Final WotUS Rule

This document is a prepublication version.
The EPA Administrator, Gina McCarthy, and the Assistant Secretary of the Army (Civil Works), Jo
Ellen Darcy, signed the following final rule on 05/26/2015. Please refer to the official version in a forthcoming FR publication, which will appear
on the Government Printing Offices FDsys website (http://fdsys.gpo.gov/fdsys/search/home.action) and on Regulations.gov
(http://www.regulations.gov) in Docket No. EPA-HQ-OW-2011-0880.
6560-50-P
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401
[EPA-HQ-OW-2011-0880; FRL-9927-20-OW]
RIN 2040- AF30
Clean Water Rule: Definition of Waters of the United States
AGENCIES: U.S. Army Corps of Engineers, Department of the Army, Department of Defense;
and Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: The Environmental Protection Agency (EPA) and the U.S. Department of the
Army (Army) are publishing a final rule defining the scope of waters protected under the Clean
Water Act (CWA or the Act), in light of the statute, science, Supreme Court decisions in U.S. v.
Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
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This document is a prepublication version. The EPA Administrator, Gina McCarthy, and the Assistant Secretary of the Army (Civil Works), Jo
Engineers (SWANCC), and Rapanos v. United States (Rapanos), and the agencies experience
and technical expertise. This final rule reflects consideration of the extensive public comments
received on the proposed rule. The rule will ensure protection for the nations public health and
aquatic resources, and increase CWA program predictability and consistency by clarifying the
scope of waters of the United States protected under the Act.
DATES: This rule is effective on [60 days after Federal Register publication]. In accordance
with 40 CFR part 23, this regulation shall be considered issued for purposes of judicial review at
1 p.m. Eastern time on [INSERT DATE 2 WEEKS AFTER PUBLICATION IN THE FR].
FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water

(4502T), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC
20460; telephone number 2025662428; e-mail address: [email protected]. Ms. Stacey
Jensen, Regulatory Community of Practice (CECWCOR), U.S. Army Corps of Engineers, 441
G Street, NW, Washington, DC 20314; telephone number 2027615856; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
This final rule does not establish any regulatory requirements. Instead, it is a definitional
rule that clarifies the scope of waters of the United States consistent with the Clean Water Act
(CWA), Supreme Court precedent, and science. Programs established by the CWA, such as the
section 402 National Pollutant Discharge Elimination System (NPDES) permit program, the
section 404 permit program for discharge of dredged or fill material, and the section 311 oil spill
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prevention and response programs, all rely on the definition of waters of the United States.
Entities currently are, and will continue to be, regulated under these programs that protect
waters of the United States from pollution and destruction.
State, tribal, and local governments have well-defined and longstanding relationships
with the Federal government in implementing CWA programs and these relationships are not
altered by the final rule. Forty-six states and the U.S. Virgin Islands have been authorized by
EPA to administer the NPDES program under section 402, and two states have been authorized
by the EPA to administer the section 404 program. All states and forty tribes have developed
water quality standards under the CWA for waters within their boundaries. A federal advisory
committee has recently been announced to assist states in identifying the scope of waters
assumable under the section 404 program.
The scope of jurisdiction in this rule is narrower than that under the existing regulation.
Fewer waters will be defined as waters of the United States under the rule than under the
existing regulations, in part because the rule puts important qualifiers on some existing
categories such as tributaries. In addition, the rule provides greater clarity regarding which
waters are subject to CWA jurisdiction, reducing the instances in which permitting authorities,
including the states and tribes with authorized section 402 and 404 CWA permitting programs,
would need to make jurisdictional determinations on a case-specific basis.
Table of Contents
I.
General Information
A.
How Can I Get Copies of This Document and Related Information?
B.
Under What Legal Authority is This Rule Issued?

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II.
Executive Summary
III.
Significant Nexus Determinations

A.
The Significant Nexus Standard
B.
Science Report
C.
Significant Nexus Conclusions

1. Scope of Significant Nexus Analysis
2. Categories of Waters Determined to Have a Significant Nexus
3. Case-Specific Significant Nexus Determinations
IV.
Definition of Waters of the United States

A.
Summary of Rule
B.
Traditional Navigable Waters
C.
Interstate Waters
D.
Territorial Seas
E.
Impoundments
F.
Tributaries
G.
Adjacent Waters
H.
Case-Specific Waters of the United States
I.
Waters and Features that Are Not Waters of the United States
V.
Economic Impacts
VI.
Related Acts of Congress, Executive Orders, and Agency Initiatives

A.
Executive Order 12866: Regulatory Planning and Review and Executive Order
13563: Improving Regulation and Regulatory Review
B.
Paperwork Reduction Act

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C.
Regulatory Flexibility Act
D.
Unfunded Mandates Reform Act
E.
Executive Order 13132: Federalism
F.
Executive Order 13175: Consultation and Coordination with Indian Tribal

Governments
G.
Executive Order 13045: Protection of Children from Environmental Health and

Safety Risks
H.
Executive Order 13211: Actions Concerning Regulations That Significantly

Affect Energy Supply, Distribution, or Use
I.
National Technology Transfer and Advancement Act
J.
Executive Order 12898: Federal Actions to Address Environmental Justice in

Minority Populations and Low-Income Populations
I.
K.
Congressional Review Act
L.
Environmental Documentation
General Information
A.
How Can I Get Copies of This Document and Related Information?
1. Docket. An official public docket for this action has been established under Docket Id.
No. EPA-HQ-OW-2011-0880. The official public docket consists of the documents specifically
referenced in this action, any public comments received, and other information related to this
action. The official public docket also includes a Technical Support Document that provides
additional legal and scientific discussion for issues raised in this rule, and the Response to
Comments document. Although a part of the official docket, the public docket does not include
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Confidential Business Information or other information whose disclosure is restricted by statute.

The official public docket is the collection of materials that is available for public viewing at the
OW Docket, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The OW Docket telephone number is 2025662426. A reasonable fee will be charged
for copies.
2. Electronic Access. You may access this Federal Register document electronically
under the Federal Register listings at http://www.regulations.gov. An electronic version of
the public docket is available through EPAs electronic public docket and comment system, EPA
Dockets. You may access EPA Dockets at http://www.regulations.gov to view public comments,
access the index listing of the contents of the official public docket, and access those documents
in the public docket that are available electronically. For additional information about EPAs
public docket, visit the EPA Docket Center homepage at
http://www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available
electronically, you may still access any of the publicly available docket materials through the
Docket Facility.
B.
Under What Legal Authority Is This Rule Issued?
The authority for this rule is the Federal Water Pollution Control Act, 33 U.S.C. 1251, et
seq., including sections 301, 304, 311, 401, 402, 404 and 501.
II.
Executive Summary
In this final rule, the agencies clarify the scope of waters of the United States that are
protected under the Clean Water Act (CWA), based upon the text of the statute, Supreme Court
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decisions, the best available peer-reviewed science, public input, and the agencies technical
expertise and experience in implementing the statute. This rule makes the process of identifying
waters 1 protected under the CWA easier to understand, more predictable, and consistent with the
law and peer-reviewed science, while protecting the streams and wetlands that form the
foundation of our nations water resources.
Congress enacted the CWA to restore and maintain the chemical, physical, and
biological integrity of the Nations waters, section 101(a), and to complement statutes that
protect the navigability of waters, such as the Rivers and Harbors Act. 33 U.S.C. 401, 403, 404,
407. The CWA is the nations single most important statute for protecting Americas clean water
against pollution, degradation, and destruction. To provide that protection, the Supreme Court
has consistently agreed that the geographic scope of the CWA reaches beyond waters that are
navigable in fact. Peer-reviewed science and practical experience demonstrate that upstream
waters, including headwaters and wetlands, significantly affect the chemical, physical, and
biological integrity of downstream waters by playing a crucial role in controlling sediment,
filtering pollutants, reducing flooding, providing habitat for fish and other aquatic wildlife, and
many other vital chemical, physical, and biological processes.
This final rule interprets the CWA to cover those waters that require protection in order
to restore and maintain the chemical, physical, or biological integrity of traditional navigable
waters, interstate waters, and the territorial seas. This interpretation is based not only on legal
The agencies use the term water and waters in categorical reference to rivers, streams,
ditches, wetlands, ponds, lakes, oxbows, and other types of natural or man-made aquatic
systems, identifiable by the water contained in these aquatic systems or by their chemical,
physical, and biological indicators. The agencies use the terms waters and water bodies
interchangeably in this preamble.
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precedent and the best available peer-reviewed science, but also on the agencies technical
expertise and extensive experience in implementing the CWA over the past four decades. The
rule will clarify and simplify implementation of the CWA consistent with its purposes through
clearer definitions and increased use of bright-line boundaries to establish waters that are
jurisdictional by rule and limit the need for case-specific analysis. The agencies emphasize that,
while the CWA establishes permitting requirements for covered waters to ensure protection of
water quality, these requirements only apply with respect to discharges of pollutants to the
covered water. In the absence of a discharge of a pollutant, the CWA does not impose
permitting restrictions on the use of such water.
Additionally, Congress has exempted certain discharges, and the rule does not affect any
of the exemptions from CWA section 404 permitting requirements provided by CWA section
404(f), including those for normal farming, ranching, and silviculture activities. CWA section
404(f); 40 CFR 232.3; 33 CFR 323.4. This rule not only maintains current statutory exemptions,
it expands regulatory exclusions from the definition of waters of the United States to make it
clear that this rule does not add any additional permitting requirements on agriculture. The rule
also does not regulate shallow subsurface connections nor any type of groundwater, erosional
features, or land use, nor does it affect either the existing statutory or regulatory exemptions from
NPDES permitting requirements, such as for agricultural stormwater discharges and return flows
from irrigated agriculture, or the status of water transfers. CWA section 402(l)(1); CWA section
402(l)(2); CWA section 502(14); 40 CFR 122.3(f); 40 CFR 122.2.
Finally, even where waters are covered by the CWA, the agencies have adopted many
streamlined regulatory requirements to simplify and expedite compliance through the use of
measures such as general permits and standardized mitigation measures. The agencies will
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continue to develop general permits and simplified procedures, particularly as they affect
crossings of covered ephemeral and intermittent tributaries jurisdictional under this rule to ensure
that projects that offer significant social benefits, such as renewable energy development, can
proceed with the necessary environmental safeguards while minimizing permitting delays.
The jurisdictional scope of the CWA is navigable waters, defined in section 502(7) of
the statute as waters of the United States, including the territorial seas. The term navigable
waters is used in a number of provisions of the CWA, including the section 402 National
Pollutant Discharge Elimination System (NPDES) permit program, the section 404 permit
program, the section 311 oil spill prevention and response program, 2 the water quality standards
and total maximum daily load programs (TMDL) under section 303, and the section 401 state
water quality certification process. However, while there is only one CWA definition of waters
of the United States, there may be other statutory factors that define the reach of a particular
CWA program or provision. 3 Existing regulations (last codified in 1986) define waters of the
While section 311 uses the phrase navigable waters of the United States, EPA has interpreted
it to have the same breadth as the phrase navigable waters used elsewhere in section 311, and
in other sections of the CWA. See United States v. Texas Pipe Line Co., 611 F.2d 345, 347 (10th
Cir. 1979); United States v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1324-25 (6th Cir. 1974).
In 2002, EPA revised its regulatory definition of waters of the United States in 40 CFR part
112 to ensure that the language of the rule was consistent with the regulatory language of other
CWA programs. Oil Pollution Prevention & Response; Non Transportation-Related Onshore &
Offshore Facilities, 67 FR 47042, July 17, 2002. A district court vacated the rule for failure to
comply with the Administrative Procedure Act, and reinstated the prior regulatory language.
American Petroleum Ins. v. Johnson, 541 F. Supp. 2d 165 (D. D.C. 2008). However, EPA
interprets navigable waters of the United States in CWA section 311(b), in the pre-2002
regulations, and in the 2002 rule to have the same meaning as navigable waters in CWA
section 502(7).
3
For example, the CWA section 402 (33 U.S.C. 1342) program regulates discharges of
pollutants from point sources to waters of the United States, whether these pollutants reach
jurisdictional waters directly or indirectly. The plurality opinion in Rapanos noted that there is
no reason to suppose that our construction today significantly affects the enforcement of 1342. .
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United States as traditional navigable waters, interstate waters, all other waters that could affect
interstate or foreign commerce, impoundments of waters of the United States, tributaries, the
territorial seas, and adjacent wetlands. 33 CFR 328.3; 40 CFR 122.2. 4
However, the Supreme Court has issued three decisions that provide critical context and
guidance in determining the appropriate scope of waters of the United States covered by the
CWA. In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (Riverside), the
Court, in a unanimous opinion, deferred to the Corps ecological judgment that adjacent
wetlands are inseparably bound up with the waters to which they are adjacent, and upheld the
inclusion of adjacent wetlands in the regulatory definition of waters of the United States. Id. at
134. The Court observed that the broad objective of the CWA to restore and maintain the
integrity of the Nations waters incorporated a broad, systemic view of the goal of maintaining
and improving water quality . Protection of aquatic ecosystems, Congress recognized,
demanded broad federal authority to control pollution, for [w]ater moves in hydrologic cycles
and it is essential that discharge of pollutants be controlled at the source. In keeping with these
views, Congress chose to define the waters covered by the Act broadly. Id. at 132-33 (citing
Senate Report No. 92-414, p. 77 (1972)).
. . The Act does not forbid the addition of any pollutant directly to navigable waters from any
point source, but rather the addition of any pollutant to navigable waters. 547 U.S. at 743.
4
There are numerous regulations that utilize the definition of waters of the United States and
each is codified consistent with its place in a particular section of the Code of Federal
Regulations. For simplicity, throughout the preamble the agencies refer to the rule as organized
into (a), (b), (c) provisions and intend the reference to encompass the appropriate cites in each
section of the Code of Federal Regulations. For example, a reference to (a)(1) is a reference to
all instances in the CFR identified as subject to this rule that state All waters which are
currently used, were used in the past, or may be susceptible to use in interstate or foreign
commerce, including all waters which are subject to the ebb and flow of the tide.
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In Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531
U.S. 159 (2001) (SWANCC), the Supreme Court held that the use of isolated non-navigable
intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of federal
regulatory authority under the CWA. Although the SWANCC decision did not call into question
earlier decisions upholding the CWAs coverage of wetlands or other waters adjacent to
traditional navigable waters, it created uncertainty with regard to the jurisdiction of other waters
and wetlands that, in many instances, may play an important role in protecting the integrity of the
nations waters. The majority opinion in SWANCC introduced the concept that it was a
significant nexus that informed the Courts reading of CWA jurisdiction over waters that are
not navigable in fact.
Five years later, in Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos), all
Members of the Court agreed that the term waters of the United States encompasses some
waters that are not navigable in the traditional sense. In addition, Justice Kennedys opinion
indicated that the critical factor in determining the CWAs coverage is whether a water has a
significant nexus to downstream traditional navigable waters such that the water is important
to protecting the chemical, physical, or biological integrity of the navigable water, referring back
to the Courts decision in SWANCC. Justice Kennedys concurrence in Rapanos stated that to
constitute a water of the United States covered by the CWA, a water or wetland must possess
a significant nexus to waters that are or were navigable in fact or that could reasonably be so
made. Id. at 759 (Kennedy, J., concurring in the judgment) (citing SWANCC, 531 U.S. at 167,
172). Justice Kennedy concluded that wetlands possess the requisite significant nexus if the
wetlands either alone or in combination with similarly situated [wet]lands in the region,
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significantly affect the chemical, physical, and biological integrity of other covered waters more
readily understood as navigable. 547 U.S. at 780.
In this rule, the agencies interpret the scope of the waters of the United States for the
CWA using the goals, objectives, and policies of the statute, the Supreme Court case law, the
relevant and available science, and the agencies technical expertise and experience as
support. In particular, the agencies looked to the objective of the CWA to restore and maintain
the chemical, physical, and biological integrity of the Nations waters, and the scientific
consensus on the strength of the effects of upstream tributaries and adjacent waters, including
wetlands, on downstream traditional navigable waters, interstate waters, and the territorial
seas. An important element of the agencies interpretation of the CWA is the significant nexus
standard. This significant nexus standard was first informed by the ecological and hydrological
connections the Supreme Court noted in Riverside Bayview, developed and established by the
Supreme Court in SWANCC, and further refined in Justice Kennedys opinion in Rapanos. The
agencies also utilized the plurality standard in Rapanos by establishing boundaries on the scope
of waters of the United States and in support of the exclusions from the definition of waters
of the United States. The analysis used by the agencies has been supported by all nine of the
United States Courts of Appeals that have considered the issue.
The agencies assess the significance of the nexus in terms of the CWAs objective to
restore and maintain the chemical, physical, and biological integrity of the Nations waters.
When the effects are speculative or insubstantial, the significant nexus would not be present.
The science demonstrates that the protection of upstream waters is critical to maintaining the
integrity of the downstream waters. The upstream waters identified in the rule as jurisdictional
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function as integral parts of the aquatic environment, and if these waters are polluted or
destroyed, there is a significant effect downstream.
.In response to the Supreme Court opinions, the agencies issued guidance in 2003 (postSWANCC) and 2008 (post-Rapanos). However, these two guidance documents did not provide
the public or agency staff with the kind of information needed to ensure timely, consistent, and
predictable jurisdictional determinations. Many waters are currently subject to case-specific
jurisdictional analysis to determine whether a significant nexus exists, and this time and
resource intensive process can result in inconsistent interpretation of CWA jurisdiction and
perpetuate ambiguity over where the CWA applies. As a result of the ambiguity that exists
under current regulations and practice following these recent decisions, almost all waters and
wetlands across the country theoretically could be subject to a case-specific jurisdictional
determination.
Members of Congress, developers, farmers, state and local governments, energy
companies, and many others requested new regulations to make the process of identifying waters
protected under the CWA clearer, simpler, and faster. Chief Justice Roberts concurrence in
Rapanos underscores the importance of this rulemaking effort. 5 In this final rule, the agencies are
responding to those requests from across the country to make the process of identifying waters
Chief Justice Roberts concurrence in Rapanos emphasized that [a]gencies delegated

rulemaking authority under a statute such as the Clean Water Act are afforded generous leeway
by the courts in interpreting the statute they are entrusted to administer. Id. at 758. Chief
Justice Roberts made clear that, if the agencies had undertaken such a rulemaking, the Corps
and the EPA would have enjoyed plenty of room to operate in developing some notion of an
outer bound to the reach of their authority. Id. (Emphasis in original.)
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protected under the CWA easier to understand, more predictable, and more consistent with the
law and peer-reviewed science.
The agencies proposed a rule clarifying the scope of waters of the United States in April,
2014, and solicited comments for over 200 days. This final rule reflects the over 1 million public
comments on the proposal, the substantial majority of which supported the proposed rule, as well
as input provided through the agencies extensive public outreach effort, which included over
400 meetings nationwide with states, small businesses, farmers, academics, miners, energy
companies, counties, municipalities, environmental organizations, other federal agencies, and
many others. The agencies sought comment on a number of approaches to specific jurisdictional
questions, and many of these commenters and stakeholders urged EPA to improve upon the
April 2014 proposal, by providing more bright line boundaries and simplifying definitions that
identify waters that are protected under the CWA, all for the purpose of minimizing delays and
costs, making protection of clean water more effective, and improving predictability and
consistency for landowners and regulated entities.
The agencies interpretation of the CWAs scope in this final rule is guided by the best
available peer-reviewed science particularly as that science informs the determinations as to
which waters have a significant nexus with traditional navigable waters, interstate waters, or
the territorial seas.
The relevant science on the relationship and downstream effects of waters has advanced
considerably in recent years. A comprehensive report prepared by the EPAs Office of Research
and Development entitled Connectivity of Streams and Wetlands to Downstream Waters: A
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Review and Synthesis of the Scientific Evidence 6 (hereafter the Science Report) synthesizes the
peer-reviewed science.
The Science Report provides much of the technical basis for this rule. The Science
Report is based on a review of more than 1,200 peer-reviewed publications. EPAs Science
Advisory Board (SAB) conducted a comprehensive technical review of the Science Report and
reviewed the adequacy of the scientific and technical basis of the proposed rule. The Science
Report and the SAB review confirmed that:
Waters are connected in myriad ways, including physical connections and the hydrologic
cycle; however, connections occur on a continuum or gradient from highly connected to
highly isolated.
These variations in the degree of connectivity are a critical consideration to the ecological
integrity and sustainability of downstream waters.
The critical contribution of upstream waters to the chemical, physical, and biological
integrity of downstream waters results from the accumulative contribution of similar
waters in the same watershed and in the context of their functions considered over time.
The Science Report and the SAB review also confirmed that:
Tributary streams, including perennial, intermittent, and ephemeral streams, are

chemically, physically, and biologically connected to downstream waters, and influence
the integrity of downstream waters.
U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream

