Power Act); Rapanos v. Alaska v. Ahtna, Inc., 891 F.2d 1404 (9th Cir. portages’’ and even if it is not navigable ‘‘at United States, 547 U.S. 715, 730–731, 126 1989). In Ahtna, the 9th Circuit held that all seasons . . . or at all stages of the water.’’ S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality current use of an Alaskan river for Economy Light & Power Co. v. U.S., 256 U.S. opinion) (Clean Water Act); id., at 761, 126 commercial recreational boating was 113, 122 (1921). S.Ct. 2208 (KENNEDY, J., concurring in sufficient evidence of the water’s capacity to In United States v. Holt State Bank, 270 judgment) (same). It has been used as well to carry waterborne commerce at the time that U.S. 49 (1926), the Supreme Court determine questions of title to water beds Alaska became a state. Id. at 1405. It was summarized the law on navigability as of under the equal-footing doctrine. See Utah, found to be irrelevant whether or not the 1926 as follows: supra, at 76, 51 S.Ct. 438; Oklahoma v. river was actually being navigated or being The rule long since approved by this court Texas, 258 U.S. 574, 586, 42 S.Ct. 406, 66 used for commerce at the time, because in applying the Constitution and laws of the L.Ed. 771 (1922); Holt State Bank, supra, at current navigation showed that the river United States is that streams or lakes which 56, 46 S.Ct. 197. It should be noted, however, always had the capacity to support such are navigable in fact must be regarded as that the test for navigability is not applied in navigation. Id. at 1404. navigable in law; that they are navigable in the same way in these distinct types of cases. In summary, when determining whether a fact when they are used, or are susceptible Among the differences in application are the water body qualifies as a ‘‘traditional of being used, in their natural and ordinary following. For state title under the equal- navigable water’’ (i.e., an (a)(1) water), condition, as highways for commerce, over footing doctrine, navigability is determined relevant considerations include whether the which trade and travel are or may be at the time of statehood, see Utah, supra, at water body meets any of the tests set forth conducted in the customary modes of trade 75, 51 S.Ct. 438, and based on the ‘‘natural in Part 329, or a Federal court has and travel on water; and further that and ordinary condition’’ of the water, see determined that the water body is

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‘‘navigable-in-fact’’ under Federal law for any (1) The Plain Language of the Clean Water 1972, shall remain in effect unless the purpose, or the water body is ‘‘navigable-in- Act and the Statute as a Whole Clearly Administrator determined that such standard fact’’ under the standards that have been Indicate Congress’ Intent to Include Interstate is not consistent with the applicable used by the Federal courts. Waters Within the Scope of ‘‘Navigable requirements of the Act as in effect Waters’’ for Purposes of the Clean Water Act immediately prior to the date of enactment of Interstate Waters Under well settled principles, the phrase the Federal Water Pollution Control Act Amendments of 1972. If the Administrator 1. Interstate Waters ‘‘navigable waters’’ should not be read in makes such a determination he shall, within isolation from the remainder of the statute. The agencies’ proposal today makes no three months after the date of enactment of As the Supreme Court has explained: change to the interstate waters section of the the Federal Water Pollution Control Act existing regulations and the agencies would The definition of words in isolation, Amendments of 1972, notify the State and continue to assert jurisdiction over interstate however, is not necessarily controlling in specify the changes needed to meet such waters, including interstate wetlands. The statutory construction. A word in a statute requirements. If such changes are not may or may not extend to the outer limits of language of the CWA is clear that Congress adopted by the State within ninety days after its definitional possibilities. Interpretation of intended the term ‘‘navigable waters’’ to the date of such notification, the a word or phrase depends upon reading the Administrator shall promulgate such changes include interstate waters, and the agencies’ whole statutory text, considering the purpose interpretation, promulgated in accordance with subsection (b). CWA and context of the statute, and consulting any section 303(a)(1) (emphasis added). contemporaneously with the passage of the precedents or authorities that inform the CWA, is consistent with the statute and Under the 1965 Act, as discussed in more analysis. detail below, states were directed to develop legislative history. The Supreme Court’s Dolan v. U.S. Postal Service, 546 U.S. 481, water quality standards establishing water decisions in SWANCC and Rapanos did not 486 (2006); see also United States Nat’l. Bank quality goals for interstate waters. By the address the interstate waters provision of the of Oregon v. Indep. Ins. Agents of Am., Inc., early 1970s, all the states had adopted such existing regulation. 508 U.S. 439, 455 (1993). water quality standards. Advanced Notice of A. The Language of the Clean Water Act, the While the term ‘‘navigable waters’’ is, in Proposed Rulemaking, Water Quality Statute as a Whole, and the Statutory History general, ambiguous, interstate waters are Standards Regulation, 63 FR 36742, 36745, Demonstrate Congress’ Clear Intent To waters that are clearly covered by the plain July 7, 1998. In section 303(a), Congress Include Interstate Waters as ‘‘Navigable language of the definition of ‘‘navigable clearly intended for existing Federal Waters’’ Subject to the Clean Water Act waters.’’ 11 Congress defined ‘‘navigable regulation of interstate waters to continue waters’’ to mean ‘‘the waters of the United under the amended CWA. Water quality While as a general matter, the scope of the States, including the territorial seas.’’ standards for interstate waters were not terms ‘‘navigable waters’’ and ‘‘waters of the Interstate waters are waters of the several merely to remain in effect, but EPA was United States’’ is ambiguous, the language of States and, thus, the United States. While the required to actively assess those water the CWA, particularly when read as a whole, 1972 Act was clearly not limited to interstate quality standards and even promulgate demonstrates that Congress clearly intended waters, it was clearly intended to include revised standards for interstate waters if to continue to subject interstate waters to interstate waters. states did not make necessary changes. By Federal regulation. The statutory history of Furthermore, the CWA does not simply the plain language of the statute, these water Federal water pollution control places the define ‘‘navigable waters.’’ Other provisions quality standards for interstate waters were to terms of the CWA in context and provides of the statute provide additional textual remain in effect ‘‘in order to carry out the further evidence of Congressional intent to evidence of the scope of this term of the Act. purpose of this Act.’’ The objective of the Act include interstate waters within the scope of Most importantly, there is a specific is ‘‘to restore and maintain the chemical, the ‘‘navigable waters’’ protected by the Act. provision in the 1972 CWA establishing physical, and biological integrity of the Congress clearly intended to subject requirements for those interstate waters Nation’s waters.’’ CWA section 101(a). It interstate waters to CWA jurisdiction without which were subject to the prior Water would contravene Congress’ clearly stated imposing a requirement that they be water Pollution Control Acts. intent for a court to impose an additional that is navigable for purposes of Federal The CWA requires states to establish water jurisdictional requirement on all rivers, lakes, regulation under the Commerce Clause quality standards for navigable waters and and other waters that flow across, or form a themselves or be connected to water that is submit them to the Administrator for part of, state boundaries (‘‘interstate waters’’ navigable for purposes of Federal regulation review.12 Under section 303(a) of the Act, in as defined by the 1948 Act, § 10, 62 Stat. under the Commerce Clause.10 The CWA order to carry out the purpose of this Act, any 1161), such that interstate waters that were previously protected were no longer itself is clear that interstate waters that were water quality standard applicable to protected because they lacked a connection previously subject to Federal regulation interstate waters which was adopted by any State and submitted to, and approved by, or to a water that is navigable for purposes of remain subject to Federal regulation. The text Federal regulation under the Commerce of the CWA, specifically the CWA’s provision is awaiting approval by, the Administrator pursuant to this Act as in effect immediately Clause. Nor would all the existing water with respect to interstate waters and their quality standards be ‘‘carry[ing] out the water quality standards, in conjunction with prior to the date of enactment of the Federal Water Pollution Control Act Amendments of purpose of this Act,’’ if the only water quality the definition of navigable waters, provides standards that could be implemented through clear indication of Congress’ intent. Thus, the Act (through, for example, National 11 The Supreme Court has found that the term interstate waters are ‘‘navigable waters’’ Pollutant Discharge Elimination System protected by the CWA. ‘‘waters of the United States’’ is ambiguous in some respects. Rapanos, 547 U.S. at 752 (plurality permits under section 402) were those water opinion), 804 (dissent). quality standards established for interstate 10 For purposes of the CWA, EPA and the Corps 12 Section 303 of the Act requires the states to waters that are also waters that are navigable have interpreted the term ‘‘traditional navigable submit revised and new water quality standards to for purposes of Federal regulation under the waters’’ to include all of the ‘‘navigable waters of the Administrator for review. CWA section Commerce Clause or that connect to waters the United States,’’ defined in 33 CFR part 329 and 303(c)(2)(A). Such revised or new water quality that are navigable for purposes of Federal by numerous decisions of the Federal courts, plus standards ‘‘shall consist of the designated uses of regulation under the Commerce Clause. all other waters that are navigable-in-fact (e.g., the the navigable waters involved and the water quality Nowhere in section 303(a) does Congress Great Salt Lake, UT and Lake Minnetonka, MN). criteria for such waters.’’ Id. If the Administrator make such a distinction. This section explains why EPA and the Corps do determines that a revised or new standard is not not interpret the CWA or the Supreme Court’s consistent with the Act’s requirements, or (2) The Federal Water Pollution Control decisions in Solid Waste Agency of Northern Cook determines that a revised or new standard is Statute That Became the Clean Water Act County (SWANCC) v. U.S. Army Corps of Engineers, necessary to meet the Act’s requirements, and the Covered Interstate Waters 531 U.S. 159 (2001) and Rapanos v. United States, state does not make required changes, ‘‘[t]he 547 U.S. 715 (2006), to restrict CWA jurisdiction Administrator shall promptly prepare and publish In 1972, when Congress rewrote the law over interstate waters to only those interstate waters proposed regulations setting forth a revised or new governing water pollution, two Federal that are traditional navigable waters or that connect water quality standard for the navigable waters statutes addressed discharges of pollutants to traditional navigable waters. involved.’’ CWA section 303(c)(4). into interstate waters and water that is

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navigable for purposes of Federal regulation Governments in development of signed an Executive Order directing the under the Commerce Clause, and tributaries comprehensive programs for eliminating or Corps (in consultation with the Federal of each: The Water Pollution Control Act of reducing ‘‘the pollution of interstate waters Water Pollution Control Administration 16) to 1948, as amended, and section 13 of the and tributaries’’ and improving the sanitary implement a permit program under section Rivers and Harbors Act of 1899 (known as condition of surface and underground waters, 13 of the RHA ‘‘to regulate the discharge of the ‘‘Refuse Act’’). Of the two, the Water and authorizing the Surgeon General to make pollutants and other refuse matter into the Pollution Control Act extended Federal joint investigations with States into the navigable waters of the United States or their authority over interstate waters and their conditions of and discharges into ‘‘any tributaries and the placing of such matter tributaries. In contrast, the Refuse Act waters of any State or States.’’). upon their banks.’’ E.O. 11574, 35 FR 19627, extended Federal jurisdiction over the In 1961, Congress amended the FWPCA to Dec. 25, 1970. In 1971, the Corps ‘‘navigable waters of the United States’’ and substitute the term ‘‘interstate or navigable promulgated regulations establishing the their tributaries. These two separate statutes waters’’ for ‘‘interstate waters.’’ See Public Refuse Act Permit Program. 36 FR 6564, demonstrate that Congress recognized that Law 87–88, 75 Stat. 208 (1961). Accordingly, 6565, April 7, 1971. The regulations made it interstate waters and ‘‘navigable waters of the beginning in 1961, the provisions of the unlawful to discharge any pollutant (except United States’’ were independent lawful FWPCA applied to all interstate waters and those flowing from streets and sewers in a bases of Federal jurisdiction. navigable waters and the tributaries of each, liquid state) into a navigable waterway or a. The Federal Water Pollution Control Act see 33 U.S.C. 466a, 466g(a) (1964).13 tributary, except pursuant to a permit. Under Prior to 1972 In 1965, Congress approved a second set of the permit program, EPA advised the Corps major legislative changes, requiring each regarding the consistency of a proposed From the outset, and through all the state to develop water quality standards for discharge with water quality standards and amendments pre-dating the 1972 interstate waters within its boundaries by considerations, and the Corps evaluated a Amendments, the Federal authority to abate 1967. Public Law 89–234, 79 Stat. 908 permit application for impacts on anchorage, water pollution under the Water Pollution (1965).14 Failing establishment of adequate navigation, and fish and wildlife resources. Control Act, and the Federal Water Pollution standards by the state, the Act authorized Id. at 6566. Control Act (FWPCA) as it was renamed in establishment of water quality standards by 1956, extended to interstate waters. In c. The Federal Water Pollution Control Act Federal regulation. Id. at 908. The 1965 Amendments of 1972 addition, since first enacted in 1948, and Amendments provided that the discharge of throughout all the amendments, the goals of matter ‘‘into such interstate waters or When Congress passed the Federal Water the Act have been, inter alia, to protect portions thereof,’’ which reduces the quality Pollution Control Act Amendments of 1972 public water supplies, propagation of fish of such waters below the water quality (referred to hereinafter as the CWA or CWA), and aquatic life, recreation, agricultural, standards established under this subsection it was not acting on a blank slate. It was industrial, and other legitimate uses. See 62 (whether the matter causing or contributing amending existing law that provided for a Stat. 1155 and 33 U.S.C. 466 (1952), 33 to such reduction is discharged directly into Federal/State program to address water U.S.C. 466 (1958), 33 U.S.C. 466 (1964), 33 such waters or reaches such waters after pollution. The Supreme Court has recognized U.S.C. 1151 (1970). discharge into tributaries of such waters), is that Congress, in enacting the CWA in 1972, In 1948, Congress enacted the Water subject to abatement through procedures ‘‘intended to repudiate limits that had been Pollution Control Act in connection with the specified in the Act, including (after placed on federal regulation by earlier water exercise of jurisdiction over the waterways of conferences and negotiations and pollution control statutes and to exercise its the Nation and in the consequence of the consideration by a Hearing Board) legal powers under the Commerce Clause to benefits to public health and welfare by the action in the courts. Id. at 909.15 regulate at least some waters that would not abatement of stream pollution. See Pub. L. be deemed ‘navigable’ under the classical No. 80–845, 62 Stat. 1155 (June 30, 1948). b. The Refuse Act understanding of that term.’’ Riverside The Act authorized technical assistance and Since its original enactment in 1899, the Bayview Homes, 474 U.S. at 133; see also financial aid to states for stream pollution Refuse Act has prohibited the discharge of International Paper Co. v. Ouellette, 479 U.S. abatement programs, and made discharges of refuse matter ‘‘into any navigable water of the 481, 486, n.6 (1987). pollutants into interstate waters and their United States, or into any tributary of any The amendments of 1972 defined the term tributaries a nuisance, subject to abatement navigable water.’’ Ch. 425, 30 Stat. 1152 ‘‘navigable waters’’ to mean ‘‘the waters of and prosecution by the United States. See (1899). It also has prohibited the discharge of the United States, including the territorial section 2(d)(1),(4), 62 Stat. at 1156–1157 such material on the bank of any tributary seas.’’ 33 U.S.C. 1362(7). While earlier (section 2(d)(1) of the Water Pollution where it is liable to be washed into a versions of the 1972 legislation defined the Control Act of 1948, 62 Stat. at 1156, stated navigable water. Id. Violators are subject to term to mean ‘‘the navigable waters of the that the ‘‘pollution of interstate waters’’ in or fines and imprisonment. Id. at 1153 (codified United States,’’ the Conference Committee adjacent to any State or States (whether the at 33 U.S.C. 412). In 1966, the Supreme Court deleted the word ‘‘navigable’’ and expressed matter causing or contributing to such upheld the Corps’ interpretation of the the intent to reject prior geographic limits on pollution is discharged directly into such Refuse Act as prohibiting discharges that the scope of Federal water-protection waters or reaches such waters after discharge pollute the navigable waters, and not just measures. Compare S. Conf. Rep. No. 1236, into a tributary of such waters), which those discharges that obstruct navigation. 92d Cong., 2d Sess. 144 (1972), with H.R. endangers the health or welfare of persons in United States v. Standard Oil Co., 384 U.S. Rep. No. 911, 92 Cong., 2d Sess. 356 (1972) a State other than that in which the discharge 224, 230 (1966). In 1970, President Nixon (bill reported by the House Committee originates, is declared to be a public nuisance provided that ‘‘[t]he term ‘navigable waters’ and subject to abatement as provided by the 13 Congress did not define the term ‘‘navigable means the navigable waters of the United Act. (emphasis added)); § 2(a), 62 Stat. 1155 waters’’ in the 1961 Amendments, or in subsequent States, including the territorial seas’’); see (requiring comprehensive programs for FWPCA Amendments, until 1972. also S. Rep. No. 414, 92d Cong., 1st Sess. 77 ‘‘interstate waters and tributaries thereof’’); 14 In 1967, the state of Arizona created the Water (‘‘Through a narrow interpretation of the § 5, 62 Stat. 1158 (authorizing loans for Quality Control Council (Council) to implement the definition of interstate waters the sewage treatment to abate discharges into requirements of the 1965 FWPCA. The Council implementation of the 1965 Act was severely ‘‘interstate waters or into a tributary of such adopted water quality standards for those waters limited. . . . Therefore, reference to the waters’’). Under the statute, ‘‘interstate that were considered ‘‘interstate waters’’ pursuant control requirements must be made to the waters’’ were defined as all rivers, lakes, and to the existing Federal law. The Council identified navigable waters, portions thereof, and their the Santa Cruz River as an interstate water and other waters that flow across, or form a part tributaries.’’). Thus, Congress intended the of, state boundaries. Section 10, 62 Stat. promulgated water quality standards for the river in accordance with Federal law. scope of the 1972 Act to include, at a 1161. 15 In 1956, Congress strengthened measures The 1966 Amendments authorized civil fines for failing to provide information about an alleged 16 In December 1970, administration of the for controlling pollution of interstate waters discharge causing or contributing to water Federal Water Pollution Control Administration and their tributaries. Public Law 84–660, 70 pollution. Public Law 89–753, 80 Stat. 1250 (1966); was transferred from the Secretary of the Interior to Stat. 498 (1956) (directing further see also S. Rep. No. 414, 92d Congress, 1st Sess. 10 EPA. S. Rep. No. 414, 92d Congress, 1st Sess. cooperation between the Federal and State (1972) (describing the history of the FWPCA). (1972).

