Vol. 80 Monday, No. 124 June 29, 2015

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. Clean Water Rule: Definition of ‘‘Waters of the United States’’; Final Rule

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DEPARTMENT OF DEFENSE requirements. Instead, it is a definitional 3. Case-Specific Significant Nexus rule that clarifies the scope of ‘‘waters Determinations Department of the Army, Corps of of the United States’’ consistent with the IV. Definition of ‘‘Waters of the United Engineers States’’ Clean Water Act (CWA), Supreme Court A. Summary of Rule precedent, and science. Programs B. Traditional Navigable Waters 33 CFR Part 328 established by the CWA, such as the C. Interstate Waters section 402 National Pollutant D. Territorial Seas ENVIRONMENTAL PROTECTION Discharge Elimination System (NPDES) E. Impoundments AGENCY permit program, the section 404 permit F. Tributaries program for discharge of dredged or fill G. Adjacent Waters 40 CFR Parts 110, 112, 116, 117, 122, material, and the section 311 oil spill H. Case-Specific ‘‘Waters of the United 230, 232, 300, 302, and 401 States’’ prevention and response programs, all I. Waters and Features That Are Not [EPA–HQ–OW–2011–0880; FRL–9927–20– rely on the definition of ‘‘waters of the ‘‘Waters of the United States’’ OW] United States.’’ Entities currently are, V. Economic Impacts and will continue to be, regulated under VI. Related Acts of Congress, Executive RIN 2040–AF30 these programs that protect ‘‘waters of Orders, and Agency Initiatives A. Executive Order 12866: Regulatory Clean Water Rule: Definition of the United States’’ from pollution and destruction. Planning and Review and Executive ‘‘Waters of the United States’’ Order 13563: Improving Regulation and State, tribal, and local governments Regulatory Review AGENCY: U.S. Army Corps of Engineers, have well-defined and longstanding B. Paperwork Reduction Act Department of the Army, Department of relationships with the Federal C. Regulatory Flexibility Act Defense; and Environmental Protection government in implementing CWA D. Unfunded Mandates Reform Act Agency (EPA). programs and these relationships are not E. Executive Order 13132: Federalism ACTION: Final rule. altered by the final rule. Forty-six states F. Executive Order 13175: Consultation and Coordination With Indian Tribal and the U.S. Virgin Islands have been SUMMARY: The Environmental Protection Governments authorized by EPA to administer the G. Executive Order 13045: Protection of Agency (EPA) and the U.S. Army Corps NPDES program under section 402, and of Engineers (Corps) are publishing a Children From Environmental Health two states have been authorized by the and Safety Risks final rule defining the scope of waters EPA to administer the section 404 H. Executive Order 13211: Actions protected under the Clean Water Act program. All states and forty tribes have Concerning Regulations That (CWA or the Act), in light of the statute, developed water quality standards Significantly Affect Energy Supply, science, Supreme Court decisions in under the CWA for waters within their Distribution, or Use U.S. v. Riverside Bayview Homes, Solid I. National Technology Transfer and boundaries. A federal advisory Advancement Act Waste Agency of Northern Cook County committee has recently been announced v. U.S. Army Corps of Engineers J. Executive Order 12898: Federal Actions to assist states in identifying the scope To Address Environmental Justice in (SWANCC), and Rapanos v. United of waters assumable under the section States (Rapanos), and the agencies’ Minority Populations and Low-Income 404 program. Populations experience and technical expertise. This The scope of jurisdiction in this rule K. Congressional Review Act final rule reflects consideration of the L. Environmental Documentation extensive public comments received on is narrower than that under the existing M. Judicial Review the proposed rule. The rule will ensure regulation. Fewer waters will be defined protection for the nation’s public health as ‘‘waters of the United States’’ under I. General Information and aquatic resources, and increase the rule than under the existing A. How can I get copies of this CWA program predictability and regulations, in part because the rule document and related information? consistency by clarifying the scope of puts important qualifiers on some existing categories such as tributaries. In 1. Docket. An official public docket ‘‘waters of the United States’’ protected for this action has been established under the Act. addition, the rule provides greater clarity regarding which waters are under Docket Id. No. EPA–HQ–OW– DATES: This rule is effective on August 2011–0880. The official public docket 28, 2015. In accordance with 40 CFR subject to CWA jurisdiction, reducing the instances in which permitting consists of the documents specifically part 23, this regulation shall be referenced in this action, any public considered issued for purposes of authorities, including the states and tribes with authorized section 402 and comments received, and other judicial review at 1 p.m. Eastern time on information related to this action. The July 13, 2015. 404 CWA permitting programs, would need to make jurisdictional official public docket also includes a FOR FURTHER INFORMATION CONTACT: Ms. determinations on a case-specific basis. Technical Support Document that Donna Downing, Office of Water (4502– provides additional legal and scientific T), Environmental Protection Agency, Table of Contents discussion for issues raised in this rule, 1200 Pennsylvania Avenue NW., I. General Information and the Response to Comments Washington, DC 20460; telephone A. How can I get copies of this document document. Although a part of the number 202–566–2428; email address: and related information? official docket, the public docket does [email protected] v. Ms. Stacey B. Under what legal authority is this rule not include Confidential Business Jensen, Regulatory Community of issued? Information or other information whose Practice (CECW–CO–R), U.S. Army II. Executive Summary disclosure is restricted by statute. The Corps of Engineers, 441 G Street NW., III. Significant Nexus Determinations official public docket is the collection of Washington, DC 20314; telephone A. The Significant Nexus Standard B. Science Report materials that is available for public number 202–761–5856; email address: viewing at the OW Docket, EPA West, _ _ C. Significant Nexus Conclusions USACE CWA [email protected]. 1. Scope of Significant Nexus Analysis Room 3334, 1301 Constitution Ave. SUPPLEMENTARY INFORMATION: This final 2. Categories of Waters Determined to Have NW., Washington, DC 20004. This rule does not establish any regulatory a Significant Nexus Docket Facility is open from 8:30 a.m.

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to 4:30 p.m., Monday through Friday, 403, 404, 407. The CWA is the nation’s NPDES permitting requirements, such excluding legal holidays. The OW single most important statute for as for agricultural stormwater discharges Docket telephone number is 202–566– protecting America’s clean water against and return flows from irrigated 2426. A reasonable fee will be charged pollution, degradation, and destruction. agriculture, or the status of water for copies. To provide that protection, the Supreme transfers. CWA section 402(l)(1); CWA 2. Electronic Access. You may access Court has consistently agreed that the section 402(l)(2); CWA section 502(14); this Federal Register document geographic scope of the CWA reaches 40 CFR 122.3(f); 40 CFR 122.2. electronically under the ‘‘Federal beyond waters that are navigable in fact. Finally, even where waters are Register’’ listings at http:// Peer-reviewed science and practical covered by the CWA, the agencies have www.regulations.gov. An electronic experience demonstrate that upstream adopted many streamlined regulatory version of the public docket is available waters, including headwaters and requirements to simplify and expedite through EPA’s electronic public docket wetlands, significantly affect the compliance through the use of measures and comment system, EPA Dockets. You chemical, physical, and biological such as general permits and may access EPA Dockets at http:// integrity of downstream waters by standardized mitigation measures. The www.regulations.gov to view public playing a crucial role in controlling agencies will continue to develop comments, access the index listing of sediment, filtering pollutants, reducing general permits and simplified the contents of the official public flooding, providing habitat for fish and procedures, particularly as they affect docket, and access those documents in other aquatic wildlife, and many other crossings of covered ephemeral and the public docket that are available vital chemical, physical, and biological intermittent tributaries jurisdictional electronically. For additional processes. under this rule to ensure that projects information about EPA’s public docket, This final rule interprets the CWA to that offer significant social benefits, visit the EPA Docket Center homepage cover those waters that require such as renewable energy development, at http://www.epa.gov/epahome/ protection in order to restore and can proceed with the necessary dockets.htm. Although not all docket maintain the chemical, physical, or environmental safeguards while materials may be available biological integrity of traditional minimizing permitting delays. electronically, you may still access any navigable waters, interstate waters, and The jurisdictional scope of the CWA of the publicly available docket the territorial seas. This interpretation is is ‘‘navigable waters,’’ defined in section materials through the Docket Facility. based not only on legal precedent and 502(7) of the statute as ‘‘waters of the the best available peer-reviewed United States, including the territorial B. Under what legal authority is this rule science, but also on the agencies’ seas.’’ The term ‘‘navigable waters’’ is issued? technical expertise and extensive used in a number of provisions of the The authority for this rule is the experience in implementing the CWA CWA, including the section 402 Federal Water Pollution Control Act, 33 over the past four decades. The rule will National Pollutant Discharge U.S.C. 1251, et seq., including sections clarify and simplify implementation of Elimination System (NPDES) permit 301, 304, 311, 401, 402, 404 and 501. the CWA consistent with its purposes program, the section 404 permit through clearer definitions and program, the section 311 oil spill II. Executive Summary increased use of bright-line boundaries prevention and response program,2 the In this final rule, the agencies clarify to establish waters that are jurisdictional water quality standards and total the scope of ‘‘waters of the United by rule and limit the need for case- maximum daily load programs (TMDL) States’’ that are protected under the specific analysis. The agencies under section 303, and the section 401 Clean Water Act (CWA), based upon the emphasize that, while the CWA state water quality certification process. text of the statute, Supreme Court establishes permitting requirements for However, while there is only one CWA decisions, the best available peer- covered waters to ensure protection of definition of ‘‘waters of the United reviewed science, public input, and the water quality, these requirements only States,’’ there may be other statutory agencies’ technical expertise and apply with respect to discharges of factors that define the reach of a experience in implementing the statute. pollutants to the covered water. In the particular CWA program or provision.3 This rule makes the process of absence of a discharge of a pollutant, the identifying waters 1 protected under the CWA does not impose permitting 2 While section 311 uses the phrase ‘‘navigable restrictions on the use of such water. waters of the United States,’’ EPA has interpreted CWA easier to understand, more it to have the same breadth as the phrase ‘‘navigable predictable, and consistent with the law Additionally, Congress has exempted waters’’ used elsewhere in section 311, and in other and peer-reviewed science, while certain discharges, and the rule does not sections of the CWA. See United States v. Texas protecting the streams and wetlands that affect any of the exemptions from CWA Pipe Line Co., 611 F.2d 345, 347 (10th Cir. 1979); section 404 permitting requirements United States v. Ashland Oil & Transp. Co., 504 form the foundation of our nation’s F.2d 1317, 1324–25 (6th Cir. 1974). In 2002, EPA water resources. provided by CWA section 404(f), revised its regulatory definition of ‘‘waters of the Congress enacted the CWA ‘‘to restore including those for normal farming, United States’’ in 40 CFR part 112 to ensure that and maintain the chemical, physical, ranching, and silviculture activities. the language of the rule was consistent with the regulatory language of other CWA programs. Oil and biological integrity of the Nation’s CWA section 404(f); 40 CFR 232.3; 33 CFR 323.4. This rule not only maintains Pollution Prevention & Response; Non- waters,’’ section 101(a), and to Transportation-Related Onshore & Offshore complement statutes that protect the current statutory exemptions, it expands Facilities, 67 FR 47042, July 17, 2002. A district navigability of waters, such as the regulatory exclusions from the court vacated the rule for failure to comply with the Administrative Procedure Act, and reinstated the Rivers and Harbors Act. 33 U.S.C. 401, definition of ‘‘waters of the United States’’ to make it clear that this rule prior regulatory language. American Petroleum Ins. v. Johnson, 541 F. Supp. 2d 165 (D. D.C. 2008). 1 The agencies use the term ‘‘water’’ and ‘‘waters’’ does not add any additional permitting However, EPA interprets ‘‘navigable waters of the in categorical reference to rivers, streams, ditches, requirements on agriculture. The rule United States’’ in CWA section 311(b), in the pre- wetlands, ponds, lakes, oxbows, and other types of also does not regulate shallow 2002 regulations, and in the 2002 rule to have the natural or man-made aquatic systems, identifiable subsurface connections nor any type of same meaning as ‘‘navigable waters’’ in CWA by the water contained in these aquatic systems or section 502(7). by their chemical, physical, and biological groundwater, erosional features, or land 3 For example, the CWA section 402 (33 U.S.C. indicators. The agencies use the terms ‘‘waters’’ and use, nor does it affect either the existing 1342) program regulates discharges of pollutants ‘‘water bodies’’ interchangeably in this preamble. statutory or regulatory exemptions from Continued

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Existing regulations (last codified in exercise of federal regulatory authority territorial seas. An important element of 1986) define ‘‘waters of the United under the CWA. Although the SWANCC the agencies’ interpretation of the CWA States’’ as traditional navigable waters, decision did not call into question is the significant nexus standard. This interstate waters, all other waters that earlier decisions upholding the CWA’s significant nexus standard was first could affect interstate or foreign coverage of wetlands or other waters informed by the ecological and commerce, impoundments of waters of ‘‘adjacent’’ to traditional navigable hydrological connections the Supreme the United States, tributaries, the waters, it created uncertainty with Court noted in Riverside Bayview, territorial seas, and adjacent wetlands. regard to the jurisdiction of other waters developed and established by the 33 CFR 328.3; 40 CFR 122.2.4 and wetlands that, in many instances, Supreme Court in SWANCC, and further However, the Supreme Court has may play an important role in protecting refined in Justice Kennedy’s opinion in issued three decisions that provide the integrity of the nation’s waters. The Rapanos. The agencies also utilized the critical context and guidance in majority opinion in SWANCC plurality standard in Rapanos by determining the appropriate scope of introduced the concept that it was a establishing boundaries on the scope of ‘‘waters of the United States’’ covered ‘‘significant nexus’’ that informed the ‘‘waters of the United States’’ and in by the CWA. In United States v. Court’s reading of CWA jurisdiction support of the exclusions from the Riverside Bayview Homes, 474 U.S. 121 over waters that are not navigable in definition of ‘‘waters of the United (1985) (Riverside), the Court, in a fact. States.’’ The analysis used by the unanimous opinion, deferred to the Five years later, in Rapanos v. United agencies has been supported by all nine Corps’ ecological judgment that adjacent States, 547 U.S. 715 (2006) (Rapanos), of the United States Courts of Appeals wetlands are ‘‘inseparably bound up’’ all Members of the Court agreed that the that have considered the issue. with the waters to which they are term ‘‘waters of the United States’’ The agencies assess the significance of adjacent, and upheld the inclusion of encompasses some waters that are not the nexus in terms of the CWA’s adjacent wetlands in the regulatory navigable in the traditional sense. In objective to ‘‘restore and maintain the definition of ‘‘waters of the United addition, Justice Kennedy’s opinion chemical, physical, and biological States.’’ Id. at 134. The Court observed indicated that the critical factor in integrity of the Nation’s waters.’’ When that the broad objective of the CWA to determining the CWA’s coverage is the effects are speculative or restore and maintain the integrity of the whether a water has a ‘‘significant insubstantial, the ‘‘significant nexus’’ Nation’s waters ‘‘incorporated a broad, nexus’’ to downstream traditional would not be present. The science systemic view of the goal of maintaining navigable waters such that the water is demonstrates that the protection of and improving water quality. . . . important to protecting the chemical, upstream waters is critical to Protection of aquatic ecosystems, physical, or biological integrity of the maintaining the integrity of the Congress recognized, demanded broad navigable water, referring back to the downstream waters. The upstream federal authority to control pollution, Court’s decision in SWANCC. Justice waters identified in the rule as for ‘[w]ater moves in hydrologic cycles Kennedy’s concurrence in Rapanos jurisdictional function as integral parts and it is essential that discharge of stated that to constitute a ‘‘water of the of the aquatic environment, and if these pollutants be controlled at the source.’ United States’’ covered by the CWA, ‘‘a waters are polluted or destroyed, there In keeping with these views, Congress water or wetland must possess a is a significant effect downstream. In response to the Supreme Court chose to define the waters covered by ‘significant nexus’ to waters that are or were navigable in fact or that could opinions, the agencies issued guidance the Act broadly.’’ Id. at 132–33 (citing reasonably be so made.’’ Id. at 759 in 2003 (post-SWANCC) and 2008 (post- Senate Report No. 92–414, p. 77 (1972)). (Kennedy, J., concurring in the Rapanos). However, these two guidance In Solid Waste Agency of Northern judgment) (citing SWANCC, 531 U.S. at documents did not provide the public or Cook County v. U.S. Army Corps of 167, 172). Justice Kennedy concluded agency staff with the kind of Engineers, 531 U.S. 159 (2001) that wetlands possess the requisite information needed to ensure timely, (SWANCC), the Supreme Court held significant nexus if the wetlands ‘‘either consistent, and predictable that the use of ‘‘isolated’’ non-navigable alone or in combination with similarly jurisdictional determinations. Many intrastate ponds by migratory birds was situated [wet]lands in the region, waters are currently subject to case- not by itself a sufficient basis for the significantly affect the chemical, specific jurisdictional analysis to physical, and biological integrity of determine whether a ‘‘significant from ‘‘point sources’’ to ‘‘waters of the United States,’’ whether these pollutants reach other covered waters more readily nexus’’ exists, and this time and jurisdictional waters directly or indirectly. The understood as ‘navigable.’’’ 547 U.S. at resource intensive process can result in plurality opinion in Rapanos noted that ‘‘there is 780. inconsistent interpretation of CWA no reason to suppose that our construction today In this rule, the agencies interpret the jurisdiction and perpetuate ambiguity significantly affects the enforcement of § 1342. . . . The Act does not forbid the ‘addition of any scope of the ‘‘waters of the United over where the CWA applies. As a result pollutant directly to navigable waters from any States’’ for the CWA using the goals, of the ambiguity that exists under point source,’ but rather the ‘addition of any objectives, and policies of the statute, current regulations and practice pollutant to navigable waters.’ ’’ 547 U.S. at 743. the Supreme Court case law, the following these recent decisions, almost 4 There are numerous regulations that utilize the relevant and available science, and the all waters and wetlands across the definition of ‘‘waters of the United States’’ and each is codified consistent with its place in a particular agencies’ technical expertise and country theoretically could be subject to section of the Code of Federal Regulations. For experience as support. In particular, the a case-specific jurisdictional simplicity, throughout the preamble the agencies agencies looked to the objective of the determination. refer to the rule as organized into (a), (b), (c) CWA ‘‘to restore and maintain the Members of Congress, developers, provisions and intend the reference to encompass the appropriate cites in each section of the Code of chemical, physical, and biological farmers, state and local governments, Federal Regulations. For example, a reference to integrity of the Nation’s waters,’’ and energy companies, and many others (a)(1) is a reference to all instances in the CFR the scientific consensus on the strength requested new regulations to make the identified as subject to this rule that state ‘‘All of the effects of upstream tributaries and process of identifying waters protected waters which are currently used, were used in the past, or may be susceptible to use in interstate or adjacent waters, including wetlands, on under the CWA clearer, simpler, and foreign commerce, including all waters which are downstream traditional navigable faster. Chief Justice Roberts’ subject to the ebb and flow of the tide.’’ waters, interstate waters, and the concurrence in Rapanos underscores

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the importance of this rulemaking (hereafter the Science Report) navigable waters, and it is the agencies’ effort.5 In this final rule, the agencies are synthesizes the peer-reviewed science. task to determine where along that responding to those requests from across The Science Report provides much of gradient to draw lines of jurisdiction the country to make the process of the technical basis for this rule. The under the CWA. In making this identifying waters protected under the Science Report is based on a review of determination, the agencies must rely, CWA easier to understand, more more than 1,200 peer-reviewed not only on the science, but also on predictable, and more consistent with publications. EPA’s Science Advisory their technical expertise and practical the law and peer-reviewed science. Board (SAB) conducted a experience in implementing the CWA The agencies proposed a rule comprehensive technical review of the during a period of over 40 years. In clarifying the scope of waters of the Science Report and reviewed the addition, the agencies are guided, in United States April 21, 2014 (79 FR adequacy of the scientific and technical part, by the compelling need for clearer, 22188), and solicited comments for over basis of the proposed rule. The Science more consistent, and easily 200 days. This final rule reflects the Report and the SAB review confirmed implementable standards to govern over 1 million public comments on the that: administration of the Act, including proposal, the substantial majority of • Waters are connected in myriad brighter line boundaries where feasible which supported the proposed rule, as ways, including physical connections and appropriate. well as input provided through the and the hydrologic cycle; however, Major Rule Provisions agencies’ extensive public outreach connections occur on a continuum or effort, which included over 400 gradient from highly connected to In this final rule, the agencies define meetings nationwide with states, small highly isolated. ‘‘waters of the United States’’ to include businesses, farmers, academics, miners, • These variations in the degree of eight categories of jurisdictional waters. energy companies, counties, connectivity are a critical consideration The rule maintains existing exclusions municipalities, environmental to the ecological integrity and for certain categories of waters, and organizations, other federal agencies, sustainability of downstream waters. adds additional categorical exclusions and many others. The agencies sought • The critical contribution of that are regularly applied in practice. comment on a number of approaches to upstream waters to the chemical, The rule reflects the agencies’ goal of specific jurisdictional questions, and physical, and biological integrity of providing simpler, clearer, and more many of these commenters and downstream waters results from the consistent approaches for identifying stakeholders urged EPA to improve accumulative contribution of similar the geographic scope of the CWA. The upon the April 2014 proposal, by waters in the same watershed and in the rule recognizes jurisdiction for three providing more bright line boundaries context of their functions considered basic categories: Waters that are and simplifying definitions that identify over time. jurisdictional in all instances, waters that are excluded from jurisdiction, and waters that are protected under the The Science Report and the SAB review a narrow category of waters subject to CWA, all for the purpose of minimizing also confirmed that: case-specific analysis to determine delays and costs, making protection of • Tributary streams, including clean water more effective, and whether they are jurisdictional. perennial, intermittent, and ephemeral Decisions about waters in each of improving predictability and streams, are chemically, physically, and these categories are based on the law, consistency for landowners and biologically connected to downstream peer-reviewed science, and the agencies’ regulated entities. waters, and influence the integrity of technical expertise, and were informed The agencies’ interpretation of the downstream waters. by public comments. This rule replaces CWA’s scope in this final rule is guided • Wetlands and open waters in existing procedures that often depend by the best available peer-reviewed floodplains and riparian areas are on individual, time-consuming, and science—particularly as that science chemically, physically, and biologically inconsistent analyses of the relationship informs the determinations as to which connected with downstream waters and between a particular stream, wetland, waters have a ‘‘significant nexus’’ with influence the ecological integrity of lake, or other water with downstream traditional navigable waters, interstate such waters. • waters. The agencies have greatly waters, or the territorial seas. Non-floodplain wetlands and open reduced the extent of waters subject to The relevant science on the waters provide many functions that this individual review by carefully relationship and downstream effects of benefit downstream water quality and incorporating the scientific literature waters has advanced considerably in ecological integrity, but their effects on and by utilizing agency expertise and recent years. A comprehensive report downstream waters are difficult to experience to characterize the nature prepared by the EPA’s Office of assess based solely on the available and strength of the chemical, physical, Research and Development entitled science. and biological connections between ‘‘Connectivity of Streams and Wetlands Although these conclusions play a upstream and downstream waters. The to Downstream Waters: A Review and critical role in informing the agencies’ result of applying this scientific analysis Synthesis of the Scientific Evidence’’ 6 interpretation of the CWA’s scope, the is that the agencies can more effectively agencies’ interpretive task in this rule— focus the rule on identifying waters that 5 Chief Justice Roberts’ concurrence in Rapanos determining which waters have a are clearly covered by the CWA and emphasized that ‘‘[a]gencies delegated rulemaking ‘‘significant nexus’’—requires scientific authority under a statute such as the Clean Water those that are clearly not covered, Act are afforded generous leeway by the courts in and policy judgment, as well as legal making the rule easier to understand, interpreting the statute they are entrusted to interpretation. The science consistent, and environmentally more administer.’’ Id. at 758. Chief Justice Roberts made demonstrates that waters fall along a protective. clear that, if the agencies had undertaken such a gradient of chemical, physical, and rulemaking, ‘‘the Corps and the EPA would have The jurisdictional categories reflect enjoyed plenty of room to operate in developing biological connection to traditional the current state of the best available some notion of an outer bound to the reach of their science, and are based upon the law and authority.’’ Id. (Emphasis in original.) Scientific Evidence (Final Report), EPA/600/R–14/ 6 U.S. Environmental Protection Agency, 475F, (Washington, DC: U.S. Environmental Supreme Court decisions. The agencies Connectivity of Streams and Wetlands to Protection Agency, (2015)). http://www.epa.gov/ will continue a transparent review of Downstream Waters: A Review and Synthesis of the ncea. the science, and learn from on-going

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experience and expertise as the agencies important role in the transport of water, established normal farming, silviculture, implement the rule. If evolving science sediments, organic matter, nutrients, and ranching activities as those terms and the agencies’ experience lead to a and organisms to downstream waters. are used in Section 404(f) of the CWA. need for action to alter the jurisdictional The physical indicators of bed and The final rule establishes a definition categories, any such action will be banks and ordinary high water mark of ‘‘neighboring’’ for purposes of conducted as part of a rule-making demonstrate that there is sufficient determining adjacency. In the rule, the process. volume, frequency, and flow in such agencies identify three circumstances The first three types of jurisdictional tributaries to a traditional navigable under which waters would be waters, traditional navigable waters, water, interstate water, or the territorial ‘‘neighboring’’ and therefore ‘‘waters of interstate waters, and the territorial seas, seas to establish a significant nexus. the United States’’: are jurisdictional by rule in all cases. ‘‘Tributaries,’’ as defined, are (1) Waters located in whole or in part The fourth type of water, jurisdictional by rule. within 100 feet of the ordinary high impoundments of jurisdictional waters, The rule only covers as tributaries water mark of a traditional navigable is also jurisdictional by rule in all cases. those waters that science tells us water, interstate water, the territorial The next two types of waters, provide chemical, physical, or seas, an impoundment of a ‘‘tributaries’’ and ‘‘adjacent’’ waters, are biological functions to downstream jurisdictional water, or a tributary, as jurisdictional by rule, as defined, waters and that meet the significant defined in the rule. because the science confirms that they nexus standard. The agencies identify (2) Waters located in whole or in part have a significant nexus to traditional these functions in the definition of in the 100-year floodplain and that are navigable waters, interstate waters, or ‘‘significant nexus’’ at paragraph (c)(5). within 1,500 feet of the ordinary high territorial seas. For waters that are Features not meeting this legal and water mark of a traditional navigable jurisdictional by rule, no additional scientific test are not jurisdictional water, interstate water, the territorial analysis is required. under this rule. The rule continues the seas, an impoundment, or a tributary, as The final two types of jurisdictional current policy of regulating ditches that defined in the rule (‘‘floodplain waters are those waters found after a are constructed in tributaries or are waters’’). case-specific analysis to have a relocated tributaries or, in certain (3) Waters located in whole or in part significant nexus to traditional circumstances drain wetlands, or that within 1,500 feet of the high tide line of navigable waters, interstate waters, or science clearly demonstrates are a traditional navigable water or the the territorial seas, either alone or in functioning as a tributary. These territorial seas and waters located combination with similarly situated jurisdictional waters affect the chemical, within 1,500 feet of the ordinary high waters in the region. Justice Kennedy physical, and biological integrity of water mark of the Great Lakes. acknowledged the agencies could downstream waters. The rule further The agencies emphasize that the rule establish more specific regulations or reduces existing confusion and has defined as ‘‘adjacent waters’’ those establish a significant nexus on a case- inconsistency regarding the regulation waters that currently available science by-case basis, Rapanos at 782, and for of ditches by explicitly excluding demonstrates possess the requisite these waters the agencies will continue certain categories of ditches, such as connection to downstream waters and to assess significant nexus on a case- ditches that flow only after function as a system to protect the specific basis. precipitation. Further, the rule chemical, physical, or biological The major elements of the final rule explicitly excludes from the definition integrity of those waters. The agencies are briefly summarized here. of ‘‘waters of the United States’’ also emphasize that the rule does not erosional features, including gullies, cover ‘‘adjacent waters’’ that are Traditional Navigable Waters, Interstate rills, and ephemeral features such as otherwise excluded. Further, the Waters, Territorial Seas, and ephemeral streams that do not have a agencies recognize the establishment of Impoundments of Jurisdictional Waters bed and banks and ordinary high water bright line boundaries in the rule for Consistent with existing regulations mark. adjacency does not in any way restrict and the April 2014 proposed rule, the states from considering state specific final rule includes traditional navigable Adjacent Waters information and concerns, as well as waters, interstate waters, territorial seas, The agencies determined that emerging science to evaluate the need to and impoundments of jurisdictional ‘‘adjacent waters,’’ as defined in the more broadly protect their waters under waters in the definition of ‘‘waters of the rule, have a significant nexus to state law. The CWA establishes both United States.’’ These waters are traditional navigable waters, interstate national and state roles to ensure that jurisdictional by rule. waters, and the territorial seas based states specific circumstances are upon their hydrological and ecological properly considered to complement and Tributaries connections to, and interactions with, reinforce actions taken at the national Previous definitions of ‘‘waters of the those waters. Under this final rule, level. United States’’ regulated all tributaries ‘‘adjacent’’ means bordering, ‘‘Adjacent’’ waters as defined are without qualification. This final rule contiguous, or neighboring, including jurisdictional by rule. The agencies more precisely defines ‘‘tributaries’’ as waters separated from other ‘‘waters of recognize that there are individual waters that are characterized by the the United States’’ by constructed dikes waters outside of the ‘‘neighboring’’ presence of physical indicators of or barriers, natural river berms, beach boundaries stated above where the flow—bed and banks and ordinary high dunes and the like. Further, waters that science may demonstrate through a water mark—and that contribute flow connect segments of, or are at the head case-specific analysis that there exists a directly or indirectly to a traditional of, a stream or river are ‘‘adjacent’’ to significant nexus to a downstream navigable water, an interstate water, or that stream or river. ‘‘Adjacent waters’’ traditional navigable water, interstate the territorial seas. The rule concludes include wetlands, ponds, lakes, oxbows, water, or the territorial seas. However, that such tributaries are ‘‘waters of the impoundments, and similar water these waters are not determined United States.’’ The great majority of features. However, it is important to jurisdictional by rule and will be tributaries as defined by the rule are note that ‘‘adjacent waters’’ do not evaluated through a case-specific headwater streams that play an include waters that are subject to analysis. The strength of the science and

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the significance of the nexus will be defined as ‘‘adjacent’’ should be from the definition of ‘‘waters of the established on a case-specific basis as jurisdictional as a category under the United States’’ definition since 1992 described below. CWA, but the agencies’ experience and and 1979 respectively, and continue to expertise indicate that there are many be excluded. Ministerial changes are Case-Specific Significant Nexus waters within the 100-year floodplain of made for purposes of clarity, but these The rule identifies particular waters a traditional navigable water, interstate two exclusions remain substantively that are not jurisdictional by rule but are water, or the territorial seas or out to and operationally unchanged. The subject to case-specific analysis to 4,000 feet where the science agencies add exclusions for waters and determine if a significant nexus exists demonstrates that they have a features previously identified as and the water is a ‘‘water of the United significant effect on downstream waters. generally exempt (e.g., exclusion for States.’’ This category of case-specific In circumstances where waters within certain ditches that are not located in or waters is based upon available science the 100-year floodplain of a traditional drain wetlands) in preamble language and the law, and in response to public navigable water, interstate water, or the from Federal Register documents by the comments that encouraged the agencies territorial seas or within 4,000 feet of Corps on November 13, 1986, and by to ensure more consistent the high tide line or ordinary high water EPA on June 6, 1988. This is the first determinations and reduce the mark are subject to a case-specific time these exclusions have been complexity of conducting jurisdictional significant nexus analysis and such established by rule. The agencies for the determinations. Consistent with the waters may be evaluated as ‘‘similarly first time also establish by rule that significant nexus standard articulated in situated,’’ it must be first demonstrated certain ditches are excluded from the Supreme Court opinions, waters are that these waters function alike and are jurisdiction, including ditches with ‘‘waters of the United States’’ if they sufficiently close to function together in ephemeral flow that are not a relocated significantly affect the chemical, affecting downstream waters. The tributary or excavated in a tributary, and physical, or biological integrity of significant nexus analysis must then be ditches with intermittent flow that are traditional navigable waters, interstate conducted based on consideration of the not a relocated tributary, or excavated in waters, or the territorial seas. This functions provided by those waters in a tributary, or drain wetlands. The determination will most typically be combination in the point of entry agencies add exclusions for made on a water individually, but can, watershed. A ‘‘similarly situated’’ groundwater and erosional features, as when warranted, be made in analysis is conducted where it is well as exclusions for some waters that combination with other waters where determined that there is a likelihood were identified in public comments as waters function together. that there are waters that function possibly being found jurisdictional In this final rule, the agencies have together to affect downstream water under proposed rule language where identified by rule, five specific types of integrity. To provide greater clarity and this was never the agencies’ intent, such waters in specific regions that science transparency in determining what as stormwater control features demonstrates should be subject to a functions will be considered in constructed to convey, treat, or store significant nexus analysis and are determining what constitutes a stormwater, and cooling ponds that are considered similarly situated by rule significant nexus, the final rule lists created in dry land. These exclusions because they function alike and are specific functions that the agencies will reflect the agencies’ current practice, sufficiently close to function together in consider. and their inclusion in the rule as affecting downstream waters. These five In establishing both the 100-year specifically excluded furthers the types of waters are Prairie potholes, floodplain and the 4,000 foot bright line agencies’ goal of providing greater Carolina and Delmarva bays, pocosins, boundaries for these case-specific clarity over what waters are and are not western vernal pools in California, and significant nexus determinations in the protected under the CWA. Texas coastal prairie wetlands. rule, the agencies are carefully applying Consistent with Justice Kennedy’s the available science. Consistent with Role of States and Tribes Under the opinion in Rapanos, the agencies the CWA, the agencies will work with Clean Water Act determined that such waters should be the states in connection with the States and tribes play a vital role in analyzed ‘‘in combination’’ (as a group, prevention, reduction and elimination the implementation and enforcement of rather than individually) in the of pollution from state waters. The the CWA. Section 101(b) of the CWA watershed that drains to the nearest agencies will work with states to more states that it is Congressional policy to traditional navigable water, interstate closely evaluate state-specific preserve the primary responsibilities water, or the territorial seas when circumstances that may be present and rights of states to prevent, reduce, making a case-specific analysis of within their borders and, as appropriate, and eliminate pollution, to plan the whether these waters have a significant encourage states to develop rules that development and use of land and water nexus to traditional navigable waters, reflect their circumstances and emerging resources, and to consult with the interstate waters, or territorial seas. science to ensure consistent and Administrator with respect to the The final rule also provides that effective protection for waters in the exercise of the Administrator’s authority waters within the 100-year floodplain of states. As is the case today, nothing in under the CWA. a traditional navigable water, interstate this rule restricts the ability of states to Of particular importance, states and water, or the territorial seas and waters more broadly protect state waters. tribes may be authorized by the EPA to within 4,000 feet of the high tide line or administer the permitting programs of the ordinary high water mark of a Exclusions CWA sections 402 and 404. Forty-six traditional navigable water, interstate All existing exclusions from the states and the U.S. Virgin Islands are water, the territorial seas, definition of ‘‘waters of the United authorized to administer the NPDES impoundments, or covered tributary are States’’ are retained, and several program under section 402, while two subject to case-specific significant nexus exclusions reflecting longstanding states administer the section 404 determinations, unless the water is agency practice are added to the program. The CWA identifies the waters excluded under paragraph (b) of the regulation for the first time. over which states may assume section rule. The science available today does Prior converted cropland and waste 404 permitting jurisdiction. See CWA not establish that waters beyond those treatment systems have been excluded section 404(g)(1). The scope of waters

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that are subject to state and tribal Overview of the Preamble that the agencies conclude are permitting is a separate inquiry and The remainder of this preamble is ‘‘similarly situated’’ and therefore must must be based on the statutory language organized as follows. Section III be analyzed ‘‘in combination’’ in the in CWA section 404. States administer (Significant Nexus Standard) provides watershed that drains to the nearest approved CWA section 404 programs for additional background on the rule, traditional navigable water, interstate ‘‘waters of the United States’’ within the including a discussion of Supreme water, or the territorial seas when state, except those waters remaining Court precedent, the science making a case-specific significant nexus under Corps jurisdiction pursuant to underpinning the rule, and the agencies’ analysis; and (2) waters within the 100- CWA section 404(g)(1) as identified in a overall interpretive approach to year floodplain of a traditional navigable water, interstate water, or the Memorandum of Agreement between applying the significant nexus standard. territorial seas, or waters within 4,000 the state and the Corps. 40 CFR 233.14; Section IV (Definition of Waters of the feet of the high tide line or ordinary 40 CFR 233.70(c)(2); 40 CFR United States) explains the provisions of high water mark of traditional navigable 233.71(d)(2). EPA has initiated a the final rule, including subsections on waters, interstate waters, the territorial separate process to address how the each of the major elements of the rule. seas, impoundments or covered EPA can best clarify assumable waters Section V summarizes the economic tributaries. The rule establishes a for dredged and fill material permit analysis of the rule and Section VI definition of significant nexus, based on programs pursuant to the Clean Water addresses Related Acts of Congress, Supreme Court opinions and the Act section 404(g)(1). 80 FR 13539 (Mar. Executive Orders and Agency science, to use when making these case- 16, 2015). Additional CWA programs Initiatives. that utilize the definition of ‘‘waters of specific determinations. the United States’’ and are of III. Significant Nexus Standard Significant nexus is not a purely scientific determination. The opinions importance to the states and tribes With this rule, the agencies interpret of the Supreme Court have noted that as include the section 311 oil spill the scope of the ‘‘waters of the United the agencies charged with interpreting prevention and response program, the States’’ for the CWA in light of the goals, the statute, EPA and the Corps must water quality standards and total objectives, and policies of the statute, maximum daily load (TMDL) programs develop the outer bounds of the scope the Supreme Court case law, the of the CWA, while science does not under section 303, and the section 401 relevant and available science, and the state water quality certification process. provide bright line boundaries with agencies’ technical expertise and respect to where ‘‘water ends’’ for States and federally-recognized tribes, experience. The key to the agencies’ purposes of the CWA. Therefore, the consistent with the CWA, retain full interpretation of the CWA is the agencies’ interpretation of the CWA is authority to implement their own significant nexus standard, as informed by the Science Report and the programs to more broadly and more established and refined in Supreme review and comments of the SAB, but fully protect the waters in their Court opinions: Waters are ‘‘waters of not dictated by them. With this context, jurisdiction. Under section 510 of the the United States’’ if they, either alone this section addresses, first, the CWA, unless expressly stated, nothing or in combination with similarly Supreme Court case law and the in the CWA precludes or denies the situated waters in the region, significant nexus standard, second, the right of any state to establish more significantly affect the chemical, relevant scientific conclusions reached protective standards or limits than the physical, or biological integrity of by analysis of existing scientific Federal CWA. Congress has also traditional navigable waters, interstate literature, and third, the agencies’ provided roles for eligible Indian tribes waters, or the territorial seas. The significant nexus determinations to administer CWA programs over their agencies interpret specific aspects of the underpinning the rule. Section IV of the reservations and expressed a preference significant nexus standard in light of the preamble addresses in more detail the for tribal regulation of surface water science, the law, and the agencies’ precise definitions of the covered waters quality on Indian reservations to ensure technical expertise: The scope of the promulgated by the agencies to provide compliance with the goals of the CWA. region in which to evaluate waters when the bright line boundaries identifying See 33 U.S.C. 1377; 56 FR 64876, making a significant nexus ‘‘waters of the United States.’’ 64878–79 (Dec. 12, 1991)). Tribes also determination; the waters to evaluate in have inherent sovereign authority to combination with each other; and the A. The Significant Nexus Standard establish more protective standards or functions provided by waters and Congress enacted the CWA ‘‘to restore limits than the Federal CWA. Where strength of those functions, and when and maintain the chemical, physical, appropriate, references to states in this such waters significantly affect the and biological integrity of the Nation’s document may also include eligible chemical, physical, or biological waters.’’ Section 101(a). The agencies’ tribes. Many states and tribes, for integrity of the downstream traditional longstanding regulations define ‘‘waters example, regulate groundwater, and navigable waters, interstate waters, or of the United States’’ for purposes of the some others protect wetlands that are the territorial seas. Clean Water Act, and the Supreme vital to their environment and economy In the rule, the agencies determine Court has addressed the scope of but outside the jurisdiction of the CWA. that tributaries, as defined (‘‘covered ‘‘waters of the United States’’ protected Nothing in this rule limits or impedes tributaries’’), and ‘‘adjacent waters’’, as by the CWA in three cases. The any existing or future state or tribal defined (‘‘covered adjacent waters’’), significant nexus standard evolved efforts to further protect their waters. In have a significant nexus to downstream through those cases. fact, providing greater clarity regarding traditional navigable waters, interstate In United States v. Riverside Bayview what waters are subject to CWA waters, and the territorial seas and Homes, 474 U.S. 121 (1985) (Riverside), jurisdiction will reduce the need for therefore are ‘‘waters of the United which involved wetlands adjacent to a permitting authorities, including the States.’’ In the rule, the agencies also traditional navigable water in Michigan, states and tribes with authorized section establish that defined sets of additional the Court, in a unanimous opinion, 402 and 404 CWA permitting programs, waters may be determined to have a deferred to the Corps’ ecological to make jurisdictional determinations significant nexus on a case-specific judgment that adjacent wetlands are on a case-specific basis. basis: (1) Five specific types of waters ‘‘inseparably bound up’’ with the waters

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to which they are adjacent, and upheld ‘navigable waters’ that informed our be more than ‘‘speculative or the inclusion of adjacent wetlands in reading of the CWA’’ in that case. Id. at insubstantial.’’ Id. at 780. the regulatory definition of ‘‘waters of 167. SWANCC did not invalidate any While Justice Kennedy’s opinion the United States.’’ Id. at 134. The Court parts of the regulatory definition of focused on adjacent wetlands in light of observed that the broad objective of the ‘‘waters of the United States.’’ the facts of the cases before him, his CWA to restore and maintain the Five years after SWANCC, the Court opinion is clear that a significant nexus integrity of the Nation’s waters again addressed the term ‘‘waters of the is the basis for jurisdiction to protect ‘‘incorporated a broad, systemic view of United States’’ in Rapanos v. United non-navigable waters and wetlands the goal of maintaining and improving States, 547 U.S. 715 (2006) (Rapanos). under the CWA (id. at 759), and there water quality . . .. Protection of aquatic Rapanos involved two consolidated is no indication in his opinion that the ecosystems, Congress recognized, cases in which the CWA had been analytical framework his opinion demanded broad federal authority to applied to wetlands adjacent to non- provides for determining significant control pollution, for ‘[w]ater moves in navigable tributaries of traditional nexus for adjacent wetlands is limited to hydrologic cycles and it is essential that navigable waters. All Members of the adjacent wetlands. In addition, the four discharge of pollutants be controlled at Court agreed that the term ‘‘waters of dissenting Justices in Rapanos, who the source.’ In keeping with these views, the United States’’ encompasses some would have affirmed the court of Congress chose to define the waters waters that are not navigable in the appeals’ application of the agencies’ covered by the Act broadly.’’ Id. at 132– traditional sense. A four-Justice regulation, also concluded that the term 33 (citing Senate Report No. 92–414). plurality in Rapanos interpreted the ‘‘waters of the United States’’ The Court also recognized that ‘‘[i]n term ‘‘waters of the United States’’ as encompasses, inter alia, all tributaries determining the limits of its power to covering ‘‘relatively permanent, and wetlands that satisfy ‘‘either the regulate discharges under the Act, the standing or continuously flowing bodies plurality’s [standard] or Justice Corps must necessarily choose some of water . . .,’’ id. at 739, that are Kennedy’s.’’ Id. at 810 & n.14 (Stevens, point at which water ends and land connected to traditional navigable J., dissenting). Neither the plurality nor begins. Our common experience tells us waters, id. at 742, as well as wetlands the Kennedy opinion invalidated any of that this is often no easy task: The with a ‘‘continuous surface connection the current regulatory provisions transition from water to solid ground is . . .’’ to such water bodies, id. (Scalia, defining ‘‘waters of the United States.’’ Chief Justice Roberts’ concurrence in not necessarily or even typically an J., plurality opinion). The Rapanos Rapanos emphasized that ‘‘[a]gencies abrupt one. Rather, between open plurality noted that its reference to delegated rulemaking authority under a waters and dry land may lie shallows, ‘‘relatively permanent’’ waters did ‘‘not statute such as the Clean Water Act are marshes, mudflats, swamps, bogs—in necessarily exclude streams, rivers, or afforded generous leeway by the courts short, a huge array of areas that are not lakes that might dry up in extraordinary in interpreting the statute they are wholly aquatic but nevertheless fall far circumstances, such as drought,’’ or entrusted to administer.’’ Id. at 758. short of being dry land. Where on this ‘‘seasonal rivers, which contain Chief Justice Roberts made clear that, if continuum to find the limit of ‘waters’ continuous flow during some months of the agencies had undertaken such a is far from obvious.’’ Id. The Court then the year but no flow during dry months. rulemaking, ‘‘the Corps and the EPA deferred to the agencies’ interpretation: . . .’’ Id. at 732 n.5 (emphasis in would have enjoyed plenty of room to ‘‘In view of the breadth of federal original). operate in developing some notion of an regulatory authority contemplated by Justice Kennedy concurred that the outer bound to the reach of their the Act itself and the inherent cases should be remanded for further authority.’’ Id. (Emphasis in original.) difficulties of defining precise bounds to decision making, and stated that ‘‘to The agencies utilize the significant regulable waters, the Corps’ ecological constitute ‘navigable waters’ under the nexus standard, as articulated by Justice judgment about the relationship Act, a water or wetland must possess a Kennedy’s opinion and informed by the between waters and their adjacent ‘significant nexus’ to waters that are or unanimous opinion in Riverside wetlands provides an adequate basis for were navigable in fact or that could Bayview and the plurality opinion in a legal judgment that adjacent wetlands reasonably be so made.’’ Id. at 759 Rapanos which all recognize that the may be defined as waters under the (citing SWANCC, 531 U.S. at 167, 172). Act and the agencies must identify the Act.’’ Id. at 134. Justice Kennedy concluded that ‘‘The scope of CWA jurisdiction ‘‘on this The issue of CWA jurisdiction over required nexus must be assessed in continuum to find the limit of ‘waters,’ ’’ ‘‘waters of the United States’’ was terms of the statute’s goals and Riverside Bayview at 132, to interpret addressed again by the Supreme Court purposes. Congress enacted the law to the scope of the statutory term ‘‘waters in Solid Waste Agency of Northern Cook ‘restore and maintain the chemical, of the United States.’’ While a County v. U.S. Army Corps of Engineers, physical, and biological integrity of the significant nexus determination is 531 U.S. 159 (2001) (SWANCC). In Nation’s waters,’ 33 U.S.C. 1251(a), and primarily weighted in the scientific SWANCC, the Court (in a 5–4 opinion) it pursued that objective by restricting evidence and criteria, the agencies also held that the use of ‘‘isolated’’ non- dumping and filling in ‘navigable consider the statutory language, the navigable intrastate ponds by migratory waters,’ §§ 1311(a), 1362(12).’’ Id. at statute’s goals, objectives and policies, birds was not by itself a sufficient basis 779. He concluded that wetlands the case law, and the agencies’ technical for the exercise of federal regulatory possess the requisite significant nexus if expertise and experience when authority under the CWA. The the wetlands ‘‘either alone or in interpreting the terms of the CWA. SWANCC Court noted that in Riverside combination with similarly situated it had ‘‘found that Congress’ concern for [wet]lands in the region, significantly B. Science Report the protection of water quality and affect the chemical, physical, and EPA’s Office of Research and aquatic ecosystems indicated its intent biological integrity of other covered Development prepared the Science to regulate wetlands ‘inseparably bound waters more readily understood as Report, a peer-reviewed compilation up’ with the ‘waters’ of the United ‘navigable.’ ’’ 547 U.S. at 780. Justice and analysis of published peer-reviewed States’’ and that ‘‘[i]t was the significant Kennedy’s opinion notes that such a scientific literature summarizing the nexus between the wetlands and relationship with navigable waters must current scientific understanding of the

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connectivity of and mechanisms by including academia, a federal mechanisms and is determined by the which streams and wetlands, singly or government agency, non-profit characteristics of both the physical in combination, affect the chemical, organizations, and consulting firms. The landscape and the biota of the specific physical, and biological integrity of chair of the panel was a member of the system. Connectivity for purposes of downstream waters. The final Science chartered SAB. interpreting the scope of ‘‘waters of the Report is available in the docket and at The SAB process is open and United States’’ under the CWA serves to http://cfpub.epa.gov/ncea/cfm/ transparent, consistent with the Federal demonstrate the ‘‘nexus’’ between recordisplay.cfm?deid=296414. Advisory Committee Act, 5 U.S.C., App upstream water bodies and the The process for developing the 2, and agency policies regarding Federal downstream traditional navigable water, Science Report followed standard advisory committees. Consequently, the interstate water, or the territorial sea. information quality guidelines for EPA. SAB has an approved charter, which The scientific literature does not use the In September 2013, EPA released a draft must be renewed biennially, announces term ‘‘significant’’ as it is defined in a of the Science Report for an its meetings in the Federal Register, and independent SAB review and invited provides opportunities for public legal context, but it does provide submissions of public comments for comment on issues before the Board. information on the strength of the consideration by the SAB panel. In The SAB staff announced via the effects on the chemical, physical, and October 2014, after several public Federal Register that they sought public biological functioning of the meetings and hearings, the SAB nominations of technical experts to downstream water bodies from the completed its peer review of the draft serve on the expert panel: SAB Panel for connections among covered tributaries, Science Report. The SAB was highly the Review of the EPA Water Body covered adjacent waters, and case- supportive of the draft Science Report’s Connectivity Report (via a similar specific waters and those downstream conclusions regarding streams, riparian process the public also is invited to waters. The scientific literature also and floodplain wetlands, and open nominate chartered SAB members). 78 does not use the terms traditional waters, and recommended strengthening FR 15012 (Mar. 8, 2013). The SAB staff navigable waters, interstate waters, or the conclusion regarding non-floodplain then invited the public to comment on the territorial seas. However, evidence waters to include a more definitive the list of candidates for the panel. Once of strong chemical, physical, and statement that reflects how numerous the panel was selected, the SAB staff biological connections to larger rivers, functions of such waters sustain the posted a memo on its Web site estuaries, and lakes applies to that integrity of downstream waters.7 The addressing the formation of the panel subset of rivers, estuaries, and lakes that final peer review report is available on and the set of determinations that were are traditional navigable waters, the SAB Web site, as well as in the necessary for its formation (e.g., no interstate waters, or the territorial seas. docket for this rulemaking. EPA revised conflicts of interest). In the public the draft Science Report based on notice of the first public meetings The Science Report presents evidence comments from the public and interested members of the public were of those connections from various recommendations from the SAB panel. invited to submit relevant comments for categories of waters, evaluated singly or The SAB was established in 1978 by the SAB Panel to consider pertaining to in combination, which affect the Environmental Research, the review materials, including the downstream waters and the strength of Development, and Demonstration charge to the Panel. Over 133,000 public that effect. The objectives of the Science Authorization Act (ERDDAA), to comments were received by the Docket. Report are (1) to provide a context for provide independent scientific and Every meeting was open to the public, considering the evidence of connections technical advice to the EPA noticed in the Federal Register, and had between downstream waters and their Administrator on the technical basis for time allotted for the public to present tributary waters, and (2) to summarize Agency positions and regulations. their views. In total, the Panel held a current understanding about these Advisory functions include peer review two-day in-person meeting in connections, the factors that influence of EPA’s technical documents, such as Washington, DC, in December 2013, and them, and the mechanisms by which the the Science Report. At the time the peer three four-hour public teleconferences connections affect the function or review was completed, the chartered in April, May, and June 2014. The SAB condition of downstream waters. The SAB was comprised of more than 50 Panel also compiled four draft versions connections and mechanisms discussed members from a variety of sectors of its peer review report to inform and in the Science Report include transport including academia, non-profit assist the meeting deliberations that of physical materials and chemicals organizations, foundations, state were posted on the SAB Web site. In such as water, wood, sediment, governments, consulting firms, and September 2014, the chartered SAB nutrients, pesticides, and mercury; industry. To conduct the peer review, conducted a public teleconference to functions that covered adjacent waters EPA’s SAB staff formed an ad hoc panel conduct the quality review of the perform, such as storing and cleansing based on nominations from the public to Panel’s final draft peer review report. water; movement of organisms or their serve as the primary reviewers. The The peer review report was approved at seeds and eggs; and hydrologic and panel consisted of 27 technical experts that meeting, and revisions were made biogeochemical interactions occurring in an array of relevant fields, including to reflect the chartered SAB’s review. in and among surface and groundwater hydrology, wetland and stream ecology, The culmination of that public process flows, including hyporheic zones 8 and biology, geomorphology, was the release of the final peer review alluvial aquifers. biogeochemistry, and freshwater report in October 2014. All meeting science. Similar to the chartered SAB, minutes and draft reports are available The Science Report presents five the panel members represented sectors on the SAB Web site for public access. major conclusions: The final Science Report states that 7 U.S. EPA. 2014. SAB review of the draft EPA connectivity is a foundational concept 8 The hyporheic zone is the subsurface area report Connectivity of Streams and Wetlands to in hydrology and freshwater ecology. immediately below the bed of intermittent and Downstream Waters: A Review and Synthesis of the ephemeral streams that remains wet even when Scientific Evidence. EPA–SAB–15–001, U.S. Connectivity is the degree to which there is no surface flow. These areas are extremely Environmental Protection Agency, Washington, DC. components of a system are joined, or important to macro-benthic organisms critical to the (‘‘SAB 2014a.’’) connected, by various transport bio-chemical integrity of streams.