Waters: A Review and Synthesis of the Scientific Evidence (Final Report), EPA/600/R-14/475F,
(Washington, D.C.: U.S. Environmental Protection Agency, (2015)). http://www.epa.gov/ncea
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Wetlands and open waters in floodplains and riparian areas are chemically, physically,
and biologically connected with downstream waters and influence the ecological integrity
of such waters.
Non-floodplain wetlands and open waters provide many functions that benefit
downstream water quality and ecological integrity, but their effects on downstream
waters are difficult to assess based solely on the available science.
Although these conclusions play a critical role in informing the agencies interpretation
of the CWAs scope, the agencies interpretive task in this rule determining which waters have
a significant nexus requires scientific and policy judgment, as well as legal interpretation.
The science demonstrates that waters fall along a gradient of chemical, physical, and biological
connection to traditional navigable waters, and it is the agencies task to determine where along
that gradient to draw lines of jurisdiction under the CWA. In making this determination, the
agencies must rely, not only on the science, but also on their technical expertise and practical
experience in implementing the CWA during a period of over 40 years. In addition, the agencies
are guided, in part, by the compelling need for clearer, more consistent, and easily
implementable standards to govern administration of the Act, including brighter line boundaries
where feasible and appropriate.
Major Rule Provisions
In this final rule, the agencies define waters of the United States to include eight
categories of jurisdictional waters. The rule maintains existing exclusions for certain categories
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of waters, and adds additional categorical exclusions that are regularly applied in practice. The
rule reflects the agencies goal of providing simpler, clearer, and more consistent approaches for
identifying the geographic scope of the CWA. The rule recognizes jurisdiction for three basic
categories: waters that are jurisdictional in all instances, waters that are excluded from
jurisdiction, and a narrow category of waters subject to case-specific analysis to determine
whether they are jurisdictional.
Decisions about waters in each of these categories are based on the law, peer-reviewed
science, and the agencies technical expertise, and were informed by public comments. This rule
replaces existing procedures that often depend on individual, time-consuming, and inconsistent
analyses of the relationship between a particular stream, wetland, lake, or other water with
downstream waters. The agencies have greatly reduced the extent of waters subject to this
individual review by carefully incorporating the scientific literature and by utilizing agency
expertise and experience to characterize the nature and strength of the chemical, physical, and
biological connections between upstream and downstream waters. The result of applying this
scientific analysis is that the agencies can more effectively focus the rule on identifying waters
that are clearly covered by the CWA and those that are clearly not covered, making the rule
easier to understand, consistent, and environmentally more protective.
The jurisdictional categories reflect the current state of the best available science, and are
based upon the law and Supreme Court decisions. The agencies will continue a transparent
review of the science, and learn from on-going experience and expertise as the agencies
implement the rule. If evolving science and the agencies experience lead to a need for action to
alter the jurisdictional categories, any such action will be conducted as part of a rule-making
process.
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The first three types of jurisdictional waters, traditional navigable waters, interstate
waters, and the territorial seas, are jurisdictional by rule in all cases. The fourth type of water,
impoundments of jurisdictional waters, is also jurisdictional by rule in all cases. The next two
types of waters, tributaries and adjacent waters, are jurisdictional by rule, as defined,
because the science confirms that they have a significant nexus to traditional navigable waters,
interstate waters, or territorial seas. For waters that are jurisdictional by rule, no additional
analysis is required.
The final two types of jurisdictional waters are those waters found after a case-specific
analysis to have a significant nexus to traditional navigable waters, interstate waters, or the
territorial seas, either alone or in combination with similarly situated waters in the region.
Justice Kennedy acknowledged the agencies could establish more specific regulations or
establish a significant nexus on a case-by-case basis, Rapanos at 782, and for these waters the
agencies will continue to assess significant nexus on a case-specific basis.
The major elements of the final rule are briefly summarized here.
Traditional Navigable Waters, Interstate Waters, Territorial Seas, and Impoundments of

Jurisdictional Waters
Consistent with existing regulations and the April 2014 proposed rule, the final rule
includes traditional navigable waters, interstate waters, territorial seas, and impoundments of
jurisdictional waters in the definition of waters of the United States. These waters are
jurisdictional by rule.
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Tributaries
Previous definitions of waters of the United States regulated all tributaries without
qualification. This final rule more precisely defines tributaries as waters that are characterized
by the presence of physical indicators of flow bed and banks and ordinary high water mark
and that contribute flow directly or indirectly to a traditional navigable water, an interstate water,
or the territorial seas. The rule concludes that such tributaries are waters of the United States.
The great majority of tributaries as defined by the rule are headwater streams that play an
important role in the transport of water, sediments, organic matter, nutrients, and organisms to
downstream waters. The physical indicators of bed and banks and ordinary high water mark
demonstrate that there is sufficient volume, frequency, and flow in such tributaries to a
traditional navigable water, interstate water, or the territorial seas to establish a significant nexus.
Tributaries, as defined, are jurisdictional by rule.
The rule only covers as tributaries those waters that science tells us provide chemical,
physical, or biological functions to downstream waters and that meet the significant nexus
standard. The agencies identify these functions in the definition of significant nexus at
paragraph (c)(5). Features not meeting this legal and scientific test are not jurisdictional under
this rule. The rule continues the current policy of regulating ditches that are constructed in
tributaries or are relocated tributaries or, in certain circumstances drain wetlands, or that science
clearly demonstrates are functioning as a tributary. These jurisdictional waters affect the
chemical, physical, and biological integrity of downstream waters. The rule further reduces
existing confusion and inconsistency regarding the regulation of ditches by explicitly excluding
certain categories of ditches, such as ditches that flow only after precipitation. Further, the rule
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explicitly excludes from the definition of waters of the United States erosional features,
including gullies, rills, and ephemeral features such as ephemeral streams that do not have a bed
and banks and ordinary high water mark.
Adjacent Waters
The agencies determined that adjacent waters, as defined in the rule, have a significant
nexus to traditional navigable waters, interstate waters, and the territorial seas based upon their
hydrological and ecological connections to, and interactions with, those waters. Under this final
rule, adjacent means bordering, contiguous, or neighboring, including waters separated from
other waters of the United States by constructed dikes or barriers, natural river berms, beach
dunes and the like. Further, waters that connect segments of, or are at the head of, a stream or
river are adjacent to that stream or river. Adjacent waters include wetlands, ponds, lakes,
oxbows, impoundments, and similar water features. However, it is important to note that
adjacent waters do not include waters that are subject to established normal farming,
silviculture, and ranching activities as those terms are used in Section 404(f) of the CWA.
The final rule establishes a definition of neighboring for purposes of determining
adjacency. In the rule, the agencies identify three circumstances under which waters would be
neighboring and therefore waters of the United States:
(1) Waters located in whole or in part within 100 feet of the ordinary high water mark of a
traditional navigable water, interstate water, the territorial seas, an impoundment of a
jurisdictional water, or a tributary, as defined in the rule.
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(2) Waters located in whole or in part in the 100-year floodplain and that are within 1,500
feet of the ordinary high water mark of a traditional navigable water, interstate water, the
territorial seas, an impoundment, or a tributary, as defined in the rule (floodplain
waters).
(3) Waters located in whole or in part within 1,500 feet of the high tide line of a traditional
navigable water or the territorial seas and waters located within 1,500 feet of the ordinary
high water mark of the Great Lakes.
The agencies emphasize that the rule has defined as adjacent waters those waters that
currently available science demonstrates possess the requisite connection to downstream waters
and function as a system to protect the chemical, physical, or biological integrity of those
waters. The agencies also emphasize that the rule does not cover adjacent waters that are
otherwise excluded. Further, the agencies recognize the establishment of bright line boundaries
in the rule for adjacency does not in any way restrict states from considering state specific
information and concerns, as well as emerging science to evaluate the need to more broadly
protect their waters under state law. The CWA establishes both national and state roles to ensure
that states specific circumstances are properly considered to complement and reinforce actions
taken at the national level.
Adjacent waters as defined are jurisdictional by rule. The agencies recognize that there are
individual waters outside of the neighboring boundaries stated above where the science may
demonstrate through a case-specific analysis that there exists a significant nexus to a downstream
traditional navigable water, interstate water, or the territorial seas. However, these waters are not
determined jurisdictional by rule and will be evaluated through a case-specific analysis. The
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strength of the science and the significance of the nexus will be established on a case-specific
basis as described below.
Case-Specific Significant Nexus
The rule identifies particular waters that are not jurisdictional by rule but are subject to
case-specific analysis to determine if a significant nexus exists and the water is a water of the
United States. This category of case-specific waters is based upon available science and the
law, and in response to public comments that encouraged the agencies to ensure more consistent
determinations and reduce the complexity of conducting jurisdictional determinations. Consistent
with the significant nexus standard articulated in the Supreme Court opinions, waters are waters
of the United States if they significantly affect the chemical, physical, or biological integrity of
traditional navigable waters, interstate waters, or the territorial seas. This determination will
most typically be made on a water individually, but can, when warranted, be made in
combination with other waters where waters function together.
In this final rule, the agencies have identified by rule, five specific types of waters in
specific regions that science demonstrates should be subject to a significant nexus analysis and
are considered similarly situated by rule because they function alike and are sufficiently close to
function together in affecting downstream waters. These five types of waters are Prairie potholes,
Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal
prairie wetlands. Consistent with Justice Kennedys opinion in Rapanos, the agencies
determined that such waters should be analyzed in combination (as a group, rather than
individually) in the watershed that drains to the nearest traditional navigable water, interstate
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water, or the territorial seas when making a case-specific analysis of whether these waters have a
significant nexus to traditional navigable waters, interstate waters, or territorial seas.
The final rule also provides that waters within the 100-year floodplain of a traditional
navigable water, interstate water, or the territorial seas and waters within 4,000 feet of the high
tide line or the ordinary high water mark of a traditional navigable water, interstate water, the
territorial seas, impoundments, or covered tributary are subject to case-specific significant nexus
determinations, unless the water is excluded under paragraph (b) of the rule. The science
available today does not establish that waters beyond those defined as adjacent should be
jurisdictional as a category under the CWA, but the agencies experience and expertise indicate
that there are many waters within the 100-year floodplain of a traditional navigable water,
interstate water, or the territorial seas or out to 4,000 feet where the science demonstrates that
they have a significant effect on downstream waters.
In circumstances where waters within the 100-year floodplain of a traditional navigable
water, interstate water, or the territorial seas or within 4,000 feet of the high tide line or ordinary
high water mark are subject to a case-specific significant nexus analysis and such waters may be
evaluated as similarly situated, it must be first demonstrated that these waters function alike
and are sufficiently close to function together in affecting downstream waters. The significant
nexus analysis must then be conducted based on consideration of the functions provided by those
waters in combination in the point of entry watershed. A similarly situated analysis is
conducted where it is determined that there is a likelihood that there are waters that function
together to affect downstream water integrity. To provide greater clarity and transparency in
determining what functions will be considered in determining what constitutes a significant
nexus, the final rule lists specific functions that the agencies will consider.
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In establishing both the 100-year floodplain and the 4,000 foot bright line boundaries for
these case-specific significant nexus determinations in the rule, the agencies are carefully
applying the available science. Consistent with the CWA, the agencies will work with the states
in connection with the prevention, reduction and elimination of pollution from state waters. The
agencies will work with states to more closely evaluate state-specific circumstances that may be
present within their borders and, as appropriate, encourage states to develop rules that reflect
their circumstances and emerging science to ensure consistent and effective protection for waters
in the states. As is the case today, nothing in this rule restricts the ability of states to more
broadly protect state waters.
Exclusions
All existing exclusions from the definition of waters of the United States are retained,
and several exclusions reflecting longstanding agency practice are added to the regulation for the
first time.
Prior converted cropland and waste treatment systems have been excluded from the
definition of waters of the United States definition since 1992 and 1979 respectively, and
continue to be excluded. Ministerial changes are made for purposes of clarity, but these two
exclusions remain substantively and operationally unchanged. The agencies add exclusions for
waters and features previously identified as generally exempt (e.g., exclusion for certain ditches
that are not located in or drain wetlands) in preamble language from Federal Register notices by
the Corps on November 13, 1986, and by EPA on June 6, 1988. This is the first time these
exclusions have been established by rule. The agencies for the first time also establish by rule
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that certain ditches are excluded from jurisdiction, including ditches with ephemeral flow that are
not a relocated tributary or excavated in a tributary, and ditches with intermittent flow that are
not a relocated tributary, or excavated in a tributary, or drain wetlands. The agencies add
exclusions for groundwater and erosional features, as well as exclusions for some waters that
were identified in public comments as possibly being found jurisdictional under proposed rule
language where this was never the agencies intent, such as stormwater control features
constructed to convey, treat, or store stormwater, and cooling ponds that are created in dry land.
These exclusions reflect the agencies current practice, and their inclusion in the rule as
specifically excluded furthers the agencies goal of providing greater clarity over what waters are
and are not protected under the CWA.
Role of States and Tribes Under the Clean Water Act

States and tribes play a vital role in the implementation and enforcement of the CWA.
Section 101(b) of the CWA states that it is Congressional policy to preserve the primary
responsibilities and rights of states to prevent, reduce, and eliminate pollution, to plan the
development and use of land and water resources, and to consult with the Administrator with
respect to the exercise of the Administrators authority under the CWA.
Of particular importance, states and tribes may be authorized by the EPA to administer
the permitting programs of CWA sections 402 and 404. Forty-six states and the U.S. Virgin
Islands are authorized to administer the NPDES program under section 402, while two states
administer the section 404 program. The CWA identifies the waters over which states may
assume section 404 permitting jurisdiction. See CWA section 404(g)(1). The scope of waters
that are subject to state and tribal permitting is a separate inquiry and must be based on the
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statutory language in CWA section 404. States administer approved CWA section 404 programs
for waters of the United States within the state, except those waters remaining under Corps
jurisdiction pursuant to CWA section 404(g)(1) as identified in a Memorandum of Agreement
between the state and the Corps. 40 CFR 233.14; 40 CFR 233.70(c)(2); 40 CFR
233.71(d)(2). EPA has initiated a separate process to address how the EPA can best clarify
assumable waters for dredged and fill material permit programs pursuant to the Clean Water Act
section 404(g)(1). 80 FR 13539 (Mar. 16, 2015). Additional CWA programs that utilize the
definition of waters of the United States and are of importance to the states and tribes include
the section 311 oil spill prevention and response program, the water quality standards and total
maximum daily load (TMDL) programs under section 303, and the section 401 state water
quality certification process.
States and federally-recognized tribes, consistent with the CWA, retain full authority to
implement their own programs to more broadly and more fully protect the waters in their
jurisdiction. Under section 510 of the CWA, unless expressly stated, nothing in the CWA
precludes or denies the right of any state to establish more protective standards or limits than the
Federal CWA. Congress has also provided roles for eligible Indian tribes to administer CWA
programs over their reservations and expressed a preference for tribal regulation of surface water
quality on Indian reservations to ensure compliance with the goals of the CWA. See 33 U.S.C.
1377; 56 FR 64876, 64878-79 (Dec. 12, 1991)). Tribes also have inherent sovereign authority to
establish more protective standards or limits than the Federal CWA. Where appropriate,
references to states in this document may also include eligible tribes. Many states and tribes, for
example, regulate groundwater, and some others protect wetlands that are vital to their
environment and economy but outside the jurisdiction of the CWA. Nothing in this rule limits or
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impedes any existing or future state or tribal efforts to further protect their waters. In fact,
providing greater clarity regarding what waters are subject to CWA jurisdiction will reduce the
need for permitting authorities, including the states and tribes with authorized section 402 and
404 CWA permitting programs, to make jurisdictional determinations on a case-specific basis.
Overview of the Preamble
The remainder of this preamble is organized as follows. Section III (Significant Nexus
Standard) provides additional background on the rule, including a discussion of Supreme Court
precedent, the science underpinning the rule, and the agencies overall interpretive approach to
applying the significant nexus standard. Section IV (Definition of Waters of the United States)
explains the provisions of the final rule, including subsections on each of the major elements of
the rule. Section V summarizes the economic analysis of the rule and Section VI addresses
Related Acts of Congress, Executive Orders and Agency Initiatives.
III.
Significant Nexus Standard
With this rule, the agencies interpret the scope of the waters of the United States for the
CWA in light of the goals, objectives, and policies of the statute, the Supreme Court case law,
the relevant and available science, and the agencies technical expertise and experience. The key
to the agencies interpretation of the CWA is the significant nexus standard, as established and
refined in Supreme Court opinions: waters are waters of the United States if they, either alone
or in combination with similarly situated waters in the region, significantly affect the chemical,
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physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial
seas. The agencies interpret specific aspects of the significant nexus standard in light of the
science, the law, and the agencies technical expertise: the scope of the region in which to
evaluate waters when making a significant nexus determination; the waters to evaluate in
combination with each other; and the functions provided by waters and strength of those
functions, and when such waters significantly affect the chemical, physical, or biological
integrity of the downstream traditional navigable waters, interstate waters, or the territorial seas.
In the rule, the agencies determine that tributaries, as defined (covered tributaries), and
adjacent waters, as defined (covered adjacent waters), have a significant nexus to
downstream traditional navigable waters, interstate waters, and the territorial seas and therefore
are waters of the United States. In the rule, the agencies also establish that defined sets of
additional waters may be determined to have a significant nexus on a case-specific basis: (1) five
specific types of waters that the agencies conclude are similarly situated and therefore must be
analyzed in combination in the watershed that drains to the nearest traditional navigable water,
interstate water, or the territorial seas when making a case-specific significant nexus analysis;
and (2) waters within the 100-year floodplain of a traditional navigable water, interstate water, or
the territorial seas, or waters within 4,000 feet of the high tide line or ordinary high water mark
of traditional navigable waters, interstate waters, the territorial seas, impoundments or covered
tributaries. The rule establishes a definition of significant nexus, based on Supreme Court
opinions and the science, to use when making these case-specific determinations.
Significant nexus is not a purely scientific determination. The opinions of the Supreme
Court have noted that as the agencies charged with interpreting the statute, EPA and the Corps
must develop the outer bounds of the scope of the CWA, while science does not provide bright
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line boundaries with respect to where water ends for purposes of the CWA. Therefore, the
agencies interpretation of the CWA is informed by the Science Report and the review and
comments of the SAB, but not dictated by them. With this context, this section addresses, first,
the Supreme Court case law and the significant nexus standard, second, the relevant scientific
conclusions reached by analysis of existing scientific literature, and third, the agencies
significant nexus determinations underpinning the rule. Section IV of the preamble addresses in
more detail the precise definitions of the covered waters promulgated by the agencies to provide
the bright line boundaries identifying waters of the United States.
A.
The Significant Nexus Standard
Congress enacted the CWA to restore and maintain the chemical, physical, and
biological integrity of the Nations waters. Section 101(a). The agencies longstanding
regulations define waters of the United States for purposes of the Clean Water Act, and the
Supreme Court has addressed the scope of waters of the United States protected by the CWA
in three cases. The significant nexus standard evolved through those cases.
In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (Riverside), which
involved wetlands adjacent to a traditional navigable water in Michigan, the Court, in a
unanimous opinion, deferred to the Corps ecological judgment that adjacent wetlands are
inseparably bound up with the waters to which they are adjacent, and upheld the inclusion of
adjacent wetlands in the regulatory definition of waters of the United States. Id. at 134. The
Court observed that the broad objective of the CWA to restore and maintain the integrity of the
Nations waters incorporated a broad, systemic view of the goal of maintaining and improving
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water quality . Protection of aquatic ecosystems, Congress recognized, demanded broad