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minimum, the waters already subject to Milwaukee recognized that CWA jurisdiction water pollution. The scope of the CWA Federal water pollution control law—both extends to interstate waters without regard to amendments led the Court to reverse its interstate waters and waters that are navigability. decision in Illinois v. Milwaukee. In reaching navigable for purposes of Federal regulation In Illinois v. Milwaukee, the Court this result, the Court concluded that Congress under the Commerce Clause. Those statutes considered a public nuisance claim brought had elected to exercise its authority under covered interstate waters, defined interstate by the State of Illinois against the city of Federal law to occupy the field of water waters without requiring that they be a Milwaukee to address the adverse effects of pollution regulation. As a result, the Court traditional navigable water or be connected Milwaukee’s discharges of poorly treated concluded that there was no basis for to water that is a traditional navigable water, sewage into Lake Michigan, ‘‘a body of maintaining a Federal common law of and demonstrated that Congress knew that interstate water.’’ 406 U.S. at 93. In relevant nuisance. there are interstate waters that are not part, the Court held that the Federal common Congress has not left the formulation of navigable for purposes of Federal regulation law of nuisance was an appropriate appropriate federal standards to the courts under the Commerce Clause. mechanism to resolve disputes involving through application of often vague and In fact, Congress amended the Federal interstate water pollution. 406 U.S. at 107 indeterminate nuisance concepts and Water Pollution Control Act in 1961 to (‘‘federal courts will be empowered to maxims of equity jurisprudence, but rather substitute the term ‘‘interstate or navigable appraise the equities of suits alleging creation has occupied the field through the waters’’ for ‘‘interstate waters,’’ of a public nuisance by water pollution’’). establishment of a comprehensive regulatory demonstrating that Congress wanted to be The Court further noted that in such actions program supervised by an expert very clear that it was asserting jurisdiction the Court could consider a state’s interest in administrative agency. The 1972 over both types of waters: interstate waters protecting its high water quality standards Amendments to the Federal Water Pollution even if they were not navigable for purposes from ‘‘the more degrading standards of a Control Act were not merely another law of Federal regulation under the Commerce neighbor.’’ Id. ‘‘touching interstate waters’’. . . Rather, the Clause, and traditional navigable waters even In reaching this conclusion, the Court Amendments were viewed by Congress as a if they were not interstate waters. At no point examined in detail the scope of the Federal ‘‘total restructuring’’ and ‘‘complete were the interstate waters already subject to regulatory scheme as it existed prior to the rewriting’’ of the existing water pollution Federal water pollution control authority October, 1972 FWPCA amendments. In its legislation considered in that case. required to be navigable or to connect to a April, 1972 decision, the Court concluded 451 U.S. at 317. traditional navigable water. Further, as that the Federal Water Pollution Control Act The Court’s analysis in Illinois v. discussed above, the legislative history ‘‘makes clear that it is federal, not state, law Milwaukee made clear that Federal common clearly demonstrates that Congress was that in the end controls the pollution of law was necessary to protect ‘‘the expanding jurisdiction—not narrowing it— interstate or navigable waters.’’ 406 U.S. at environmental rights of States against with the 1972 amendments. Thus, it is 102 (emphasis added). The Court, in this improper impairment by sources outside its reasonable to conclude that by defining case, concluded that the regulatory domain.’’ 406 U.S. at 107, n. 9. In the context ‘‘navigable waters’’ as ‘‘the waters of the provisions of the Federal Water Pollution of interstate water pollution, nothing in the United States’’ in the 1972 amendments, Control Act did not address the right of a Court’s language or logic limits the reach of Congress included not just traditionally state to file suit to protect water quality. this conclusion to only navigable interstate navigable waters, but all waters previously However, this was not because this statute waters. In City of Milwaukee, the Court found regulated under the Federal Water Pollution did not reach interstate waters. The Court that the CWA was the ‘‘comprehensive Control Act, including non-navigable specifically noted that section 10(a) of the regulatory program’’ that ‘‘occupied the interstate waters. Federal Water Pollution Control Act ‘‘makes field’’ (451 U.S. 317) with regard to interstate Based on the statutory definition of pollution of interstate or navigable waters water pollution, eliminating the basis for an navigable waters, the requirement of section subject ‘to abatement’ ’’ 406 U.S. at 102 independent common law of nuisance to 303(a) for water quality standards for (emphasis added). Rather, the Court noted address interstate water pollution. Since the interstate waters to remain in effect, the that the plaintiff in this action was seeking Federal common law of nuisance (as well as purposes of the Act, and the more than three relief outside the scope of the Federal Water the statutory provisions regulating water decades of Federal water pollution control Pollution Control Act and that statute pollution in the Federal Water Pollution regulation that provides a context for reading explicitly provided that independent ‘‘state Control Act) applied to interstate waters those provisions of the statute, the intent of and interstate action to abate pollution of whether navigable or not, the CWA could Congress is clear that the term ‘‘navigable interstate or navigable waters shall be only occupy the field of interstate water encouraged and shall not . . . be displaced waters’’ includes ‘‘interstate waters’’ as an pollution if it too extended to non-navigable by Federal enforcement action.’’ 406 U.S. at independent basis for CWA jurisdiction, as well as navigable interstate waters. 104 (citing section 10(b) of the Federal Water whether or not they themselves are With regard to the specifics of interstate Pollution Control Act). traditional navigable waters or are connected water pollution, the City of Milwaukee Court In addition, in Illinois v. Milwaukee, the to a traditional navigable water. noted that, in Illinois v. Milwaukee, it had Court acknowledged that it was essential for been concerned that Illinois did not have a B. Supreme Court Precedent Supports CWA Federal law to resolve interstate water forum in which it could protect its interests Jurisdiction Over Interstate Waters Without pollution disputes, citing with approval the in abating water pollution from out of state, Respect to Navigability following discussion from Texas v. Pankey: absent the recognition of Federal common In two seminal decisions, the Supreme Federal common law and not the varying law remedies. 451 U.S. at 325. The Court Court established that resolving interstate common law of the individual states is, we then went on to analyze in detail the specific water pollution issues was a matter of think, entitled and necessary to be procedures created by the CWA ‘‘for a State Federal law and that the CWA was the recognized as a basis for dealing in uniform affected by decisions of a neighboring State’s comprehensive regulatory scheme for standard with the environmental rights of a permit-granting agency to seek redress.’’ 451 addressing interstate water pollution. Illinois State against improper impairment by U.S. at 326. The Court noted that ‘‘any State v. Milwaukee, 406 U.S. 91 (1972); City of sources outside its domain.... Until the whose waters may be affected by the issuance Milwaukee v. Illinois, 451 U.S. 304 (1981). In field has been made the subject of of a permit’’ is to receive notice and the both of these decisions, the Court held that comprehensive legislation or authorized opportunity to comment on the permit. Id. Federal law applied to interstate waters. administrative standards, only a federal (citing to CWA section 402(b)(3)(5). In Moreover, these cases analyzed the common law basis can provide an adequate addition the Court noted provisions giving applicable Federal statutory schemes and means for dealing with such claims as EPA the authority to veto and issue its own determined that the provisions of the Federal alleged federal rights. permits ‘‘if a stalemate between an issuing Water Pollution Control Act and the CWA 406 U.S. at 107 n. 9, citing Texas v. Pankey, and objecting state develops.’’ Id. (citing to regulating water pollution applied generally 441 F.2d 236, 241–242. CWA sections 402(d)(2)(A),(4)). In light of to interstate waters. The holdings of these In City of Milwaukee, the Court revisited these protections for states affected by cases recognized the Federal interest in this dispute and addressed the expanded interstate water pollution, the court interstate water quality pollution; and City of statutory provisions of the CWA regulating concluded that

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[t]he statutory scheme established by At the outset, it is worth noting that neither 441 F.2d 236, 241–242). In City of Congress provides a forum for the pursuit of SWANCC nor Rapanos dealt with the Milwaukee, the Court indicated that central such claims before expert agencies by means jurisdictional status of interstate waters. to its holding in Illinois v. Milwaukee was its of the permit-granting process. It would be Repeatedly in the SWANCC decision the concern ‘‘that Illinois did not have any forum quite inconsistent with this scheme if federal Court emphasized that the question to protect its interests [in the matters courts were in effect to ‘‘write their own presented concerned the jurisdiction status of involving interstate water pollution].’’ 451 ticket’’ under the guise of federal common nonnavigable intrastate waters located in two U.S. 325. As discussed above, the Court cited law after permits have already been issued Illinois counties. SWANCC 531 U.S. at 165– with approval the statutory provisions of the and permittees have been planning and 166, 171 (‘‘we thus decline to . . . hold that CWA regulating water pollution as an operating in reliance on them. isolated ponds, some only seasonal, wholly appropriate means to address that concern. 451 U.S. at 326. located within two Illinois counties fall under The City of Milwaukee and Illinois v. Nothing in the language or the reasoning of § 404(a) definition of navigable waters . . .’’) Milwaukee decisions make clear that this discussion limits the applicability of (emphasis added). Nowhere in Justice assertion of Federal authority to resolve these protections of interstate waters to Rehnquist’s majority opinion in SWANCC disputes involving interstate waters does not navigable interstate waters or interstate does the Court discuss the Court’s interstate alter ‘‘the Federal-State framework by waters connected to navigable waters. If these water case law.18 The Court does not even permitting Federal encroachment on a protections only applied to navigable discuss the fact that CWA jurisdictional traditional State power.’’ 531 U.S. at 173. interstate waters, a downstream state would regulations identify interstate waters as ‘‘Our decisions concerning interstate waters be unable to protect many of its waters from regulated ‘‘waters of the United States.’’ In contain the same theme. Rights in interstate out of state water pollution. This would fact, the repeated emphasis on the intrastate streams, like questions of boundaries, have hardly constitute a comprehensive regulatory nature of the waters at issue can be read as been recognized as presenting Federal scheme that occupied the field of interstate an attempt to distinguish SWANCC from the questions.’’ Illinois v. Milwaukee, 406 U.S. at water pollution. Court’s interstate water jurisprudence. 105 (internal quotations and citations For these reasons, the holdings and the In Rapanos, the properties at issue were omitted). reasoning of these decisions establish that the located entirely within the State of Michigan. The Supreme Court’s analysis in SWANCC regulatory reach of the CWA extends to all 547 U.S. 715, 762–764. Thus, the Court had and Rapanos materially altered the criteria interstate waters without regard to no occasion to address the text of the CWA for analyzing CWA jurisdictional issues for navigability.17 with respect to interstate waters or the wholly intrastate waters. However, these agencies’ regulatory provisions concerning decisions by their terms did not affect the C. The Supreme Court’s Decisions in interstate waters. In addition, neither Justice body of case law developed to address SWANCC and Rapanos Do Not Limit or Kennedy nor the plurality discusses the interstate waters. The holdings in the Constrain Clean Water Act Jurisdiction Over impact of their opinions on the Court’s Supreme Court’s interstate waters Non-Navigable Interstate Waters interstate waters jurisprudence. The plurality jurisprudence, in particular City of As noted above, the Supreme Court decision acknowledges that CWA Milwaukee, apply CWA jurisdiction to recognized that Congress, in enacting the jurisdictional regulations include interstate interstate waters without regard to, or CWA, ‘‘intended to repudiate limits that had waters. 547 U.S. 715, 724. However, the discussion of, navigability. In City of been placed on federal regulation by earlier plurality did not discuss in any detail its Milwaukee, the Court held that the CWA water pollution control statutes and to views as to the continued vitality of provided a comprehensive statutory scheme exercise its powers under the Commerce regulations concerning such waters. for addressing the consequences of interstate Clause to regulate at least some waters that Moreover, one of the analytical water pollution. Based on this analysis, the would not be deemed ‘navigable’ under the underpinnings of the SWANCC and Rapanos Court expressly overruled its holding in classical understanding of that term.’’ decisions is irrelevant to analysis of Illinois v. Milwaukee that the Federal Riverside Bayview, 474 U.S. at 133; see also regulations asserting jurisdiction over common law of nuisance would apply to International Paper Co. v. Ouellette, 479 U.S. interstate waters. In SWANCC, the Court resolving interstate water pollution disputes. 481, 486 n.6, (1987). In Riverside Bayview, declined to defer to agency regulations Instead, the Court held that such disputes and subsequently in SWANCC and Rapanos, asserting jurisdiction over isolated waters would now be resolved through application the Court addressed the construction of the because of the statutory provisions of the CWA CWA terms ‘‘navigable waters’’ and ‘‘the [w]here an administrative interpretation of a regulating water pollution. waters of the United States.’’ In none of these statute invokes the outer limits of Congress’ It would be unreasonable to interpret cases did the Supreme Court address power, we expect a clear indication that SWANCC or Rapanos as overruling City of interstate waters, nor did it overrule prior Congress intended that result. . . .This Milwaukee with respect to CWA jurisdiction Supreme Court precedent which addressed requirement stems from our prudential desire over non-navigable interstate waters. Such an the interaction between the CWA and Federal not to needlessly reach constitutional issues interpretation would result in no law to common law to address pollution of and our assumption that Congress does not apply to water pollution disputes with regard interstate waters. Therefore, the statute, even casually authorize administrative agencies to in light of SWANCC and Rapanos, does not to such waters, unless one were to assume interpret a statute to push the limit of that the Court intended (without discussion impose an additional requirement that Congressional authority. . . . This concern is interstate waters must be water that is or analysis) to restore the Federal common heightened where the administrative navigable for purposes of Federal regulation law of nuisance as the law to apply in such interpretation alerts the federal-state under the Commerce Clause or connected to matters. Moreover, SWANCC and Rapanos framework by permitting federal water that is navigable for purposes of acknowledge that CWA regulatory encroachment upon a traditional state power. Federal regulation under the Commerce jurisdiction extends to at least some non- Clause to be jurisdictional waters for 531 U.S. at 172–173 (citations omitted). navigable waters. See, e.g., 547 U.S. at 779 purposes of the CWA. However, the Court’s analysis in Illinois v. (Kennedy, J.). Neither the SWANCC Court Milwaukee and City of Milwaukee makes nor the plurality or Kennedy opinions in clear that Congress has broad authority to 17 Nothing in subsequent Supreme Court case law Rapanos purports to set out the complete regarding interstate waters in any way conflicts create Federal law to resolve interstate water boundaries of CWA jurisdiction. See, e.g., with the agencies’ interpretation. See International pollution disputes. As discussed above, the 547 U.S. at 731 (‘‘[w]e need not decide the Paper v. Ouellette, 479 U.S. 481 (1987); Arkansas Court in Illinois v. Milwaukee, invited further precise extent to which the qualifiers v. Oklahoma, 503 U.S. 91 (1992). In both of these Federal legislation to address interstate water ‘navigable’ and ‘of the United States’ restrict cases, the Court detailed how the CWA had pollution, and in so doing concluded that the coverage of the Act.’’) (plurality opinion). supplanted the Federal common law of nuisance to State law was not an appropriate basis for In addition, as the Supreme Court has establish the controlling statutory scheme for addressing interstate water pollution issues. repeatedly admonished, if a Supreme Court addressing interstate water pollution disputes. Nothing in either decision limits the applicability 406 U.S. at 107 n. 9 (citing Texas v. Pankey, precedent has direct application in a case yet of the CWA to interstate water pollution disputes appears to rest on a rationale rejected in some involving navigable interstate waters or interstate 18 It is worth noting the Justice Rehnquist was other line of decisions, lower courts should waters connected to navigable waters. also the author of City of Milwaukee. follow the case which directly controls,