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Conclusion 1: Streams including the temporary storage and downstream waters. These descriptors The scientific literature unequivocally deposition of channel-forming sediment are influenced by climate, geology, and demonstrates that streams, individually and woody debris, temporary storage of terrain, which interact with factors such or cumulatively, exert a strong influence local groundwater that supports as the magnitudes of the various on the chemical, physical, and baseflow in rivers, and transformation functions within wetlands (e.g., amount biological integrity of downstream and transport of stored organic matter. of water storage or carbon export) and waters. All tributary streams, including Riparian/floodplain wetlands and open their proximity to downstream waters to perennial, intermittent, and ephemeral waters improve water quality through determine where wetlands occur along streams, are chemically, physically, and the assimilation, transformation, and the connectivity gradient. At one end of biologically connected to downstream sequestration of pollutants, including this gradient, the functions of non- excess nutrients and chemical floodplain wetlands clearly affect the rivers via channels and associated contaminants such as pesticides and condition of downstream waters if a alluvial deposits where water and other metals that can degrade downstream visible (e.g., channelized) surface water materials are concentrated, mixed, water integrity. In addition to providing or a regular shallow subsurface-water transformed, and transported. Streams effective buffers to protect downstream connection to the river network is are the dominant source of water in waters from point source and nonpoint present. For non-floodplain wetlands most rivers, and the majority of source pollution, these systems form lacking a channelized surface or regular tributaries are perennial, intermittent, or integral components of river food webs, shallow subsurface connection (i.e., ephemeral headwater streams. providing nursery habitat for breeding those at intermediate points along the Headwater streams also convey water fish and amphibians, colonization gradient of connectivity), into local storage compartments such as opportunities for stream invertebrates, generalizations about their specific ponds, shallow aquifers, and and maturation habitat for stream effects on downstream waters from the floodplains, and into regional and insects. Lateral expansion and available literature are difficult because alluvial aquifers; these local storage contraction of the river in its floodplain information on both function and compartments are important sources of result in an exchange of organic matter connectivity is needed. Science Report water for maintaining baseflow in rivers. and organisms, including fish at ES–3. In addition to water, streams transport populations that are adapted to use Conclusion 4: Degrees and Determinants sediment, wood, organic matter, floodplain habitats for feeding and of Connectivity nutrients, chemical contaminants, and spawning during high water, that are many of the organisms found in rivers. critical to river ecosystem function. Connectivity of streams and wetlands The scientific literature provides robust Riparian/floodplain wetlands and open to downstream waters occurs along a evidence that streams are biologically waters also affect the integrity of gradient that can be described in terms connected to downstream waters by the downstream waters by subsequently of the frequency, duration, magnitude, dispersal and migration of aquatic and releasing (desynchronizing) floodwaters timing, and rate of change of water, semiaquatic organisms, including fish, and retaining large volumes of material, and biotic fluxes to amphibians, plants, microorganisms, stormwater, sediment, and downstream waters. These terms, which and invertebrates, that use both contaminants in runoff that could we refer to collectively as connectivity upstream and downstream habitats otherwise negatively affect the descriptors, characterize the range over during one or more stages of their life condition or function of downstream which streams and wetlands vary and cycles, or provide food resources to waters. Science Report at ES–2 to shift along the connectivity gradient in downstream communities. In addition ES–3. response to changes in natural and to material transport and biological anthropogenic factors and, when connectivity, ephemeral, intermittent, Conclusion 3: Non-Floodplain Wetlands considered in a watershed context, can and perennial flows influence and Open Waters be used to predict probable effects of fundamental biogeochemical processes Wetlands and open waters in non- different degrees of connectivity over by connecting channels and shallow floodplain landscape settings (‘‘non- time. The evidence unequivocally groundwater with other landscape floodplain wetlands’’) provide demonstrates that the stream channels elements. Chemical, physical, and numerous functions that benefit and riparian/floodplain wetlands or biological connections between streams downstream water integrity. These open waters that together form river and downstream waters interact via functions include storage of floodwater; networks are clearly connected to integrative processes such as nutrient recharge of groundwater that sustains downstream waters in ways that spiraling. This occurs when stream river baseflow; retention and profoundly influence downstream water communities assimilate and chemically transformation of nutrients, metals, and integrity. The connectivity and effects of transform large quantities of nitrogen pesticides; export of organisms or seeds non-floodplain wetlands and open and other nutrients that otherwise to downstream waters; and habitats waters are more variable and thus more would be transported directly needed for stream species. This diverse difficult to address solely from evidence downstream, thereby increasing nutrient group of wetlands (e.g., many Prairie available in peer-reviewed studies. loads and associated impairments due potholes or vernal pools) can be Science Report at ES–3 to ES–4. to excess nutrients in downstream connected to downstream waters Conclusion 5: Cumulative Effects waters. Science Report at ES–2. through surface water, shallow subsurface water, and groundwater The incremental effects of individual Conclusion 2: Riparian/Floodplain flows, and through biological and streams and wetlands are cumulative Wetlands and Open Waters chemical connections. across entire watersheds, and therefore, The scientific literature clearly shows In general, connectivity of non- must be evaluated in context with other that wetlands and open waters in floodplain wetlands occurs along a streams and wetlands. Downstream riparian areas and floodplains are gradient, and can be described in terms waters are the time-integrated result of chemically, physically, and biologically of the frequency, duration, magnitude, all waters contributing to them. For integrated with rivers via functions that timing, and rate of change of water, example, the amount of water or improve downstream water quality, material, and biotic fluxes to biomass contributed by a specific

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ephemeral stream in a given year might influence they exert on downstream the basis of geographical proximity or be small, but the aggregate contribution waters (i.e., they exist on a distance to jurisdictional waters.’’ Id. at of that stream over multiple years, or by ‘‘connectivity gradient’’), the available 2–3. The agencies have determined all ephemeral streams draining that science supports the conclusion that the which waters are adjacent, and thus watershed in a given year or over types of water bodies identified as jurisdictional under the rule, based on multiple years, can have substantial ‘‘waters of the United States’’ in the both functional relationships and consequences on the integrity of the proposed rule exert strong influence on proximity because those factors identify downstream waters. Similarly, the the chemical, physical, and biological the waters that have a strong influence downstream effect of a single event, integrity of downstream waters. In on the chemical, physical, or biological such as pollutant discharge into a single particular, the SAB expressed support integrity of traditional navigable waters, stream or wetland, might be negligible for the proposed rule’s inclusion of interstate waters, or the territorial seas. but the cumulative effect of multiple tributaries and ‘‘adjacent waters’’ as Section C. and IV.F below. The discharges could degrade the integrity of categorical waters of the United States agencies’ determination is informed by downstream waters. and the inclusion of ‘‘other waters’’ on the science, and consideration of When considering the effect of an a case-specific basis, though noting that proximity is reasonable in interpreting individual stream or wetland, all certain ‘‘other waters’’ can be the scope of adjacency. contributions and functions of that determined as a subcategory to be In the evaluation of ‘‘other waters,’’ stream or wetland should be evaluated similarly situated. the SAB found that ‘‘scientific literature cumulatively. For example, the same Regarding tributaries, the SAB found, has established that ‘other waters’ can stream transports water, removes excess ‘‘[t]here is strong scientific evidence to influence downstream waters, nutrients, transports pollutants, support the EPA’s proposal to include particularly when considered in mitigates flooding, and provides refuge all tributaries within the jurisdiction of aggregate.’’ Id. at 3. The SAB thus found for fish when conditions downstream the Clean Water Act. Tributaries, as a it ‘‘appropriate to define ‘other waters’ are unfavorable; if any of these group, exert strong influence on the as waters of the United States on a case- functions is ignored, the overall effect of physical, chemical, and biological by-case basis, either alone or in that stream would be underestimated. integrity of downstream waters, even combination with similarly situated Science Report at ES–5 to ES–6. though the degree of connectivity is a waters in the same region.’’ Id. The SAB function of variation in the frequency, found that distance could not be the SAB Review of the Proposed Rule duration, magnitude, predictability, and sole indicator used to evaluate the In addition to its peer review of the consequences of physical, chemical, and connection of ‘‘other waters’’ to draft Science Report, in a separate effort biological processes.’’ The Board jurisdictional waters. The agencies’ the SAB also reviewed the adequacy of advised EPA to reconsider the definition identification of the areas within which the scientific and technical basis of the of tributaries because not all tributaries a water is assessed on a case-specific proposed rule and provided its advice have ordinary high water marks (e.g., basis for a significant nexus is informed and comments on the proposal in ephemeral streams with arid and semi- by the science and the agencies’ September 2014.9 The same SAB Panel arid environments or in low gradient experience and technical expertise, and that reviewed the draft Science Report landscapes where the flow of water is consideration of proximity is reasonable met via two public teleconferences in unlikely to cause an ordinary high water in interpreting the scope of the statute. August 2014 to discuss the scientific mark). The SAB also advised EPA to The SAB also expressed support for and technical basis of the proposed rule. consider changing the wording in the language in one of the options discussed The Panel submitted comments to the definition to ‘‘bed, bank, and other in the preamble to the proposed rule. Chair of the chartered SAB. A work evidence of flow.’’ SAB 2014b at 2. The Specifically, the SAB stated there is group of chartered SAB members agencies did not make this change ‘‘also adequate scientific evidence to considered comments provided by because this recommendation seemed to support a determination that certain panel members, agency representatives, suggest that any hydrologic connection subcategories and types of ‘other waters’ and the public on the adequacy of the is sufficient for CWA jurisdiction. The in particular regions of the United States science informing the rule. This work definition of ‘‘tributary’’ in the rule (e.g., Carolina and Delmarva Bays, Texas group then led the September 2014 better identifies tributaries that have a coastal prairie wetlands, prairie public teleconference discussion of the significant nexus to downstream potholes, pocosins, western vernal chartered SAB. The public had an traditional navigable waters, interstate pools) are similarly situated (i.e., they opportunity to submit oral or written waters, or the territorial seas. In have a similar influence on the comments during these two public addition, the SAB suggested that EPA chemical, physical, and biological meetings. The SAB’s final letter to the reconsider whether flow-through lentic integrity of downstream waters and are EPA Administrator can be found on the systems should be included as ‘‘adjacent similarly situated on the landscape) and SAB Web site and in the docket for this waters’’ and wetlands, rather than as thus could be considered waters of the rule. tributaries. United States.’’ Id. The Board noted that The SAB found that the available Regarding ‘‘adjacent waters’’ and other sets of wetlands could be science provides an adequate scientific wetlands, the SAB stated, ‘‘[t]he identified as ‘‘similarly situated’’ as the basis for the key components of the available science supports the EPA’s science continues to develop and that proposed rule. The SAB noted that proposal to include ‘‘adjacent waters’’ science does not support excluding although water bodies differ in degree of and wetlands as a waters of the United groups of ‘‘other waters’’ or connectivity that affects the extent of States. . . . because [they] have a strong subcategories thereof from jurisdiction. influence on the physical, chemical, and The exclusions paragraph of the 9 U.S. EPA. 2014. SAB Consideration of the biological integrity of navigable waters.’’ proposed rule generated the most Adequacy of the Scientific and Technical Basis of Id. In particular, the SAB noted, ‘‘the comments from the SAB. The SAB the EPA’s Proposed Rule titled ‘‘Definition of available science supports defining noted, ‘‘[t]he Clean Water Act Waters of the United States under the Clean Water Act.’’ EPA–SAB–14–007, U.S. Environmental adjacency or determination of adjacency exclusions of groundwater and certain Protection Agency, Washington, DC. (‘‘SAB on the basis of functional other exclusions listed in the proposed 2014b.’’) relationships,’’ rather than ‘‘solely on rule and the current regulation do not

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have scientific justification.’’ Id. With most often the Corps, have made more Further, the agencies utilize the large regard to ditches, the Board found that than 400,000 CWA jurisdictional body of scientific literature regarding there is a lack of scientific knowledge to determinations since 2008. Of those, the functions of tributaries, including determine whether ditches should be more than 120,000 are case-specific tributaries with ephemeral, intermittent categorically excluded. For example, significant nexus determinations. The and perennial flow and of wetlands and some ditches that would be excluded in agencies made determinations in every open waters to inform their evaluations the Midwest may drain Cowardin state in the country, from the arid West of significant nexus. In addition, the wetlands and may provide certain to the tropics of Hawaii, from the agencies have experience and expertise ecosystem services, while gullies, rills, Appalachian Mountains in the East to for decades prior to and since the and non-wetland swales can be the lush forests of the Northwest. With SWANCC and Rapanos decisions with important conduits for moving water field staff located in 38 Corps District making jurisdictional determinations, between jurisdictional waters. The SAB offices and 10 EPA regional offices, the and consider hydrology, ordinary high also noted that artificial lakes or ponds, agencies have almost a decade of water mark, biota, and other technical or reflection pools, can be directly nationwide experience in making factors in implementing Clean Water connected to jurisdictional waters via significant nexus determinations. These Act programs. This immersion in the either shallow or deep groundwater. individual jurisdictional determinations science along with the practical The SAB also recommended that the have been made for waters ranging from expertise developed through case- agencies clarify in the preamble to the an intermittent stream that provides specific determinations across the final rule that ‘‘significant nexus’’ is a flow to a drinking water source, to a country and in diverse settings is legal term, not a scientific one. group of floodplain wetlands in North reflected in the agencies’ conclusions with respect to waters that have a C. Significant Nexus Conclusions Dakota that provide important protection from floodwaters to significant nexus, as well as where the As noted earlier, the agencies downstream communities alongside the agencies have drawn boundaries interpret the scope of ‘‘waters of the Red River, to headwater mountain demarking where ‘‘waters of the United United States’’ protected under the streams that provide high quality water States’’ end. CWA based on the information and that supplies baseflow and reduces the 1. Scope of Significant Nexus Analysis conclusions in the Science Report, other harmful concentrations of pollutants in relevant scientific literature, the the main part of the river below. Under the significant nexus standard, waters possess the requisite significant Technical Support Document that Through this experience, the agencies provides additional legal and scientific nexus if they ‘‘either alone or in developed wide-ranging technical discussion for issues raised in this rule, combination with similarly situated expertise in assessing the hydrologic the relevant Supreme Court decisions, [wet]lands in the region, significantly flowpaths along which water and the agencies’ technical expertise and affect the chemical, physical, and materials are transported and experience, and the objectives and biological integrity of other covered transformed that determine the degree requirements of the CWA. In light of waters more readily understood as of chemical, physical, or biological this information, the agencies made ‘navigable.’ ’’ Rapanos at 780. Several connectivity, as well as the variations in scientifically and technically informed terms in this standard were not defined. climate, geology, and terrain within and judgments about the nexus between the In this rule the agencies interpret these among watersheds and over time that relevant waters and the significance of terms and the scope of ‘‘waters of the that nexus and conclude that affect the functions (such as the removal United States’’ based on the goals, ‘‘tributaries’’ and ‘‘adjacent waters,’’ or transformation of pollutants) objectives, and policies of the statute, each as defined by the rule, have a performed by streams and wetlands for the scientific literature, the Supreme significant nexus such that they are downstream traditional navigable Court opinions, and the agencies’ ‘‘waters of the United States’’ and no waters, interstate waters or the technical expertise and experience. additional analysis is required. The territorial seas. Therefore, for purposes of a significant agencies also determined that additional The agencies utilize many tools and nexus analysis, the agencies have waters may, on a case-specific basis, many sources of information to help determined (1) which waters are have a significant nexus to traditional make jurisdictional determinations, ‘‘similarly situated,’’ and thus should be navigable waters, interstate waters, and including U.S. Geological Survey analyzed in combination, in (2) the the territorial seas, either alone or in (USGS) and state and local topographic ‘‘region,’’ for purposes of a significant combination with similarly situated maps, aerial photography, soil surveys, nexus analysis, and (3) the types of waters. The agencies’ interpretation of watershed studies, scientific literature functions that should be analyzed to the scope of ‘‘waters of the United and references, and field work. For determine if waters significantly affect States’’ is informed by the Science example, USGS and state and local the chemical, physical, or biological Report and the review and comments of stream maps and datasets, aerial integrity of traditional navigable waters, the SAB. The rule reflects the judgment photography, gage data, watershed interstate waters, or the territorial seas. of the agencies in balancing the science, assessments, monitoring data, and field These determinations underpin many of the agencies’ expertise, and the observations are often used to help the key elements of the rule and are regulatory goals of providing clarity to assess the contributions of flow of reflected in the definition of ‘‘significant the public while protecting the tributary streams, including intermittent nexus’’ in the rule. environment and public health, and ephemeral streams, to downstream consistent with the law. traditional navigable waters, interstate a. Similarly Situated Waters Since the Rapanos decision, the waters or the territorial seas. Similarly, As reflected in the rule’s definition of agencies have gained extensive floodplain and topographic maps of ‘‘significant nexus,’’ the agencies experience making significant nexus federal, state and local agencies, determined that it is reasonable to determinations, and that experience and modeling tools, and field observations consider waters as ‘‘similarly situated’’ expertise has informed the judgment of can be used to assess how wetlands are where they function alike and are the agencies as reflected in the trapping floodwaters that might sufficiently close to function together in provisions of the rule. The agencies, otherwise affect downstream waters. affecting the nearest traditional

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navigable water, interstate water, or the and biological integrity of downstream ‘‘[t]he downstream consequences (e.g., territorial sea. Since the focus of the waters is directly related to the the amount and quality of materials that significant nexus standard is on aggregate contribution of upstream eventually reach a river) are determined protecting and restoring the chemical, waters that flow into them, including by the aggregate effect of contributions physical, and biological integrity of the any tributaries and connected wetlands. and sequential alterations that begin at nation’s waters, the agencies interpret As a result, the scientific literature and the source waters and function along the phrase ‘‘similarly situated’’ in terms the Science Report consistently continuous flowpaths to the watershed of whether particular waters are document that the health of larger outlet.’’ Id. at 1–19. providing common, or similar, functions downstream waters is directly related to The agencies conclude that it is for downstream waters such that it is the aggregate health of waters located appropriate to assess the effects of reasonable to consider their effect upstream, including waters such as waters in combination based on the together. Regarding covered tributaries wetlands that may not be hydrologically similarity of the functions they provide and covered adjacent waters, the connected but function together to to the downstream water and their agencies define each water type such ameliorate the potential impacts of location in the watershed. This is that the functions provided are similar flooding and pollutant contamination consistent with the science and and the waters are situated so as to from affecting downstream waters. See effectively meets the goals of the CWA. provide those functions together to Technical Support Document. b. In the Region affect downstream waters. For example, excess nutrients The science demonstrates that discharged into small tributary streams Since Justice Kennedy did not define covered tributaries provide many in the aggregate can cause algal blooms the ‘‘region,’’ the agencies determined common vital functions important to the downstream that reduce dissolved that the single point of entry watershed chemical, physical, and biological oxygen levels and increase turbidity in is a reasonable and technically integrity of downstream waters, traditional navigable waters, interstate appropriate scale for identifying ‘‘in the regardless of the size of the tributaries. waters, and the territorial seas. Water region’’ for purposes of the significant The science also supports the low in dissolved oxygen cannot support nexus standard. A single point of entry conclusion that sufficient volume, aquatic life. This widely-recognized watershed is the drainage basin within duration, and frequency of flow are phenomenon, known as hypoxia, has whose boundaries all precipitation required to create a bed and banks and impacted commercial and recreational ultimately flows to the nearest single ordinary high water mark. The science fisheries in the northern Gulf of Mexico. traditional navigable water, interstate also supports the conclusion that In this instance, the cumulative effects water, or the territorial sea. The agencies tributaries function together to affect of nutrient export from the many small determined that because the movement downstream waters. The agencies headwater streams of the Mississippi of water from watershed drainage basins conclude that covered tributaries with a River have resulted in large-scale to coastal waters, river networks, and bed and banks and ordinary high water ecological and economically harmful lakes shapes the development and mark are similarly situated for purposes impacts hundreds of miles downstream. function of these systems in a way that of the agencies’ significant nexus See Technical Support Document. is critical to their long-term health, the analysis. In review of the scientific and watershed is a reasonable and For covered adjacent waters, the technical adequacy of the rule, the SAB technically appropriate way to identify science demonstrates that these waters panel members ‘‘generally agreed that the scope of waters that together may provide many similar vital functions to aggregating ‘similarly situated’ waters is have an effect on the chemical, physical, downstream waters, and the agencies scientifically justified, given that the or biological integrity of a particular defined ‘‘adjacent waters’’ with distance combined effects of these waters on traditional navigable water, interstate boundaries to ensure that the waters are downstream waters are often only water, or territorial sea. The watershed providing similar functions to measurable in aggregate.’’ 10 As stated in includes all streams, wetlands, lakes, downstream waters and that the waters section III.B. above, one of the main and open waters within its boundaries. are located comparably in the region conclusions of the Science Report is that Using the watershed that flows to the such that the agencies’ reasonably the incremental contributions of nearest single traditional navigable judged them to be similarly situated. individual streams and wetlands are water, interstate water, or territorial sea For waters for which a case-specific cumulative across entire watersheds, is consistent with court decisions that significant nexus determination is and their effects on downstream waters these waters are the ultimate focus of required the agencies have determined should be evaluated within the context CWA protections. Using the single point that some waters in specific regions are of other streams and wetlands in that of entry watershed ensures that any similarly situated; for other specified watershed. For example, the Science analysis of significant nexus is waters, the determination of whether Report finds, ‘‘[t]he amount of nutrients appropriately connected to these there are any other waters providing removed by any one stream over touchstone waters. similar functions in a similar situation multiple years or by all headwater Because the movement of water from in the region must be made as part of streams in a watershed in a given year watershed drainage basins to coastal a case-specific determination. See can have substantial consequences for waters, river networks, and lakes shapes section IV.H. downstream waters.’’ Science Report at the development and function of these Assessing the functions of identified 1–11. Cumulative effects of streams, systems in a way that is critical to their waters in combination is consistent not wetlands, and open waters across a integrity, using a watershed as the only with Justice Kennedy’s significant watershed must be considered because framework for conducting significant nexus standard, but with the science. nexus evaluations is scientifically Scientists routinely combine the effects 10 September 2, 2014. Memorandum from Dr. supportable. Watersheds are generally of groups of waters, aggregating the Amanda Rodewald to Dr. David Allen. Comments regarded as the most appropriate spatial known effect of one water with those of to the chartered SAB on the Adequacy of the unit for water resource management. Scientific and Technical Basis of the EPA’s ecologically similar waters in a specific Proposed Rule titled ‘‘Definition of ‘Waters of the Anthropogenic actions and natural geographic area, or to a certain scale. United States’ under the Clean Water Act.’’ (‘‘SAB events can have widespread effects This is because the chemical, physical, 2014c.’’) within the watershed that collectively

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impact the integrity and quality of the territorial seas sufficient to be The effect of an upstream water can be relevant traditional navigable water, determined jurisdictional. Justice significant even when a water, alone or interstate water, or the territorial sea. Kennedy was clear that to be covered, in combination, is providing a subset, or The functions of the contributing waters waters must significantly affect the even just one, of the functions listed. are inextricably linked and have a chemical, physical, or biological Science demonstrates that these cumulative effect on the integrity of the integrity of a downstream navigable aquatic functions provided by smaller downstream traditional navigable water, water and that the requisite nexus must streams, ponds, wetlands and other interstate water, or the territorial sea. be more than ‘‘speculative or waters are important for protecting the For these reasons, it is more appropriate insubstantial,’’ Rapanos, at 780. The chemical, physical, and biological to conduct a significant nexus analysis agencies define significant nexus in integrity of downstream traditional at the watershed scale than to focus on precisely those terms. Under the rule a navigable waters, interstate waters, and a specific site, such as an individual ‘‘significant nexus’’ is established by a the territorial seas. For example, States stream segment. See proposal Appendix showing of a significant chemical, identify sediment and nutrients as the A, Scientific Analysis, 79 FR 22246, physical, or biological effect. In primary contaminants in the nation’s April 21, 2014, Science Report, and characterizing the significant nexus waters. Sediment storage and export via Technical Support Document. standard, Justice Kennedy stated: ‘‘[t]he streams to downstream waters is critical Concluding that the watershed is the required nexus must be assessed in for maintaining the river network, reasonable and appropriate region for terms of the statute’s goals and including the formation of channel purposes of a significant nexus analysis purposes. Congress enacted the [CWA] features. Although sediment is essential is also consistent with the agencies’ to ‘restore and maintain the chemical, to river systems, excess sediment can longstanding practice and experience. physical, and biological integrity of the impair ecological integrity by filling To restore or maintain the health of the Nation’s waters’. . . .’’ 547 U.S. at 779. interstitial spaces, reducing channel downstream affected water, the It is clear that Congress intended the capacity, blocking sunlight transmission agencies’ standard practice is to CWA to ‘‘restore and maintain’’ all three through the water column, and evaluate the condition of the waters that forms of ‘‘integrity,’’ Section 101(a), so increasing contaminant and nutrient are in the contributing watersheds and if any one is compromised then that is concentrations. Streams and wetlands to develop a plan to address the issues contrary to the statute’s stated objective. can prevent excess deposits of sediment of concern. The Corps has used It would subvert the objective if the downstream and reduce pollutant watershed framework approaches for CWA only protected waters upon a concentrations in downstream waters. water sources, for navigation showing that they had effects on every Thus the function of trapping of excess approaches for more than 100 years, and attribute of the integrity of a traditional sediment, along with export of in the regulatory program since its navigable water, interstate water, or the sediment, have a significant effect on inception. Also, using a watershed territorial sea. the chemical, physical, and biological framework is consistent with more than integrity of downstream waters. two decades of practice by EPA and In the rule’s definition of ‘‘significant Nutrient recycling results in the many other governmental, academic, nexus,’’ the agencies identify the uptake and transformation of large and additional entities that recognize functions that waters provide that can quantities of nitrogen and other that a watershed approach is the most significantly affect the chemical, nutrients that otherwise would be effective framework to address water physical, or biological integrity of transported directly downstream, resource challenges. Finally, the traditional navigable waters, interstate thereby decreasing nutrient loads and watershed that drains to the nearest (i.e., waters and the territorial seas. In associated impairments due to excess first downstream) traditional navigable identifying the functions to be nutrients in downstream waters. water, interstate water, or the territorial considered the agencies were informed Streams, wetlands and open waters seas is likely to be of a size commonly by the goals of the statute and the improve water quality through the understood as a ‘‘region.’’ available science. Among the means to assimilation, transformation, or In light of the scientific literature, the achieve the CWA’s objective to restore sequestration of pollutants, including longstanding approach of the agencies’ and maintain the chemical, physical, excess nutrients and chemical implementation of the CWA, and the and biological integrity of the Nation’s contaminants such as pesticides and statutory goals underpinning Justice waters, Congress established an interim metals that can degrade downstream Kennedy’s significant nexus framework, national goal to achieve wherever water integrity. Nutrient transport the watershed draining to the nearest possible ‘‘water quality which provides exports nutrients downstream and can traditional navigable water, interstate for the protection and propagation of degrade water quality and lead to stream water, or the territorial sea, is the fish, shellfish, and wildlife and provides impairments. Nutrients are necessary to appropriate ‘‘region’’ for a significant for recreation in and on the water.’’ support aquatic life, but excess nutrients nexus analysis. See the proposed rule Section 101(a)(2). Functions to be lead to excessive plant growth and preamble and Technical Support considered for the purposes of hypoxia, in which over-enrichment Document. determining significant nexus are causes dissolved oxygen concentrations sediment trapping; nutrient recycling; to fall below the level necessary to c. Significantly Affect Chemical, pollutant trapping, transformation, sustain most aquatic animal life in the Physical, or Biological Integrity filtering, and transport; retention and downstream waters. Nutrient recycling, The agencies’ definition of the term attenuation of floodwaters; runoff retention, and export can significantly ‘‘significant nexus’’ in the rule is storage; contribution of flow; export of affect downstream chemical integrity by consistent with language in Riverside organic matter; export of food resources; impacting downstream water quality. Bayview, SWANCC, and Rapanos, and and provision of life-cycle dependent The contribution of flow downstream with the goals, objectives, and policies aquatic habitat (such as foraging, is an important role, as upstream waters of the CWA. The definition reflects that feeding, nesting, breeding, spawning, can be a cumulative source of the not all waters have a requisite and use as a nursery area) for species majority of the total mean annual flow connection to traditional navigable located in traditional navigable waters, to bigger downstream rivers and waters, waters, interstate waters, or the interstate waters, or the territorial seas. including via the recharge of baseflow.

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Streams, wetlands, and open waters significantly affects the biological limited the tributaries that are ‘‘waters contribute surface and subsurface water integrity of those downstream waters. of the United States’’ to those that have downstream, and are the dominant Tributaries, adjacent wetlands, and both a bed and banks and another sources of water in most rivers. open waters can perform multiple indicator of ordinary high water mark. Contribution of flow can significantly functions, including functions that That limitation served as a reasonable affect the physical integrity of change depending upon the season. For basis to consider covered tributaries downstream waters, helping to sustain example, the same stream can similarly situated because those the volume of water in larger waters. contribute flow when physical characteristics indicated Small streams and wetlands are evapotranspiration is low and can retain sufficient flow that the covered particularly effective at retaining and water when evapotranspiration is high. tributaries are performing similar attenuating floodwaters. By These functions, particularly when functions and located such that they are subsequently releasing considered in aggregate with the working together in the region to (desynchronizing) floodwaters and functions of similarly situated waters in provide those functions to the nearest retaining large volumes of stormwater the region, can significantly affect the traditional navigable water, interstate that could otherwise negatively affect chemical, physical, or biological water, or the territorial seas. Justice the condition or function of downstream integrity of a traditional navigable Kennedy noted that the requirement of waters, streams and adjacent wetlands water, interstate water, or the territorial a perceptible ordinary high water mark and open waters affect the physical seas. When considering the effect of an for tributaries, a measure that had been integrity of downstream traditional individual stream, wetland, or open used by the Corps, ‘‘may well provide navigable waters, interstate waters, or water, all contributions and functions a reasonable measure of whether the territorial seas. This function can that the water provides should be specific minor tributaries bear a reduce flood peaks downstream and can evaluated cumulatively. For example, sufficient nexus with other regulated also maintain downstream river the same wetland retains sediment, waters to constitute ‘navigable waters’ baseflows by recharging alluvial removes excess nutrients, mitigates under the Act.’’ 547 U.S. at 781, see also aquifers. flooding, and provides habitat for id. at 761. The science supports this. amphibians that also live downstream; The agencies analyzed the Science Streams, wetlands, and open waters if any of these functions is ignored, the Report and other scientific literature to supply downstream waters with overall effect of that wetland would be determine whether tributaries to dissolved and particulate organic matter underestimated. It is important to note, traditional navigable waters, interstate (e.g., leaves, wood), which support however, that a water or wetland can waters, or the territorial seas have a biological activity throughout the river provide just one function that may significant nexus to constitute ‘‘waters network. In addition to organic matter, significantly affect the chemical, of the United States’’ under the Act such streams, wetlands, and open waters can physical or biological integrity of the that it is reasonable to assert CWA also export other food resources downstream water. jurisdiction over all such tributaries by downstream, such as aquatic insects rule. Covered tributaries have a 2. Categories of Waters Determined to that are the food source for fish in significant impact on the chemical, Have a Significant Nexus downstream waters. The export of physical, or biological integrity of organic matter and food resources In this rule, the agencies determine waters into which they eventually downstream is important to maintaining that: (1) Covered tributaries, in flow—for CWA purposes, traditional the food webs and thus the biological combination with other covered navigable waters, interstate waters, and integrity of traditional navigable waters, tributaries located in a watershed that the territorial seas. The great majority of interstate waters, and the territorial seas. drains to a traditional navigable water, covered tributaries are headwater Streams, wetlands, and open waters interstate water, or the territorial seas, streams, and whether they are provide life-cycle dependent aquatic significantly affect the chemical, perennial, intermittent, or ephemeral, habitat (such as foraging, feeding, physical, and biological integrity of that they play an important role in the nesting, breeding, spawning, and use as water; and (2) covered adjacent waters, transport of water, sediments, organic a nursery area) for species located in in combination with other covered matter, nutrients, and organisms to traditional navigable waters, interstate adjacent waters located in a watershed downstream waters. Covered tributaries waters, or the territorial seas. Many that drains to a traditional navigable serve to store water, thereby reducing species require different habitats for water, interstate water, or the territorial flooding; provide biogeochemical different resources (e.g., food, spawning seas, significantly affect the chemical, functions that help maintain water habitat, overwintering habitat), and thus physical, and biological integrity of that quality; trap and transport sediments; move throughout the river network over water. transport, store and modify pollutants; their life-cycles. For example, provide habitat for plants and animals; a. Covered Tributaries headwater streams can provide refuge and sustain the biological productivity habitat under adverse conditions, The agencies determine based on their of downstream rivers, lakes, and enabling fish to persist and recolonize scientific and technical expertise that estuaries. Such waters have these downstream areas once conditions have waters meeting the definition of significant effects whether they are improved. These upstream systems form ‘‘tributary’’ in a single point of entry natural, modified, or constructed. integral components of downstream watershed are similarly situated and Covered tributaries significantly affect food webs, providing nursery habitat for have a significant nexus because they the chemical integrity of traditional breeding fish and amphibians, significantly affect the chemical, navigable waters, interstate waters, and colonization opportunities for stream physical, or biological integrity of the territorial seas. Covered tributaries invertebrates, and maturation habitat for traditional navigable waters, interstate influence the chemical composition of stream insects, including for species waters, and the territorial seas. As such, downstream waters, through the that are critical to downstream it is appropriate to conclude covered transport and removal of chemical ecosystem function. The provision of tributaries as a category are ‘‘waters of elements and compounds, such as life-cycle dependent aquatic habitat for the United States.’’ See Technical nutrients, ions, organic matter and species located in downstream waters Support Document. The agencies pollutants. Ecosystem processes in

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covered tributaries transform, remove, are great distances from the traditional transporting downstream sediment, and transport these substances to navigable water, interstate water, or the nutrients, and other materials. downstream waters. In turn, these territorial sea (such as some headwater The CWA regulates and controls chemical compounds can influence covered tributaries). pollution at its source, in part because water quality, sediment deposition, Covered tributaries significantly affect most pollutants do not remain at the site nutrient availability, and biotic the biological integrity of traditional of the discharge, but instead flow and functions in rivers. Because water flow navigable waters, interstate waters, and are washed downstream through the transports chemical substances the territorial seas. Covered tributaries, tributary system to endanger drinking downstream, chemical effects are including intermittent and ephemeral water supplies, fisheries, and recreation closely related to hydrological streams, are critical in the life-cycles of areas. These fundamental facts about the connectivity. Within covered tributaries, many organisms capable of moving movement of pollutants and the there are processes that occur that throughout river networks. In fact, many interconnected nature of the tributary transform and export nutrients and organisms, such as anadromous salmon, system demonstrate why covered carbon to downstream waters, serving have complex life-cycles which involve tributaries of traditional navigable important source functions that migration through the river network, waters, interstate waters, and the influence the chemical integrity of from headwaters to downstream rivers territorial seas, alone or in combination downstream waters. Organic carbon, in and oceans and back, over the course of with other covered tributaries in a both dissolved and particulate forms, their lives. In addition to providing watershed, have a significant nexus exported from covered tributaries is critical habitat for complex life-cycle with those downstream waters. Thus, in consumed by downstream organisms. completion, covered tributaries provide the rule the agencies assert CWA The organic carbon that is exported refuge from predators and adverse jurisdiction over all covered tributaries downstream thus supports biological physical conditions in rivers, and are as defined. Those covered tributaries are activity throughout the river network. reservoirs of genetic- and species-level ‘‘waters of the United States’’ without Covered tributaries act as both sinks diversity. Covered tributaries contribute the need for further analysis. and sources of chemical substances, materials to downstream food networks b. Covered Adjacent Waters further affecting the chemical integrity and supporting populations for aquatic Based on the agencies’ review of the of traditional navigable waters, species, including economically interstate waters, and the territorial seas. scientific literature and the law, the important species such as salmon. agencies determine that covered Covered tributaries provide sink These effects occur even when the functions by trapping chemicals through adjacent waters, as defined, have a covered tributaries flow infrequently absorption to sediments in the stream significant nexus and are ‘‘waters of the (such as ephemeral covered tributaries), substrate (e.g., phosphorous adsorption United States.’’ The scientific literature, and even when the covered tributaries to clay particles). They provide source including the Science Report, are large distances from the traditional functions by transporting chemicals to consistently supports the conclusion navigable waters, interstate waters, and downstream traditional navigable that covered adjacent waters provide the territorial seas (such as some waters, interstate waters, and the similar functions and work together to headwater covered tributaries). territorial seas as chemicals dissolved in maintain the chemical, physical, and the waters or as chemicals attached to Similarly, modified and constructed biological integrity of the downstream suspended sediments. tributaries perform the same functions traditional navigable waters, interstate Covered tributaries significantly affect as natural tributaries, especially the waters, and the territorial seas because the physical integrity of traditional conveyance of water that carries of their hydrological and ecological navigable waters, interstate waters, and nutrients, pollutants, and other connections to, and interactions with, the territorial seas. Physical connections constituents, both good and bad, to those waters. Science demonstrates that between covered tributaries and traditional navigable waters, interstate this functional connectivity is traditional navigable waters, interstate waters, and the territorial seas. Modified particularly evident where covered waters, and the territorial seas result and constructed covered tributaries also adjacent waters are located within the from the hydrologic transport from provide corridors for movement of floodplain of the traditional navigable covered tributaries to downstream organisms between headwaters and water, interstate water, the territorial waters of numerous materials, including traditional navigable waters, interstate seas, covered tributary, or impoundment water, sediment and organic matter such waters, and the territorial seas. The to which they are adjacent or are as leaves and wood. This transport important effect—and thus the otherwise sufficiently proximate to affects the physical characteristics of significant nexus—between a covered waters with no floodplain, such as lakes downstream waters. Covered tributaries, tributary and a traditional navigable and ponds. Location within the even when seasonally dry, are the water, interstate water, and the floodplain and proximity ensure that dominant source of water in most rivers, territorial sea is not broken where the the aquatic functions performed by rather than direct precipitation or covered tributary flows through a covered adjacent waters are effectively groundwater input to main stem river culvert or other structure. The scientific and consistently provided to segments. One of the primary functions literature recognizes that features that downstream waters. See Technical of covered tributaries is transporting convey water, whether they are natural, Support Document. sediment to downstream waters. modified, or constructed, provide The agencies conclude that all waters Covered tributaries, particularly substantial connectivity between meeting the definition of ‘‘adjacent’’ in headwaters, shape and maintain river streams and downstream waters. For the rule are similarly situated for channels by accumulating and gradually example, ditches that meet the purposes of analyzing whether they or episodically releasing sediment and definition of tributary and are not have a significant nexus to a traditional large woody debris into river channels. excluded quickly move water navigable water, interstate water, or the These effects occur even when the downstream to traditional navigable territorial sea. Based on a review of the covered tributaries flow infrequently waters, interstate waters, and the scientific literature, the agencies (such as ephemeral covered tributaries), territorial seas due to their often conclude that these bordering, and even when the covered tributaries straightened and channelized nature, contiguous, or neighboring waters

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provide similar functions and function chemical contaminants such as documented the ability of floodplain together to significantly affect the pesticides and metals that can degrade wetlands to reduce flood pulses by chemical, physical, or biological downstream water integrity. In addition storing excess water from streams and integrity of traditional navigable waters, to providing effective buffers to protect rivers. One review of wetland studies interstate waters, or the territorial seas. downstream waters from pollution, reported that floodplain wetlands Further, because the definition of covered adjacent waters form integral reduced or delayed floods in 23 of 28 ‘‘adjacent’’ considers both the functional components of downstream food webs, studies. For example, peak discharges relationships and the proximity of the providing nursery habitat for breeding between upstream and downstream waters (i.e., those that are located near fish and amphibians, colonization gaging stations on the Cache River in traditional navigable waters, interstate opportunities for stream invertebrates, Arkansas were reduced 10–20 percent waters, the territorial seas, and maturation habitat for stream primarily due to floodplain water impoundments, and covered insects. Covered adjacent waters serve storage. tributaries), interpreting the term an important role in the integrity of Ecosystem function within a river ‘‘similarly situated’’ to include all traditional navigable waters, interstate system is driven by interactions covered adjacent waters, as defined in waters, and the territorial seas by between the physical environment and the rule, is informed by the science and subsequently releasing the diverse biological communities is a reasonable interpretation of the (desynchronizing) floodwaters and living within the river system. Wetlands scope of the statute. The geographic retaining large volumes of stormwater, in floodplains become important seed proximity of an ‘‘adjacent’’ water sediment, nutrients, and contaminants sources for the river network, especially relative to the traditional navigable that could otherwise negatively impact if catastrophic flooding scours waters, interstate waters, the territorial the condition or function of traditional vegetation and seed banks in other parts seas, impoundments, and covered navigable waters, interstate waters, and of the channel. Movements of organisms tributaries is indicative of the the territorial seas. that connect aquatic habitats and their relationship to it, with many of its Floodplain areas connect aquatic populations, even across different defining characteristics resulting from environments through both surface and watersheds, are important for the the movement of materials and energy shallow subsurface hydrologic survival of individuals, populations, between the categories of waters. The flowpaths. Waters in these areas are and species, and for the functioning of scientific literature supports that waters, therefore uniquely situated in the river ecosystem. For example, lateral including wetlands, ponds, lakes, watersheds to receive and process water expansion and contraction of the river oxbow lakes, and similar waters, that that passes over densely vegetated areas in its floodplain results in an exchange are ‘‘adjacent,’’ as defined in the rule, to and through subsurface zones before of matter and organisms, including fish traditional navigable waters, interstate reaching streams and rivers. When populations that are adapted to use waters, the territorial seas, contaminants reach a floodplain water, floodplain habitat for feeding and impoundments, and covered tributaries, they can be sequestered in sediments, spawning during high water. The are integral parts of stream networks assimilated into wetland plants and organisms that live within the because of their ecological functions animals, transformed into less harmful hyporheic zone for these mid- and large- and how they interact with each other, and/or mobile forms or compounds, or sized river systems have a demonstrated and with downstream traditional lost to the atmosphere. Wetlands located connection outward to several miles in floodplains store large amounts of within the floodplain. General field navigable waters, interstate waters, or sediment and organic matter from practice observations further indicate the territorial seas. upstream and upland areas. In addition, that covered adjacent waters with a Covered adjacent waters function the primary function of many floodplain close proximity have a significant nexus together to maintain the chemical, wetlands in the Western United States with the downstream waters. physical, or biological health of is sediment exchange, which can Waters adjacent to impoundments traditional navigable waters, interstate transform materials and compounds and covered tributaries are integrally waters, and the territorial seas to which temporarily on floodplains. linked to the chemical, physical, and they are directly adjacent or to which Wetlands and other similar waters in biological functions of the waters to they are connected by the tributary floodplain areas act as buffers that are which they are adjacent and, through system. This functional interaction can among the most effective tools for those waters, are integrally linked to the result from hydrologic connections or mitigating nonpoint source pollution. chemical, physical, and biological because covered adjacent waters can act The literature shows that collectively, functions of the downstream traditional as water storage areas holding damaging wetlands and other similar waters navigable waters, interstate waters, or floodwaters or filtering harmful improve water quality through the territorial seas. Thus, where waters pollutants. These chemical, physical, assimilation, transformation, or are adjacent to impoundments or and biological connections affect the sequestration of nutrients, sediment, covered tributaries, they also have a integrity of downstream traditional and other pollutants—such as pesticides significant nexus to the downstream navigable waters, interstate waters, and and metals—that can affect downstream traditional navigable waters, interstate the territorial seas through the water quality. These pollutants enter waters, or the territorial seas. The temporary storage and deposition of floodplain wetlands from dry and wet important functions that covered channel-forming sediment and woody atmospheric deposition, runoff from adjacent waters perform that impact debris, temporary storage of local upland agricultural and urban areas, downstream traditional navigable groundwater sources of baseflow for spray drift, subsurface water flows, waters, interstate waters, and the downstream waters and their tributaries, outfalls, pipes, and ditches. territorial seas and their integrated and transformation and transport of Floodplain waters, including behavior with the tributary system organic matter. Covered adjacent waters wetlands, can reduce flood peaks by demonstrate why all waters adjacent to improve water quality through the storing and desynchronizing traditional navigable waters, interstate assimilation, transformation, or floodwaters. They can also maintain waters, or the territorial seas as well as sequestration of pollutants, including river baseflows by recharging alluvial impoundments and covered tributaries, excess nitrogen and phosphorus, and aquifers. Many studies have alone or in combination with other

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covered adjacent wetlands in a scientific literature shows that these have a similar influence on the physical, watershed have a significant nexus with subcategories of waters are frequently chemical and biological integrity of those downstream waters. located together in a complex or are downstream waters and are similarly Based on the science and their otherwise closely co-located and situated on the landscape) and thus technical expertise and experience, the perform similar functions. The agencies could be considered waters of the agencies determine it is appropriate to specifically sought comment in the United States. Furthermore, as the protect all covered adjacent waters proposal on options to address these science continues to develop, other sets because those waters are functioning as five subcategories of waters, including of wetlands may be identified as an integrated system with the whether waters in these subcategories ‘similarly situated.’ ’’ SAB 2014b at 3. downstream traditional navigable should be found ‘‘similarly situated’’ by The agencies concluded that the waters, interstate waters, or the rule. specific subcategories of waters listed in territorial seas and significantly affect Based on the body of scientific paragraph (a)(7) are similarly situated such downstream waters. Consequently, literature regarding the subcategories of for purposes of a case-specific these waters are ‘‘adjacent’’ and waters specified in paragraph (a)(7) and significant nexus based on the therefore ‘‘waters of the United States’’ their functions, the agencies determined following: under the CWA. Covered adjacent that waters of the specified (i) Prairie potholes are a complex of waters are ‘‘waters of the United States’’ subcategories are similarly situated glacially formed wetlands, usually without the need for further analysis. because they perform similar functions occurring in depressions that lack and they are located sufficiently close to permanent natural outlets that are found 3. Case-Specific Significant Nexus each other to function together in in the central United States and Canada. Determinations affecting downstream waters and In the United States, they are found a. Two Exclusive Circumstances for therefore reasonably be evaluated in from central Iowa through western Case-Specific Significant Nexus combination with regard to their effects Minnesota, Montana, eastern South Determinations on the integrity of traditional navigable Dakota, and North Dakota. Prairie waters, interstate waters, or the potholes demonstrate a wide range of The rule identifies two exclusive territorial seas. The specified hydrologic permanence; some hold circumstances under which a significant subcategories of waters perform similar permanent standing water and others nexus determination is made on a case- functions as waters of the same are wet only in years with high specific basis to determine whether the subcategory in the same single point of precipitation. This in turn influences water is a ‘‘water of the United States.’’ entry watershed and collectively the diversity and structure of their First, there are five subcategories of function together to affect a traditional biological communities. waters—Prairie potholes, Carolina and navigable water, interstate water, or the Prairie potholes generally accumulate Delmarva bays, pocosins, western vernal territorial seas. Among the functions and retain water effectively due to the pools in California, and Texas coastal and relationships in the landscape the low permeability of their underlying prairie wetlands—that the agencies agencies considered to conclude that the soil, which can modulate flow conclude must be analyzed ‘‘in subcategories are each similarly situated characteristics of nearby streams and combination’’ as ‘‘similarly situated ’’ are the physical capacity of the waters rivers. One of the most noted hydrologic waters when making a case-specific to provide flood and sediment retention. functions of Prairie potholes is water significant nexus analysis. Second, there In determining that the waters in each storage. Because most of the water are waters for which the agencies have of the five subcategories are ‘‘similarly outflow in Prairie potholes is via made no conclusions with respect to situated,’’ the agencies concluded that evapotranspiration, Prairie potholes can which waters are ‘‘similarly situated’’ these subcategories of waters are co- become water sinks, preventing flow to but for which a case-specific significant located to each other or similar to the downstream waters. Prairie potholes nexus analyses may be undertaken. The tributary system such that they have also can accumulate chemicals in rule establishes that case-specific cumulative and additive effects on overland flow, thereby reducing determinations may be made for waters pollutant removal through parallel, chemical loading to other bodies of located within the 100-year floodplain serial, or sequential processing, such as water. When Prairie potholes are of a traditional navigable water, the role of pocosins in maintaining artificially connected to streams and interstate water, or the territorial seas, water quality in estuaries. The lakes through drainage, they become and for waters located within 4,000 feet subcategories of waters are sufficiently sources of water and chemicals to from the high tide line or the ordinary near each other or the tributary system downstream waters. Prairie potholes high water mark of traditional navigable to function as an integrated habitat that also support a community of highly waters, interstate waters, the territorial can support the life-cycle of a species or mobile organisms, from plants to seas, impoundments, or tributaries. more broadly provide habitat to a large invertebrates that move among Prairie potholes and that can biologically b. Summary of Rationale for ‘‘Similarly number of a single species. The SAB expressed support for the connect the entire complex to the river Situated’’ Determinations agencies’ option in the preamble of the network. Based on the agencies’ expertise and proposed rule to identify certain Prairie potholes can be highly experience and available literature and subcategories of waters as similarly connected to other Prairie potholes via data, the agencies have determined that situated and highlighted these same five shallow subsurface connections and via waters in the five subcategories of subcategories. It stated, ‘‘[t]here is also surface hydrologic connections during waters identified in paragraph (a)(7) are adequate scientific evidence to support the wet season. They can also be similarly situated and must be a determination that certain connected to the stream network via combined with other waters in the same subcategories and types of ‘other waters’ surface and shallow subsurface subcategory located in the same in particular regions of the United States connections. Intense precipitation watershed that drains to the nearest (e.g., Carolina and Delmarva Bays, Texas events or high cumulative precipitation traditional navigable water, interstate coastal prairie wetlands, prairie over one or more seasons can result in water, or the territorial seas. See potholes, pocosins, western vernal temporary hydrologic connectivity Technical Support Document. The pools) are similarly situated (i.e., they between Prairie potholes and from