federal authority to control pollution, for [w]ater moves in hydrologic cycles and it is essential
that discharge of pollutants be controlled at the source. In keeping with these views, Congress
chose to define the waters covered by the Act broadly. Id. at 132-33 (citing Senate Report No.
92-414). The Court also recognized that [i]n determining the limits of its power to regulate
discharges under the Act, the Corps must necessarily choose some point at which water ends and
land begins. Our common experience tells us that this is often no easy task: the transition from
water to solid ground is not necessarily or even typically an abrupt one. Rather, between open
waters and dry land may lie shallows, marshes, mudflats, swamps, bogs in short, a huge array
of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on
this continuum to find the limit of waters is far from obvious. Id. The Court then deferred to
the agencies interpretation: In view of the breadth of federal regulatory authority contemplated
by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the
Corps' ecological judgment about the relationship between waters and their adjacent wetlands
provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters
under the Act. Id. at 134.
The issue of CWA jurisdiction over waters of the United States was addressed again by
the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001) (SWANCC). In SWANCC, the Court (in a 5-4 opinion) held that
the use of isolated non-navigable intrastate ponds by migratory birds was not by itself a
sufficient basis for the exercise of federal regulatory authority under the CWA. The SWANCC
Court noted that in Riverside it had found that Congress concern for the protection of water
quality and aquatic ecosystems indicated its intent to regulate wetlands inseparably bound up
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with the waters of the United States and that [i]t was the significant nexus between the
wetlands and navigable waters that informed our reading of the CWA in that case. Id. at 167.
SWANCC did not invalidate any parts of the regulatory definition of waters of the United
States.
Five years after SWANCC, the Court again addressed the term waters of the United
States in Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos). Rapanos involved two
consolidated cases in which the CWA had been applied to wetlands adjacent to non-navigable
tributaries of traditional navigable waters. All Members of the Court agreed that the term
waters of the United States encompasses some waters that are not navigable in the traditional
sense. A four-Justice plurality in Rapanos interpreted the term waters of the United States as
covering relatively permanent, standing or continuously flowing bodies of water . . ., id. at
739, that are connected to traditional navigable waters, id. at 742, as well as wetlands with a
continuous surface connection . . . to such water bodies, id. (Scalia, J., plurality opinion). The
Rapanos plurality noted that its reference to relatively permanent waters did not necessarily
exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as
drought, or seasonal rivers, which contain continuous flow during some months of the year but
no flow during dry months . . . . Id. at 732 n.5 (emphasis in original).
Justice Kennedy concurred that the cases should be remanded for further decision
making, and stated that to constitute navigable waters under the Act, a water or wetland must
possess a significant nexus to waters that are or were navigable in fact or that could reasonably
be so made. Id. at 759 (citing SWANCC, 531 U.S. at 167, 172). Justice Kennedy concluded that
The required nexus must be assessed in terms of the statutes goals and purposes. Congress
enacted the law to restore and maintain the chemical, physical, and biological integrity of the
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Nations waters, 33 U.S.C. 1251(a), and it pursued that objective by restricting dumping and
filling in navigable waters, 1311(a), 1362(12). Id. at 779. He concluded that wetlands
possess the requisite significant nexus if the wetlands either alone or in combination with
similarly situated [wet]lands in the region, significantly affect the chemical, physical, and
biological integrity of other covered waters more readily understood as navigable. 547 U.S. at
780. Justice Kennedys opinion notes that such a relationship with navigable waters must be
more than speculative or insubstantial. Id. at 780.
While Justice Kennedys opinion focused on adjacent wetlands in light of the facts of the
cases before him, his opinion is clear that a significant nexus is the basis for jurisdiction to
protect non-navigable waters and wetlands under the CWA (id. at 759), and there is no indication
in his opinion that the analytical framework his opinion provides for determining significant
nexus for adjacent wetlands is limited to adjacent wetlands. In addition, the four dissenting
Justices in Rapanos, who would have affirmed the court of appeals application of the agencies
regulation, also concluded that the term waters of the United States encompasses, inter alia, all
tributaries and wetlands that satisfy either the pluralitys [standard] or Justice Kennedys. Id. at
810 & n.14 (Stevens, J., dissenting). Neither the plurality nor the Kennedy opinion invalidated
any of the current regulatory provisions defining waters of the United States.
Chief Justice Roberts concurrence in Rapanos emphasized that [a]gencies delegated
rulemaking authority under a statute such as the Clean Water Act are afforded generous leeway
by the courts in interpreting the statute they are entrusted to administer. Id. at 758. Chief
Justice Roberts made clear that, if the agencies had undertaken such a rulemaking, the Corps
and the EPA would have enjoyed plenty of room to operate in developing some notion of an
outer bound to the reach of their authority. Id. (Emphasis in original.)
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The agencies utilize the significant nexus standard, as articulated by Justice Kennedys
opinion and informed by the unanimous opinion in Riverside Bayview and the plurality opinion
in Rapanos which all recognize that the Act and the agencies must identify the scope of CWA
jurisdiction on this continuum to find the limit of waters, Riverside Bayview at 132, to
interpret the scope of the statutory term waters of the United States. While a significant nexus
determination is primarily weighted in the scientific evidence and criteria, the agencies also
consider the statutory language, the statutes goals, objectives and policies, the case law, and the
agencies technical expertise and experience when interpreting the terms of the CWA.
B.
Science Report
EPAs Office of Research and Development prepared the Science Report, a peerreviewed compilation and analysis of published peer-reviewed scientific literature summarizing
the current scientific understanding of the connectivity of and mechanisms by which streams and
wetlands, singly or in combination, affect the chemical, physical, and biological integrity of
downstream waters. The final Science Report is available in the docket and at
http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=296414.
The process for developing the Science Report followed standard information quality
guidelines for EPA. In September 2013, EPA released a draft of the Science Report for an
independent SAB review and invited submissions of public comments for consideration by the
SAB panel. In October 2014, after several public meetings and hearings, the SAB completed its
peer review of the draft Science Report. The SAB was highly supportive of the draft Science
Reports conclusions regarding streams, riparian and floodplain wetlands, and open waters, and
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recommended strengthening the conclusion regarding non-floodplain waters to include a more

definitive statement that reflects how numerous functions of such waters sustain the integrity of
downstream waters. 7 The final peer review report is available on the SAB website, as well as in
the docket for this rulemaking. EPA revised the draft Science Report based on comments from
the public and recommendations from the SAB panel.
The SAB was established in 1978 by the Environmental Research, Development, and
Demonstration Authorization Act (ERDDAA), to provide independent scientific and technical
advice to the EPA Administrator on the technical basis for Agency positions and regulations.
Advisory functions include peer review of EPAs technical documents, such as the Science
Report. At the time the peer review was completed, the chartered SAB was comprised of more
than 50 members from a variety of sectors including academia, non-profit organizations,
foundations, state governments, consulting firms, and industry. To conduct the peer review,
EPAs SAB staff formed an ad hoc panel based on nominations from the public to serve as the
primary reviewers. The panel consisted of 27 technical experts in an array of relevant fields,
including hydrology, wetland and stream ecology, biology, geomorphology, biogeochemistry,
and freshwater science. Similar to the chartered SAB, the panel members represented sectors
including academia, a federal government agency, non-profit organizations, and consulting
firms. The chair of the panel was a member of the chartered SAB.
The SAB process is open and transparent, consistent with the Federal Advisory
Committee Act, 5 U.S.C., App 2, and agency policies regarding Federal advisory committees.
U.S. EPA. 2014. SAB review of the draft EPA report Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence. EPA-SAB-15-001, U.S.
Environmental Protection Agency, Washington, DC. (SAB 2014a.)
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Consequently, the SAB has an approved charter, which must be renewed biennially, announces
its meetings in the Federal Register, and provides opportunities for public comment on issues
before the Board. The SAB staff announced via the Federal Register that they sought public
nominations of technical experts to serve on the expert panel: SAB Panel for the Review of the
EPA Water Body Connectivity Report (via a similar process the public also is invited to
nominate chartered SAB members). 78 FR 15012 (Mar. 8, 2013). The SAB staff then invited the
public to comment on the list of candidates for the panel. Once the panel was selected, the SAB
staff posted a memo on its website addressing the formation of the panel and the set of
determinations that were necessary for its formation (e.g., no conflicts of interest). In the public
notice of the first public meetings interested members of the public were invited to submit
relevant comments for the SAB Panel to consider pertaining to the review materials, including
the charge to the Panel. Over 133,000 public comments were received by the Docket. Every
meeting was open to the public, noticed in the Federal Register, and had time allotted for the
public to present their views. In total, the Panel held a two-day in-person meeting in Washington,
DC, in December 2013, and three four-hour public teleconferences in April, May, and June
2014. The SAB Panel also compiled four draft versions of its peer review report to inform and
assist the meeting deliberations that were posted on the SAB website. In September 2014, the
chartered SAB conducted a public teleconference to conduct the quality review of the Panels
final draft peer review report. The peer review report was approved at that meeting, and revisions
were made to reflect the chartered SABs review. The culmination of that public process was the
release of the final peer review report in October 2014. All meeting minutes and draft reports are
available on the SAB website for public access.
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The final Science Report states that connectivity is a foundational concept in hydrology
and freshwater ecology. Connectivity is the degree to which components of a system are joined,
or connected, by various transport mechanisms and is determined by the characteristics of both
the physical landscape and the biota of the specific system. Connectivity for purposes of
interpreting the scope of waters of the United States under the CWA serves to demonstrate the
nexus between upstream water bodies and the downstream traditional navigable water,
interstate water, or the territorial sea. The scientific literature does not use the term significant
as it is defined in a legal context, but it does provide information on the strength of the effects on
the chemical, physical, and biological functioning of the downstream water bodies from the
connections among covered tributaries, covered adjacent waters, and case-specific waters and
those downstream waters. The scientific literature also does not use the terms traditional
navigable waters, interstate waters, or the territorial seas. However, evidence of strong chemical,
physical, and biological connections to larger rivers, estuaries, and lakes applies to that subset of
rivers, estuaries, and lakes that are traditional navigable waters, interstate waters, or the territorial
seas.
The Science Report presents evidence of those connections from various categories of
waters, evaluated singly or in combination, which affect downstream waters and the strength of
that effect. The objectives of the Science Report are (1) to provide a context for considering the
evidence of connections between downstream waters and their tributary waters, and (2) to
summarize current understanding about these connections, the factors that influence them, and
the mechanisms by which the connections affect the function or condition of downstream waters.
The connections and mechanisms discussed in the Science Report include transport of physical
materials and chemicals such as water, wood, sediment, nutrients, pesticides, and mercury;
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functions that covered adjacent waters perform, such as storing and cleansing water; movement
of organisms or their seeds and eggs; and hydrologic and biogeochemical interactions occurring
in and among surface and groundwater flows, including hyporheic zones 8 and alluvial aquifers.
The Science Report presents five major conclusions:
Conclusion 1: Streams
The scientific literature unequivocally demonstrates that streams, individually or
cumulatively, exert a strong influence on the chemical, physical, and biological integrity of
downstream waters. All tributary streams, including perennial, intermittent, and ephemeral
streams, are chemically, physically, and biologically connected to downstream rivers via
channels and associated alluvial deposits where water and other materials are concentrated,
mixed, transformed, and transported. Streams are the dominant source of water in most rivers,
and the majority of tributaries are perennial, intermittent, or ephemeral headwater streams.
Headwater streams also convey water into local storage compartments such as ponds, shallow
aquifers, and floodplains, and into regional and alluvial aquifers; these local storage
compartments are important sources of water for maintaining baseflow in rivers. In addition to
water, streams transport sediment, wood, organic matter, nutrients, chemical contaminants, and
many of the organisms found in rivers. The scientific literature provides robust evidence that
streams are biologically connected to downstream waters by the dispersal and migration of
aquatic and semiaquatic organisms, including fish, amphibians, plants, microorganisms, and
The hyporheic zone is the subsurface area immediately below the bed of intermittent and
ephemeral streams that remains wet even when there is no surface flow. These areas are
extremely important to macro-benthic organisms critical to the bio-chemical integrity of streams.
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invertebrates, that use both upstream and downstream habitats during one or more stages of their
life cycles, or provide food resources to downstream communities. In addition to material
transport and biological connectivity, ephemeral, intermittent, and perennial flows influence
fundamental biogeochemical processes by connecting channels and shallow groundwater with
other landscape elements. Chemical, physical, and biological connections between streams and
downstream waters interact via integrative processes such as nutrient spiraling. This occurs
when stream communities assimilate and chemically transform large quantities of nitrogen and
other nutrients that otherwise would be transported directly downstream, thereby increasing
nutrient loads and associated impairments due to excess nutrients in downstream waters. Science
Report at ES-2.
Conclusion 2: Riparian/Floodplain Wetlands and Open Waters
The scientific literature clearly shows that wetlands and open waters in riparian areas and
floodplains are chemically, physically, and biologically integrated with rivers via functions that
improve downstream water quality, including the temporary storage and deposition of channelforming sediment and woody debris, temporary storage of local groundwater that supports
baseflow in rivers, and transformation and transport of stored organic matter. Riparian/floodplain
wetlands and open waters improve water quality through the assimilation, transformation, and
sequestration of pollutants, including excess nutrients and chemical contaminants such as
pesticides and metals that can degrade downstream water integrity. In addition to providing
effective buffers to protect downstream waters from point source and nonpoint source pollution,
these systems form integral components of river food webs, providing nursery habitat for
breeding fish and amphibians, colonization opportunities for stream invertebrates, and
maturation habitat for stream insects. Lateral expansion and contraction of the river in its
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floodplain result in an exchange of organic matter and organisms, including fish populations that
are adapted to use floodplain habitats for feeding and spawning during high water, that are
critical to river ecosystem function. Riparian/floodplain wetlands and open waters also affect the
integrity of downstream waters by subsequently releasing (desynchronizing) floodwaters and
retaining large volumes of stormwater, sediment, and contaminants in runoff that could
otherwise negatively affect the condition or function of downstream waters. Science Report at
ES-2 to ES-3.
Conclusion 3: Non-floodplain Wetlands and Open Waters
Wetlands and open waters in non-floodplain landscape settings (non-floodplain
wetlands) provide numerous functions that benefit downstream water integrity. These functions
include storage of floodwater; recharge of groundwater that sustains river baseflow; retention
and transformation of nutrients, metals, and pesticides; export of organisms or seeds to
downstream waters; and habitats needed for stream species. This diverse group of wetlands (e.g.,
many Prairie potholes or vernal pools) can be connected to downstream waters through surface
water, shallow subsurface water, and groundwater flows, and through biological and chemical
connections.
In general, connectivity of non-floodplain wetlands occurs along a gradient, and can be
described in terms of the frequency, duration, magnitude, timing, and rate of change of water,
material, and biotic fluxes to downstream waters. These descriptors are influenced by climate,
geology, and terrain, which interact with factors such as the magnitudes of the various functions
within wetlands (e.g., amount of water storage or carbon export) and their proximity to
downstream waters to determine where wetlands occur along the connectivity gradient. At one
end of this gradient, the functions of non-floodplain wetlands clearly affect the condition of
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downstream waters if a visible (e.g., channelized) surface water or a regular shallow subsurfacewater connection to the river network is present. For non-floodplain wetlands lacking a
channelized surface or regular shallow subsurface connection (i.e., those at intermediate points
along the gradient of connectivity), generalizations about their specific effects on downstream
waters from the available literature are difficult because information on both function and
connectivity is needed. Science Report at ES-3.
Conclusion 4: Degrees and Determinants of Connectivity
Connectivity of streams and wetlands to downstream waters occurs along a gradient that
can be described in terms of the frequency, duration, magnitude, timing, and rate of change of
water, material, and biotic fluxes to downstream waters. These terms, which we refer to
collectively as connectivity descriptors, characterize the range over which streams and wetlands
vary and shift along the connectivity gradient in response to changes in natural and
anthropogenic factors and, when considered in a watershed context, can be used to predict
probable effects of different degrees of connectivity over time. The evidence unequivocally
demonstrates that the stream channels and riparian/floodplain wetlands or open waters that
together form river networks are clearly connected to downstream waters in ways that
profoundly influence downstream water integrity. The connectivity and effects of non-floodplain
wetlands and open waters are more variable and thus more difficult to address solely from
evidence available in peer-reviewed studies. Science Report at ES-3 to ES-4.
Conclusion 5: Cumulative Effects
The incremental effects of individual streams and wetlands are cumulative across entire
watersheds, and therefore, must be evaluated in context with other streams and wetlands.
Downstream waters are the time-integrated result of all waters contributing to them. For
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example, the amount of water or biomass contributed by a specific ephemeral stream in a given
year might be small, but the aggregate contribution of that stream over multiple years, or by all
ephemeral streams draining that watershed in a given year or over multiple years, can have
substantial consequences on the integrity of the downstream waters. Similarly, the downstream
effect of a single event, such as pollutant discharge into a single stream or wetland, might be
negligible but the cumulative effect of multiple discharges could degrade the integrity of
downstream waters.
When considering the effect of an individual stream or wetland, all contributions and
functions of that stream or wetland should be evaluated cumulatively. For example, the same
stream transports water, removes excess nutrients, transports pollutants, mitigates flooding, and
provides refuge for fish when conditions downstream are unfavorable; if any of these functions is
ignored, the overall effect of that stream would be underestimated. Science Report at ES-5 to
ES-6.
SAB Review of the Proposed Rule