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leaving to the Supreme Court the prerogative applied only to industrial polluters and too 2d Sess. 131 (1972) (‘‘The Committee fully of overruling its precedents. Agostino v. unwieldy because the authority over each intends that the term ‘‘navigable waters’’ be Felton, 521 U.S. 203, 237 (1997); United permit application was divided between two given the broadest possible constitutional States v. Hatter, 532 U.S. 557, 566–567 Federal agencies. See id. at 5; see also id. at interpretation unencumbered by agency (1981). Moreover, when the Supreme Court 70–72 (discussing inadequacies of Refuse Act determinations which have been made or overturns established precedent, it is explicit. program). may be made for administrative purposes.’’). See, Lawrence v. Texas, 539 U.S. 558, 578 In light of the poor success of those These passages strongly suggest that Congress (‘‘Bowers was not correct when it was programs, the Committee recommended a intended to expand Federal protection of decided, and it is not correct today. It ought more direct and comprehensive approach waters. There is no evidence that Congress not to remain binding precedent. Bowers v. which, after amendment in conference, was intended to exclude interstate waters which Hardwick should be and now is overruled.’’). adopted in the 1972 Act. The text, legislative were protected under Federal law if they history and purpose of the 1972 were not water that is navigable for purposes D. The Agencies’ Longstanding Interpretation Amendments all show an intent—through of Federal regulation under the Commerce of the Term ‘‘Navigable Waters’’ To Include the revisions—to broaden, improve and Clause or connected to water that is ‘‘Interstate Waters’’ strengthen, not to curtail, the Federal water navigable for purposes of Federal regulation EPA, the agency charged with pollution control program that had existed under the Commerce Clause. Such an implementing the CWA, has always under the Refuse Act and FWPCA.19 The exclusion would be contrary to all the stated interpreted the 1972 Act to cover interstate 1972 FWPCA Amendments were ‘‘not merely goals of Congress in enacting the sweeping waters. Final Rules, 38 FR 13528, May 22, another law ‘touching interstate waters’ ’’ but amendments which became the CWA. 1973 (the term ‘‘waters of the United States’’ were ‘‘viewed by Congress as a ‘total The CWA was enacted in 1972. EPA’s includes ‘‘interstate waters and their restructuring’ and ‘complete rewriting’ of the contemporaneous regulatory definition of tributaries, including adjacent wetlands’’). existing water pollution legislation.’’ 20 ‘‘waters of the United States,’’ promulgated While the Corps of Engineers initially limited As the legislative history of the 1972 Act in 1973, included interstate waters. The the scope of coverage for purposes of section confirms, Congress’ use of the term ‘‘waters definition has been EPA’s interpretation of 404 of the CWA to those waters that were of the United States’’ was intended to the geographic jurisdictional scope of the subject to the Rivers and Harbors Act of 1899, repudiate earlier limits on the reach of CWA for approximately 40 years. Congress after a lawsuit, the Corps amended its Federal water pollution efforts: ‘‘The has also been aware of and has supported the regulations to provide for the same definition conferees fully intend that the term Agency’s longstanding interpretation of the of ‘‘waters of the United States’’ that EPA’s ‘navigable waters’ be given the broadest CWA. ‘‘Where ‘an agency’s statutory regulations had always established. In 1975, possible constitutional interpretation construction has been fully brought to the the Corps’ revised regulations defined unencumbered by agency determinations attention of the public and the Congress, and ‘‘navigable waters’’ to include ‘‘[i]nterstate which have been made or may be made for the latter has not sought to alter that waters landward to their ordinary high water administrative purposes.’’ See S. Conf. Rep. interpretation although it has amended the mark and up to their headwaters.’’ In their No. 1236, 92d Cong., 2d Sess. 144 (1972). The statute in other respects, then presumably the final rules promulgated in 1977, the Corps House and Senate Committee Reports further legislative intent has been correctly adopted EPA’s definition and included elucidate the Conference Committee’s discerned.’ ’’ North Haven Board of within the definition of ‘‘waters of the United rationale for removing the word ‘‘navigable’’ Education v. Bell, 102 456 U.S. 512, 535 States’’ ‘‘interstate waters and their from the definition of ‘‘navigable waters,’’ in (1982) (quoting United States v. Rutherford, tributaries, including adjacent wetlands.’’ 33 U.S.C. 1362(7). The Senate report stated: 442 U.S. 544 n. 10 (1979) (internal quotes The preamble provided an explanation for The control strategy of the Act extends to omitted)). the inclusion of interstate waters: navigable waters. The definition of this term The 1977 amendments to the CWA were The affects [sic] of water pollution in one means the navigable waters of the United the result of Congress’ thorough analysis of state can adversely affect the quality of the States, portions thereof, tributaries thereof, the scope of CWA jurisdiction in light of EPA waters in another, particularly if the waters and includes the territorial seas and the Great and Corps regulations. The 1975 interim final involved are interstate. Prior to the FWPCA Lakes. Through a narrow interpretation of the regulations promulgated by the Corps in amendments of 1972, most federal statutes definition of interstate waters the response to NRDC v. Callaway,21 aroused pertaining to water quality were limited to implementation of the 1965 Act was severely considerable congressional interest. Hearings interstate waters. We have, therefore, limited. Water moves in hydrologic cycles on the subject of section 404 jurisdiction and it is essential that discharge of pollutants included this third category consistent with were held in both the House and the be controlled at the source. Therefore, the Federal government’s traditional role to Senate.22 An amendment to limit the reference to the control requirements must be protect these waters from the standpoint of geographic reach of section 404 to waters that made the navigable waters, portions thereof, water quality and the obvious effects on are navigable for purposes of Federal and their tributaries. interstate commerce that will occur through regulation under the Commerce Clauses and pollution of interstate waters and their See S. Rep. 414, 92d Cong., 1st Sess. 77 their adjacent wetlands was passed by the tributaries. (1971); see also H.R. Rep. No. 911, 92d Cong., House, 123 Cong. Rec. 10434 (1977), defeated Final Rules, 42 FR 37122, July 19, 1977. on the floor of the Senate, 123 Cong. Rec. 19 See id. at 9 (‘‘The scope of the 1899 Refuse Act The legislative history similarly provides 26728 (1977), and eliminated by the is broadened; the administrative capability is Conference Committee, H.R. Conf. Rep. 95– support for the agencies’ interpretation. strengthened.’’); id. at 43 (‘‘Much of the Congress in 1972 concluded that the Committee’s time devoted to this Act centered on 830, 95th Cong., 1st Sess. 97–105 (1977). mechanism for controlling discharges and, an effort to resolve the existing water quality Congress rejected the proposal to limit the thereby abating pollution, under the FWPCA program and the separate pollution program geographic reach of section 404 because it and Refuse Act ‘‘has been inadequate in developing under the 1899 Refuse Act.’’). Congress wanted a permit system with ‘‘no gaps’’ in its every vital aspect.’’ S. Rep. No. 414, 92d made an effort ‘‘to weave’’ the Refuse Act permit protective sweep. 123 Cong. Rec. 26707 program into the 1972 Amendments, id. at 71, as Cong., 1st Sess. 7 (1972). The Senate (1977) (remarks of Sen. Randolph). Rather the statutory text shows. See 33 U.S.C. 1342(a) than alter the geographic reach of section Committee on Public Works reported that (providing that each application for a permit under development of water quality standards, 33 U.S.C. 407, pending on October 18, 1972, shall assigned to the states under the 1965 FWPCA be deemed an application for a permit under 33 21 40 FR 31320, 31324 (July 25, 1975). Amendments, ‘‘is lagging’’ and the ‘‘1948 U.S.C. 1342(a)). 22 Section 404 of the Federal Water Pollution abatement procedures, and the almost total 20 City of Milwaukee v. Illinois, 451 U.S. at 317; Control Act Amendments of 1972: Hearings Before lack of enforcement,’’ prompted the search see also id. at 318 (holding that the CWA precluded the Senate Comm. on Public Works, 94th Cong., 2d for ‘‘more direct avenues of action against Federal common-law claims because ‘‘Congress’ Sess. (1976); Development of New Regulations by water polluters and water pollution.’’ Id. at intent in enacting the [CWA] was clearly to the Corps of Engineers, Implementing Section 404 establish an all-encompassing program of water of the Federal Water Pollution Control Act 5. The Committee further concluded that pollution regulation’’); Middlesex County Sewerage Concerning Permits for Disposal of Dredge or Fill although the Refuse Act permit program Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, Material: Hearings Before the Subcomm. on Water created in 1970 ‘‘seeks to establish this direct 22 (1981) (existing statutory scheme ‘‘was Resources of the House Comm. on Public Works approach,’’ it was too weak because it completely revised’’ by enactment of the CWA). and Transportation, 94th Cong., 1st Sess. (1975).

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404, Congress amended the statute by Illinois v. Milwaukee and City of Milwaukee ‘‘waters of the United States’’ encompasses exempting certain activities—most notably makes clear that Congress has broad wetlands and other waters that ‘‘possess a certain agricultural and silvicultural authority to create Federal law to resolve ‘significant nexus’ to waters that are or were activities—from the permit requirements of interstate water pollution disputes. navigable in fact or that could reasonably be section 404. See 33 U.S.C. 1344(f). Therefore, as discussed in Section II.B above, so made.’’ Id. at 759. With respect to Other evidence abounds to support the it is appropriate for the agencies to adopt an tributaries, Justice Kennedy rejected the conclusion that when Congress rejected the interpretation of the extent of CWA plurality’s approach that only ‘‘relatively attempt to limit the geographic reach of jurisdiction over interstate waters that gives permanent’’ tributaries are within the scope section 404, it was well aware of the full effect to City of Milwaukee unless and of CWA jurisdiction. He stated that the jurisdictional scope of EPA and the Corps’ until the Supreme Court elects to revisit its plurality’s requirement of ‘‘permanent definition of ‘‘waters of the United States.’’ holding in that case. standing water or continuous flow, at least For example, Senator Baker stated (123 Cong. Thus, based on the language of the statute, for a period of ‘some months’ . . . makes Rec. 26718 (1977)): the statutory history, the legislative history, little practical sense in a statute concerned Interim final regulations were promulgated and the caselaw, the agencies’ continue their with downstream water quality.’’ Id. at 769. by the [C]orps [on] July 25, 1975.* * * longstanding interpretation of ‘‘navigable Instead, Justice Kennedy concluded that Together the regulations and [EPA] waters’’ to include interstate waters. ‘‘Congress could draw a line to exclude irregular waterways, but nothing in the guidelines established a management Tributaries program that focused the decisionmaking statute suggests it has done so;’’ in fact, he process on significant threats to aquatic areas In Rapanos, Justice Kennedy reasoned that stated that Congress has done ‘‘[q]uite the while avoiding unnecessary regulation of Riverside Bayview and SWANCC ‘‘establish opposite . . ..’’ Id. at 769. Further, Justice minor activities. On July 19, 1977, the the framework for’’ determining whether an Kennedy concluded, based on ‘‘a full reading [C]orps revised its regulations to further assertion of regulatory jurisdiction of the dictionary definition’’ of ‘‘waters,’’ that streamline the program and correct several constitutes a reasonable interpretation of ‘‘the Corps can reasonably interpret the Act misunderstandings. * * * ‘‘navigable waters’’—‘‘the connection to cover the paths of such impermanent Continuation of the comprehensive coverage between a non-navigable water or wetland streams.’’ Id. at 770 (emphasis added). of this program is essential for the protection and a navigable water may be so close, or Moreover, Justice Kennedy’s opinion did of the aquatic environment. The once potentially so close, that the Corps may deem not reject the agencies’ existing regulations seemingly separable types of aquatic systems the water or wetland a ‘navigable water’ governing tributaries. The consolidated cases are, we now know, interrelated and under the Act;’’ and ‘‘[a]bsent a significant in Rapanos involved discharges into interdependent. We cannot expect to nexus, jurisdiction under the Act is lacking.’’ wetlands adjacent to nonnavigable tributaries preserve the remaining qualities of our water 547 U.S. at 767. ‘‘The required nexus must and, therefore, Justice Kennedy’s analysis resources without providing appropriate be assessed in terms of the statute’s goals and focused on the requisite showing for protection for the entire resource. purposes. Congress enacted the law to wetlands. Justice Kennedy described the Earlier jurisdictional approaches under the ‘restore and maintain the chemical, physical, Corps’ standard for asserting jurisdiction over [Rivers and Harbors Act] established artificial and biological integrity of the Nation’s tributaries: ‘‘the Corps deems a water a and often arbitrary boundaries. . . . waters,’ 33 U.S.C. 1251(a), and it pursued tributary if it feeds into a traditional This legislative history leaves no room for that objective by restricting dumping and navigable water (or a tributary thereof) and doubt that Congress was aware of the filling in ‘navigable waters,’ sections 1311(a), possesses an ordinary high water mark . . ..’’ agencies’ definition of navigable waters. 1362(12).’’ Id. at 779. ‘‘Justice Kennedy Id. at 781, see also id at 761. He While there was controversy over the concluded that the term ‘‘waters of the acknowledged that this requirement of a assertion of jurisdiction over all adjacent United States’’ encompasses wetlands and perceptible ordinary high water mark for wetlands and some non-adjacent wetlands, other waters that ‘‘possess a ‘significant ephemeral streams, 65 FR 12828, March 9, the agencies’ assertion of CWA jurisdiction nexus’ to waters that are or were navigable 2000, ‘‘[a]ssuming it is subject to reasonably over interstate waters was uncontroversial. in fact or that could reasonably be so made.’’ consistent application, . . . may well provide Finally, the constitutional concerns which Id. at 759. He further concluded that a reasonable measure of whether specific led the Supreme Court to decline to defer to wetlands possess the requisite significant minor tributaries bear a sufficient nexus with agency regulations in SWANCC and Rapanos nexus: ‘‘if the wetlands, either alone or in other regulated waters to constitute navigable are not present here where the agency is combination with similarly situated waters under the Act.’’ 547 U.S. at 781, see asserting jurisdiction over interstate waters. [wetlands] in the region, significantly affect also id. at 761. With respect to wetlands, In SWANCC, the Court declined to defer to the chemical, physical, and biological Justice Kennedy concluded that the breadth agency regulations asserting jurisdiction over integrity of other covered waters more readily of this standard for tributaries precluded use non-adjacent, non-navigable, intrastate understood as ‘navigable.’ ’’ Id. at 780. of adjacency to such tributaries as the waters because the Court felt such an While Justice Kennedy’s opinion focused determinative measure of whether wetlands interpretation of the statute invoked the outer on adjacent wetlands in light of the facts of adjacent to such tributaries ‘‘are likely to play limits of Congress’ power. The Court’s the cases before him, the agencies an important role in the integrity of an concern ‘‘is heightened where the determined it was reasonable and aquatic system comprising navigable waters administrative interpretation alters the appropriate to undertake a detailed as traditionally understood.’’ Id. at 781. He federal-state framework by permitting federal examination of the scientific literature to did not, however, reject the Corps’ use of encroachment upon a traditional state determine whether tributaries, as a category ‘‘ordinary high water mark’’ to assert power.’’ 531 U.S. at 172–173 (citations and as the agencies propose to define them, regulatory jurisdiction over tributaries omitted). Authority over interstate waters is significantly affect the chemical, physical, or themselves. Id. squarely within the bounds of Congress’ biological integrity of downstream navigable In the foregoing passage regarding the Commerce Clause powers.23 Further, the waters, interstate waters, or territorial seas existing regulatory standard for ephemeral Federal Government is in the best position to into which they flow. Based on this extensive streams, Justice Kennedy also provided a address issues which may arise when waters analysis, the agencies concluded that ‘‘but see’’ citation to a 2004 U.S. General cross state boundaries, so this interpretation tributaries with bed and banks, and ordinary Accounting Office (now the U.S. Government does not disrupt the Federal-State framework high water marks, alone or in combination Accountability Office) (GAO) report ‘‘noting in the manner the Supreme Court feared that with other tributaries, as defined by the variation in results among Corps district the assertion of jurisdiction over a non- proposed regulation, in the watershed offices.’’ Id. In 2005, the Corps issued a adjacent, non-navigable, intrastate body of perform these functions and should be regulatory guidance letter (RGL 05–05) to water based on the presence of migratory considered, as a category, to be ‘‘waters of the Corps districts on OHWM identification that birds did. The Supreme Court’s analysis in United States.’’ was designed to ensure more consistent The assertion of jurisdiction over this practice. The Corps has also issued 23 In Illinois v. Milwaukee, the Supreme Court category of waters is fully consistent with documents to provide additional technical noted that ‘‘Congress has enacted numerous laws Justice Kennedy’s opinion in Rapanos. assistance for problematic OHWM touching interstate waters.’’ 406 U.S. at 101. ‘‘Justice Kennedy concluded that the term delineations. See, e.g., R.W. Lichvar and S.M.