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Prairie potholes to the tributary system The hydrology in bays allow for seasonal connections to drainageways via ‘‘fill-and-spill’’ events. denitrification (chemical and biological leading to estuaries or are adjoining Their density across the landscape processes that remove nitrogen from other wetlands draining into perennial varies from region to region as the result water), which can reduce the amount of streams or estuaries. Other pocosins of several factors, including patterns of nitrate in both groundwater and have been ditched and are directly glacial movement, topography, and downstream surface waters. Because connected to streams. climate. In some parts of the region, bays are frequently connected The agencies conclude that pocosins prairie pothole density is very high. chemically to downstream waters are similarly situated based on their Though their density varies across the through ditches, they can be sources of close proximity to each other and the landscape, Prairie potholes often act as sediment and nutrients to downstream tributary network, their hydrologic a complex. They have similar functions waters. Where they are not connected connections to each other and the that can collectively impact downstream via confined surface connections, bays tributary network, their density on the waters. can act as sediment and nutrient sinks. landscape, and their similar functions. Prairie potholes have been Fish are reported in bays that are (iv) Western vernal pools are shallow, determined to be similarly situated known to dry out, indirectly seasonal wetlands that accumulate based on the characteristics of Prairie demonstrating surficial connections. water during colder, wetter months and potholes, including their density on the Amphibians and reptiles use bays gradually dry up during warmer, drier landscape, their interaction and extensively for breeding and for rearing months. Western vernal pools are formation as a complex of wetlands and young. These animals can disperse seasonal wetlands from the Pacific open waters, their connections to each many feet on the landscape and can Northwest to northern Baja California, other and the tributary network, and colonize, or serve as a food source to, Mexico associated with topographic depressions, soils with poor drainage, their similar functions. In addition, their downstream waters. Similarly, bays mild, wet winters and hot, dry chemical, physical, and biological foster abundant insects that have the summers. The agencies have determined connections to downstream waters and potential to become part of the that California vernal pools are the strength of their effects on the downstream food chain. Humans have ‘‘similarly situated.’’ chemical, physical, or biological ditched and channelized a high percentage of bays, creating new surface Because their hydrology and ecology integrity of a traditional navigable are so tightly coupled with the local and water, interstate water, or the territorial connections to downstream waters and allowing transfer of nutrients, sediment, regional geological processes that seas support this determination that and other pollutants, such as formed them, western vernal pools in Prairie potholes are similarly situated by methylmercury. California typically occur within rule. Carolina and Delmarva bays can occur ‘‘vernal pool landscapes,’’ or complexes (ii) Carolina and Delmarva bays are in high density on the landscape and of pools in which swales connect pools ponded depressional wetlands that can act as a wetlands complex. Bays to each other and to seasonal streams. occur along the Atlantic coastal plain have similar functions to other bays and Some common findings about the from northern Florida to New Jersey. cumulatively these functions can impact hydrologic connectivity of western Though Carolina and Delmarva bays are downstream waters. vernal pools include evidence for from the same category of wetland and The agencies conclude that Carolina temporary or permanent outlets, perform similar functions, they are and Delmarva bays are similarly frequent filling and spilling of higher located in different parts of the Atlantic situated based on their close proximity pools into lower elevation swales and coastal plain and thus have unique to each other and the tributary network, stream channels, and conditions names. Carolina bays are most abundant their hydrologic connections to each supporting subsurface flows through in North Carolina and South Carolina, other and the tributary network, their pools without perched aquifers to while Carolina bays found in the density on the landscape, and their nearby streams. Delmarva Peninsula are commonly similar functions. Non-glaciated vernal pools in western referred to as Delmarva bays or (iii) The word pocosin comes from the states are reservoirs of biodiversity and Delmarva potholes. Algonquin Native American word for can be connected genetically to other Most bays receive water through ‘‘swamp on a hill,’’ and these evergreen locations and aquatic habitats through precipitation, lose water through shrub and tree-dominated wetlands are wind- and animal-mediated dispersal. evapotranspiration, and lack natural found from Virginia to northern Florida, Animals and other organisms can move surface outlets. Both mineral-based and but mainly in North Carolina. Typically, between western vernal pool complexes peat-based bays have shown there is no standing water present in and streams. Insects and zooplankton connections to shallow groundwater. these peat-accumulating wetlands, but a can be flushed from vernal pools into Bays typically are in proximity to each shallow water table leaves the soil streams and other waters during periods other or to streams, providing for saturated for much of the year. They of overflow, carried by animal vectors hydrologic connections to each other range in size from less than an acre to (including humans), or dispersed by and to downstream waters in large rain several thousand acres. The slow wind. events via overland flow or shallow movement of water through the dense The agencies conclude that western subsurface connections. Some Delmarva organic matter in pocosins removes vernal pools in California are similarly bays have surface water connections to excess nutrients deposited by rainwater. situated based on their close proximity the Chesapeake Bay. In addition, human The same organic matter also acidifies to each other and the tributary network, channeling and ditching of the bays are the water. This water is slowly released their interaction and arrangement as a widespread and create surface to downstream waters and estuaries, complex of wetlands, their hydrologic connections to other waters, including where it helps to maintain the proper connections to each other and the the tributary system and estuaries. salinity, nutrients, and acidity. tributary network, their density on the These ditches commonly connect the Because pocosins are the topographic landscape, and their similar functions. surface water of bays to other bays that high areas on the regional landscape, (v) Along the Gulf of Mexico from are lower on the landscape, and they serve as the source of water for western Louisiana to south Texas, ultimately, to streams. downstream waters. Pocosins often have freshwater wetlands occur as a mosaic

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of depressions, ridges, intermound flats, agencies’ practice are added to the ‘‘waters of the United States’’ only and mima mounds. These coastal prairie regulation for the first time. where a case-specific determination has wetlands were formed thousands of The agencies define ‘‘waters of the found a significant nexus between the years ago by ancient rivers and bayous United States’’ in paragraph (a) of the water and traditional navigable waters, and once occupied almost a third of the rule for all sections of the CWA to interstate waters, or the territorial seas. landscape around Galveston Bay, Texas. include the traditional navigable waters First, paragraph (a)(7) of the rule The term Texas coastal prairie wetlands (a)(1), interstate waters (a)(2), the specifies five types of waters (Prairie is not used uniformly in the scientific territorial seas (a)(3), impoundments of potholes, Delmarva and Carolina bays, literature but encompasses Texas prairie jurisdictional waters (a)(4), covered pocosins, western vernal pools in pothole (freshwater depressional tributaries (a)(5), and covered adjacent California, and Texas coastal prairie wetlands) and marsh wetlands that are waters (a)(6). Waters in these categories wetlands) that the agencies have described in some studies that occur on are jurisdictional ‘‘waters of the United determined to be ‘‘similarly situated,’’ the Lissie and Beaumont Geological States’’ by rule—no additional analysis and thus are to be considered in Formations, and the Ingleside Sand. is required. This eliminates the need to combination in a significant nexus Texas coastal prairie wetlands are make a case-specific significant nexus analysis. Second, paragraph (a)(8) locally abundant and in close proximity determination for covered tributaries or specifies that waters located within the to other coastal prairie wetlands and covered adjacent waters because the 100-year floodplain of a traditional function together cumulatively. agencies determined that these waters navigable water, interstate water, or the Collectively as a complex, Texas coastal have a significant nexus to waters territorial seas, and waters located prairie wetlands can be geographically identified in (a)(1) through (a)(3) of the within 4,000 feet from the high tide line and hydrologically connected to each rule and thus are ‘‘waters of the United or the ordinary high water mark of other via swales and connected to States.’’ The agencies emphasize that traditional navigable waters, interstate downstream waters, contributing flow to the finding of jurisdiction for these waters, the territorial seas, those downstream waters. covered tributaries and covered adjacent impoundments, or covered tributaries Cumulatively, these wetlands can waters was not based on the mere may be found to have a significant control nutrient release levels and rates connection of a water body to nexus on a case-specific basis, but the to downstream waters, as they capture, downstream waters, but rather a agencies have not made a determination store, transform, and pulse releases of determination that the nexus, alone or that the waters are ‘‘similarly situated.’’ nutrients to those waters. in combination with other of these As a result, a significant nexus analysis The agencies conclude that Texas covered tributaries or covered adjacent for these waters will include a case- coastal prairie wetlands are similarly waters in the watershed, is significant. specific assessment of whether there are situated based on their close proximity The agencies exclude specified waters any similarly situated waters, as well as to each other and the tributary network, from the definition of ‘‘waters of the whether the water, alone or in their hydrologic connections to each United States’’ in paragraph (b) of the combination with any waters other and the tributary network, their rule. The rule makes no substantive determined to be similarly situated, has interaction and formation as a complex change to the existing exclusion for a significant nexus to a traditional of wetlands, their density on the waste treatment systems designed navigable water, interstate water, or landscape, and their similar functions. consistent with the requirements of the territorial sea. The rule outlines at CWA and makes no change to the (c)(5)(i)–(ix) functions relevant to these IV. Definition of ‘‘Waters of the United existing exclusion for prior converted case-specific significant nexus analyses. States’’ cropland. The rule excludes for the first Paragraph (c) of the rule provides A. Summary of the Rule time certain waters and features over definitions for key terms used in the which the agencies have generally not regulation. Some of these are unchanged The rule revises the existing asserted CWA jurisdiction, as well as from the current regulations, including definition of ‘‘waters of the United groundwater, which the agencies have the definitions for ‘‘wetlands’’ at (c)(4), States’’ consistent with the CWA, never interpreted to be a ‘‘water of the ‘‘ordinary high water mark’’ at (c)(6) and science, the agencies’ technical United States’’ under the CWA. ‘‘high tide line’’ at (c)(7), although the expertise and experience, and Supreme Codifying these longstanding practices latter two are existing, unchanged Court decisions. The final rule supports the agencies’ goals of Corps’ definitions added to EPA’s establishes categories of waters that are providing greater clarity, certainty, and regulations for the first time. 33 CFR jurisdictional and other categories of predictability for the regulated public 328.3(d)–(e). The rule also defines for waters that are excluded, as well as and regulators, and makes rule the first time ‘‘tributary’’ and categories of waters and wetlands that implementation clear and practical. ‘‘tributaries’’ at (c)(3), ‘‘neighboring’’ (an require a case-specific significant nexus This final rule provides clear aspect of adjacency) at (c)(2), and evaluation to determine if they are exclusions for certain types of ditches. ‘‘significant nexus’’ at (c)(5). ‘‘waters of the United States’’ and The final rule also expressly excludes This rule is effective on August 28, covered by the CWA. The rule also stormwater control features created in 2015. Under existing Corps’ regulations provides definitions for key terms used dry land and certain wastewater and guidance, approved jurisdictional in the regulation. The final rule retains recycling structures created in dry land. determinations generally are valid for much of the structure of the agencies’ Waters and features that are excluded five years. The agencies will not reopen longstanding definition of ‘‘waters of the under paragraph (b) of the rule cannot existing approved jurisdictional United States,’’ and many of the existing be determined to be jurisdictional under determinations unless requested to do provisions of that definition where any of the categories in the rule under so by the applicant or, consistent with revisions are not required in light of paragraph (a). existing Corps’ guidance, unless new Supreme Court decisions or other bases In addition to waters that are information warrants revision of the for revision. All existing exclusions categorically ‘‘waters of the United determination before the expiration from the definition of ‘‘waters of the States’’ or categorically excluded under period. Similarly, consistent with United States’’ are retained, and several paragraphs (a) and (b), the rule existing regulations and guidance, exclusions reflecting longstanding identifies certain waters that can be approved jurisdictional determinations

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associated with issued permits and interstate or foreign commerce, navigable for purposes of Federal authorizations are valid until the including all waters which are subject to regulation under (a)(1) and do not expiration date of the permit or the ebb and flow of the tide. See, e.g., connect to such waters. Moreover, the authorization. 33 CFR 328.3(a)(1); 40 CFR 230.3(s)(1); rule protects impoundments of As a general matter, the agencies’ 40 CFR 122.2 (‘‘waters of the U.S.’’). interstate waters, tributaries to interstate actions are governed by the rule in effect This paragraph of the regulation waters, waters adjacent to interstate at the time the agency issues a encompasses those waters that are often waters, and waters adjacent to covered jurisdictional determination or permit referred to as ‘‘traditional navigable tributaries of interstate waters because authorization, not by the date of a waters.’’ The rule does not make any they have a significant nexus to permit application, request for changes to this paragraph of the interstate waters. Protection of these authorization, or request for a regulation. waters is thus critical to protecting jurisdictional determination. However, For purposes of CWA jurisdiction, interstate waters. any jurisdictional determinations issued waters will be considered traditional The language of the CWA indicates prior to the effective date of the rule and navigable waters, and jurisdictional that Congress intended the term jurisdictional determinations associated under (a)(1) of the rule, if they: ‘‘navigable waters’’ to include interstate with permit applications deemed by the • Are subject to section 9 or 10 of the waters without imposing a requirement Corps to have been complete on the date Rivers and Harbors Appropriations Act that they be traditional navigable waters this rule is published in the Federal of 1899; themselves or be connected to Register, including complete pre- • Have been determined by a Federal traditional navigable waters. The construction notifications, will be made court to be navigable-in-fact under precursor statutes to the CWA subjected consistent with the existing rule, unless Federal law; interstate waters and their tributaries to the applicant requests that its approved • Are waters currently being used for Federal jurisdiction. The text of the jurisdictional determination or permit commercial navigation, including CWA, specifically CWA section 303, authorization be decided after the commercial waterborne recreation (for which establishes ongoing requirements effective date of the new rule. Reliance example, boat rentals, guided fishing for interstate waters, in conjunction on preliminary jurisdictional trips, or water ski tournaments); with the definition of navigable waters, determinations is also not affected by • Have historically been used for provides clear indication of Congress’ the issuance of this rule. All other commercial navigation, including intent to protect interstate waters that jurisdictional determinations and commercial waterborne recreation; or were previously subject to Federal requests for authorization requiring an • Are susceptible to being used in the regulation. Other provisions of the approved jurisdictional determination future for commercial navigation, statute provide additional textual issued on or after the effective date of including commercial waterborne evidence of the scope of the primary this rule will be made consistent with recreation. jurisdictional term of the CWA. this rule. See Technical Support Document; The agencies also have a longstanding It is important to emphasize that the ‘‘U.S. Army Corps of Engineers regulatory interpretation that interstate agencies do not anticipate being able to Jurisdictional Determination Form waters fall within the scope of CWA complete new jurisdictional Instructional Guidebook Appendix D, jurisdiction. The agencies’ determinations submitted after this rule ‘Traditional Navigable Waters,’’’ interpretation was promulgated is published before it becomes effective. available at: http:// contemporaneously with the passage of As a result, requesters seeking www.usace.army.mil/Portals/2/docs/ the CWA and is consistent with the jurisdictional determinations after the civilworks/regulatory/cwa_guide/app_ statutory and legislative history of the rule is published should expect the d_traditional_navigable_waters.pdf. CWA. Furthermore, the Supreme Court determination will be made consistent The agencies received several has never addressed the CWA’s with this rule. The agencies recognize comments on the scope of traditional coverage of interstate waters, and it is there are a number of requests for navigable waters. Some commenters not reasonable to read its decisions in permit applications and requests for observed that ‘‘traditional navigable SWANCC and Rapanos to question the jurisdictional determinations pending at waters’’ as a jurisdictional category is jurisdictional status of interstate waters any time. The agencies expect only a not based in science. Several or to impose additional jurisdictional small portion of those pending actions commenters thought that the final rule requirements on interstate waters. The will require additional information from should specify considerations to be assertion of jurisdiction over interstate or work by the requester. As described taken into account when determining if waters is based on the statute and under in the Economic Analysis, the vast a water is susceptible to being used in predecessor statutes where ‘‘interstate majority of requests address streams and future commercial navigation. The waters’’ were defined as all rivers, lakes, adjacent wetlands, and the agencies do agencies have not revised the regulation and other waters that flow across, or not expect new information or work will to address susceptibility, but observe form a part of, state boundaries. Pub. L. be needed to complete those requests. If that case law has provided a number of 80–845, sec. 10, 62 Stat. 1155, at 1161 any additional information is needed to considerations and examples that are (1948). The agencies will continue to assess these requests, the agencies will described further in the Technical implement the provision consistent work proactively with permit applicants Support Document and are reflected in with the intent of Congress. For to reduce potential short-term longstanding agencies’ practice. additional discussion of the agencies’ disruptions in the permit process that interpretation of the CWA with respect C. Interstate Waters may be associated with the rule. to interstate waters, see Appendix B of The existing regulations define the proposed rule and the Technical B. Traditional Navigable Waters ‘‘waters of the United States’’ to include Support Document. The existing regulations include interstate waters, including interstate It is reasonable to assert jurisdiction within the definition of ‘‘waters of the wetlands. The rule does not change that over tributaries, adjacent waters, and United States’’ all waters that are provision of the regulations. Therefore, waters that have a significant nexus to currently used, or were used in the past, interstate waters are ‘‘waters of the interstate waters consistent with the or may be susceptible to use in United States’’ even if they are not framework set forth in Justice Kennedy’s

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opinion in Rapanos for establishing E. Impoundments the rule without the need to determine jurisdiction over waters with a The existing regulations provide that if they are also adjacent under significant nexus to traditional impoundments of ‘‘waters of the United paragraph (a)(6). However, as described navigable waters. Waters and wetlands States’’ remain ‘‘waters of the United in section IV.G below, ‘‘adjacent with a significant nexus to traditional States,’’ and the rule does not make any waters,’’ as defined, have a significant navigable waters and interstate waters changes to the existing regulatory nexus to traditional navigable waters, have important beneficial effects on language. interstate waters, or the territorial seas, those waters, and by recognizing that Impoundments are jurisdictional which bolsters the agencies’ polluting or destroying waters with a because an impoundment of a ‘‘water of determination that impoundments of significant nexus can harm downstream the United States’’ remains a ‘‘water of ‘‘waters of the United States’’ remain jurisdictional waters. Traditional the United States,’’ and because ‘‘waters of the United States.’’ navigable waters and interstate waters scientific literature demonstrates that Impoundments also may be one of the cannot be protected without also impoundments continue to significantly waters through which tributaries protecting the waters that have a affect the chemical, physical, or indirectly contribute flow to a significant nexus to those waters as biological integrity of downstream traditional navigable water, interstate identified in the rule. The rule thus traditional navigable waters, interstate water, or territorial sea. As a matter of defines ‘‘waters of the United States’’ to waters, and the territorial seas. See law and science, an impoundment does include tributaries to interstate waters, Technical Support Document. The not cut off a connection between waters adjacent to interstate waters, Supreme Court has confirmed that upstream tributaries and a downstream waters adjacent to tributaries of damming or impounding a ‘‘water of the traditional navigable water, interstate interstate waters, and other waters that United States’’ does not make the water water, or territorial sea, so covered non-jurisdictional. See S. D. Warren Co. have a significant nexus to interstate tributaries above the impoundment are v. Maine Bd. of Envtl. Prot., 547 U.S. waters. still considered a tributary to 370, 379 n.5 (2006) (‘‘[N]or can we agree The agencies received a number of downstream traditional navigable that one can denationalize national waters, interstate waters, or the comments on interstate waters. Some waters by exerting private control over territorial seas even where the flow of commenters asserted that interstate them.’’). Similarly, when presented with waters required a significant nexus to a a tributary to the Snake River which water might be impeded due to the traditional navigable water in order to flows only about two months per year impoundment. See paragraph (a)(5). be jurisdictional after Rapanos. The because of an irrigation diversion The agencies received comments on agencies disagree for the reasons structure installed upstream, the Ninth impoundments, which generally described above, in Appendix B to the Circuit noted ‘‘it is doubtful that a mere explored the impacts of impoundments proposed rule, and in the Technical man-made diversion would have turned on connectivity to downstream waters. Support Document. what was part of the waters of the For the reasons described above and in D. Territorial Seas United States into something else and, the Technical Support Document, the thus, eliminated it from national agencies concluded that impoundments The CWA and its existing regulations concern.’’ U.S. v. Moses, 496 F.3d 984, of ‘‘waters of the United States’’ remain include ‘‘the territorial seas’’ as a ‘‘water 988 (9th Cir. 2007), cert. denied, 554 ‘‘waters of the United States.’’ of the United States.’’ The rule makes no U.S. 918 (2008). As a matter of policy changes to that provision of the and law, impoundments do not de- F. Tributaries regulation other than to change the federalize a water, even where there is The existing definition of ‘‘waters of ordering to earlier in the regulation. The no longer flow below the impoundment. the United States’’ regulates all CWA defines ‘‘navigable waters’’ to The agencies have analyzed stream tributaries without qualification. The include ‘‘the territorial seas’’ at section networks, above and below final rule protects only waters that have 502(7). The CWA goes on to define the impoundments, for connection to a significant effect on the integrity of downstream traditional navigable ‘‘territorial seas’’ in section 502(8) as traditional navigable waters, interstate waters, interstate waters, or the ‘‘the belt of the seas measured from the waters, or the territorial seas. The rule territorial seas. Scientific literature, as line of ordinary low water along that establishes a definition of ‘‘tributary,’’ well as the agencies’ scientific and portion of the coast which is in direct and provides that a water meeting the technical expertise and experience contact with the open sea and the line definition of tributary, unless it is confirm that impoundments have marking the seaward limit of inland excluded under paragraph (b), is a waters, and extending seaward a chemical, physical, and biological effects on downstream waters. See ‘‘water of the United States’’ without the distance of three miles.’’ The territorial need for a separate case-specific seas establish the seaward limit of Technical Support Document. The agencies also note that an significant nexus evaluation. As ‘‘waters of the United States.’’ The explained in Section III above, covered territorial seas are clearly covered by the impoundment of a water that is not a ‘‘water of the United States’’ can become tributaries and the functions they CWA (they are also traditional navigable jurisdictional if, for example, the provide, alone or in combination with waters), and it is reasonable to protect impounded waters become navigable-in- other tributaries in the watershed, their covered tributaries and covered fact and covered under paragraph (a)(1) significantly affect the chemical, adjacent waters. of the rule. physical, and biological integrity of Although some comments addressed By their nature, impoundments of traditional navigable waters, interstate the definition of ‘‘territorial seas’’ jurisdictional waters would also often waters, or the territorial seas. See also provided in the CWA suggesting that the meet the definition of ‘‘adjacent Technical Support Document. This distance thresholds be revised to reflect waters,’’ as they are typically bordering section describes the provisions of the other resource statutes, the agencies do or contiguous. Impoundments of rule addressing tributaries and changes not have authority to revise statutory ‘‘waters of the United States’’ are per se made to the provisions in the proposed language. jurisdictional under paragraph (a)(4) of rule based on public comments.

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1. What are the provisions in the rule? provide definitions for the terms means the substrate and sides of a The rule defines ‘‘tributary’’ by ephemeral flow, intermittent flow, and channel between which flow is emphasizing the physical characteristics perennial flow. The agencies considered confined. The banks constitute a break created by sufficient volume, frequency the request and determined that there in slope between the edge of the bed and duration of flow, and that the water was no need to include a definition and the surrounding terrain, and may contributes flow, either directly or since they are commonly used scientific vary from steep to gradual. Existing through another water, to a traditional terms. Longstanding agencies’ practice Corps regulations define ordinary high navigable water, interstate water, or the considers perennial streams as those water mark as the line on the shore territorial seas. This definition is based with flowing water year-round during a established by the fluctuations of water on the best available science, intent of typical year, with groundwater or and indicated by physical the CWA, and case law, and is contributions of flow from higher in the characteristics such as a clear, natural consistent with current practice. As stream or river network as primary line impressed on the banks, shelving, sources of water for stream flow. changes in the character of soil, mentioned above in Section III, the Intermittent streams are those that have destruction of terrestrial vegetation, the Science Report concludes that ‘‘[t]he both precipitation and groundwater presence of litter and debris, or other scientific literature unequivocally providing part of the stream’s flow, and appropriate means that consider the demonstrates that streams, individually flow continuously only during certain characteristics of the surrounding areas. or cumulatively, exert a strong influence times of the year (e.g., during certain 33 CFR 328.3(e). That definition is not on the integrity of downstream waters.’’ seasons such as the rainy season). changed by the rule and is added to Science Report at ES–2. Ephemeral streams have flowing water EPA’s regulations. First, to meet the rule’s definition of only in response to precipitation events Current Corps regulations and ‘‘tributary,’’ a water must flow directly in a typical year, and are always above guidance identify bed and banks as or through another water or waters to a the water table. Precipitation can indicators of the ordinary high water traditional navigable water, interstate include rainfall as well as snowmelt. mark. The definition of ‘‘tributary’’ in water, or the territorial seas. Waters Science shows that tributaries regardless this rule requires the presence of a bed through which a tributary may of flow duration are very effective at and banks and an additional indicator of contribute flow indirectly include, for transporting pollutants downstream, ordinary high water mark such as example, impoundments, wetlands, such as excess nutrients and sediment, staining, debris deposits, or other lakes, and other tributaries. A tributary which impact the integrity and indicator identified in the rule or agency may contribute flow through any character of traditional navigable guidance. In many tributaries, the bed is number of downstream waters, waters, interstate waters, and the that part of the channel below the including non-jurisdictional features, territorial seas. See Technical Support ordinary high water mark, and the banks such as a ditch excluded under Document. often extend above the ordinary high paragraph (b) of the rule, and Second, the rule requires two physical water mark. For other tributaries, such jurisdictional waters that are not indicators of flow: There must be a bed as those that are incised, changes in tributaries, such as an adjacent and banks and an indicator of ordinary vegetation, changes in sediment wetland—but it must be part of a high water mark. This definition of characteristics, staining, or other tributary system that eventually flows to ‘‘tributary’’ includes only those waters ordinary high water mark indicators a traditional navigable water, an the agencies have concluded are the may be found within the banks. In interstate water, or the territorial seas. type of waters that the CWA was concrete-lined channels, the concrete This limitation on what constitutes a intended to protect and which either acts as the bed and banks and can have tributary for purposes of this rule is individually or in combination with other ordinary high water mark fundamental. If a water is not part of the other covered tributaries in the indicators such as staining and debris tributary system of a traditional watershed have a significant nexus to a deposits. Indicators of an ordinary high navigable water, interstate water, or the traditional navigable water, interstate water mark may vary from region to territorial seas, it does not meet the water, or the territorial seas. Thus, the region across the country. See Technical definition of ‘‘tributary’’ and is not agencies are not defining ‘‘waters of the Support Document. jurisdictional under this provision of United States’’ to include all streams Other evidence, besides direct field the rule. For example, an intermittent that might be considered ‘‘tributaries’’ observation, may establish the presence stream that exists wholly within one in the general scientific literature. To of bed and banks and another indicator state, is not itself a traditional navigable provide additional clarity and for ease of ordinary high water mark. The water, and whose flows eventually ends of use for the public, the agencies are agencies currently use many tools in without connecting to a traditional including the Corps’ existing definition identifying tributaries and will continue navigable water, interstate water, or the of ordinary high water mark in EPA’s to rely on their experience and expertise territorial seas is not a ‘‘water of the regulations as well. Under that existing in identifying the presence of a bed and United States’’ as a ‘‘tributary’’ for Corps regulation, ordinary high water banks and ordinary high water mark. purposes of this rule. To determine mark indicators include characteristics For example, several reliable, well- whether a water meets this aspect of the such as shelving, scour, changes in soil established remote sensing sources of definition, the connection can be traced characteristics, and destruction of information or mapping can assist to using direct observation, U.S. Geological terrestrial vegetation, among others. establish the presence of water that Survey (USGS) data, stream datasets A bed and banks and other indicators contributes flow to a traditional such as the National Hydrography of ordinary high water mark are navigable water, interstate water, or the Dataset, aerial photography or other physical indicators of water flow and territorial seas and provide evidence reliable remote sensing information, or are only created by sufficient and regarding the presence of a bed and other appropriate information. regular intervals of flow. These physical banks and another indicator of ordinary Under the rule, flow in the tributary indicators can be created by perennial, high water mark. Among the types of may be perennial, intermittent, or intermittent, and ephemeral flows. See remote sensing or mapping information ephemeral. The agencies received Technical Support Document. For that can assist in establishing the comments suggesting that the final rule purposes of the rule, ‘‘bed and banks’’ presence of water are USGS topographic

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data, the USGS National Hydrography curvilinear patterns, dark photographic are available. Bare earth models reveal Dataset (NHD), Natural Resources tones, and the presence and pattern of subtle elevation changes and can clearly Conservation Service (NRCS) Soil riparian vegetation. The characteristic show a tributary’s bed and banks and Surveys, and State or local stream maps, linear and curvilinear patterns and dark channel morphology. In many cases as well as the analysis of aerial photographic tones observed on aerial LIDAR can help delineate tributaries photographs, and light detection and photography can be caused by shadow that would exhibit a bed and banks and ranging (also known as LIDAR) data, cast from the banks of an incised stream another indicator of an ordinary high and desktop tools that provide for the or from water in the stream channel water mark in greater detail than aerial hydrologic estimation of a discharge itself. In some cases stream channel photography interpretation alone can. sufficient to create an ordinary high morphology is visible, providing Visible linear and curvilinear incisions water mark, such as a regional evidence of scour, materials sorting, and on a bare earth model are strong regression analysis or hydrologic deposition, all characteristics of an evidence that a tributary with a bed and modeling. These sources of information ordinary high water mark. Visible banks and another indicator of an can sometimes be used independently persistent water (e.g., multiple dates of ordinary high water mark is present. to infer the presence of a bed and banks aerial photography showing visible LIDAR-indicated tributaries can be and another indicator of ordinary high water) provides strong evidence of the correlated with aerial photography water mark, or where they correlate, can sufficient frequency and duration of interpretation and USGS stream data, to be used to reasonably conclude the surface flow to create a bed and banks reasonably conclude the presence of a presence of a bed and banks and and other indicators of ordinary high bed and banks and another indicator of ordinary high water mark. water mark. Visible indicators of an ordinary high water mark in the Both the USGS topographic data and running water such as rapids, riffles, absence of a field visit. See Technical the NHD data assist to delineate and pools all indicate the presence of a Support Document. The agencies have tributaries to traditional navigable bed and banks and other indicators of been using such remote sensing and waters, interstate waters, or the ordinary high water mark. Other desktop tools to delineate tributaries for territorial seas. Where one or both of physical characteristics of an ordinary many years where data from the field these sources have indicated a ‘‘blue high water mark that may be visible on are unavailable or a field visit is not line stream,’’ there is an indication that aerial photography include the possible. the tributary could exhibit a bed and destruction of terrestrial vegetation and In addition, such desktop tools are banks and another indicator of ordinary the absence of vegetation in a channel. critical in circumstances where physical high water mark. Where this These indicators gleaned from aerial characteristics of bed and banks and information is combined with stream photography interpretation can be another indicator of ordinary high water order,11 more certainty can result. For correlated with the presence of USGS mark are absent in the field, often due example, a water that is a second-order streams data in reasonably concluding to unpermitted alteration of streams. In stream will be more likely to exhibit a that a bed and banks and another such cases where physical bed and banks and another indicator of indicator of ordinary high water mark characteristics of bed and banks and ordinary high water mark as compared are present. See Technical Support another indicator of ordinary high water to a first-order stream. This information Document. mark no longer exist, they may be will vary in validity in different parts of Additional desktop tools can assist in determined by using other appropriate the country, so care will be taken to the identification of bed and banks and means that consider the characteristics evaluate additional information prior to other indicators of ordinary high water of the surrounding areas. Such reliable reasonably concluding a bed and banks mark. For instance, field staff use other methods that can indicate prior or other indicators of ordinary high methods for estimating ordinary high existence of bed and banks and other water mark are associated with the water mark, including, but not limited indicators of ordinary high water mark stream. This will be particularly true for to, lake and stream gage data, flood include, but are not limited to, lake and first-order streams and for many streams predictions, historic records of water stream gage data, elevation data, in the arid portions of the country. flow, and statistical evidence. Some spillway height, historic water flow Supporting information that can be used desktop tools, such as a regional records, flood predictions, statistical to conclude the presence of a bed and regression analysis and the Hydrologic evidence, the use of reference banks and another indicator of ordinary Modeling System (HEC–HMS), provide conditions, or through the remote high water mark would be the presence for the hydrologic estimation of stream sensing and desktop tools described of USGS stream data on the NRCS discharge sufficient to create an above. county Soil Survey or local stream maps ordinary high water mark in tributaries The upper limit of the tributary is the which are mapped independently of the under regional conditions. Such desktop point where a bed and banks and USGS, aerial photography tools are particularly useful for another indicator of ordinary high water interpretation, or digital terrain identifying presence of bed and banks mark cease to be identifiable. The depictions created from LIDAR. See and another indicator of ordinary high ordinary high water mark establishes Technical Support Document. water mark when supported by the lateral limits of a water, and its Tributaries are observable in aerial additional remote sensing tools that absence generally determines when a photography by their topographic indicate the presence of such physical tributary’s channel or bed and banks has expression, characteristic linear and features. ended, representing the upper limit of LIDAR is a powerful tool to analyze the tributary. However, a natural or 11 Stream order is a method for stream the characteristics of the land surface, constructed break in bed and banks or classification based on relative position within a including tributary identification and other indicator of ordinary high water river network, when streams lacking upstream tributaries (i.e., headwater streams) are first-order characterization. LIDAR data are mark does not constitute the upper limit streams and the junction of two streams of the same becoming more and more widespread of a tributary where bed and banks or order results in an increase in stream order (i.e., two for engineering and land use planning other indicator ordinary high water first-order streams join to form a second-order purposes. Where LIDAR data have been mark can be found farther upstream. stream, and so on). When streams of different orders join, the order of the larger stream is retained. See processed to create a bare earth model, Note that waters, including wetlands, Science Report and Technical Support Document. detailed depictions of the land surface which are adjacent to a tributary at the

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upper limit of the channel are natural breaks such as debris piles, Ditches are one important example of jurisdictional as ‘‘adjacent waters.’’ boulder fields, or a stream that flows constructed features that in many The definition of ‘‘tributary’’ includes underground so long as a bed and banks instances can meet the definition of tributaries that flow directly or and an ordinary high water mark can be tributary. Ditches are jurisdictional indirectly through impoundments that identified upstream of the break. Site under the rule only if they both meet the are jurisdictional under paragraph (a)(4) specific conditions will continue to definition of ‘‘tributary’’ and are not of the rule. Tributaries to determine the distance up valley that excluded under paragraph (b)(3) in the impoundments of ‘‘waters of the United needs to be evaluated to see if the break rule. Not all ditches meet the definition States’’ are jurisdictional for the same in bed and banks and ordinary high of a tributary, and others—as discussed reasons the impoundments themselves water mark is temporary or the start of in Section I—are expressly excluded are jurisdictional. As discussed in the stream system. from jurisdiction. section IV. E., under case law, an The rule also clarifies that a water Ditches protected by the rule must impoundment of a ‘‘water of the United meets the definition of tributary if the meet the definition of tributary, having States’’ remains a ‘‘water of the United water contributes flow through an a bed and banks and ordinary high States,’’ and scientific literature excluded feature such as a ditch with water mark, and contributing flow demonstrates that impoundments ephemeral flow. While the water above directly or indirectly through another continue to significantly affect the and below the excluded feature is water to a traditional navigable water, chemical, physical, or biological jurisdictional if it meets the definition interstate water, or the territorial seas. integrity of downstream waters of tributary, the excluded feature does Jurisdictional ditches include ditches traditional navigable waters, interstate such as the following: not become jurisdictional. A water also • waters, and the territorial seas. continues to meet the definition of Ditches with perennial flow, • Ditches with intermittent flow that Therefore, tributaries to such tributary if at some point the water are a relocated tributary, or are impoundments continue to have a contributes flow through a jurisdictional significant nexus, alone or in excavated in a tributary, or drain water that is not a tributary, such as an wetlands, combination with other covered adjacent wetland or impoundment. tributaries in the watershed, to the • Ditches, regardless of flow, that are The agencies’ longstanding downstream traditional navigable water, excavated in or relocate a tributary. interpretation of the CWA has included interstate water, or the territorial seas. The definition of tributary includes Waters that meet the rule definition of tributaries that are natural, modified, or natural, undisturbed waters and those tributary remain tributaries even if there constructed waters. While this rule at that have been man-altered or is a manmade or natural break at some paragraph (b) excludes specific types of constructed, but which science shows point along the connection to the constructed waters from jurisdiction, it function as a tributary. In addition, traditional navigable water, interstate continues to interpret constructed alteration or modification of natural water, or the territorial seas. In many tributaries as jurisdictional unless streams and rivers for purposes such as tributaries, there are often natural or expressly excluded in paragraph (b). flood control, erosion control, and other constructed breaks in the presence of a Natural, modified, and constructed reasons does not convert the tributary to bed and banks or ordinary high water tributaries provide many of the same a ditch. A stream or river that has been mark while hydrologic connectivity functions, especially as conduits for the channelized or straightened because its remains. For example, in some regions movement of water and pollutants to natural sinuosity has been altered, of the country where there is a very low other tributaries or directly to cutting off the meanders, is not a ditch. gradient, the banks of a tributary may be traditional navigable waters, interstate A stream that has banks stabilized very low or may even disappear at waters, or the territorial seas. The through use of concrete or rip-rap (e.g., times. Many tributaries lose their discharge of a pollutant into a tributary rocks or stones) is not a ditch. The Los ordinary high water mark when adjacent generally has the same effect Angeles River, for example, is a ‘‘water wetlands are contiguous with the stream downstream whether the tributary of the United States’’ (and, indeed, a channel. The definition of ‘‘tributary’’ waterway is natural, modified, or traditional navigable water) and remains addresses these circumstances and constructed. See discussion in section a ‘‘water of the United States’’ and is not states that waters that meet the III.C. above and the Technical Support excluded under paragraph (b)(3) even definition of tributary remain tributaries Document. Given the extensive human where it has been ditched, channelized, even if such breaks occur, so long as bed modification of watercourses and or concreted. and banks and an ordinary high water hydrologic systems throughout the A ditch that relocates a stream is not mark are present upstream of the break. country, it is often difficult to an excluded ditch under paragraph Under the rule, when a covered distinguish between natural (b)(3), and a stream is relocated either tributary flows through a wetland into watercourses and watercourses that are when at least a portion of its original another tributary (sometimes called a wholly or partly modified or channel has been physically moved, or ‘‘run-of-stream’’ wetland), the covered constructed. For example, tributaries when the majority of its flow has been tributary remains jurisdictional even that have been channelized in concrete redirected. A ditch that is a relocated though it lost its ordinary high water or otherwise have been modified may stream is distinguishable from a ditch mark through the wetland. By looking to still meet the definition of tributaries that withdraws water from a stream the presence of a bed and banks and an under the rule so long as they have bed without changing the stream’s aquatic ordinary high water mark upstream, the and banks and an ordinary high water character. The latter type of ditch is rule ensures that a mere break in the mark, contribute flow to a traditional excluded from jurisdiction where it ordinary high water mark does not navigable water, interstate water, or the meets the listed characteristics of render tributaries with a significant territorial seas, and are not excluded excluded ditches under paragraph nexus to downstream waters not under paragraph (b). The important (b)(3). Agency staff can determine jurisdictional. Other breaks that do not consideration for a modified or historical presence of tributaries using a sever jurisdiction include constructed constructed water is whether it meets variety of resources, such as historical breaks such as bridges, culverts, pipes, the definition of ‘‘tributary’’ and is not maps, historic aerial photographs, local dams, or waste treatment systems, or excluded under paragraph (b). surface water management plans, street

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maintenance data, wetlands and form the physical indicators required which are physical characteristics called conservation programs and plans, as under the definitions of ‘‘ordinary high for under the definition of tributary. well as functional assessments and water mark’’ and ‘‘tributary.’’ Such commenters emphasized the monitoring efforts. A ditch with The rule includes ephemeral streams importance of a definition of ‘‘bed and intermittent flow that drains a wetland that meet the definition of tributary as banks,’’ and some suggested definitional and otherwise meets the definition of ‘‘waters of the United States’’ because language. To increase clarity, the ‘‘tributary’’ is a ‘‘tributary’’ and is not the agencies determined that such preamble in IV.F.1. above includes a excluded under paragraph (b)(3). See streams provide important functions for definition of bed and banks adapted IV.I. below. downstream waters, and in combination largely from longstanding agencies’ Evidence, such as current or historic with other covered tributaries in a practice as well as comments. Several photographs, prior delineations, or watershed significantly affect the commenters suggested that the rule USGS, state and local topographic maps, chemical, physical, and biological should add a definition of ‘‘ordinary may be used to determine whether a integrity of traditional navigable waters, high water mark.’’ In response and to ditch is an excluded ditch. Site interstate waters, and the territorial seas. increase clarity, the rule adds the Corps’ characteristics may also be present to As noted by the SAB, and consistent existing regulatory ordinary high water inform the determination of whether the with the scientific literature, tributaries mark definition to EPA’s regulations. water body is a ditch, such as shape, as a group exert strong influence on the Corps technical manuals are available to sinuosity, flow indications, etc., as chemical, physical, and biological help identify ordinary high water mark, ditches are often created in a linear integrity of downstream waters, even referenced above. Several commenters fashion with little sinuosity and may or though the degree of connectivity is a suggested that the agencies not require may not connect to another ‘‘water of function of variation in the frequency, a tributary to have both bed and banks the United States.’’ duration, magnitude, predictability, and and ordinary high water mark, because consequences of chemical, physical, and 2. What changes did the Agencies make bed and banks are themselves an biological processes. See, e.g., SAB from the proposed rule based on public indicator of ordinary high water mark, 2014b. These significant effects on comments? and because ordinary high water mark traditional navigable waters, interstate alone is an appropriate criterion for The rule’s definition of ‘‘tributary’’ waters, and the territorial seas occur many streams in the arid west where the retains many elements from the even when the tributary is small, characteristic of bed and banks is less proposed rule, but reflects public intermittent, or ephemeral. common. The agencies based their comments in several important ways. In In addition, the Science Report significant nexus determination for the particular, the rule emphasizes flow. concludes that, ‘‘[a]lthough less covered tributaries in part on the The rule defines ‘‘tributary’’ by abundant, the available evidence for amount of flow indicated where a emphasizing physical characteristics connectivity and downstream effects of tributary has both a bed banks and created by water flow and requiring that ephemeral streams was strong and another indicator of ordinary high water the water contributes flow, either compelling, particularly in context with mark, so the rule continues to require directly or through another water, to a the large body of evidence supporting both physical indicators with the traditional navigable water, interstate the physical connectivity and preamble at IV.F.1. above clarifying the water, or the territorial seas. The rule cumulative effects of channelized flows means to conclude that those indicators also is clearer regarding the that form and maintain stream exist. jurisdictional status of certain ditches, networks.’’ Science Report at 6–13. For Several commenters suggested that and clarifies that wetlands and waters example, ephemeral headwater streams the rule exclude all constructed waters such as ponds and lakes that contribute shape river channels in traditional from the definition of ‘‘waters of the flow to a traditional navigable water, navigable or interstate waters by United States.’’ While the rule does interstate water, or the territorial seas accumulating and gradually or exclude several types of constructed but typically lack a bed and banks and episodically releasing stored materials waters from jurisdiction, it continues to ordinary high water mark are such as sediment and large woody consider constructed tributaries as considered ‘‘adjacent’’ but not a debris. These materials help structure jurisdictional unless expressly excluded ‘‘tributary.’’ traditional navigable and interstate river in paragraph (b) for the reasons A number of commenters suggested channels by slowing the flow of water described in section IV.I. and the that the agencies should exclude through channels and providing Technical Support Document. ephemeral streams from the definition substrate and habitat for aquatic Many comments recommended that of tributary, expressing concern that organisms. wetlands, ponds, and lakes that ephemeral waters that flow very rarely Moreover, the agencies have contribute flow to a traditional would be considered a jurisdictional historically considered ephemeral navigable water, interstate water, or the tributary. The rule definition of tributaries to be ‘‘waters of the United territorial seas but lack a bed and banks ‘‘tributary’’ requires that flow must be of States.’’ For example, for many years and ordinary high water mark not be sufficient volume, frequency, and EPA has reviewed and approved state considered as tributaries, because of the duration to create the physical water quality standards for ephemeral importance of those physical characteristics of bed and banks and an waters under CWA section 303(c), characteristics to the definition. ordinary high water mark. If a water several Corps’ Nationwide Permits Wetlands typically lack bed and banks lacks sufficient flow to create such under CWA section 404 address and ordinary high water mark, while characteristics, it is not considered a discharges of dredged or fill material lakes and ponds typically have an ‘‘tributary’’ under this rule. While some into ephemeral waters, and the agencies’ ordinary high water mark and a bed but commenters expressed concern that a definition of ‘‘waters of the United may lack banks. The proposed rule feature that flowed very rarely could States’’ prior to this rule included all expressly sought comment on whether meet the proposed definition of tributaries without reference to flow such waters should be considered as ‘‘tributary,’’ it is the agencies’ judgment regime. tributaries or as ‘‘adjacent waters,’’ that such a feature is not a tributary Numerous commenters asked that the recognizing that it might add an element under the rule because it would not final rule define ‘‘bed and banks,’’ of uncertainty to the definition of

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‘‘tributary’’ to include waters that lacked bordering, contiguous, or neighboring, occur. Wetlands and farm ponds in the physical features called for in the and thus adjacent. ‘‘Adjacent waters’’ which normal farming activities occur, definition. In addition, the SAB include wetlands, ponds, lakes, oxbows, as those terms are used in section 404(f) commented that tributaries are not impoundments, and similar water of the Clean Water Act and its typically defined to include lentic features. ‘‘Adjacent waters’’ do not implementing regulations, are not systems (still waters), and suggested that include any water excluded under jurisdictional under the Act as an the agencies reconsider including paragraph (b) of the rule. Note also that ‘‘adjacent’’ water. Waters in which ponds, lakes, and wetlands as covered a water that does not meet the definition normal farming, ranching, and adjacent waters instead of tributaries. of ‘‘adjacent waters’’ may be determined silviculture activities occur instead will SAB 2014b at 2. In response, the rule to be a ‘‘water of the United States’’ on continue to be subject to case-specific does not consider these waters to be a case-specific basis under paragraph review, as they are today. These waters tributaries, but defines covered adjacent (a)(8) of the rule. may be determined to have a significant waters to include wetlands, lakes, and Within the definition of ‘‘adjacent,’’ nexus on a case-specific basis under ponds that connect segments of the terms bordering and contiguous are paragraph (a)(7) or (a)(8). Recognizing tributaries or are at the head of the well understood, and for continuity and the vital role of farmers in providing the tributary system. See section G for clarity the agencies continue to interpret nation with food, fiber, and fuel, the further discussion. and implement those terms consistent Clean Water Act in Section 404(f) with the current policy and practice. exempts many normal farming activities G. Adjacent Waters Waters separated by a berm or other such as seeding, harvesting, cultivating, Section III above explains the basis for similar feature remain ‘‘adjacent’’ under planting, soil and water conservation the agencies’ conclusion that covered the definition. practices, and other activities from the adjacent waters have a significant nexus Some waters included under the Section 404 permitting requirement. with traditionally navigable waters, definition of ‘‘tributary’’ in the proposed ‘‘Normal’’ farming, ranching, and interstate waters, or the territorial seas. rule, after consideration of public silviculture is clarified in the agencies’ The adjacency provision is based on the comment, are ‘‘adjacent’’ in the final implementing regulations to mean best available science, intent of the rule. Specifically, waters that connect established and ongoing activities to CWA, and case law, and is consistent segments of, or are at the head of, a distinguish from activities needed to with the experience of the agencies in traditional navigable water, interstate convert an area to farming, silviculture, making case-specific significant nexus water, the territorial seas, an or ranching and activities that convert a determinations. As discussed above in impoundment, or a tributary are water to a non-water. 40 CFR Section III, the SAB concludes, ‘‘[t]he adjacent to that water. For example, a 232.3(c)(1). The rule reflects this available science supports [the pond that is the source water to a framework by clarifying the waters in agencies’] proposal to include adjacent tributary and borders the tributary at its which the activities Congress exempted waters and wetlands as waters of the uppermost reach is jurisdictional as an under Section 404(f) occur are not United States.’’ SAB 2014b at 2. This adjacent water. Further, the rule states jurisdictional as ‘‘adjacent.’’ It is section describes the provisions of the that an adjacent water includes important to recognize that rule governing adjacent waters, changes wetlands within or abutting its ordinary ‘‘tributaries,’’ including those ditches made to the adjacent waters provision high water mark. This language is that meet the tributary definition, are based on comments on the proposed designed to ensure that if there is a not ‘‘adjacent’’ waters and are rule, and, finally, how science and the fringe wetland abutting that pond that is jurisdictional by rule. law support the agencies’ conclusions in the source water to a tributary, that This provision interprets the intent of the final rule. wetland is considered part of the pond Congress and reflects the intent of the under the rule and such pond as a 1. What are the provisions of the rule? agencies to minimize potential whole, including any abutting wetlands, regulatory burdens on the nation’s Under the rule, ‘‘adjacent’’ means is jurisdictional as an adjacent water. agriculture community, and recognizes bordering, contiguous, or neighboring, For purposes of adjacency, including the work of farmers to protect and including waters separated from other all three provisions of the definition of conserve natural resources and water ‘‘waters of the United States’’ by ‘‘neighboring,’’ the entire water is quality on agricultural lands. While constructed dikes or barriers, natural adjacent if any part of the water is waters in which normal farming, river berms, beach dunes, and the like. bordering, contiguous or neighboring. silviculture, or ranching practices occur Waters adjacent to a traditional Therefore, the entire wetland is may be determined to significantly navigable water, interstate water, ‘‘adjacent’’ if any part of it is within the affect the chemical, physical, or territorial sea, impoundment, or distance thresholds established in the biological integrity of downstream tributary, are ‘‘waters of the United definition of ‘‘neighboring.’’ For navigable waters, the agencies believe States.’’ For purposes of adjacency, an example, if a tributary has a 1,000 foot that such determination should be made adjacent water includes wetlands within wide 100-year floodplain, then a water based on a case-specific basis instead of or abutting its ordinary high water mark. that is located within 1,000 feet of the by rule. The agencies also recognize that Adjacency is not limited to waters ordinary high water mark of a covered waters in which normal farming, located laterally to a traditional tributary and extends to 2,000 feet is silviculture, or ranching practices occur navigable water, interstate water, the jurisdictional in its entirety as are often associated with modifications territorial seas, an impoundment, or a ‘‘neighboring.’’ In addition, for purposes and alterations including drainage, tributary. Therefore, waters that connect of determining whether a water is changes to vegetation, and other segments of a traditional navigable ‘‘adjacent’’ artificial features (such as disturbances the agencies believe water, interstate water, the territorial roads) do not divide a water; rather, the should be specifically considered in seas, an impoundment, or a tributary or water is treated as one entire water. making a significant nexus are located at the head of a traditional The definition of ‘‘adjacent’’ in the determination. navigable water, interstate water, the rule does not include those waters in The rule establishes a definition of territorial seas, an impoundment, or a which established, normal farming, ‘‘neighboring’’ for purposes of tributary may be determined to be silviculture, and ranching activities determining adjacency. In the rule, the

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agencies identify three circumstances considered a single water for purposes identify the 100-year floodplain, under which waters would be of the rule because their small, including other Federal, State, or local ‘‘neighboring’’ and therefore ‘‘waters of intermingled wetland and non-wetland floodplain maps, Natural Resources the United States.’’ components are physically and Conservation Service (NRCS) Soil First, the term ‘‘neighboring’’ includes functionally integrated. These areas Surveys (Flooding Frequency Classes), all waters located in whole or in part often have complex micro-topography tidal gage data, and site-specific within 100 feet of the ordinary high with repeated small changes in modeling (e.g., Hydrologic Engineering water mark of a traditional navigable elevation occurring over short distances. Centers River System Analysis System water, interstate water, the territorial Science demonstrates that these or HEC–RAS). http:// seas, an impoundment, or a covered wetlands function as a single wetland websoilsurvey.sc.egov.usda.gov/App/ tributary. matrix having clearly hydrophytic HomePage.htm and HEC–RAS and Second, the term ‘‘neighboring’’ vegetation, hydric soils, and wetland http://www.hec.usace.army.mil/ includes all waters within the 100-year hydrology. As a result, the agencies will software/hec-ras/. Additional floodplain of a traditional navigable continue to evaluate these wetlands as supporting information can include water, interstate water, the territorial a single water under the rule. Where any historical evidence, such as seas, an impoundment, or a covered portion of these wetland types is photographs, prior delineations, tributary that is located in whole or in bordering, contiguous or neighboring, topographic maps, and existing site part within 1,500 feet of the ordinary the entire wetland is a ‘‘water of the characteristics. Because identifying the high water mark of that jurisdictional United States.’’ Similarly, for purposes 100-year floodplain is an important water. In this rule, the agencies interpret of a case-specific determination under aspect of establishing jurisdiction under ‘‘100-year floodplain’’ to mean ‘‘the area paragraph (a)(8), wetlands of these types the rule and the reliable and appropriate that will be inundated by the flood constitute a single water when making event having a one percent chance of tools for identifying the 100-year a significant nexus determination. Other floodplain may vary, the agencies will being equaled or exceeded in any given wetlands may also have intermingled coordinate with other federal and state year.’’ This is consistent with the wetland and non-wetland components agencies to develop additional Federal Emergency Management that are so physically and functionally information for EPA and Corps field Agency’s (FEMA) definition of ‘‘100- integrated they can be considered a staff to further improve tools for year flood.’’ If the 100-year floodplain is single water for purposes of the rule. identifying the 100-year floodplain in a greater than 1,500 feet from the ordinary Groups of wetlands that are simply part consistent, predictable, and high water mark, only those waters that of a complex of wetlands would not be scientifically valid manner. are located in whole or in part within considered a single water for purposes 1,500 feet of the ordinary high water of the rule. When determining the outer distance mark are ‘‘neighboring.’’ In addition, if The final rule also makes some threshold for an ‘‘adjacent water’’ the the 100-year floodplain is less than ministerial changes to the definition of line is drawn perpendicular to the 1,500 feet from the ordinary high water ‘‘adjacent.’’ The existing regulation ordinary high water mark or high tide mark, only those waters located in defined ‘‘adjacent’’ to mean ‘‘bordering, line of the traditional navigable water, whole or in part within the floodplain contiguous, or neighboring,’’ and had a interstate water, the territorial seas, are ‘‘neighboring’’ under this provision. second sentence that clarified that impoundment, or covered tributary and Third, the rule defines ‘‘neighboring’’ wetlands separated by berms and the extended landward from that point. If to include all waters located in whole or like remain adjacent wetlands. The final there are breaks in the ordinary high in part within 1,500 feet of the high tide rule combines those sentences without water mark, the line should be line of a traditional navigable water or changing the scope of adjacency. extrapolated from the point where the the territorial seas, and all waters When determining the jurisdictional ordinary high water mark is observed on located within 1,500 feet of the ordinary boundaries under the CWA for the downstream side to the point where high water mark of the Great Lakes. This ‘‘adjacent waters,’’ the agencies will rely the ordinary high water mark is lost on provision defines waters that begin on published FEMA Flood Zone Maps the upstream side. Therefore, waters within 1,500 feet of a tidally-influence to identify the location and extent of the may meet the definition of neighboring traditional navigable water or the 100-year floodplain. https:// even where, for example, a tributary territorial seas and waters within 1,500 msc.fema.gov/portal. These maps are temporarily flows underground. feet of the ordinary high water mark of publicly available and provide a readily The agencies emphasize that they the Great Lakes as ‘‘waters of the United accessible and transparent tool for the fully support efforts by States and tribes States.’’ To provide clarity for this public and agencies to use in locating to protect under their own laws any aspect of the definition, the agencies the 100-year floodplain. It is important additional waters, including locally incorporated the Corps’ existing to recognize, however, that much of the definition of high tide line into EPA’s United States has not been mapped by special waters that may not be within regulations at paragraph (c)(7) in the FEMA and, in some cases, a particular the Federal protections of the CWA as rule. map may be out of date and may not the agencies have interpreted its scope As noted above, the rule provides that accurately represent existing in this rule. In promulgating the with respect to the boundaries for circumstances on the ground. The adjacent water boundaries, the agencies covered adjacent waters the entire water agencies will determine if a particular have balanced protection and clarity, is jurisdictional as long as the water is map is no longer accurate based on scientific uncertainties and regulatory at least partially located within the factors, such as streams or rivers moving experience, and established boundaries distance threshold, and the agencies out of their channels with associated that are, in their judgment, reasonable interpret the rule to apply to any single changes in the location of the and consistent with the statute and its water or wetland that may straddle a floodplain. In the absence of applicable goals and objectives. distance threshold. Low-centered FEMA maps, or in circumstances where If waters identified in this section are polygonal tundra and patterned ground an existing FEMA map is deemed by the determined to be adjacent, no case- bogs (also called strangmoor, string agencies to be out of date, the agencies specific significant nexus evaluation is bogs, or patterned ground fens) are will rely on other available tools to required.