In addition to its peer review of the draft Science Report, in a separate effort the SAB
also reviewed the adequacy of the scientific and technical basis of the proposed rule and
provided its advice and comments on the proposal in September 2014. 9 The same SAB Panel
that reviewed the draft Science Report met via two public teleconferences in August 2014 to
discuss the scientific and technical basis of the proposed rule. The Panel submitted comments to
U.S. EPA. 2014. SAB Consideration of the Adequacy of the Scientific and Technical Basis of
the EPAs Proposed Rule titled Definition of Waters of the United States under the Clean Water
Act. EPA-SAB-14-007, U.S. Environmental Protection Agency, Washington, DC. (SAB
2014b.)
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the Chair of the chartered SAB. A work group of chartered SAB members considered comments
provided by panel members, agency representatives, and the public on the adequacy of the
science informing the rule. This work group then led the September 2014 public teleconference
discussion of the chartered SAB. The public had an opportunity to submit oral or written
comments during these two public meetings. The SABs final letter to the EPA Administrator
can be found on the SAB website and in the docket for this rule.
The SAB found that the available science provides an adequate scientific basis for the
key components of the proposed rule. The SAB noted that although water bodies differ in degree
of connectivity that affects the extent of influence they exert on downstream waters (i.e., they
exist on a connectivity gradient), the available science supports the conclusion that the types of
water bodies identified as waters of the United States in the proposed rule exert strong
influence on the chemical, physical, and biological integrity of downstream waters. In particular,
the SAB expressed support for the proposed rules inclusion of tributaries and adjacent waters
as categorical waters of the United States and the inclusion of other waters on a case-specific
basis, though noting that certain other waters can be determined as a subcategory to be
similarly situated.
Regarding tributaries, the SAB found, [t]here is strong scientific evidence to support the
EPAs proposal to include all tributaries within the jurisdiction of the Clean Water Act.
Tributaries, as a group, exert strong influence on the physical, chemical, and biological integrity
of downstream waters, even though the degree of connectivity is a function of variation in the
frequency, duration, magnitude, predictability, and consequences of physical, chemical, and
biological processes. The Board advised EPA to reconsider the definition of tributaries because
not all tributaries have ordinary high water marks (e.g., ephemeral streams with arid and semiPage 42 of 297
arid environments or in low gradient landscapes where the flow of water is unlikely to cause an
ordinary high water mark). The SAB also advised EPA to consider changing the wording in the
definition to bed, bank, and other evidence of flow. SAB 2014b at 2. The agencies did not
make this change because this recommendation seemed to suggest that any hydrologic
connection is sufficient for CWA jurisdiction. The definition of tributary in the rule better
identifies tributaries that have a significant nexus to downstream traditional navigable waters,
interstate waters, or the territorial seas. In addition, the SAB suggested that EPA reconsider
whether flow-through lentic systems should be included as adjacent waters and wetlands,
rather than as tributaries.
Regarding adjacent waters and wetlands, the SAB stated, [t]he available science
supports the EPAs proposal to include adjacent waters and wetlands as a waters of the United
States. because [they] have a strong influence on the physical, chemical, and biological
integrity of navigable waters. Id. In particular, the SAB noted, the available science supports
defining adjacency or determination of adjacency on the basis of functional relationships, rather
than solely on the basis of geographical proximity or distance to jurisdictional waters. Id. at 23. The agencies have determined which waters are adjacent, and thus jurisdictional under the
rule, based on both functional relationships and proximity because those factors identify the
waters that have a strong influence on the chemical, physical, or biological integrity of traditional
navigable waters, interstate waters, or the territorial seas. Section C. and IV.F below. The
agencies determination is informed by the science, and consideration of proximity is reasonable
in interpreting the scope of adjacency.
In the evaluation of other waters, the SAB found that scientific literature has
established that other waters can influence downstream waters, particularly when considered in
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aggregate. Id. at 3. The SAB thus found it appropriate to define other waters as waters of the
United States on a case-by-case basis, either alone or in combination with similarly situated
waters in the same region. Id. The SAB found that distance could not be the sole indicator used
to evaluate the connection of other waters to jurisdictional waters. The agencies
identification of the areas within which a water is assessed on a case-specific basis for a
significant nexus is informed by the science and the agencies experience and technical expertise,
and consideration of proximity is reasonable in interpreting the scope of the statute. The SAB
also expressed support for language in one of the options discussed in the preamble to the
proposed rule. Specifically, the SAB stated there is also adequate scientific evidence to support
a determination that certain subcategories and types of other waters in particular regions of the
United States (e.g., Carolina and Delmarva Bays, Texas coastal prairie wetlands, prairie
potholes, pocosins, western vernal pools) are similarly situated (i.e., they have a similar influence
on the chemical, physical, and biological integrity of downstream waters and are similarly
situated on the landscape) and thus could be considered waters of the United States. Id. The
Board noted that other sets of wetlands could be identified as similarly situated as the science
continues to develop and that science does not support excluding groups of other waters or
subcategories thereof from jurisdiction.
The exclusions paragraph of the proposed rule generated the most comments from the
SAB. The SAB noted, [t]he Clean Water Act exclusions of groundwater and certain other
exclusions listed in the proposed rule and the current regulation do not have scientific
justification. Id. With regard to ditches, the Board found that there is a lack of scientific
knowledge to determine whether ditches should be categorically excluded. For example, some
ditches that would be excluded in the Midwest may drain Cowardin wetlands and may provide
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certain ecosystem services, while gullies, rills, and non-wetland swales can be important
conduits for moving water between jurisdictional waters. The SAB also noted that artificial lakes
or ponds, or reflection pools, can be directly connected to jurisdictional waters via either shallow
or deep groundwater. The SAB also recommended that the agencies clarify in the preamble to
the final rule that significant nexus is a legal term, not a scientific one.
C.
Significant Nexus Conclusions
As noted earlier, the agencies interpret the scope of waters of the United States
protected under the CWA based on the information and conclusions in the Science Report, other
relevant scientific literature, the Technical Support Document that provides additional legal and
scientific discussion for issues raised in this rule, the relevant Supreme Court decisions, the
agencies technical expertise and experience, and the objectives and requirements of the CWA.
In light of this information, the agencies made scientifically and technically informed judgments
about the nexus between the relevant waters and the significance of that nexus and conclude that
tributaries and adjacent waters, each as defined by the rule, have a significant nexus such
that they are waters of the United States and no additional analysis is required. The agencies
also determined that additional waters may, on a case-specific basis, have a significant nexus to
traditional navigable waters, interstate waters, and the territorial seas, either alone or in
combination with similarly situated waters. The agencies interpretation of the scope of waters
of the United States is informed by the Science Report and the review and comments of the
SAB. The rule reflects the judgment of the agencies in balancing the science, the agencies
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expertise, and the regulatory goals of providing clarity to the public while protecting the
environment and public health, consistent with the law.
Since the Rapanos decision, the agencies have gained extensive experience making
significant nexus determinations, and that experience and expertise has informed the judgment of
the agencies as reflected in the provisions of the rule. The agencies, most often the Corps, have
made more than 400,000 CWA jurisdictional determinations since 2008. Of those, more than
120,000 are case-specific significant nexus determinations. The agencies made determinations
in every state in the country, from the arid West to the tropics of Hawaii, from the Appalachian
Mountains in the East to the lush forests of the Northwest. With field staff located in 38 Corps
District offices and 10 EPA regional offices, the agencies have almost a decade of nationwide
experience in making significant nexus determinations. These individual jurisdictional
determinations have been made for waters ranging from an intermittent stream that provides flow
to a drinking water source, to a group of floodplain wetlands in North Dakota that provide
important protection from floodwaters to downstream communities alongside the Red River, to
headwater mountain streams that provide high quality water that supplies baseflow and reduces
the harmful concentrations of pollutants in the main part of the river below. Through this
experience, the agencies developed wide-ranging technical expertise in assessing the hydrologic
flowpaths along which water and materials are transported and transformed that determine the
degree of chemical, physical, or biological connectivity, as well as the variations in climate,
geology, and terrain within and among watersheds and over time that affect the functions (such
as the removal or transformation of pollutants) performed by streams and wetlands for
downstream traditional navigable waters, interstate waters or the territorial seas.
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The agencies utilize many tools and many sources of information to help make
jurisdictional determinations, including U.S. Geological Survey (USGS) and state and local
topographic maps, aerial photography, soil surveys, watershed studies, scientific literature and
references, and field work. For example, USGS and state and local stream maps and datasets,
aerial photography, gage data, watershed assessments, monitoring data, and field observations
are often used to help assess the contributions of flow of tributary streams, including intermittent
and ephemeral streams, to downstream traditional navigable waters, interstate waters or the
territorial seas. Similarly, floodplain and topographic maps of federal, state and local agencies,
modeling tools, and field observations can be used to assess how wetlands are trapping
floodwaters that might otherwise affect downstream waters. Further, the agencies utilize the
large body of scientific literature regarding the functions of tributaries, including tributaries with
ephemeral, intermittent and perennial flow and of wetlands and open waters to inform their
evaluations of significant nexus. In addition, the agencies have experience and expertise for
decades prior to and since the SWANCC and Rapanos decisions with making jurisdictional
determinations, and consider hydrology, ordinary high water mark, biota, and other technical
factors in implementing Clean Water Act programs. This immersion in the science along with
the practical expertise developed through case-specific determinations across the country and in
diverse settings is reflected in the agencies conclusions with respect to waters that have a
significant nexus, as well as where the agencies have drawn boundaries demarking where
waters of the United States end.
1.
Scope of Significant Nexus Analysis
Under the significant nexus standard, waters possess the requisite significant nexus if
they either alone or in combination with similarly situated [wet]lands in the region, significantly
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affect the chemical, physical, and biological integrity of other covered waters more readily
understood as navigable. Rapanos at 780. Several terms in this standard were not defined. In
this rule the agencies interpret these terms and the scope of waters of the United States based
on the goals, objectives, and policies of the statute, the scientific literature, the Supreme Court
opinions, and the agencies technical expertise and experience. Therefore, for purposes of a
significant nexus analysis, the agencies have determined (1) which waters are similarly
situated, and thus should be analyzed in combination, in (2) the region, for purposes of a
significant nexus analysis, and (3) the types of functions that should be analyzed to determine if
waters significantly affect the chemical, physical, or biological integrity of traditional navigable
waters, interstate waters, or the territorial seas. These determinations underpin many of the key
elements of the rule and are reflected in the definition of significant nexus in the rule.
a. Similarly situated waters
As reflected in the rules definition of significant nexus, the agencies determined that it
is reasonable to consider waters as similarly situated where they function alike and are
sufficiently close to function together in affecting the nearest traditional navigable water,
interstate water, or the territorial sea. Since the focus of the significant nexus standard is on
protecting and restoring the chemical, physical, and biological integrity of the nations waters,
the agencies interpret the phrase similarly situated in terms of whether particular waters are
providing common, or similar, functions for downstream waters such that it is reasonable to
consider their effect together. Regarding covered tributaries and covered adjacent waters, the
agencies define each water type such that the functions provided are similar and the waters are
situated so as to provide those functions together to affect downstream waters.
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The science demonstrates that covered tributaries provide many common vital functions
important to the chemical, physical, and biological integrity of downstream waters, regardless of
the size of the tributaries. The science also supports the conclusion that sufficient volume,
duration, and frequency of flow are required to create a bed and banks and ordinary high water
mark. The science also supports the conclusion that tributaries function together to affect
downstream waters. The agencies conclude that covered tributaries with a bed and banks and
ordinary high water mark are similarly situated for purposes of the agencies significant nexus
analysis.
For covered adjacent waters, the science demonstrates that these waters provide many
similar vital functions to downstream waters, and the agencies defined adjacent waters with
distance boundaries to ensure that the waters are providing similar functions to downstream
waters and that the waters are located comparably in the region such that the agencies
reasonably judged them to be similarly situated.
For waters for which a case-specific significant nexus determination is required the
agencies have determined that some waters in specific regions are similarly situated; for other
specified waters, the determination of whether there are any other waters providing similar
functions in a similar situation in the region must be made as part of a case-specific
determination. See section IV.H.
Assessing the functions of identified waters in combination is consistent not only with
Justice Kennedys significant nexus standard, but with the science. Scientists routinely combine
the effects of groups of waters, aggregating the known effect of one water with those of
ecologically similar waters in a specific geographic area, or to a certain scale. This is because
the chemical, physical, and biological integrity of downstream waters is directly related to the
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aggregate contribution of upstream waters that flow into them, including any tributaries and
connected wetlands. As a result, the scientific literature and the Science Report consistently
document that the health of larger downstream waters is directly related to the aggregate health
of waters located upstream, including waters such as wetlands that may not be hydrologically
connected but function together to ameliorate the potential impacts of flooding and pollutant
contamination from affecting downstream waters. See Technical Support Document.
For example, excess nutrients discharged into small tributary streams in the aggregate can
cause algal blooms downstream that reduce dissolved oxygen levels and increase turbidity in
traditional navigable waters, interstate waters, and the territorial seas. Water low in dissolved
oxygen cannot support aquatic life. This widely-recognized phenomenon, known as hypoxia, has
impacted commercial and recreational fisheries in the northern Gulf of Mexico. In this instance,
the cumulative effects of nutrient export from the many small headwater streams of the
Mississippi River have resulted in large-scale ecological and economically harmful impacts
hundreds of miles downstream. See Technical Support Document.
In review of the scientific and technical adequacy of the rule, the SAB panel members
generally agreed that aggregating similarly situated waters is scientifically justified, given that
the combined effects of these waters on downstream waters are often only measurable in
aggregate. 10 As stated in section III.B. above, one of the main conclusions of the Science
Report is that the incremental contributions of individual streams and wetlands are cumulative
across entire watersheds, and their effects on downstream waters should be evaluated within the
10
September 2, 2014. Memorandum from Dr. Amanda Rodewald to Dr. David Allen. Comments
to the chartered SAB on the Adequacy of the Scientific and Technical Basis of the EPAs
Proposed Rule titled Definition of Waters of the United States under the Clean Water Act.
(SAB 2014c.)
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context of other streams and wetlands in that watershed. For example, the Science Report finds,
[t]he amount of nutrients removed by any one stream over multiple years or by all headwater
streams in a watershed in a given year can have substantial consequences for downstream
waters. Science Report at 1-11. Cumulative effects of streams, wetlands, and open waters across
a watershed must be considered because [t]he downstream consequences (e.g., the amount and
quality of materials that eventually reach a river) are determined by the aggregate effect of
contributions and sequential alterations that begin at the source waters and function along
continuous flowpaths to the watershed outlet. Id. at 1-19.
The agencies conclude that it is appropriate to assess the effects of waters in combination
based on the similarity of the functions they provide to the downstream water and their location
in the watershed. This is consistent with the science and effectively meets the goals of the CWA.
b.
In the region
Since Justice Kennedy did not define the region, the agencies determined that the
single point of entry watershed is a reasonable and technically appropriate scale for identifying
in the region for purposes of the significant nexus standard. A single point of entry watershed
is the drainage basin within whose boundaries all precipitation ultimately flows to the nearest
single traditional navigable water, interstate water, or the territorial sea. The agencies
determined that because the movement of water from watershed drainage basins to coastal
waters, river networks, and lakes shapes the development and function of these systems in a way
that is critical to their long-term health, the watershed is a reasonable and technically appropriate
way to identify the scope of waters that together may have an effect on the chemical, physical, or
biological integrity of a particular traditional navigable water, interstate water, or territorial sea.
The watershed includes all streams, wetlands, lakes, and open waters within its boundaries.
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Using the watershed that flows to the nearest single traditional navigable water, interstate water,
or territorial sea is consistent with court decisions that these waters are the ultimate focus of
CWA protections. Using the single point of entry watershed ensures that any analysis of
significant nexus is appropriately connected to these touchstone waters.
Because the movement of water from watershed drainage basins to coastal waters, river
networks, and lakes shapes the development and function of these systems in a way that is
critical to their integrity, using a watershed as the framework for conducting significant nexus
evaluations is scientifically supportable. Watersheds are generally regarded as the most
appropriate spatial unit for water resource management. Anthropogenic actions and natural
events can have widespread effects within the watershed that collectively impact the integrity
and quality of the relevant traditional navigable water, interstate water, or the territorial sea. The
functions of the contributing waters are inextricably linked and have a cumulative effect on the
integrity of the downstream traditional navigable water, interstate water, or the territorial sea. For
these reasons, it is more appropriate to conduct a significant nexus analysis at the watershed
scale than to focus on a specific site, such as an individual stream segment. See proposal
Appendix A, Scientific Analysis, 79 FR 22246, April 21, 2014, Science Report, and Technical
Support Document.
Concluding that the watershed is the reasonable and appropriate region for purposes of a
significant nexus analysis is also consistent with the agencies longstanding practice and
experience. To restore or maintain the health of the downstream affected water, the agencies
standard practice is to evaluate the condition of the waters that are in the contributing watersheds
and to develop a plan to address the issues of concern. The Corps has used watershed framework
approaches for water sources, for navigation approaches for more than 100 years, and in the
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regulatory program since its inception. Also, using a watershed framework is consistent with
more than two decades of practice by EPA and many other governmental, academic, and
additional entities that recognize that a watershed approach is the most effective framework to
address water resource challenges. Finally, the watershed that drains to the nearest (i.e., first
downstream) traditional navigable water, interstate water, or the territorial seas is likely to be of
a size commonly understood as a region.
In light of the scientific literature, the longstanding approach of the agencies
implementation of the CWA, and the statutory goals underpinning Justice Kennedys significant
nexus framework, the watershed draining to the nearest traditional navigable water, interstate
water, or the territorial sea, is the appropriate region for a significant nexus analysis. See the
proposed rule preamble and Technical Support Document.
c. Significantly affect chemical, physical, or biological integrity
The agencies definition of the term significant nexus in the rule is consistent with
language in Riverside Bayview, SWANCC, and Rapanos, and with the goals, objectives, and
policies of the CWA. The definition reflects that not all waters have a requisite connection to
traditional navigable waters, interstate waters, or the territorial seas sufficient to be determined
jurisdictional. Justice Kennedy was clear that to be covered, waters must significantly affect the
chemical, physical, or biological integrity of a downstream navigable water and that the requisite
nexus must be more than speculative or insubstantial, Rapanos, at 780. The agencies define
significant nexus in precisely those terms. Under the rule a significant nexus is established by
a showing of a significant chemical, physical, or biological effect. In characterizing the
significant nexus standard, Justice Kennedy stated: [t]he required nexus must be assessed in
terms of the statutes goals and purposes. Congress enacted the [CWA] to restore and maintain
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the chemical, physical, and biological integrity of the Nations waters . . . . 547 U.S. at 779. It
is clear that Congress intended the CWA to restore and maintain all three forms of integrity,
Section 101(a), so if any one is compromised then that is contrary to the statutes stated
objective. It would subvert the objective if the CWA only protected waters upon a showing that
they had effects on every attribute of the integrity of a traditional navigable water, interstate
water, or the territorial sea.
In the rules definition of significant nexus, the agencies identify the functions that
waters provide that can significantly affect the chemical, physical, or biological integrity of
traditional navigable waters, interstate waters and the territorial seas. In identifying the functions
to be considered the agencies were informed by the goals of the statute and the available science.
Among the means to achieve the CWAs objective to restore and maintain the chemical,
physical, and biological integrity of the Nations waters, Congress established an interim national
goal to achieve wherever possible water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.
Section 101(a)(2). Functions to be considered for the purposes of determining significant nexus
are sediment trapping; nutrient recycling; pollutant trapping, transformation, filtering, and
transport; retention and attenuation of floodwaters; runoff storage; contribution of flow; export of
organic matter; export of food resources; and provision of life-cycle dependent aquatic habitat
(such as foraging, feeding, nesting, breeding, spawning, and use as a nursery area) for species
located in traditional navigable waters, interstate waters, or the territorial seas. The effect of an
upstream water can be significant even when a water, alone or in combination, is providing a
subset, or even just one, of the functions listed.
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Science demonstrates that these aquatic functions provided by smaller streams, ponds,
wetlands and other waters are important for protecting the chemical, physical, and biological
integrity of downstream traditional navigable waters, interstate waters, and the territorial seas.
For example, States identify sediment and nutrients as the primary contaminants in the nations
waters. Sediment storage and export via streams to downstream waters is critical for maintaining
the river network, including the formation of channel features. Although sediment is essential to
river systems, excess sediment can impair ecological integrity by filling interstitial spaces,
reducing channel capacity, blocking sunlight transmission through the water column, and
increasing contaminant and nutrient concentrations. Streams and wetlands can prevent excess
deposits of sediment downstream and reduce pollutant concentrations in downstream waters.
Thus the function of trapping of excess sediment, along with export of sediment, have a
significant effect on the chemical, physical, and biological integrity of downstream waters.
Nutrient recycling results in the uptake and transformation of large quantities of nitrogen
and other nutrients that otherwise would be transported directly downstream, thereby decreasing
nutrient loads and associated impairments due to excess nutrients in downstream waters.
Streams, wetlands and open waters improve water quality through the assimilation,
transformation, or sequestration of pollutants, including excess nutrients and chemical
contaminants such as pesticides and metals that can degrade downstream water integrity.
Nutrient transport exports nutrients downstream and can degrade water quality and lead to
stream impairments. Nutrients are necessary to support aquatic life, but excess nutrients lead to
excessive plant growth and hypoxia, in which over-enrichment causes dissolved oxygen
concentrations to fall below the level necessary to sustain most aquatic animal life in the
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downstream waters. Nutrient recycling, retention, and export can significantly affect downstream
chemical integrity by impacting downstream water quality.
The contribution of flow downstream is an important role, as upstream waters can be a
cumulative source of the majority of the total mean annual flow to bigger downstream rivers and
waters, including via the recharge of baseflow. Streams, wetlands, and open waters contribute
surface and subsurface water downstream, and are the dominant sources of water in most rivers.
Contribution of flow can significantly affect the physical integrity of downstream waters, helping
to sustain the volume of water in larger waters.
Small streams and wetlands are particularly effective at retaining and attenuating
floodwaters. By subsequently releasing (desynchronizing) floodwaters and retaining large
volumes of stormwater that could otherwise negatively affect the condition or function of
downstream waters, streams and adjacent wetlands and open waters affect the physical integrity
of downstream traditional navigable waters, interstate waters, or the territorial seas. This
function can reduce flood peaks downstream and can also maintain downstream river baseflows
by recharging alluvial aquifers.
Streams, wetlands, and open waters supply downstream waters with dissolved and
particulate organic matter (e.g., leaves, wood), which support biological activity throughout the
river network. In addition to organic matter, streams, wetlands, and open waters can also export
other food resources downstream, such as aquatic insects that are the food source for fish in
downstream waters. The export of organic matter and food resources downstream is important to
maintaining the food webs and thus the biological integrity of traditional navigable waters,
interstate waters, and the territorial seas.
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Streams, wetlands, and open waters provide life-cycle dependent aquatic habitat (such as
foraging, feeding, nesting, breeding, spawning, and use as a nursery area) for species located in
traditional navigable waters, interstate waters, or the territorial seas. Many species require
different habitats for different resources (e.g., food, spawning habitat, overwintering habitat), and
thus move throughout the river network over their life-cycles. For example, headwater streams
can provide refuge habitat under adverse conditions, enabling fish to persist and recolonize
downstream areas once conditions have improved. These upstream systems form integral
components of downstream food webs, providing nursery habitat for breeding fish and
amphibians, colonization opportunities for stream invertebrates, and maturation habitat for
stream insects, including for species that are critical to downstream ecosystem function. The
provision of life-cycle dependent aquatic habitat for species located in downstream waters
significantly affects the biological integrity of those downstream waters.
Tributaries, adjacent wetlands, and open waters can perform multiple functions, including
functions that change depending upon the season. For example, the same stream can contribute
flow when evapotranspiration is low and can retain water when evapotranspiration is high. These
functions, particularly when considered in aggregate with the functions of similarly situated
waters in the region, can significantly affect the chemical, physical, or biological integrity of a
traditional navigable water, interstate water, or the territorial seas. When considering the effect of
an individual stream, wetland, or open water, all contributions and functions that the water
provides should be evaluated cumulatively. For example, the same wetland retains sediment,
removes excess nutrients, mitigates flooding, and provides habitat for amphibians that also live
downstream; if any of these functions is ignored, the overall effect of that wetland would be
underestimated. It is important to note, however, that a water or wetland can provide just one
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function that may significantly affect the chemical, physical or biological integrity of the
downstream water.
2. Categories of Waters Determined to Have a Significant Nexus