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McColley, U.S. Army Corps of Engineers, A 42 FR 37128, July 19, 1977. Id. at 778 (citing Chevron U.S.A. Inc. v. Field Guide to the Identification of the As the Supreme Court found in United Natural Resources Defense Council, Inc., 467 Ordinary High Water Mark (OHWM) in the States v. Riverside Bayview Homes, Inc., ‘‘the U.S. 837, 842–845 (1984)). Arid West Region of the Western United evident breadth of congressional concern for For those wetlands adjacent to traditional States: A Delineation Manual, ERDC/CRREL protection of water quality and aquatic navigable waters, Justice Kennedy concluded TR–08–12 (2008). Moreover, the agencies ecosystems suggests that it is reasonable for in Rapanos that the agencies’ existing propose today for the first time a regulatory the Corps to interpret the term ‘waters’ to regulation ‘‘rests upon a reasonable inference definition of ‘‘tributary.’’ The definition encompass wetlands adjacent to waters as of ecologic interconnection, and the assertion expressly addresses some of the issues with more conventionally defined.’’ 474 U.S. at of jurisdiction for those wetlands is respect to identification of an OHWM that 133. sustainable under the Act by showing caused many of the inconsistencies reported In upholding the Corps’ judgment about adjacency alone.’’ 547 U.S. at 780. For other by the GAO. For example, this proposed the relationship between waters and their adjacent waters, including adjacent wetlands, regulation clearly provides that a water that adjacent wetlands, the Supreme Court in Justice Kennedy’s significant nexus standard provides a framework for establishing otherwise meets the proposed definition of Riverside Bayview acknowledged that the tributary remains a jurisdictional tributary categories of waters which are per se ‘‘waters agencies’ regulations take into account even if there are natural or man-made breaks of the United States.’’ First, he provided that functions provided by wetlands in support of in the OHWM. The proposed definition also wetlands are jurisdictional if they ‘‘either this relationship. ‘‘[A]djacent wetlands may provides a non-exclusive list of examples of alone or in combination with similarly breaks in the OHWM to assist in clearly and ‘serve significant natural biological functions, situated lands in the region, significantly consistently determining what meets the including food chain production, general affect the chemical, physical, and biological definition of tributary. habitat, and nesting, spawning, rearing and integrity of other covered waters more readily Most fundamentally, the agencies believe resting sites for aquatic . . . species.’ ’’ Id. at understood as ‘navigable.’ ’’ Id. at 780. Next, that the scientific literature demonstrates that 133 (citing § 320.4(b)(2)(i)). The Court further Justice Kennedy stated that ‘‘[t]hrough tributaries, as a category and as the agencies stated that the Corps had reasonably regulation or adjudication, the Corps may propose to define them, play a critical role concluded that ‘‘wetlands adjacent to lakes, choose to identify categories of tributaries in the integrity of aquatic systems comprising rivers, streams, and other bodies of water that, due to their volume of flow (either traditional navigable waters and interstate may function as integral parts of the aquatic annually or on average), their proximity to waters, and therefore are ‘‘waters of the environment even when the moisture navigable waters, or other relevant United States’’ within the meaning of the creating the wetlands does not find its source considerations, are significant enough that Clean Water Act. in the adjacent bodies of water.’’ 474 U.S. at wetlands adjacent to them are likely, in the 135. majority of cases, to perform important Adjacent Waters Two decades later, a majority of justices in functions for an aquatic system incorporating The CWA explicitly establishes authority Rapanos concluded that the agencies’ navigable waters.’’ Id. at 780–81. over adjacent wetlands. Under section 404(g), regulatory definition of adjacent wetlands While the issue was not before the states are authorized to assume responsibility reasonable. Justice Kennedy stated: Supreme Court, it is reasonable to also assess for administration of the section 404 As the Court noted in Riverside Bayview, ‘the whether non-wetland waters have a permitting program with respect to Corps has concluded that wetlands may serve significant nexus, as Justice Kennedy’s ‘‘navigable waters (other than those waters to filter and purify water draining into opinion makes clear that a significant nexus which are presently used, or are susceptible adjacent bodies of water, 33 CFR is a touchstone for CWA jurisdiction. The to use in their natural condition or by 320.4(b)(2)(vii)(1985), and to slow the flow of agencies have determined that adjacent reasonable improvement as a means to surface runoff into lakes, rivers, and streams waters as defined in today’s proposed rule, transport interstate or foreign commerce and thus prevent flooding and erosion, see alone or in combination with other adjacent shoreward to their ordinary high water mark, § 320.4(b)(2)(iv) and (v).’ Where wetlands waters in the region that drains to a including all waters which are subject to the perform these filtering and runoff-control traditional navigable water, interstate water ebb and flow of the tide shoreward to their functions, filling them may increase or the territorial seas, significantly affect the mean high water mark, or mean higher high downstream pollution, much as a discharge chemical, physical, and biological integrity of water mark on the west coast, including of toxic pollutants would.. . . In many cases, those waters. As explained in more detail in wetlands adjacent thereto).’’ 33 U.S.C. moreover, filling in wetlands separated from Section H, below, the proposed rule 1344(g)(1) (emphasis added). While this another water by a berm can mean that flood interprets the phrase ‘‘in the region’’ to mean provision mainly serves as a limitation on the water, impurities, or runoff that would have the watershed that drains to the nearest scope of waters for which states may be been stored or contained in the wetlands will traditional navigable water or interstate water authorized to issue permits, it also shows instead flow out to major waterways. With through a single point of entry. The agencies that Congress was concerned with the these concerns in mind, the Corps’ definition have determined that because the movement protection of adjacent wetlands and of adjacency is a reasonable one, for it may of water from watershed drainage basins to recognized their important role in protecting be the absence of an interchange of waters river networks and lakes shapes the downstream traditional navigable waters. prior to the dredge and fill activity that development and function of these systems Indeed, the existing definition of adjacency in a way that is critical to their long term was developed in recognition of the integral makes protection of the wetlands critical to the statutory scheme. health, the watershed is a reasonable and role wetlands play in broader aquatic technically appropriate reflection of ecosystems: 547 U.S. at 775 (citations omitted). Congressional intent. The regulation of activities that cause water The four dissenting justices similarly The agencies have concluded that all pollution cannot rely on . . . artificial lines concluded: waters that meet the proposed definition of . . . but must focus on all waters that The Army Corps has determined that ‘‘adjacent’’ are similarly situated for purposes together form the entire aquatic system. wetlands adjacent to tributaries of of analyzing whether they, in the majority of Water moves in hydrologic cycles, and the traditionally navigable waters preserve the cases, have a significant nexus to an (a)(1) pollution of this part of the aquatic system, quality of our Nation’s waters by, among through (a)(3) water. Based on the agencies’ regardless of whether it is above or below an other things, providing habitat for aquatic review of the scientific literature, we have ordinary high water mark, or mean high tide animals, keeping excessive sediment and concluded that these waters, when bordering, line, will affect the water quality of the other toxic pollutants out of adjacent waters, and contiguous or located in the floodplain or waters within that aquatic system. For this reducing downstream flooding by absorbing riparian area, or when otherwise meeting the reason, the landward limit of Federal water at times of high flow. The Corps’ definition of ‘‘adjacent,’’ provide many jurisdiction under Section 404 must include resulting decision to treat these wetlands as similar functions that significantly affect the any adjacent wetlands that form the border encompassed within the term ‘waters of the chemical, physical, or biological integrity of of or are in reasonable proximity to other United States’ is a quintessential example of traditional navigable waters, interstate waters of the United States, as these wetlands the Executive’s reasonable interpretation of a waters, or the territorial seas. Further, are part of this aquatic system. statutory provision. because the proposed definition generally

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focuses on the location of the waters (i.e., concluded that ‘‘to constitute ‘navigable Similarly Situated those that are located near (a)(1) through waters’ under the Act, a water or wetland For purposes of analyzing the significant (a)(5) waters), interpreting the term must possess a ‘significant nexus’ to waters nexus of tributaries and adjacent waters, ‘‘similarly situated’’ to include all adjacent that are or were navigable in fact or that tributaries that meet the proposed definition waters, as defined in the proposed rule, is could reasonably be so made.’’ Id. at 759 of ‘‘tributary’’ in a watershed draining to an reasonable and consistent with the science. (citing SWANCC, 531 U.S. at 167, 172). (a)(1) through (a)(3) water are similarly The geographic position of an ‘‘adjacent’’ Again, the four justices who signed on to situated, and adjacent waters that meet the water relative to the tributary is indicative of Justice Stevens’ opinion would have upheld proposed definition of ‘‘adjacent’’ in a the relationship to it, with many of its jurisdiction under the agencies’ existing watershed draining to an (a)(1) through (a)(3) defining characteristics resulting from the regulations and stated that they would water are similarly situated. That is movement of materials and energy between uphold jurisdiction under either the plurality reasonable because the agencies are the categories of waters. The scientific or Justice Kennedy’s opinion. Justice identifying characteristics of these waters literature documents that waters that are Kennedy stated that wetlands should be through the regulation and documenting the adjacent to (a)(1) through (a)(5) waters, considered to possess the requisite nexus in science that demonstrates that these defined including wetlands, oxbow lakes and the context of assessing whether wetlands are tributaries and defined adjacent waters adjacent ponds, are integral parts of stream jurisdictional: ‘‘if the wetlands, either alone provide similar functions in the watershed. networks because of their ecological or in combination with similarly situated As stated above, the functions of the functions and how they interact with each [wetlands] in the region, significantly affect tributaries are inextricably linked and have a other, and with downstream traditional the chemical, physical, and biological cumulative effect on the integrity of the navigable waters, interstate waters, or the integrity of other covered waters more readily downstream traditional navigable water or territorial seas. In other words, tributaries understood as ‘navigable.’ ’’ Id. at 780. In interstate water. There is also an obvious and their adjacent waters, and the light of Rapanos and SWANCC, the locational relationship between the (a)(1), downstream traditional navigable waters, ‘‘significant nexus’’ standard for CWA (a)(2) or (a)(3) water and the streams, lakes, interstate waters, and territorial seas into jurisdiction that Justice Kennedy’s opinion and wetlands that meet the definition of which those waters flow, are an integrated applied to adjacent wetlands also can tributaries and the definition of adjacent ecological system, and discharges of reasonably be applied to other waters such as waters; these waters have a clear linear pollutants, including discharges of dredged ponds, lakes, and non-adjacent wetlands that relationship resulting from the simple or fill material, into any component of that may have a significant nexus to a traditional existence of the channel itself and the ecological system, must be regulated under navigable water, an interstate water, or the direction of flow. See Appendix A, Scientific the CWA to restore and maintain the territorial seas. Evidence. chemical, physical, or biological integrity of The proposed rule includes a definition of ‘‘Other waters,’’ on the other hand, these waters. significant nexus that is consistent with constitute a broad range of different types of Based on the science, as summarized Justice Kennedy’s significant nexus standard. waters performing different functions. In below, the agencies have concluded that In characterizing the significant nexus light of the range and degree of functions wetlands and waters adjacent to all standard, Justice Kennedy stated: ‘‘The performed by waters that are neither tributaries that meet the proposed definition required nexus must be assessed in terms of tributaries nor adjacent waters under today’s of ‘‘tributary’’ provide vital functions for the statute’s goals and purposes. Congress proposed rule, the agencies propose a downstream traditional navigable waters, enacted the [CWA] to ‘restore and maintain definition of similarly situated which takes interstate waters, or the territorial seas. In the chemical, physical, and biological into account similarity of functions provided particular, the scientific literature supports integrity of the Nation’s waters’ . . ..’’ 547 and situation in the landscape. Since the the conclusion that waters adjacent to all U.S. at 779. It clear that Congress intended focus of the significant nexus standard is on tributaries as defined in section (a)(5) have a the CWA to ‘‘restore and maintain’’ all three protecting the chemical, physical, and significant nexus to waters described in forms of ‘‘integrity,’’ 33 U.S.C. 1251(a), so if biological integrity of the nation’s waters, the paragraphs (a)(1) through (a)(3). Because any one form is compromised then that is agencies propose to interpret the phrase smaller streams, whether perennial, contrary to the statute’s stated objective. It ‘‘similarly situated’’ in terms of whether the intermittent, or ephemeral, are much more would subvert the intent if the CWA only functions provided by the particular ‘‘other common than larger streams, the volume of protected waters upon a showing that they waters’’ are similar and, therefore, whether a stream’s flow is not the best measure of its had effects on every attribute of a traditional such ‘‘other waters’’ are collectively contribution to the chemical, physical, or navigable water, interstate water, or influencing the chemical, physical, or biological integrity of downstream waters. territorial sea. Therefore, a showing of a biological integrity of downstream waters. Report at 4–2, 4–3. As discussed in more significant chemical, physical, or biological There are many functions of waters that detail in Appendix A, small streams affect should satisfy the significant nexus might demonstrate a significant nexus, such cumulatively exert a strong influence on standard. as sediment trapping, nutrient recycling, downstream waters, partly by collectively Justice Kennedy’s opinion provides pollutant trapping and filtering, retention or providing a substantial amount of the river’s guidance pointing to many functions of attenuation of flood waters, runoff storage, water, id. at 4–3, 4–4 to 4–5, but also by waters that might demonstrate a significant and provision of habitat. See 547 U.S. at 775, playing unique roles that large streams nexus, such as sediment trapping, nutrient 779–80. This approach is consistent not only typically do not, including providing habitat recycling, pollutant trapping and filtering, with the significant nexus standard, but with for aquatic macroinvertebrates which help retention or attenuation of flood waters, and the science of aquatic systems. maintain the health of the downstream water. runoff storage. See 547 U.S. at 775, 779–80. The absence of a hydrologic connection Waters adjacent to those small tributary Furthermore, Justice Kennedy recognized between ‘‘other waters’’ and traditional streams, therefore, also significantly affect that a hydrologic connection is not necessary navigable waters, interstate waters, or the (a)(1) through (a)(3) waters through the to establish a significant nexus, because in territorial seas may demonstrate the presence movement of energy and materials between some cases the absence of a hydrologic of a significant nexus between such waters, adjacent waters and those tributaries, connection would show the significance of a as Justice Kennedy recognized in his opinion. resulting ultimately in significant water to the aquatic system, such as retention ‘‘Other waters’’ frequently function alone or downstream effects on the chemical, of flood waters or pollutants that would cumulatively with similarly situated ‘‘other physical, and biological integrity of the (a)(1) otherwise flow downstream to the traditional waters’’ in the region to capture runoff, rain through (a)(3) waters. navigable water or interstate water. Id. at 775. water, or snowmelt and thereby protect the Finally, Justice Kennedy was clear that the integrity of downstream waters by reducing ‘‘Other Waters’’ requisite nexus must be more than potential flooding or trapping pollutants that In Rapanos, Justice Kennedy provides an ‘‘speculative or insubstantial’’ in order to be would otherwise reach a traditional approach for determining what constitutes a significant. Id. at 780. Justice Kennedy’s navigable water or interstate water. See id. at ‘‘significant nexus’’ that can serve as a basis standard is consistent with basic scientific 775. Such waters can be crucial in for defining ‘‘waters of the United States’’ principles about how to restore and maintain controlling flooding as well as in maintaining through regulation. Justice Kennedy the integrity of aquatic ecosystems. water quality by trapping or transforming

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pollutants such as excess nutrients or speculative or insubstantial and inform the 40 CFR Part 230 sediment, for example, or retaining proposed definition of ‘‘significant nexus.’’ It precipitation or snow melt, thereby reducing is important to note, however, that where Environmental protection, Water contamination or flooding of traditional Justice Kennedy viewed the language ‘‘more pollution control. navigable waters, interstate waters, or the than speculative or insubstantial’’ to suggest 40 CFR Part 232 territorial seas. an undue degree of speculation, scientists do not equate certain conditional language (such Environmental protection, Water Significant Nexus as ‘‘may’’ or ‘‘could’’) with speculation, but pollution control. The agencies propose to define the term rather with the rigorous and precise language ‘‘significant nexus’’ consistent with language of science necessary when applying specific 40 CFR Part 300 in SWANCC and Rapanos. The proposed findings in another individual situation or Environmental protection, Water definition of ‘‘significant nexus’’ at (c)(7) more broadly across a variety of situations. pollution control. relies most significantly on Justice Kennedy’s Certain terms used in a scientific context do Rapanos opinion which recognizes that not not have the same implications that they 40 CFR Part 302 all waters have this requisite connection to have in a legal or policy context. Scientists waters covered by paragraphs (a)(1) through Environmental protection, Water use cautionary language, such as ‘‘may’’ or pollution control. (a)(3) of the proposed regulations. Justice ‘‘could,’’ when applying specific findings on Kennedy was clear that the requisite nexus a broader scale to avoid the appearance of 40 CFR Part 401 must be more than ‘‘speculative or overstating their research results and to avoid insubstantial. . ., ’’ Rapanos, 547 U.S. at inserting bias into their findings (such that Environmental protection, Water 780, in order to be significant and the the reader may think the results of one study pollution control. proposed rule defines significant nexus in are applicable in all related studies). Words Dated: March 25, 2014. precisely those terms. In Rapanos, Justice like ‘‘potential’’ are commonly used in the Gina McCarthy, Kennedy stated that in both the consolidated biological sciences, but when viewed under cases before the Court the record contained a legal and policy veil, may seem to mean the Administrator, Environmental Protection evidence suggesting the possible existence of same as ‘‘speculative’’ or ‘‘insubstantial.’’ Agency. a significant nexus according to the Instead, potential in scientific terms means Dated: March 24, 2014. principles he identified. See id. at 783. ability or capability. For example, when the Jo Ellen Darcy, Justice Kennedy concluded that ‘‘the end term ‘‘potential’’ is used to describe how a result in these cases and many others to be Assistant Secretary of the Army (Civil Works), wetland has the potential to act as a sink for Department of the Army. considered by the Corps may be the same as floodwater and pollutants, scientists mean that suggested by the dissent, namely, that that wetlands in general do indeed perform Title 33—Navigation and Navigable the Corps’ assertion of jurisdiction is valid.’’ those functions, but whether a particular Waters Id. Justice Kennedy remanded the cases wetland performs that function is dependent because neither the agency nor the reviewing For the reasons set out in the upon the circumstances that would create courts properly applied the controlling legal conditions for floodwater or pollutants in the preamble, title 33, chapter I of the Code standard—whether the wetlands at issue had watershed to reach that particular wetland to of Federal Regulations is proposed to be a significant nexus. See id. Justice Kennedy retain and transform. That does not mean, amended as follows: was clear however, that ‘‘[m]uch the same however, that this nexus to downstream evidence should permit the establishment of waters is ‘‘speculative;’’ indeed the wetland PART 328—DEFINITION OF WATERS a significant nexus with navigable-in-fact would be expected to provide these functions OF THE UNITED STATES waters, particularly if supplemented by under the proper circumstances. further evidence about the significance of the ■ 1. The authority citation for part 328 tributaries to which the wetlands are Definition of ‘‘Waters of the United continues to read as follows: connected.’’ Id. at 784. States’’ Under the Clean Water Act. With respect to one of the wetlands at issue Authority: The Clean Water Act, 33 U.S.C. in the consolidated Rapanos cases, Justice List of Subjects 1251 et seq. Kennedy stated: ■ 2. Section 328.3 is amended by 33 CFR Part 328 In Carabell, No. 04–1384, the record also removing the introductory text and contains evidence bearing on the Environmental protection, revising paragraphs (a), (b), and (c) to jurisdictional inquiry. The Corps noted in Administrative practice and procedure, read as follows: deciding the administrative appeal that Intergovernmental relations, Navigation, ‘‘[b]esides the effects on wildlife habitat and § 328.3 Definitions. Water pollution control, Waterways. water quality, the [district office] also noted (a) For purposes of all sections of the that the project would have a major, long- 40 CFR Part 110 term detrimental effect on wetlands, flood Clean Water Act, 33 U.S.C. 1251 et. seq. retention, recreation and conservation and Environmental protection, Water and its implementing regulations, overall ecology.... The Corps’ evaluation pollution control. subject to the exclusions in paragraph further noted that by ‘eliminat[ing] the (b) of this section, the term ‘‘waters of potential ability of the wetland to act as a 40 CFR Part 112 the United States’’ means: sediment catch basin,’’ the proposed project (1) All waters which are currently Environmental protection, Water ‘‘would contribute to increased runoff and used, were used in the past, or may be pollution control. . . . accretion along the drain and further susceptible to use in interstate or foreign downstream in Auvase Creek.’ . . . And it 40 CFR Part 116 commerce, including all waters which observed that increased runoff from the site are subject to the ebb and flow of the would likely cause downstream areas to ‘‘see Environmental protection, Water tide; an increase in possible flooding magnitude pollution control. and frequency.’’ (2) All interstate waters, including 40 CFR Part 117 interstate wetlands; Id. at 785–86. Justice Kennedy also expressed (3) The territorial seas; concern that ‘‘[t]he conditional language in Environmental protection, Water (4) All impoundments of waters these assessments—‘potential ability,’ pollution control. ‘possible flooding’—could suggest an undue identified in paragraphs (a)(1) through degree of speculation.’’ Id.at 786. 40 CFR Part 122 (3) and (5) of this section; Justice Kennedy’s observations regarding (5) All tributaries of waters identified the above case provide guidance as to what Environmental protection, Water in paragraphs (a)(1) through (4) of this it means for a nexus to be more than merely pollution control. section;

