Attachment A: Data Analysis The U.S. Environmental Protection Agency and the U.S. Department of the Army conducted four assessments on the effects of the Navigable Waters Protection Rule (NWPR) on jurisdictional determinations and related individual aquatic resources using data sourced from the U.S. Army Corps of Engineers’ (Corps) ORM2 database. Due to the sensitive information found in the ORM2 database, the raw data associated with these analyses are not being provided here. The ORM2 database was deployed to all of the Corps’ 38 districts in 2008 and has been continuously improving since that time. Because of changes to regulation and tracking priorities, the data are most reliable from the year 2016 to present. The following assessments are based on data within specific time frames: June 22 to April 15 in the years of 2018-2019, 2019-2020, and 2020-2021. These assessments use the following metrics: - Total number of approved jurisdictional determinations (AJDs) and preliminary jurisdictional determinations (PJDs) by given time period. o The above metric was further broken down by total number of AJDs that included jurisdictional and non-jurisdictional determinations.1 - Total number of individual aquatic resources found to be jurisdictional and non-jurisdictional within AJDs under the NWPR.2 o The above metric was further broken down by the categories of jurisdictional waters and exclusions in the NWPR (i.e., (a)(2), (a)(4), (b)(1), and (b)(3) categories). - Total number of AJDs in New Mexico and Arizona that included stream resources that were found to be jurisdictional and non-jurisdictional. - Total number of projects that resulted in ‘No Permit Required’ closure methods. Background: The Operation and Maintenance Business Information Link, Regulatory Module (ORM2) is the Corps’ internal database that documents Clean Water Act (CWA) section 404 application and permit data, including information on jurisdictional determinations (JDs).3 A JD is a written Corps determination that a water is subject to regulatory jurisdiction under section 404 of the CWA (33 U.S.C. 1344) or a written determination that a water is subject to regulatory jurisdiction under Section 9 or 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).4 JDs are identified as either preliminary or approved, and 1 The NWPR AJD data entry in ORM2 allows for and is often used to compile determinations about both jurisdictional and non-jurisdictional aquatic resources together for a single project site; under prior regulatory regimes, data entry in ORM2 restricted project managers to entering AJDs in separate entries for jurisdictional and non-jurisdictional resources on the same project site. 2 Individual aquatic resources were only assessed under the NWPR because jurisdictional determinations carried out under prior regimes had less clear differentiation between types of aquatic resources. For example, a lake under prior regimes could have been classified as a tributary, an impoundment, a traditional navigable water, an interstate water, and sometimes even an adjacent water or adjacent wetland. 3 The public interface for the Corps’ ORM2 Database is available at: https://permits.ops.usace.army.mil/orm- public. 4 33 CFR 331.2. both types are recorded in ORM2. An approved jurisdictional determination (AJD) is an official Corps document stating the presence or absence of “waters of the United States” on a parcel or a written statement and map identifying the limits of “waters of the United States” on a parcel. A preliminary jurisdictional determination (PJD) is a non-binding written indication that there may be “waters of the United States” on a parcel; an applicant can elect to use a PJD to voluntarily waive or set aside questions regarding CWA jurisdiction over a particular site and thus move forward assuming all waters will be treated as jurisdictional without making a formal determination.5 Methods: In the ORM2 database, an AJD can contain one or multiple aquatic resources. For this reason, the agencies assessed data on the AJD-level and at the aquatic resource level. Data Quality Assurance and Control: NWPR AJD Data from ORM2 was refined to account for foundational differences in how AJD information is reported under the various regulatory regimes. Because a single AJD in ORM under the NWPR can contain both jurisdictional and non-jurisdictional determinations, the instances of these “mixed” AJD forms had to be separated into two buckets.6 To explain, when totaling whether an AJD was for a jurisdictional or non-jurisdictional resource, if an AJD under the NWPR contained both, it was counted in both categories (i.e., a tally would be added under the jurisdictional category and the non-jurisdictional category). This refinement was made on 1,318 AJDs and thus normalized the NWPR AJDs so that it could be compared to AJDs conducted under the previous regulatory regimes. Additionally, any