In this rule, the agencies determine that: (1) covered tributaries, in combination with
other covered tributaries located in a watershed that drains to a traditional navigable water,
interstate water, or the territorial seas, significantly affect the chemical, physical, and biological
integrity of that water; and (2) covered adjacent waters, in combination with other covered
adjacent waters located in a watershed that drains to a traditional navigable water, interstate
water, or the territorial seas, significantly affect the chemical, physical, and biological integrity
of that water.
a. Covered tributaries
The agencies determine based on their scientific and technical expertise that waters
meeting the definition of tributary in a single point of entry watershed are similarly situated
and have a significant nexus because they significantly affect the chemical, physical, or
biological integrity of traditional navigable waters, interstate waters, and the territorial seas. As
such, it is appropriate to conclude covered tributaries as a category are waters of the United
States. See Technical Support Document. The agencies limited the tributaries that are waters
of the United States to those that have both a bed and banks and another indicator of ordinary
high water mark. That limitation served as a reasonable basis to consider covered tributaries
similarly situated because those physical characteristics indicated sufficient flow that the covered
tributaries are performing similar functions and located such that they are working together in the
region to provide those functions to the nearest traditional navigable water, interstate water, or
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the territorial seas. Justice Kennedy noted that the requirement of a perceptible ordinary high
water mark for tributaries, a measure that had been used by the Corps, may well provide a
reasonable measure of whether specific minor tributaries bear a sufficient nexus with other
regulated waters to constitute navigable waters under the Act. 547 U.S. at 781, see also id. at
761. The science supports this.
The agencies analyzed the Science Report and other scientific literature to determine
whether tributaries to traditional navigable waters, interstate waters, or the territorial seas have a
significant nexus to constitute waters of the United States under the Act such that it is
reasonable to assert CWA jurisdiction over all such tributaries by rule. Covered tributaries have
a significant impact on the chemical, physical, or biological integrity of waters into which they
eventually flow for CWA purposes, traditional navigable waters, interstate waters, and the
territorial seas. The great majority of covered tributaries are headwater streams, and whether they
are perennial, intermittent, or ephemeral, they play an important role in the transport of water,
sediments, organic matter, nutrients, and organisms to downstream waters. Covered tributaries
serve to store water, thereby reducing flooding; provide biogeochemical functions that help
maintain water quality; trap and transport sediments; transport, store and modify pollutants;
provide habitat for plants and animals; and sustain the biological productivity of downstream
rivers, lakes, and estuaries. Such waters have these significant effects whether they are natural,
modified, or constructed.
Covered tributaries significantly affect the chemical integrity of traditional navigable
waters, interstate waters, and the territorial seas. Covered tributaries influence the chemical
composition of downstream waters, through the transport and removal of chemical elements and
compounds, such as nutrients, ions, organic matter and pollutants. Ecosystem processes in
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covered tributaries transform, remove, and transport these substances to downstream waters. In
turn, these chemical compounds can influence water quality, sediment deposition, nutrient
availability, and biotic functions in rivers. Because water flow transports chemical substances
downstream, chemical effects are closely related to hydrological connectivity. Within covered
tributaries, there are processes that occur that transform and export nutrients and carbon to
downstream waters, serving important source functions that influence the chemical integrity of
downstream waters. Organic carbon, in both dissolved and particulate forms, exported from
covered tributaries is consumed by downstream organisms. The organic carbon that is exported
downstream thus supports biological activity throughout the river network.
Covered tributaries act as both sinks and sources of chemical substances, further affecting
the chemical integrity of traditional navigable waters, interstate waters, and the territorial seas.
Covered tributaries provide sink functions by trapping chemicals through absorption to
sediments in the stream substrate (e.g., phosphorous adsorption to clay particles). They provide
source functions by transporting chemicals to downstream traditional navigable waters, interstate
waters, and the territorial seas as chemicals dissolved in the waters or as chemicals attached to
suspended sediments.
Covered tributaries significantly affect the physical integrity of traditional navigable
waters, interstate waters, and the territorial seas. Physical connections between covered
tributaries and traditional navigable waters, interstate waters, and the territorial seas result from
the hydrologic transport from covered tributaries to downstream waters of numerous materials,
including water, sediment and organic matter such as leaves and wood. This transport affects the
physical characteristics of downstream waters. Covered tributaries, even when seasonally dry,
are the dominant source of water in most rivers, rather than direct precipitation or groundwater
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input to main stem river segments. One of the primary functions of covered tributaries is
transporting sediment to downstream waters. Covered tributaries, particularly headwaters, shape
and maintain river channels by accumulating and gradually or episodically releasing sediment
and large woody debris into river channels. These effects occur even when the covered
tributaries flow infrequently (such as ephemeral covered tributaries), and even when the covered
tributaries are great distances from the traditional navigable water, interstate water, or the
territorial sea (such as some headwater covered tributaries).
Covered tributaries significantly affect the biological integrity of traditional navigable
waters, interstate waters, and the territorial seas. Covered tributaries, including intermittent and
ephemeral streams, are critical in the life-cycles of many organisms capable of moving
throughout river networks. In fact, many organisms, such as anadromous salmon, have complex
life-cycles which involve migration through the river network, from headwaters to downstream
rivers and oceans and back, over the course of their lives. In addition to providing critical habitat
for complex life-cycle completion, covered tributaries provide refuge from predators and adverse
physical conditions in rivers, and are reservoirs of genetic- and species-level diversity. Covered
tributaries contribute materials to downstream food networks and supporting populations for
aquatic species, including economically important species such as salmon. These effects occur
even when the covered tributaries flow infrequently (such as ephemeral covered tributaries), and
even when the covered tributaries are large distances from the traditional navigable waters,
interstate waters, and the territorial seas (such as some headwater covered tributaries).
Similarly, modified and constructed tributaries perform the same functions as natural
tributaries, especially the conveyance of water that carries nutrients, pollutants, and other
constituents, both good and bad, to traditional navigable waters, interstate waters, and the
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territorial seas. Modified and constructed covered tributaries also provide corridors for
movement of organisms between headwaters and traditional navigable waters, interstate waters,
and the territorial seas. The important effect and thus the significant nexus between a covered
tributary and a traditional navigable water, interstate water, and the territorial sea is not broken
where the covered tributary flows through a culvert or other structure. The scientific literature
recognizes that features that convey water, whether they are natural, modified, or constructed,
provide substantial connectivity between streams and downstream waters. For example, ditches
that meet the definition of tributary and are not excluded quickly move water downstream to
traditional navigable waters, interstate waters, and the territorial seas due to their often
straightened and channelized nature, transporting downstream sediment, nutrients, and other
materials.
The CWA regulates and controls pollution at its source, in part because most pollutants
do not remain at the site of the discharge, but instead flow and are washed downstream through
the tributary system to endanger drinking water supplies, fisheries, and recreation areas. These
fundamental facts about the movement of pollutants and the interconnected nature of the
tributary system demonstrate why covered tributaries of traditional navigable waters, interstate
waters, and the territorial seas, alone or in combination with other covered tributaries in a
watershed, have a significant nexus with those downstream waters. Thus, in the rule the
agencies assert CWA jurisdiction over all covered tributaries as defined. Those covered
tributaries are waters of the United States without the need for further analysis.
b. Covered adjacent waters
Based on the agencies review of the scientific literature and the law, the agencies
determine that covered adjacent waters, as defined, have a significant nexus and are waters of
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the United States. The scientific literature, including the Science Report, consistently supports
the conclusion that covered adjacent waters provide similar functions and work together to
maintain the chemical, physical, and biological integrity of the downstream traditional navigable
waters, interstate waters, and the territorial seas because of their hydrological and ecological
connections to, and interactions with, those waters. Science demonstrates that this functional
connectivity is particularly evident where covered adjacent waters are located within the
floodplain of the traditional navigable water, interstate water, the territorial seas, covered
tributary, or impoundment to which they are adjacent or are otherwise sufficiently proximate to
waters with no floodplain, such as lakes and ponds. Location within the floodplain and
proximity ensure that the aquatic functions performed by covered adjacent waters are effectively
and consistently provided to downstream waters. See Technical Support Document.
The agencies conclude that all waters meeting the definition of adjacent in the rule are
similarly situated for purposes of analyzing whether they have a significant nexus to a traditional
navigable water, interstate water, or the territorial sea. Based on a review of the scientific
literature, the agencies conclude that these bordering, contiguous, or neighboring waters provide
similar functions and function together to significantly affect the chemical, physical, or
biological integrity of traditional navigable waters, interstate waters, or the territorial seas.
Further, because the definition of adjacent considers both the functional relationships and the
proximity of the waters (i.e., those that are located near traditional navigable waters, interstate
waters, the territorial seas, impoundments, and covered tributaries), interpreting the term
similarly situated to include all covered adjacent waters, as defined in the rule, is informed by
the science and is a reasonable interpretation of the scope of the statute. The geographic
proximity of an adjacent water relative to the traditional navigable waters, interstate waters,
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the territorial seas, impoundments, and covered tributaries is indicative of the relationship to it,
with many of its defining characteristics resulting from the movement of materials and energy
between the categories of waters. The scientific literature supports that waters, including
wetlands, ponds, lakes, oxbow lakes, and similar waters, that are adjacent, as defined in the
rule, to traditional navigable waters, interstate waters, the territorial seas, impoundments, and
covered tributaries, are integral parts of stream networks because of their ecological functions
and how they interact with each other, and with downstream traditional navigable waters,
interstate waters, or the territorial seas.
Covered adjacent waters function together to maintain the chemical, physical, or
biological health of traditional navigable waters, interstate waters, and the territorial seas to
which they are directly adjacent or to which they are connected by the tributary system. This
functional interaction can result from hydrologic connections or because covered adjacent waters
can act as water storage areas holding damaging floodwaters or filtering harmful pollutants.
These chemical, physical, and biological connections affect the integrity of downstream
traditional navigable waters, interstate waters, and the territorial seas through the temporary
storage and deposition of channel-forming sediment and woody debris, temporary storage of
local groundwater sources of baseflow for downstream waters and their tributaries, and
transformation and transport of organic matter. Covered adjacent waters improve water quality
through the assimilation, transformation, or sequestration of pollutants, including excess nitrogen
and phosphorus, and chemical contaminants such as pesticides and metals that can degrade
downstream water integrity. In addition to providing effective buffers to protect downstream
waters from pollution, covered adjacent waters form integral components of downstream food
webs, providing nursery habitat for breeding fish and amphibians, colonization opportunities for
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stream invertebrates, and maturation habitat for stream insects. Covered adjacent waters serve an
important role in the integrity of traditional navigable waters, interstate waters, and the territorial
seas by subsequently releasing (desynchronizing) floodwaters and retaining large volumes of
stormwater, sediment, nutrients, and contaminants that could otherwise negatively impact the
condition or function of traditional navigable waters, interstate waters, and the territorial seas.
Floodplain areas connect aquatic environments through both surface and shallow
subsurface hydrologic flowpaths. Waters in these areas are therefore uniquely situated in
watersheds to receive and process water that passes over densely vegetated areas and through
subsurface zones before reaching streams and rivers. When contaminants reach a floodplain
water, they can be sequestered in sediments, assimilated into wetland plants and animals,
transformed into less harmful and/or mobile forms or compounds, or lost to the atmosphere.
Wetlands located in floodplains store large amounts of sediment and organic matter from
upstream and upland areas. In addition, the primary function of many floodplain wetlands in the
Western United States is sediment exchange, which can transform materials and compounds
temporarily on floodplains.
Wetlands and other similar waters in floodplain areas act as buffers that are among the
most effective tools for mitigating nonpoint source pollution. The literature shows that
collectively, wetlands and other similar waters improve water quality through assimilation,
transformation, or sequestration of nutrients, sediment, and other pollutantssuch as pesticides
and metalsthat can affect downstream water quality. These pollutants enter floodplain
wetlands from dry and wet atmospheric deposition, runoff from upland agricultural and urban
areas, spray drift, subsurface water flows, outfalls, pipes, and ditches.
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Floodplain waters, including wetlands, can reduce flood peaks by storing and
desynchronizing floodwaters. They can also maintain river baseflows by recharging alluvial
aquifers. Many studies have documented the ability of floodplain wetlands to reduce flood
pulses by storing excess water from streams and rivers. One review of wetland studies reported
that floodplain wetlands reduced or delayed floods in 23 of 28 studies. For example, peak
discharges between upstream and downstream gaging stations on the Cache River in Arkansas
were reduced 1020 percent primarily due to floodplain water storage.
Ecosystem function within a river system is driven by interactions between the physical
environment and the diverse biological communities living within the river system. Wetlands in
floodplains become important seed sources for the river network, especially if catastrophic
flooding scours vegetation and seed banks in other parts of the channel. Movements of
organisms that connect aquatic habitats and their populations, even across different watersheds,
are important for the survival of individuals, populations, and species, and for the functioning of
the river ecosystem. For example, lateral expansion and contraction of the river in its floodplain
results in an exchange of matter and organisms, including fish populations that are adapted to use
floodplain habitat for feeding and spawning during high water. The organisms that live within
the hyporheic zone for these mid- and large-sized river systems have a demonstrated connection
outward to several miles within the floodplain. General field practice observations further
indicate that covered adjacent waters with a close proximity have a significant nexus with the
downstream waters.
Waters adjacent to impoundments and covered tributaries are integrally linked to the
chemical, physical, and biological functions of the waters to which they are adjacent and,
through those waters, are integrally linked to the chemical, physical, and biological functions of
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the downstream traditional navigable waters, interstate waters, or the territorial seas. Thus, where
waters are adjacent to impoundments or covered tributaries, they also have a significant nexus to
the downstream traditional navigable waters, interstate waters, or the territorial seas. The
important functions that covered adjacent waters perform that impact downstream traditional
navigable waters, interstate waters, and the territorial seas and their integrated behavior with the
tributary system demonstrate why all waters adjacent to traditional navigable waters, interstate
waters, or the territorial seas as well as impoundments and covered tributaries, alone or in
combination with other covered adjacent wetlands in a watershed have a significant nexus with
those downstream waters.
Based on the science and their technical expertise and experience, the agencies determine
it is appropriate to protect all covered adjacent waters because those waters are functioning as an
integrated system with the downstream traditional navigable waters, interstate waters, or the
territorial seas and significantly affect such downstream waters. Consequently, these waters are
adjacent and therefore waters of the United States under the CWA. Covered adjacent waters
are waters of the United States without the need for further analysis.
3. Case-Specific Significant Nexus Determinations
a. Two exclusive circumstances for case-specific significant nexus determinations
The rule identifies two exclusive circumstances under which a significant nexus
determination is made on a case-specific basis to determine whether the water is a water of the
United States. First, there are five subcategories of waters Prairie potholes, Carolina and
Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands
that the agencies conclude must be analyzed in combination as similarly situated waters
when making a case-specific significant nexus analysis. Second, there are waters for which the
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agencies have made no conclusions with respect to which waters are similarly situated but for
which a case-specific significant nexus analyses may be undertaken. The rule establishes that
case-specific determinations may be made for waters located within the 100-year floodplain of a
traditional navigable water, interstate water, or the territorial seas, and for waters located within
4,000 feet from the high tide line or the ordinary high water mark of traditional navigable waters,
interstate waters, the territorial seas, impoundments, or tributaries.
b. Summary of rationale for similarly situated determinations
Based on the agencies expertise and experience and available literature and data, the
agencies have determined that waters in the five subcategories of waters identified in paragraph
(a)(7) are similarly situated and must be combined with other waters in the same subcategory
located in the same watershed that drains to the nearest traditional navigable water, interstate
water, or the territorial seas. See Technical Support Document. The scientific literature shows
that these subcategories of waters are frequently located together in a complex or are otherwise
closely co-located and perform similar functions. The agencies specifically sought comment in
the proposal on options to address these five subcategories of waters, including whether waters
in these subcategories should be found similarly situated by rule.
Based on the body of scientific literature regarding the subcategories of waters specified
in paragraph (a)(7) and their functions, the agencies determined that waters of the specified
subcategories are similarly situated because they perform similar functions and they are located
sufficiently close to each other to function together in affecting downstream waters and therefore
reasonably be evaluated in combination with regard to their effects on the integrity of traditional
navigable waters, interstate waters, or the territorial seas. The specified subcategories of waters
perform similar functions as waters of the same subcategory in the same single point of entry
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watershed and collectively function together to affect a traditional navigable water, interstate
water, or the territorial seas. Among the functions and relationships in the landscape the
agencies considered to conclude that the subcategories are each similarly situated are the
physical capacity of the waters to provide flood and sediment retention. In determining that the
waters in each of the five subcategories are similarly situated, the agencies concluded that
these subcategories of waters are co-located to each other or similar to the tributary system such
that they have cumulative and additive effects on pollutant removal through parallel, serial, or
sequential processing, such as the role of pocosins in maintaining water quality in estuaries. The
subcategories of waters are sufficiently near each other or the tributary system to function as an
integrated habitat that can support the life-cycle of a species or more broadly provide habitat to a
large number of a single species.
The SAB expressed support for the agencies option in the preamble of the proposed rule
to identify certain subcategories of waters as similarly situated and highlighted these same five
subcategories. It stated, [t]here is also adequate scientific evidence to support a determination
that certain subcategories and types of other waters in particular regions of the United States
(e.g., Carolina and Delmarva Bays, Texas coastal prairie wetlands, prairie potholes, pocosins,
western vernal pools) are similarly situated (i.e., they have a similar influence on the physical,
chemical and biological integrity of downstream waters and are similarly situated on the
landscape) and thus could be considered waters of the United States. Furthermore, as the science
continues to develop, other sets of wetlands may be identified as similarly situated. SAB
2014b at 3.
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The agencies concluded that the specific subcategories of waters listed in paragraph
(a)(7) are similarly situated for purposes of a case-specific significant nexus based on the
following:
(i) Prairie potholes are a complex of glacially formed wetlands, usually occurring in
depressions that lack permanent natural outlets that are found in the central United States
and Canada. In the United States, they are found from central Iowa through western
Minnesota, eastern South Dakota, and North Dakota. Prairie potholes demonstrate a wide
range of hydrologic permanence; some hold permanent standing water and others are wet
only in years with high precipitation. This in turn influences the diversity and structure of
their biological communities.
Prairie potholes generally accumulate and retain water effectively due to the low
permeability of their underlying soil, which can modulate flow characteristics of nearby
streams and rivers. One of the most noted hydrologic functions of Prairie potholes is
water storage. Because most of the water outflow in Prairie potholes is via
evapotranspiration, Prairie potholes can become water sinks, preventing flow to
downstream waters. Prairie potholes also can accumulate chemicals in overland flow,
thereby reducing chemical loading to other bodies of water. When Prairie potholes are
artificially connected to streams and lakes through drainage, they become sources of
water and chemicals to downstream waters. Prairie potholes also support a community of
highly mobile organisms, from plants to invertebrates that move among Prairie potholes
and that can biologically connect the entire complex to the river network.
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Prairie potholes can be highly connected to other Prairie potholes via shallow subsurface
connections and via surface hydrologic connections during the wet season. They can also
be connected to the stream network via surface and shallow subsurface connections.
Intense precipitation events or high cumulative precipitation over one or more seasons
can result in temporary hydrologic connectivity between Prairie potholes and from Prairie
potholes to the tributary system via fill-and-spill events.
Their density across the landscape varies from region to region as the result of several
factors, including patterns of glacial movement, topography, and climate. In some parts
of the region, prairie pothole density is very high. Though their density varies across the
landscape, Prairie potholes often act as a complex. They have similar functions that can
collectively impact downstream waters.
Prairie potholes have been determined to be similarly situated based on the characteristics
of Prairie potholes, including their density on the landscape, their interaction and
formation as a complex of wetlands and open waters, their connections to each other and
the tributary network, and their similar functions. In addition, their chemical, physical,
and biological connections to downstream waters and the strength of their effects on the
chemical, physical, or biological integrity of a traditional navigable water, interstate
water, or the territorial seas support this determination that Prairie potholes are similarly
situated by rule.
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(ii) Carolina and Delmarva bays are ponded depressional wetlands that occur along the
Atlantic coastal plain from northern Florida to New Jersey. Though Carolina and
Delmarva bays are from the same category of wetland and perform similar functions,
they are located in different parts of the Atlantic coastal plain and thus have unique
names. Carolina bays are most abundant in North Carolina and South Carolina, while
Carolina bays found in the Delmarva Peninsula are commonly referred to as Delmarva
bays or Delmarva potholes.
Most bays receive water through precipitation, lose water through evapotranspiration, and
lack natural surface outlets. Both mineral-based and peat-based bays have shown
connections to shallow groundwater. Bays typically are in proximity to each other or to
streams, providing for hydrologic connections to each other and to downstream waters in
large rain events via overland flow or shallow subsurface connections. Some Delmarva
bays have surface water connections to the Chesapeake Bay. In addition, human
channeling and ditching of the bays are widespread and create surface connections to
other waters, including the tributary system and estuaries. These ditches commonly
connect the surface water of bays to other bays that are lower on the landscape, and
ultimately, to streams.
The hydrology in bays allow for denitrification (chemical and biological processes that
remove nitrogen from water), which can reduce the amount of nitrate in both
groundwater and downstream surface waters. Because bays are frequently connected
chemically to downstream waters through ditches, they can be sources of sediment and
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nutrients to downstream waters. Where they are not connected via confined surface
connections, bays can act as sediment and nutrient sinks.
Fish are reported in bays that are known to dry out, indirectly demonstrating surficial
connections. Amphibians and reptiles use bays extensively for breeding and for rearing
young. These animals can disperse many feet on the landscape and can colonize, or serve
as a food source to, downstream waters. Similarly, bays foster abundant insects that have
the potential to become part of the downstream food chain. Humans have ditched and
channelized a high percentage of bays, creating new surface connections to downstream
waters and allowing transfer of nutrients, sediment, and other pollutants, such as
methylmercury.
Carolina and Delmarva bays can occur in high density on the landscape and can act as a
wetlands complex. Bays have similar functions to other bays and cumulatively these
functions can impact downstream waters.
The agencies conclude that Carolina and Delmarva bays are similarly situated based on
their close proximity to each other and the tributary network, their hydrologic
connections to each other and the tributary network, their density on the landscape, and
their similar functions.
(iii) The word pocosin comes from the Algonquin Native American word for swamp on
a hill, and these evergreen shrub and tree-dominated wetlands are found from Virginia
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to northern Florida, but mainly in North Carolina. Typically, there is no standing water
present in these peat-accumulating wetlands, but a shallow water table leaves the soil
saturated for much of the year. They range in size from less than an acre to several
thousand acres. The slow movement of water through the dense organic matter in
pocosins removes excess nutrients deposited by rainwater. The same organic matter also
acidifies the water. This water is slowly released to downstream waters and estuaries,
where it helps to maintain the proper salinity, nutrients, and acidity.
Because pocosins are the topographic high areas on the regional landscape, they serve as
the source of water for downstream waters. Pocosins often have seasonal connections to
drainageways leading to estuaries or are adjoining other wetlands draining into perennial
streams or estuaries. Other pocosins have been ditched and are directly connected to
streams.
The agencies conclude that pocosins are similarly situated based on their close proximity
to each other and the tributary network, their hydrologic connections to each other and
the tributary network, their density on the landscape, and their similar functions.
(iv) Western vernal pools are shallow, seasonal wetlands that accumulate water during
colder, wetter months and gradually dry up during warmer, drier months. Western vernal
pools are seasonal wetlands from the Pacific Northwest to northern Baja California,
Mexico associated with topographic depressions, soils with poor drainage, mild, wet
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winters and hot, dry summers. The agencies have determined that California vernal pools
are similarly situated.
Because their hydrology and ecology are so tightly coupled with the local and regional
geological processes that formed them, western vernal pools in California typically occur
within vernal pool landscapes, or complexes of pools in which swales connect pools to
each other and to seasonal streams. Some common findings about the hydrologic
connectivity of western vernal pools include evidence for temporary or permanent
outlets, frequent filling and spilling of higher pools into lower elevation swales and
stream channels, and conditions supporting subsurface flows through pools without
perched aquifers to nearby streams.
Non-glaciated vernal pools in western states are reservoirs of biodiversity and can be
connected genetically to other locations and aquatic habitats through wind- and animalmediated dispersal. Animals and other organisms can move between western vernal pool
complexes and streams. Insects and zooplankton can be flushed from vernal pools into
streams and other waters during periods of overflow, carried by animal vectors (including
humans), or dispersed by wind.
The agencies conclude that western vernal pools in California are similarly situated based
on their close proximity to each other and the tributary network, their interaction and
arrangement as a complex of wetlands, their hydrologic connections to each other and the
tributary network, their density on the landscape, and their similar functions.
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(v) Along the Gulf of Mexico from western Louisiana to south Texas, freshwater
wetlands occur as a mosaic of depressions, ridges, intermound flats, and mima mounds.
These coastal prairie wetlands were formed thousands of years ago by ancient rivers and
bayous and once occupied almost a third of the landscape around Galveston Bay, Texas.
The term Texas coastal prairie wetlands is not used uniformly in the scientific literature
but encompasses Texas prairie pothole (freshwater depressional wetlands) and marsh
wetlands that are described in some studies that occur on the Lissie and Beaumont
Geological Formations, and the Ingleside Sand.
Texas coastal prairie wetlands are locally abundant and in close proximity to other
coastal prairie wetlands and function together cumulatively. Collectively as a complex,
Texas coastal prairie wetlands can be geographically and hydrologically connected to
each other via swales and connected to downstream waters, contributing flow to those
downstream waters. Cumulatively, these wetlands can control nutrient release levels and
rates to downstream waters, as they capture, store, transform, and pulse releases of
nutrients to those waters.
The agencies conclude that Texas coastal prairie wetlands are similarly situated based on
their close proximity to each other and the tributary network, their hydrologic
connections to each other and the tributary network, their interaction and formation as a
complex of wetlands, their density on the landscape, and their similar functions.
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IV.
Definition of Waters of the United States