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(6) All waters, including wetlands, (2) Neighboring. The term generally include swamps, marshes, adjacent to a water identified in neighboring, for purposes of the term bogs and similar areas. paragraphs (a)(1) through (5) of this ‘‘adjacent’’ in this section, includes (7) Significant nexus. The term section; and waters located within the riparian area significant nexus means that a water, (7) On a case-specific basis, other or floodplain of a water identified in including wetlands, either alone or in waters, including wetlands, provided paragraphs (a)(1) through (5) of this combination with other similarly that those waters alone, or in section, or waters with a shallow situated waters in the region (i.e., the combination with other similarly subsurface hydrologic connection or watershed that drains to the nearest situated waters, including wetlands, confined surface hydrologic connection water identified in paragraphs (a)(1) located in the same region, have a to such a jurisdictional water. through (3) of this section), significantly significant nexus to a water identified in (3) Riparian area. The term riparian affects the chemical, physical, or paragraphs (a)(1) through (3) of this area means an area bordering a water biological integrity of a water identified section. where surface or subsurface hydrology in paragraphs (a)(1) through (3) of this (b) The following are not ‘‘waters of directly influence the ecological section. For an effect to be significant, the United States’’ notwithstanding processes and plant and animal it must be more than speculative or whether they meet the terms of community structure in that area. insubstantial. Other waters, including paragraphs (a)(1) through (7) of this Riparian areas are transitional areas wetlands, are similarly situated when section— between aquatic and terrestrial they perform similar functions and are (1) Waste treatment systems, ecosystems that influence the exchange located sufficiently close together or including treatment ponds or lagoons, of energy and materials between those sufficiently close to a ‘‘water of the designed to meet the requirements of ecosystems. United States’’ so that they can be the Clean Water Act. (4) Floodplain. The term floodplain evaluated as a single landscape unit (2) Prior converted cropland. means an area bordering inland or with regard to their effect on the Notwithstanding the determination of coastal waters that was formed by an area’s status as prior converted chemical, physical, or biological sediment deposition from such water integrity of a water identified in cropland by any other Federal agency, under present climatic conditions and is for the purposes of the Clean Water Act paragraphs (a)(1) through (3) of this inundated during periods of moderate to section. the final authority regarding Clean high water flows. Water Act jurisdiction remains with (5) Tributary. The term tributary * * * * * EPA. means a water physically characterized Title 40—Protection of Environment (3) Ditches that are excavated wholly by the presence of a bed and banks and in uplands, drain only uplands, and ordinary high water mark, as defined at For the reasons set out in the have less than perennial flow. 33 CFR 328.3(e), which contributes preamble, title 40, chapter I of the Code (4) Ditches that do not contribute flow, either directly or through another of Federal Regulations is proposed to be flow, either directly or through another water, to a water identified in amended as follows: water, to a water identified in paragraphs (a)(1) through (4) of this PART 110—DISCHARGE OF OIL paragraphs (a)(1) through (4) of this section. In addition, wetlands, lakes, section. and ponds are tributaries (even if they ■ 3. The authority citation for part 110 (5) The following features: lack a bed and banks or ordinary high continues to read as follows: (i) Artificially irrigated areas that water mark) if they contribute flow, would revert to upland should either directly or through another water Authority: The Clean Water Act, 33 U.S.C. 1321 et seq. application of irrigation water to that to a water identified in paragraphs (a)(1) area cease; through (3) of this section. A water that ■ 4. Section 110.1 is amended by (ii) Artificial lakes or ponds created otherwise qualifies as a tributary under revising the definition of ‘‘navigable by excavating and/or diking dry land this definition does not lose its status as waters’’ to read as follows: and used exclusively for such purposes a tributary if, for any length, there are § 110.1 Definitions. as stock watering, irrigation, settling one or more man-made breaks (such as basins, or rice growing; bridges, culverts, pipes, or dams), or one * * * * * (iii) Artificial reflecting pools or or more natural breaks (such as Navigable waters means the waters of swimming pools created by excavating wetlands at the head of or along the run the United States, including the and/or diking dry land; of a stream, debris piles, boulder fields, territorial seas. (iv) Small ornamental waters created (1) For purposes of all sections of the by excavating and/or diking dry land for or a stream that flows underground) so long as a bed and banks and an ordinary Clean Water Act, 33 U.S.C. 1251 et. seq. primarily aesthetic reasons; and its implementing regulations, (v) Water-filled depressions created high water mark can be identified upstream of the break. A tributary, subject to the exclusions in paragraph incidental to construction activity; (2) of this definition, the term ‘‘waters (vi) Groundwater, including including wetlands, can be a natural, of the United States’’ means: groundwater drained through man-altered, or man-made water and (i) All waters which are currently subsurface drainage systems; and includes waters such as rivers, streams, (vii) Gullies and rills and non-wetland lakes, ponds, impoundments, canals, used, were used in the past, or may be swales. and ditches not excluded in paragraph susceptible to use in interstate or foreign (c) Definitions— (b)(3) or (4) of this section. commerce, including all waters which (1) Adjacent. The term adjacent (6) Wetlands. The term wetlands are subject to the ebb and flow of the means bordering, contiguous or means those areas that are inundated or tide; neighboring. Waters, including saturated by surface or groundwater at (ii) All interstate waters, including wetlands, separated from other waters of a frequency and duration sufficient to interstate wetlands; the United States by man-made dikes or support, and that under normal (iii) The territorial seas; barriers, natural river berms, beach circumstances do support, a prevalence (iv) All impoundments of waters dunes and the like are ‘‘adjacent of vegetation typically adapted for life identified in paragraphs (1)(i) through waters.’’ in saturated soil conditions. Wetlands (iii) and (v) of this definition;

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(v) All tributaries of waters identified by man-made dikes or barriers, natural support, and that under normal in paragraphs (1)(i) through (iv) of this river berms, beach dunes and the like circumstances do support, a prevalence definition; are ‘‘adjacent waters.’’ of vegetation typically adapted for life (vi) All waters, including wetlands, (ii) Neighboring. The term in saturated soil conditions. Wetlands adjacent to a water identified in neighboring, for purposes of the term generally include swamps, marshes, paragraphs (1)(i) through (v) of this ‘‘adjacent’’ in this section, includes bogs and similar areas. definition; and waters located within the riparian area (vii) Significant nexus. The term (vii) On a case-specific basis, other or floodplain of a water identified in significant nexus means that a water, waters, including wetlands, provided paragraphs (1)(i) through (v) of this including wetlands, either alone or in that those waters alone, or in definition, or waters with a shallow combination with other similarly combination with other similarly subsurface hydrologic connection or situated waters in the region (i.e., the situated waters, including wetlands, confined surface hydrologic connection watershed that drains to the nearest located in the same region, have a to such a jurisdictional water. water identified in paragraphs (1)(i) significant nexus to a water identified in (iii) Riparian area. The term riparian through (iii) of this definition), paragraphs (1)(i) through (iii) of this area means an area bordering a water significantly affects the chemical, definition. where surface or subsurface hydrology physical, or biological integrity of a directly influence the ecological (2) The following are not ‘‘waters of water identified in paragraphs (1)(i) processes and plant and animal the United States’’ notwithstanding through (iii) of this definition. For an community structure in that area. whether they meet the terms of effect to be significant, it must be more Riparian areas are transitional areas paragraphs (1)(i) through (vii) of this than speculative or insubstantial. Other between aquatic and terrestrial definition— waters, including wetlands, are ecosystems that influence the exchange (i) Waste treatment systems, including similarly situated when they perform of energy and materials between those treatment ponds or lagoons, designed to similar functions and are located meet the requirements of the Clean ecosystems. (iv) Floodplain. The term floodplain sufficiently close together or sufficiently Water Act. close to a ‘‘water of the United States’’ (ii) Prior converted cropland. means an area bordering inland or coastal waters that was formed by so that they can be evaluated as a single Notwithstanding the determination of landscape unit with regard to their an area’s status as prior converted sediment deposition from such water under present climatic conditions and is effect on the chemical, physical, or cropland by any other Federal agency, biological integrity of a water identified for the purposes of the Clean Water Act inundated during periods of moderate to high water flows. in paragraphs (1)(i) through (iii) of this the final authority regarding Clean definition. Water Act jurisdiction remains with (v) Tributary. The term tributary EPA. means a water physically characterized * * * * * (iii) Ditches that are excavated wholly by the presence of a bed and banks and ordinary high water mark, as defined at PART 112—OIL POLLUTION in uplands, drain only uplands, and PREVENTION have less than perennial flow. 33 CFR 328.3(e), which contributes (iv) Ditches that do not contribute flow, either directly or through another ■ water, to a water identified in 5. The authority citation for part 112 flow, either directly or through another continues to read as follows: water, to a water identified in paragraphs (1)(i) through (iv) of this paragraphs (1)(i) through (iv) of this definition. In addition, wetlands, lakes, Authority: The Clean Water Act, 33 U.S.C. 1321 et seq. definition. and ponds are tributaries (even if they (v) The following features: lack a bed and banks or ordinary high ■ 6. Section 112.2 is amended by (A) Artificially irrigated areas that water mark) if they contribute flow, revising the definition of ‘‘navigable would revert to upland should either directly or through another water waters’’ to read as follows: application of irrigation water to that to a water identified in paragraphs (1)(i) § 112.2 Definitions. area cease; through (iii) of this definition. A water (B) Artificial lakes or ponds created that otherwise qualifies as a tributary * * * * * by excavating and/or diking dry land under this definition does not lose its Navigable waters means the waters of and used exclusively for such purposes status as a tributary if, for any length, the United States, including the as stock watering, irrigation, settling there are one or more man-made breaks territorial seas. basins, or rice growing; (such as bridges, culverts, pipes, or (1) For purposes of all sections of the (C) Artificial reflecting pools or dams), or one or more natural breaks Clean Water Act, 33 U.S.C. 1251 et. seq. swimming pools created by excavating (such as wetlands at the head of or along and its implementing regulations, and/or diking dry land; the run of a stream, debris piles, boulder subject to the exclusions in paragraph (D) Small ornamental waters created fields, or a stream that flows (b) of this section, the term ‘‘waters of by excavating and/or diking dry land for underground) so long as a bed and the United States’’ means: banks and an ordinary high water mark primarily aesthetic reasons; (i) All waters which are currently can be identified upstream of the break. (E) Water-filled depressions created used, were used in the past, or may be A tributary, including wetlands, can be incidental to construction activity; susceptible to use in interstate or foreign a natural, man-altered, or man-made (F) Groundwater, including commerce, including all waters which water and includes waters such as groundwater drained through are subject to the ebb and flow of the rivers, streams, lakes, ponds, subsurface drainage systems; and tide; (G) Gullies and rills and non-wetland impoundments, canals, and ditches not swales. excluded in paragraph (2)(iii) or (iv) of (ii) All interstate waters, including (3) Definitions— this definition. interstate wetlands; (i) Adjacent. The term adjacent means (vi) Wetlands. The term wetlands (iii) The territorial seas; bordering, contiguous or neighboring. means those areas that are inundated or (iv) All impoundments of waters Waters, including wetlands, separated saturated by surface or groundwater at identified in paragraphs (1)(i) through from other waters of the United States a frequency and duration sufficient to (iii) and (v) of this definition;

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(v) All tributaries of waters identified by man-made dikes or barriers, natural support, and that under normal in paragraphs (1)(i) through (iv) of this river berms, beach dunes and the like circumstances do support, a prevalence definition; are ‘‘adjacent waters.’’ of vegetation typically adapted for life (vi) All waters, including wetlands, (ii) Neighboring. The term in saturated soil conditions. Wetlands adjacent to a water identified in neighboring, for purposes of the term generally include swamps, marshes, paragraphs (1)(i) through (v) of this ‘‘adjacent’’ in this section, includes bogs and similar areas. definition; and waters located within the riparian area (7) Significant nexus. The term (vii) On a case-specific basis, other or floodplain of a water identified in significant nexus means that a water, waters, including wetlands, provided paragraphs (1)(i) through (v) of this including wetlands, either alone or in that those waters alone, or in definition, or waters with a shallow combination with other similarly combination with other similarly subsurface hydrologic connection or situated waters in the region (i.e., the situated waters, including wetlands, confined surface hydrologic connection watershed that drains to the nearest located in the same region, have a to such a jurisdictional water. water identified in paragraphs (1)(i) significant nexus to a water identified in (iii) Riparian area. The term riparian through (iii) of this definition), paragraphs (1)(i) through (iii) of this area means an area bordering a water significantly affects the chemical, definition. where surface or subsurface hydrology physical, or biological integrity of a (2) The following are not ‘‘waters of directly influence the ecological water identified in paragraphs (1)(i) the United States’’ notwithstanding processes and plant and animal through (iii) of this definition. For an whether they meet the terms of community structure in that area. effect to be significant, it must be more paragraphs (1)(i) through (vii) of this Riparian areas are transitional areas than speculative or insubstantial. Other definition —— between aquatic and terrestrial waters, including wetlands, are (i) Waste treatment systems, including ecosystems that influence the exchange similarly situated when they perform treatment ponds or lagoons, designed to of energy and materials between those similar functions and are located meet the requirements of the Clean ecosystems. sufficiently close together or sufficiently (iv) Floodplain. The term floodplain Water Act. close to a ‘‘water of the United States’’ means an area bordering inland or (ii) Prior converted cropland. so that they can be evaluated as a single coastal waters that was formed by Notwithstanding the determination of landscape unit with regard to their sediment deposition from such water an area’s status as prior converted effect on the chemical, physical, or under present climatic conditions and is cropland by any other Federal agency, biological integrity of a water identified for the purposes of the Clean Water Act inundated during periods of moderate to high water flows. in paragraphs (1)(i) through (iii) of this the final authority regarding Clean definition. Water Act jurisdiction remains with (v) Tributary. The term tributary * * * * * EPA. means a water physically characterized (iii) Ditches that are excavated wholly by the presence of a bed and banks and ordinary high water mark, as defined at PART 116—DESIGNATION OF in uplands, drain only uplands, and HAZARDOUS SUBSTANCE have less than perennial flow. 33 CFR 328.3(e), which contributes (iv) Ditches that do not contribute flow, either directly or through another ■ 7. The authority citation for part 116 flow, either directly or through another water, to a water identified in continues to read as follows: paragraphs (1)(i) through (iv) of this water, to a water identified in Authority: The Clean Water Act, 33 U.S.C. paragraphs (1)(i) through (iv) of this definition. In addition, wetlands, lakes, and ponds are tributaries (even if they 1251 et seq. definition. ■ (v) The following features: lack a bed and banks or ordinary high 8. Section 116.3 is amended by (A) Artificially irrigated areas that water mark) if they contribute flow, revising the definition of ‘‘navigable would revert to upland should either directly or through another water waters’’ to read as follows: to a water identified in paragraphs (1)(i) application of irrigation water to that § 116.3 Definitions. through (iii) of this definition. A water area cease; * * * * * (B) Artificial lakes or ponds created that otherwise qualifies as a tributary Navigable waters is defined in section by excavating and/or diking dry land under this definition does not lose its 502(7) of the Act to mean ‘‘waters of the and used exclusively for such purposes status as a tributary if, for any length, United States, including the territorial as stock watering, irrigation, settling there are one or more man-made breaks seas.’’ basins, or rice growing; (such as bridges, culverts, pipes, or (C) Artificial reflecting pools or dams), or one or more natural breaks (1) For purposes of all sections of the swimming pools created by excavating (such as wetlands at the head of or along Clean Water Act, 33 U.S.C. 1251 et seq. and/or diking dry land; the run of a stream, debris piles, boulder and its implementing regulations, (D) Small ornamental waters created fields, or a stream that flows subject to the exclusions in paragraph by excavating and/or diking dry land for underground) so long as a bed and (2) of this definition, the term ‘‘waters primarily aesthetic reasons; banks and an ordinary high water mark of the United States’’ means: (E) Water-filled depressions created can be identified upstream of the break. (i) All waters which are currently incidental to construction activity; A tributary, including wetlands, can be used, were used in the past, or may be (F) Groundwater, including a natural, man-altered, or man-made susceptible to use in interstate or foreign groundwater drained through water and includes waters such as commerce, including all waters which subsurface drainage systems; and rivers, streams, lakes, ponds, are subject to the ebb and flow of the (G) Gullies and rills and non-wetland impoundments, canals, and ditches not tide; swales. excluded in paragraph (2)(iii) or (iv) of (ii) All interstate waters, including (3) Definitions— this definition. interstate wetlands; (i) Adjacent. The term adjacent means (6) Wetlands. The term wetlands (iii) The territorial seas; bordering, contiguous or neighboring. means those areas that are inundated or (iv) All impoundments of waters Waters, including wetlands, separated saturated by surface or groundwater at identified in paragraphs (1)(i) through from other waters of the United States a frequency and duration sufficient to (iii) and (v) of this definition;.