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2. What changes did the agencies make only contribute flow, but they also ‘‘neighboring.’’ Some commenters from the proposed rule based on public border or are contiguous to the waters supported including all wetlands and comments? to which they contribute flow. The SAB other waters in the 100-year floodplain In the proposal, the agencies sought in particular commented that the as categorically jurisdictional. Other comment on a number of ways to agencies ‘‘may want to consider whether commenters requested that floodplain address and clarify jurisdiction over flow-through lentic systems should be size be based on tributary size, while ‘‘adjacent waters,’’ including included as ‘‘adjacent waters’’ and others suggested that it should be based establishing a floodplain interval and wetlands, rather than as tributaries.’’ on soil and geologic features, and some providing clarity on reasonable SAB 2014b at 2. In light of the suggested the use of the FEMA flood proximity as an important aspect of comments and to provide additional zone maps. Some commenters stated adjacency. In light of the comments, the clarity, the agencies revised the that ‘‘reasonable proximity’’ was neither science, the agencies’ experience, and definitions of ‘‘adjacent’’ and defined nor clarified adjacency, noting ‘‘tributary’’ to include these waters as that adjacency should not apply to the Supreme Court’s consistent ‘‘adjacent.’’ waters separated from a ‘‘water of the recognition of the agencies’ discretion to Under the existing rule, there is no United States’’ by great distances. interpret the bounds of CWA definition for the term ‘‘neighboring,’’ In response to comments and to jurisdiction, the agencies have made and the public commented that not provide greater clarity and consistency, some revisions in the final rule designed having a definition created a lack of in the rule the agencies establish a to more clearly establish boundaries on clarity and inconsistent field practices definition of neighboring which the scope of ‘‘adjacent waters.’’ across the nation. In the proposal, provides additional specificity Under the proposal and the final rule, ‘‘neighboring’’ was defined to include requested by some commenters, ‘‘adjacent waters’’ are jurisdictional waters located within the riparian area including establishing a floodplain based on the conclusion that they have or floodplain of a traditional navigable interval and providing specific a significant nexus to traditional water, interstate water, territorial sea, boundaries from traditional navigable navigable waters, interstate waters, or impoundment, or tributary; waters with waters, interstate waters, the territorial the territorial seas, and there is no need a shallow subsurface hydrologic seas, impoundments, and tributaries. In for additional analysis. Some connection to a jurisdictional water; and the proposal, the agencies requested commenters wanted a case-specific waters with a confined surface comment on whether the rule should analysis for all ‘‘adjacent waters’’ as hydrologic connection to a provide greater specificity with regard they believed that the waters would not jurisdictional water. Although the to how the agencies will determine if a individually have a significant nexus to definitions were scientifically-based for water is located in the floodplain of a an adjacent ‘‘water of the United the terms ‘‘riparian area’’ and jurisdictional water. 79 FR 22209. As States,’’ while others noted that their ‘‘floodplain’’ to define the lateral reach recommended by the public and based functional relationship to the of the term ‘‘neighboring,’’ some on science, the agencies’ boundaries for downstream traditional navigable commenters indicated that the proposed ‘‘neighboring’’ are based largely on use waters, interstate waters, or the definitions to clarify neighboring were of the 100-year floodplain. The agencies territorial seas warranted the conclusion not clear. Those commenters requested concluded that the use of the riparian that they were all jurisdictional. Based that a specific floodplain interval or area was unnecessarily complicated and on a review of the science, the agencies’ other limitation should be established to that as a general matter, waters in the expertise and experience, and the law, more clearly identify the outer limit of riparian area will also be in the 100-year the agencies determined that ‘‘adjacent neighboring. Some commenters stated floodplain. Further, should the riparian waters,’’ as defined, alone or in that the proposed definition of area on occasion extend beyond the 100- combination with other covered ‘‘neighboring’’ was unclear, while other year floodplain, the agencies have the ‘‘adjacent waters’’ in a watershed have commenters found the definition helped ability to perform a case-specific a significant nexus to a traditional clarify CWA jurisdiction and were significant nexus analysis on a water out navigable water, interstate water or the supportive of including a broad to 4,000 feet from the ordinary high territorial seas and therefore are ‘‘waters definition, based on ecological water mark or high tide line of a of the United States’’ without the need interconnectedness. traditional navigable water, interstate for any additional analysis. However, Some commenters stated that the water, the territorial sea, impoundment, the rule also provides for case-specific proposed definitions of ‘‘riparian area’’ or tributary. The agencies have drawn analysis of some waters that do not meet and ‘‘floodplain’’ were vague or these lines based on their technical the definition of ‘‘neighboring’’ ambiguous, broad or effectively expertise and experience in order to established by the rule. See section limitless, beyond the agencies’ authority provide a rule that is practical to IV.H. or difficult or impossible to implement understand and implement and protects The proposal included wetlands, in the field. Other commenters were those waters that significantly affect the ponds, lakes, and impoundments that supportive of using the riparian area as chemical, physical, or biological contribute flow, directly or indirectly, to a basis for adjacency. Some commenters integrity of traditional navigable waters, the downstream traditional navigable asked why the agencies were proposing interstate waters, or the territorial seas. waters, interstate waters, or the a new definition of ‘‘floodplain’’ that Because science indicates that territorial seas in the definition of was inconsistent with the definition connectivity is on a gradient, the ‘‘tributary.’’ Some commenters used by other Federal agencies like agencies have also identified limited expressed concern that since such NRCS or FEMA. Some commenters circumstances in which waters that do waters generally do not have both an suggested that if the agencies use not meet the definition of ‘‘neighboring’’ ordinary high water mark and a bed and floodplains as a means to define may be determined on a case-specific banks, the definition of tributary was ‘‘neighboring,’’ it should be limited to basis to have a significant nexus. See contradictory and confusing. The the area inundated by the 2-year, 5-year, section IV.I. agencies sought comment on whether to 10-year, or 20-year flood, while other First, the rule establishes as treat these waters as ‘‘adjacent waters’’ commenters supported the use of the ‘‘neighboring’’ waters that occur within instead of tributaries, since they not 100-year floodplain as a component of 100 feet from traditional navigable

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waters, interstate waters, the territorial jurisdictional those waters that occur particularly since altering it could affect seas, impoundments, and tributaries. within 1,500 feet of tidally-influenced the downstream waters. A few Second, the rule utilizes a specific traditional navigable waters or the commenters simply requested floodplain and also establishes territorial seas. clarifications regarding issues such as maximum distances for purposes of The proposal defined ‘‘neighboring’’ how to determine whether a subsurface ‘‘neighboring.’’ Studies have found that to include waters with a surface connection exists; the meaning of waters within the floodplain are connection to jurisdictional waters and ‘‘shallow;’’ distinguishing between dynamically connected and frequently some commenters recommended ‘‘shallow’’ and ‘‘deep;’’ whether there interact with the downstream traditional eliminating surface hydrologic were any boundaries on adjacency via navigable water, interstate water, connectivity as a basis for adjacency. hydrologic connectivity; and territorial sea, impoundment, or The definition of neighboring does not determining whether the connection tributary. Some commenters indicated include a provision defining was ‘‘sufficient’’ to establish adjacency. that a specific floodplain or other ‘‘neighboring’’ based on a surface In order to provide more certainty to the designation should be set to define the hydrologic connection. However, waters public, the rule does not include a outer boundary of ‘‘neighboring.’’ with confined surface hydrologic provision defining neighboring based on Further, some commenters requested connections are considered adjacent shallow subsurface flow, though such that the 100-year floodplain designation where they are bordering, contiguous, or flow may be an important factor in be used to define the outer boundary of neighboring a traditional navigable evaluating a water on a case-specific adjacency because the public water, interstate water, the territorial basis under paragraph (a)(8), as understands this concept. Several seas, impoundment, or covered appropriate. commenters recommended that FEMA tributary. For example, a water with a Some commenters expressed concern or NRCS maps be used to support the confined surface hydrologic connection that the agencies’ proposed definition of analysis as these maps are easily to a traditional navigable water that is ‘‘neighboring,’’ ‘‘riparian area,’’ and accessible to the public. Because FEMA 1,200 feet from the high tide line of that ‘‘floodplain’’ would mean that all land maps exist for many areas of the country water would meet the definition of within the floodplain or riparian area and the NRCS Soil Survey maps do as neighboring and be considered an would become regulated. In fact, only well, the agencies decided that defining adjacent water. In circumstances where waters, not land, in the floodplain or ‘‘neighboring’’ based in part on a a water does not meet the definition of riparian area would have been particular floodplain or recurrence neighboring but is located within the considered adjacent under the proposed interval was a reasonable means of 100-year floodplain of a traditional rule. Similarly, under the final rule, ensuring the consistency and certainty navigable water, interstate water, or the only waters, not land, are adjacent. In that is important to the public and for territorial seas, or within 4,000 feet of a response, the agencies have eliminated implementation of the CWA. In drawing jurisdictional water, a confined surface the definitions of floodplain and lines, the agencies chose the 100-year hydrologic connection may be an riparian area and have provided a floodplain in part because FEMA and important factor in evaluating a case- definition of neighboring which is clear NRCS together have generally mapped specific significant nexus under that only waters in specified large portions of the United States, and paragraph (a)(8). See section H. below. circumstances may be ‘‘waters of the these maps are publicly available, well- The proposal defined ‘‘neighboring’’ United States.’’ known and well-understood. to include waters connected with a The agencies also eliminated a Because the 100-year floodplain can shallow subsurface connection, and parenthetical from the existing be very wide in some areas of the some commenters recommended ‘‘adjacent wetlands’’ regulatory country, particularly near large rivers, eliminating subsurface hydrologic provision. The phrase ‘‘other than the agencies chose to provide increased connectivity as a basis for adjacency. waters that are themselves wetlands’’ clarity and certainty while ensuring that For example, some commenters asserted was intended to preclude asserting waters that provide important functions that, because the CWA does not apply CWA jurisdiction over wetlands that significantly affecting the chemical, to groundwater, the agencies do not were simply adjacent to a non- physical, and biological integrity of the have the authority to assert jurisdiction jurisdictional wetland. Such waters do downstream traditional navigable over waters connected to other ‘‘waters not meet the definition of ‘‘adjacent’’ waters, interstate waters, or the of the United States’’ via a shallow under the rule since waters must be territorial seas are protected by subsurface hydrologic connection. Some adjacent to a traditional navigable water, establishing a 1,500 foot maximum commenters were concerned that the interstate water, the territorial seas, distance for neighboring waters in the distinction between ‘‘groundwater’’ and impoundment, or covered tributary, so rule. Waters within the 100-year a ‘‘shallow subsurface connection’’ was the phrase is unnecessary and floodplain to a maximum of 1,500 feet unclear and questioned whether using a confusing. With this change, the of the ordinary high water mark are shallow subsurface connection as a agencies are protecting all waters that adjacent without regard to the presence basis for adjacency is contradictory to meet the definition of ‘‘adjacent’’ as of berms or other barriers. However, excluding groundwater—including ‘‘waters of the United States,’’ and because the science demonstrates that groundwater drained through eliminating confusion caused by the floodplain waters provide important subsurface drainage systems—as a parenthetical. For example, where the functions for downstream waters, the ‘‘water of the United States.’’ Some 100-year floodplain is greater than 1,500 agencies have established a provision commenters supported use of shallow feet, all wetlands within 1,500 feet of under paragraph (a)(8) for case-specific subsurface connectivity for adjacency, the tributary’s ordinary high water mark significant nexus evaluations of waters since the significant nexus test would be are jurisdictional because they are located in the 100-year floodplain of a employed to make the determination of ‘‘neighboring’’ to the tributary, traditional navigable water, interstate jurisdiction. Several commenters regardless of the wetlands’ position water, or the territorial seas beyond suggested that the rule should protect relative to each other. 1,500 feet. groundwater and shallow subsurface Some commenters stated that the The rule also establishes a separate flow, due to its connectivity to other proposed rule was an expansion of bright line for including as ‘‘waters of the United States’’ and jurisdiction because it would change the

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provision from ‘‘adjacent wetlands’’ to perform a myriad of critical chemical seepage, or the flow of water through ‘‘adjacent waters.’’ The agencies and biological functions associated with the soil pores, or via over-topping, acknowledge that under the existing the downstream traditional navigable where water from the nearby traditional regulation, the adjacency provision waters, interstate waters, or the navigable water, interstate water, the applied only to wetlands adjacent to territorial seas. Such waters are territorial seas, impoundment, or ‘‘waters of the United States.’’ However, integrally linked with the jurisdictional covered tributary periodically overtops also under the existing regulation, waters to which they are adjacent. the berm or other similar feature. Berm- ‘‘other waters’’ (such as intrastate rivers, Because of their close physical like landforms known as natural levees lakes and wetlands that are not proximity to nearby jurisdictional occur naturally and do not isolate otherwise jurisdictional under other waters, bordering or contiguous waters adjacent wetlands from the streams that sections of the rule) could be readily exchange their waters through form them. Natural levees and the determined to be jurisdictional if the the saturated soils surrounding the wetlands and waters behind them are use, degradation or destruction of the traditional navigable water, interstate part of the floodplain. Natural levees are water could affect interstate or foreign water, the territorial seas, discontinuous, which allows for a commerce. This provision of the impoundment, or covered tributary or hydrologic connection to the stream or existing regulation reflected the through surface exchange. This river via openings in the levees and thus agencies’ interpretation at the time of commingling of waters allows bordering the periodic mixing of river water and the jurisdiction of the CWA to extend to or contiguous waters to both provide backwater. Man-made levees and the maximum extent permissible under chemically transformed waters to similar structures also do not isolate the Commerce Clause of the streams and to absorb excess stream ‘‘adjacent waters.’’ Waters, including Constitution. Therefore, while the flow, which in turn can significantly wetlands, separated from a language of the specific adjacency affect downstream traditional navigable jurisdictional water by a natural or man- provision in the final rule may have waters, interstate waters, or the made berm serve many of the same changed from wetlands to waters, that territorial seas. The close proximity also functions as other ‘‘adjacent waters.’’ does not represent an expansion of allows for the direct exchange of Furthermore, even in cases where a jurisdiction as a whole in comparison to biological materials, including organic hydrologic connection may not exist, the existing regulation, since adjacent matter that serves as part of the food there are other important non-wetland waters would have been web of downstream traditional considerations, such as chemical and subject to jurisdiction under the ‘‘other navigable waters, interstate waters, or biological functions, that result in a waters’’ provision. The final rule does the territorial seas. Waters that are significant nexus between the adjacent not protect all waters that were bordering or contiguous are often wetlands or waters and the nearby protected under the ‘‘other waters’’ located on the floodplain or within the ‘‘waters of the United States,’’ and provision of the existing regulation, and riparian area of the waters to which they traditional navigable waters, interstate therefore the inclusion of adjacent are adjacent. Bordering or contiguous waters, or the territorial seas. On this ponds, for example, in the ‘‘adjacent waters include those that directly abut point, Justice Kennedy stated: ‘‘In many waters’’ provision of the final rule does a traditional navigable water, interstate not reflect an overall expansion of water, the territorial seas, cases, moreover, filling in wetlands jurisdiction when compared to the impoundment, or covered tributary. The separated from another water by a berm existing regulation. Science Report and the Technical can mean that floodwater, impurities, or Support Document demonstrate that runoff that would have been stored or 3. How do science and law support the such waters are physically, chemically, contained in the wetlands will instead rule? and biologically integrated with flow out to major waterways. With these Based on a review of the scientific downstream traditional navigable concerns in mind, the Corps’ definition literature and the agencies’ expertise waters, interstate waters, or the of adjacency is a reasonable one, for it and experience the agencies determined territorial seas and significantly affect may be the absence of an interchange of that the categories of waters discussed their integrity. waters prior to the dredge and fill below are integrally linked to the activity that makes protection of the chemical, physical, or biological b. Waters Separated From Other wetlands critical to the statutory functions of waters to which they are ‘‘Waters of the United States’’ by scheme.’’ Rapanos at 775. For instance, adjacent and downstream to the Constructed Dikes or Barriers, Natural covered adjacent waters behind berms traditional navigable waters, interstate River Berms, Beach Dunes and the Like can still serve important water quality waters or the territorial seas. Therefore, Adjacent waters separated from a functions, serving to filter pollutants the agencies determined that the waters traditional navigable water, interstate and sediment before they reach defined as adjacent have a significant water, the territorial seas, downstream waters. Wetlands and open nexus with traditional navigable waters, impoundment, or covered tributary by waters behind berms, where the system interstate waters or the territorial seas constructed dikes or barriers, natural is extensive, can help reduce the and are thus ‘‘waters of the United river berms, beach dunes, and the like impacts of storm surges caused by States.’’ Additional information, continue to have a significant effect on hurricanes. Such ‘‘adjacent waters,’’ including citations, can be found in downstream traditional navigable including wetlands, separated from section III of the preamble, the Science waters, interstate waters, or the waters by berms and the like maintain Report, and the Technical Support territorial seas, either alone or in ecological connection with those waters. Document for the rule. combination with other ‘‘adjacent It is not the existence of the dike, levee, waters.’’ Such waters continue to have and the like that makes these waters a. Waters that are Bordering or a hydrologic connection to downstream jurisdictional. Adjacent waters Contiguous waters. This is because constructed separated from the tributary network by As discussed in section III above, dikes or barriers, natural river berms, constructed dikes or barriers, natural wetlands, ponds, lakes, oxbows, beach dunes, and the like typically do river berms, beach dunes, and the like impoundments, and similar water not block all water flow. This continue to have a hydrologic features that are bordering or contiguous hydrologic connection can occur via connection to downstream waters.

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Waters behind berms and the like can floodplain waters within close Report concludes that wetlands and significantly affect the chemical, proximity of the stream network often open waters located in ‘‘floodplains are physical, and biologic integrity of are able to have more water quality physically, chemically and biologically traditional navigable waters, interstate benefits than those located at a distance integrated with rivers via functions that waters, or the territorial seas. from the stream. Many studies indicate improve downstream water quality, that the primary water quality and including the temporary storage and c. Waters Within 100 Feet habitat benefits will generally occur deposition of channel-forming sediment All wetlands, ponds, lakes, oxbows, within a several hundred foot zone of a and woody debris, temporary storage of impoundments, and similar water water. In addition, the scientific local ground water that supports features that are located in whole or in literature indicates that to be effective, baseflow in rivers, and transformation part within 100 feet of the ordinary high contaminant removal needs to occur at and transport of stored organic matter.’’ water mark of a jurisdictional water a reasonable distance prior to entry into Science Report at ES–2 to ES–3. Such perform a myriad of critical chemical, the downstream traditional navigable waters act as the most effective buffer to physical, and biological functions waters, interstate waters, or the protect downstream waters from associated with the downstream territorial seas. Some studies also nonpoint source pollution (such as traditional navigable water, interstate indicate that fish, amphibians (e.g., nitrogen and phosphorus), provide water or the territorial seas and frogs, toads), reptiles (e.g., turtles), and habitat for breeding fish and aquatic therefore the agencies have determined small mammals (e.g., otters, beavers, insects that also live in streams, and that they are ‘‘neighboring’’ and thus etc.) will use at least a 100 foot zone for retain floodwaters, sediment, nutrients, ‘‘waters of the United States.’’ Waters foraging, breeding, nesting, and other and contaminants that could otherwise within 100 feet of a jurisdictional water life cycle needs. negatively impact the condition or are often located within the riparian Based on a review of the scientific function of downstream waters. area and are often connected via surface literature and the agencies’ expertise For waters in the 100-year floodplain and shallow subsurface hydrology to the and experience, there is clear evidence within 1,500 feet of the ordinary high water to which they are adjacent. While that the identified waters within 100 water mark of a traditional navigable the SAB was clear that distance is not feet of the ordinary high water mark of water, interstate water, the territorial the only factor that influences a jurisdictional water, even when seas, impoundment, or covered connections and their effects located outside the floodplain, perform tributary, the agencies determine there downstream, due to their close critical processes and functions is a significant nexus with the proximity to jurisdictional waters, discussed in section III above. All downstream traditional navigable waters within 100 feet are often located waters within 100 feet of a jurisdictional waters, interstate waters, or the within a landscape position that allows water significantly affect the chemical, territorial seas and these waters are for them to receive and process surface physical, or biological integrity of the critical to protect the downstream and shallow subsurface flows before waters to which they are adjacent, and waters. Based on a review of the they reach streams and rivers. These those waters in turn significantly affect scientific literature, the agencies’ waters individually and collectively the chemical, physical, or biological technical expertise and experience, and affect the integrity of downstream integrity of the downstream traditional the implementation value of drawing waters by acting primarily as sinks that navigable waters, interstate waters, or clear lines, the rule establishes a retain floodwaters, sediments, nutrients, the territorial seas. The agencies boundary for floodplain waters to meet and contaminants that could otherwise established a 100 foot threshold from the definition of ‘‘neighboring’’ and be negatively impact the condition or the water’s lateral limit in the definition ‘‘waters of the United States’’ by rule. function of downstream waters. of neighboring because, based on the This boundary was established in order Wetlands and open waters within close agencies’ expertise and experience to protect vitally important waters proximity of jurisdictional waters implementing the CWA and in light of within a watershed while at the same improve water quality through the science, the agencies concluded this time providing a practical and assimilation, transformation, or was a reasonable and practical boundary implementable rule. The agencies are sequestration of nutrients, sediment, within which to conclude the waters not determining that waters in the and other pollutants that can affect the clearly significantly affected the floodplain farther than 1,500 feet from integrity of downstream traditional integrity of traditional navigable waters, the ordinary high water mark never navigable waters, interstate waters, or interstate waters, or the territorial seas, have a significant nexus. Rather, the the territorial seas. These waters, and these ‘‘adjacent waters’’ are ‘‘waters agencies are using their technical including wetlands, also provide of the United States.’’ expertise to promulgate a practical rule important habitat for aquatic-associated that draws reasonable boundaries in d. Floodplain Waters Within 1,500 Feet species to forage, breed, and rest. order to protect the waters that most In order to provide greater clarity and As discussed in section III above, clearly have a significant nexus while consistency and based on a review of wetlands and open waters that are minimizing uncertainty about the scope the science and the agencies’ expertise neighboring perform a myriad of critical of ‘‘waters of the United States.’’ and experience, the agencies identified chemical and biological functions Because waters beyond these a 100 foot threshold for neighboring associated with the downstream boundaries may have a significant waters to a traditional navigable water, traditional navigable waters, interstate nexus, the rule also establishes areas in interstate water, territorial sea, tributary, waters, or the territorial seas. The which a case-specific significant nexus or impoundment. Further, the agencies scientific literature supports that determination must be made. See determined that there is a significant wetlands and open waters in section IV.H. nexus with the downstream traditional floodplains are chemically, physically, navigable waters, interstate waters, or and biologically connected to e. Waters Within 1,500 Feet of Tidally- the territorial seas, and these ‘‘adjacent downstream traditional navigable Influenced Traditional Navigable Waters waters’’ are ‘‘waters of the United waters, interstate waters, or the or the Territorial Seas or the Great Lakes States.’’ With respect to provision of territorial seas and significantly affect Many tidally-influenced waters do not water quality benefits downstream, non- the integrity of such waters. The Science have floodplains, so the agencies

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include a separate provision within the interstate waters, or the territorial seas seas, an impoundment, or a tributary, definition of ‘‘neighboring’’ to protect because of the hydrological and may still be determined to have a the ‘‘adjacent’’ waters that have a ecological connections to and significant nexus on a case-specific significant nexus to tidally-influenced interactions with those waters. basis under paragraph (a)(8) of the rule traditional navigable waters or the Science demonstrates that distance is and therefore be a ‘‘water of the United territorial seas or the Great Lakes. Under a factor in the connectivity and the States.’’ See section IV.H. Riverside Bayview and Justice strength of connectivity of wetlands and H. Case-Specific ‘‘Waters of the United Kennedy’s opinion in Rapanos, waters open waters to downstream waters. States’’ adjacent to traditional navigable waters, Thus, waters that are more distant including the territorial seas, are generally have less opportunity to be The rule establishes two exclusive ‘‘waters of the United States.’’ Because connected to downstream waters. circumstances under which case- the connection to a tidally-influenced Wetlands and open waters closer to the specific determinations will be made for traditional navigable water, the stream network generally will have whether a water has a ‘‘significant territorial seas, or the Great Lakes is so greater hydrologic and biological nexus’’ and is therefore a ‘‘water of the close, the rule defines ‘‘neighboring’’ to connectivity than waters located farther United States.’’ The proposed rule include waters within 1,500 feet of the from the same network. For instance, included a broad provision that allowed high tide line or the ordinary high water waters that are more closely proximate for a case-specific determination of mark of the Great Lakes. Wetlands, have a greater opportunity to contribute significant nexus for any water that was ponds, lakes, oxbows, impoundments, flow. Via their hydrologic connectivity, not categorically jurisdictional or and similar water features within 1,500 they also have chemical connectivity to excluded. Many commenters expressed feet of these waters are physically and effects on these downstream waters concern that such a broad opportunity connected to such waters by surface and and are more likely to impact water for case-specific ‘‘waters of the United shallow subsurface flow. As quality due to their close distance. States’’ determinations would lead to demonstrated in section III above, these Waters more closely located to these too much uncertainty about the waters perform a myriad of critical waters are also more likely to be jurisdictional status of waters in broad chemical and biological functions biologically connected to such waters areas throughout the country. The associated with these nearby waters to more frequently and by more species, agencies have greatly reduced the extent which they are adjacent. including amphibians and other aquatic of waters subject to this individual These waters in combination animals. Because tidally-influenced review by carefully incorporating the significantly affect the integrity of the traditional navigable waters, the scientific literature and by utilizing connected tidally influenced traditional territorial seas, and the Great Lakes are agency expertise and experience to draw navigable water or the territorial seas or generally much larger in size than other boundaries. The rule provides for case- the Great Lakes by acting primarily as jurisdictional waters, the agencies specific determinations under more sinks that retain floodwaters, sediments, believe that a 1,500 foot threshold is a narrowly targeted circumstances based nutrients, and contaminants that could reasonable distance to capture most on the agencies’ assessment of the otherwise negatively impact the wetlands and open waters that are so importance of certain specified waters condition or function of those waters. closely linked to these waters that they to the chemical, physical, and biological Like floodplain waters, the scientific can properly be considered adjacent as integrity of traditional navigable waters, literature supports that wetlands and neighboring waters. interstate waters, and the territorial seas. other similar waters within close Based on a review of the scientific First, the rule identifies at paragraph proximity improve water quality literature and the agencies’ expertise (a)(7) five subcategories of waters through assimilation, transformation, or and experience, there is clear evidence (Prairie potholes, Carolina and sequestration of nutrients, sediment, waters within 1,500 feet of these waters, Delmarva bays, pocosins, western vernal and other pollutants that can affect even when located outside the pools in California, and Texas coastal downstream water quality. These waters floodplain, perform critical processes prairie wetlands) that the agencies have also provide important habitat for and functions discussed in section III determined are ‘‘similarly situated’’ for aquatic-associated species to forage, above. The agencies established a 1,500 purposes of a significant nexus breed, and rest in. foot threshold from the water’s lateral determination. Second, the rule For example, wetlands dominated by limit, which would be either the high identifies at paragraph (a)(8) specific grass-like vegetation that occur in tide line or the ordinary high water circumstances under which waters will depressional areas between sand dunes mark, in the definition of neighboring be subject to a case-specific significant or beach ridges along the territorial seas because, based on the agencies’ nexus determination but for which the and the Great Lakes shoreline are expertise and experience implementing agencies have not made a ‘‘similarly dependent upon these waters for their the CWA and in light of the science, the situated’’ determination: Waters within water source. The waters, including agencies concluded this was a the 100-year floodplain of a traditional wetlands, generally form when water reasonable and practical boundary navigable water, interstate water, or the levels of the territorial seas fall or the within which to conclude the waters territorial seas, and waters within 4,000 Great Lakes drop, creating swales that most clearly significantly affected the feet of the high tide line or the ordinary support a diverse mix of wetland integrity of the traditional navigable high water mark of a traditional vegetation and many endangered and water or the territorial seas, and these navigable water, interstate water, the threatened species. Many studies covered adjacent waters are ‘‘waters of territorial seas, impoundments, or demonstrate that these waters have been the United States.’’ Waters located tributaries, as defined. If any water shown to act in concert with the rising within the 100-year floodplain of a meets the definition of ‘‘adjacent’’ and lowering of the tide, and that the traditional navigable water, interstate waters it is jurisdictional under critical functions provided by these water, or the territorial seas, and waters paragraph (a)(6) and no case-specific waters are similar and play an important located more than 1,500 feet and less significant nexus is required. Waters role in maintaining the chemical, than 4,000 feet from the ordinary high that do not fall within the six physical, or biological integrity of the water mark of a traditional navigable categorically jurisdictional waters nearby traditional navigable waters, water, interstate water, the territorial identified in paragraph (a)(1) through

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(a)(6) of the rule or within these two jurisdictional under paragraph (a)(6) of paragraph (a)(8) remain ‘‘similarly case-specific provisions are not ‘‘waters the rule must be assessed in situated’’ waters under paragraph (a)(7). of the United States.’’ combination with all waters of the same These similarly situated waters are This section first discusses the five subcategory in the region identified by evaluated in combination for their effect subcategories of waters that the agencies the watershed that drains to the nearest on the chemical, physical, or biological determine are ‘‘similarly situated’’ for point of entry of a traditional navigable integrity of traditional navigable waters, purposes of a significant nexus water, interstate water, or the territorial interstate waters, or the territorial seas. determination; second, the 100-year seas (hereinafter referred to as the point Additional details about the case- floodplain and 4,000 foot boundaries of entry watershed). specific significant nexus analysis are under which waters will be subject to a When performing a case-specific found in section 4 below. case-specific significant nexus significant nexus evaluation for a water determination but for which the 2. Waters Within the 100-Year in the paragraph (a)(7) subcategories, the Floodplain of a Traditional Navigable agencies have not made a ‘‘similarly rule establishes which waters must be situated’’ determination; third, the Water, Interstate Water, or the considered in combination. The Territorial Seas and Waters Within definition of ‘‘significant nexus’’ and similarly situated waters identified in how the case-specific significant nexus 4,000 Foot Boundary for Which a Case- the subparagraphs will be combined Specific Significant Nexus determinations will be made under with other waters in the same these two provisions; and, finally, the Determination Is Required subparagraph located in a single point Paragraph (a)(8) in the rule specifies revisions made to the rule with respect of entry watershed. For example, under to case-specific determinations and that a water that does not otherwise paragraph (a)(7) only western vernal major comments. meet the definition of adjacency is pools can be analyzed with other evaluated on a case-specific basis for 1. Waters Determined To Be ‘‘Similarly western vernal pools in the same point significant nexus under this paragraph Situated’’ by Rule for Which a Case- of entry watershed. Waters identified in where it is located within the 100-year Specific Significant Nexus the subparagraphs that are otherwise floodplain of a traditional navigable Determinations Is Required jurisdictional under the rule cannot be water, interstate water, or the territorial In the rule, paragraph (a)(7) specifies considered in combination with seas or within 4,000 feet of the high tide the subcategories of waters (Prairie paragraph (a)(7) waters for purposes of line or ordinary high water mark of a potholes, Carolina and Delmarva bays, a case-specific significant nexus traditional navigable water, interstate pocosins, western vernal pools in determination under paragraph (a)(7). water, the territorial seas, California, and Texas coastal prairie Individual waters of the specified impoundment, or covered tributary. wetlands) that, if they are not otherwise subcategories may be jurisdictional Although these waters are not jurisdictional under paragraphs (a)(1) under other paragraphs of this rule (e.g., considered similarly situated by rule, through (a)(6), the agencies determine to a Prairie pothole that sits on a state waters under this paragraph can be be ‘‘similarly situated’’ by rule. In the border is an interstate water under determined on a case-specific basis to be proposal the agencies sought comment paragraph (a)(2) or a western vernal pool similarly situated. This is a change from on a number of options to address that meets the definition of adjacent the proposal which would have allowed remaining waters that did not fit within under paragraph (a)(6)). Where those for a similarly situated analysis and the jurisdictional categories, including individual waters are jurisdictional significant nexus determination for any whether to conclude that other waters under paragraph (a)(1) through (a)(6) by water, anywhere in the region. Under were ‘‘similarly situated’’ in certain rule, no case-specific significant nexus the rule, the waters specified in areas of the country or whether to analysis is required. The rule also states paragraph (a)(7) and waters that meet conclude that specified subcategories of that waters in paragraph (a)(7) shall not the requirements in paragraph (a)(8) are waters were jurisdictional. 79 FR 22215, be combined with waters jurisdictional the only waters for which a case-specific 22216. The agencies concluded that under paragraph (a)(6). Essentially, significant nexus determination may be waters within the five subcategories while Prairie potholes are an identified made. were ‘‘similarly situated’’ in the areas of subcategory under paragraph (a)(7), that Under paragraph (a)(8), only waters the country in which they are located. identification does not affect a Prairie that are within the 100-year floodplain The rationale for this determination is pothole that borders a covered tributary of a traditional navigable water, discussed above in Section III. Under and is jurisdictional as an adjacent interstate water, or the territorial seas or paragraph (a)(7), Prairie potholes, water under paragraph (a)(6). within the 4,000 foot boundary can be Carolina and Delmarva bays, pocosins, Additionally, a Prairie pothole that is evaluated on a case-specific basis for western vernal pools in California, and jurisdictional under paragraph (a)(6) significant nexus to a traditional Texas coastal prairie wetlands are cannot be combined with Prairie navigable water, interstate water, or the jurisdictional when they have a potholes that require a case-specific territorial seas. If a portion of the water significant nexus to a traditional jurisdictional analysis under paragraph is located within the 100-year navigable water, interstate water, or the (a)(7) since ‘‘adjacent waters’’ have floodplain of a traditional navigable territorial seas. Waters subject to normal already been determined to have a water, interstate water, or the territorial farming, silviculture, and ranching significant nexus by rule. Finally, seas or 4,000 feet of the ordinary high activities that are within these waters within the specified water mark or high tide line of a subcategories will be assessed subcategories in paragraph (a)(7) are traditional navigable water, interstate consistent with this provision of the assessed under paragraph (a)(7) not water, the territorial seas, rule. Waters in these subcategories are under paragraph (a)(8); waters within impoundment, or covered tributary, the not jurisdictional as a class under the the specified subcategories that are entire water will be considered to be rule. However, because the agencies within the 100-year flood plain of a within the boundaries for paragraph determined that these subcategories of traditional navigable water, interstate (a)(8) and will undergo a case-specific waters are ‘‘similarly situated,’’ the water, or the territorial seas or within significant nexus determination. Under waters within the specified the 4,000 foot boundary established for this provision, if the 100-year floodplain subcategories that are not otherwise case-specific determinations under of a traditional navigable water,

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interstate water, or the territorial seas under existing regulations and remains was reasonable to subject waters and extends beyond 4,000 feet of the unchanged in this rule. Because the wetlands in the 100-year floodplain that ordinary high water mark, a water, that definition of wetland does not change are beyond 1,500 feet of the ordinary is not otherwise jurisdictional under the under the rule, the agencies do not high water mark, and therefore do not rule, within that floodplain will be anticipate the rule will alter the current meet the definition of ‘‘neighboring,’’ to evaluated under the 100-year floodplain scope of CWA jurisdiction over a case-specific significant nexus boundary of paragraph (a)(8). A water wetlands underlain by permafrost. analysis rather than concluding that within the boundaries must be a. Summary of Rationale for Case- such waters are categorically evaluated on a case-specific basis for not Specific Significant Nexus Analysis jurisdictional. This inclusion of a case- only a significant nexus but also for a Within 100-Year Floodplain of a specific analysis for such floodplain determination of whether there are any Traditional Navigable Water, Interstate waters is supported by the SAB. The waters with which the waters is Water, or the Territorial Seas SAB concluded that ‘‘distance should similarly situated. Waters identified in not be the sole indicator used to paragraph (a)(8) may not be combined As discussed in Section III, above, the evaluate the connection of ‘other waters’ with waters identified in paragraph scientific literature supports that to jurisdictional waters.’’ SAB 2014b at (a)(6) for purposes of the significant wetlands and open waters in 3. In allowing the case-specific nexus analysis, but may be combined floodplains are physically, chemically, evaluation of waters within the 100-year with similarly situated waters located in and biologically connected to floodplain of a traditional navigable the same point of entry watershed. If downstream traditional navigable water, interstate water, or the territorial waters identified in paragraph (a)(8) also waters, interstate waters, or the seas that do not meet the definition of meet the definition of adjacency under territorial seas and significantly affect adjacency, the agencies are allowing for paragraph (a)(6), they are jurisdictional the integrity of such waters. The Science the functional relationship of those as ‘‘adjacent waters’’ and do not need a Report concludes that wetlands and floodplain waters to be considered case-specific significant nexus analysis. open waters located in ‘‘floodplains are regardless of distance. The SAB also Under paragraph (a)(8), for example, the physically, chemically and biologically supported the Science Report’s agencies would evaluate on a case- integrated with rivers via functions that conclusion that ‘‘the scientific literature specific basis whether a low-centered improve downstream water quality, strongly supports the conclusions that polygonal tundra and patterned ground including the temporary storage and streams and ‘bidirectional’ floodplain bog in an area with a small floodplain deposition of channel-forming sediment wetlands are physically, chemically, and woody debris, temporary storage of and located beyond the 1,500 foot and/or biologically connected to local ground water that supports boundary but within the 100-year downstream navigable waters; however, baseflow in rivers, and transformation floodplain of a traditional navigable these connections should be considered and transport of stored organic matter.’’ water, interstate water, or the territorial in terms of a connectivity gradient.’’ Science Report at ES–2 to ES–3. As seas or within the 4,000 foot boundary, SAB 2014a at 1. In addition, the SAB described in the Science Report and the or a wetland in which normal farming, noted, ‘‘the literature review does Technical Support Document, such ranching, or silviculture activities occur, substantiate the conclusion that waters act as the most effective buffer to as those terms are used in section 404(f) floodplains and waters and wetlands in protect downstream waters from of the Clean Water Act and its floodplain settings support the physical, implementing regulations, has a nonpoint source pollution (such as nitrogen and phosphorus), provide chemical, and biological integrity of significant nexus as defined in the rule. downstream waters.’’ Id. at 3. Waters identified in the subcategories habitat for breeding fish and aquatic in paragraph (a)(7) are evaluated under insects that also live in streams, and The agencies do not anticipate that paragraph (a)(7) only; the provisions of retain floodwaters, sediment, nutrients, there will be numerous circumstances paragraph (a)(8), including the and contaminants that could otherwise in which this provision will be utilized boundaries in paragraph (a)(8), do not negatively impact the condition or because relatively few traditional apply to paragraph (a)(7) waters. The function of downstream waters. As navigable waters will have floodplains significant nexus analysis for waters discussed above, in defining waters as larger than 4,000 feet (the other under paragraph (a)(8) will then adjacent, and therefore categorically threshold in paragraph (a)(8) for waters consider the waters individually or, if it jurisdictional, the agencies established a regardless of floodplain). Further, the is determined that there are similarly 1,500 foot boundary for waters located agencies recognize that extensive areas situated waters, as a group of waters within the 100-year floodplain of a of the nation’s floodplains have been within a point of entry watershed for traditional navigable water, interstate affected by levees and dikes which their effect on the chemical, physical, or water, the territorial seas, reduce the scope of flooding. In these biological integrity of traditional impoundment, or covered tributary in circumstances, the scope of the 100-year navigable waters, interstate waters, or order to protect vitally important waters floodplain is also reduced and is the territorial seas. while at the same time providing a reflected in FEMA mapping used by the Some commenters asked how practical and implementable rule. In agencies. In circumstances where there wetlands underlain by permafrost light of the science on the functions is little or no alteration of the floodplain would be treated under this rule. Waters provided by floodplain waters and and it remains relatively broad, the subject to case-specific review under wetlands, waters and wetlands within agencies will explicitly consider paragraph (a)(8) will include areas the 100-year floodplain of traditional distance between the water being determined to meet the technical navigable waters, interstate waters, or evaluated and traditional navigable definition of ‘‘wetlands’’ because they the territorial seas are likely to provide water, interstate water, or the territorial have the required hydrology, vegetation, those functions for traditional navigable seas when making a case-specific and soils. The presence of permafrost is waters, interstate waters, or the significant nexus determination. Based not itself determinative of whether a territorial seas. However, because the on the science concerning the important particular area satisfies the three 100-year floodplain of a traditional functions provided by floodplain waters parameter requirement needed to be navigable water can, in some case be and wetlands, the agencies established wetlands under the rule. This is true quite large, the agencies concluded it this provision to ensure that truly

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important waters may still be protected the importance of floodplain waters on Generally, waters that are closer to a on a case-specific basis. By using the the chemical, physical, and biological jurisdictional water are more likely to be 100-year floodplain and limiting the integrity of downstream traditional connected to that water than waters that provision to traditional navigable navigable waters, interstate waters, or are farther away. A case-specific waters, interstate waters, or the the territorial seas. For purposes of analysis for waters located within 4,000 territorial seas, the agencies are clarity and to provide regulatory feet of the high tide line or the ordinary reasonably balancing the protection of certainty, the agencies decided to use high water mark of a traditional waters that may have a significant nexus distance boundaries within the 100-year navigable water, interstate water, the with the goal of providing additional floodplain to define adjacency for territorial seas, impoundment, or certainty. floodplain waters. Under the rule, the covered tributary allows such waters to only floodplain waters that are be considered jurisdictional only where b. Summary of Rationale for Case- specifically identified as being they meet the significant nexus Specific Significant Nexus Analysis jurisdictional as ‘‘adjacent’’ are those requirements. Even where not within a Within 4,000 Foot Boundary located in whole or in part within the 100-year floodplain, waters within 4,000 The agencies establish a provision in 100-year floodplain and not more than feet of the high tide line or the ordinary the rule for case-specific significant 1,500 feet of the ordinary high water high water mark of a traditional nexus determinations because the mark of jurisdictional waters. navigable water, interstate water, the agencies concluded that some waters Similarly, due to the many functions territorial seas, impoundment, or located beyond the distance limitations that waters located within 4,000 feet of covered tributary can have significant established for ‘‘adjacent waters’’ can the high tide line of a traditional chemical, physical, and biological have significant chemical, physical, and navigable water or the territorial seas connections with traditional navigable biological connections to and effects on provide and their often close waters, interstate waters, or the traditional navigable waters, interstate connections to the surrounding territorial seas. waters, or the territorial seas. The traditional navigable waters, science As noted previously, in response to agencies reasonably identified the 4,000 supports the agencies’ determination comments concerned that there were no foot boundary for these case-specific that such waters are rightfully evaluated bounds in the proposed rule on how far significant nexus determinations by on a case-specific basis for significant a surface hydrologic connection could balancing consideration of the science nexus to a traditional navigable water or be for purposes of adjacency, the and the agencies’ expertise and the territorial seas. Waters within 4,000 agencies did not include surface experience in making significant nexus feet of the ordinary high water mark of hydrologic connections as its own factor determinations with the goal of a traditional navigable water, interstate for determining adjacency in the final providing clarity to the public while water, the territorial seas, rule. Such connections, however, are protecting the environment and public impoundment, or covered tributary may relevant in a case-specific significant health. The agencies’ experience has fall within the riparian areas of such nexus determination under paragraph shown that the vast majority of waters waters. As discussed in section IV.G., in (a)(8). For example, waters located where a significant nexus has been response to comments regarding the within 4,000 feet of the high tide line or found, and which are therefore uncertainty of the term ‘‘riparian area,’’ the ordinary high water mark of a important to protect to achieve the goals the agencies removed the term from the traditional navigable water, interstate of the Act, are located within the 4,000 definition of ‘‘neighboring.’’ However, water, the territorial seas, foot boundary. Moreover, because of the the agencies continue to recognize that impoundment, or covered tributary that unique status under the CWA of science is clear that wetlands and open contribute confined surface flow to a traditional navigable waters, interstate waters in riparian areas individually downstream water can have important waters, and the territorial seas, the 100- and cumulatively can have a significant hydrologic connections to and effects on year floodplain boundary for these effect on the chemical, physical, or that downstream water such as the waters provides another means of biological integrity of downstream attenuation and cycling of nutrients that identifying on a case-specific basis those waters. Thus, the rule allows for a case- would otherwise effect downstream waters that significantly affect specific determination of significant water quality. traditional navigable waters, interstate nexus for waters located within 4,000 The agencies’ decision to establish the waters or the territorial seas. The feet of the high tide line or the ordinary case-specific provision at paragraph agencies’ balancing of these high water mark of a traditional (a)(8), including the boundaries, was considerations is consistent with the navigable water, interstate water, the also informed by the knowledge that statute and the Supreme Court opinions. territorial seas, impoundment, or waters located within 4,000 feet of the The agencies decided that it is covered tributary. high tide line or the ordinary high water important to promulgate a rule that not The agencies have always recognized mark of a traditional navigable water, only protects the most vital of our that adjacency is bounded by proximity, interstate water, the territorial seas, Nation’s waters, but one that is practical and the rule adds additional clarity to impoundment, or covered tributary can and provides sufficient boundaries so adjacency by bounding what can be have a confined surface or shallow that the public reasonably understands considered neighboring. The science is subsurface connection to such a water. where CWA jurisdiction ends. clear that a water’s proximity to In order to provide the clarity and The agencies’ decision to establish a downstream waters influences its certainty that many commenters provision that authorizes case-specific impact on those waters. The Science requested regarding ‘‘adjacent waters,’’ significant nexus analysis for waters Report states, ‘‘[s]patial proximity is one the rule does not define ‘‘neighboring’’ within 4,000 feet is based on a number important determinant of the to include all waters with confined of factors. These waters may be located magnitude, frequency and duration of surface or shallow subsurface within the floodplain of a traditional connections between wetlands and connections. navigable water, interstate water, the streams that will ultimately influence However, the agencies recognize that territorial seas, impoundment, or the fluxes of water, materials and biota the science demonstrates that waters covered tributary. Section IV.G. and the between wetlands and downstream with a confined surface or shallow Technical Support Document discuss waters.’’ Science Report at ES–11. subsurface connection to jurisdictional