A.
Summary of the Rule
The rule revises the existing definition of waters of the United States consistent with
the CWA, science, the agencies technical expertise and experience, and Supreme Court
decisions. The final rule establishes categories of waters that are jurisdictional and other
categories of waters that are excluded, as well as categories of waters and wetlands that require a
case-specific significant nexus evaluation to determine if they are waters of the United States
and covered by the CWA. The rule also provides definitions for key terms used in the regulation.
The final rule retains much of the structure of the agencies longstanding definition of waters of
the United States, and many of the existing provisions of that definition where revisions are not
required in light of Supreme Court decisions or other bases for revision. All existing exclusions
from the definition of waters of the United States are retained, and several exclusions
reflecting longstanding agencies practice are added to the regulation for the first time.
The agencies define waters of the United States in paragraph (a) of the rule for all
sections of the CWA to include the traditional navigable waters (a)(1), interstate waters (a)(2),
the territorial seas (a)(3), impoundments of jurisdictional waters (a)(4), covered tributaries (a)(5),
and covered adjacent waters (a)(6). Waters in these categories are jurisdictional waters of the
United States by rule no additional analysis is required. This eliminates the need to make a
case-specific significant nexus determination for covered tributaries or covered adjacent waters
because the agencies determined that these waters have a significant nexus to waters identified in
(a)(1) through (a)(3) of the rule and thus are waters of the United States. The agencies
emphasize that the finding of jurisdiction for these covered tributaries and covered adjacent
waters was not based on the mere connection of a water body to downstream waters, but rather a
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determination that the nexus, alone or in combination with other of these covered tributaries or
covered adjacent waters in the watershed, is significant.
The agencies exclude specified waters from the definition of waters of the United
States in paragraph (b) of the rule. The rule makes no substantive change to the existing
exclusion for waste treatment systems designed consistent with the requirements of the CWA
and makes no change to the existing exclusion for prior converted cropland. The rule excludes
for the first time certain waters and features over which the agencies have generally not asserted
CWA jurisdiction, as well as groundwater, which the agencies have never interpreted to be a
water of the United States under the CWA. Codifying these longstanding practices supports
the agencies goals of providing greater clarity, certainty, and predictability for the regulated
public and regulators, and makes rule implementation clear and practical.
This final rule provides clear exclusions for certain types of ditches. The final rule also
expressly excludes stormwater control features created in dry land and certain wastewater
recycling structures created in dry land. Waters and features that are excluded under paragraph
(b) of the rule cannot be determined to be jurisdictional under any of the categories in the rule
under paragraph (a).
In addition to waters that are categorically waters of the United States or categorically
excluded under paragraphs (a) and (b), the rule identifies certain waters that can be waters of
the United States only where a case-specific determination has found a significant nexus
between the water and traditional navigable waters, interstate waters, or the territorial seas. First,
paragraph (a)(7) of the rule specifies five types of waters (Prairie potholes, Delmarva and
Carolina bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands)
that the agencies have determined to be similarly situated, and thus are to be considered in
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combination in a significant nexus analysis. Second, paragraph (a)(8) specifies that waters
located within the 100-year floodplain of a traditional navigable water, interstate water, or the
territorial seas, and waters located within 4,000 feet from the high tide line or the ordinary high
water mark of traditional navigable waters, interstate waters, the territorial seas, impoundments,
or covered tributaries may be found to have a significant nexus on a case-specific basis, but the
agencies have not made a determination that the waters are similarly situated. As a result, a
significant nexus analysis for these waters will include a case-specific assessment of whether
there are any similarly situated waters, as well as whether the water, alone or in combination
with any waters determined to be similarly situated, has a significant nexus to a traditional
navigable water, interstate water, or territorial sea. The rule outlines at (c)(5)(i)-(ix) functions
relevant to these case-specific significant nexus analyses.
Paragraph (c) of the rule provides definitions for key terms used in the regulation. Some
of these are unchanged from the current regulations, including the definitions for wetlands at
(c)(4), ordinary high water mark at (c)(6) and high tide line at (c)(7), although the latter two
are existing, unchanged Corps definitions added to EPAs regulations for the first time. 33
C.F.R. 328.3(d)-(e). The rule also defines for the first time tributary and tributaries at (c)(3),
neighboring (an aspect of adjacency) at (c)(2), and significant nexus at (c)(5).
This rule is effective on [insert date 60 days after the date of publication in the
Federal Register]. Under existing Corps' regulations and guidance, approved jurisdictional
determinations generally are valid for five years. The agencies will not reopen existing approved
jurisdictional determinations unless requested to do so by the applicant or, consistent with
existing Corps guidance, unless new information warrants revision of the determination before
the expiration period. Similarly, consistent with existing regulations and guidance, approved
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jurisdictional determinations associated with issued permits and authorizations are valid until the
expiration date of the permit or authorization.
As a general matter, the agencies actions are governed by the rule in effect at the time
the agency issues a jurisdictional determination or permit authorization, not by the date of a
permit application, request for authorization, or request for a jurisdictional determination.
However, any jurisdictional determinations issued prior to the effective date of the rule and
jurisdictional determinations associated with permit applications deemed by the Corps to have
been complete on the date this rule is published in the Federal Register, including complete preconstruction notifications, will be made consistent with the existing rule, unless the applicant
requests that its approved jurisdictional determination or permit authorization be decided after
the effective date of the new rule. Reliance on preliminary jurisdictional determinations is also
not affected by the issuance of this rule. All other jurisdictional determinations and requests for
authorization requiring an approved jurisdictional determination issued on or after the effective
date of this rule will be made consistent with this rule.
It is important to emphasize that the agencies do not anticipate being able to complete
new jurisdictional determinations submitted after this rule is published before it becomes
effective. As a result, requesters seeking jurisdictional determinations after the rule is published
should expect the determination will be made consistent with this rule. The agencies recognize
there are a number of requests for permit applications and requests for jurisdictional
determinations pending at any time. The agencies expect only a small portion of those pending
actions will require additional information from or work by the requester. As described in the
Economic Analysis, the vast majority of requests address streams and adjacent wetlands, and the
agencies do not expect new information or work will be needed to complete those requests. If
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any additional information is needed to assess these requests, the agencies will work proactively
with permit applicants to reduce potential short-term disruptions in the permit process that may
be associated with the rule.
B.
Traditional Navigable Waters
The existing regulations include within the definition of waters of the United States all
waters that are currently used, or were used in the past, or may be susceptible to use in interstate
or foreign commerce, including all waters which are subject to the ebb and flow of the tide. See,
e.g., 33 CFR 328.3(a)(1); 40 CFR 230.3(s)(1); 40 CFR 122.2 (waters of the U.S.). This
paragraph of the regulation encompasses those waters that are often referred to as traditional
navigable waters. The rule does not make any changes to this paragraph of the regulation.
For purposes of CWA jurisdiction, waters will be considered traditional navigable waters,
and jurisdictional under (a)(1) of the rule, if they:
Are subject to section 9 or 10 of the Rivers and Harbors Appropriations Act of 1899;
Have been determined by a Federal court to be navigable-in-fact under Federal law;
Are waters currently being used for commercial navigation, including commercial
waterborne recreation (for example, boat rentals, guided fishing trips, or water ski
tournaments);
Have historically been used for commercial navigation, including commercial waterborne
recreation; or
Are susceptible to being used in the future for commercial navigation, including
commercial waterborne recreation.
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See Technical Support Document; U.S. Army Corps of Engineers Jurisdictional