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(v) All tributaries of waters identified by man-made dikes or barriers, natural support, and that under normal in paragraphs (1)(i) through (iv) of this river berms, beach dunes and the like circumstances do support, a prevalence definition; are ‘‘adjacent waters.’’ of vegetation typically adapted for life (vi) All waters, including wetlands, (ii) Neighboring. The term in saturated soil conditions. Wetlands adjacent to a water identified in neighboring, for purposes of the term generally include swamps, marshes, paragraphs (1)(i) through (v) of this ‘‘adjacent’’ in this section, includes bogs and similar areas. definition; and waters located within the riparian area (vii) Significant nexus. The term (vii) On a case-specific basis, other or floodplain of a water identified in significant nexus means that a water, waters, including wetlands, provided paragraphs (1)(i) through (v) of this including wetlands, either alone or in that those waters alone, or in definition, or waters with a shallow combination with other similarly combination with other similarly subsurface hydrologic connection or situated waters in the region (i.e., the situated waters, including wetlands, confined surface hydrologic connection watershed that drains to the nearest located in the same region, have a to such a jurisdictional water. water identified in paragraphs (1)(i) significant nexus to a water identified in (iii) Riparian area. The term riparian through (iii) of this definition), paragraphs (1)(i) through (iii) of this area means an area bordering a water significantly affects the chemical, definition. where surface or subsurface hydrology physical, or biological integrity of a (2) The following are not ‘‘waters of directly influence the ecological water identified in paragraphs (1)(i) the United States’’ notwithstanding processes and plant and animal through (iii) of this definition. For an whether they meet the terms of community structure in that area. effect to be significant, it must be more paragraphs (1)(i) through (viii) of this Riparian areas are transitional areas than speculative or insubstantial. Other definition— between aquatic and terrestrial waters, including wetlands, are (i) Waste treatment systems, including ecosystems that influence the exchange similarly situated when they perform treatment ponds or lagoons, designed to of energy and materials between those similar functions and are located meet the requirements of the Clean ecosystems. sufficiently close together or sufficiently (4) Floodplain. The term floodplain Water Act. close to a ‘‘water of the United States’’ means an area bordering inland or (ii) Prior converted cropland. so that they can be evaluated as a single coastal waters that was formed by Notwithstanding the determination of landscape unit with regard to their sediment deposition from such water an area’s status as prior converted effect on the chemical, physical, or under present climatic conditions and is cropland by any other Federal agency, biological integrity of a water identified for the purposes of the Clean Water Act inundated during periods of moderate to high water flows. in paragraphs (1)(i) through (iii) of this the final authority regarding Clean definition. Water Act jurisdiction remains with (5) Tributary. The term tributary * * * * * EPA. means a water physically characterized by the presence of a bed and banks and (iii) Ditches that are excavated wholly PART 117—DETERMINATION OF in uplands, drain only uplands, and ordinary high water mark, as defined at 33 CFR 328.3(e), which contributes REPORTABLE QUANTITIES FOR have less than perennial flow. HAZARDOUS SUBSTANCES (iv) Ditches that do not contribute flow, either directly or through another flow, either directly or through another water, to a water identified in ■ 9. The authority citation for part 117 water, to a water identified in paragraphs (1)(i) through (iv) of this continues to read as follows: definition. In addition, wetlands, lakes, paragraphs (1)(i) through (iv) of this Authority: The Clean Water Act, 33 U.S.C. section. and ponds are tributaries (even if they lack a bed and banks or ordinary high 1251 et seq. (v) The following features: ■ (A) Artificially irrigated areas that water mark) if they contribute flow, 10. Section 117.1 is amended by would revert to upland should either directly or through another water revising the definition of ‘‘navigable application of irrigation water to that to a water identified in paragraphs (1)(i) waters’’ to read as follows: through (iii) of this definition. A water area cease; § 117.1 Definitions. that otherwise qualifies as a tributary (B) Artificial lakes or ponds created * * * * * by excavating and/or diking dry land under this definition does not lose its (i) Navigable waters means ‘‘waters of and used exclusively for such purposes status as a tributary if, for any length, the United States, including the as stock watering, irrigation, settling there are one or more man-made breaks territorial seas.’’ basins, or rice growing; (such as bridges, culverts, pipes, or (C) Artificial reflecting pools or dams), or one or more natural breaks (1) For purposes of all sections of the swimming pools created by excavating (such as wetlands at the head of or along Clean Water Act, 33 U.S.C. 1251 et. seq. and/or diking dry land; the run of a stream, debris piles, boulder and its implementing regulations, (D) Small ornamental waters created fields, or a stream that flows subject to the exclusions in paragraph by excavating and/or diking dry land for underground) so long as a bed and (i)(2) of this section, the term ‘‘waters of primarily aesthetic reasons; banks and an ordinary high water mark the United States’’ means: (E) Water-filled depressions created can be identified upstream of the break. (i) All waters which are currently incidental to construction activity; A tributary, including wetlands, can be used, were used in the past, or may be (F) Groundwater, including a natural, man-altered, or man-made susceptible to use in interstate or foreign groundwater drained through water and includes waters such as commerce, including all waters which subsurface drainage systems; and rivers, streams, lakes, ponds, are subject to the ebb and flow of the (G) Gullies and rills and non-wetland impoundments, canals, and ditches not tide; swales. excluded in paragraph (2)(iii) or (iv) of (ii) All interstate waters, including (3) Definitions— this definition. interstate wetlands; (i) Adjacent. The term adjacent means (vi) Wetlands. The term wetlands (iii) The territorial seas; bordering, contiguous or neighboring. means those areas that are inundated or (iv) All impoundments of waters Waters, including wetlands, separated saturated by surface or groundwater at identified in paragraphs (i)(1)(i) through from other waters of the United States a frequency and duration sufficient to (iii) and (v) of this section;

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(v) All tributaries of waters identified by man-made dikes or barriers, natural support, and that under normal in paragraphs (i)(1)(i) through (iv) of this river berms, beach dunes and the like circumstances do support, a prevalence section; are ‘‘adjacent waters.’’ of vegetation typically adapted for life (vi) All waters, including wetlands, (ii) Neighboring. The term in saturated soil conditions. Wetlands adjacent to a water identified in neighboring, for purposes of the term generally include swamps, marshes, paragraphs (i)(1)(i) through (v) of this ‘‘adjacent’’ in this section, includes bogs and similar areas. section; and waters located within the riparian area (vii) Significant nexus. The term (vii) On a case-specific basis, other or floodplain of a water identified in significant nexus means that a water, waters, including wetlands, provided paragraphs (i)(1)(i) through (v) of this including wetlands, either alone or in that those waters alone, or in section, or waters with a shallow combination with other similarly combination with other similarly subsurface hydrologic connection or situated waters in the region (i.e., the situated waters, including wetlands, confined surface hydrologic connection watershed that drains to the nearest located in the same region, have a to such a jurisdictional water. water identified in paragraphs (i)(1)(i) significant nexus to a water identified in (iii) Riparian area. The term riparian through (iii) of this section), paragraphs (i)(1)(i) through (iii) of this area means an area bordering a water significantly affects the chemical, section. where surface or subsurface hydrology physical, or biological integrity of a (2) The following are not ‘‘waters of directly influence the ecological water identified in paragraphs (i)(1)(i) the United States’’ notwithstanding processes and plant and animal through (iii) of this section. For an effect whether they meet the terms of community structure in that area. to be significant, it must be more than paragraphs (i)(1)(i) through (vii) of this Riparian areas are transitional areas speculative or insubstantial. Other section— between aquatic and terrestrial waters, including wetlands, are (i) Waste treatment systems, including ecosystems that influence the exchange similarly situated when they perform treatment ponds or lagoons, designed to of energy and materials between those similar functions and are located meet the requirements of the Clean ecosystems. sufficiently close together or sufficiently (iv) Floodplain. The term floodplain Water Act. close to a ‘‘water of the United States’’ means an area bordering inland or (ii) Prior converted cropland. so that they can be evaluated as a single coastal waters that was formed by Notwithstanding the determination of landscape unit with regard to their sediment deposition from such water an area’s status as prior converted effect on the chemical, physical, or under present climatic conditions and is cropland by any other Federal agency, biological integrity of a water identified inundated during periods of moderate to for the purposes of the Clean Water Act in paragraphs (i)(1)(i) through (iii) of high water flows. the final authority regarding Clean this section. Water Act jurisdiction remains with (v) Tributary. The term tributary * * * * * EPA. means a water physically characterized (iii) Ditches that are excavated wholly by the presence of a bed and banks and ordinary high water mark, as defined at PART 122—EPA ADMINISTERED in uplands, drain only uplands, and PERMIT PROGRAMS: THE NATIONAL have less than perennial flow. 33 CFR 328.3(e), which contributes flow, either directly or through another POLLUTANT DISCHARGE (iv) Ditches that do not contribute ELIMINATION SYSTEM flow, either directly or through another water, to a water identified in water, to a water identified in paragraphs (i)(1)(i) through (iv) of this ■ 11. The authority citation for part 122 paragraphs (i)(1)(i) through (iv) of this section. In addition, wetlands, lakes, continues to read as follows: section. and ponds are tributaries (even if they lack a bed and banks or ordinary high Authority: The Clean Water Act, 33 U.S.C. (v) The following features: 1251 et seq. (A) Artificially irrigated areas that water mark) if they contribute flow, would revert to upland should either directly or through another water ■ 12. Section 122.2 is amended by application of irrigation water to that to a water identified in paragraphs revising the definition of ‘‘Waters of the area cease; (i)(1)(i) through (iii) of this section. A United States’’ and removing the note (B) Artificial lakes or ponds created water that otherwise qualifies as a and editorial note at the end of the by excavating and/or diking dry land tributary under this definition does not section. and used exclusively for such purposes lose its status as a tributary if, for any The revision reads as follows: length, there are one or more man-made as stock watering, irrigation, settling § 122.2 Definitions. basins, or rice growing; breaks (such as bridges, culverts, pipes, (C) Artificial reflecting pools or or dams), or one or more natural breaks * * * * * swimming pools created by excavating (such as wetlands at the head of or along Waters of the United States or waters and/or diking dry land; the run of a stream, debris piles, boulder of the U.S. means: (D) Small ornamental waters created fields, or a stream that flows (a) For purposes of all sections of the by excavating and/or diking dry land for underground) so long as a bed and Clean Water Act, 33 U.S.C. 1251 et seq. primarily aesthetic reasons; banks and an ordinary high water mark and its implementing regulations, (E) Water-filled depressions created can be identified upstream of the break. subject to the exclusions in paragraph incidental to construction activity; A tributary, including wetlands, can be (b) of this definition, the term ‘‘waters (F) Groundwater, including a natural, man-altered, or man-made of the United States’’ means: groundwater drained through water and includes waters such as (1) All waters which are currently subsurface drainage systems; and rivers, streams, lakes, ponds, used, were used in the past, or may be (G) Gullies and rills and non-wetland impoundments, canals, and ditches not susceptible to use in interstate or foreign swales. excluded in paragraph (i)(2)(iii) or (iv) commerce, including all waters which (3) Definitions— of this section. are subject to the ebb and flow of the (i) Adjacent. The term adjacent means (vi) Wetlands. The term wetlands tide; bordering, contiguous or neighboring. means those areas that are inundated or (2) All interstate waters, including Waters, including wetlands, separated saturated by surface or groundwater at interstate wetlands; from other waters of the United States a frequency and duration sufficient to (3) The territorial seas;

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(4) All impoundments of waters (vi) Groundwater, including A tributary, including wetlands, can be identified in paragraphs (a)(1) through groundwater drained through a natural, man-altered, or man-made (3) and (5) of this definition; subsurface drainage systems; and water and includes waters such as (5) All tributaries of waters identified (vii) Gullies and rills and non-wetland rivers, streams, lakes, ponds, in paragraphs (a)(1) through (4) of this swales. impoundments, canals, and ditches not definition; (c) Definitions— excluded in paragraphs (b)(3) or (4) of (6) All waters, including wetlands, (1) Adjacent. The term adjacent this definition. adjacent to a water identified in means bordering, contiguous or (6) Wetlands. The term wetlands paragraphs (a)(1) through (5) of this neighboring. Waters, including means those areas that are inundated or definition; and wetlands, separated from other waters of saturated by surface or groundwater at (7) On a case-specific basis, other the United States by man-made dikes or a frequency and duration sufficient to waters, including wetlands, provided barriers, natural river berms, beach support, and that under normal that those waters alone, or in dunes and the like are ‘‘adjacent circumstances do support, a prevalence combination with other similarly waters.’’ of vegetation typically adapted for life (2) Neighboring. The term situated waters, including wetlands, in saturated soil conditions. Wetlands neighboring, for purposes of the term located in the same region, have a generally include swamps, marshes, ‘‘adjacent’’ in this section, includes significant nexus to a water identified in bogs and similar areas. waters located within the riparian area paragraphs (a)(1) through (3) of this (7) Significant nexus. The term or floodplain of a water identified in definition. significant nexus means that a water, paragraphs (a)(1) through (5) of this (b) The following are not ‘‘waters of including wetlands, either alone or in section, or waters with a shallow combination with other similarly the United States’’ notwithstanding subsurface hydrologic connection or whether they meet the terms of situated waters in the region (i.e., the confined surface hydrologic connection watershed that drains to the nearest paragraphs (a)(1) through (7) of this to such a jurisdictional water. definition— water identified in paragraphs (a)(1) (3) Riparian area. The term riparian through (3) of this definition), (1) Waste treatment systems, area means an area bordering a water significantly affects the chemical, including treatment ponds or lagoons, where surface or subsurface hydrology physical, or biological integrity of a designed to meet the requirements of directly influence the ecological water identified in paragraphs (a)(1) the Clean Water Act. This exclusion processes and plant and animal through (3) of this definition. For an applies only to manmade bodies of community structure in that area. effect to be significant, it must be more water which neither were originally Riparian areas are transitional areas than speculative or insubstantial. Other created in waters of the United States between aquatic and terrestrial waters, including wetlands, are (such as disposal area in wetlands) nor ecosystems that influence the exchange similarly situated when they perform resulted from the impoundment of of energy and materials between those similar functions and are located waters of the United States.1 ecosystems. sufficiently close together or sufficiently (2) Prior converted cropland. (4) Floodplain. The term floodplain close to a ‘‘water of the United States’’ Notwithstanding the determination of means an area bordering inland or so that they can be evaluated as a single an area’s status as prior converted coastal waters that was formed by landscape unit with regard to their cropland by any other Federal agency, sediment deposition from such water effect on the chemical, physical, or for the purposes of the Clean Water Act under present climatic conditions and is biological integrity of a water identified the final authority regarding Clean inundated during periods of moderate to in paragraphs (a)(1) through (3) of this Water Act jurisdiction remains with high water flows. definition. EPA. (5) Tributary. The term tributary (3) Ditches that are excavated wholly means a water physically characterized * * * * * 1At 45 FR 48620, July 21, 1980, the in uplands, drain only uplands, and by the presence of a bed and banks and Environmental Protection Agency have less than perennial flow. ordinary high water mark, as defined at suspended until further notice in (4) Ditches that do not contribute 33 CFR 328.3(e), which contributes § 122.2, the last sentence, beginning flow, either directly or through another flow, either directly or through another ‘‘This exclusion applies . . .’’ in the water, to a water identified in water, to a water identified in definition of ‘‘Waters of the United paragraphs (a)(1) through (4) of this paragraphs (a)(1) through (4) of this States.’’ This revision (48 FR 14153, definition. definition. In addition, wetlands, lakes, Apr. 1, 1983) continues that suspension. (5) The following features: and ponds are tributaries (even if they (i) Artificially irrigated areas that lack a bed and banks or ordinary high PART 230—SECTION 404(b)(1) would revert to upland should water mark) if they contribute flow, GUIDELINES FOR SPECIFICATION OF application of irrigation water to that either directly or through another water DISPOSAL SITES FOR DREDGED OR area cease; to a water identified in paragraphs (a)(1) FILL MATERIAL (ii) Artificial lakes or ponds created through (3) of this definition. A water by excavating and/or diking dry land that otherwise qualifies as a tributary ■ 13. The authority citation for part 230 and used exclusively for such purposes under this definition does not lose its continues to read as follows: as stock watering, irrigation, settling status as a tributary if, for any length, Authority: The Clean Water Act, 33 U.S.C. basins, or rice growing; there are one or more man-made breaks 1251 et seq. (iii) Artificial reflecting pools or (such as bridges, culverts, pipes, or ■ 14. Section 230.3 is amended by swimming pools created by excavating dams), or one or more natural breaks revising paragraphs (s) and (t) and and/or diking dry land; (such as wetlands at the head of or along adding paragraph (u) to read as follows: (iv) Small ornamental waters created the run of a stream, debris piles, boulder by excavating and/or diking dry land for fields, or a stream that flows § 230.3 Definitions. primarily aesthetic reasons; underground) so long as a bed and * * * * * (v) Water-filled depressions created banks and an ordinary high water mark (s) For purposes of all sections of the incidental to construction activity; can be identified upstream of the break. Clean Water Act, 33 U.S.C. 1251 et seq.