AJDs that were conducted on drylands or Rivers and Harbors Act section 10 waters only were excluded from this analysis, as they are either excluded from the definition of “waters of the United States” or do not fall under the joint jurisdiction of the EPA and Corps under the CWA. This led to 1,099 AJDs from ORM2 being excluded from this analysis. Additionally, AJDs from Colorado were excluded from this analysis.7 The agencies also assessed actions from 2020-2021 associated with the Corps’ “No Permit Required” closure method within ORM2, looking specifically at closure methods for “Activities that occur in waters that are no longer WOTUS under the NWPR” and “Activities that do not occur in WOTUS.” “Activities that occur in waters that are no longer WOTUS under the NWPR”’ is a new closure method created by the Corps for the ORM2 database that helps track actions that would have required a permit prior to the NWPR but that no longer do due to the NWPR’s revised definition of “waters of the United States.” However, this closure method is not being uniformly used across the Districts and by Corps project 5 When the Corps provides a PJD, or authorizes an activity through a general or individual permit relying on a PJD, the Corps is not making a legally binding determination of any type regarding whether jurisdiction exists over the particular aquatic resource in question even though the applicant or project proponent proceeds as though the resource were jurisdictional. A PJD is “preliminary” in the sense that a recipient of a PJD can later request and obtain an AJD if that becomes necessary or appropriate during the permit process or during the administrative appeal process. See 33 CFR 331.2. 6 Under the pre-2015 regulatory regime and the 2015 Clean Water Rule, AJDs in ORM could contain only jurisdictional features or only non-jurisdictional features. 7 Because the NWPR was enjoined in the state of Colorado during the 2020-2021 period of record, all data for sites in the state of Colorado were removed from the 2020-2021 dataset. In order to make the data more suitable for comparative purposes between years, all Colorado data were also removed from the 2018-2019 and the from the 2019-2020 datasets for AJDs made under the previous regulatory regimes. managers and thus likely undercounts the number of projects that would have required a permit prior to the NWPR but that no longer do. Statistics: Because data within ORM2 are imperfect in nature -- due to varying regulatory regimes, economic and development trends, and general human error related to data entry -- the assessment carried out is summary in nature. In short, statistics on significance cannot be run and rather than comparing whole numbers between different time periods, it is more telling to compare percentages. While exact numbers are not obtainable from the data there is more than sufficient volume and accuracy of the data to demonstrate clear trends. Results and discussion: AJDs and PJDs over time Of 6,570 NWPR AJDs that were finalized from June 22, 2020 to April 15, 2021, 71% were found to include non-jurisdictional aquatic resources (Table 1, Figures 1 and 2). The trend to pull from this percentage is that at a national level, when a project proponent wants an official determination of the jurisdictional status of aquatic resources on a parcel and requests an AJD, 71% of the time the AJDs identified non-jurisdictional aquatic resources, while under prior regimes, that same outcome occurred 46% of the time. Similarly telling, since the NWPR has been in effect, the percent of jurisdictional determinations being carried out as AJDs versus PJDs has gone up by 95% and 116% depending on prior time periods considered (Table 1). Fewer PJDs indicates that fewer project proponents are assuming aquatic resources on their project sites are jurisdictional. This has two implications: project proponents are requesting AJDs rather than PJDs and/or they are simply not notifying the Corps of their activities that might result in the discharge of dredged or fill material into aquatic resources because they believe those resources are no longer jurisdictional under the NWPR. The lower rates of PJD requests under the NWPR may be the most striking metric for how trends in jurisdiction have changed. Table 1: Jurisdictional vs Non-jurisdictional determinations over time JDs: PJDs vs AJDs % Change in % Time period PJD AJD Total % AJD AJD 2018-2019 8,465 3,731 12,196 31% 116% 2019-2020 7,351 3,761 11,112 34% 95% 2020-2021 3,961 7,669 11,630 66% AJDs: Jurisdictional vs Non-jurisdictional % Change in % Non- % Non- Non- Time period Jurisdictional jurisdictional Total jurisdictional jurisdictional 2018-2019 1,231 1,039 2,270 46% 2019-2020 1,159 972 2,131 46% 2020-2021 1,889 4,681 6,570 71% 56% The data used are the normalized data, excluding dry lands and RHA section 10 waters only and data from Colorado.