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waters can have important effects on administering the statute is at the core smaller threshold increases the downstream waters. For purposes of a of the agencies authority and discretion. likelihood that waters that could have a case-specific significant nexus analysis After weighing the scientific significant nexus will not be analyzed under the rule, a shallow subsurface information about these waters’ and therefore not subject to the Act; a hydrologic connection is lateral water connectivity and importance to larger threshold reduces that possibility, flow over a restricting layer in the top protecting downstream waters, the but also means that agency and the soil horizons, or a shallow water table agencies’ considerable experience public’s resources are expended which fluctuates within the soil profile, making jurisdictional determinations, conducting significant nexus analyses sometimes rising to or near the ground the objective of enhancing regulatory on waters that have a lower likelihood surface. In addition, water can move clarity and consistent with the statute of meriting the Act’s protection. within confined man-made subsurface and the caselaw, the agencies decided to Recognizing that there is no optimal conveyance systems such as drain tiles set a boundary of 4,000 feet for case- line, in selecting both the 100-year and storm sewers, and in karst specific significant nexus analysis for floodplain for and the 4,000 foot topography. Confined subsurface waters that do not otherwise meet the boundaries the agencies looked systems can move water, and potential requirements of paragraphs (a)(1) principally to the extensive experience contaminants, directly to surface waters through (a)(7). Tying this provision for the Corps has gained in making and rapidly without the opportunity for case-specific significant nexus analysis significant nexus determinations since nutrient or sediment reduction along the to distance informed by the science, and the Rapanos decision. As noted in pathway. the agencies’ experience and expertise, Section III above, since the Rapanos Shallow subsurface connections move as spatial proximity is a key contributor decision, the agencies have developed quickly through the soil and impact to connectivity among waters. Science extensive experience making significant surface water directly within hours or Report at ES–11. Distance is by no nexus determinations, and that days rather than the years it may take means the sole factor, and aquatic experience and expertise informed the long pathways to reach surface waters. functions will play a prominent role in judgment of the agencies in establishing See Technical Support Document. Tools determining whether specific waters both the 100-year floodplain boundary to assess shallow subsurface flow covered under this aspect of paragraph and the 4,000 foot boundary. The include reviewing the soils information (a)(8) have a significant nexus. In light agencies have made determinations in from the NRCS Soil Survey, which is of the role spatial proximity plays in every state in the country, for a wide connectivity and the objective of range of waters in a wide range of available for nearly every county in the enhancing regulatory clarity, conditions. The vast majority of the United States. When assessing whether predictability and consistency, the waters that the Corps has determined a water within the 4,000 foot boundary agencies conclude that establishing a have a significant nexus are located performs any of the functions identified boundary for this aspect of waters within 4,000 feet of a jurisdictional in the rule’s definition of significant subject to case-specific significant nexus tributary, traditional navigable or nexus, the significant nexus analysis based on distance is reasonable. interstate water, or the territorial seas. determination can consider whether While, for purposes of this national Therefore, the agencies conclude that shallow subsurface connections rule, distance is a reasonable and the 100-year floodplain and 4,000 foot contribute to the type and strength of appropriate measure for identifying boundaries in the rule will sufficiently functions provided by a water or where this case-specific significant capture for analysis those waters that similarly situated waters. However, nexus analysis will be conducted, the are important to protect to achieve the neither shallow subsurface connections science does not point to any particular goals of the Clean Water Act. nor any type of groundwater, shallow or bright line delineating waters that have The agencies acknowledge that, as deep, are themselves ‘‘waters of the a significant nexus from those that do with any meaningful boundary, some United States.’’ not. The Science Report concluded that waters that could be found The proposed rule did not set a connectivity of streams and wetlands to jurisdictional lie beyond the boundary distance threshold for case-specific downstream waters occurs along a and will not be analyzed for significant waters to be evaluated for a significant gradient. The evidence unequivocally nexus. The agencies minimize that risk nexus. Some commenters argued that demonstrates that the stream channels by also establishing a provision in there should be a limitation on areas and floodplain wetlands or open waters paragraph (a)(8) for case-specific subject to case-specific analysis while that together form river networks are significant nexus analysis of waters others contended that the agencies lack clearly connected to downstream waters located within the 100-year floodplain discretion to set regulatory limits that in ways that profoundly influence of a traditional navigable water, would exclude from jurisdiction any downstream water integrity. The interstate water, or the territorial seas. water meeting the significant nexus test. connectivity and effects of non- While in the agencies’ experience the The agencies disagree that the agencies floodplain wetlands and open waters vast majority of wetlands with a lack the authority to establish are more variable and thus more significant nexus are located within the reasonable boundaries to determine difficult to address solely from evidence 4,000 foot boundary, it is the agencies’ what areas are subject to case-specific available in peer-reviewed studies. experience that there are a few waters significant nexus analysis. Nothing in Science Report at ES–5. Because of this that have been determined to be the CWA or case law mandates that the variability, with respect to waters that jurisdictional that are located beyond agencies require every water feature in are not covered by paragraphs (a)(1) this boundary, typically due to a surface the nation be subject to analysis for through (a)(7) of the rule, the science or shallow subsurface hydrologic significant nexus. The Supreme Court does not provide a precise point along connections. Nonetheless, the agencies has made clear that the agencies have the continuum at which waters provide have weighed these considerations and the authority and responsibility to only speculative or insubstantial concluded that the value of enhancing determine the limits of CWA functions to downstream waters. regulatory clarity, predictability and jurisdiction, and establishing Like connectivity itself, there is also consistency through a distance limit boundaries based on agency judgment, a continuum of outcomes associated outweigh the likelihood that a distinct expertise and experience in with picking a distance threshold. A minority of waters that might be shown

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to meet the significant nexus test will specific analysis of significant nexus have a significant nexus. Depending not be subject to analysis. In the does not foreclose states from acting upon the particular water and the agencies’ experience, requiring an consistent with their state authorities to functions it provides, if a water, either evaluation of significant nexus for establish protection for waters that fall alone or in combination with similarly waters covered by paragraph (a)(8) outside of the protection of the CWA. In situated waters, performs just one should capture the vast majority of promulgating the 4,000 foot boundary, function, and that function has a waters having a significant nexus to the the agencies have balanced protection significant impact on the integrity of a downstream waters. The agencies and clarity, scientific uncertainties and traditional navigable water, interstate therefore conclude that that adoption of regulatory experience, and established a water, or the territorial seas, that water the 4,000 foot boundary is reasonable. line that is, in their judgment, would have a significant nexus. The rule’s requirements for these reasonable and consistent with the Case-specific determinations of waters, coupled with those for ‘‘adjacent statute and its goals and objectives. significant nexus require paragraph waters,’’ create an integrated approach (a)(7) or (a)(8) waters to be evaluated that tailors the regulatory regime based 3. Case-Specific Significant Nexus Determinations either alone, or in combination with on the science and the agencies’ policy other similarly situated waters in the objectives. Determining by rule that Only waters identified in paragraphs region. In the rule, the agencies interpret covered adjacent waters have a (a)(7) or (a)(8) of the rule require a case- the phrase ‘‘in the region’’ to mean the significant nexus follows the science, specific determination of significant watershed that drains to the nearest achieves regulatory clarity and nexus. This section discusses the traditional navigable water, interstate definition of significant nexus in the predictability, and avoids expenditure water, or the territorial seas through a rule and how the agencies will make of agency and public resources on case- single point of entry. See Section III. In case-specific significant nexus specific significant nexus analysis. circumstances where the single point of determinations under the rule. Similarly, providing for case-specific entry watershed includes waters that are significant nexus analysis for waters a. Definition of Significant Nexus identified under paragraph (a)(7) and that are not adjacent but within the Paragraph (c)(5) of the rule defines the waters that are subject to analysis under 4,000 foot distance limit, as well as paragraph (a)(8), those waters will be those within the 100-year floodplain of term ‘‘significant nexus’’ to mean a significant effect (more than speculative analyzed separately under the a traditional navigable water, interstate provisions of those paragraphs. water, or the territorial seas, is or insubstantial) on the chemical, consistent with science and agency physical, or biological integrity of a In a case-specific analysis of experience, will ensure protection of the traditional navigable water, interstate significant nexus, the agencies important waters whose protection will water, or the territorial seas. Waters, determine whether the water they are advance the goals of the Clean Water including wetlands, are evaluated either evaluating, in combination with other Act, and will greatly enhance regulatory alone, or in combination with other similarly situated waters in the region, clarity for agency staff, regulated parties, similarly situated waters in the region, has a significant effect on the chemical, and the public. based on the functions the evaluated physical, or biological integrity of the For these reasons, the agencies waters perform. Functions to be nearest traditional navigable water, decided to allow case-specific considered for the purposes of interstate water, or the territorial seas. determinations of significant nexus for determining significant nexus are As noted previously, the agencies waters located within the 100-year sediment trapping, nutrient recycling, evaluate the listed functions in floodplain of a traditional navigable pollutant trapping, transformation, paragraph (c)(5) as part of that water, interstate water, or the territorial filtering and transport, retention and evaluation to determine if the water has seas and for waters located within 4,000 attenuation of floodwaters, runoff an impact that is more than speculative feet of the high tide line or the ordinary storage, contribution of flow, export of or insubstantial. high water mark of a traditional organic matter, export of food resources, b. Conducting Case-Specific Significant navigable water, an interstate water, the and provision of life-cycle dependent Nexus Determinations Under territorial seas, an impoundment, or a aquatic habitat (such as foraging, Paragraphs (a)(7) and (a)(8) covered tributary. Under the rule, these feeding, nesting, breeding, spawning, or waters are jurisdictional only where use as a nursery area) for species located The significant nexus analysis for they individually or cumulatively (if it in traditional navigable waters, waters assessed under paragraphs (a)(7) is determined that there are other interstate waters, or the territorial seas. and (a)(8) is a three-step process: First, similarly situated waters) have a The agencies’ definition of significant the region for the significant nexus significant nexus to traditional nexus is based upon the language in analysis must be identified—under the navigable waters, interstate waters, or SWANCC and Rapanos. The definition rule, it is the watershed which drains to the territorial seas. Additional scientific is also consistent with current practice, the nearest traditional navigable water, and policy rationale for including such where field staff evaluate the functions interstate water or territorial sea; waters as waters that can be evaluated of the waters in question and the effects second, any similarly situated waters on a case-specific basis can be find in of these functions on downstream must be identified—under the rule, that the Technical Support Document. waters. In order to add clarity and is waters that function alike and are The agencies emphasize that they transparency to the definition of sufficiently close to function together in fully support efforts by States and tribes significant nexus, the agencies have affecting downstream waters; and third, to protect under their own laws any listed in the definition the functions the waters are evaluated individually or additional waters, including locally that will be considered in a significant in combination with any identified special waters that may not be within nexus analysis. These functions are similarly situated waters in the single the jurisdiction of the CWA as the consistent with the agencies’ scientific point of entry watershed to determine if agencies have interpreted its scope in understanding of the functioning of they significantly impact the chemical, this rule. Indeed, the promulgation of aquatic ecosystems. A water does not physical or biological integrity of the the 100-year floodplain and 4000 foot need to perform all of the functions traditional navigable water, interstate boundaries for purposes of a case- listed in paragraph (c)(5) in order to water or the territorial seas.

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i. ‘‘In the Region’’—The Point of Entry by rule and shall be combined with water storage, sediment retention, and Watershed other waters of the same category pollution sequestration. In addition, As discussed in Section III of the located in the same watershed that consideration of wetland/water type and preamble and established in the drains to the nearest traditional landscape location are relevant for definition of ‘‘significant nexus,’’ the navigable water, interstate water, or the determining if the waters are similarly region for purposes of a significant territorial seas with no need for a case- situated. For example, Texas coastal nexus analysis is the watershed that specific similarly situated finding. sand sheet wetlands that form a drains to the nearest traditional Under paragraph (a)(7), only waters of complex of wetlands with other the same subparagraph in the point of navigable water, interstate water, or the wetlands of the same type on the entry watershed can be considered as territorial seas. The first step of the landscape and are densely located may similarly situated. For example, only analysis is to identify the point of entry very well be similarly situated and pocosins may be evaluated with other watershed that the water being considered in combination with other pocosins in the same point of entry evaluated under paragraphs (a)(7) or Texas coastal sand sheet wetlands in the watershed. Pocosins in different point of (a)(8) drains to. This point of entry same single point of entry watershed. entry watersheds cannot be combined, approach identifies the nearest However, under paragraph (a)(8), waters and pocosins cannot be combined with traditional navigable water, interstate do not need to be of the same type (as Carolina bays under paragraph (a)(7), water, or the territorial seas that the they do in paragraph (a)(7)) to be even where they occur in the same point water being evaluated and any similarly considered similarly situated. As of entry watershed. described above, waters are similarly situated waters flow to and delineates Unlike waters evaluated under the watershed of that nearest traditional situated under paragraph (a)(8) where paragraph (a)(7), the waters specified at they perform similar functions or are navigable water, interstate water, or the paragraph (a)(8) require a determination territorial seas. The point of entry located sufficiently close to each other, whether they are similarly situated. regardless of type. The agencies will watershed is the area drained by the Under this step, the agencies apply nearest traditional navigable water, consider the hydrologic, geomorphic, factors in the determination of when and ecological characteristics and interstate water, or the territorial seas waters evaluated under paragraph (a)(8) and is typically defined by the circumstances of the waters under should be considered either consideration. Examples include: topographic divides between one individually or in combination for traditional navigable water, interstate Documentation of chemical, physical, or purposes of a significant nexus analysis. biological interactions of the similarly water, or the territorial seas and another. A determination of ‘‘similarly situated’’ Available mapping tools, such as situated waters; aerial photography; requires an evaluation of whether a USGS and state and local topographical those that are based on the NHD, group of waters in the region that meet topographic maps, and elevation data, or terrain maps and information; NRCS the distance thresholds set out under soil survey maps and data; other can be used to demarcate boundaries of paragraph (a)(8) can reasonably be the single point of entry watershed. As available geographic information expected to function together in their systems (GIS) data; National Wetlands discussed in Section III and in the effect on the chemical, physical, or Technical Support Document, the single Inventory maps where wetlands meet biological integrity of downstream the CWA definition; and state and local point of entry watershed represents the traditional navigable waters, interstate scientifically appropriate sized area for information. The evaluation will use waters, or the territorial seas. any available site information and conducting a case-specific significant Similarly situated waters can be pertinent field observations where nexus evaluation in most cases. identified as sufficiently close together available, relevant scientific studies or In the arid West, the agencies for purposes of this paragraph of the recognize there may be situations where regulation when they are within a data, or other relevant jurisdictional the single point of entry watershed is contiguous area of land with relatively determinations that have been very large, and it may be reasonable to homogeneous soils, vegetation, and completed in the region. evaluate all similarly situated waters in landform (e.g., plain, mountain, valley, Only those waters that do not meet a smaller watershed. Under those etc.). In general, it would be the requirements in paragraph (a)(1) circumstances, the agencies may inappropriate, for example, to consider through (a)(6) are to be considered in demarcate adjoining catchments waters as ‘‘similarly situated’’ under case-specific significant nexus surrounding the water to be evaluated paragraph (a)(8) if these waters are determinations; subcategory waters that that, together, are generally no smaller located in different landforms, have meet the provisions in paragraph (a)(1) than a typical 10-digit hydrologic unit different elevation profiles, or have through (a)(6) are per se jurisdictional code (HUC–10) watershed in the same different soil and vegetation without the need for a significant nexus area. The area identified by this characteristics, unless the waters determination. For example, waters that combination of catchments would be perform similar functions and are are identified under paragraph (a)(6) are the ‘‘region’’ used for conducting a located sufficiently close to a ‘‘water of adjacent and are not subject to a case- significant nexus evaluation under the United States’’ to allow them to specific significant nexus evaluation paragraphs (a)(7) or (a)(8) under those consistently and collectively function under paragraph (a)(7) or (a)(8). Waters situations. The basis for such an together to affect a traditional navigable evaluated under paragraph (a)(7) cannot approach in very large single point of water, interstate water, or the territorial be combined with waters identified in entry watersheds in the arid West seas. In determining whether waters paragraph paragraph (a)(6) or (a)(8), and should be documented in the under paragraph (a)(8) are sufficiently waters evaluated under paragraph (a)(8) jurisdictional determination. close to each other the agencies will also cannot be combined with waters consider hydrologic connectivity to identified in paragraph (a)(6) or (a)(7). ii. ‘‘Similarly Situated’’ each other or a jurisdictional water. For example, Prairie potholes being Second, the agencies determine if the In determining whether groups of evaluated under paragraph (a)(7) may water or waters to be evaluated are waters under paragraph (a)(8) perform not be combined with Prairie potholes similarly situated. The waters identified ‘‘similar functions’’ the agencies will that are per se jurisdictional under in paragraph (a)(7) are similarly situated consider functions such as habitat, paragraph (a)(6) that meet the definition

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of adjacent. When a water meets the navigable water, interstate water, or the interstate water, or the territorial seas. specifications at both paragraphs (a)(7) territorial seas. A water may be These functional relationships include and (a)(8), it can only be evaluated determined to have a significant nexus retention of floodwaters or pollutants under paragraph (a)(7). That is, for based on performing any of the that would otherwise flow downstream example, if a wetland is a Western following functions: sediment trapping, to the traditional navigable water, vernal pool and is also within 4,000 feet nutrient recycling, pollutant trapping, interstate water, or the territorial seas. of the ordinary high water mark of a transformation, filtering, and transport, See 547 U.S. at 775 (citations omitted) covered tributary, it can only be retention and attenuation of (J. Kennedy) (‘‘it may be the absence of assessed for significant nexus under floodwaters, runoff storage, contribution an interchange of waters prior to the paragraph (a)(7) in combination with of flow, export of organic matter, export dredge and fill activity that makes other Western vernal pools in the point of food resources, or provision of life protection of the wetlands critical to the of entry watershed. Unlike paragraph cycle dependent aquatic habitat (such as statutory scheme’’). The Science Report (a)(8), there is no distance threshold for foraging, feeding, nesting, breeding, concludes, ‘‘[s]ome effects of non- waters evaluated under paragraph spawning, or use as a nursery area) for floodplain wetlands on downstream (a)(7)—that is, waters in the paragraph species located in a traditional waters are due to their isolation, rather (a)(7) subcategories that are more than navigable water, interstate water, or the than their connectivity. Wetland ‘sink’ 4,000 feet from the high tide line or the territorial seas. functions that trap materials and ordinary high water mark of a For purposes of paragraph (c)(5)(ix), a prevent their export to downstream traditional navigable water, interstate species is located in a traditional waters (e.g., sediment and entrained water, the territorial seas, navigable water, interstate water, or the pollutant removal, water storage) result impoundment, or covered tributary or territorial seas if such a water is a because of the wetland’s ability to are beyond the 100-year floodplain of an typical type of habitat for at least part isolate material fluxes.’’ Science Report traditional navigable water, interstate of the life cycle of the species. For at ES–4. For example, a report that water, or the territorial seas are to be example, amphibians and many reptiles reviewed the results of multiple included in combination in a significant can use a traditional navigable water, scientific studies concluded that nexus analysis. interstate water, or the territorial seas depressional wetlands lacking a surface for part of their life cycle needs. outlet functioned together to iii. Significant Nexus Analysis for When evaluating a water individually Paragraph (a)(7) and (a)(8) Waters significantly reduce or attenuate or in combination with other similarly flooding. See Science Report and Third, the agencies evaluate waters situated waters for the presence of a Technical Support Document. Even individually or in combination with any significant nexus to a traditional when they lack a surface hydrologic identified similarly situated waters in navigable water, interstate water, or the connection to downstream traditional the single point of entry watershed to territorial seas, a variety of factors will navigable waters, interstate waters, or determine if they significantly impact influence the chemical, physical, or the territorial seas, Prairie potholes, for the chemical, physical, or biological biological connections the water has instance, cumulatively can store large integrity of the traditional navigable with the downstream traditional volumes of water, impacting streamflow water, interstate water, or the territorial navigable water, interstate water, or the and reducing flooding downstream, and seas. For purposes of determining territorial seas, including distance from several studies have quantified the large significant nexus under paragraph (a)(7), a jurisdictional water, the presence of storage capacity of Prairie pothole all waters of the specified subcategory surface or shallow subsurface complexes. This water storage function are to be considered in combination in hydrologic connections, and density of is estimated to hold tens of millions of the point of entry watershed, as those waters of the same type (if it has been waters are similarly situated. For concluded that such waters can be cubic meters of water, including for purposes of determining significant evaluated in combination). The example Prairie potholes located in the nexus under paragraph (a)(8), likelihood of a significant connection is watersheds of Devils Lake and the Red depending on the results of step two, a greater with increasing size and River of the North, which have both had water within the boundaries in decreasing distance from the identified a long history of flooding. Where Prairie paragraph (a)(8) is evaluated either traditional navigable water, interstate potholes lack a surface hydrologic alone or in combination with other water, or the territorial seas, as well as connection, this water storage capacity similarly situated waters in the region. with increased density of the waters for is particularly effective in reducing For example, in the case where the such waters that can be considered in downstream flooding and can have a agencies have determined that a combination as similarly situated significant effect on downstream particular water under paragraph (a)(8) waters. In addition, the presence of a traditional navigable waters, interstate is not similarly situated, it is evaluated surface or shallow subsurface waters, or the territorial seas. Thus, even individually for significant nexus; the hydrologic connection can influence the when lacking a surface hydrologic water cannot be aggregated if it is not impact that a water has with connection, a water can still have a similarly situated with other such downstream waters. significant effect on the chemical or the waters. In many cases, the presence of a biological integrity of downstream The analysis will include an hydrologic connection increases the traditional navigable waters, interstate evaluation of the functions listed in strength of the impact of the waters, or the territorial seas. paragraph (c)(5) of the rule, which downstream traditional navigable water, The rule recognizes that not all waters defines significant nexus. A water has a interstate water, or the territorial seas. have the requisite connection to significant nexus when any single However, a hydrologic connection is not traditional navigable waters, interstate function or combination of functions necessary to establish a significant waters, or the territorial seas sufficient performed by the water, alone or nexus, because, as Justice Kennedy to be determined jurisdictional. Waters together with similarly situated waters stated, in some cases the lack of a with a significant nexus must in the region, contributes significantly hydrologic connection would be a sign significantly affect the chemical, to the chemical, physical, or biological of the water’s function in relationship to physical, or biological integrity of a integrity of the nearest traditional the traditional navigable water, downstream traditional navigable water,

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interstate water, or the territorial seas, territorial seas, the presence of habitat integrity of the traditional navigable and the requisite nexus must be more corridors or barriers, and the number, water, interstate water, or the territorial than ‘‘speculative or insubstantial.’’ area, and spatial distribution of habitats. seas. For example, when evaluating a Rapanos at 780. Non-aquatic species or species such as wetland that is 2,500 feet from the Evidence of chemical connectivity non-resident migratory birds do not ordinary high water mark of an and the effect on waters can be found by demonstrate a life cycle dependency on paragraph (a)(5) water and that has identifying the properties of the water in the identified aquatic resources and are surface or shallow subsurface comparison to the identified traditional not evidence of biological connectivity connections to downstream traditional navigable water, interstate water, or the for purposes of this rule. navigable waters, interstate waters, or territorial seas; signs of retention, For practical administrative purposes, the territorial seas via a wetland that is release, or transformation of nutrients or the rule does not require evaluation of adjacent to an paragraph (a)(4) water, pollutants; and the effect of landscape all similarly situated waters under the existence of those connections is not position on the strength of the paragraph (a)(7) or (a)(8) when ignored. However, while a water’s connection to the nearest ‘‘water of the concluding that those waters have a connections to the traditional navigable United States,’’ and through it to a significant nexus to a traditional water, interstate water, or the territorial traditional navigable water, interstate navigable water, interstate water, or seas through paragraph (a)(5) through water, or the territorial seas. In addition, territorial sea. When a subset of (a)(7) waters can be considered in the relevant factors influencing chemical similarly situated waters provides a significant nexus analysis in order to connectivity include hydrologic sufficient science-based justification to determine whether the functions of the connectivity (see physical factors, conclude presence of a significant paragraph (a)(8) waters are provided below), surrounding land use and land nexus, for efficiency purposes a downstream, only the functions of the cover, the landscape setting, and significant nexus analysis need not water, along with any similarly situated deposition of chemical constituents unnecessarily require time and waters, being evaluated under paragraph (e.g., acidic deposition). resources to locate and analyze all (a)(8) on downstream water integrity can Evidence of physical connectivity and similarly situated waters in the entire be included in the significant nexus the effect on traditional navigable point of entry watershed. For example, analysis. waters, interstate waters, or the if a single Carolina bay or a group of The administrative record for a territorial seas can be found by Carolina bays in a portion of the point jurisdictional determination for a water identifying evidence of physical of entry watershed is determined to under paragraph (a)(7) or (a)(8) will connections, such as flood water or significantly affect the chemical, include available information sediment retention (flood prevention). physical, or biological integrity of a supporting the determination. In Presence of indicators of hydrologic traditional navigable water, interstate addition to location and other connections between the other water water, or the territorial seas, the analysis descriptive information regarding the and jurisdictional water are also does not have to document all of the water at issue, the record will include indicators of a physical connection. similarly situated Carolina bays in the an explanation of the rationale for the Factors influencing physical watershed in order to conduct the jurisdictional conclusion and a connectivity include rain intensity, significant nexus analysis. A conclusion description of the information used. duration of rain events or wet season, that significant nexus is lacking may not Relevant information can come from soil permeability, and distance of be based on consideration of a subset of hydrologic connection between the similarly situated waters because under many sources, and need not always be paragraph (a)(7) or (a)(8) water and the the significant nexus standard the specific to the water whose traditional navigable water, interstate inquiry is how the similarly situated jurisdictional status is being evaluated. water, or the territorial seas, depth from waters in combination affect the Studies of the same type of water or surface to water table, and any integrity of the downstream water. similarly situated waters can help to preferential flowpaths. While the rule is clear that waters that inform a significant nexus analysis as Evidence of biological connectivity are jurisdictional by rule cannot be long as they are applicable to the water and the effect on waters can be found by combined with waters subject to a case- being evaluated. In the case of identifying: Resident aquatic or semi- specific significant nexus analysis, the paragraph (a)(8) waters, the aquatic species present in the case- analysis may appropriately include the administrative record will include the specific water and the tributary system evaluation of functions of paragraph rationale behind the similarly situated (e.g., amphibians, aquatic and semi- (a)(8) waters that reach covered waters analysis, including an explanation of aquatic reptiles, aquatic birds); whether through paragraph (a)(6) waters without the data or information examined. those species show life-cycle consideration of the functions The agencies expect that where waters dependency on the identified aquatic contributed by those paragraph (a)(6) are determined to be similarly situated resources (foraging, feeding, nesting, waters. The hydrologic connections in a single point of entry watershed, breeding, spawning, use as a nursery between paragraph (a)(8) waters and a such similarly situated waters will often area, etc.); and whether there is reason covered tributary and eventually to a be found jurisdictional through the case- to expect presence or dispersal around traditional navigable water, interstate specific analysis of significant nexus. the case-specific water, and if so water, or the territorial seas, can often However, case-specific factors such as whether such dispersal extends to the occur through an adjacent water. This distance to the traditional navigable tributary system or beyond or from the hydrologic connection is an appropriate water, interstate water, or the territorial tributary system to the case-specific part of the case-specific analysis as to seas; density or number of similarly water. Factors influencing biological whether the paragraph (a)(8) waters, situated waters; individual and connectivity include species’ life history alone or in combination with any cumulative size of the similarly situated traits, species’ behavioral traits, similarly situated paragraph (a)(8) waters; soil permeability; climate; etc., dispersal range, population size, timing waters in the point of entry watershed, may be considered in the determination, of dispersal, distance between the case- provide those functions downstream and there could be cases where even specific water and a traditional such that they significantly affect the considering these waters in combination navigable water, interstate water, or the chemical, physical or biological with similarly situated waters will not

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be sufficient for waters to have a public over which factors will be of a traditional navigable water, significant nexus. considered. interstate water, the territorial seas, Within a single point of entry Overall, there was support for the impoundment, or covered tributary. The watershed, over a period of time there concept of the single point of entry agencies also have established within watershed as the interpretation of ‘‘in will likely be multiple jurisdictional the definition of significant nexus at the region.’’ Several commenters determinations. For paragraph (a)(7) paragraph (c)(5) criteria for determining supported the approach that the single waters, if a case-specific significant whether waters are similarly situated point of entry watershed was an nexus determination has been made in and should therefore be analyzed in appropriate scale to use to measure combination. Waters identified under the point of entry watershed, all waters effect on traditional navigable waters, in the subcategory in the point of entry paragraph (a)(8) are similarly situated interstate waters, or the territorial seas. when they function alike and are watershed are jurisdictional. For Other commenters felt the single point paragraph (a)(8) waters, the case-specific sufficiently close to function together in of entry watershed was too small to affecting downstream waters. The significant nexus analyses must use capture all the benefits that waters that agencies have not determined that such information used in previous do not meet the definition of adjacency waters are categorically similarly jurisdictional determinations, and if a contribute. Some of the SAB panel situated, so the agencies will base their significant nexus has been established members thought that because surface for one water in the watershed, then and ground-watershed units may not case-specific determinations of whether other similarly situated waters in the align, watersheds might be problematic a particular water has any similarly watershed would also be found to have for defining ‘‘in the region.’’ These situated waters on the available a significant nexus. This is because panel members suggested that a more information and science. The rule also under Justice Kennedy’s test, similarly scientifically justified approach would clarifies that paragraph (a)(8) waters situated waters in the region should be include surface and subsurface waters cannot be considered similarly situated evaluated together. A positive in a watershed delineation. The with ‘‘adjacent waters,’’ which are significant nexus determination would agencies have retained the single point jurisdictional by rule, and paragraph then apply to all similarly situated of entry watershed from the proposed (a)(7) waters, which have been waters within the point of the rule as the appropriate unit of analysis determined to be similarly situated by watershed. A negative case-specific for significant nexus in the final rule as rule. These parameters will reduce significant nexus evaluation under these watersheds are more easily inconsistency in reviews and add paragraph (a)(7) or (a)(8) of all similarly understood and easier to delineate than clarity. situated waters in the point of entry those that map subsurface waters as the Similarly, several commenters watershed applies to all similarly SAB suggested. expressed concern that landowners situated waters in that watershed. With respect to the agencies’ would not know which water bodies on However, as noted above, a conclusion approach to ‘‘similarly situated waters,’’ their property are subject to CWA that significant nexus is lacking may not commenters offered support for jurisdiction due to aggregation, as be based on consideration of a subset of assessing waters in combination based waters on their property may be similarly situated waters, because under on their type and function, particularly considered similarly situated with the significant nexus standard the waters such as Prairie potholes. waters located off-site. While the rule inquiry is how the similarly situated Conversely, several commenters found does not eliminate the use of case- waters in combination affect the that the ability to aggregate waters that specific significant nexus analyses, and integrity of the downstream water. The do not meet the definition of adjacency the concern arises from Justice documentation for each case should be is over-reaching and causes uncertainty Kennedy’s phrase ‘‘similarly situated,’’ complete enough to support the specific to the regulated public. Some the parameters placed on waters jurisdictional determination, including commenters also attributed uncertainty requiring a case-specific determination an explanation of which waters were in which waters were regulated to and the clearer definition of significant considered together as similarly situated subjectivity in review by Federal nexus address the concerns about and in the same region. regulator(s). Similarly, some commenters were concerned that waters uncertainty and inconsistencies in 4. Summary of Revisions to Case- eligible for protection were based on an reviews. In particular, waters that are Specific Determinations of ‘‘Waters of individual analyst’s interpretation and not either one of the five identified the United States’’ and Major Comments wanted to know how the agencies subcategories in paragraph (a)(7) or within the thresholds in paragraph (a)(8) a. Significant Nexus would address consistency and potential bias. In response, the rule lists cannot be subject to a case-specific Some commenters stated concerns in paragraph (a)(7) a limited number of significant nexus analysis under the over the potential for inconsistent subcategories of waters where waters of rule. Generally, jurisdictional application of the significant nexus the specified types have been determinations are conducted at the analysis in a jurisdictional determined by rule to be similarly request of an applicant or landowner for determination. To address this concern situated for a significant nexus analysis. specific waters. While the agencies within the regulatory framework, the This will add consistency, cannot arbitrarily depart from a agencies provide more detail regarding predictability, and clarity, as the rule determination that waters are ‘‘similarly the definition of significant nexus in the explicitly states that such waters are situated,’’ landowners may provide new rule and list the specific functions that similarly situated for purposes of the information to inform subsequent will be considered in the analysis. This significant nexus analysis. For waters jurisdictional determinations. In approach provides individual regulators identified under paragraph (a)(8), the addition, owners with questions who conduct the analysis clear and agencies have established two regarding jurisdiction of waters on their consistent parameters that they will limitations: Waters within the 100-year property may always consult their local consider during their review in making floodplain of a traditional navigable Corps District or EPA Regional Office, jurisdictional determinations and water, interstate water, or the territorial which is not a change from longstanding provides transparency to the regulated seas, and waters within 4,000 foot feet practice.

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b. Case-Specific Determinations and based on the body of science that I. Waters and Features That Are Not The rule provides more regulatory exists. As noted above, the agencies also ‘‘Waters of the United States’’ certainty by narrowing the scope of establish by rule subcategories of waters In the rule, the agencies identify a waters that can be assessed under a that are ‘‘similarly situated’’ for the variety of waters and features that are case-specific significant nexus purposes of a significant nexus analysis not ‘‘waters of the United States.’’ Prior evaluation as compared to the proposal. because science supports that the converted cropland and waste treatment These changes still allow the scientific subcategory waters fall within a higher systems have been excluded from this value of specific waters not covered in gradient of connectivity. By not definition since 1992 and 1979, paragraph (a)(1) through (a)(6) to be determining that any one of the waters respectively, and they remain evaluated on a case-specific basis. available for case-specific analysis is substantively and operationally In the proposal, the agencies solicited jurisdictional by rule, the agencies are unchanged. Only ministerial changes to comment regarding a variety of recognizing the gradient of connectivity delete an outdated cross reference are approaches to the category of waters that exists and will assert jurisdiction made to the exclusion for waste subject to a case-specific significant only when that connection and the treatment systems. The agencies add nexus analysis. In addition, the agencies downstream effects are significant and exclusions for all waters and features more than speculative and insubstantial. solicited comment on additional identified as generally exempt in Waters are covered under the rule scientific research and data that might preamble language from Federal only where they are identified as Register documents by the Corps on further inform decisions about these jurisdictional in paragraphs (a)(1) November 13, 1986, and by EPA on June waters. In particular the agencies through (a)(6), where they are not 6, 1988. This is the first time these solicited information about whether excluded under paragraph (b), or where current scientific research and data they are within the limited number of exclusions have been established by regarding particular types of waters are subcategories listed in paragraphs (a)(7) rule. In addition, under prior preamble sufficient to support the inclusion of and (a)(8) and have a case-specific language, the agencies retained the subcategories of types of waters, either significant nexus to a traditional authority to determine that a particular alone or in combination with similarly navigable water, interstate water, or the feature generally considered non- situated waters, that can appropriately territorial seas. These limits on jurisdictional was in fact a ‘‘water of the be identified as always lacking or jurisdiction reflect the case law and are United States.’’ The agencies do not always having a significant nexus. One in response to comments requesting retain that authority for features of these alternate approaches in the greater regulatory certainty. Although excluded under the rule. The agencies preamble to the proposed rule was to some commenters suggested additional for the first time also establish by rule determine by rule that certain additional subcategories of waters for that certain ditches are excluded from subcategories of waters would be consideration, such as playa lakes and jurisdiction. The agencies add jurisdictional rather than addressed kettle lakes, the agencies at this time are exclusions for groundwater and with a case-specific basis for not able to determine that the available erosional features, as well as exclusions determining significant nexus. science supports that the suggested for some waters that were identified in Many commenters expressed support additional subcategories of waters as a public comments as possibly being for the agencies’ proposed approach to class have a significant nexus to found jurisdictional under proposed case-specific waters, included traditional navigable waters, interstate rule language where this was never the additional references to support these waters, or the territorial seas. However, agencies’ intent. These exclusions are waters being protected by rule, and to be clear, under the rule, individual reflective of current agencies’ practice, supported the treatment of certain waters of the suggested additional and their inclusion in the rule furthers categories of waters as similarly situated subcategories are jurisdictional where the agencies’ goal of providing greater (that is, evaluating them in combination they meet the requirements of clarity over what waters are and are not with similarly situated waters for the paragraphs (a)(1) through (a)(6) or (a)(8) protected under the CWA. Importantly, purposes of the significant nexus (e.g., a playa lake that is an interstate under the rule all waters and features analysis). Some suggested the agencies water, a kettle lake that is an adjacent identified in paragraph (b) as excluded establish jurisdiction over case-specific water, or a woodland vernal pool that is will not be ‘‘waters of the United waters by rule and provided detailed less than 4,000 feet from a jurisdictional States,’’ even if they otherwise fall information in support of their position. tributary and is determined on a case- within one of the categories in Other commenters suggested additional specific basis to have a significant nexus paragraphs (a)(4) through (a)(8). For subcategories of waters be considered as to a traditional navigable water, example, a ditch that is excluded under jurisdictional or as similarly situated by interstate water, or the territorial seas). paragraph (b)(3)(i) or (b)(3)(ii) is not rule, such as playa lakes, kettle lakes, In consideration of the variety of jurisdictional even when the ditch and woodland vernal pools. views of the commenters, the Science connects directly or through another However, there was a concern raised Report, the input from the SAB, and the water to a traditional navigable water, by other commenters about what was developing state of the science, the interstate water, or the territorial seas. termed regulatory overreach and agencies reasonably decided not to The proposed rule referenced uncertainty created by the ‘‘other establish jurisdiction over all waters paragraphs (a)(1) through (a)(8), but the waters’’ category in the proposal. Some that do not meet the requirements of agencies did not intend to exclude any commenters stated that the ‘‘other paragraph (a)(1) through (a)(6) by rule. traditional navigable waters, for waters’’ category in the proposal would Instead, the agencies established case- example, and the revision clarifies that. allow the agencies to regulate virtually specific provisions for some specified Finally, nothing in the rule is intended any water. To address this concern, the waters at paragraph (a)(7) and waters to change the way in which the Corps rule places limits on which waters within the boundaries at paragraph applies individual or nationwide could be subject to a case-specific (a)(8). This approach strikes a balance permits. significant nexus determination, in between requests for clear boundaries The exclusions reflect the agencies’ recognition that case-specific analysis of and limited case-specific reviews with long-standing practice and technical significant nexus is resource-intensive scientific support. judgment that certain waters and

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features are not subject to the CWA. The exclusion such that all excluded waste that are not a relocated tributary, exclusions are also guided by Supreme treatment systems must be designed to excavated in a tributary, or drain Court cases. The significant nexus meet the requirements of the Clean wetlands, regardless of whether or not standard arises from the case law and is Water Act. The commenters indicated the wetland is a jurisdictional water. used to interpret the terms of the CWA. concerns that waste treatment systems Finally, ditches that do not connect to Thus, a significant nexus determination built before the Clean Water Act or a traditional navigable water, interstate is not a purely scientific inquiry, but primarily for purposes of other water, or territorial sea either directly or rather is a determination by the agencies environmental laws could not be through another water are excluded, in light of the statutory language, the exempt. The agencies do not intend to regardless of whether the flow is statute’s goals, objectives and policies, change how the waste treatment ephemeral, intermittent, or perennial. the case law, the relevant science, and exclusion is implemented and have These ditch exclusions are clearer for the agencies’ technical expertise and deleted this proposed comma. the regulated public to identify and experience. The plurality opinion in Continuing current practice, any waste more straightforward for agency staff to Rapanos also noted that there were treatment system built in a ‘‘water of the implement than the proposed rule or certain features that were not primarily United States’’ would need a section current policies. The ditch exclusions the focus of the CWA. See 547 U.S. at 404 permit to be constructed and a do not affect the possible status of a 734. In this section of the proposed rule, section 402 permit for discharges from ditch as a point source. the agencies are drawing lines and the waste treatment system into ‘‘waters Many comments addressed ditches, concluding that certain waters and of United States.’’ and many of these comments are features are not subject to the A number of commenters suggested reflected in the approach to ditches jurisdiction of the Clean Water Act. The the agencies clarify how the waste articulated in the rule. The majority of Supreme Court has recognized that treatment system exclusion is currently commenters requested that the agencies’ clarifying the lines of jurisdiction is a implemented. Many comments raised ditch exclusion be clarified or difficult task: ‘‘Our common experience questions about stormwater systems and broadened. Many commenters were tells us that this is often no easy task: wastewater reuse and whether such confused by the term ‘‘uplands’’ and did The transition from water to solid facilities qualified under the waste not feel the term had a common ground is not necessarily or even treatment system exclusion as part of a understanding. For example, some typically an abrupt one. Rather, between complete waste treatment system. For commenters felt the term referred only open waters and dry land may lie clarity, the agencies have identified to areas at higher elevations in the shallows, marshes, mudflats, swamps, related exclusions in paragraphs (b)(6) landscape. Many expressed concerns bogs—in short, a huge array of areas that and (b)(7). Many commenters also that all ditches would be jurisdictional are not wholly aquatic but nevertheless suggested making substantive changes under the proposed rule. Many groups fall far short of being dry land. Where to the existing exclusion for waste especially called for exclusions of on this continuum to find the limit of treatment systems. Because the agencies roadside ditches. ‘waters’ is far from obvious.’’ Riverside are not making any substantive changes The revised exclusions reflect the Bayview at 132–33. The exclusions are to the waste treatment system exclusion agencies’ careful consideration of these an important aspect of the agencies’ and these comments are outside the comments. First, the agencies have policy goal of providing clarity and scope of the proposed rule, the final rule eliminated the term ‘‘uplands’’ in certainty. Just as the categorical does not reflect changes suggested in response to the questions the term assertions of jurisdiction over covered public comments. created. Second, the agencies have tributaries and covered adjacent waters The existing exclusion for prior instead provided a clearer statement of simplify the jurisdiction issue, the converted cropland moves to paragraph the types of ditches that are subject to categorical exclusions will likewise (b)(2) of the rule and is unchanged. A exclusion—ditches that are not simplify the process, and they reflect number of commenters suggested excavated in or relocate a tributary and the agencies’ determinations of the lines changes to the existing exclusion for ditches that do not drain a wetland. of jurisdiction based on science, the prior converted cropland. As with waste Eliminating the term ‘‘uplands’’ with case law and the agencies’ experience treatment systems, the preamble to the this more straightforward description and expertise. proposed rule stated this rulemaking should improve clarity. Finally, the The existing exclusion for waste was not making changes to the agencies have more clearly stated the treatment systems moves to paragraph exclusion for prior converted cropland. flow regimes in ditches that are subject (b)(1) with no substantive changes. One As a result, comments requesting to the exclusions; these flow regimes are ministerial change is the deletion of a changes to the prior converted cropland described earlier and have been used by cross-reference in the current language exclusion or seeking clarification of how the agencies consistently and are readily to an EPA regulation that no longer the exclusion is implemented in the understood by field staff and the public. exists. Because the agencies are not field are outside the scope of this As noted, the agencies received many addressing the substance of the rulemaking, and the rule does not reflect comments asking that roadside ditches exclusion, the agencies do not make changes or respond to issues raised in be addressed, and more specifically conforming changes to ensure that each public comments. The agencies will excluded, in the final rule. Like the of the existing definitions of the ‘‘waters continue to implement this exclusion proposed rule, the final rule does not of the United States’’ for the various consistent with current policy and include an explicit exclusion for CWA programs have the exact same practice. roadside ditches, but the agencies language with respect to the waste The agencies identify excluded believe the exclusions included in the treatment system exclusion, with the ditches in paragraph (b)(3). final rule will address the vast majority exception of deleting the cross- Jurisdictional ditches are discussed at of roadside and other transportation reference. more detail in section IV.F. The rule ditches. Moreover, since the agencies Many commenters expressed concern excludes all ditches with ephemeral have focused in the final rule on the about whether the agencies’ insertion of flow that are not excavated in or physical characteristics of excluded a comma following this ministerial relocate a tributary. The rule also ditches, the exclusions will address all change unintentionally narrowed the excludes ditches with intermittent flow ditches that the agencies have

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concluded should not be subject to conservation programs and plans, as Paragraph (b)(4) of the rule identifies jurisdiction, including certain ditches well as functional assessments and features and waters that the agencies on agricultural lands and ditches monitoring efforts. have identified as generally not ‘‘waters associated with modes of transportation, The rule also excludes ditches with of the United States’’ in previous such as roadways, airports, and rail intermittent flow except where a ditch preambles or guidance documents. lines. is excavated in or relocates a covered Codifying these longstanding practices As discussed in Section IV.F.1., the tributary, or drains wetlands. Where an supports the agencies’ goals of definition of tributary includes natural, excluded ditch drains a wetland, the providing greater clarity, certainty, and undisturbed waters and those that have segment of the ditch that physically predictability for the regulated public been man-altered or constructed, but intersects the wetland would be and the regulators. The agencies’ 1986 which science shows function as a considered jurisdictional. The and 1988 preambles indicated that these tributary. In addition, natural streams jurisdictional status of upstream and waters could be determined on a case- and rivers that are altered or modified downstream portions of the same ditch specific basis to be ‘‘waters of the for purposes as flood control, erosion would have to be assessed based on the United States.’’ This rule does not allow control, and other reasons does not specific facts and under the terms of the for this case-specific analysis to be used convert the tributary to a ditch. A rule to determine flow characteristics to establish jurisdiction—these waters stream or river that has been and whether or not the ditch drains a are categorically excluded from channelized or straightened because its wetland. The provision of paragraph jurisdiction. Some of the exclusions natural sinuosity has been altered, (b)(3) addressing draining of wetlands is have been modified slightly to address cutting off the meanders, is not a ditch. specific to ditches with intermittent public comments and improve clarity. A stream that has banks stabilized flow. As discussed previously, features The following features are not ‘‘waters through use of concrete or rip-rap (e.g., that are ephemeral will flow only in of the United States’’: rocks or stones) is not a ditch. The Los response to precipitation events, such as • Artificially irrigated areas that Angeles River, for example, is a ‘‘water rainfall or snowmelt. Ditches with would revert to dry land should of the United States’’ (and, indeed, a ephemeral flow, therefore, do not application of irrigation water to that traditional navigable water) and remains typically have the flow characteristics area cease a ‘‘water of the United States’’ and is not characteristic of ditches that drain • Artificial, constructed lakes or a excluded under paragraph (b)(3), even wetlands. The agencies have ponds created by excavating and/or where it has been ditched, channelized, accordingly focused on intermittent diking dry land such as farm and stock or concreted. ditches that drain wetlands. watering ponds, irrigation ponds, The rule excludes ditches with In addition, the agencies clarify that a settling basins, log cleaning ponds, ephemeral flow except where a ditch is ditch drains a wetland when it cooling ponds, or fields flooded for rice excavated in or relocates a covered physically intersects the wetland. If the growing tributary. Under the rule, that portion of ditch has been cut to carry only • Artificial reflecting pools or a ditch with ephemeral flow actually ephemeral flows, such as those swimming pools created by excavating excavated in or relocating the covered following a storm event, the effect of the and/or diking dry land tributary would be considered ditch is minimal as it carries only that • Small ornamental waters created by jurisdictional. The jurisdictional status flow that overtops the wetland during excavating and/or diking dry land for of upstream and downstream portions of and immediately following the rain primarily aesthetic reasons the same ditch would have to be event. However, if the ditch has been • Water-filled depressions created in assessed based on the specific facts and cut to carry intermittent or perennial dry land incidental to mining or under the terms of the rule to determine flows from the wetland, the ditch is construction activity, including pits flow characteristics and whether or not serving as a conduit for transferring flow excavated for obtaining fill, sand or the ditch is excavated in or relocates a from the wetland to a downstream gravel that fill with water tributary. This approach reasonably tributary. As a result of the cut ditch, • Erosional features, including balances the exclusion with the need to the wetland’s hydrologic regime is gullies, rills, and other ephemeral ensure that covered tributaries, and the modified and can generally affect the features that do not meet the definition significant functions they provide, are natural functions performed by the of tributary, non-wetland swales, and preserved. A ditch that relocates a wetland. When the ditch has been cut lawfully constructed grassed waterways stream is not an excluded ditch under to carry intermittent or perennial flow • Puddles paragraph (b)(3), and a stream is from the wetland to the downstream Several of these exclusions use the relocated either when at least a portion tributary, the wetland soils and phrase ‘‘dry land.’’ This phrase appears of its original channel has been vegetation can shift into a community in the 1986 and 1988 preambles, and the physically moved, or when the majority that supports less hydric soils and a mix agencies believe the term is well of its flow has been redirected. A ditch of riparian or upland vegetation. understood based on the more than 30 that is a relocated stream is Consequently, the ditch is draining the years of practice and implementation. distinguishable from a ditch that wetland and the wetland quality But in keeping with the goal of withdraws water from a stream without degrades and may cease to exist over providing greater clarity, the agencies changing the stream’s aquatic character. time. Therefore, a ditch that carries state that ‘‘dry land’’ refers to areas of The latter type of ditch is excluded from intermittent flow and physically the geographic landscape that are not jurisdiction where it meets the listed intersects with a wetland is not water features such as streams, rivers, characteristics of excluded ditches excluded under this provision. wetlands, lakes, ponds and the like. under paragraph (b)(3). The agencies A number of commenters expressed However, it is important to note that a will determine historical presence of concern that a ditch could be viewed as ‘‘water of the United States’’ is not tributaries using a variety of resources, both a point source and a ‘‘water of the considered ‘‘dry land’’ just because it such as USGS and state and local maps, United States.’’ However, the approach lacks water at a given time. Similarly, an historic aerial photographs, local surface that ditches can be considered both area remains ‘‘dry land’’ even if it is wet water management plans, street reflects the CWA itself as well as after a rainfall event. The agencies maintenance data, wetlands and longstanding agency policy. received comments suggesting that the

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final rule provide a definition of ‘‘dry specific evaluation, including, for Tributaries can be distinguished from land’’ as it relates to the exclusion for example, fire control ponds and fishing erosional features by the presence of bed stormwater control features. The ponds excavated from dry land. and banks and an ordinary high water agencies considered the request and Artificial lakes and ponds created in dry mark. Concentrated surface runoff can determined that there was no agreed land that do not connect to occur within erosional features without upon definition given geographic and jurisdictional waters are covered by this creating the permanent physical regional variability. The agencies exclusion. Where these ponds do characteristics associated with bed and concluded that further clarity on this connect and discharge to jurisdictional banks and ordinary high water mark. issue can be provided during waters, the agencies will evaluate See Technical Support Document. It implementation. factors such as the potential for should be noted that some ephemeral In the exclusion for artificial lakes or introduction of pollutants and coverage streams are colloquially called ‘‘gullies’’ ponds, the agencies have removed under an issued NPDES permit. As a or the like even when they exhibit a bed language regarding ‘‘use’’ of the ponds, general matter, ponds created in dry and banks and an ordinary high water including the term ‘‘exclusively.’’ In land that discharge to ‘‘waters of the mark; regardless of the name they are most cases, the ‘‘use’’ of the pond is United States’’ are covered by the given locally, waters that meet the captured in its name. More importantly, exclusion where such discharge is definition of tributary are not excluded the agencies recognize that artificial regulated under a NPDES permit. erosional features. lakes and ponds are often used for more Conveyances created in dry land that The rule also excludes lawfully than one purpose and can have other are physically connected to and are a constructed grassed waterways. Grassed beneficial purposes, such as animal part of the excluded feature are also waterways are lawfully constructed for habitat, water retention or recreation. excluded. These artificial features are purposes of this rule either where they For example, rice growing is typically working together as a system, and it is are on dry land and replace non- facilitated by land leveling and appropriate to treat them as one jurisdictional erosional features or, more inundation that floods vast areas. The functional unit. The agencies emphasize commonly, where they have been fields are flooded for the purpose of that ponds excluded from ‘‘waters of the lawfully converted from an intermittent weed control and to facilitate rice United States’’ can, in some or ephemeral stream under a CWA cultivation, but these rice fields are circumstances, be point sources of permit. Once converted to grassed often extensively used by waterfowl and pollution subject to section 301 of the waterways, these former streams other wildlife. The agencies agree with Act. segments no longer exhibit a bed and commenters who raised concern that The rule includes several refinements banks or ordinary high water mark and rice fields ‘‘used’’ both for rice growing to the exclusion for water-filled are excluded because they do not meet and waterfowl habitat should continue depressions created as a result of certain the definition of ‘‘tributary.’’ However, to be excluded even where they are not activities. In addition to construction such conversion does not sever used ‘‘exclusively’’ for a single purpose. activity, the agencies have also excluded jurisdiction over the entire length of the The change to the exclusion reflects the water-filled depressions created in dry tributary above and below the grassed agencies’ practice and ensures that land incidental to mining activity. This waterway. Instead, the grassed waters the agencies have historically not change is consistent with the agencies’ waterway is considered a constructed treated as jurisdictional do not become 1986 and 1988 preambles, which break in the bed and banks and ordinary so because of another incidental generally excluded pits excavated for high water mark. This is reflected in the beneficial use. obtaining fill, sand or gravel, and there definition of tributary, which The agencies have also added farm is no need to distinguish between specifically addresses natural or man- ponds, log cleaning ponds, and cooling features based on whether they are made breaks in bed and banks and ponds to the list of excluded ponds in created by construction or mining ordinary high water mark. the rule based on public comments. The activity. The final rule adds an exclusion for list of ponds has always been The agencies also here clarify their puddles. The proposed rule did not illustrative rather than exhaustive, and longstanding view that only the specific explicitly exclude puddles because the the additions respond to requests to land being directly irrigated that would agencies have never considered puddles clarify that farm ponds, and log cleaning revert to dry land should irrigation to meet the minimum standard for being ponds 12 created in dry land are cease is exempt; it is not the case that a ‘‘water of the United States,’’ and it is excluded. The agencies have also added all waters within watersheds where an inexact term. A puddle is commonly cooling ponds created in dry land to the irrigation occurs are exempt. considered a very small, shallow, and list of excluded waters. The agencies The rule identifies all erosional highly transitory pool of water that also note that cooling ponds that are features, including gullies and rills, as forms on pavement or uplands during or created under section 404 in non-jurisdictional features. While the immediately after a rainstorm or similar jurisdictional waters and that have proposed rule specifically identified precipitation event. However, numerous NPDES permits are subject to the waste gullies and rills, the agencies intended commenters asked that the agencies treatment system exclusion, which is that all erosional features would be expressly exclude them in a rule. The not changing. Cooling ponds created to excluded. The final rule makes this final rule does so. serve as part of a cooling water system clear. Erosional features are not The agencies include an exclusion for with a valid state permit constructed in jurisdictional under the terms of groundwater, including groundwater waters of the United States prior to paragraph (a) and the definitions in drained through subsurface drainage enactment of the Clean Water Act and paragraph (c), especially the definition systems. As discussed in the preamble currently excluded from jurisdiction of tributary. These features are to the proposed rule, the agencies have remain excluded under the new rule. specifically excluded in the rule to never interpreted ‘‘waters of the United Additional ponds will also likely fall avoid confusion, because preceding States’’ to include groundwater. The under the exclusion based on site guidance identified them as non- exclusion does not apply to surface jurisdictional and many commenters expressions of groundwater, as some 12 Log cleaning ponds are used to float logs for stated these exclusions were important commenters requested, such as where removal of twigs, branches, and large knots. to maintain in the rule. groundwater emerges on the surface and