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and its implementing regulations, (iv) Small ornamental waters created of a stream, debris piles, boulder fields, subject to the exclusions in paragraph (t) by excavating and/or diking dry land for or a stream that flows underground) so of this section, the term ‘‘waters of the primarily aesthetic reasons; long as a bed and banks and an ordinary United States’’ means: (v) Water-filled depressions created high water mark can be identified (1) All waters which are currently incidental to construction activity; upstream of the break. A tributary, used, were used in the past, or may be (vi) Groundwater, including including wetlands, can be a natural, susceptible to use in interstate or foreign groundwater drained through man-altered, or man-made water and commerce, including all waters which subsurface drainage systems; and includes waters such as rivers, streams, are subject to the ebb and flow of the (vii) Gullies and rills and non-wetland lakes, ponds, impoundments, canals, tide; swales. and ditches not excluded in paragraph (2) All interstate waters, including (u) Definitions— (t)(3) or (4) of this section. interstate wetlands; (1) Adjacent. The term adjacent (6) Wetlands. The term wetlands (3) The territorial seas; means bordering, contiguous or means those areas that are inundated or (4) All impoundments of waters neighboring. Waters, including saturated by surface or groundwater at identified in paragraphs (s)(1) through wetlands, separated from other waters of a frequency and duration sufficient to (3) and (5) of this section; the United States by man-made dikes or support, and that under normal (5) All tributaries of waters identified barriers, natural river berms, beach circumstances do support, a prevalence in paragraphs (s)(1) through (4) of this dunes and the like are ‘‘adjacent of vegetation typically adapted for life section; waters.’’ in saturated soil conditions. Wetlands (6) All waters, including wetlands, (2) Neighboring. The term generally include swamps, marshes, adjacent to a water identified in neighboring, for purposes of the term bogs and similar areas. paragraphs (s)(1) through (5) of this ‘‘adjacent’’ in this section, includes (7) Significant nexus. The term section; and waters located within the riparian area significant nexus means that a water, (7) On a case-specific basis, other or floodplain of a water identified in including wetlands, either alone or in waters, including wetlands, provided paragraphs (s)(1) through (5) of this combination with other similarly that those waters alone, or in section, or waters with a shallow combination with other similarly situated waters in the region (i.e., the subsurface hydrologic connection or watershed that drains to the nearest situated waters, including wetlands, confined surface hydrologic connection located in the same region, have a water identified in paragraphs (s)(1) to such a jurisdictional water. through (3) of this section), significantly significant nexus to a water identified in (3) Riparian area. The term riparian affects the chemical, physical, or paragraphs (s)(1) through (3) of this area means an area bordering a water biological integrity of a water identified section. where surface or subsurface hydrology in paragraphs (s)(1) through (3) of this (t) The following are not ‘‘waters of directly influence the ecological section. For an effect to be significant, the United States’’ notwithstanding processes and plant and animal it must be more than speculative or whether they meet the terms of community structure in that area. insubstantial. Other waters, including paragraphs (s)(1) through (7) of this Riparian areas are transitional areas wetlands, are similarly situated when section— between aquatic and terrestrial they perform similar functions and are (1) Waste treatment systems, ecosystems that influence the exchange located sufficiently close together or including treatment ponds or lagoons, of energy and materials between those sufficiently close to a ‘‘water of the designed to meet the requirements of ecosystems. United States’’ so that they can be the Clean Water Act. (4) Floodplain. The term floodplain evaluated as a single landscape unit (2) Prior converted cropland. means an area bordering inland or with regard to their effect on the Notwithstanding the determination of coastal waters that was formed by chemical, physical, or biological an area’s status as prior converted sediment deposition from such water integrity of a water identified in cropland by any other Federal agency, under present climatic conditions and is paragraphs (s)(1) through (3) of this for the purposes of the Clean Water Act inundated during periods of moderate to section. the final authority regarding Clean high water flows. Water Act jurisdiction remains with (5) Tributary. The term tributary PART 232—404 PROGRAMS EPA. means a water physically characterized (3) Ditches that are excavated wholly DEFINITIONS; EXEMPT ACTIVITIES by the presence of a bed and banks and in uplands, drain only uplands, and NOT REQUIRING 404 PERMITS ordinary high water mark, as defined at have less than perennial flow. ■ 15. The authority citation for part 232 (4) Ditches that do not contribute 33 CFR 328.3(e), which contributes continues to read as follows: flow, either directly or through another flow, either directly or through another water, to a water identified in water, to a water identified in Authority: The Clean Water Act, 33 U.S.C. paragraphs (s)(1) through (4) of this paragraphs (s)(1) through (4) of this 1251 et seq. section. section. In addition, wetlands, lakes, ■ 16. Section 232.2 is amended by (5) The following features: and ponds are tributaries (even if they revising the definition of ‘‘Waters of the (i) Artificially irrigated areas that lack a bed and banks or ordinary high United States’’ to read as follows: would revert to upland should water mark) if they contribute flow, application of irrigation water to that either directly or through another water § 232.2 Definitions, area cease; to a water identified in paragraphs (s)(1) * * * * * (ii) Artificial lakes or ponds created through (3) of this section. A water that Waters of the United States or waters by excavating and/or diking dry land otherwise qualifies as a tributary under means: and used exclusively for such purposes this definition does not lose its status as (1) For purposes of all sections of the as stock watering, irrigation, settling a tributary if, for any length, there are Clean Water Act, 33 U.S.C. 1251 et. seq. basins, or rice growing; one or more man-made breaks (such as and its implementing regulations, (iii) Artificial reflecting pools or bridges, culverts, pipes, or dams), or one subject to the exclusions in paragraph swimming pools created by excavating or more natural breaks (such as (2) of this definition, the term ‘‘waters and/or diking dry land; wetlands at the head of or along the run of the United States’’ means:

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(i) All waters which are currently (E) Water-filled depressions created can be identified upstream of the break. used, were used in the past, or may be incidental to construction activity; A tributary, including wetlands, can be susceptible to use in interstate or foreign (F) Groundwater, including a natural, man-altered, or man-made commerce, including all waters which groundwater drained through water and includes waters such as are subject to the ebb and flow of the subsurface drainage systems; and rivers, streams, lakes, ponds, tide; (G) Gullies and rills and non-wetland impoundments, canals, and ditches not (ii) All interstate waters, including swales. excluded in paragraph (2)(iii) or (iv) of interstate wetlands; (3) Definitions— this definition. (iii) The territorial seas; (i) Adjacent. The term adjacent means (vi) Wetlands. The term wetlands (iv) All impoundments of waters bordering, contiguous or neighboring. means those areas that are inundated or identified in paragraphs (1)(i) through Waters, including wetlands, separated saturated by surface or groundwater at from other waters of the United States (iii) and (v) of this definition; a frequency and duration sufficient to by man-made dikes or barriers, natural (v) All tributaries of waters identified support, and that under normal river berms, beach dunes and the like in paragraphs (1)(i) through (iv) of this circumstances do support, a prevalence section; are ‘‘adjacent waters.’’ (ii) Neighboring. The term of vegetation typically adapted for life (vi) All waters, including wetlands, in saturated soil conditions. Wetlands adjacent to a water identified in neighboring, for purposes of the term ‘‘adjacent’’ in this section, includes generally include swamps, marshes, paragraphs (1)(i) through (v) of this bogs and similar areas. definition; and waters located within the riparian area or floodplain of a water identified in (vii) Significant nexus. The term (vii) On a case-specific basis, other significant nexus means that a water, waters, including wetlands, provided paragraphs (1)(i) through (v) of this definition, or waters with a shallow including wetlands, either alone or in that those waters alone, or in combination with other similarly combination with other similarly subsurface hydrologic connection or confined surface hydrologic connection situated waters in the region (i.e., the situated waters, including wetlands, watershed that drains to the nearest located in the same region, have a to such a jurisdictional water. (iii) Riparian area. The term riparian water identified in paragraphs (1)(i) significant nexus to a water identified in through (iii) of this definition), paragraphs (1)(i) through (iii) of this area means an area bordering a water where surface or subsurface hydrology significantly affects the chemical, definition. physical, or biological integrity of a (2) The following are not ‘‘waters of directly influence the ecological water identified in paragraphs (1)(i) the United States’’ notwithstanding processes and plant and animal through (iii) of this definition. For an whether they meet the terms of community structure in that area. effect to be significant, it must be more paragraphs (1)(i) through (vii) of this Riparian areas are transitional areas than speculative or insubstantial. Other definition— between aquatic and terrestrial waters, including wetlands, are (i) Waste treatment systems, including ecosystems that influence the exchange similarly situated when they perform treatment ponds or lagoons, designed to of energy and materials between those similar functions and are located meet the requirements of the Clean ecosystems. sufficiently close together or sufficiently Water Act. (iv) Floodplain. The term floodplain (ii) Prior converted cropland. means an area bordering inland or close to a ‘‘water of the United States’’ Notwithstanding the determination of coastal waters that was formed by so that they can be evaluated as a single an area’s status as prior converted sediment deposition from such water landscape unit with regard to their cropland by any other Federal agency, under present climatic conditions and is effect on the chemical, physical, or for the purposes of the Clean Water Act inundated during periods of moderate to biological integrity of a water identified the final authority regarding Clean high water flows. in paragraphs (1)(i) through (iii) of this Water Act jurisdiction remains with (v) Tributary. The term tributary definition. means a water physically characterized EPA. PART 300—NATIONAL OIL AND (iii) Ditches that are excavated wholly by the presence of a bed and banks and ordinary high water mark, as defined at HAZARDOUS SUBSTANCES in uplands, drain only uplands, and POLLUTION CONTINGENCY PLAN have less than perennial flow. 33 CFR 328.3(e), which contributes (iv) Ditches that do not contribute flow, either directly or through another ■ 17. The authority citation for part 300 flow, either directly or through another water, to a water identified in continues to read as follows: water, to a water identified in paragraphs (1)(i) through (iv) of this definition. In addition, wetlands, lakes, Authority: The Clean Water Act, 33 U.S.C. paragraphs (1)(i) through (iv) of this 1251 et seq. section. and ponds are tributaries (even if they (v) The following features: lack a bed and banks or ordinary high ■ 18. Section 300.5 is amended by (A) Artificially irrigated areas that water mark) if they contribute flow, revising the definition of ‘‘navigable would revert to upland should either directly or through another water waters’’ to read as follows: application of irrigation water to that to a water identified in paragraphs (1)(i) § 300.5 Definitions. area cease; through (iii) of this definition. A water (B) Artificial lakes or ponds created that otherwise qualifies as a tributary * * * * * by excavating and/or diking dry land under this definition does not lose its Navigable waters as defined by 40 and used exclusively for such purposes status as a tributary if, for any length, CFR 110.1, means the waters of the as stock watering, irrigation, settling there are one or more man-made breaks United States, including the territorial basins, or rice growing; (such as bridges, culverts, pipes, or seas. (C) Artificial reflecting pools or dams), or one or more natural breaks (1) For purposes of all sections of the swimming pools created by excavating (such as wetlands at the head of or along Clean Water Act, 33 U.S.C. 1251 et seq. and/or diking dry land; the run of a stream, debris piles, boulder and its implementing regulations, (D) Small ornamental waters created fields, or a stream that flows subject to the exclusions in paragraph by excavating and/or diking dry land for underground) so long as a bed and (2) of this definition, the term ‘‘waters primarily aesthetic reasons; banks and an ordinary high water mark of the United States’’ means:

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(i) All waters which are currently (E) Water-filled depressions created can be identified upstream of the break. used, were used in the past, or may be incidental to construction activity; A tributary, including wetlands, can be susceptible to use in interstate or foreign (F) Groundwater, including a natural, man-altered, or man-made commerce, including all waters which groundwater drained through water and includes waters such as are subject to the ebb and flow of the subsurface drainage systems; and rivers, streams, lakes, ponds, tide; (G) Gullies and rills and non-wetland impoundments, canals, and ditches not (ii) All interstate waters, including swales. excluded in paragraph (2)(iii) or (iv) of interstate wetlands; (3) Definitions— this definition. (iii) The territorial seas; (i) Adjacent. The term adjacent means bordering, contiguous or neighboring. (vi) Wetlands. The term wetlands (iv) All impoundments of waters means those areas that are inundated or identified in paragraphs (1)(i) through Waters, including wetlands, separated from other waters of the United States saturated by surface or groundwater at (iii) and (v) of this definition; a frequency and duration sufficient to (v) All tributaries of waters identified by man-made dikes or barriers, natural support, and that under normal in paragraphs (1)(i) through (iv) of this river berms, beach dunes and the like circumstances do support, a prevalence definition; are ‘‘adjacent waters.’’ of vegetation typically adapted for life (vi) All waters, including wetlands, (ii) Neighboring. The term in saturated soil conditions. Wetlands adjacent to a water identified in neighboring, for purposes of the term generally include swamps, marshes, paragraphs (1)(i) through (v) of this ‘‘adjacent’’ in this section, includes bogs and similar areas. definition; and waters located within the riparian area (vii) On a case-specific basis, other or floodplain of a water identified in (vii) Significant nexus. The term waters, including wetlands, provided paragraphs (1)(i) through (v) of this significant nexus means that a water, that those waters alone, or in definition, or waters with a shallow including wetlands, either alone or in combination with other similarly subsurface hydrologic connection or combination with other similarly situated waters, including wetlands, confined surface hydrologic connection situated waters in the region (i.e., the located in the same region, have a to such a jurisdictional water. watershed that drains to the nearest significant nexus to a water identified in (iii) Riparian area. The term riparian water identified in paragraphs (1)(i) paragraphs (1)(i) through (iii) of this area means an area bordering a water through (iii) of this definition), definition. where surface or subsurface hydrology significantly affects the chemical, (2) The following are not ‘‘waters of directly influence the ecological physical, or biological integrity of a the United States’’ notwithstanding processes and plant and animal water identified in paragraphs (1)(i) whether they meet the terms of community structure in that area. through (iii) of this definition. For an paragraphs (1)(i) through (vii) of this Riparian areas are transitional areas effect to be significant, it must be more definition— between aquatic and terrestrial than speculative or insubstantial. Other (i) Waste treatment systems, including ecosystems that influence the exchange waters, including wetlands, are treatment ponds or lagoons, designed to of energy and materials between those similarly situated when they perform meet the requirements of the Clean ecosystems. similar functions and are located Water Act. (iv) Floodplain. The term floodplain sufficiently close together or sufficiently (ii) Prior converted cropland. means an area bordering inland or close to a ‘‘water of the United States’’ Notwithstanding the determination of coastal waters that was formed by so that they can be evaluated as a single an area’s status as prior converted sediment deposition from such water landscape unit with regard to their cropland by any other Federal agency, under present climatic conditions and is effect on the chemical, physical, or for the purposes of the Clean Water Act inundated during periods of moderate to biological integrity of a water identified the final authority regarding Clean high water flows. in paragraphs (1)(i) through (iii) of this Water Act jurisdiction remains with (v) Tributary. The term tributary definition. means a water physically characterized EPA. * * * * * (iii) Ditches that are excavated wholly by the presence of a bed and banks and ■ 19. In appendix E to part 300, section in uplands, drain only uplands, and ordinary high water mark, as defined at 1.5 Definitions is amended by revising have less than perennial flow. 33 CFR 328.3(e), which contributes the definition of ‘‘navigable waters’’ to (iv) Ditches that do not contribute flow, either directly or through another read as follows: flow, either directly or through another water, to a water identified in water, to a water identified in paragraphs (1)(i) through (iv) of this Appendix E to Part 300—Oil Spill paragraphs (1)(i) through (iv) of this definition. In addition, wetlands, lakes, Response. definition. and ponds are tributaries (even if they 1.5 Definitions. * * * (v) The following features: lack a bed and banks or ordinary high water mark) if they contribute flow, Navigable waters as defined by 40 CFR (A) Artificially irrigated areas that 110.1, means the waters of the United States, would revert to upland should either directly or through another water including the territorial seas. application of irrigation water to that to a water identified in paragraphs (1)(i) (1) For purposes of all sections of the Clean area cease; through (iii) of this definition. A water Water Act, 33 U.S.C. 1251 et seq. and its (B) Artificial lakes or ponds created that otherwise qualifies as a tributary implementing regulations, subject to the by excavating and/or diking dry land under this definition does not lose its exclusions in paragraph (2) of this definition, and used exclusively for such purposes status as a tributary if, for any length, the term ‘‘waters of the United States’’ as stock watering, irrigation, settling there are one or more man-made breaks means: basins, or rice growing; (such as bridges, culverts, pipes, or (i) All waters which are currently used, (C) Artificial reflecting pools or dams), or one or more natural breaks were used in the past, or may be susceptible to use in interstate or foreign commerce, swimming pools created by excavating (such as wetlands at the head of or along including all waters which are subject to the and/or diking dry land; the run of a stream, debris piles, boulder ebb and flow of the tide; (D) Small ornamental waters created fields, or a stream that flows (ii) All interstate waters, including by excavating and/or diking dry land for underground) so long as a bed and interstate wetlands; primarily aesthetic reasons; banks and an ordinary high water mark (iii) The territorial seas;