Determination Form Instructional Guidebook Appendix D, Traditional Navigable Waters,
available at:
http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/cwa_guide/app_d_traditional_n
avigable waters.pdf.
The agencies received several comments on the scope of traditional navigable waters.
Some commenters observed that traditional navigable waters as a jurisdictional category is not
based in science. Several commenters thought that the final rule should specify considerations to
be taken into account when determining if a water is susceptible to being used in future
commercial navigation. The agencies have not revised the regulation to address susceptibility,
but observe that case law has provided a number of considerations and examples that are
described further in the Technical Support Document and are reflected in longstanding agencies
practice.
C.
Interstate Waters
The existing regulations define waters of the United States to include interstate waters,
including interstate wetlands. The rule does not change that provision of the regulations.
Therefore, interstate waters are waters of the United States even if they are not navigable for
purposes of Federal regulation under (a)(1) and do not connect to such waters. Moreover, the
rule protects impoundments of interstate waters, tributaries to interstate waters, waters adjacent
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to interstate waters, and waters adjacent to covered tributaries of interstate waters because they
have a significant nexus to interstate waters. Protection of these waters is thus critical to
protecting interstate waters.
The language of the CWA indicates that Congress intended the term navigable waters
to include interstate waters without imposing a requirement that they be traditional navigable
waters themselves or be connected to traditional navigable waters. The precursor statutes to the
CWA subjected interstate waters and their tributaries to Federal jurisdiction. The text of the
CWA, specifically CWA section 303, which establishes ongoing requirements for interstate
waters, in conjunction with the definition of navigable waters, provides clear indication of
Congress intent to protect interstate waters that were previously subject to Federal regulation.
Other provisions of the statute provide additional textual evidence of the scope of the primary
jurisdictional term of the CWA.
The agencies also have a longstanding regulatory interpretation that interstate waters fall
within the scope of CWA jurisdiction. The agencies interpretation was promulgated
contemporaneously with the passage of the CWA and is consistent with the statutory and
legislative history of the CWA. Furthermore, the Supreme Court has never addressed the
CWAs coverage of interstate waters, and it is not reasonable to read its decisions in SWANCC
and Rapanos to question the jurisdictional status of interstate waters or to impose additional
jurisdictional requirements on interstate waters. The assertion of jurisdiction over interstate
waters is based on the statute and under predecessor statutes where interstate waters were
defined as all rivers, lakes, and other waters that flow across, or form a part of, state boundaries.
Pub. L. No. 80-845, 10, 62 Stat. 1155, at 1161 (1948). The agencies will continue to
implement the provision consistent with the intent of Congress. For additional discussion of the
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agencies interpretation of the CWA with respect to interstate waters, see Appendix B of the
proposed rule and the Technical Support Document.
It is reasonable to assert jurisdiction over tributaries, adjacent waters, and waters that
have a significant nexus to interstate waters consistent with the framework set forth in Justice
Kennedys opinion in Rapanos for establishing jurisdiction over waters with a significant nexus
to traditional navigable waters. Waters and wetlands with a significant nexus to traditional
navigable waters and interstate waters have important beneficial effects on those waters, and by
recognizing that polluting or destroying waters with a significant nexus can harm downstream
jurisdictional waters. Traditional navigable waters and interstate waters cannot be protected
without also protecting the waters that have a significant nexus to those waters as identified in
the rule. The rule thus defines waters of the United States to include tributaries to interstate
waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and
other waters that have a significant nexus to interstate waters.
The agencies received a number of comments on interstate waters. Some commenters
asserted that interstate waters required a significant nexus to a traditional navigable water in
order to be jurisdictional after Rapanos. The agencies disagree for the reasons described above,
in Appendix B to the proposed rule, and in the Technical Support Document.
D.
Territorial Seas
The CWA and its existing regulations include the territorial seas as a water of the
United States. The rule makes no changes to that provision of the regulation other than to
change the ordering to earlier in the regulation. The CWA defines navigable waters to include
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the territorial seas at section 502(7). The CWA goes on to define the territorial seas in
section 502(8) as the belt of the seas measured from the line of ordinary low water along that
portion of the coast which is in direct contact with the open sea and the line marking the seaward
limit of inland waters, and extending seaward a distance of three miles. The territorial seas
establish the seaward limit of waters of the United States. The territorial seas are clearly
covered by the CWA (they are also traditional navigable waters), and it is reasonable to protect
their covered tributaries and covered adjacent waters.
Although some comments addressed the definition of territorial seas provided in the
CWA suggesting that the distance thresholds be revised to reflect other resource statutes, the
agencies do not have authority to revise statutory language.
E.
Impoundments
The existing regulations provide that impoundments of waters of the United States
remain waters of the United States, and the rule does not make any changes to the existing
regulatory language.
Impoundments are jurisdictional because an impoundment of a water of the United
States remains a water of the United States, and because scientific literature demonstrates that
impoundments continue to significantly affect the chemical, physical, or biological integrity of
downstream traditional navigable waters, interstate waters, and the territorial seas. See Technical
Support Document. The Supreme Court has confirmed that damming or impounding a water of
the United States does not make the water non-jurisdictional. See S. D. Warren Co. v. Maine
Bd. of Envtl. Prot., 547 U.S. 370, 379 n.5 (2006) ([N]or can we agree that one can denationalize
national waters by exerting private control over them.). Similarly, when presented with a
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tributary to the Snake River which flows only about two months per year because of an irrigation
diversion structure installed upstream, the Ninth Circuit noted it is doubtful that a mere manmade diversion would have turned what was part of the waters of the United States into
something else and, thus, eliminated it from national concern. U.S. v. Moses, 496 F.3d 984, 988
(9th Cir. 2007), cert. denied, 554 U.S. 918 (2008). As a matter of policy and law, impoundments
do not de-federalize a water, even where there is no longer flow below the impoundment. The
agencies have analyzed stream networks, above and below impoundments, for connection to
downstream traditional navigable waters, interstate waters, or the territorial seas. Scientific
literature, as well as the agencies scientific and technical expertise and experience confirm that
impoundments have chemical, physical, and biological effects on downstream waters. See
Technical Support Document.
The agencies also note that an impoundment of a water that is not a water of the United
States can become jurisdictional if, for example, the impounded waters become navigable-infact and covered under paragraph (a)(1) of the rule.
By their nature, impoundments of jurisdictional waters would also often meet the
definition of adjacent waters, as they are typically bordering or contiguous. Impoundments of
waters of the United States are per se jurisdictional under (a)(4) of the rule without the need to
determine if they are also adjacent under (a)(6). However, as described in section IV.G below,
adjacent waters, as defined, have a significant nexus to traditional navigable waters, interstate
waters, or the territorial seas, which bolsters the agencies determination that impoundments of
waters of the United States remain waters of the United States.
Impoundments also may be one of the waters through which tributaries indirectly
contribute flow to a traditional navigable water, interstate water, or territorial sea. As a matter of
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law and science, an impoundment does not cut off a connection between upstream tributaries and
a downstream traditional navigable water, interstate water, or territorial sea, so covered
tributaries above the impoundment are still considered a tributary to downstream traditional
navigable waters, interstate waters, or the territorial seas even where the flow of water might be
impeded due to the impoundment. See (a)(5).
The agencies received comments on impoundments, which generally explored the
impacts of impoundments on connectivity to downstream waters. For the reasons described
above and in the Technical Support Document, the agencies concluded that impoundments of
waters of the United States remain waters of the United States.
F.
Tributaries
The existing definition of waters of the United States regulates all tributaries without
qualification. The final rule protects only waters that have a significant effect on the integrity of
traditional navigable waters, interstate waters, or the territorial seas. The rule establishes a
definition of tributary, and provides that a water meeting the definition of tributary, unless it is
excluded under paragraph (b), is a water of the United States without the need for a separate
case-specific significant nexus evaluation. As explained in Section III above, covered tributaries
and the functions they provide, alone or in combination with other tributaries in the watershed,
significantly affect the chemical, physical, and biological integrity of traditional navigable
waters, interstate waters, or the territorial seas. See also Technical Support Document. This
section describes the provisions of the rule addressing tributaries and changes made to the
provisions in the proposed rule based on public comments.
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1. What Are the Provisions in the Rule?

The rule defines tributary by emphasizing the physical characteristics created by
sufficient volume, frequency and duration of flow, and that the water contributes flow, either
directly or through another water, to a traditional navigable water, interstate water, or the
territorial seas. This definition is based on the best available science, intent of the CWA, and
case law, and is consistent with current practice. As mentioned above in Section III, the Science
Report concludes that [t]he scientific literature unequivocally demonstrates that streams,
individually or cumulatively, exert a strong influence on the integrity of downstream waters.
Science Report at ES-2.
First, to meet the rules definition of tributary, a water must flow directly or through
another water or waters to a traditional navigable water, interstate water, or the territorial seas.
Waters through which a tributary may contribute flow indirectly include, for example,
impoundments, wetlands, lakes, and other tributaries. A tributary may contribute flow through
any number of downstream waters, including non-jurisdictional features, such as a ditch
excluded under paragraph (b) of the rule, and jurisdictional waters that are not tributaries, such as
an adjacent wetland - but it must be part of a tributary system that eventually flows to a
traditional navigable water, an interstate water, or the territorial seas. This limitation on what
constitutes a tributary for purposes of this rule is fundamental. If a water is not part of the
tributary system of a traditional navigable water, interstate water, or the territorial seas, it does
not meet the definition of tributary and is not jurisdictional under this provision of the rule.
For example, an intermittent stream that exists wholly within one state, is not itself a traditional
navigable water, and whose flows eventually ends without connecting to a traditional navigable
water, interstate water, or the territorial seas is not a water of the United States as a tributary
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for purposes of this rule. To determine whether a water meets this aspect of the definition, the
connection can be traced using direct observation, U.S. Geological Survey (USGS) data, stream
datasets such as the National Hydrography Dataset, aerial photography or other reliable remote
sensing information, or other appropriate information.
Under the rule, flow in the tributary may be perennial, intermittent, or ephemeral. The
agencies received comments suggesting that the final rule provide definitions for the terms
ephemeral flow, intermittent flow, and perennial flow. The agencies considered the request and
determined that there was no need to include a definition since they are commonly used
scientific terms. Longstanding agencies practice considers perennial streams as those with
flowing water year-round during a typical year, with groundwater or contributions of flow from
higher in the stream or river network as primary sources of water for stream flow. Intermittent
streams are those that have both precipitation and groundwater providing part of the streams
flow, and flow continuously only during certain times of the year (e.g., during certain seasons
such as the rainy season). Ephemeral streams have flowing water only in response to
precipitation events in a typical year, and are always above the water table. Precipitation can
include rainfall as well as snowmelt. Science shows that tributaries regardless of flow duration
are very effective at transporting pollutants downstream, such as excess nutrients and sediment,
which impact the integrity and character of traditional navigable waters, interstate waters, and
the territorial seas. See Technical Support Document.
Second, the rule requires two physical indicators of flow: there must be a bed and banks
and an indicator of ordinary high water mark. This definition of tributary includes only those
waters the agencies have concluded are the type of waters that the CWA was intended to protect
and which either individually or in combination with other covered tributaries in the watershed
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have a significant nexus to a traditional navigable water, interstate water, or the territorial seas.
Thus, the agencies are not defining waters of the United States to include all streams that
might be considered tributaries in the general scientific literature. To provide additional clarity
and for ease of use for the public, the agencies are including the Corps existing definition of
ordinary high water mark in EPAs regulations as well. Under that existing Corps regulation,
ordinary high water mark indicators include characteristics such as shelving, scour, changes in
soil characteristics, and destruction of terrestrial vegetation, among others.
A bed and banks and other indicators of ordinary high water mark are physical indicators
of water flow and are only created by sufficient and regular intervals of flow. These physical
indicators can be created by perennial, intermittent, and ephemeral flows. See Technical Support
Document. For purposes of the rule, bed and banks means the substrate and sides of a channel
between which flow is confined. The banks constitute a break in slope between the edge of the
bed and the surrounding terrain, and may vary from steep to gradual. Existing Corps regulations
define ordinary high water mark as the line on the shore established by the fluctuations of water
and indicated by physical characteristics such as a clear, natural line impressed on the banks,
shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of
litter and debris, or other appropriate means that consider the characteristics of the surrounding
areas. 33 CFR 328.3(e). That definition is not changed by the rule and is added to EPAs
regulations.
Current Corps regulations and guidance identify bed and banks as indicators of the
ordinary high water mark. The definition of tributary in this rule requires the presence of a bed
and banks and an additional indicator of ordinary high water mark such as staining, debris
deposits, or other indicator identified in the rule or agency guidance. In many tributaries, the bed
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is that part of the channel below the ordinary high water mark, and the banks often extend above
the ordinary high water mark. For other tributaries, such as those that are incised, changes in
vegetation, changes in sediment characteristics, staining, or other ordinary high water mark
indicators may be found within the banks. In concrete-lined channels, the concrete acts as the
bed and banks and can have other ordinary high water mark indicators such as staining and
debris deposits. Indicators of an ordinary high water mark may vary from region to region
across the country. See Technical Support Document.
Other evidence, besides direct field observation, may establish the presence of bed and
banks and another indicator of ordinary high water mark. The agencies currently use many tools
in identifying tributaries and will continue to rely on their experience and expertise in identifying
the presence of a bed and banks and ordinary high water mark. For example, several reliable,
well-established remote sensing sources of information or mapping can assist to establish the
presence of water that contributes flow to a traditional navigable water, interstate water, or the
territorial seas and provide evidence regarding the presence of a bed and banks and another
indicator of ordinary high water mark. Among the types of remote sensing or mapping
information that can assist in establishing the presence of water are USGS topographic data, the
USGS National Hydrography Dataset (NHD), Natural Resources Conservation Service (NRCS)
Soil Surveys, and State or local stream maps, as well as the analysis of aerial photographs, and
light detection and ranging (also known as LIDAR) data, and desktop tools that provide for the
hydrologic estimation of a discharge sufficient to create an ordinary high water mark, such as a
regional regression analysis or hydrologic modeling. These sources of information can
sometimes be used independently to infer the presence of a bed and banks and another indicator
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of ordinary high water mark, or where they correlate, can be used to reasonably conclude the
presence of a bed and banks and ordinary high water mark.
Both the USGS topographic data and the NHD data assist to delineate tributaries to
traditional navigable waters, interstate waters, or the territorial seas. Where one or both of these
sources have indicated a blue line stream, there is an indication that the tributary could exhibit
a bed and banks and another indicator of ordinary high water mark. Where this information is
combined with stream order, 11 more certainty can result. For example, a water that is a secondorder stream will be more likely to exhibit a bed and banks and another indicator of ordinary
high water mark as compared to a first-order stream. This information will vary in validity in
different parts of the country, so care will be taken to evaluate additional information prior to
reasonably concluding a bed and banks or other indicators of ordinary high water mark are
associated with the stream. This will be particularly true for first-order streams and for many
streams in the arid portions of the country. Supporting information that can be used to conclude
the presence of a bed and banks and another indicator of ordinary high water mark would be the
presence of USGS stream data on the NRCS county Soil Survey or local stream maps which are
mapped independently of the USGS, aerial photography interpretation, or digital terrain
depictions created from LIDAR. See Technical Support Document.
Tributaries are observable in aerial photography by their topographic expression,
characteristic linear and curvilinear patterns, dark photographic tones, and the presence and
11
Stream order is a method for stream classification based on relative position within a river
network, when streams lacking upstream tributaries (i.e., headwater streams) are first-order
streams and the junction of two streams of the same order results in an increase in stream order
(i.e., two first-order streams join to form a second-order stream, and so on). When streams of
different orders join, the order of the larger stream is retained. See Science Report and Technical
Support Document.
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pattern of riparian vegetation. The characteristic linear and curvilinear patterns and dark
photographic tones observed on aerial photography can be caused by shadow cast from the banks
of an incised stream or from water in the stream channel itself. In some cases stream channel
morphology is visible, providing evidence of scour, materials sorting, and deposition, all
characteristics of an ordinary high water mark. Visible persistent water (e.g., multiple dates of
aerial photography showing visible water) provides strong evidence of the sufficient frequency
and duration of surface flow to create a bed and banks and other indicators of ordinary high
water mark. Visible indicators of running water such as rapids, riffles, and pools all indicate the
presence of a bed and banks and other indicators of ordinary high water mark. Other physical
characteristics of an ordinary high water mark that may be visible on aerial photography include
the destruction of terrestrial vegetation and the absence of vegetation in a channel. These
indicators gleaned from aerial photography interpretation can be correlated with the presence of
USGS streams data in reasonably concluding that a bed and banks and another indicator of
ordinary high water mark are present. See Technical Support Document.
Additional desktop tools can assist in the identification of bed and banks and other
indicators of ordinary high water mark. For instance, field staff use other methods for estimating
ordinary high water mark, including, but not limited to, lake and stream gage data, flood
predictions, historic records of water flow, and statistical evidence. Some desktop tools, such as a
regional regression analysis and the Hydrologic Modeling System (HEC-HMS), provide for the
hydrologic estimation of stream discharge sufficient to create an ordinary high water mark in
tributaries under regional conditions. Such desktop tools are particularly useful for identifying
presence of bed and banks and another indicator of ordinary high water mark when supported by
additional remote sensing tools that indicate the presence of such physical features.
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LIDAR is a powerful tool to analyze the characteristics of the land surface, including
tributary identification and characterization. LIDAR data are becoming more and more
widespread for engineering and land use planning purposes. Where LIDAR data have been
processed to create a bare earth model, detailed depictions of the land surface are available. Bare
earth models reveal subtle elevation changes and can clearly show a tributarys bed and banks
and channel morphology. In many cases LIDAR can help delineate tributaries that would exhibit
a bed and banks and another indicator of an ordinary high water mark in greater detail than aerial
photography interpretation alone can. Visible linear and curvilinear incisions on a bare earth
model are strong evidence that a tributary with a bed and banks and another indicator of an
ordinary high water mark is present. LIDAR-indicated tributaries can be correlated with aerial
photography interpretation and USGS stream data, to reasonably conclude the presence of a bed
and banks and another indicator of an ordinary high water mark in the absence of a field visit.
See Technical Support Document. The agencies have been using such remote sensing and
desktop tools to delineate tributaries for many years where data from the field are unavailable or
a field visit is not possible.
In addition, such desktop tools are critical in circumstances where physical characteristics
of bed and banks and another indicator of ordinary high water mark are absent in the field, often
due to unpermitted alteration of streams. In such cases where physical characteristics of bed and
banks and another indicator of ordinary high water mark no longer exist, they may be determined
by using other appropriate means that consider the characteristics of the surrounding areas. Such
reliable methods that can indicate prior existence of bed and banks and other indicators of
ordinary high water mark include, but are not limited to, lake and stream gage data, elevation
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data, spillway height, historic water flow records, flood predictions, statistical evidence, the use
of reference conditions, or through the remote sensing and desktop tools described above.
The upper limit of the tributary is the point where a bed and banks and another indicator of
ordinary high water mark cease to be identifiable. The ordinary high water mark establishes the
lateral limits of a water, and its absence generally determines when a tributarys channel or bed
and banks has ended, representing the upper limit of the tributary. However, a natural or
constructed break in bed and banks or other indicator of ordinary high water mark does not
constitute the upper limit of a tributary where bed and banks or other indicator ordinary high
water mark can be found farther upstream. Note that waters, including wetlands, which are
adjacent to a tributary at the upper limit of the channel are jurisdictional as adjacent waters.
The definition of tributary includes tributaries that flow directly or indirectly through
impoundments that are jurisdictional under (a)(4) of the rule. Tributaries to impoundments of
waters of the United States are jurisdictional for the same reasons the impoundments
themselves are jurisdictional. As discussed in section IV. E., under case law, an impoundment of
a water of the United States remains a water of the United States, and scientific literature
demonstrates that impoundments continue to significantly affect the chemical, physical, or
biological integrity of downstream waters traditional navigable waters, interstate waters, and the
territorial seas. Therefore, tributaries to such impoundments continue to have a significant
nexus, alone or in combination with other covered tributaries in the watershed, to the
downstream traditional navigable water, interstate water, or the territorial seas.
Waters that meet the rule definition of tributary remain tributaries even if there is a
manmade or natural break at some point along the connection to the traditional navigable water,
interstate water, or the territorial seas. In many tributaries, there are often natural or constructed
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breaks in the presence of a bed and banks or ordinary high water mark while hydrologic
connectivity remains. For example, in some regions of the country where there is a very low
gradient, the banks of a tributary may be very low or may even disappear at times. Many
tributaries lose their ordinary high water mark when adjacent wetlands are contiguous with the
stream channel. The definition of tributary addresses these circumstances and states that waters
that meet the definition of tributary remain tributaries even if such breaks occur, so long as bed
and banks and an ordinary high water mark are present upstream of the break. Under the rule,
when a covered tributary flows through a wetland into another tributary (sometimes called a
run-of-stream wetland), the covered tributary remains jurisdictional even though it lost its
ordinary high water mark through the wetland. By looking to the presence of a bed and banks
and an ordinary high water mark upstream, the rule ensures that a mere break in the ordinary
high water mark does not render tributaries with a significant nexus to downstream waters not
jurisdictional. Other breaks that do not sever jurisdiction include constructed breaks such as
bridges, culverts, pipes, dams, or waste treatment systems, or natural breaks such as debris piles,
boulder fields, or a stream that flows underground so long as a bed and banks and an ordinary
high water mark can be identified upstream of the break. Site specific conditions will continue
to determine the distance up valley that needs to be evaluated to see if the break in bed and banks
and ordinary high water mark is temporary or the start of the stream system.
The rule also clarifies that a water meets the definition of tributary if the water contributes
flow through an excluded feature such as a ditch with ephemeral flow. While the water above
and below the excluded feature is jurisdictional if it meets the definition of tributary, the
excluded feature does not become jurisdictional. A water also continues to meet the definition of
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tributary if at some point the water contributes flow through a jurisdictional water that is not a
tributary, such as an adjacent wetland or impoundment.
The agencies longstanding interpretation of the CWA has included tributaries that are
natural, modified, or constructed waters. While this rule at paragraph (b) excludes specific types
of constructed waters from jurisdiction, it continues to interpret constructed tributaries as
jurisdictional unless expressly excluded in paragraph (b). Natural, modified, and constructed
tributaries provide many of the same functions, especially as conduits for the movement of water
and pollutants to other tributaries or directly to traditional navigable waters, interstate waters, or
the territorial seas. The discharge of a pollutant into a tributary generally has the same effect
downstream whether the tributary waterway is natural, modified, or constructed. See discussion
in section III.C. above and the Technical Support Document. Given the extensive human
modification of watercourses and hydrologic systems throughout the country, it is often difficult
to distinguish between natural watercourses and watercourses that are wholly or partly modified
or constructed. For example, tributaries that have been channelized in concrete or otherwise have
been modified may still meet the definition of tributaries under the rule so long as they have bed
and banks and an ordinary high water mark, contribute flow to a traditional navigable water,
interstate water, or the territorial seas, and are not excluded under paragraph (b). The important
consideration for a modified or constructed water is whether it meets the definition of tributary
and is not excluded under paragraph (b).
Ditches are one important example of constructed features that in many instances can
meet the definition of tributary. Ditches are jurisdictional under the rule only if they both meet
the definition of tributary and are not excluded under paragraph (b)(3) in the rule. Not all
ditches meet the definition of a tributary, and others as discussed in Section I are expressly
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excluded from jurisdiction.