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becomes baseflow in streams or spring treats, or stores stormwater. Certain should be little practical need to fed ponds. features, such as curbs and gutters, may distinguish between the two. The final rule includes a new be features of stormwater collection Paragraph (b)(7) of the rule clarifies exclusion in paragraph (b)(6) for systems, but have never been that wastewater recycling structures stormwater control features constructed considered ‘‘waters of the United constructed in dry land are excluded. to convey, treat, or store stormwater that States.’’ This new exclusion clarifies the are created in dry land. The agencies Stormwater control features have agencies’ current practice that such stated in the proposed rule that the evolved considerably over the past waters and water features used for water exclusions were guided by decisions of several years, and their nomenclature is reuse and recycling are not the Supreme Court and were intended not consistent, so in order to avoid jurisdictional when constructed in dry to further the agencies’ goal of providing unintentionally limiting the exclusion, land. The agencies recognize the clarity and certainty. The agencies in the agencies have not included a list of importance of water reuse and the proposed rule sought to provide a excluded features in the rule. The rule recycling, particularly in areas like ‘‘full description’’ of the waters that will is intended to exclude the diverse range California and the Southwest where not be ‘‘waters of the United States.’’ 79 of control features that are currently in water supplies can be limited and FR at 22218. In response to the agencies’ place and may be developed in the droughts can exacerbate supply issues. proposal, several commenters indicated future. This exclusion responds to numerous additional clarity was needed, Traditionally, stormwater controls commenters and encourages water reuse particularly with respect to stormwater were designed to direct runoff away and conservation while still control features and wastewater from people and property as quickly as appropriately protecting the chemical, recycling facilities. This exclusion possible. Cities built systems to collect, physical, and biological integrity of the responds to numerous commenters who convey, or store stormwater, using nation’s water under CWA. raised concerns that the proposed rule structures such as curbs, gutters, and The agencies specifically exclude would adversely affect municipalities’ sewers. Often, cities used existing constructed detention and retention ability to operate and maintain their stream networks as part of the basins created in dry land used for stormwater systems, and also to address stormwater drainage network. Retention wastewater recycling as well as confusion about the state of practice and detention stormwater ponds were groundwater recharge basins and regarding jurisdiction of these features built to store excess stormwater until it percolation ponds built for wastewater at the time the rule was proposed. could be more safely released. recycling. Many commenters noted the The agencies’ longstanding practice is Recently, treatment of stormwater has growing interest in and commitment to to view stormwater control measures become more prevalent to remove water recycling and reuse projects. that are not built in ‘‘waters of the harmful pollutants before the Detention and retention basins can play United States’’ as non-jurisdictional. stormwater is discharged. Even more an important role in capturing and Conversely, the agencies view some recently, cities have turned to green storing water prior to beneficial reuse. waters, such as channelized or piped infrastructure, using existing natural Similarly, groundwater recharge basins streams, as jurisdictional currently even features or creating new features that and percolation ponds are becoming where used as part of a stormwater mimic natural hydrological processes more prevalent tools for water reuse and management system. Nothing in the that work to infiltrate or evapo- recycling. These features are used to proposed rule was intended to change transpirate precipitation, to manage collect and store water, which then that practice. Nonetheless, the agencies stormwater at its source and keep it out infiltrates into groundwater via recognize that the proposed rule brought of the conveyance system. These permeable soils. Though these features to light confusion about which engineered components of stormwater are often created in dry land, they are stormwater control features are management systems can address both also often located in close proximity to jurisdictional waters and which are not, water quantity and quality concerns, as tributaries or other larger bodies of and agree that it is appropriate to well as provide other benefits to water. The exclusion also covers water address this confusion by creating a communities. This rule is designed to distributary structures that are built in specific exclusion in the final rule for avoid disincentives to this dry land for water recycling. These stormwater controls features that are environmentally beneficial trend in features often connect or carry flow to created in dry land. stormwater management practices. This other water recycling structures, for Many commenters, particularly exclusion does not cover transportation example a channel or canal that carries municipalities and other public entities ditches; those ditches are addressed water to a percolation pond. The that operate storm sewer systems and under paragraph (b)(3) of the rule. As agencies have not considered these stormwater management programs, discussed above, the exclusion in water distributary systems jurisdictional expressed concern that various paragraph (b)(6) is intended to address where they do not have surface stormwater control measures—such as engineered stormwater control connections back into, and contribute stormwater treatment systems, rain structures in municipal or urban flow to, ‘‘waters of the United States.’’ gardens, low impact development/green environments. Stormwater control In contrast, the agencies have infrastructure, and flood control features are designed to address runoff consistently regulated aqueducts and systems—could be considered ‘‘waters that occurs during and shortly after canals as ‘‘waters of the United States’’ of the United States’’ under the precipitation events; as a result, where they serve as tributaries, proposed rule, either as part of a stormwater features that convey runoff removing water from one part of the tributary system, an adjacent water, or are expected to only carry ephemeral or tributary network and moving it to as a result of a case-specific significant intermittent flow. For ease of another. The exclusion in paragraph nexus analysis. This exclusion should implementation, the agencies want (b)(7) codifies long-standing agency clarify the appropriate limits of water features to be dealt with under practice and encourages water jurisdiction relating to these systems. A only one provision of the rule. However, management practices that the agencies key element of the exclusion is whether the agencies do not expect the scope of agree are important and beneficial. the feature or control system was built ditches excluded to be different under The agencies also received other in dry land and whether it conveys, paragraphs (b)(3) and (b)(6), so there suggestions for new exclusions that

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were not adopted in the final rule. The comparison, and because the final rule $237M–$465M and benefits will range agencies determined that it was not is narrower in jurisdictional scope than from $555M–$572M. appropriate or necessary to add certain the existing regulations, there would be The agencies conducted this economic requested exclusions for one or more no additional costs in comparison to analysis to provide the public with reasons, including: (1) The requested this baseline. A comparison to recent information on the potential changes to exclusion was so broadly characterized field practice following the 2008 the costs and benefits of various CWA as to introduce significant confusion guidance is also an appropriate baseline, programs that may result from a change and potentially have the effect of and the agencies prepared illustrative in the number of positive jurisdictional excluding waters that the agencies have estimates of how the costs and benefits determinations. The economic analysis consistently determined should be of various CWA programs may change was done for informational purposes covered as ‘‘waters of the U.S.,’’ (2) the with an increase in positive only, and the final decisions on the requested exclusion was so site-specific jurisdictional determinations relative to scope of ‘‘waters of the United States’’ or activity-based as to lack illustrative that baseline. in this rulemaking are not based on value, or (3) the requested exclusion To estimate changes in potential costs consideration of the information in the was likely covered by another exclusion and benefits of different CWA programs, economic analysis. The economic in the final rule. the economic analysis utilizes available analysis fulfills the requirements of It is important to note that while the program data to estimate the extent to Executive Orders 13563 and 12866. An waters listed in the exclusions are not which assertion of jurisdiction might explanation of the data, methods, and ‘‘waters of the United States,’’ they can change under the associated final assumptions used to estimate indirect serve as a hydrologic connection that policies. The proposed rule analysis costs and benefits can be found in the the agencies would consider under a utilized CWA Section 404 jurisdictional Economic Analysis for the Clean Water case-specific significant nexus under determination and permit data from Rule; Definition of ‘‘Waters of the paragraphs (a)(7) and (a)(8). For fiscal years 2009–2010 (post SWANCC United States’’ Under the Clean Water example, a wetland may be directly and Rapanos), following issuance of Act (Final Rule) in the accompanying hydrologically connected to a covered program guidance in 2008 by the EPA docket. tributary via flow through an excluded and the Corps. The analysis for the final non-wetland swale. While the swale rule has been updated using data from VI. Related Acts of Congress, Executive itself is excluded from jurisdiction, the fiscal years 2013–2014, providing a Orders, and Agency Initiatives connection of the wetland to the comparison to a more recent year of A. Executive Order 12866: Regulatory tributary is relevant for determining data, which responds to public Planning and Review and Executive whether the wetland has a significant comments. An estimate of how assertion Order 13563: Improving Regulation and nexus to downstream traditional of jurisdiction may change compared to Regulatory Review navigable waters, interstate waters, or the recent practice baseline, developed the territorial seas. In addition, these Under Executive Order 12866 (58 FR using updated data from fiscal years 51735, October 4, 1993), this action is a geographic features may function as 2013–2014 jurisdictional ‘‘point sources’’ under CWA section ‘‘significant regulatory action.’’ determinations, is then applied to cost 502(14), such that discharges of Accordingly, EPA and the Army and benefit information for affected pollutants to waters through these submitted this action to the Office of CWA programs. Additional updates to features would be subject to other CWA Management and Budget (OMB) for the economic analysis include a refined regulations (e.g., CWA section 402). review under Executive Orders 12866 approach to calculating benefits from and 13563 (76 FR 3821, January 21, V. Economic Impacts section 404 compensatory mitigation, 2011) and any changes made in This rule establishing the definition of differentiating between emergent and response to OMB recommendations ‘‘waters of the United States,’’ by itself, forested wetlands, as well as presenting have been documented in the docket for imposes no direct costs. The potential results in ranges to reflect uncertainty. this action. costs and benefits incurred as a result of The agencies’ economic analysis yielded In addition, EPA and the Army this rule are considered indirect, the following key conclusions: prepared an analysis of the potential • because the rule involves a definitional Compared to the current regulations costs and benefits associated with this change to a term that is used in the and historic practice of making action. This analysis is contained in implementation of CWA programs (i.e., jurisdictional determinations, the scope Economic Analysis of the EPA-Army sections 303, 305, 311, 401, 402, and of jurisdictional waters will decrease, as Clean Water Rule. A copy of the 404). Entities currently are, and will would the costs and benefits of CWA analysis is available in the docket for continue to be, regulated under these programs. this action. programs that protect ‘‘waters of the • Compared to a baseline of recent United States’’ from pollution and practice, the agencies assessed two B. Paperwork Reduction Act destruction. Each of these programs may scenarios. Those scenarios result in an This action does not impose any subsequently impose direct or indirect estimated increase of between 2.84 and information collection burden under the costs as a result of implementation of 4.65 percent in positive jurisdictional provisions of the Paperwork Reduction their specific regulations. determinations annually. Act, 44 U.S.C. 3501 et seq. Burden is While the rule imposes no direct • The agencies’ analysis indicates defined at 5 CFR 1320.3(b). An agency costs, the agencies prepared an that for both scenarios, the change in may not conduct or sponsor, and a economic analysis for informational benefits of CWA programs exceed the person is not required to respond to, a purposes. In preparing the economic costs by a ratio of greater than 1:1. collection of information unless it analysis to accompany the final rule, the • The economic analysis estimates displays a currently valid OMB control agencies considered what should be the that incremental annual costs for number. The OMB control numbers for appropriate baseline for comparison. scenario 1 will range from $158M– the CWA section 402 program may be Existing regulations and historic $307M and incremental annual benefits found at 40 CFR 9.1. (OMB Control No. practice in implementing them will range from $339M–$350M and, for 2040–0004, EPA ICR No. 0229.19). For represent one appropriate baseline for scenario 2, costs will range from the CWA section 404 regulatory

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program, the current OMB approval a significant adverse economic impact and does not contain regulatory number for information requirements is on a substantial number of small requirements that might significantly or maintained by the Corps of Engineers entities, and therefore no regulatory uniquely affect small governments. The (OMB approval number 0710–0003). flexibility analysis is required. definition of ‘‘waters of the United However, there are no new approval or This rule is not designed to ‘‘subject’’ States’’ applies broadly to CWA application processes required as a any entities of any size to any specific programs. result of this rulemaking that necessitate regulatory burden. Rather, it is designed E. Executive Order 13132: Federalism a new Information Collection Request to clarify the statutory scope of ‘‘the (ICR). waters of the United States, including This rule does not have federalism the territorial seas,’’ section 502(7), implications. It will not have substantial C. Regulatory Flexibility Act consistent with Supreme Court direct effects on the states, on the The Regulatory Flexibility Act (RFA) precedent. This question of CWA relationship between the national generally requires an agency to prepare jurisdiction is informed by the tools of government and the states, or on the a regulatory flexibility analysis of any statutory construction and the distribution of power and rule subject to notice-and-comment geographical and hydrological factors responsibilities among the various rulemaking requirements under the identified in Rapanos v. United States, levels of government. Administrative Procedure Act or any 547 U.S. 715 (2006), which are not Keeping with the spirit of Executive other statute unless the agency certifies factors readily informed by the RFA. Order 13132 and consistent with the that the rule will not have a significant Nevertheless, the scope of the term agencies’ policy to promote economic impact on a substantial ‘‘waters of the United States’’ is a communications with state and local number of small entities. Small entities question that has continued to generate governments, the agencies consulted include small businesses, small substantial interest, particularly within with state and local officials throughout organizations, and small governmental the small business community, because the process and solicited their jurisdictions. permits must be obtained for many comments on the proposed action and For purposes of assessing the impacts discharges of pollutants into those on the development of the rule. of this final action on small entities, waters. In light of this interest, the EPA For this rule state and local ‘‘small entity’’ is defined as: (1) A small and the Army determined to seek wide governments were consulted at the business that is a small industrial entity input from representatives of small onset of rule development in 2011, and as defined in the U.S. Small Business entities while formulating the proposed following the publication of the Administration’s size standards (see 13 and final definition of this term that proposed rule in 2014. In addition to CFR 121.201); (2) a small governmental reflects the intent of Congress consistent engaging key organizations under jurisdiction that is a government of a with the mandate of the Supreme federalism, the agencies sought feedback city, county, town, school district, or Court’s decisions. Such outreach, on this rule from a broad audience of special district with a population of less although voluntary, is also consistent stakeholders through extensive outreach than 50,000; or (3) a small organization with the President’s January 18, 2011 to numerous state and local government that is any not-for-profit enterprise that Memorandum on Regulatory Flexibility, organizations. is independently owned and operated Small Business, and Job Creation, which Early in the rulemaking process, EPA and is not dominant in its field. emphasizes the important role small held two in-person meetings and two After considering the economic businesses play in the American phone calls in the fall and winter of impacts of this rule on small entities, we economy. This process has enabled the 2011. Organizations involved include certify that this final rule will not have agencies to hear directly from these the National Governors Association, the a significant economic impact on a representatives, throughout the rule National Conference of State substantial number of small entities. development, about how they should Legislatures, the Council of State See, e.g., Cement Kiln Recycling approach this complex question of Governments, the National Association Coalition v. EPA, 255 F.3d 855 (D.C. Cir. statutory interpretation, together with of Counties, the National League of 2001); Michigan v. EPA, 213 F.3d 663 related issues that such representatives Cities, the U.S. Conference of Mayors, (D.C. Cir. 2000); Am. Trucking Ass’n v. of small entities may identify for the County Executives of America, the EPA, 175 F.3d 1027 (D.C. Cir. 1999); possible consideration in separate National Associations of Towns and Mid-Tex Elec. Co-op, Inc. v. FERC, 773 proceedings. The agencies have Townships, the International City/ F.2d 327 (D.C. Cir. 1985). prepared a report summarizing their County Management Association, and Under the RFA, the impact of concern small entity outreach, the results of this the Environmental Council of the States. is any significant adverse economic outreach, and how these results have Additionally, the National Association impact on small entities, because the informed the development of this rule. of Clean Water Agencies and the primary purpose of the initial regulatory This report, Report of the Discretionary Association of Clean Water flexibility analysis is to identify and Small Entity Outreach for the Revised Administrators were invited to address regulatory alternatives ‘‘which Definition of Waters of the United States participate. The agencies held many minimize any significant economic (Docket Id. No. EPA–HQ–OW–2011– additional calls and meetings with state impact of the proposed rule on small 0880–1927), is available in the docket. and local governments and their entities.’’ 5 U.S.C. 603. The scope of associations, in preparation for the jurisdiction in this rule is narrower than D. Unfunded Mandates Reform Act development of a proposed rule. that under the existing regulations. See This action does not contain any Similarly to the outreach conducted 40 CFR 122.2 (defining ‘‘waters of the unfunded mandate under the regulatory prior to the development of the rule, the United States’’). Because fewer waters provisions of Title II of the Unfunded agencies committed themselves to will be subject to the CWA under the Mandates Reform Act of 1995 (UMRA) providing a transparent, comprehensive, rule than are subject to regulation under (2 U.S.C. 1531–1538), and does not and effective process for taking public the existing regulations, this action will significantly or uniquely affect small comment on the proposed rule. As part not affect small entities to a greater governments. The action imposes no of this consultation, EPA held a meeting degree than the existing regulations. As enforceable duty on any state, local, or on May 13, 2014 to seek technical input a consequence, this action will not have tribal governments, or the private sector, on the proposed rule from the largest

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national representative organizations for gain an understanding of tribal views G. Executive Order 13045: Protection of State and local governments. During this and solicited their comments on the Children From Environmental Health process the agencies also extended its proposed action and on the Risks and Safety Risks focused outreach to include a series of development of this rule. In the course This action is not subject to Executive meetings with the Local Government of this consultation, EPA and the Corps Order 13045 (62 FR 19885, April 23, Advisory Committee, and the jointly participated in aspects of the 1997) because the environmental health Environmental Council of the States in process. or safety risks addressed by this action conjunction with the Association of The agencies began consultation with do not present a disproportionate risk to Clean Water Administrators and the federally-recognized Indian tribes on the children. Association of State Wetland Managers. Clean Water Rule defining ‘‘waters of In addition to engaging these key H. Executive Order 13211: Actions the United States’’ in October 2011. The Concerning Regulations That organizations, the agencies sought consultation and coordination process, additional feedback on the proposed Significantly Affect Energy Supply, including providing information on the Distribution, or Use rule through broader public outreach to development of an accompanying state and local government science report on the connectivity of This action is not a ‘‘significant organizations during the public streams and wetlands, continued, in energy action’’ as defined in Executive comment period. stages, over a four year period, until the Order 13211 (66 FR 28355, May 22, During the consultation process, some close of the public comment period on 2001) because it is not likely to have a participants expressed concern that the November 14, 2014. EPA invited tribes significant adverse effect on the supply, proposed changes may impose a distribution, or use of energy. resource burden on state and local to provide written input on the governments. Some participants urged rulemaking throughout both the tribal I. National Technology Transfer and EPA to ensure that states are not unduly consultation process and public Advancement Act comment period. burdened by the regulatory revisions. Section 12(d) of the National The agencies have prepared a report EPA specifically consulted with tribal Technology Transfer and Advancement summarizing their voluntary officials to gain an understanding of, Act of 1995 (‘‘NTTAA’’), Public Law consultation and extensive outreach to and to address, the tribal views on the 104–113, 12(d) (15 U.S.C. 272 note) State, local, and county governments, proposed rule. In 2011, close to 200 directs federal agencies to use voluntary the results of this outreach, and how tribal representatives and more than 40 consensus standards in regulatory these results have informed the tribes participated in the consultation activities unless to do so would be development of today’s rule. This process, which included multiple inconsistent with applicable law or report, Report on the Discretionary webinars and national teleconferences otherwise impractical. Voluntary Consultation and Outreach to State, and face-to-face meetings. In addition, consensus standards are technical Local, and County Governments on the EPA received written comments from standards (e.g., materials specifications, Clean Water Rule: Definition of ‘‘Waters three tribes during the initial test methods, sampling procedures, and of the United States;’’ Final Rule consultation period. business practices) that are developed or (Docket Id. No. EPA–HQ–OW–2011– EPA continued to provide status adopted by voluntary consensus 0880) is available in the docket for this updates to the National Tribal Water standards bodies. NTTAA directs rule. Council and the National Tribal Caucus federal agencies to provide Congress, F. Executive Order 13175: Consultation during 2012 through 2014. The final through OMB, explanations when the and Coordination With Indian Tribal consultation event was completed on agency decides not to use available and Governments October 23, 2014 as a national applicable voluntary consensus standards. Subject to the Executive Order (E.O.) teleconference with the Office of Water’s Deputy Assistant Administrator. This rule does not involve technical 13175 (65 FR 67249, November 9, 2000), standards. Therefore, the agencies are agencies generally may not issue a Ultimately, EPA received an additional 23 letters from tribes/tribal not considering the use of any voluntary regulation that has tribal implications, consensus standards. (1) that imposes substantial direct organizations by the completion of the compliance costs, and that is not consultation period. The comments J. Executive Order 12898: Federal required by statute, unless the Federal indicated that Tribes, overall, support Actions To Address Environmental government provides the funds increased clarity of waters protected by Justice in Minority Populations and necessary to pay the direct compliance the Clean Water Act, but some Low-Income Populations costs incurred by tribal governments, or expressed concern with the consultation Executive Order (E.O.) 12898 (59 FR the agencies consult with tribal officials process and the burden of any expanded 7629, Feb. 16, 1994) establishes Federal early in the process of developing the jurisdiction. The agencies considered executive policy on environmental proposed regulation and develop a tribal the feedback received through justice. Its main provision directs summary impact statement, or (2) that consultation and written comments in Federal agencies, to the greatest extent preempts tribal law unless the agencies developing today’s rule. practicable and permitted by law, to consult with tribal officials early in the The agencies have prepared a report make environmental justice part of their process of developing the proposed summarizing their consultation with mission by identifying and addressing, regulation and develops a tribal tribal nations, and how these results as appropriate, disproportionately high summary impact statement. have informed the development of this and adverse human health or This action does not have tribal rule. This report, Final Summary of environmental effects of their programs, implications as specified in E.O. 13175. Tribal Consultation for the Clean Water policies, and activities on minority In compliance with the EPA Policy on Rule: Definition of ‘‘Waters of the populations and low-income Consultation and Coordination with United States’’ Under the Clean Water populations in the United States. Indian Tribes (May 4, 2011), the Act; Final Rule (Docket Id. No. EPA– The agencies have determined that agencies consulted with tribal officials HQ–OW–2011–0880), is available in the the rule will not have throughout the rulemaking process to docket for this rule. disproportionately high and adverse

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human health or environmental effects sections 301, 304, 306, 311, 402 and Dated: May 27, 2015. on minority or low-income populations, 404, while the Army is making Gina McCarthy, because it does not adversely affect the substantively identical revisions to its Administrator, Environmental Protection level of protection provided to human regulations under section 404 of the Agency. health or the environment. CWA. Section 511(c) of the Clean Water Dated: May 27, 2015. The rule defines the scope of waters Act provides that, except for certain Jo-Ellen Darcy, protected under the CWA. The actions not relevant here, no action by Assistant Secretary of the Army, (Civil Works), increased clarity regarding the EPA constitutes ‘a major federal action Department of the Army. definition of ‘‘waters of the United significantly affecting the quality of the States’’ is intended to benefit all human environment within the meaning Title 33—Navigation and Navigable regulators, stakeholders, and interested of [NEPA]’’. Waters parties. In addition, this rule is national The Army has prepared a final For the reasons set out in the in scope and, therefore, is not specific preamble, title 33, chapter II of the Code to a particular geographic area. environmental assessment and Findings of No Significant Impact consistent with of Federal Regulations is amended as In the spirit of E.O. 12898, input from follows: environmental justice stakeholders was the National Environmental Policy Act requested during the rule development (NEPA). The Army has determined that PART 328—DEFINITION OF WATERS process, through a series of stakeholder the rule is not a major federal action OF THE UNITED STATES meetings between April and November significantly affecting the quality of the 2014. On May 12, 2014, EPA held a human environment that would require ■ 1. The authority citation for part 328 focused teleconference with non- the preparation of an environmental is revised to read as follows: impact statement. The assessment is traditional stakeholders, including Authority: 33 U.S.C. 1251 et seq. contained in the record for this environmental justice and faith-based ■ 2. Section 328.3 is amended by stakeholders, to solicit their individual rulemaking. Furthermore, appropriate environmental documentation, revising paragraphs (a) through (c), input on the proposed rule. The removing paragraphs (d) and (e), and agencies have used the feedback from including an EIS when required, is prepared by the Corps for general redesignating paragraph (f) as paragraph public outreach as the source of early (d) to read as follows: guidance and recommendations for permits and specifically for each and refining the proposed rule. Stakeholder every standard individual permit § 328.3 Definitions. input received during public outreach application before making final permit * * * * * events in combination with the written decisions. (a) For purposes of the Clean Water comments received during the public M. Judicial Review Act, 33 U.S.C. 1251 et seq. and its comment period have reshaped each of implementing regulations, subject to the the definitions included in today’s rule, Section 509(b)(1) of the CWA exclusions in paragraph (b) of this and incorporate increased clarity for provides for judicial review in the section, the term ‘‘waters of the United regulators, stakeholders, and the courts of appeals of specifically States’’ means: regulated public to assist them in enumerated actions of the (1) All waters which are currently identifying waters as ‘‘waters of the Administrator. The Supreme Court and used, were used in the past, or may be United States.’’ lower courts have reached different susceptible to use in interstate or foreign The agencies prepared a report conclusions on the types of actions that commerce, including all waters which summarizing their outreach to the fall within section 509. Compare, E.I. du are subject to the ebb and flow of the environmental justice community, Pont de Nemours and Co. v. Train, 430 tide; analysis of potential impacts, and how U.S. 112 (1977); NRDC v. EPA, 673 F.2d (2) All interstate waters, including these results informed the development 400 (D.C. Cir. 1982); National Cotton interstate wetlands; of the rule. This report, Environmental Council of Amer. v. EPA, 553 F.3d (3) The territorial seas; Justice Report for the Clean Water Rule: 927(6th Cir. 2009) cert denied 559 U.S. (4) All impoundments of waters Definition of ‘‘Waters of the United 936 (2010) with, Northwest otherwise identified as waters of the States’’ Under the Clean Water Act; Environmental Advocates v. EPA, 537 United States under this section; Final Rule (Docket Id. No. EPA–HQ– F.3d 1006 (9th Cir. 2008); Friends of the (5) All tributaries, as defined in OW–2011–0880), is available in the Everglades v. EPA, 699 F.3d 1280 (11th paragraph (c)(3) of this section, of docket for this rule. Cir. 2012) cert denied 559 U.S. 936 waters identified in paragraphs (a)(1) (2010). through (3) of this section; K. Congressional Review Act (6) All waters adjacent to a water This action is subject to the See DATES section for information identified in paragraphs (a)(1) through Congressional Review Act (CRA), and regarding the timing for seeking judicial (5) of this section, including wetlands, the agencies will submit a rule report to review of this rule. ponds, lakes, oxbows, impoundments, each House of the Congress and to the List of Subjects and similar waters; Comptroller General of the United (7) All waters in paragraphs (a)(7)(i) States. This action is a ‘‘major rule’’ as 33 CFR Part 328 through (v) of this section where they defined by 5 U.S.C. 804(2) based on are determined, on a case-specific basis, Environmental protection, potential indirect costs. to have a significant nexus to a water Administrative practice and procedure, identified in paragraphs (a)(1) through L. Environmental Documentation Intergovernmental relations, Navigation, (3) of this section. The waters identified In this joint rulemaking, the agencies Water pollution control, Waterways. in each of paragraphs (a)(7)(i) through establish a definitional rule that clarifies 40 CFR Parts 110, 112, 116, 117, 122, (v) of this section are similarly situated the scope of the Clean Water Act. The 230, 232, 300, 301, and 401 and shall be combined, for purposes of definition will apply to all provisions of a significant nexus analysis, in the the Act, and this regulation specifically Environmental protection, Water watershed that drains to the nearest amends EPA regulations implementing pollution control. water identified in paragraphs (a)(1)

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through (3) of this section. Waters (1) Waste treatment systems, section, including waters separated by identified in this paragraph shall not be including treatment ponds or lagoons constructed dikes or barriers, natural combined with waters identified in designed to meet the requirements of river berms, beach dunes, and the like. paragraph (a)(6) of this section when the Clean Water Act. For purposes of adjacency, an open performing a significant nexus analysis. (2) Prior converted cropland. water such as a pond or lake includes If waters identified in this paragraph are Notwithstanding the determination of any wetlands within or abutting its also an adjacent water under paragraph an area’s status as prior converted ordinary high water mark. Adjacency is (a)(6), they are an adjacent water and no cropland by any other Federal agency, not limited to waters located laterally to case-specific significant nexus analysis for the purposes of the Clean Water Act, a water identified in paragraphs (a)(1) is required. the final authority regarding Clean through (5) of this section. Adjacent (i) Prairie potholes. Prairie potholes Water Act jurisdiction remains with waters also include all waters that are a complex of glacially formed EPA. connect segments of a water identified wetlands, usually occurring in (3) The following ditches: in paragraphs (a)(1) through (5) or are depressions that lack permanent natural (i) Ditches with ephemeral flow that located at the head of a water identified outlets, located in the upper Midwest. are not a relocated tributary or in paragraphs (a)(1) through (5) of this (ii) Carolina bays and Delmarva bays. excavated in a tributary. section and are bordering, contiguous, Carolina bays and Delmarva bays are (ii) Ditches with intermittent flow that or neighboring such water. Waters being ponded, depressional wetlands that are not a relocated tributary, excavated used for established normal farming, occur along the Atlantic coastal plain. in a tributary, or drain wetlands. ranching, and silviculture activities (33 (iii) Pocosins. Pocosins are evergreen (iii) Ditches that do not flow, either U.S.C. 1344(f)) are not adjacent. shrub and tree dominated wetlands directly or through another water, into (2) Neighboring. The term neighboring found predominantly along the Central a water identified in paragraphs (a)(1) means: (i) All waters located within 100 feet Atlantic coastal plain. through (3) of this section. of the ordinary high water mark of a (iv) Western vernal pools. Western (4) The following features: (i) Artificially irrigated areas that water identified in paragraphs (a)(1) vernal pools are seasonal wetlands would revert to dry land should through (5) of this section. The entire located in parts of California and application of water to that area cease; water is neighboring if a portion is associated with topographic depression, (ii) Artificial, constructed lakes and located within 100 feet of the ordinary soils with poor drainage, mild, wet ponds created in dry land such as farm high water mark; winters and hot, dry summers. and stock watering ponds, irrigation (ii) All waters located within the 100- (v) Texas coastal prairie wetlands. ponds, settling basins, fields flooded for year floodplain of a water identified in Texas coastal prairie wetlands are rice growing, log cleaning ponds, or paragraphs (a)(1) through (5) of this freshwater wetlands that occur as a cooling ponds; section and not more than 1,500 feet mosaic of depressions, ridges, (iii) Artificial reflecting pools or from the ordinary high water mark of intermound flats, and mima mound swimming pools created in dry land; such water. The entire water is wetlands located along the Texas Gulf (iv) Small ornamental waters created neighboring if a portion is located Coast. in dry land; within 1,500 feet of the ordinary high (8) All waters located within the 100- (v) Water-filled depressions created in water mark and within the 100-year year floodplain of a water identified in dry land incidental to mining or floodplain; paragraphs (a)(1) through (3) of this construction activity, including pits (iii) All waters located within 1,500 section and all waters located within excavated for obtaining fill, sand, or feet of the high tide line of a water 4,000 feet of the high tide line or gravel that fill with water; identified in paragraphs (a)(1) or (a)(3) ordinary high water mark of a water (vi) Erosional features, including of this section, and all waters within identified in paragraphs (a)(1) through gullies, rills, and other ephemeral 1,500 feet of the ordinary high water (5) of this section where they are features that do not meet the definition mark of the Great Lakes. The entire determined on a case-specific basis to of tributary, non-wetland swales, and water is neighboring if a portion is have a significant nexus to a water lawfully constructed grassed waterways; located within 1,500 feet of the high tide identified in paragraphs (a)(1) through and line or within 1,500 feet of the ordinary (3) of this section. For waters (vii) Puddles. high water mark of the Great Lakes. determined to have a significant nexus, (5) Groundwater, including (3) Tributary and tributaries. The the entire water is a water of the United groundwater drained through terms tributary and tributaries each States if a portion is located within the subsurface drainage systems. mean a water that contributes flow, 100-year floodplain of a water identified (6) Stormwater control features either directly or through another water in paragraphs (a)(1) through (3) of this constructed to convey, treat, or store (including an impoundment identified section or within 4,000 feet of the high stormwater that are created in dry land. in paragraph (a)(4) of this section), to a tide line or ordinary high water mark. (7) Wastewater recycling structures water identified in paragraphs (a)(1) Waters identified in this paragraph shall constructed in dry land; detention and through (3) of this section that is not be combined with waters identified retention basins built for wastewater characterized by the presence of the in paragraph (a)(6) of this section when recycling; groundwater recharge basins; physical indicators of a bed and banks performing a significant nexus analysis. percolation ponds built for wastewater and an ordinary high water mark. These If waters identified in this paragraph are recycling; and water distributary physical indicators demonstrate there is also an adjacent water under paragraph structures built for wastewater volume, frequency, and duration of flow (a)(6), they are an adjacent water and no recycling. sufficient to create a bed and banks and case-specific significant nexus analysis (c) Definitions. In this section, the an ordinary high water mark, and thus is required. following definitions apply: to qualify as a tributary. A tributary can (b) The following are not ‘‘waters of (1) Adjacent. The term adjacent be a natural, man-altered, or man-made the United States’’ even where they means bordering, contiguous, or water and includes waters such as otherwise meet the terms of paragraphs neighboring a water identified in rivers, streams, canals, and ditches not (a)(4) through (8) of this section. paragraphs (a)(1) through (5) of this excluded under paragraph (b) of this

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section. A water that otherwise qualifies (iii) Pollutant trapping, § 110.1 Definitions. as a tributary under this definition does transformation, filtering, and transport, * * * * * not lose its status as a tributary if, for (iv) Retention and attenuation of flood Navigable waters means waters of the any length, there are one or more waters, United States, including the territorial constructed breaks (such as bridges, (v) Runoff storage, seas. culverts, pipes, or dams), or one or more (vi) Contribution of flow, (1) For purposes of the Clean Water natural breaks (such as wetlands along (vii) Export of organic matter, Act, 33 U.S.C. 1251 et seq. and its the run of a stream, debris piles, boulder (viii) Export of food resources, and implementing regulations, subject to the fields, or a stream that flows (ix) Provision of life cycle dependent exclusions in paragraph (2) of this underground) so long as a bed and aquatic habitat (such as foraging, section, the term ‘‘waters of the United banks and an ordinary high water mark feeding, nesting, breeding, spawning, or States’’ means: can be identified upstream of the break. use as a nursery area) for species located (i) All waters which are currently A water that otherwise qualifies as a in a water identified in paragraphs (a)(1) used, were used in the past, or may be tributary under this definition does not through (3) of this section. susceptible to use in interstate or foreign lose its status as a tributary if it (6) Ordinary high water mark. The commerce, including all waters which contributes flow through a water of the term ordinary high water mark means are subject to the ebb and flow of the United States that does not meet the that line on the shore established by the tide; definition of tributary or through a non- fluctuations of water and indicated by (ii) All interstate waters, including jurisdictional water to a water identified physical characteristics such as a clear, interstate wetlands; in paragraphs (a)(1) through (3) of this natural line impressed on the bank, (iii) The territorial seas; section. shelving, changes in the character of (iv) All impoundments of waters (4) Wetlands. The term wetlands soil, destruction of terrestrial vegetation, otherwise identified as waters of the means those areas that are inundated or the presence of litter and debris, or United States under this section; saturated by surface or groundwater at other appropriate means that consider (v) All tributaries, as defined in a frequency and duration sufficient to the characteristics of the surrounding paragraph (3)(iii) of this definition, of support, and that under normal areas. waters identified in paragraphs (1)(i) circumstances do support, a prevalence (7) High tide line. The term high tide through (iii) of this definition; of vegetation typically adapted for life line means the line of intersection of the (vi) All waters adjacent to a water in saturated soil conditions. Wetlands land with the water’s surface at the identified in paragraphs (1)(i) through generally include swamps, marshes, maximum height reached by a rising (v) of this definition, including bogs, and similar areas. tide. The high tide line may be wetlands, ponds, lakes, oxbows, (5) Significant nexus. The term determined, in the absence of actual significant nexus means that a water, impoundments, and similar waters; data, by a line of oil or scum along shore (vii) All waters in paragraphs including wetlands, either alone or in objects, a more or less continuous combination with other similarly (1)(vii)(A) through (E) of this definition deposit of fine shell or debris on the where they are determined, on a case- situated waters in the region, foreshore or berm, other physical significantly affects the chemical, specific basis, to have a significant markings or characteristics, vegetation nexus to a water identified in physical, or biological integrity of a lines, tidal gages, or other suitable water identified in paragraphs (a)(1) paragraphs (1)(i) through (iii) of this means that delineate the general height definition. The waters identified in each through (3) of this section. The term ‘‘in reached by a rising tide. The line the region’’ means the watershed that of paragraphs (1)(vii)(A) through (E) of encompasses spring high tides and other drains to the nearest water identified in this definition are similarly situated and high tides that occur with periodic paragraphs (a)(1) through (3) of this shall be combined, for purposes of a frequency but does not include storm section. For an effect to be significant, significant nexus analysis, in the surges in which there is a departure it must be more than speculative or watershed that drains to the nearest from the normal or predicted reach of insubstantial. Waters are similarly water identified in paragraphs (1)(i) the tide due to the piling up of water situated when they function alike and through (iii) of this definition. Waters against a coast by strong winds such as are sufficiently close to function identified in this paragraph shall not be those accompanying a hurricane or together in affecting downstream waters. combined with waters identified in other intense storm. For purposes of determining whether or paragraph (1)(vi) of this definition when not a water has a significant nexus, the * * * * * performing a significant nexus analysis. water’s effect on downstream paragraph Title 40—Protection of Environment If waters identified in this paragraph are (a)(1) through (3) waters shall be also an adjacent water under paragraph assessed by evaluating the aquatic For reasons set out in the preamble, (1)(vi), they are an adjacent water and functions identified in paragraphs title 40, chapter I of the Code of Federal no case-specific significant nexus (c)(5)(i) through (ix) of this section. A Regulations is amended as follows: analysis is required. (A) Prairie potholes. Prairie potholes water has a significant nexus when any PART 110—DISCHARGE OF OIL single function or combination of are a complex of glacially formed functions performed by the water, alone ■ 3. The authority citation for part 110 wetlands, usually occurring in or together with similarly situated is revised to read as follows: depressions that lack permanent natural waters in the region, contributes outlets, located in the upper Midwest. significantly to the chemical, physical, Authority: 33 U.S.C. 1251 et seq., 33 U.S.C. (B) Carolina bays and Delmarva bays. 1321(b)(3) and (b)(4) and 1361(a); E.O. 11735, Carolina bays and Delmarva bays are or biological integrity of the nearest 38 FR 21243, 3 CFR parts 1971–1975 Comp., water identified in paragraphs (a)(1) p. 793. ponded, depressional wetlands that through (3) of this section. Functions occur along the Atlantic coastal plain. relevant to the significant nexus ■ 4. Section 110.1 is amended by (C) Pocosins. Pocosins are evergreen evaluation are the following: removing the definition of ‘‘wetlands’’ shrub and tree dominated wetlands (i) Sediment trapping, and revising the definition of ‘‘navigable found predominantly along the Central (ii) Nutrient recycling, waters’’ to read as follows: Atlantic coastal plain.

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(D) Western vernal pools. Western (iv) The following features: (A) All waters located within 100 feet vernal pools are seasonal wetlands (A) Artificially irrigated areas that of the ordinary high water mark of a located in parts of California and would revert to dry land should water identified in paragraphs (1)(i) associated with topographic depression, application of water to that area cease; through (v) of this definition. The entire soils with poor drainage, mild, wet (B) Artificial, constructed lakes and water is neighboring if a portion is winters and hot, dry summers. ponds created in dry land such as farm located within 100 feet of the ordinary (E) Texas coastal prairie wetlands. and stock watering ponds, irrigation high water mark; Texas coastal prairie wetlands are ponds, settling basins, fields flooded for (B) All waters located within the 100- freshwater wetlands that occur as a rice growing, log cleaning ponds, or year floodplain of a water identified in mosaic of depressions, ridges, cooling ponds; paragraphs (1)(i) through (v) of this intermound flats, and mima mound (C) Artificial reflecting pools or definition and not more than 1,500 feet wetlands located along the Texas Gulf swimming pools created in dry land; from the ordinary high water mark of Coast. (D) Small ornamental waters created such water. The entire water is (viii) All waters located within the in dry land; neighboring if a portion is located 100-year floodplain of a water identified (E) Water-filled depressions created in within 1,500 feet of the ordinary high in paragraphs (1)(i) through (iii) of this dry land incidental to mining or water mark and within the 100-year definition and all waters located within construction activity, including pits floodplain; excavated for obtaining fill, sand, or 4,000 feet of the high tide line or (C) All waters located within 1,500 gravel that fill with water; ordinary high water mark of a water feet of the high tide line of a water (F) Erosional features, including identified in paragraphs (1)(i) through identified in paragraphs (1)(i) or (iii) of gullies, rills, and other ephemeral (v) of this definition where they are this definition, and all waters within features that do not meet the definition determined on a case-specific basis to 1,500 feet of the ordinary high water of tributary, non-wetland swales, and have a significant nexus to a water mark of the Great Lakes. The entire lawfully constructed grassed waterways; identified in paragraphs (1)(i) through water is neighboring if a portion is and (iii) of this definition. For waters located within 1,500 feet of the high tide determined to have a significant nexus, (G) Puddles. (v) Groundwater, including line or within 1,500 feet of the ordinary the entire water is a water of the United high water mark of the Great Lakes. States if a portion is located within the groundwater drained through subsurface drainage systems. (iii) Tributary and tributaries. The 100-year floodplain of a water identified terms tributary and tributaries each in paragraphs (1)(i) through (iii) of this (vi) Stormwater control features constructed to convey, treat, or store mean a water that contributes flow, definition or within 4,000 feet of the either directly or through another water high tide line or ordinary high water stormwater that are created in dry land. (vii) Wastewater recycling structures (including an impoundment identified mark. Waters identified in this in paragraph (1)(iv) of this section), to paragraph shall not be combined with constructed in dry land; detention and retention basins built for wastewater a water identified in paragraphs (1)(i) waters identified in paragraph (1)(vi) of through (iii) of this definition that is this definition when performing a recycling; groundwater recharge basins; percolation ponds built for wastewater characterized by the presence of the significant nexus analysis. If waters physical indicators of a bed and banks identified in this paragraph are also an recycling; and water distributary structures built for wastewater and an ordinary high water mark. These adjacent water under paragraph (1)(vi), physical indicators demonstrate there is they are an adjacent water and no case- recycling. (3) In this definition, the following volume, frequency, and duration of flow specific significant nexus analysis is terms apply: sufficient to create a bed and banks and required. an ordinary high water mark, and thus (2) The following are not ‘‘waters of (i) Adjacent. The term adjacent means to qualify as a tributary. A tributary can the United States’’ even where they bordering, contiguous, or neighboring a be a natural, man-altered, or man-made otherwise meet the terms of paragraphs water identified in paragraphs (1)(i) water and includes waters such as (1)(iv) through (viii) of this section. through (v) of this definition, including (i) Waste treatment systems (other waters separated by constructed dikes or rivers, streams, canals, and ditches not than cooling ponds meeting the criteria barriers, natural river berms, beach excluded under paragraph (2) of this of this paragraph) are not waters of the dunes, and the like. For purposes of definition. A water that otherwise United States. adjacency, an open water such as a qualifies as a tributary under this (ii) Prior converted cropland. pond or lake includes any wetlands definition does not lose its status as a Notwithstanding the determination of within or abutting its ordinary high tributary if, for any length, there are one an area’s status as prior converted water mark. Adjacency is not limited to or more constructed breaks (such as cropland by any other Federal agency, waters located laterally to a water bridges, culverts, pipes, or dams), or one for the purposes of the Clean Water Act, identified in paragraphs (1)(1) through or more natural breaks (such as the final authority regarding Clean (v) of this definition. Adjacent waters wetlands along the run of a stream, Water Act jurisdiction remains with also include all waters that connect debris piles, boulder fields, or a stream EPA. segments of a water identified in that flows underground) so long as a bed (iii) The following ditches: paragraphs (1)(i) through (v) or are and banks and an ordinary high water (A) Ditches with ephemeral flow that located at the head of a water identified mark can be identified upstream of the are not a relocated tributary or in paragraphs (1)(i) through (v) of this break. A water that otherwise qualifies excavated in a tributary. definition and are bordering, as a tributary under this definition does (B) Ditches with intermittent flow that contiguous, or neighboring such water. not lose its status as a tributary if it are not a relocated tributary, excavated Waters being used for established contributes flow through a water of the in a tributary, or drain wetlands. normal farming, ranching, and United States that does not meet the (C) Ditches that do not flow, either silviculture activities (33 U.S.C. 1344(f)) definition of tributary or through a non- directly or through another water, into are not adjacent. jurisdictional water to a water identified a water identified in paragraphs (1)(i) (ii) Neighboring. The term in paragraphs (1)(i) through (iii) of this through (iii) of this definition. neighboring means: definition.