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(iv) All impoundments of waters identified (iii) Riparian area. The term riparian area PART 302—DESIGNATION, in paragraphs (1)(i) through (iii) and (v) of means an area bordering a water where REPORTABLE QUANTITIES, AND this definition; surface or subsurface hydrology directly NOTIFICATION (v) All tributaries of waters identified in influence the ecological processes and plant paragraphs (1)(i) through (iv) of this and animal community structure in that area. ■ 20. The authority citation for part 302 definition; Riparian areas are transitional areas between continues to read as follows: (vi) All waters, including wetlands, aquatic and terrestrial ecosystems that adjacent to a water identified in paragraphs influence the exchange of energy and Authority: The Clean Water Act, 33 U.S.C. (1)(i) through (v) of this definition; and materials between those ecosystems. 1251 et seq. (vii) On a case-specific basis, other waters, (iv) Floodplain. The term floodplain means ■ 21. Section 302.3 is amended by including wetlands, provided that those an area bordering inland or coastal waters revising the definition of ‘‘navigable waters alone, or in combination with other that was formed by sediment deposition from similarly situated waters, including such water under present climatic conditions waters’’ to read as follows: wetlands, located in the same region, have a and is inundated during periods of moderate § 302.3 Definitions. significant nexus to a water identified in to high water flows. paragraphs (1)(i) through (iii) of this (v) Tributary. The term tributary means a * * * * * definition. water physically characterized by the Navigable waters means the waters of (2) The following are not ‘‘waters of the presence of a bed and banks and ordinary the United States, including the United States’’ notwithstanding whether they high water mark, as defined at 33 CFR territorial seas. meet the terms of paragraphs (1)(i) through 328.3(e), which contributes flow, either (1) For purposes of all sections of the (vii) of this definition— directly or through another water, to a water (i) Waste treatment systems, including Clean Water Act, 33 U.S.C. 1251 et. seq. identified in paragraphs (1)(i) through (iv) of and its implementing regulations, treatment ponds or lagoons, designed to meet this definition. In addition, wetlands, lakes, the requirements of the Clean Water Act. and ponds are tributaries (even if they lack subject to the exclusions in paragraph (ii) Prior converted cropland. a bed and banks or ordinary high water mark) (2) of this definition, the term ‘‘waters Notwithstanding the determination of an if they contribute flow, either directly or of the United States’’ means: area’s status as prior converted cropland by through another water to a water identified (i) All waters which are currently any other Federal agency, for the purposes of in paragraphs (1)(i) through (iii) of this used, were used in the past, or may be the Clean Water Act the final authority definition. A water that otherwise qualifies as susceptible to use in interstate or foreign regarding Clean Water Act jurisdiction a tributary under this definition does not lose remains with EPA. commerce, including all waters which its status as a tributary if, for any length, are subject to the ebb and flow of the (iii) Ditches that are excavated wholly in there are one or more man-made breaks (such uplands, drain only uplands, and have less as bridges, culverts, pipes, or dams), or one tide; than perennial flow. or more natural breaks (such as wetlands at (ii) All interstate waters, including (iv) Ditches that do not contribute flow, the head of or along the run of a stream, interstate wetlands; either directly or through another water, to a debris piles, boulder fields, or a stream that (iii) The territorial seas; water identified in paragraphs (1)(i) through flows underground) so long as a bed and (iv) All impoundments of waters (iv) of this definition. banks and an ordinary high water mark can (v) The following features: identified in paragraphs (1)(i) through be identified upstream of the break. A (iii) and (v) of this definition; (A) Artificially irrigated areas that would tributary, including wetlands, can be a revert to upland should application of natural, man-altered, or man-made water and (v) All tributaries of waters identified irrigation water to that area cease; includes waters such as rivers, streams, lakes, in paragraphs (1)(i) through (iv) of this (B) Artificial lakes or ponds created by ponds, impoundments, canals, and ditches definition; excavating and/or diking dry land and used not excluded in paragraph (2)(iii) or (iv) of (vi) All waters, including wetlands, exclusively for such purposes as stock this definition. adjacent to a water identified in watering, irrigation, settling basins, or rice (vi) Wetlands. The term wetlands means paragraphs (1)(i) through (v) of this growing; those areas that are inundated or saturated by (C) Artificial reflecting pools or swimming definition; and surface or groundwater at a frequency and (vii) On a case-specific basis, other pools created by excavating and/or diking duration sufficient to support, and that under dry land; normal circumstances do support, a waters, including wetlands, provided (D) Small ornamental waters created by prevalence of vegetation typically adapted for that those waters alone, or in excavating and/or diking dry land for life in saturated soil conditions. Wetlands combination with other similarly primarily aesthetic reasons; generally include swamps, marshes, bogs and situated waters, including wetlands, (E) Water-filled depressions created similar areas. located in the same region, have a incidental to construction activity; (vii) Significant nexus. The term significant significant nexus to a water identified in (F) Groundwater, including groundwater nexus means that a water, including drained through subsurface drainage systems; paragraphs (1)(i) through (iii) of this wetlands, either alone or in combination definition. and with other similarly situated waters in the (G) Gullies and rills and non-wetland region (i.e., the watershed that drains to the (2) The following are not ‘‘waters of swales. nearest water identified in paragraphs (1)(i) the United States’’ notwithstanding (3) Definitions— through (iii) of this definition), significantly whether they meet the terms of (i) Adjacent. The term adjacent means affects the chemical, physical, or biological paragraphs (1)(i) through (vii) of this bordering, contiguous or neighboring. integrity of a water identified in paragraphs definition— Waters, including wetlands, separated from (1)(i) through (iii) of this definition. For an other waters of the United States by man- (i) Waste treatment systems, including effect to be significant, it must be more than made dikes or barriers, natural river berms, treatment ponds or lagoons, designed to speculative or insubstantial. Other waters, beach dunes and the like are ‘‘adjacent meet the requirements of the Clean including wetlands, are similarly situated waters.’’ Water Act. when they perform similar functions and are (ii) Neighboring. The term neighboring, for located sufficiently close together or (ii) Prior converted cropland. purposes of the term ‘‘adjacent’’ in this Notwithstanding the determination of section, includes waters located within the sufficiently close to a ‘‘water of the United States’’ so that they can be evaluated as a an area’s status as prior converted riparian area or floodplain of a water cropland by any other Federal agency, identified in paragraphs (1)(i) through (v) of single landscape unit with regard to their this definition, or waters with a shallow effect on the chemical, physical, or biological for the purposes of the Clean Water Act subsurface hydrologic connection or integrity of a water identified in paragraphs the final authority regarding Clean confined surface hydrologic connection to (1)(i) through (iii) of this definition. Water Act jurisdiction remains with such a jurisdictional water. * * * * * EPA.

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(iii) Ditches that are excavated wholly by the presence of a bed and banks and PART 401—GENERAL PROVISIONS in uplands, drain only uplands, and ordinary high water mark, as defined at ■ have less than perennial flow. 33 CFR 328.3(e), which contributes 22. The authority citation for part 401 (iv) Ditches that do not contribute flow, either directly or through another continues to read as follows: flow, either directly or through another water, to a water identified in Authority: The Clean Water Act, 33 U.S.C. water, to a water identified in paragraphs (1)(i) through (iv) of this 1251 et seq. paragraphs (1)(i) through (iv) of this definition. In addition, wetlands, lakes, ■ 23. Section 401.11 is amended by definition. and ponds are tributaries (even if they revising paragraph (l) to read as follows: (v) The following features: lack a bed and banks or ordinary high § 401.11 General definitions. (A) Artificially irrigated areas that water mark) if they contribute flow, would revert to upland should either directly or through another water * * * * * application of irrigation water to that to a water identified in paragraphs (1)(i) (l) The term navigable waters means area cease; through (iii) of this definition. A water the waters of the United States, including the territorial seas. (B) Artificial lakes or ponds created that otherwise qualifies as a tributary (1) For purposes of all sections of the by excavating and/or diking dry land under this definition does not lose its Clean Water Act, 33 U.S.C. 1251 et. seq. and used exclusively for such purposes status as a tributary if, for any length, as stock watering, irrigation, settling and its implementing regulations, there are one or more man-made breaks subject to the exclusions in paragraph basins, or rice growing; (such as bridges, culverts, pipes, or (C) Artificial reflecting pools or (l)(2) of this section, the term ‘‘waters of dams), or one or more natural breaks the United States’’ means: swimming pools created by excavating (such as wetlands at the head of or along and/or diking dry land; (i) All waters which are currently the run of a stream, debris piles, boulder used, were used in the past, or may be (D) Small ornamental waters created fields, or a stream that flows by excavating and/or diking dry land for susceptible to use in interstate or foreign underground) so long as a bed and commerce, including all waters which primarily aesthetic reasons; banks and an ordinary high water mark (E) Water-filled depressions created are subject to the ebb and flow of the can be identified upstream of the break. tide; incidental to construction activity; A tributary, including wetlands, can be (F) Groundwater, including (ii) All interstate waters, including a natural, man-altered, or man-made interstate wetlands; groundwater drained through water and includes waters such as subsurface drainage systems; and (iii) The territorial seas; rivers, streams, lakes, ponds, (iv) All impoundments of waters (G) Gullies and rills and non-wetland impoundments, canals, and ditches not identified in paragraphs (l)(1)(i) through swales. excluded in paragraph (2)(iii) or (iv) of (3) Definitions— (iii) and (v) of this section; (v) All tributaries of waters identified (i) Adjacent. The term adjacent means this definition. in paragraphs (l)(1)(i) through (iv) of this bordering, contiguous or neighboring. (vi) Wetlands. The term wetlands section; Waters, including wetlands, separated means those areas that are inundated or saturated by surface or groundwater at (vi) All waters, including wetlands, from other waters of the United States adjacent to a water identified in by man-made dikes or barriers, natural a frequency and duration sufficient to support, and that under normal paragraphs (l)(1)(i) through (v) of this river berms, beach dunes and the like section; and are ‘‘adjacent waters.’’ circumstances do support, a prevalence of vegetation typically adapted for life (vii) On a case-specific basis, other (ii) Neighboring. The term waters, including wetlands, provided neighboring, for purposes of the term in saturated soil conditions. Wetlands generally include swamps, marshes, that those waters alone, or in ‘‘adjacent’’ in this section, includes combination with other similarly waters located within the riparian area bogs and similar areas. (vii) Significant nexus. The term situated waters, including wetlands, or floodplain of a water identified in located in the same region, have a paragraphs (1)(i) through (v) of this significant nexus means that a water, including wetlands, either alone or in significant nexus to a water identified in definition, or waters with a shallow paragraphs (l)(1)(i) through (iii) of this subsurface hydrologic connection or combination with other similarly situated waters in the region (i.e., the section. confined surface hydrologic connection (2) The following are not ‘‘waters of to such a jurisdictional water. watershed that drains to the nearest water identified in paragraphs (1)(i) the United States’’ notwithstanding (iii) Riparian area. The term riparian whether they meet the terms of through (iii) of this definition), area means an area bordering a water paragraphs (l)(1)(i) through (vii) of this significantly affects the chemical, where surface or subsurface hydrology section— directly influence the ecological physical, or biological integrity of a (i) Waste treatment systems, including processes and plant and animal water identified in paragraphs (1)(i) treatment ponds or lagoons, designed to community structure in that area. through (iii) of this definition. For an meet the requirements of the Clean Riparian areas are transitional areas effect to be significant, it must be more Water Act. between aquatic and terrestrial than speculative or insubstantial. Other (ii) Prior converted cropland. ecosystems that influence the exchange waters, including wetlands, are Notwithstanding the determination of of energy and materials between those similarly situated when they perform an area’s status as prior converted ecosystems. similar functions and are located cropland by any other Federal agency, (iv) Floodplain. The term floodplain sufficiently close together or sufficiently for the purposes of the Clean Water Act means an area bordering inland or close to a ‘‘water of the United States’’ the final authority regarding Clean coastal waters that was formed by so that they can be evaluated as a single Water Act jurisdiction remains with sediment deposition from such water landscape unit with regard to their EPA. under present climatic conditions and is effect on the chemical, physical, or (iii) Ditches that are excavated wholly inundated during periods of moderate to biological integrity of a water identified in uplands, drain only uplands, and high water flows. in paragraphs (1)(i) through (iii) of this have less than perennial flow. (v) Tributary. The term tributary definition. (iv) Ditches that do not contribute means a water physically characterized * * * * * flow, either directly or through another

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water, to a water identified in where surface or subsurface hydrology water and includes waters such as paragraphs (l)(1)(i) through (iv) of this directly influence the ecological rivers, streams, lakes, ponds, section. processes and plant and animal impoundments, canals, and ditches not (v) The following features: community structure in that area. excluded in paragraph (l)(2)(iii) or (iv) (A) Artificially irrigated areas that Riparian areas are transitional areas of this section. would revert to upland should between aquatic and terrestrial (vi) Wetlands. The term wetlands application of irrigation water to that ecosystems that influence the exchange means those areas that are inundated or area cease; of energy and materials between those saturated by surface or groundwater at (B) Artificial lakes or ponds created ecosystems. by excavating and/or diking dry land (iv) Floodplain. The term floodplain a frequency and duration sufficient to and used exclusively for such purposes means an area bordering inland or support, and that under normal as stock watering, irrigation, settling coastal waters that was formed by circumstances do support, a prevalence basins, or rice growing; sediment deposition from such water of vegetation typically adapted for life (C) Artificial reflecting pools or under present climatic conditions and is in saturated soil conditions. Wetlands swimming pools created by excavating inundated during periods of moderate to generally include swamps, marshes, and/or diking dry land; high water flows. bogs and similar areas. (D) Small ornamental waters created (v) Tributary. The term tributary (vii) Significant nexus. The term by excavating and/or diking dry land for means a water physically characterized significant nexus means that a water, primarily aesthetic reasons; by the presence of a bed and banks and (E) Water-filled depressions created including wetlands, either alone or in ordinary high water mark, as defined at combination with other similarly incidental to construction activity; 33 CFR 328.3(e), which contributes (F) Groundwater, including situated waters in the region (i.e., the flow, either directly or through another groundwater drained through watershed that drains to the nearest water, to a water identified in subsurface drainage systems; and water identified in paragraphs (l)(1)(i) (G) Gullies and rills and non-wetland paragraphs (l)(1)(i) through (iv) of this through (iii) of this section), swales. section. In addition, wetlands, lakes, significantly affects the chemical, (3) Definitions— and ponds are tributaries (even if they physical, or biological integrity of a (i) Adjacent. The term adjacent means lack a bed and banks or ordinary high water identified in paragraphs (l)(1)(i) bordering, contiguous or neighboring. water mark) if they contribute flow, through (iii) of this section. For an effect Waters, including wetlands, separated either directly or through another water to be significant, it must be more than from other waters of the United States to a water identified in paragraphs speculative or insubstantial. Other by man-made dikes or barriers, natural (l)(1)(i) through (iii) of this section. A waters, including wetlands, are water that otherwise qualifies as a river berms, beach dunes and the like similarly situated when they perform tributary under this definition does not are ‘‘adjacent waters.’’ similar functions and are located lose its status as a tributary if, for any (ii) Neighboring. The term sufficiently close together or sufficiently length, there are one or more man-made neighboring, for purposes of the term close to a ‘‘water of the United States’’ breaks (such as bridges, culverts, pipes, ‘‘adjacent’’ in this section, includes so that they can be evaluated as a single or dams), or one or more natural breaks waters located within the riparian area landscape unit with regard to their or floodplain of a water identified in (such as wetlands at the head of or along effect on the chemical, physical, or paragraphs (l)(1)(i) through (v) of this the run of a stream, debris piles, boulder biological integrity of a water identified section, or waters with a shallow fields, or a stream that flows in paragraphs (l)(1)(i) through (iii) of subsurface hydrologic connection or underground) so long as a bed and this section. confined surface hydrologic connection banks and an ordinary high water mark to such a jurisdictional water. can be identified upstream of the break. * * * * * (iii) Riparian area. The term riparian A tributary, including wetlands, can be [FR Doc. 2014–07142 Filed 4–18–14; 8:45 am] area means an area bordering a water a natural, man-altered, or man-made BILLING CODE 6560–50–P

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