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(iv) Wetlands. The term wetlands shelving, changes in the character of (vi) All waters adjacent to a water means those areas that are inundated or soil, destruction of terrestrial vegetation, identified in paragraphs (1)(i) through saturated by surface or groundwater at the presence of litter and debris, or (v) of this definition, including a frequency and duration sufficient to other appropriate means that consider wetlands, ponds, lakes, oxbows, support, and that under normal the characteristics of the surrounding impoundments, and similar waters; circumstances do support, a prevalence areas. (vii) All waters in paragraphs of vegetation typically adapted for life (vii) High tide line. The term high tide (1)(vii)(A) through (E) of this definition in saturated soil conditions. Wetlands line means the line of intersection of the where they are determined, on a case- generally include swamps, marshes, land with the water’s surface at the specific basis, to have a significant bogs, and similar areas. maximum height reached by a rising nexus to a water identified in (v) Significant nexus. The term tide. The high tide line may be paragraphs (1)(i) through (iii) of this significant nexus means that a water, determined, in the absence of actual definition. The waters identified in each including wetlands, either alone or in data, by a line of oil or scum along shore of paragraphs (1)(vii)(A) through (E) of combination with other similarly objects, a more or less continuous this definition are similarly situated and situated waters in the region, deposit of fine shell or debris on the shall be combined, for purposes of a significantly affects the chemical, foreshore or berm, other physical significant nexus analysis, in the physical, or biological integrity of a markings or characteristics, vegetation watershed that drains to the nearest water identified in paragraphs (1)(i) lines, tidal gages, or other suitable water identified in paragraphs (1)(i) through (iii) of this definition. The term means that delineate the general height through (iii) of this definition. Waters ‘‘in the region’’ means the watershed reached by a rising tide. The line identified in this paragraph shall not be that drains to the nearest water encompasses spring high tides and other combined with waters identified in identified in paragraphs (1)(i) through high tides that occur with periodic paragraph (1)(vi) of this section when (iii) of this definition. For an effect to be frequency but does not include storm performing a significant nexus analysis. significant, it must be more than surges in which there is a departure If waters identified in this paragraph are speculative or insubstantial. Waters are from the normal or predicted reach of also an adjacent water under paragraph similarly situated when they function the tide due to the piling up of water (1)(vi), they are an adjacent water and alike and are sufficiently close to against a coast by strong winds such as no case-specific significant nexus function together in affecting those accompanying a hurricane or analysis is required. downstream waters. For purposes of other intense storm. (A) Prairie potholes. Prairie potholes determining whether or not a water has * * * * * are a complex of glacially formed a significant nexus, the water’s effect on wetlands, usually occurring in downstream (1)(i) through (iii) waters PART 112—OIL POLLUTION depressions that lack permanent natural shall be assessed by evaluating the PREVENTION outlets, located in the upper Midwest. aquatic functions identified in (B) Carolina bays and Delmarva bays. ■ 5. The authority citation for part 112 Carolina bays and Delmarva bays are paragraphs (3)(v)(A) through (I) of this is revised to read as follows: definition. A water has a significant ponded, depressional wetlands that nexus when any single function or Authority: 33 U.S.C. 1251 et seq. occur along the Atlantic coastal plain. (C) Pocosins. Pocosins are evergreen combination of functions performed by ■ 6. Section 112.2 is amended by shrub and tree dominated wetlands the water, alone or together with removing the definition of ‘‘wetlands’’ found predominantly along the Central similarly situated waters in the region, and revising the definition of Atlantic coastal plain. contributes significantly to the ‘‘Navigable waters’’ to read as follows: (D) Western vernal pools. Western chemical, physical, or biological § 112.2 Definitions. vernal pools are seasonal wetlands integrity of the nearest water identified located in parts of California and * * * * * in paragraphs (1)(i) through (iii) of this associated with topographic depression, definition. Functions relevant to the Navigable waters means waters of the United States, including the territorial soils with poor drainage, mild, wet significant nexus evaluation are the winters and hot, dry summers. following: seas. (1) For purposes of the Clean Water (E) Texas coastal prairie wetlands. (A) Sediment trapping, Texas coastal prairie wetlands are (B) Nutrient recycling, Act, 33 U.S.C. 1251 et seq. and its (C) Pollutant trapping, transformation, implementing regulations, subject to the freshwater wetlands that occur as a filtering, and transport, exclusions in paragraph (2) of this mosaic of depressions, ridges, (D) Retention and attenuation of flood definition, the term ‘‘waters of the intermound flats, and mima mound waters, United States’’ means: wetlands located along the Texas Gulf (E) Runoff storage, (i) All waters which are currently Coast. (F) Contribution of flow, used, were used in the past, or may be (viii) All waters located within the (G) Export of organic matter, susceptible to use in interstate or foreign 100-year floodplain of a water identified (H) Export of food resources, and commerce, including all waters which in paragraphs (1)(i) through (iii) of this (I) Provision of life cycle dependent are subject to the ebb and flow of the definition and all waters located within aquatic habitat (such as foraging, tide; 4,000 feet of the high tide line or feeding, nesting, breeding, spawning, or (ii) All interstate waters, including ordinary high water mark of a water use as a nursery area) for species located interstate wetlands; identified in paragraphs (1)(i) through in a water identified in paragraphs (1)(i) (iii) The territorial seas; (v) of this definition where they are through (iii) of this definition. (iv) All impoundments of waters determined on a case-specific basis to (vi) Ordinary high water mark. The otherwise identified as waters of the have a significant nexus to a water term ordinary high water mark means United States under this section; identified in paragraphs (1)(i) through that line on the shore established by the (v) All tributaries, as defined in (iii) of this definition. For waters fluctuations of water and indicated by paragraph (3)(iii) of this definition, of determined to have a significant nexus, physical characteristics such as a clear, waters identified in paragraphs (1)(i) the entire water is a water of the United natural line impressed on the bank, through (iii) of this definition; States if a portion is located within the

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100-year floodplain of a water identified (3) In this definition, the following sufficient to create a bed and banks and in paragraphs (1)(i) through (iii) of this terms apply: an ordinary high water mark, and thus definition or within 4,000 feet of the (i) Adjacent. The term adjacent means to qualify as a tributary. A tributary can high tide line or ordinary high water bordering, contiguous, or neighboring a be a natural, man-altered, or man-made mark. Waters identified in this water identified in paragraphs (1)(i) water and includes waters such as paragraph shall not be combined with through (v) of this definition, including rivers, streams, canals, and ditches not waters identified in paragraph (1)(vi) of waters separated by constructed dikes or excluded under paragraph (2) of this this definition when performing a barriers, natural river berms, beach definition. A water that otherwise significant nexus analysis. If waters dunes, and the like. For purposes of qualifies as a tributary under this identified in this paragraph are also an adjacency, an open water such as a definition does not lose its status as a adjacent water under paragraph (1)(vi), pond or lake includes any wetlands tributary if, for any length, there are one they are an adjacent water and no case- within or abutting its ordinary high or more constructed breaks (such as specific significant nexus analysis is water mark. Adjacency is not limited to bridges, culverts, pipes, or dams), or one required. waters located laterally to a water or more natural breaks (such as (2) The following are not ‘‘waters of identified in paragraphs (1)(i) through wetlands along the run of a stream, the United States’’ even where they (v) of this definition. Adjacent waters debris piles, boulder fields, or a stream otherwise meet the terms of paragraphs also include all waters that connect that flows underground) so long as a bed (1)(iv) through (viii) of this definition. segments of a water identified in and banks and an ordinary high water (i) The following ditches: paragraphs (1)(i) through (v) or are mark can be identified upstream of the (A) Ditches with ephemeral flow that located at the head of a water identified break. A water that otherwise qualifies are not a relocated tributary or in paragraphs (1)(i) through (v) of this as a tributary under this definition does excavated in a tributary. definition and are bordering, not lose its status as a tributary if it (B) Ditches with intermittent flow that contiguous, or neighboring such water. contributes flow through a water of the are not a relocated tributary, excavated Waters being used for established United States that does not meet the in a tributary, or drain wetlands. normal farming, ranching, and definition of tributary or through a non- (C) Ditches that do not flow, either silviculture activities (33 U.S.C. 1344(f)) jurisdictional water to a water identified directly or through another water, into are not adjacent. in paragraphs (1)(i) through (iii) of this a water identified in paragraphs (1)(i) (ii) Neighboring. The term definition. through (iii) of this definition. neighboring means: (iv) Wetlands. The term wetlands (ii) The following features: (A) All waters located within 100 feet means those areas that are inundated or (A) Artificially irrigated areas that of the ordinary high water mark of a saturated by surface or groundwater at would revert to dry land should water identified in paragraphs (1)(i) a frequency and duration sufficient to application of water to that area cease; through (v) of this definition. The entire support, and that under normal (B) Artificial, constructed lakes and water is neighboring if a portion is circumstances do support, a prevalence ponds created in dry land such as farm located within 100 feet of the ordinary of vegetation typically adapted for life and stock watering ponds, irrigation high water mark; in saturated soil conditions. Wetlands ponds, settling basins, fields flooded for (B) All waters located within the 100- generally include swamps, marshes, rice growing, log cleaning ponds, or year floodplain of a water identified in bogs, and similar areas. cooling ponds; paragraphs (1)(i) through (v) of this (v) Significant nexus. The term (C) Artificial reflecting pools or definition and not more than 1,500 feet significant nexus means that a water, swimming pools created in dry land; from the ordinary high water mark of including wetlands, either alone or in (D) Small ornamental waters created such water. The entire water is combination with other similarly in dry land; neighboring if a portion is located situated waters in the region, (E) Water-filled depressions created in within 1,500 feet of the ordinary high significantly affects the chemical, dry land incidental to mining or water mark and within the 100-year physical, or biological integrity of a construction activity, including pits floodplain; water identified in paragraphs (1)(i) excavated for obtaining fill, sand, or (C) All waters located within 1,500 through (iii) of this definition. The term gravel that fill with water; feet of the high tide line of a water ‘‘in the region’’ means the watershed (F) Erosional features, including identified in paragraphs (1)(i) or (1)(iii) that drains to the nearest water gullies, rills, and other ephemeral of this definition, and all waters within identified in paragraphs (1)(i) through features that do not meet the definition 1,500 feet of the ordinary high water (iii) of this definition. For an effect to be of tributary, non-wetland swales, and mark of the Great Lakes. The entire significant, it must be more than lawfully constructed grassed waterways; water is neighboring if a portion is speculative or insubstantial. Waters are and located within 1,500 feet of the high tide similarly situated when they function (G) Puddles. line or within 1,500 feet of the ordinary alike and are sufficiently close to (iii) Groundwater, including high water mark of the Great Lakes. function together in affecting groundwater drained through (iii) Tributary and tributaries. The downstream waters. For purposes of subsurface drainage systems. terms tributary and tributaries each determining whether or not a water has (iv) Stormwater control features mean a water that contributes flow, a significant nexus, the water’s effect on constructed to convey, treat, or store either directly or through another water downstream (1)(i) through (iii) waters stormwater that are created in dry land. (including an impoundment identified shall be assessed by evaluating the (v) Wastewater recycling structures in paragraph (1)(iv) of this definition), to aquatic functions identified in constructed in dry land; detention and a water identified in paragraphs (1)(i) paragraphs (3)(v)(A) through (I) of this retention basins built for wastewater through (iii) of this definition that is definition. A water has a significant recycling; groundwater recharge basins; characterized by the presence of the nexus when any single function or percolation ponds built for wastewater physical indicators of a bed and banks combination of functions performed by recycling; and water distributary and an ordinary high water mark. These the water, alone or together with structures built for wastewater physical indicators demonstrate there is similarly situated waters in the region, recycling. volume, frequency, and duration of flow contributes significantly to the

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chemical, physical, or biological § 116.3 Definitions. (D) Western vernal pools. Western integrity of the nearest water identified * * * * * vernal pools are seasonal wetlands in paragraphs (1)(i) through (iii) of this Navigable waters is defined in section located in parts of California and section. Functions relevant to the 502(7) of the Act to mean ‘‘waters of the associated with topographic depression, significant nexus evaluation are the United States, including the territorial soils with poor drainage, mild, wet following: seas.’’ winters and hot, dry summers. (A) Sediment trapping, (1) For purposes of the Clean Water (E) Texas coastal prairie wetlands. (B) Nutrient recycling, Act, 33 U.S.C. 1251 et seq. and its Texas coastal prairie wetlands are (C) Pollutant trapping, transformation, implementing regulations, subject to the freshwater wetlands that occur as a filtering, and transport, exclusions in paragraph (2) of this mosaic of depressions, ridges, (D) Retention and attenuation of flood definition, the term ‘‘waters of the intermound flats, and mima mound waters, United States’’ means: wetlands located along the Texas Gulf (E) Runoff storage, (i) All waters which are currently Coast. (F) Contribution of flow, used, were used in the past, or may be (viii) All waters located within the (G) Export of organic matter, susceptible to use in interstate or foreign 100-year floodplain of a water identified (H) Export of food resources, and commerce, including all waters which in paragraphs (1)(i) through (iii) of this (I) Provision of life cycle dependent are subject to the ebb and flow of the definition and all waters located within aquatic habitat (such as foraging, tide; 4,000 feet of the high tide line or feeding, nesting, breeding, spawning, or (ii) All interstate waters, including ordinary high water mark of a water use as a nursery area) for species located interstate wetlands; identified in paragraphs (1)(i) through in a water identified in paragraphs (1)(i) (iii) The territorial seas; (v) of this definition where they are through (iii) of this definition. (iv) All impoundments of waters determined on a case-specific basis to (vi) Ordinary high water mark. The otherwise identified as waters of the have a significant nexus to a water term ordinary high water mark means United States under this section; identified in paragraphs (1)(i) through that line on the shore established by the (v) All tributaries, as defined in (iii) of this definition. For waters fluctuations of water and indicated by paragraph (3)(iii) of this definition, of determined to have a significant nexus, physical characteristics such as a clear, waters identified in paragraphs (1)(i) the entire water is a water of the United natural line impressed on the bank, through (iii) of this definition; States if a portion is located within the shelving, changes in the character of (vi) All waters adjacent to a water 100-year floodplain of a water identified soil, destruction of terrestrial vegetation, identified in paragraphs (1)(i) through in paragraphs (1)(i) through (iii) of this the presence of litter and debris, or (v) of this definition, including definition or within 4,000 feet of the other appropriate means that consider wetlands, ponds, lakes, oxbows, high tide line or ordinary high water the characteristics of the surrounding impoundments, and similar waters; mark. Waters identified in this areas. (vii) All waters in paragraphs paragraph shall not be combined with (vii) High tide line. The term high tide (1)(vii)(A) through (E) of this definition waters identified in paragraph (1)(vi) of line means the line of intersection of the where they are determined, on a case- this definition when performing a land with the water’s surface at the specific basis, to have a significant significant nexus analysis. If waters maximum height reached by a rising nexus to a water identified in identified in this paragraph are also an tide. The high tide line may be paragraphs (1)(i) through (iii) of this adjacent water under paragraph (1)(vi), determined, in the absence of actual definition. The waters identified in each they are an adjacent water and no case- data, by a line of oil or scum along shore of paragraphs (1)(vii)(A) through (E) of specific significant nexus analysis is objects, a more or less continuous this definition are similarly situated and required. deposit of fine shell or debris on the shall be combined, for purposes of a (2) The following are not ‘‘waters of foreshore or berm, other physical significant nexus analysis, in the the United States’’ even where they markings or characteristics, vegetation watershed that drains to the nearest otherwise meet the terms of paragraphs lines, tidal gages, or other suitable water identified in paragraphs (1)(i) (1)(iv) through (viii) of this definition. means that delineate the general height through (iii) of this definition. Waters (i) Prior converted cropland. reached by a rising tide. The line identified in this paragraph shall not be Notwithstanding the determination of encompasses spring high tides and other combined with waters identified in an area’s status as prior converted high tides that occur with periodic paragraph (1)(vi) of this definition when cropland by any other Federal agency, frequency but does not include storm performing a significant nexus analysis. for the purposes of the Clean Water Act, surges in which there is a departure If waters identified in this paragraph are the final authority regarding Clean from the normal or predicted reach of also an adjacent water under paragraph Water Act jurisdiction remains with the tide due to the piling up of water (1)(vi), they are an adjacent water and EPA. against a coast by strong winds such as no case-specific significant nexus (ii) The following ditches: those accompanying a hurricane or analysis is required. (A) Ditches with ephemeral flow that other intense storm. (A) Prairie potholes. Prairie potholes are not a relocated tributary or are a complex of glacially formed * * * * * excavated in a tributary. wetlands, usually occurring in (B) Ditches with intermittent flow that PART 116—DESIGNATION OF depressions that lack permanent natural are not a relocated tributary, excavated HAZARDOUS SUBSTANCE outlets, located in the upper Midwest. in a tributary, or drain wetlands. (B) Carolina bays and Delmarva bays. (C) Ditches that do not flow, either ■ 7. The authority citation for part 116 Carolina bays and Delmarva bays are directly or through another water, into is revised to read as follows: ponded, depressional wetlands that a water identified in paragraphs (1)(i) occur along the Atlantic coastal plain. through (iii) of this definition. Authority: 33 U.S.C. 1251 et seq. (C) Pocosins. Pocosins are evergreen (iii) The following features: ■ 8. Section 116.3 is amended by shrub and tree dominated wetlands (A) Artificially irrigated areas that revising the definition of ‘‘Navigable found predominantly along the Central would revert to dry land should waters’’ to read as follows: Atlantic coastal plain. application of water to that area cease;

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(B) Artificial, constructed lakes and water is neighboring if a portion is circumstances do support, a prevalence ponds created in dry land such as farm located within 100 feet of the ordinary of vegetation typically adapted for life and stock watering ponds, irrigation high water mark; in saturated soil conditions. Wetlands ponds, settling basins, fields flooded for (B) All waters located within the 100- generally include swamps, marshes, rice growing, log cleaning ponds, or year floodplain of a water identified in bogs, and similar areas. cooling ponds; paragraphs (1)(i) through (v) of this (v) Significant nexus. The term (C) Artificial reflecting pools or definition and not more than 1,500 feet significant nexus means that a water, swimming pools created in dry land; from the ordinary high water mark of including wetlands, either alone or in (D) Small ornamental waters created such water. The entire water is combination with other similarly in dry land; neighboring if a portion is located situated waters in the region, (E) Water-filled depressions created in within 1,500 feet of the ordinary high significantly affects the chemical, dry land incidental to mining or water mark and within the 100-year physical, or biological integrity of a construction activity, including pits floodplain; water identified in paragraphs (1)(i) excavated for obtaining fill, sand, or (C) All waters located within 1,500 through (iii) of this definition. The term gravel that fill with water; feet of the high tide line of a water ‘‘in the region’’ means the watershed (F) Erosional features, including identified in paragraphs (1)(i) or (1)(iii) that drains to the nearest water gullies, rills, and other ephemeral of this definition, and all waters within identified in paragraphs (1)(i) through features that do not meet the definition 1,500 feet of the ordinary high water (iii) of this definition. For an effect to be of tributary, non-wetland swales, and mark of the Great Lakes. The entire significant, it must be more than lawfully constructed grassed waterways; water is neighboring if a portion is speculative or insubstantial. Waters are and located within 1,500 feet of the high tide similarly situated when they function (G) Puddles. line or within 1,500 feet of the ordinary alike and are sufficiently close to (iv) Groundwater, including high water mark of the Great Lakes. function together in affecting (iii) Tributary and tributaries. The groundwater drained through downstream waters. For purposes of terms tributary and tributaries each subsurface drainage systems. determining whether or not a water has (v) Stormwater control features mean a water that contributes flow, a significant nexus, the water’s effect on constructed to convey, treat, or store either directly or through another water downstream (1)(i) through (iii) waters stormwater that are created in dry land. (including an impoundment identified shall be assessed by evaluating the (vi) Wastewater recycling structures in paragraph (1)(iv) of this definition), to aquatic functions identified in constructed in dry land; detention and a water identified in paragraphs (1)(i) paragraphs (3)(v)(A) through (I) of this retention basins built for wastewater through (iii) of this definition that is definition. A water has a significant recycling; groundwater recharge basins; characterized by the presence of the nexus when any single function or percolation ponds built for wastewater physical indicators of a bed and banks recycling; and water distributary and an ordinary high water mark. These combination of functions performed by structures built for wastewater physical indicators demonstrate there is the water, alone or together with recycling. volume, frequency, and duration of flow similarly situated waters in the region, (3) In this definition, the following sufficient to create a bed and banks and contributes significantly to the terms apply: an ordinary high water mark, and thus chemical, physical, or biological (i) Adjacent. The term adjacent means to qualify as a tributary. A tributary can integrity of the nearest water identified bordering, contiguous, or neighboring a be a natural, man-altered, or man-made in paragraphs (1)(i) through (iii) of this water identified in paragraphs (1)(i) water and includes waters such as definition. Functions relevant to the through (v) of this definition, including rivers, streams, canals, and ditches not significant nexus evaluation are the waters separated by constructed dikes or excluded under paragraph (2) of this following: barriers, natural river berms, beach definition. A water that otherwise (A) Sediment trapping, dunes, and the like. For purposes of qualifies as a tributary under this (B) Nutrient recycling, adjacency, an open water such as a definition does not lose its status as a (C) Pollutant trapping, transformation, pond or lake includes any wetlands tributary if, for any length, there are one filtering, and transport, within or abutting its ordinary high or more constructed breaks (such as (D) Retention and attenuation of flood water mark. Adjacency is not limited to bridges, culverts, pipes, or dams), or one waters, waters located laterally to a water or more natural breaks (such as (E) Runoff storage, identified in paragraphs (1)(i) through wetlands along the run of a stream, (F) Contribution of flow, (v) of this definition. Adjacent waters debris piles, boulder fields, or a stream (G) Export of organic matter, also include all waters that connect that flows underground) so long as a bed (H) Export of food resources, and segments of a water identified in and banks and an ordinary high water (I) Provision of life cycle dependent paragraphs (1)(i) through (v) or are mark can be identified upstream of the aquatic habitat (such as foraging, located at the head of a water identified break. A water that otherwise qualifies feeding, nesting, breeding, spawning, or in paragraphs (1)(i) through (v) of this as a tributary under this definition does use as a nursery area) for species located definition and are bordering, not lose its status as a tributary if it in a water identified in paragraphs (1)(i) contiguous, or neighboring such water. contributes flow through a water of the through (iii) of this section. Waters being used for established United States that does not meet the (vi) Ordinary high water mark. The normal farming, ranching, and definition of tributary or through a non- term ordinary high water mark means silviculture activities (33 U.S.C. 1344(f)) jurisdictional water to a water identified that line on the shore established by the are not adjacent. in paragraphs (1)(i) through (iii) of this fluctuations of water and indicated by (ii) Neighboring. The term definition. physical characteristics such as a clear, neighboring means: (iv) Wetlands. The term wetlands natural line impressed on the bank, (A) All waters located within 100 feet means those areas that are inundated or shelving, changes in the character of of the ordinary high water mark of a saturated by surface or groundwater at soil, destruction of terrestrial vegetation, water identified in paragraphs (1)(i) a frequency and duration sufficient to the presence of litter and debris, or through (v) of this definition. The entire support, and that under normal other appropriate means that consider

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the characteristics of the surrounding (v) of this section, including wetlands, section or within 4,000 feet of the high areas. ponds, lakes, oxbows, impoundments, tide line or ordinary high water mark. (vii) High tide line. The term high tide and similar waters; Waters identified in this paragraph shall line means the line of intersection of the (vii) All waters in paragraphs not be combined with waters identified land with the water’s surface at the (i)(1)(vii)(A) through (E) of this section in paragraph (i)(1)(vi) of this section maximum height reached by a rising where they are determined, on a case- when performing a significant nexus tide. The high tide line may be specific basis, to have a significant analysis. If waters identified in this determined, in the absence of actual nexus to a water identified in paragraph are also an adjacent water data, by a line of oil or scum along shore paragraphs (i)(1)(i) through (iii) of this under paragraph (i)(1)(vi), they are an objects, a more or less continuous section. The waters identified in each of adjacent water and no case-specific deposit of fine shell or debris on the paragraphs (i)(1)(vii)(A) through (E) of significant nexus analysis is required. foreshore or berm, other physical this section are similarly situated and (2) The following are not ‘‘waters of markings or characteristics, vegetation shall be combined, for purposes of a the United States’’ even where they lines, tidal gages, or other suitable significant nexus analysis, in the otherwise meet the terms of paragraphs means that delineate the general height watershed that drains to the nearest (i)(1)(iv) through (viii) of this section. reached by a rising tide. The line water identified in paragraphs (i)(1)(i) (i) Waste treatment systems, (other encompasses spring high tides and other through (iii) of this section. Waters than cooling ponds meeting the criteria high tides that occur with periodic identified in this paragraph shall not be of this paragraph) are not waters of the frequency but does not include storm combined with waters identified in United States. surges in which there is a departure paragraph (i)(1)(vi) of this section when (ii) Prior converted cropland. from the normal or predicted reach of performing a significant nexus analysis. Notwithstanding the determination of the tide due to the piling up of water If waters identified in this paragraph are an area’s status as prior converted against a coast by strong winds such as also an adjacent water under paragraph cropland by any other Federal agency, those accompanying a hurricane or (i)(1)(vi), they are an adjacent water and for the purposes of the Clean Water Act, other intense storm. no case-specific significant nexus the final authority regarding Clean Water Act jurisdiction remains with * * * * * analysis is required. (A) Prairie potholes. Prairie potholes EPA. PART 117—DETERMINATION OF are a complex of glacially formed (iii) The following ditches: (A) Ditches with ephemeral flow that REPORTABLE QUANTITIES FOR wetlands, usually occurring in are not a relocated tributary or HAZARDOUS SUBSTANCES depressions that lack permanent natural outlets, located in the upper Midwest. excavated in a tributary. ■ 9. The authority citation for part 117 (B) Carolina bays and Delmarva bays. (B) Ditches with intermittent flow that is revised to read as follows: Carolina bays and Delmarva bays are are not a relocated tributary, excavated in a tributary, or drain wetlands. Authority: 33 U.S.C. 1251 et seq. and ponded, depressional wetlands that occur along the Atlantic coastal plain. (C) Ditches that do not flow, either Executive Order 11735, superseded by directly or through another water, into Executive Order 12777, 56 FR 54757. (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands a water identified in paragraphs (i)(1)(i) ■ 10. Section 117.1 is amended by found predominantly along the Central through (iii) of this section. revising paragraph (i) to read as follows: Atlantic coastal plain. (iv) The following features: (A) Artificially irrigated areas that § 117.1 Definitions. (D) Western vernal pools. Western vernal pools are seasonal wetlands would revert to dry land should * * * * * located in parts of California and application of water to that area cease; (i) Navigable waters is defined in (B) Artificial, constructed lakes and associated with topographic depression, section 502(7) of the Act to mean ponds created in dry land such as farm soils with poor drainage, mild, wet ‘‘waters of the United States, including and stock watering ponds, irrigation winters and hot, dry summers. the territorial seas.’’ ponds, settling basins, fields flooded for (1) For purposes of the Clean Water (E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are rice growing, log cleaning ponds, or Act, 33 U.S.C. 1251 et seq. and its cooling ponds; freshwater wetlands that occur as a implementing regulations, subject to the (C) Artificial reflecting pools or mosaic of depressions, ridges, exclusions in paragraph (i)(2) of this swimming pools created in dry land; section, the term ‘‘waters of the United intermound flats, and mima mound (D) Small ornamental waters created States’’ means: wetlands located along the Texas Gulf in dry land; (i) All waters which are currently Coast. (E) Water-filled depressions created in used, were used in the past, or may be (viii) All waters located within the dry land incidental to mining or susceptible to use in interstate or foreign 100-year floodplain of a water identified construction activity, including pits commerce, including all waters which in (i)(1)(i) through (iii) of this section excavated for obtaining fill, sand, or are subject to the ebb and flow of the and all waters located within 4,000 feet gravel that fill with water; tide; of the high tide line or ordinary high (F) Erosional features, including (ii) All interstate waters, including water mark of a water identified in gullies, rills, and other ephemeral interstate wetlands; paragraphs (i)(1)(i) through (v) of this features that do not meet the definition (iii) The territorial seas; section where they are determined on a of tributary, non-wetland swales, and (iv) All impoundments of waters case-specific basis to have a significant lawfully constructed grassed waterways; otherwise identified as waters of the nexus to a water identified in and United States under this section; paragraphs (i)(1)(i) through (iii) of this (G) Puddles. (v) All tributaries, as defined in section. For waters determined to have (v) Groundwater, including paragraph (i)(3)(iii) of this section, of a significant nexus, the entire water is groundwater drained through waters identified in paragraphs (i)(1)(i) a water of the United States if a portion subsurface drainage systems. through (iii) of this section; is located within the 100-year (vi) Stormwater control features (vi) All waters adjacent to a water floodplain of a water identified in constructed to convey, treat, or store identified in paragraphs (i)(1)(i) through paragraphs (i)(1)(i) through (iii) of this stormwater that are created in dry land.

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(vii) Wastewater recycling structures a water identified in paragraphs (i)(1)(i) paragraphs (i)(3)(v)(A) through (I) of this constructed in dry land; detention and through (iii) of this section that is section. A water has a significant nexus retention basins built for wastewater characterized by the presence of the when any single function or recycling; groundwater recharge basins; physical indicators of a bed and banks combination of functions performed by percolation ponds built for wastewater and an ordinary high water mark. These the water, alone or together with recycling; and water distributary physical indicators demonstrate there is similarly situated waters in the region, structures built for wastewater volume, frequency, and duration of flow contributes significantly to the recycling. sufficient to create a bed and banks and chemical, physical, or biological (3) In this paragraph, the following an ordinary high water mark, and thus integrity of the nearest water identified terms apply: to qualify as a tributary. A tributary can in paragraphs (i)(1)(i) through (iii) of (i) Adjacent. The term adjacent means be a natural, man-altered, or man-made this section. Functions relevant to the bordering, contiguous, or neighboring a water and includes waters such as significant nexus evaluation are the water identified in paragraphs (i)(1)(i) rivers, streams, canals, and ditches not following: through (v) of this section, including excluded under paragraph (i)(2) of this (A) Sediment trapping, waters separated by constructed dikes or section. A water that otherwise qualifies barriers, natural river berms, beach as a tributary under this definition does (B) Nutrient recycling, dunes, and the like. For purposes of not lose its status as a tributary if, for (C) Pollutant trapping, transformation, adjacency, an open water such as a any length, there are one or more filtering, and transport, pond or lake includes any wetlands constructed breaks (such as bridges, (D) Retention and attenuation of flood within or abutting its ordinary high culverts, pipes, or dams), or one or more waters, water mark. Adjacency is not limited to natural breaks (such as wetlands along waters located laterally to a water the run of a stream, debris piles, boulder (E) Runoff storage, identified in paragraphs (i)(1)(i) through fields, or a stream that flows (F) Contribution of flow, (v) of this section. Adjacent waters also underground) so long as a bed and (G) Export of organic matter, include all waters that connect segments banks and an ordinary high water mark (H) Export of food resources, and of a water identified in paragraphs can be identified upstream of the break. (i)(1)(i) through (v) or are located at the A water that otherwise qualifies as a (I) Provision of life cycle dependent head of a water identified in paragraphs tributary under this definition does not aquatic habitat (such as foraging, (i)(1)(i) through (v) of this section and lose its status as a tributary if it feeding, nesting, breeding, spawning, or are bordering, contiguous, or contributes flow through a water of the use as a nursery area) for species located neighboring such water. Waters being United States that does not meet the in a water identified in paragraphs used for established normal farming, definition of tributary or through a non- (i)(1)(i) through (iii) of this section. ranching, and silviculture activities (33 jurisdictional water to a water identified (vi) Ordinary high water mark. The U.S.C. 1344(f)) are not adjacent. in paragraphs (i)(1)(i) through (iii) of term ordinary high water mark means (ii) Neighboring. The term this section. that line on the shore established by the neighboring means: (iv) Wetlands. The term wetlands fluctuations of water and indicated by (A) All waters located within 100 feet means those areas that are inundated or physical characteristics such as a clear, of the ordinary high water mark of a saturated by surface or groundwater at natural line impressed on the bank, water identified in paragraphs (i)(1)(i) a frequency and duration sufficient to shelving, changes in the character of through (v) of this section. The entire support, and that under normal soil, destruction of terrestrial vegetation, water is neighboring if a portion is circumstances do support, a prevalence the presence of litter and debris, or located within 100 feet of the ordinary of vegetation typically adapted for life other appropriate means that consider high water mark; in saturated soil conditions. Wetlands the characteristics of the surrounding (B) All waters located within the 100- generally include swamps, marshes, areas. year floodplain of a water identified in bogs, and similar areas. paragraphs (i)(1)(i) through (v) of this (v) Significant nexus. The term (vii) High tide line. The term high tide section and not more than 1,500 feet significant nexus means that a water, line means the line of intersection of the from the ordinary high water mark of including wetlands, either alone or in land with the water’s surface at the such water. The entire water is combination with other similarly maximum height reached by a rising neighboring if a portion is located situated waters in the region, tide. The high tide line may be within 1,500 feet of the ordinary high significantly affects the chemical, determined, in the absence of actual water mark and within the 100-year physical, or biological integrity of a data, by a line of oil or scum along shore floodplain; water identified in paragraphs (i)(1)(i) objects, a more or less continuous (C) All waters located within 1,500 through (iii) of this section. The term deposit of fine shell or debris on the feet of the high tide line of a water ‘‘in the region’’ means the watershed foreshore or berm, other physical identified in paragraphs (i)(1)(i) or (iii) that drains to the nearest water markings or characteristics, vegetation of this section, and all waters within identified in paragraphs (i)(1)(i) through lines, tidal gages, or other suitable 1,500 feet of the ordinary high water (iii) of this section. For an effect to be means that delineate the general height mark of the Great Lakes. The entire significant, it must be more than reached by a rising tide. The line water is neighboring if a portion is speculative or insubstantial. Waters are encompasses spring high tides and other located within 1,500 feet of the high tide similarly situated when they function high tides that occur with periodic line or within 1,500 feet of the ordinary alike and are sufficiently close to frequency but does not include storm high water mark of the Great Lakes. function together in affecting surges in which there is a departure (iii) Tributary and tributaries. The downstream waters. For purposes of from the normal or predicted reach of terms tributary and tributaries each determining whether or not a water has the tide due to the piling up of water mean a water that contributes flow, a significant nexus, the water’s effect on against a coast by strong winds such as either directly or through another water downstream (i)(1)(i) through (iii) waters those accompanying a hurricane or (including an impoundment identified shall be assessed by evaluating the other intense storm. in paragraph (i)(1)(iv) of this section), to aquatic functions identified in * * * * *

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PART 122—EPA ADMINISTERED identified in this paragraph shall not be meet the requirements of the Clean PERMIT PROGRAMS: THE NATIONAL combined with waters identified in Water Act. This exclusion applies only POLLUTANT DISCHARGE paragraph (1)(vi) of this definition when to manmade bodies of water which ELIMINATION SYSTEM performing a significant nexus analysis. neither were originally created in waters If waters identified in this paragraph are of the United States (such as disposal ■ 11. The authority citation for part 122 also an adjacent water under paragraph area in wetlands) nor resulted from the continues to read as follows: (1)(vi), they are an adjacent water and impoundment of waters of the United Authority: The Clean Water Act, 33 U.S.C. no case-specific significant nexus States. [See Note 1 of this section.] 1251 et seq. analysis is required. (ii) Prior converted cropland. (A) Prairie potholes. Prairie potholes Notwithstanding the determination of ■ 12. Section 122.2 is amended by: are a complex of glacially formed an area’s status as prior converted ■ a. Lifting the suspension of the last wetlands, usually occurring in cropland by any other Federal agency, sentence of the definition of ‘‘Waters of depressions that lack permanent natural for the purposes of the Clean Water Act, the United States’’ published July 21, outlets, located in the upper Midwest. the final authority regarding Clean 1980 (45 FR 48620); (B) Carolina bays and Delmarva bays. Water Act jurisdiction remains with ■ b. Removing the definition of Carolina bays and Delmarva bays are EPA. ‘‘wetlands’’ and revising the definition ponded, depressional wetlands that (iii) The following ditches: of ‘‘Waters of the United States’’ and occur along the Atlantic coastal plain. (A) Ditches with ephemeral flow that ■ c. Suspending the last sentence of the (C) Pocosins. Pocosins are evergreen are not a relocated tributary or definition of ‘‘Waters of the United shrub and tree dominated wetlands excavated in a tributary. States’’ published July 21, 1980 (45 FR found predominantly along the Central (B) Ditches with intermittent flow that 48620). Atlantic coastal plain. are not a relocated tributary, excavated The revision reads as follows: (D) Western vernal pools. Western in a tributary, or drain wetlands. vernal pools are seasonal wetlands § 122.2 Definitions. (C) Ditches that do not flow, either located in parts of California and directly or through another water, into * * * * * associated with topographic depression, a water identified in paragraphs (1)(i) Waters of the United States or waters soils with poor drainage, mild, wet through (iii) of this definition. of the U.S. means: winters and hot, dry summers. (iv) The following features: (1) For purposes of the Clean Water (E) Texas coastal prairie wetlands. (A) Artificially irrigated areas that Act, 33 U.S.C. 1251 et seq. and its Texas coastal prairie wetlands are would revert to dry land should implementing regulations, subject to the freshwater wetlands that occur as a application of water to that area cease; exclusions in paragraph (2) of this mosaic of depressions, ridges, (B) Artificial, constructed lakes and definition, the term ‘‘waters of the intermound flats, and mima mound ponds created in dry land such as farm United States’’ means: wetlands located along the Texas Gulf and stock watering ponds, irrigation (i) All waters which are currently Coast. ponds, settling basins, fields flooded for used, were used in the past, or may be (viii) All waters located within the rice growing, log cleaning ponds, or susceptible to use in interstate or foreign 100-year floodplain of a water identified cooling ponds; commerce, including all waters which in paragraphs (1)(i) through (iii) of this (C) Artificial reflecting pools or are subject to the ebb and flow of the definition and all waters located within swimming pools created in dry land; tide; 4,000 feet of the high tide line or (D) Small ornamental waters created (ii) All interstate waters, including ordinary high water mark of a water in dry land; interstate wetlands; identified in paragraphs (1)(i) through (E) Water-filled depressions created in (iii) The territorial seas; (v) of this definition where they are dry land incidental to mining or (iv) All impoundments of waters determined on a case-specific basis to construction activity, including pits otherwise identified as waters of the have a significant nexus to a water excavated for obtaining fill, sand, or United States under this section; identified in paragraphs (1)(i) through gravel that fill with water; (v) All tributaries, as defined in (v) of this definition. For waters (F) Erosional features, including paragraph (3)(iii) of this section, of determined to have a significant nexus, gullies, rills, and other ephemeral waters identified in paragraphs (1)(i) the entire water is a water of the United features that do not meet the definition through (iii) of this section; States if a portion is located within the of tributary, non-wetland swales, and (vi) All waters adjacent to a water 100-year floodplain of a water identified lawfully constructed grassed waterways; identified in paragraphs (1)(i) through in (1)(i) through (iii) of this definition or and (v) of this definition, including within 4,000 feet of the high tide line or (G) Puddles. wetlands, ponds, lakes, oxbows, ordinary high water mark. Waters (v) Groundwater, including impoundments, and similar waters; identified in this paragraph shall not be groundwater drained through (vii) All waters in paragraphs combined with waters identified in subsurface drainage systems. (1)(vii)(A) through (E) of this definition paragraph (1)(vi) of this definition when (vi) Stormwater control features where they are determined, on a case- performing a significant nexus analysis. constructed to convey, treat, or store specific basis, to have a significant If waters identified in this paragraph are stormwater that are created in dry land. nexus to a water identified in also an adjacent water under paragraph (vii) Wastewater recycling structures paragraphs (1)(i) through (iii) of this (1)(vi), they are an adjacent water and constructed in dry land; detention and definition. The waters identified in each no case-specific significant nexus retention basins built for wastewater of paragraphs (1)(vii)(A) through (E) of analysis is required. recycling; groundwater recharge basins; this definition are similarly situated and (2) The following are not ‘‘waters of percolation ponds built for wastewater shall be combined, for purposes of a the United States’’ even where they recycling; and water distributary significant nexus analysis, in the otherwise meet the terms of paragraphs structures built for wastewater watershed that drains to the nearest (1)(iv) through (viii) of this definition. recycling. water identified in paragraphs (1)(i) (i) Waste treatment systems, including (3) In this definition, the following through (iii) of this definition. Waters treatment ponds or lagoons designed to terms apply:

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(i) Adjacent. The term adjacent means to qualify as a tributary. A tributary can in paragraphs (1)(i) through (iii) of this bordering, contiguous, or neighboring a be a natural, man-altered, or man-made definition. Functions relevant to the water identified in paragraphs (1)(i) water and includes waters such as significant nexus evaluation are the through (v) of this definition, including rivers, streams, canals, and ditches not following: waters separated by constructed dikes or excluded under paragraph (2) of this (A) Sediment trapping, barriers, natural river berms, beach definition. A water that otherwise (B) Nutrient recycling, dunes, and the like. For purposes of qualifies as a tributary under this (C) Pollutant trapping, transformation, adjacency, an open water such as a definition does not lose its status as a filtering, and transport, pond or lake includes any wetlands tributary if, for any length, there are one (D) Retention and attenuation of flood within or abutting its ordinary high or more constructed breaks (such as waters, water mark. Adjacency is not limited to bridges, culverts, pipes, or dams), or one (E) Runoff storage, waters located laterally to a water or more natural breaks (such as (F) Contribution of flow, identified in paragraphs (1)(i) through wetlands along the run of a stream, (G) Export of organic matter, (v) of this definition. Adjacent waters debris piles, boulder fields, or a stream (H) Export of food resources, and also include all waters that connect that flows underground) so long as a bed (I) Provision of life cycle dependent segments of a water identified in and banks and an ordinary high water aquatic habitat (such as foraging, paragraphs (1)(i) through (v) or are mark can be identified upstream of the feeding, nesting, breeding, spawning, or located at the head of a water identified break. A water that otherwise qualifies use as a nursery area) for species located in paragraphs (1)(i) through (v) of this as a tributary under this definition does in a water identified in paragraphs (1)(i) definition and are bordering, not lose its status as a tributary if it through (iii) of this definition. contiguous, or neighboring such water. contributes flow through a water of the (vi) Ordinary high water mark. The Waters being used for established United States that does not meet the term ordinary high water mark means normal farming, ranching, and definition of tributary or through a non- that line on the shore established by the silviculture activities (33 U.S.C. 1344(f)) jurisdictional water to a water identified fluctuations of water and indicated by are not adjacent. in paragraphs (1)(i) through (iii) of this physical characteristics such as a clear, (ii) Neighboring. The term definition. natural line impressed on the bank, neighboring means: (iv) Wetlands. The term wetlands shelving, changes in the character of (A) All waters located within 100 feet means those areas that are inundated or soil, destruction of terrestrial vegetation, of the ordinary high water mark of a saturated by surface or groundwater at the presence of litter and debris, or water identified in paragraphs (1)(i) a frequency and duration sufficient to other appropriate means that consider through (v) of this definition. The entire support, and that under normal the characteristics of the surrounding water is neighboring if a portion is circumstances do support, a prevalence areas. located within 100 feet of the ordinary of vegetation typically adapted for life (vii) High tide line. The term high tide high water mark; in saturated soil conditions. Wetlands line means the line of intersection of the (B) All waters located within the 100- generally include swamps, marshes, land with the water’s surface at the year floodplain of a water identified in bogs, and similar areas. maximum height reached by a rising paragraphs (1)(i) through (v) of this (v) Significant nexus. The term tide. The high tide line may be definition and not more than 1,500 feet significant nexus means that a water, determined, in the absence of actual from the ordinary high water mark of including wetlands, either alone or in data, by a line of oil or scum along shore such water. The entire water is combination with other similarly objects, a more or less continuous neighboring if a portion is located situated waters in the region, deposit of fine shell or debris on the within 1,500 feet of the ordinary high significantly affects the chemical, foreshore or berm, other physical water mark and within the 100-year physical, or biological integrity of a markings or characteristics, vegetation floodplain; water identified in paragraphs (1)(i) lines, tidal gages, or other suitable (C) All waters located within 1,500 through (iii) of this definition. The term means that delineate the general height feet of the high tide line of a water ‘‘in the region’’ means the watershed reached by a rising tide. The line identified in paragraphs (1)(i) or (iii) of that drains to the nearest water encompasses spring high tides and other this definition, and all waters within identified in paragraphs (1)(i) through high tides that occur with periodic 1,500 feet of the ordinary high water (iii) of this definition. For an effect to be frequency but does not include storm mark of the Great Lakes. The entire significant, it must be more than surges in which there is a departure water is neighboring if a portion is speculative or insubstantial. Waters are from the normal or predicted reach of located within 1,500 feet of the high tide similarly situated when they function the tide due to the piling up of water line or within 1,500 feet of the ordinary alike and are sufficiently close to against a coast by strong winds such as high water mark of the Great Lakes. function together in affecting those accompanying a hurricane or (iii) Tributary and tributaries. The downstream waters. For purposes of other intense storm. terms tributary and tributaries each determining whether or not a water has * * * * * mean a water that contributes flow, a significant nexus, the water’s effect on either directly or through another water downstream (1)(i) through (iii) waters PART 230—SECTION 404(b)(1) (including an impoundment identified shall be assessed by evaluating the GUIDELINES FOR SPECIFICATION OF in paragraph (1)(iv) of this definition), to aquatic functions identified in DISPOSAL SITES FOR DREDGED OR a water identified in paragraphs (1)(i) paragraphs (3)(v)(A) through (I) of this FILL MATERIAL through (iii) of this definition that is definition. A water has a significant characterized by the presence of the nexus when any single function or ■ 13. The authority citation for part 230 physical indicators of a bed and banks combination of functions performed by is revised to read as follows: and an ordinary high water mark. These the water, alone or together with Authority: 33 U.S.C. 1251 et seq. physical indicators demonstrate there is similarly situated waters in the region, volume, frequency, and duration of flow contributes significantly to the ■ 14. Section 230.3 is amended by: sufficient to create a bed and banks and chemical, physical, or biological ■ a. Removing paragraph (b) and an ordinary high water mark, and thus integrity of the nearest water identified reserved paragraphs (f), (g), (j) and (l).

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■ b. Redesignating paragraphs (c) If waters identified in this paragraph are (ii) Prior converted cropland. through (e) as paragraphs (b) through also an adjacent water under paragraph Notwithstanding the determination of (d). (o)(1)(vi), they are an adjacent water and an area’s status as prior converted ■ c. Redesignating paragraphs (h) and (i) no case-specific significant nexus cropland by any other Federal agency, as paragraphs (e) and (f). analysis is required. for the purposes of the Clean Water Act, ■ d. Redesignating paragraph (k) as (A) Prairie potholes. Prairie potholes the final authority regarding Clean paragraph (g). are a complex of glacially formed Water Act jurisdiction remains with ■ e. Redesignating paragraphs (m) wetlands, usually occurring in EPA. through (q) as paragraphs (h) through (l). depressions that lack permanent natural (iii) The following ditches: ■ f. Redesignating paragraph (q-1) as outlets, located in the upper Midwest. (A) Ditches with ephemeral flow that paragraph (m). (B) Carolina bays and Delmarva bays. are not a relocated tributary or ■ g. Redesignating paragraph (r) as Carolina bays and Delmarva bays are excavated in a tributary. paragraph (n). ponded, depressional wetlands that (B) Ditches with intermittent flow that ■ h. Redesignating paragraph (s) as occur along the Atlantic coastal plain. are not a relocated tributary, excavated paragraph (o). (C) Pocosins. Pocosins are evergreen in a tributary, or drain wetlands. ■ i. Revising newly redesignated shrub and tree dominated wetlands (C) Ditches that do not flow, either paragraph (o). found predominantly along the Central directly or through another water, into ■ j. Removing paragraph (t). Atlantic coastal plain. a water identified in paragraphs (o)(1)(i) (D) Western vernal pools. Western The revision reads as follows: through (iii) of this section. vernal pools are seasonal wetlands (iv) The following features: § 230.3 Definitions. located in parts of California and (A) Artificially irrigated areas that * * * * * associated with topographic depression, would revert to dry land should (o) The term waters of the United soils with poor drainage, mild, wet application of water to that area cease; States means: winters and hot, dry summers. (1) For purposes of the Clean Water (E) Texas coastal prairie wetlands. (B) Artificial, constructed lakes and Act, 33 U.S.C. 1251 et seq. and its Texas coastal prairie wetlands are ponds created in dry land such as farm implementing regulations, subject to the freshwater wetlands that occur as a and stock watering ponds, irrigation exclusions in paragraph (o)(2) of this mosaic of depressions, ridges, ponds, settling basins, fields flooded for section, the term ‘‘waters of the United intermound flats, and mima mound rice growing, log cleaning ponds, or States’’ means: wetlands located along the Texas Gulf cooling ponds; (i) All waters which are currently Coast. (C) Artificial reflecting pools or used, were used in the past, or may be (viii) All waters located within the swimming pools created in dry land; susceptible to use in interstate or foreign 100-year floodplain of a water identified (D) Small ornamental waters created commerce, including all waters which in paragraphs (o)(1)(i) through (iii) of in dry land; are subject to the ebb and flow of the this section and all waters located (E) Water-filled depressions created in tide; within 4,000 feet of the high tide line or dry land incidental to mining or (ii) All interstate waters, including ordinary high water mark of a water construction activity, including pits interstate wetlands; identified in paragraphs (o)(1)(i) through excavated for obtaining fill, sand, or (iii) The territorial seas; (v) of this section where they are gravel that fill with water; (iv) All impoundments of waters determined on a case-specific basis to (F) Erosional features, including otherwise identified as waters of the have a significant nexus to a water gullies, rills, and other ephemeral United States under this section; identified in paragraphs (o)(1)(i) through features that do not meet the definition (v) All tributaries, as defined in (iii) of this section. For waters of tributary, non-wetland swales, and paragraph (o)(3)(iii) of this section, of determined to have a significant nexus, lawfully constructed grassed waterways; waters identified in paragraphs (o)(1)(i) the entire water is a water of the United and through (iii) of this section; States if a portion is located within the (G) Puddles. (vi) All waters adjacent to a water 100-year floodplain of a water identified (v) Groundwater, including identified in paragraphs (o)(1)(i) through in paragraphs (o)(1)(i) through (iii) of groundwater drained through (v) of this section, including wetlands, this section or within 4,000 feet of the subsurface drainage systems. ponds, lakes, oxbows, impoundments, high tide line or ordinary high water (vi) Stormwater control features and similar waters; mark. Waters identified in this constructed to convey, treat, or store (vii) All waters in paragraphs paragraph shall not be combined with stormwater that are created in dry land. (o)(1)(vii)(A) through (E) of this section waters identified in paragraph (o)(1)(vi) (vii) Wastewater recycling structures where they are determined, on a case- of this section when performing a constructed in dry land; detention and specific basis, to have a significant significant nexus analysis. If waters retention basins built for wastewater nexus to a water identified in identified in this paragraph are also an recycling; groundwater recharge basins; paragraphs (o)(1)(i) through (iii) of this adjacent water under paragraph percolation ponds built for wastewater section. The waters identified in each of (o)(1)(vi), they are an adjacent water and recycling; and water distributary paragraphs (o)(1)(vii)(A) through (E) of no case-specific significant nexus structures built for wastewater this section are similarly situated and analysis is required. recycling. shall be combined, for purposes of a (2) The following are not ‘‘waters of (3) In this paragraph (o), the following significant nexus analysis, in the the United States’’ even where they definitions apply: watershed that drains to the nearest otherwise meet the terms of paragraphs (i) Adjacent. The term adjacent means water identified in paragraphs (o)(1)(i) (o)(1)(iv) through (viii) of this section. bordering, contiguous, or neighboring a through (iii) of this section. Waters (i) Waste treatment systems, including water identified in paragraphs (o)(1)(i) identified in this paragraph shall not be treatment ponds or lagoons designed to through (v) of this section, including combined with waters identified in meet the requirements of the Clean waters separated by constructed dikes or paragraph (o)(1)(vi) of this section when Water Act are not waters of the United barriers, natural river berms, beach performing a significant nexus analysis. States. dunes, and the like. For purposes of

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adjacency, an open water such as a any length, there are one or more (D) Retention and attenuation of flood pond or lake includes any wetlands constructed breaks (such as bridges, waters, within or abutting its ordinary high culverts, pipes, or dams), or one or more (E) Runoff storage, water mark. Adjacency is not limited to natural breaks (such as wetlands along (F) Contribution of flow, waters located laterally to a water the run of a stream, debris piles, boulder (G) Export of organic matter, identified in paragraphs (o)(1)(i) through fields, or a stream that flows (H) Export of food resources, and (v) of this section. Adjacent waters also underground) so long as a bed and (I) Provision of life cycle dependent include all waters that connect segments banks and an ordinary high water mark aquatic habitat (such as foraging, of a water identified in paragraphs can be identified upstream of the break. feeding, nesting, breeding, spawning, or (o)(1)(i) through (v) or are located at the A water that otherwise qualifies as a use as a nursery area) for species located head of a water identified in paragraphs tributary under this definition does not in a water identified in paragraphs (o)(1) (o)(1)(i) through (v) of this section and lose its status as a tributary if it through (3) of this section. are bordering, contiguous, or contributes flow through a water of the (vi) Ordinary high water mark. The neighboring such water. Waters being United States that does not meet the term ordinary high water mark means used for established normal farming, definition of tributary or through a non- that line on the shore established by the ranching, and silviculture activities (33 jurisdictional water to a water identified fluctuations of water and indicated by U.S.C. 1344(f)) are not adjacent. in paragraphs (o)(1)(i) through (iii) of physical characteristics such as a clear, (ii) Neighboring. The term this section. natural line impressed on the bank, neighboring means: (iv) Wetlands. The term wetlands shelving, changes in the character of (A) All waters located within 100 feet means those areas that are inundated or soil, destruction of terrestrial vegetation, of the ordinary high water mark of a saturated by surface or groundwater at the presence of litter and debris, or water identified in paragraphs (o)(1)(i) a frequency and duration sufficient to other appropriate means that consider through (v) of this section. The entire support, and that under normal the characteristics of the surrounding water is neighboring if a portion is circumstances do support, a prevalence areas. located within 100 feet of the ordinary of vegetation typically adapted for life (vii) High tide line. The term high tide high water mark; in saturated soil conditions. Wetlands line means the line of intersection of the (B) All waters located within the 100- generally include swamps, marshes, land with the water’s surface at the year floodplain of a water identified in bogs, and similar areas. maximum height reached by a rising paragraphs (o)(1)(i) through (v) of this (v) Significant nexus. The term tide. The high tide line may be section and not more than 1,500 feet significant nexus means that a water, determined, in the absence of actual from the ordinary high water mark of including wetlands, either alone or in data, by a line of oil or scum along shore such water. The entire water is combination with other similarly objects, a more or less continuous neighboring if a portion is located situated waters in the region, deposit of fine shell or debris on the within 1,500 feet of the ordinary high significantly affects the chemical, foreshore or berm, other physical water mark and within the 100-year physical, or biological integrity of a floodplain; water identified in paragraphs (o)(1)(i) markings or characteristics, vegetation (C) All waters located within 1,500 through (iii) of this section. The term lines, tidal gages, or other suitable feet of the high tide line of a water ‘‘in the region’’ means the watershed means that delineate the general height identified in paragraphs (o)(1)(i) or (iii) that drains to the nearest water reached by a rising tide. The line of this section, and all waters within identified in paragraphs (o)(1)(i) through encompasses spring high tides and other 1,500 feet of the ordinary high water (iii) of this section. For an effect to be high tides that occur with periodic mark of the Great Lakes. The entire significant, it must be more than frequency but does not include storm water is neighboring if a portion is speculative or insubstantial. Waters are surges in which there is a departure located within 1,500 feet of the high tide similarly situated when they function from the normal or predicted reach of line or within 1,500 feet of the ordinary alike and are sufficiently close to the tide due to the piling up of water high water mark of the Great Lakes. function together in affecting against a coast by strong winds such as (iii) Tributary and tributaries. The downstream waters. For purposes of those accompanying a hurricane or terms tributary and tributaries each determining whether or not a water has other intense storm. mean a water that contributes flow, a significant nexus, the water’s effect on * * * * * either directly or through another water downstream (o)(1)(i) through (iii) waters (including an impoundment identified shall be assessed by evaluating the PART 232—404 PROGRAMS in paragraph (o)(1)(iv) of this section), to aquatic functions identified in DEFINITIONS; EXEMPT ACTIVITIES a water identified in paragraphs (o)(1)(i) paragraphs (o)(3)(v)(A) through (I) of NOT REQUIRING 404 PERMITS through (iii) of this section that is this section. A water has a significant characterized by the presence of the ■ 15. The authority citation for part 230 nexus when any single function or is revised to read as follows: physical indicators of a bed and banks combination of functions performed by and an ordinary high water mark. These the water, alone or together with Authority: 33 U.S.C. 1251 et seq. physical indicators demonstrate there is similarly situated waters in the region, ■ 16. Section 232.2 is amended by volume, frequency, and duration of flow contributes significantly to the removing the definition of ‘‘wetlands’’ sufficient to create a bed and banks and chemical, physical, or biological and revising the definition of ‘‘Waters of an ordinary high water mark, and thus integrity of the nearest water identified the United States’’ to read as follows: to qualify as a tributary. A tributary can in paragraphs (o)(1)(i) through (iii) of § 232.2 Definitions. be a natural, man-altered, or man-made this section. Functions relevant to the water and includes waters such as significant nexus evaluation are the * * * * * rivers, streams, canals, and ditches not following: Waters of the United States means: excluded under paragraph (o)(2) of this (A) Sediment trapping, (1) For purposes of the Clean Water section. A water that otherwise qualifies (B) Nutrient recycling, Act, 33 U.S.C. 1251 et seq. and its as a tributary under this definition does (C) Pollutant trapping, transformation, implementing regulations, subject to the not lose its status as a tributary if, for filtering, and transport, exclusions in paragraph (2) of this

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definition, the term ‘‘waters of the intermound flats, and mima mound rice growing, log cleaning ponds, or United States’’ means: wetlands located along the Texas Gulf cooling ponds; (i) All waters which are currently Coast. (C) Artificial reflecting pools or used, were used in the past, or may be (viii) All waters located within the swimming pools created in dry land; susceptible to use in interstate or foreign 100-year floodplain of a water identified (D) Small ornamental waters created commerce, including all waters which in paragraphs (1)(i) through (iii) of this in dry land; are subject to the ebb and flow of the definition and all waters located within (E) Water-filled depressions created in tide; 4,000 feet of the high tide line or dry land incidental to mining or (ii) All interstate waters, including ordinary high water mark of a water construction activity, including pits interstate wetlands; identified in paragraphs (1)(i) through excavated for obtaining fill, sand, or (iii) The territorial seas; (v) of this definition where they are gravel that fill with water; (iv) All impoundments of waters determined on a case-specific basis to (F) Erosional features, including otherwise identified as waters of the have a significant nexus to a water gullies, rills, and other ephemeral United States under this section; identified in paragraphs (1)(i) through features that do not meet the definition (v) All tributaries, as defined in (iii) of this definition. For waters of tributary, non-wetland swales, and paragraph (3)(iii) of this definition, of determined to have a significant nexus, lawfully constructed grassed waterways; waters identified in paragraphs (1)(i) the entire water is a water of the United and through (iii) of this definition; States if a portion is located within the (G) Puddles. (vi) All waters adjacent to a water 100-year floodplain of a water identified (v) Groundwater, including identified in paragraphs (1)(i) through in paragraphs (1)(i) through (iii) of this groundwater drained through (v) of this definition, including definition or within 4,000 feet of the subsurface drainage systems. wetlands, ponds, lakes, oxbows, high tide line or ordinary high water (vi) Stormwater control features impoundments, and similar waters; mark. Waters identified in this (vii) All waters in paragraphs constructed to convey, treat, or store paragraph shall not be combined with (1)(vii)(A) through (E) of this definition stormwater that are created in dry land. waters identified in paragraph (1)(vi) of where they are determined, on a case- (vii) Wastewater recycling structures this definition when performing a specific basis, to have a significant constructed in dry land; detention and significant nexus analysis. If waters nexus to a water identified in retention basins built for wastewater identified in this paragraph are also an paragraphs (1)(i) through (iii) of this recycling; groundwater recharge basins; adjacent water under paragraph (1)(vi) definition. The waters identified in each percolation ponds built for wastewater of this definition, they are an adjacent of paragraphs (1)(vii)(A) through (E) of recycling; and water distributary water and no case-specific significant this definition are similarly situated and structures built for wastewater nexus analysis is required. shall be combined, for purposes of a recycling. (2) The following are not ‘‘waters of significant nexus analysis, in the (3) In this definition, the following the United States’’ even where they watershed that drains to the nearest terms apply: otherwise meet the terms of paragraphs water identified in paragraphs (1)(i) (i) Adjacent. The term adjacent means (1)(iv) through (viii) of this definition. through (iii) of this definition. Waters bordering, contiguous, or neighboring a (i) Waste treatment systems, including identified in this paragraph shall not be water identified in paragraphs (1)(i) treatment ponds or lagoons designed to combined with waters identified in through (v) of this definition, including meet the requirements of the Clean paragraph (1)(vi) of this definition when waters separated by constructed dikes or Water Act are not waters of the United performing a significant nexus analysis. barriers, natural river berms, beach States. If waters identified in this paragraph are dunes, and the like. For purposes of also an adjacent water under paragraph (ii) Prior converted cropland. adjacency, an open water such as a (1)(vi), they are an adjacent water and Notwithstanding the determination of pond or lake includes any wetlands no case-specific significant nexus an area’s status as prior converted within or abutting its ordinary high analysis is required. cropland by any other Federal agency, water mark. Adjacency is not limited to (A) Prairie potholes. Prairie potholes for the purposes of the Clean Water Act, waters located laterally to a water are a complex of glacially formed the final authority regarding Clean identified in paragraphs (1)(i) through wetlands, usually occurring in Water Act jurisdiction remains with (v) of this definition. Adjacent waters depressions that lack permanent natural EPA. also include all waters that connect outlets, located in the upper Midwest. (iii) The following ditches: segments of a water identified in (B) Carolina bays and Delmarva bays. (A) Ditches with ephemeral flow that paragraphs (1)(i) through (v) or are Carolina bays and Delmarva bays are are not a relocated tributary or located at the head of a water identified ponded, depressional wetlands that excavated in a tributary. in paragraphs (1)(i) through (v) of this occur along the Atlantic coastal plain. (B) Ditches with intermittent flow that definition and are bordering, (C) Pocosins. Pocosins are evergreen are not a relocated tributary, excavated contiguous, or neighboring such water. shrub and tree dominated wetlands in a tributary, or drain wetlands. Waters being used for established found predominantly along the Central (C) Ditches that do not flow, either normal farming, ranching, and Atlantic coastal plain. directly or through another water, into silviculture activities (33 U.S.C. 1344(f)) (D) Western vernal pools. Western a water identified in paragraphs (1)(i) are not adjacent. vernal pools are seasonal wetlands through (iii) of this definition. (ii) Neighboring. The term located in parts of California and (iv) The following features: neighboring means: associated with topographic depression, (A) Artificially irrigated areas that (A) All waters located within 100 feet soils with poor drainage, mild, wet would revert to dry land should of the ordinary high water mark of a winters and hot, dry summers. application of water to that area cease; water identified in paragraphs (1)(i) (E) Texas coastal prairie wetlands. (B) Artificial, constructed lakes and through (v) of this definition. The entire Texas coastal prairie wetlands are ponds created in dry land such as farm water is neighboring if a portion is freshwater wetlands that occur as a and stock watering ponds, irrigation located within 100 feet of the ordinary mosaic of depressions, ridges, ponds, settling basins, fields flooded for high water mark;

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(B) All waters located within the 100- generally include swamps, marshes, land with the water’s surface at the year floodplain of a water identified in bogs, and similar areas. maximum height reached by a rising paragraphs (1)(i) through (v) of this (v) Significant nexus. The term tide. The high tide line may be definition and not more than 1,500 feet significant nexus means that a water, determined, in the absence of actual from the ordinary high water mark of including wetlands, either alone or in data, by a line of oil or scum along shore such water. The entire water is combination with other similarly objects, a more or less continuous neighboring if a portion is located situated waters in the region, deposit of fine shell or debris on the within 1,500 feet of the ordinary high significantly affects the chemical, foreshore or berm, other physical water mark and within the 100-year physical, or biological integrity of a markings or characteristics, vegetation floodplain; water identified in paragraphs (1)(i) lines, tidal gages, or other suitable (C) All waters located within 1,500 through (iii) of this definition. The term means that delineate the general height feet of the high tide line of a water ‘‘in the region’’ means the watershed reached by a rising tide. The line identified in paragraphs (1)(i) or (1)(iii) that drains to the nearest water encompasses spring high tides and other of this definition, and all waters within identified in paragraphs (1)(i) through high tides that occur with periodic 1,500 feet of the ordinary high water (iii) of this definition. For an effect to be frequency but does not include storm mark of the Great Lakes. The entire significant, it must be more than surges in which there is a departure water is neighboring if a portion is speculative or insubstantial. Waters are from the normal or predicted reach of located within 1,500 feet of the high tide similarly situated when they function the tide due to the piling up of water line or within 1,500 feet of the ordinary alike and are sufficiently close to against a coast by strong winds such as high water mark of the Great Lakes. function together in affecting those accompanying a hurricane or (iii) Tributary and tributaries. The downstream waters. For purposes of other intense storm. terms tributary and tributaries each determining whether or not a water has * * * * * mean a water that contributes flow, a significant nexus, the water’s effect on either directly or through another water downstream (1)(i) through (iii) waters PART 300—NATIONAL OIL AND (including an impoundment identified shall be assessed by evaluating the HAZARDOUS SUBSTANCES in paragraph (1)(iv) of this definition), to aquatic functions identified in POLLUTION CONTINTENCY PLAN a water identified in paragraphs (1)(i) paragraphs (3)(v)(A) through (I) of this through (iii) of this definition that is definition. A water has a significant ■ 17. The authority citation for part 300 characterized by the presence of the nexus when any single function or is revised to read as follows: physical indicators of a bed and banks combination of functions performed by Authority: 33 U.S.C. 1251 et seq. and an ordinary high water mark. These the water, alone or together with physical indicators demonstrate there is similarly situated waters in the region, ■ 18. Section 300.5 is amended by volume, frequency, and duration of flow contributes significantly to the revising the definition of ‘‘navigable sufficient to create a bed and banks and chemical, physical, or biological waters’’ to read as follows: an ordinary high water mark, and thus integrity of the nearest water identified § 300.5 Definitions. to qualify as a tributary. A tributary can in paragraphs (1)(i) through (iii) of this * * * * * be a natural, man-altered, or man-made definition. Functions relevant to the Navigable waters means the waters of water and includes waters such as significant nexus evaluation are the the United States, including the rivers, streams, canals, and ditches not following: excluded under paragraph (2) of this (A) Sediment trapping, territorial seas. definition. A water that otherwise (B) Nutrient recycling, (1) For purposes of the Clean Water qualifies as a tributary under this (C) Pollutant trapping, transformation, Act, 33 U.S.C. 1251 et seq. and its definition does not lose its status as a filtering, and transport, implementing regulations, subject to the tributary if, for any length, there are one (D) Retention and attenuation of flood exclusions in paragraph (2) of this or more constructed breaks (such as waters, definition, the term ‘‘waters of the bridges, culverts, pipes, or dams), or one (E) Runoff storage, United States’’ means: or more natural breaks (such as (F) Contribution of flow, (i) All waters which are currently wetlands along the run of a stream, (G) Export of organic matter, used, were used in the past, or may be debris piles, boulder fields, or a stream (H) Export of food resources, and susceptible to use in interstate or foreign that flows underground) so long as a bed (I) Provision of life cycle dependent commerce, including all waters which and banks and an ordinary high water aquatic habitat (such as foraging, are subject to the ebb and flow of the mark can be identified upstream of the feeding, nesting, breeding, spawning, or tide; break. A water that otherwise qualifies use as a nursery area) for species located (ii) All interstate waters, including as a tributary under this definition does in a water identified in paragraphs (1)(i) interstate wetlands; not lose its status as a tributary if it through (iii) of this definition. (iii) The territorial seas; contributes flow through a water of the (vi) Ordinary high water mark. The (iv) All impoundments of waters United States that does not meet the term ordinary high water mark means otherwise identified as waters of the definition of tributary or through a non- that line on the shore established by the United States under this section; jurisdictional water to a water identified fluctuations of water and indicated by (v) All tributaries, as defined in in paragraphs (1)(i) through (iii) of this physical characteristics such as a clear, paragraph (3)(iii) of this definition, of definition. natural line impressed on the bank, waters identified in paragraphs (1)(i) (iv) Wetlands. The term wetlands shelving, changes in the character of through (iii) of this definition; means those areas that are inundated or soil, destruction of terrestrial vegetation, (vi) All waters adjacent to a water saturated by surface or groundwater at the presence of litter and debris, or identified in paragraphs (1)(i) through a frequency and duration sufficient to other appropriate means that consider (v) of this definition, including support, and that under normal the characteristics of the surrounding wetlands, ponds, lakes, oxbows, circumstances do support, a prevalence areas. impoundments, and similar waters; of vegetation typically adapted for life (vii) High tide line. The term high tide (vii) All waters in paragraphs in saturated soil conditions. Wetlands line means the line of intersection of the (1)(vii)(A) through (E) of this definition

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where they are determined, on a case- this definition when performing a recycling; groundwater recharge basins; specific basis, to have a significant significant nexus analysis. If waters percolation ponds built for wastewater nexus to a water identified in identified in this paragraph are also an recycling; and water distributary paragraphs (1)(i) through (iii) of this adjacent water under paragraph (1)(vi), structures built for wastewater definition. The waters identified in each they are an adjacent water and no case- recycling. of paragraphs (1)(vii)(A) through (E) of specific significant nexus analysis is (3) In this definition, the following this definition are similarly situated and required. terms apply: shall be combined, for purposes of a (2) The following are not ‘‘waters of (i) Adjacent. The term adjacent means significant nexus analysis, in the the United States’’ even where they bordering, contiguous, or neighboring a watershed that drains to the nearest otherwise meet the terms of paragraphs water identified in paragraphs (1)(i) water identified in paragraphs (1)(i) (1)(iv) through (viii) of this definition. through (v) of this definition, including through (iii) of this definition. Waters (i) Waste treatment systems (other waters separated by constructed dikes or identified in this paragraph shall not be than cooling ponds meeting the criteria barriers, natural river berms, beach combined with waters identified in of this paragraph) are not waters of the dunes, and the like. For purposes of paragraph (1)(vi) of this definition when United States. adjacency, an open water such as a performing a significant nexus analysis. (ii) Prior converted cropland. pond or lake includes any wetlands If waters identified in this paragraph are Notwithstanding the determination of within or abutting its ordinary high also an adjacent water under paragraph an area’s status as prior converted water mark. Adjacency is not limited to (1)(vi), they are an adjacent water and cropland by any other Federal agency, waters located laterally to a water no case-specific significant nexus for the purposes of the Clean Water Act, identified in paragraphs (1)(i) through analysis is required. the final authority regarding Clean (v) of this definition. Adjacent waters (A) Prairie potholes. Prairie potholes Water Act jurisdiction remains with also include all waters that connect are a complex of glacially formed EPA. segments of a water identified in wetlands, usually occurring in (iii) The following ditches: paragraphs (1)(i) through (v) or are depressions that lack permanent natural (A) Ditches with ephemeral flow that located at the head of a water identified outlets, located in the upper Midwest. are not a relocated tributary or in paragraphs (1)(i) through (v) of this (B) Carolina bays and Delmarva bays. excavated in a tributary. definition and are bordering, Carolina bays and Delmarva bays are (B) Ditches with intermittent flow that contiguous, or neighboring such water. ponded, depressional wetlands that are not a relocated tributary, excavated Waters being used for established occur along the Atlantic coastal plain. in a tributary, or drain wetlands. normal farming, ranching, and (C) Pocosins. Pocosins are evergreen (C) Ditches that do not flow, either silviculture activities (33 U.S.C. 1344(f)) shrub and tree dominated wetlands directly or through another water, into are not adjacent. found predominantly along the Central a water identified in paragraphs (1)(i) (ii) Neighboring. The term Atlantic coastal plain. through (iii) of this definition. neighboring means: (D) Western vernal pools. Western (iv) The following features: (A) All waters located within 100 feet vernal pools are seasonal wetlands (A) Artificially irrigated areas that of the ordinary high water mark of a located in parts of California and would revert to dry land should water identified in paragraphs (1)(i) associated with topographic depression, application of water to that area cease; through (v) of this definition. The entire soils with poor drainage, mild, wet (B) Artificial, constructed lakes and water is neighboring if a portion is winters and hot, dry summers. ponds created in dry land such as farm located within 100 feet of the ordinary (E) Texas coastal prairie wetlands. and stock watering ponds, irrigation high water mark; Texas coastal prairie wetlands are ponds, settling basins, fields flooded for (B) All waters located within the 100- freshwater wetlands that occur as a rice growing, log cleaning ponds, or year floodplain of a water identified in mosaic of depressions, ridges, cooling ponds; paragraphs (1)(i) through (v) of this intermound flats, and mima mound (C) Artificial reflecting pools or definition and not more than 1,500 feet wetlands located along the Texas Gulf swimming pools created in dry land; from the ordinary high water mark of Coast. (D) Small ornamental waters created such water. The entire water is (viii) All waters located within the in dry land; neighboring if a portion is located 100-year floodplain of a water identified (E) Water-filled depressions created in within 1,500 feet of the ordinary high in paragraphs (1)(i) through (iii) of this dry land incidental to mining or water mark and within the 100-year definition and all waters located within construction activity, including pits floodplain; 4,000 feet of the high tide line or excavated for obtaining fill, sand, or (C) All waters located within 1,500 ordinary high water mark of a water gravel that fill with water; feet of the high tide line of a water identified in paragraphs (1)(i) through (F) Erosional features, including identified in paragraphs (1)(i) or (1)(iii) (v) of this definition where they are gullies, rills, and other ephemeral of this definition, and all waters within determined on a case-specific basis to features that do not meet the definition 1,500 feet of the ordinary high water have a significant nexus to a water of tributary, non-wetland swales, and mark of the Great Lakes. The entire identified in paragraphs (1)(i) through lawfully constructed grassed waterways; water is neighboring if a portion is (iii) of this definition. For waters and located within 1,500 feet of the high tide determined to have a significant nexus, (G) Puddles. line or within 1,500 feet of the ordinary the entire water is a water of the United (v) Groundwater, including high water mark of the Great Lakes. States if a portion is located within the groundwater drained through (iii) Tributary and tributaries. The 100-year floodplain of a water identified subsurface drainage systems. terms tributary and tributaries each in paragraphs (1)(i) through (iii) of this (vi) Stormwater control features mean a water that contributes flow, definition or within 4,000 feet of the constructed to convey, treat, or store either directly or through another water high tide line or ordinary high water stormwater that are created in dry land. (including an impoundment identified mark. Waters identified in this (vii) Wastewater recycling structures in paragraph (1)(iv) of this definition), to paragraph shall not be combined with constructed in dry land; detention and a water identified in paragraphs (1)(i) waters identified in paragraph (1)(vi) of retention basins built for wastewater through (iii) of this definition that is

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characterized by the presence of the nexus when any single function or Appendix E to Part 300—Oil Spill physical indicators of a bed and banks combination of functions performed by Response and an ordinary high water mark. These the water, alone or together with * * * * * physical indicators demonstrate there is similarly situated waters in the region, volume, frequency, and duration of flow contributes significantly to the 1.5 Definitions. * * * sufficient to create a bed and banks and chemical, physical, or biological Navigable waters means the waters of an ordinary high water mark, and thus integrity of the nearest water identified the United States, including the to qualify as a tributary. A tributary can in paragraphs (1)(i) through (iii) of this territorial seas. be a natural, man-altered, or man-made definition. Functions relevant to the (1) For purposes of the Clean Water water and includes waters such as significant nexus evaluation are the Act, 33 U.S.C. 1251 et seq. and its rivers, streams, canals, and ditches not following: implementing regulations, subject to the excluded under paragraph (2) of this (A) Sediment trapping, exclusions in paragraph (2) of this definition, the term ‘‘waters of the definition. A water that otherwise (B) Nutrient recycling, qualifies as a tributary under this United States’’ means: (C) Pollutant trapping, transformation, (i) All waters which are currently definition does not lose its status as a filtering, and transport, tributary if, for any length, there are one used, were used in the past, or may be (D) Retention and attenuation of flood susceptible to use in interstate or foreign or more constructed breaks (such as waters, bridges, culverts, pipes, or dams), or one commerce, including all waters which (E) Runoff storage, or more natural breaks (such as are subject to the ebb and flow of the wetlands along the run of a stream, (F) Contribution of flow, tide; debris piles, boulder fields, or a stream (G) Export of organic matter, (ii) All interstate waters, including that flows underground) so long as a bed (H) Export of food resources, and interstate wetlands; and banks and an ordinary high water (I) Provision of life cycle dependent (iii) The territorial seas; mark can be identified upstream of the aquatic habitat (such as foraging, (iv) All impoundments of waters break. A water that otherwise qualifies feeding, nesting, breeding, spawning, or otherwise identified as waters of the as a tributary under this definition does use as a nursery area) for species located United States under this section; not lose its status as a tributary if it in a water identified in paragraphs (1)(i) (v) All tributaries, as defined in contributes flow through a water of the through (iii) of this definition. paragraph (3)(iii) of this definition, of United States that does not meet the (vi) Ordinary high water mark. The waters identified in paragraphs (1)(i) definition of tributary or through a non- term ordinary high water mark means through (iii) of this definition; jurisdictional water to a water identified that line on the shore established by the (vi) All waters adjacent to a water in paragraphs (1)(i) through (iii) of this fluctuations of water and indicated by identified in paragraphs (1)(i) through definition. physical characteristics such as a clear, (v) of this definition, including (iv) Wetlands. The term wetlands natural line impressed on the bank, wetlands, ponds, lakes, oxbows, means those areas that are inundated or shelving, changes in the character of impoundments, and similar waters; saturated by surface or groundwater at soil, destruction of terrestrial vegetation, (vii) All waters in paragraphs a frequency and duration sufficient to the presence of litter and debris, or (1)(vii)(A) through (E) of this definition support, and that under normal other appropriate means that consider where they are determined, on a case- circumstances do support, a prevalence the characteristics of the surrounding specific basis, to have a significant of vegetation typically adapted for life areas. nexus to a water identified in in saturated soil conditions. Wetlands (vii) High tide line. The term high tide paragraphs (1)(i) through (iii) of this generally include swamps, marshes, line means the line of intersection of the definition. The waters identified in each bogs, and similar areas. land with the water’s surface at the of paragraphs (1)(vii)(A) through (E) of (v) Significant nexus. The term maximum height reached by a rising this definition are similarly situated and significant nexus means that a water, tide. The high tide line may be shall be combined, for purposes of a including wetlands, either alone or in determined, in the absence of actual significant nexus analysis, in the combination with other similarly data, by a line of oil or scum along shore watershed that drains to the nearest situated waters in the region, objects, a more or less continuous water identified in paragraphs (1)(i) significantly affects the chemical, deposit of fine shell or debris on the through (iii) of this definition. Waters physical, or biological integrity of a foreshore or berm, other physical identified in this paragraph shall not be water identified in paragraphs (1)(i) markings or characteristics, vegetation combined with waters identified in through (iii) of this definition. The term lines, tidal gages, or other suitable paragraph (1)(vi) of this definition when ‘‘in the region’’ means the watershed means that delineate the general height performing a significant nexus analysis. that drains to the nearest water reached by a rising tide. The line If waters identified in this paragraph are identified in paragraphs (1)(i) through encompasses spring high tides and other also an adjacent water under paragraph (iii) of this definition. For an effect to be high tides that occur with periodic (1)(vi), they are an adjacent water and significant, it must be more than frequency but does not include storm no case-specific significant nexus speculative or insubstantial. Waters are surges in which there is a departure analysis is required. similarly situated when they function (A) Prairie potholes. Prairie potholes from the normal or predicted reach of alike and are sufficiently close to are a complex of glacially formed the tide due to the piling up of water function together in affecting wetlands, usually occurring in against a coast by strong winds such as downstream waters. For purposes of depressions that lack permanent natural those accompanying a hurricane or determining whether or not a water has outlets, located in the upper Midwest. other intense storm. a significant nexus, the water’s effect on (B) Carolina bays and Delmarva bays. downstream (1)(i) through (iii) waters * * * * * Carolina bays and Delmarva bays are shall be assessed by evaluating the ■ 19. In appendix E to part 300, section ponded, depressional wetlands that aquatic functions identified in 1.5 Definitions is amended by revising occur along the Atlantic coastal plain. paragraphs (3)(v)(A) through (I) of this the definition of ‘‘navigable waters’’ to (C) Pocosins. Pocosins are evergreen definition. A water has a significant read as follows: shrub and tree dominated wetlands

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found predominantly along the Central a water identified in paragraphs (1)(i) (ii) Neighboring. The term Atlantic coastal plain. through (iii) of this definition. neighboring means: (D) Western vernal pools. Western (iv) The following features: (A) All waters located within 100 feet vernal pools are seasonal wetlands (A) Artificially irrigated areas that of the ordinary high water mark of a located in parts of California and would revert to dry land should water identified in paragraphs (1)(i) associated with topographic depression, application of water to that area cease; through (v) of this definition. The entire soils with poor drainage, mild, wet (B) Artificial, constructed lakes and water is neighboring if a portion is winters and hot, dry summers. ponds created in dry land such as farm located within 100 feet of the ordinary (E) Texas coastal prairie wetlands. and stock watering ponds, irrigation high water mark; Texas coastal prairie wetlands are ponds, settling basins, fields flooded for (B) All waters located within the 100- freshwater wetlands that occur as a rice growing, log cleaning ponds, or year floodplain of a water identified in mosaic of depressions, ridges, cooling ponds; paragraphs (1)(i) through (v) of this intermound flats, and mima mound (C) Artificial reflecting pools or definition and not more than 1,500 feet wetlands located along the Texas Gulf swimming pools created in dry land; from the ordinary high water mark of Coast. (D) Small ornamental waters created such water. The entire water is (viii) All waters located within the in dry land; neighboring if a portion is located (E) Water-filled depressions created in 100-year floodplain of a water identified within 1,500 feet of the ordinary high dry land incidental to mining or in paragraphs (1)(i) through (iii) of this water mark and within the 100-year construction activity, including pits definition and all waters located within floodplain; excavated for obtaining fill, sand, or 4,000 feet of the high tide line or (C) All waters located within 1,500 gravel that fill with water; ordinary high water mark of a water feet of the high tide line of a water identified in paragraphs (1)(i) through (F) Erosional features, including gullies, rills, and other ephemeral identified in paragraphs (1)(i) or (1)(iii) (v) of this definition where they are of this definition, and all waters within determined on a case-specific basis to features that do not meet the definition of tributary, non-wetland swales, and 1,500 feet of the ordinary high water have a significant nexus to a water mark of the Great Lakes. The entire identified in paragraphs (1)(i) through lawfully constructed grassed waterways; and water is neighboring if a portion is (iii) of this definition. For waters located within 1,500 feet of the high tide determined to have a significant nexus, (G) Puddles. (v) Groundwater, including line or within 1,500 feet of the ordinary the entire water is a water of the United high water mark of the Great Lakes. States if a portion is located within the groundwater drained through subsurface drainage systems. (iii) Tributary and tributaries. The 100-year floodplain of a water identified terms tributary and tributaries each in paragraphs (1)(i) through (iii) of this (vi) Stormwater control features constructed to convey, treat, or store mean a water that contributes flow, definition or within 4,000 feet of the either directly or through another water high tide line or ordinary high water stormwater that are created in dry land. (vii) Wastewater recycling structures (including an impoundment identified mark. Waters identified in this constructed in dry land; detention and in paragraph (1)(iv) of this definition), to paragraph shall not be combined with retention basins built for wastewater a water identified in paragraphs (1)(i) waters identified in paragraph (1)(vi) of recycling; groundwater recharge basins; through (iii) of this definition that is this definition when performing a percolation ponds built for wastewater characterized by the presence of the significant nexus analysis. If waters recycling; and water distributary physical indicators of a bed and banks identified in this paragraph are also an structures built for wastewater and an ordinary high water mark. These adjacent water under paragraph (1)(vi), recycling. physical indicators demonstrate there is they are an adjacent water and no case- (3) In this definition, the following volume, frequency, and duration of flow specific significant nexus analysis is terms apply: sufficient to create a bed and banks and required. (i) Adjacent. The term adjacent means an ordinary high water mark, and thus (2) The following are not ‘‘waters of bordering, contiguous, or neighboring a to qualify as a tributary. A tributary can the United States’’ even where they water identified in paragraphs (1)(i) be a natural, man-altered, or man-made otherwise meet the terms of paragraphs through (v) of this definition, including water and includes waters such as (1)(iv) through (viii) of this definition. (i) Waste treatment systems (other waters separated by constructed dikes or rivers, streams, canals, and ditches not than cooling ponds meeting the criteria barriers, natural river berms, beach excluded under paragraph (2) of this of this paragraph) are not waters of the dunes, and the like. For purposes of definition. A water that otherwise United States. adjacency, an open water such as a qualifies as a tributary under this (ii) Prior converted cropland. pond or lake includes any wetlands definition does not lose its status as a Notwithstanding the determination of within or abutting its ordinary high tributary if, for any length, there are one an area’s status as prior converted water mark. Adjacency is not limited to or more constructed breaks (such as cropland by any other Federal agency, waters located laterally to a water bridges, culverts, pipes, or dams), or one for the purposes of the Clean Water Act, identified in paragraphs (1)(i) through or more natural breaks (such as the final authority regarding Clean (v) of this definition. Adjacent waters wetlands along the run of a stream, Water Act jurisdiction remains with also include all waters that connect debris piles, boulder fields, or a stream EPA. segments of a water identified in that flows underground) so long as a bed (iii) The following ditches: paragraphs (1)(i) through (v) or are and banks and an ordinary high water (A) Ditches with ephemeral flow that located at the head of a water identified mark can be identified upstream of the are not a relocated tributary or in paragraphs (1)(i) through (v) of this break. A water that otherwise qualifies excavated in a tributary. definition and are bordering, as a tributary under this definition does (B) Ditches with intermittent flow that contiguous, or neighboring such water. not lose its status as a tributary if it are not a relocated tributary, excavated Waters being used for established contributes flow through a water of the in a tributary, or drain wetlands. normal farming, ranching, and United States that does not meet the (C) Ditches that do not flow, either silviculture activities (33 U.S.C. 1344(f)) definition of tributary or through a non- directly or through another water, into are not adjacent. jurisdictional water to a water identified

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in paragraphs (1)(i) through (iii) of this physical characteristics such as a clear, waters identified in paragraphs (1)(i) definition. natural line impressed on the bank, through (iii) of this definition; (iv) Wetlands. The term wetlands shelving, changes in the character of (vi) All waters adjacent to a water means those areas that are inundated or soil, destruction of terrestrial vegetation, identified in paragraphs (1)(i) through saturated by surface or groundwater at the presence of litter and debris, or (v) of this definition, including a frequency and duration sufficient to other appropriate means that consider wetlands, ponds, lakes, oxbows, support, and that under normal the characteristics of the surrounding impoundments, and similar waters; circumstances do support, a prevalence areas. (vii) All waters in paragraphs of vegetation typically adapted for life (vii) High tide line. The term high tide (1)(vii)(A) through (E) of this definition in saturated soil conditions. Wetlands line means the line of intersection of the where they are determined, on a case- generally include swamps, marshes, land with the water’s surface at the specific basis, to have a significant bogs, and similar areas. maximum height reached by a rising nexus to a water identified in (v) Significant nexus. The term tide. The high tide line may be paragraphs (1)(i) through (iii) of this significant nexus means that a water, determined, in the absence of actual definition. The waters identified in each including wetlands, either alone or in data, by a line of oil or scum along shore of paragraphs (1)(vii)(A) through (E) of combination with other similarly objects, a more or less continuous this definition are similarly situated and situated waters in the region, deposit of fine shell or debris on the shall be combined, for purposes of a significantly affects the chemical, foreshore or berm, other physical significant nexus analysis, in the physical, or biological integrity of a markings or characteristics, vegetation watershed that drains to the nearest water identified in paragraphs (1)(i) lines, tidal gages, or other suitable water identified in paragraphs (1)(i) through (iii) of this definition. The term means that delineate the general height through (iii) of this definition. Waters ‘‘in the region’’ means the watershed reached by a rising tide. The line identified in this paragraph shall not be that drains to the nearest water encompasses spring high tides and other combined with waters identified in identified in paragraphs (1)(i) through high tides that occur with periodic paragraph (1)(vi) of this definition when (iii) of this definition. For an effect to be frequency but does not include storm performing a significant nexus analysis. significant, it must be more than surges in which there is a departure If waters identified in this paragraph are speculative or insubstantial. Waters are from the normal or predicted reach of also an adjacent water under paragraph similarly situated when they function the tide due to the piling up of water (1)(vi), they are an adjacent water and alike and are sufficiently close to against a coast by strong winds such as no case-specific significant nexus function together in affecting those accompanying a hurricane or analysis is required. downstream waters. For purposes of other intense storm. (A) Prairie potholes. Prairie potholes determining whether or not a water has * * * * * are a complex of glacially formed a significant nexus, the water’s effect on wetlands, usually occurring in downstream (1)(i) through (iii) waters PART 302—DESIGNATION, depressions that lack permanent natural shall be assessed by evaluating the REPORTABLE QUANTITIES, AND outlets, located in the upper Midwest. aquatic functions identified in NOTIFICATION (B) Carolina bays and Delmarva bays. paragraphs (3)(v)(A) through (I) of this Carolina bays and Delmarva bays are ■ 20. The authority citation for part 302 ponded, depressional wetlands that definition. A water has a significant is revised to read as follows: nexus when any single function or occur along the Atlantic coastal plain. combination of functions performed by Authority: 33 U.S.C. 1251 et seq. (C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands the water, alone or together with ■ 21. Section 302.3 is amended by found predominantly along the Central similarly situated waters in the region, revising the definition of ‘‘Navigable contributes significantly to the Atlantic coastal plain. waters’’ to read as follows: (D) Western vernal pools. Western chemical, physical, or biological vernal pools are seasonal wetlands integrity of the nearest water identified § 302.3 Definitions. located in parts of California and in paragraphs (1)(i) through (iii) of this * * * * * associated with topographic depression, definition. Functions relevant to the Navigable waters means the waters of soils with poor drainage, mild, wet significant nexus evaluation are the the United States, including the territorial seas. winters and hot, dry summers. following: (E) Texas coastal prairie wetlands. (A) Sediment trapping, (1) For purposes of the Clean Water (B) Nutrient recycling, Act, 33 U.S.C. 1251 et seq. and its Texas coastal prairie wetlands are (C) Pollutant trapping, transformation, implementing regulations, subject to the freshwater wetlands that occur as a filtering, and transport, exclusions in paragraph (2) of this mosaic of depressions, ridges, (D) Retention and attenuation of flood definition, the term ‘‘waters of the intermound flats, and mima mound waters, United States’’ means: wetlands located along the Texas Gulf (E) Runoff storage, (i) All waters which are currently Coast. (F) Contribution of flow, used, were used in the past, or may be (viii) All waters located within the (G) Export of organic matter, susceptible to use in interstate or foreign 100-year floodplain of a water identified (H) Export of food resources, and commerce, including all waters which in paragraphs (1)(i) through (iii) of this (I) Provision of life cycle dependent are subject to the ebb and flow of the definition and all waters located within aquatic habitat (such as foraging, tide; 4,000 feet of the high tide line or feeding, nesting, breeding, spawning, or (ii) All interstate waters, including ordinary high water mark of a water use as a nursery area) for species located interstate wetlands; identified in paragraphs (1)(i) through in a water identified in paragraphs (1)(i) (iii) The territorial seas; (v) of this definition where they are through (iii) of this section. (iv) All impoundments of waters determined on a case-specific basis to (vi) Ordinary high water mark. The otherwise identified as waters of the have a significant nexus to a water term ordinary high water mark means United States under this section; identified in paragraphs (1)(i) through that line on the shore established by the (v) All tributaries, as defined in (iii) of this definition. For waters fluctuations of water and indicated by paragraph (3)(iii) of this definition, of determined to have a significant nexus,

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the entire water is a water of the United structures built for wastewater physical indicators demonstrate there is States if a portion is located within the recycling. volume, frequency, and duration of flow 100-year floodplain of a water identified (3) In this definition, the following sufficient to create a bed and banks and in paragraphs (1)(i) through (iii) of this terms apply: an ordinary high water mark, and thus definition or within 4,000 feet of the (i) Adjacent. The term adjacent means to qualify as a tributary. A tributary can high tide line or ordinary high water bordering, contiguous, or neighboring a be a natural, man-altered, or man-made mark. Waters identified in this water identified in paragraphs (1)(i) water and includes waters such as paragraph shall not be combined with through (v) of this definition, including rivers, streams, canals, and ditches not waters identified in paragraph (1)(vi) of waters separated by constructed dikes or excluded under paragraph (2) of this this definition when performing a barriers, natural river berms, beach definition. A water that otherwise significant nexus analysis. If waters dunes, and the like. For purposes of qualifies as a tributary under this identified in this paragraph are also an adjacency, an open water such as a definition does not lose its status as a adjacent water under paragraph (1)(vi), pond or lake includes any wetlands tributary if, for any length, there are one they are an adjacent water and no case- within or abutting its ordinary high or more constructed breaks (such as specific significant nexus analysis is water mark. Adjacency is not limited to bridges, culverts, pipes, or dams), or one required. waters located laterally to a water or more natural breaks (such as (2) The following are not ‘‘waters of identified in paragraphs (1)(i) through wetlands along the run of a stream, the United States’’ even where they (v) of this definition. Adjacent waters debris piles, boulder fields, or a stream otherwise meet the terms of paragraphs also include all waters that connect that flows underground) so long as a bed (1)(iv) through (viii) of this definition. segments of a water identified in and banks and an ordinary high water (i) The following ditches: paragraphs (1)(i) through (v) or are mark can be identified upstream of the (A) Ditches with ephemeral flow that located at the head of a water identified break. A water that otherwise qualifies are not a relocated tributary or in paragraphs (1)(i) through (v) of this as a tributary under this definition does excavated in a tributary. definition and are bordering, not lose its status as a tributary if it (B) Ditches with intermittent flow that contiguous, or neighboring such water. contributes flow through a water of the are not a relocated tributary, excavated Waters being used for established United States that does not meet the in a tributary, or drain wetlands. normal farming, ranching, and definition of tributary or through a non- (C) Ditches that do not flow, either silviculture activities (33 U.S.C. 1344(f)) jurisdictional water to a water identified directly or through another water, into are not adjacent. in paragraphs (1)(i) through (iii) of this a water identified in paragraphs (1)(i) (ii) Neighboring. The term definition. through (iii) of this definition. neighboring means: (iv) Wetlands. The term wetlands (ii) The following features: (A) All waters located within 100 feet means those areas that are inundated or (A) Artificially irrigated areas that of the ordinary high water mark of a saturated by surface or groundwater at would revert to dry land should water identified in paragraphs (1)(i) a frequency and duration sufficient to application of water to that area cease; through (v) of this definition. The entire support, and that under normal (B) Artificial, constructed lakes and water is neighboring if a portion is circumstances do support, a prevalence ponds created in dry land such as farm located within 100 feet of the ordinary of vegetation typically adapted for life and stock watering ponds, irrigation high water mark; in saturated soil conditions. Wetlands ponds, settling basins, fields flooded for (B) All waters located within the 100- generally include swamps, marshes, rice growing, log cleaning ponds, or year floodplain of a water identified in bogs, and similar areas. cooling ponds; paragraphs (1)(i) through (v) of this (v) Significant nexus. The term (C) Artificial reflecting pools or definition and not more than 1,500 feet significant nexus means that a water, swimming pools created in dry land; from the ordinary high water mark of including wetlands, either alone or in (D) Small ornamental waters created such water. The entire water is combination with other similarly in dry land; neighboring if a portion is located situated waters in the region, (E) Water-filled depressions created in within 1,500 feet of the ordinary high significantly affects the chemical, dry land incidental to mining or water mark and within the 100-year physical, or biological integrity of a construction activity, including pits floodplain; water identified in paragraphs (1)(i) excavated for obtaining fill, sand, or (C) All waters located within 1,500 through (iii) of this definition. The term gravel that fill with water; feet of the high tide line of a water ‘‘in the region’’ means the watershed (F) Erosional features, including identified in paragraphs (1)(i) or (iii) of that drains to the nearest water gullies, rills, and other ephemeral this definition, and all waters within identified in paragraphs (1)(i) through features that do not meet the definition 1,500 feet of the ordinary high water (iii) of this definition. For an effect to be of tributary, non-wetland swales, and mark of the Great Lakes. The entire significant, it must be more than lawfully constructed grassed waterways; water is neighboring if a portion is speculative or insubstantial. Waters are and located within 1,500 feet of the high tide similarly situated when they function (G) Puddles. line or within 1,500 feet of the ordinary alike and are sufficiently close to (iii) Groundwater, including high water mark of the Great Lakes. function together in affecting groundwater drained through (iii) Tributary and tributaries. The downstream waters. For purposes of subsurface drainage systems. terms tributary and tributaries each determining whether or not a water has (iv) Stormwater control features mean a water that contributes flow, a significant nexus, the water’s effect on constructed to convey, treat, or store either directly or through another water downstream (1)(i) through (iii) waters stormwater that are created in dry land. (including an impoundment identified shall be assessed by evaluating the (v) Wastewater recycling structures in paragraph (1)(iv) of this definition), to aquatic functions identified in constructed in dry land; detention and a water identified in paragraphs (1)(i) paragraphs (3)(v)(A) through (I) of this retention basins built for wastewater through (iii) of this definition that is definition. A water has a significant recycling; groundwater recharge basins; characterized by the presence of the nexus when any single function or percolation ponds built for wastewater physical indicators of a bed and banks combination of functions performed by recycling; and water distributary and an ordinary high water mark. These the water, alone or together with

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similarly situated waters in the region, § 401.11 General definitions. (D) Western vernal pools. Western contributes significantly to the * * * * * vernal pools are seasonal wetlands chemical, physical, or biological (l) The term navigable waters means located in parts of California and integrity of the nearest water identified the waters of the United States, associated with topographic depression, in paragraphs (1)(i) through (iii) of this including the territorial seas. soils with poor drainage, mild, wet definition. Functions relevant to the (1) For purposes of the Clean Water winters and hot, dry summers. significant nexus evaluation are the Act, 33 U.S.C. 1251 et seq. and its (E) Texas coastal prairie wetlands. following: implementing regulations, subject to the Texas coastal prairie wetlands are (A) Sediment trapping, exclusions in paragraph (l)(2) of this freshwater wetlands that occur as a (B) Nutrient recycling, section, the term ‘‘waters of the United mosaic of depressions, ridges, (C) Pollutant trapping, transformation, States’’ means: intermound flats, and mima mound filtering, and transport, (i) All waters which are currently wetlands located along the Texas Gulf (D) Retention and attenuation of flood used, were used in the past, or may be Coast. waters, susceptible to use in interstate or foreign (viii) All waters located within the (E) Runoff storage, commerce, including all waters which 100-year floodplain of a water identified (F) Contribution of flow, are subject to the ebb and flow of the in (l)(1)(i) through (iii) of this section (G) Export of organic matter, tide; and all waters located within 4,000 feet (H) Export of food resources, and (ii) All interstate waters, including of the high tide line or ordinary high (I) Provision of life cycle dependent interstate wetlands; water mark of a water identified in aquatic habitat (such as foraging, (iii) The territorial seas; paragraphs (l)(1)(i) through (v) of this feeding, nesting, breeding, spawning, or (iv) All impoundments of waters section where they are determined on a use as a nursery area) for species located otherwise identified as waters of the case-specific basis to have a significant in a water identified in paragraphs (1)(i) United States under this section; nexus to a water identified in through (iii) of this section. (v) All tributaries, as defined in paragraphs (l)(1)(i) through (iii) of this (vi) Ordinary high water mark. The paragraph (l)(3)(iii) of this section, of section. For waters determined to have term ordinary high water mark means waters identified in paragraphs (l)(1)(i) a significant nexus, the entire water is that line on the shore established by the through (iii) of this section; a water of the United States if a portion fluctuations of water and indicated by (vi) All waters adjacent to a water is located within the 100-year physical characteristics such as a clear, identified in paragraphs (l)(1)(i) through floodplain of a water identified in natural line impressed on the bank, (v) of this section, including wetlands, paragraphs (l)(1)(i) through (iii) of this shelving, changes in the character of ponds, lakes, oxbows, impoundments, section or within 4,000 feet of the high soil, destruction of terrestrial vegetation, and similar waters; tide line or ordinary high water mark. the presence of litter and debris, or (vii) All waters in paragraphs Waters identified in this paragraph shall other appropriate means that consider (l)(1)(vii)(A) through (E) of this section not be combined with waters identified the characteristics of the surrounding where they are determined, on a case- in paragraph (l)(1)(vi) of this section areas. specific basis, to have a significant when performing a significant nexus (vii) High tide line. The term high tide nexus to a water identified in analysis. If waters identified in this line means the line of intersection of the paragraphs (1)(i) through (iii) of this paragraph are also an adjacent water land with the water’s surface at the section. The waters identified in each of under paragraph (l)(1)(vi), they are an maximum height reached by a rising paragraphs (l)(1)(vii)(A) through (E) of adjacent water and no case-specific tide. The high tide line may be this section are similarly situated and significant nexus analysis is required. determined, in the absence of actual shall be combined, for purposes of a (2) The following are not ‘‘waters of data, by a line of oil or scum along shore significant nexus analysis, in the the United States’’ even where they objects, a more or less continuous watershed that drains to the nearest otherwise meet the terms of paragraphs deposit of fine shell or debris on the water identified in paragraphs (l)(1)(i) (l)(1)(iv) through (viii) of this section. foreshore or berm, other physical through (iii) of this section. Waters (i) Prior converted cropland. markings or characteristics, vegetation identified in this paragraph shall not be Notwithstanding the determination of lines, tidal gages, or other suitable combined with waters identified in an area’s status as prior converted means that delineate the general height paragraph (l)(1)(vi) of this section when cropland by any other Federal agency, reached by a rising tide. The line performing a significant nexus analysis. for the purposes of the Clean Water Act, encompasses spring high tides and other If waters identified in this paragraph are the final authority regarding Clean high tides that occur with periodic also an adjacent water under paragraph Water Act jurisdiction remains with frequency but does not include storm (l)(1)(vi), they are an adjacent water and EPA. surges in which there is a departure no case-specific significant nexus (ii) The following ditches: from the normal or predicted reach of analysis is required. (A) Ditches with ephemeral flow that the tide due to the piling up of water (A) Prairie potholes. Prairie potholes are not a relocated tributary or against a coast by strong winds such as are a complex of glacially formed excavated in a tributary. those accompanying a hurricane or wetlands, usually occurring in (B) Ditches with intermittent flow that other intense storm. depressions that lack permanent natural are not a relocated tributary, excavated * * * * * outlets, located in the upper Midwest. in a tributary, or drain wetlands. (B) Carolina bays and Delmarva bays. (C) Ditches that do not flow, either PART 401—GENERAL PROVISIONS Carolina bays and Delmarva bays are directly or through another water, into ponded, depressional wetlands that a water identified in paragraphs (l)(1)(i) ■ 22. The authority citation for part 401 occur along the Atlantic coastal plain. through (iii) of this section. is revised to read as follows: (C) Pocosins. Pocosins are evergreen (iii) The following features: Authority: 33 U.S.C. 1251 et seq. shrub and tree dominated wetlands (A) Artificially irrigated areas that ■ 23. Section 401.11 is amended by found predominantly along the Central would revert to dry land should revising paragraph (l) to read as follows: Atlantic coastal plain. application of water to that area cease;

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(B) Artificial, constructed lakes and located within 100 feet of the ordinary of vegetation typically adapted for life ponds created in dry land such as farm high water mark; in saturated soil conditions. Wetlands and stock watering ponds, irrigation (B) All waters located within the 100- generally include swamps, marshes, ponds, settling basins, fields flooded for year floodplain of a water identified in bogs, and similar areas. rice growing, log cleaning ponds, or paragraphs (l)(1)(i) through (v) of this (v) Significant nexus. The term cooling ponds; section and not more than 1,500 feet significant nexus means that a water, (C) Artificial reflecting pools or from the ordinary high water mark of including wetlands, either alone or in swimming pools created in dry land; such water. The entire water is combination with other similarly (D) Small ornamental waters created neighboring if a portion is located situated waters in the region, in dry land; within 1,500 feet of the ordinary high significantly affects the chemical, (E) Water-filled depressions created in water mark and within the 100-year physical, or biological integrity of a dry land incidental to mining or floodplain; water identified in paragraphs (l)(1)(i) construction activity, including pits (C) All waters located within 1,500 through (iii) of this section. The term excavated for obtaining fill, sand, or feet of the high tide line of a water ‘‘in the region’’ means the watershed gravel that fill with water; identified in paragraphs (l)(1)(i) or (iii) that drains to the nearest water (F) Erosional features, including of this section, and all waters within identified in paragraphs (l)(1)(i) through gullies, rills, and other ephemeral 1,500 feet of the ordinary high water (iii) of this section. For an effect to be features that do not meet the definition mark of the Great Lakes. The entire significant, it must be more than of tributary, non-wetland swales, and water is neighboring if a portion is speculative or insubstantial. Waters are lawfully constructed grassed waterways; located within 1,500 feet of the high tide similarly situated when they function and line or within 1,500 feet of the ordinary alike and are sufficiently close to (G) Puddles. high water mark of the Great Lakes. function together in affecting (iv) Groundwater, including (iii) Tributary and tributaries. The downstream waters. For purposes of groundwater drained through terms tributary and tributaries each determining whether or not a water has subsurface drainage systems. mean a water that contributes flow, a significant nexus, the water’s effect on (v) Stormwater control features either directly or through another water downstream (1)(i) through (iii) waters constructed to convey, treat, or store (including an impoundment identified shall be assessed by evaluating the stormwater that are created in dry land. in paragraph (l)(1)(iv) of this section), to aquatic functions identified in (vi) Wastewater recycling structures a water identified in paragraphs (l)(1)(i) paragraphs (l)(3)(v)(A) through (I) of this constructed in dry land; detention and through (iii) of this section that is section. A water has a significant nexus retention basins built for wastewater characterized by the presence of the when any single function or recycling; groundwater recharge basins; physical indicators of a bed and banks combination of functions performed by percolation ponds built for wastewater and an ordinary high water mark. These the water, alone or together with recycling; and water distributary physical indicators demonstrate there is similarly situated waters in the region, structures built for wastewater volume, frequency, and duration of flow contributes significantly to the recycling. sufficient to create a bed and banks and chemical, physical, or biological (3) In this paragraph (l), the following an ordinary high water mark, and thus integrity of the nearest water identified terms apply: to qualify as a tributary. A tributary can in paragraphs (l)(1)(i) through (iii) of (i) Adjacent. The term adjacent means be a natural, man-altered, or man-made this section. Functions relevant to the bordering, contiguous, or neighboring a water and includes waters such as significant nexus evaluation are the water identified in paragraphs (l)(1)(i) rivers, streams, canals, and ditches not following: through (v) of this section, including excluded under paragraph (l)(2) of this (A) Sediment trapping, waters separated by constructed dikes or section. A water that otherwise qualifies (B) Nutrient recycling, barriers, natural river berms, beach as a tributary under this definition does (C) Pollutant trapping, transformation, dunes, and the like. For purposes of not lose its status as a tributary if, for filtering, and transport, adjacency, an open water such as a any length, there are one or more (D) Retention and attenuation of flood pond or lake includes any wetlands constructed breaks (such as bridges, waters, within or abutting its ordinary high culverts, pipes, or dams), or one or more (E) Runoff storage, water mark. Adjacency is not limited to natural breaks (such as wetlands along (F) Contribution of flow, waters located laterally to a water the run of a stream, debris piles, boulder (G) Export of organic matter, identified in paragraphs (l)(1)(i) through fields, or a stream that flows (H) Export of food resources, and (v) of this section. Adjacent waters also underground) so long as a bed and (I) Provision of life cycle dependent include all waters that connect segments banks and an ordinary high water mark aquatic habitat (such as foraging, of a water identified in paragraphs can be identified upstream of the break. feeding, nesting, breeding, spawning, or (l)(1)(i) through (v) or are located at the A water that otherwise qualifies as a use as a nursery area) for species located head of a water identified in paragraphs tributary under this definition does not in a water identified in paragraphs (l)(1)(i) through (v) of this section and lose its status as a tributary if it (l)(1)(i) through (iii) of this section. are bordering, contiguous, or contributes flow through a water of the (vi) Ordinary high water mark. The neighboring such water. Waters being United States that does not meet the term ordinary high water mark means used for established normal farming, definition of tributary or through a non- that line on the shore established by the ranching, and silviculture activities (33 jurisdictional water to a water identified fluctuations of water and indicated by U.S.C. 1344(f)) are not adjacent. in paragraphs (l)(1)(i) through (iii) of physical characteristics such as a clear, (ii) Neighboring. The term this section. natural line impressed on the bank, neighboring means: (iv) Wetlands. The term wetlands shelving, changes in the character of (A) All waters located within 100 feet means those areas that are inundated or soil, destruction of terrestrial vegetation, of the ordinary high water mark of a saturated by surface or groundwater at the presence of litter and debris, or water identified in paragraphs (l)(1)(i) a frequency and duration sufficient to other appropriate means that consider through (v) of this section. The entire support, and that under normal the characteristics of the surrounding water is neighboring if a portion is circumstances do support, a prevalence areas.

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(vii) High tide line. The term high tide foreshore or berm, other physical from the normal or predicted reach of line means the line of intersection of the markings or characteristics, vegetation the tide due to the piling up of water land with the water’s surface at the lines, tidal gages, or other suitable against a coast by strong winds such as maximum height reached by a rising means that delineate the general height those accompanying a hurricane or tide. The high tide line may be reached by a rising tide. The line other intense storm. determined, in the absence of actual encompasses spring high tides and other * * * * * data, by a line of oil or scum along shore high tides that occur with periodic [FR Doc. 2015–13435 Filed 6–26–15; 8:45 am] objects, a more or less continuous frequency but does not include storm deposit of fine shell or debris on the surges in which there is a departure BILLING CODE 6560–50–P

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