Ditches protected by the rule must meet the definition of tributary, having a bed and
banks and ordinary high water mark, and contributing flow directly or indirectly through another
water to a traditional navigable water, interstate water, or the territorial seas. Jurisdictional
ditches include ditches such as the following:
Ditches with perennial flow,
Ditches with intermittent flow that are a relocated tributary, or are excavated in a
tributary, or drain wetlands,
Ditches, regardless of flow, that are excavated in or relocate a tributary.

The definition of tributary includes natural, undisturbed waters and those that have been
man-altered or constructed, but which science shows function as a tributary. In addition,

alteration or modification of natural streams and rivers for purposes such as flood control,
erosion control, and other reasons does not convert the tributary to a ditch. A stream or river that
has been channelized or straightened because its natural sinuosity has been altered, cutting off
the meanders, is not a ditch. A stream that has banks stabilized through use of concrete or riprap (e.g., rocks or stones) is not a ditch. The Los Angeles River, for example, is a water of the
United States (and, indeed, a traditional navigable water) and remains a water of the United
States and is not excluded under paragraph (b)(3) even where it has been ditched, channelized,
or concreted.
A ditch that relocates a stream is not an excluded ditch under paragraph (b)(3), and a
stream is relocated either when at least a portion of its original channel has been physically
moved, or when the majority of its flow has been redirected. A ditch that is a relocated stream is
distinguishable from a ditch that withdraws water from a stream without changing the streams
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aquatic character. The latter type of ditch is excluded from jurisdiction where it meets the listed
characteristics of excluded ditches under paragraph (b)(3). Agency staff can determine
historical presence of tributaries using a variety of resources, such as historical maps, historic
aerial photographs, local surface water management plans, street maintenance data, wetlands and
conservation programs and plans, as well as functional assessments and monitoring efforts. A
ditch with intermittent flow that drains a wetland and otherwise meets the definition of
tributary is a tributary and is not excluded under (b)(3). See IV.I. below.
Evidence, such as current or historic photographs, prior delineations, or USGS, state and
local topographic maps, may be used to determine whether a ditch is an excluded ditch. Site
characteristics may also be present to inform the determination of whether the water body is a
ditch, such as shape, sinuosity, flow indications, etc., as ditches are often created in a linear
fashion with little sinuosity and may or may not connect to another water of the United States.
2. What Changes Did the Agencies Make from the Proposed Rule Based on
Public Comments?
The rules definition of tributary retains many elements from the proposed rule, but
reflects public comments in several important ways. In particular, the rule emphasizes flow.
The rule defines tributary by emphasizing physical characteristics created by water flow and
requiring that the water contributes flow, either directly or through another water, to a traditional
navigable water, interstate water, or the territorial seas. The rule also is clearer regarding the
jurisdictional status of certain ditches, and clarifies that wetlands and waters such as ponds and
lakes that contribute flow to a traditional navigable water, interstate water, or the territorial seas
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but typically lack a bed and banks and ordinary high water mark are considered adjacent but
not a tributary.
A number of commenters suggested that the agencies should exclude ephemeral streams
from the definition of tributary, expressing concern that ephemeral waters that flow very rarely
would be considered a jurisdictional tributary. The rule definition of tributary requires that
flow must be of sufficient volume, frequency, and duration to create the physical characteristics
of bed and banks and an ordinary high water mark. If a water lacks sufficient flow to create such
characteristics, it is not considered a tributary under this rule. While some commenters
expressed concern that a feature that flowed very rarely could meet the proposed definition of
tributary, it is the agencies judgment that such a feature is not a tributary under the rule
because it would not form the physical indicators required under the definitions of ordinary high
water mark and tributary.
The rule includes ephemeral streams that meet the definition of tributary as waters of the
United States because the agencies determined that such streams provide important functions
for downstream waters, and in combination with other covered tributaries in a watershed
significantly affect the chemical, physical, and biological integrity of traditional navigable
waters, interstate waters, and the territorial seas. As noted by the SAB, and consistent with the
scientific literature, tributaries as a group exert strong influence on the chemical, physical, and
biological integrity of downstream waters, even though the degree of connectivity is a function
of variation in the frequency, duration, magnitude, predictability, and consequences of chemical,
physical, and biological processes. See, e.g., SAB 2014b. These significant effects on traditional
navigable waters, interstate waters, and the territorial seas occur even when the tributary is small,
intermittent, or ephemeral.
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In addition, the Science Report concludes that, [a]lthough less abundant, the available
evidence for connectivity and downstream effects of ephemeral streams was strong and
compelling, particularly in context with the large body of evidence supporting the physical
connectivity and cumulative effects of channelized flows that form and maintain stream
networks. Science Report at 6-13. For example, ephemeral headwater streams shape river
channels in traditional navigable or interstate waters by accumulating and gradually or
episodically releasing stored materials such as sediment and large woody debris. These materials
help structure traditional navigable and interstate river channels by slowing the flow of water
through channels and providing substrate and habitat for aquatic organisms.
Moreover, the agencies have historically considered ephemeral tributaries to be waters
of the United States. For example, for many years EPA has reviewed and approved state water
quality standards for ephemeral waters under CWA section 303(c), several Corps Nationwide
Permits under CWA section 404 address discharges of dredged or fill material into ephemeral
waters, and the agencies definition of waters of the United States prior to this rule included all
tributaries without reference to flow regime.
Numerous commenters asked that the final rule define bed and banks, which are
physical characteristics called for under the definition of tributary. Such commenters
emphasized the importance of a definition of bed and banks, and some suggested definitional
language. To increase clarity, the preamble in IV.F.1. above includes a definition of bed and
banks adapted largely from longstanding agencies practice as well as comments. Several
commenters suggested that the rule should add a definition of ordinary high water mark. In
response and to increase clarity, the rule adds the Corps existing regulatory ordinary high water
mark definition to EPAs regulations. Corps technical manuals are available to help identify
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ordinary high water mark, referenced above. Several commenters suggested that the agencies
not require a tributary to have both bed and banks and ordinary high water mark, because bed
and banks are themselves an indicator of ordinary high water mark, and because ordinary high
water mark alone is an appropriate criterion for many streams in the arid west where the
characteristic of bed and banks is less common. The agencies based their significant nexus
determination for the covered tributaries in part on the amount of flow indicated where a
tributary has both a bed banks and another indicator of ordinary high water mark, so the rule
continues to require both physical indicators with the preamble at IV.F.1. above clarifying the
means to conclude that those indicators exist.
Several commenters suggested that the rule exclude all constructed waters from the
definition of waters of the United States. While the rule does exclude several types of
constructed waters from jurisdiction, it continues to consider constructed tributaries as
jurisdictional unless expressly excluded in paragraph (b) for the reasons described in section
IV.I. and the Technical Support Document.
Many comments recommended that wetlands, ponds, and lakes that contribute flow to a
traditional navigable water, interstate water, or the territorial seas but lack a bed and banks and
ordinary high water mark not be considered as tributaries, because of the importance of those
physical characteristics to the definition. Wetlands typically lack bed and banks and ordinary
high water mark, while lakes and ponds typically have an ordinary high water mark and a bed
but may lack banks. The proposed rule expressly sought comment on whether such waters
should be considered as tributaries or as adjacent waters, recognizing that it might add an
element of uncertainty to the definition of tributary to include waters that lacked the physical
features called for in the definition. In addition, the SAB commented that tributaries are not
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typically defined to include lentic systems (still waters), and suggested that the agencies
reconsider including ponds, lakes, and wetlands as covered adjacent waters instead of tributaries.
SAB 2014b at 2. In response, the rule does not consider these waters to be tributaries, but defines
covered adjacent waters to include wetlands, lakes, and ponds that connect segments of
tributaries or are at the head of the tributary system. See section G for further discussion.
G.
Adjacent Waters
Section III above explains the basis for the agencies conclusion that covered adjacent
waters have a significant nexus with traditionally navigable waters, interstate waters, or the
territorial seas. The adjacency provision is based on the best available science, intent of the
CWA, and case law, and is consistent with the experience of the agencies in making casespecific significant nexus determinations. As discussed above in Section III, the SAB concludes,
[t]he available science supports [the agencies] proposal to include adjacent waters and
wetlands as waters of the United States. SAB 2014b at 2. This section describes the provisions
of the rule governing adjacent waters, changes made to the adjacent waters provision based on
comments on the proposed rule, and, finally, how science and the law support the agencies
conclusions in the final rule.
1. What Are the Provisions of the Rule?
Under the rule, adjacent means bordering, contiguous, or neighboring, including waters
separated from other waters of the United States by constructed dikes or barriers, natural river
berms, beach dunes, and the like. Waters adjacent to a traditional navigable water, interstate
water, territorial sea, impoundment, or tributary, are waters of the United States. For purposes
of adjacency, an adjacent water includes wetlands within or abutting its ordinary high water
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mark. Adjacency is not limited to waters located laterally to a traditional navigable water,
interstate water, the territorial seas, an impoundment, or a tributary. Therefore, waters that
connect segments of a traditional navigable water, interstate water, the territorial seas, an
impoundment, or a tributary or are located at the head of a traditional navigable water, interstate
water, the territorial seas, an impoundment, or a tributary may be determined to be bordering,
contiguous, or neighboring, and thus adjacent. Adjacent waters include wetlands, ponds, lakes,
oxbows, impoundments, and similar water features. Adjacent waters do not include any water
excluded under paragraph (b) of the rule. Note also that a water that does not meet the definition
of adjacent waters may be determined to be a water of the United States on a case-specific
basis under paragraph (a)(8) of the rule.
Within the definition of adjacent, the terms bordering and contiguous are well
understood, and for continuity and clarity the agencies continue to interpret and implement those
terms consistent with the current policy and practice. Waters separated by a berm or other similar
feature remain adjacent under the definition.
Some waters included under the definition of tributary in the proposed rule, after
consideration of public comment, are adjacent in the final rule. Specifically, waters that
connect segments of, or are at the head of, a traditional navigable water, interstate water, the
territorial seas, an impoundment, or a tributary are adjacent to that water. For example, a pond
that is the source water to a tributary and borders the tributary at its uppermost reach is
jurisdictional as an adjacent water. Further, the rule states that an adjacent water includes
wetlands within or abutting its ordinary high water mark. This language is designed to ensure
that if there is a fringe wetland abutting that pond that is the source water to a tributary, that
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wetland is considered part of the pond under the rule and such pond as a whole, including any
abutting wetlands, is jurisdictional as an adjacent water.
For purposes of adjacency, including all three provisions of the definition of
neighboring, the entire water is adjacent if any part of the water is bordering, contiguous or
neighboring. Therefore, the entire wetland is adjacent if any part of it is within the distance
thresholds established in the definition of neighboring. For example, if a tributary has a 1,000
foot wide 100-year floodplain, then a water that is located within 1,000 feet of the ordinary high
water mark of a covered tributary and extends to 2,000 feet is jurisdictional in its entirety as
neighboring. In addition, for purposes of determining whether a water is adjacent artificial
features (such as roads) do not divide a water; rather, the water is treated as one entire water.
The definition of adjacent in the rule does not include those waters in which
established, normal farming, silviculture, and ranching activities occur. Wetlands and farm ponds
in which normal farming activities occur, as those terms are used in Section 404(f) of the Clean
Water Act and its implementing regulations, are not jurisdictional under the Act as an adjacent
water. Waters in which normal farming, ranching, and silviculture activities occur instead will
continue to be subject to case-specific review, as they are today. These waters may be
determined to have a significant nexus on a case-specific basis under (a)(7) or (a)(8).
Recognizing the vital role of farmers in providing the nation with food, fiber, and fuel, the Clean
Water Act in Section 404(f) exempts many normal farming activities such as seeding, harvesting,
cultivating, planting, soil and water conservation practices, and other activities from the Section
404 permitting requirement. Normal farming, ranching, and silviculture is clarified in the
agencies implementing regulations to mean established and ongoing activities to distinguish
from activities needed to convert an area to farming, silviculture, or ranching and activities that
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convert a water to a non-water. 40 C.F.R 232.3(c)(1). The rule reflects this framework by
clarifying the waters in which the activities Congress exempted under Section 404(f) occur are
not jurisdictional as adjacent. It is important to recognize that tributaries, including those
ditches that meet the tributary definition, are not adjacent waters and are jurisdictional by rule.
This provision interprets the intent of Congress and reflects the intent of the agencies to
minimize potential regulatory burdens on the nations agriculture community, and recognizes the
work of farmers to protect and conserve natural resources and water quality on agricultural lands.
While waters in which normal farming, silviculture, or ranching practices occur may be
determined to significantly affect the chemical, physical, or biological integrity of downstream
navigable waters, the agencies believe that such determination should be made based on a casespecific basis instead of by rule. The agencies also recognize that waters in which normal
farming, silviculture, or ranching practices occur are often associated with modifications and
alterations including drainage, changes to vegetation, and other disturbances the agencies believe
should be specifically considered in making a significant nexus determination.
The rule establishes a definition of neighboring for purposes of determining adjacency.
In the rule, the agencies identify three circumstances under which waters would be
neighboring and therefore waters of the United States.
First, the term neighboring includes all waters located in whole or in part within 100
feet of the ordinary high water mark of a traditional navigable water, interstate water, the
territorial seas, an impoundment, or a covered tributary.
Second, the term neighboring includes all waters within the 100-year floodplain of a
traditional navigable water, interstate water, the territorial seas, an impoundment, or a covered
tributary that is located in whole or in part within 1,500 feet of the ordinary high water mark of
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that jurisdictional water. In this rule, the agencies interpret 100-year floodplain to mean the
area that will be inundated by the flood event having a one percent chance of being equaled or
exceeded in any given year. This is consistent with the Federal Emergency Management
Agencys (FEMA) definition of 100-year flood. If the 100-year floodplain is greater than
1,500 feet from the ordinary high water mark, only those waters that are located in whole or in
part within 1,500 feet of the ordinary high water mark are neighboring. In addition, if the 100year floodplain is less than 1,500 feet from the ordinary high water mark, only those waters
located in whole or in part within the floodplain are neighboring under this provision.
Third, the rule defines neighboring to include all waters located in whole or in part
within 1,500 feet of the high tide line of a traditional navigable water or the territorial seas, and
all waters located within 1,500 feet of the ordinary high water mark of the Great Lakes. This
provision defines waters that begin within 1,500 feet of a tidally-influence traditional navigable
water or the territorial seas and waters within 1,500 feet of the ordinary high water mark of the
Great Lakes as waters of the United States. To provide clarity for this aspect of the definition,
the agencies incorporated the Corps existing definition of high tide line into EPAs regulations
at paragraph (c)(7) in the rule.
As noted above, the rule provides that with respect to the boundaries for covered adjacent
waters the entire water is jurisdictional as long as the water is at least partially located within the
distance threshold, and the agencies interpret the rule to apply to any single water or wetland that
may straddle a distance threshold. Low-centered polygonal tundra and patterned ground bogs
(also called strangmoor, string bogs, or patterned ground fens) are considered a single water for
purposes of the rule because their small, intermingled wetland and non-wetland components are
physically and functionally integrated. These areas often have complex micro-topography with
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repeated small changes in elevation occurring over short distances. Science demonstrates that
these wetlands function as a single wetland matrix having clearly hydrophytic vegetation, hydric
soils, and wetland hydrology. As a result, the agencies will continue to evaluate these wetlands
as a single water under the rule. Where any portion of these wetland types is bordering,
contiguous or neighboring, the entire wetland is a water of the United States. Similarly, for
purposes of a case-specific determination under (a)(8), wetlands of these types constitute a single
water when making a significant nexus determination. Other wetlands may also have
intermingled wetland and non-wetland components that are so physically and functionally
integrated they can be considered a single water for purposes of the rule. Groups of wetlands
that are simply part of a complex of wetlands would not be considered a single water for
purposes of the rule.
The final rule also makes some ministerial changes to the definition of adjacent. The
existing regulation defined adjacent to mean bordering, contiguous, or neighboring, and had
a second sentence that clarified that wetlands separated by berms and the like remain adjacent
wetlands. The final rule combines those sentences without changing the scope of adjacency.
When determining the jurisdictional boundaries under the CWA for adjacent waters,
the agencies will rely on published FEMA Flood Zone Maps to identify the location and extent
of the 100-year floodplain. https://msc.fema.gov/portal. These maps are publicly available and
provide a readily accessible and transparent tool for the public and agencies to use in locating the
100-year floodplain. It is important to recognize, however, that much of the United States has
not been mapped by FEMA and, in some cases, a particular map may be out of date and may not
accurately represent existing circumstances on the ground. The agencies will determine if a
particular map is no longer accurate based on factors, such as streams or rivers moving out of
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their channels with associated changes in the location of the floodplain. In the absence of
applicable FEMA maps, or in circumstances where an existing FEMA map is deemed by the
agencies to be out of date, the agencies will rely on other available tools to identify the 100-year
floodplain, including other Federal, State, or local floodplain maps, Natural Resources
Conservation Service (NRCS) Soil Surveys (Flooding Frequency Classes), tidal gage data, and
site-specific modeling (e.g., Hydrologic Engineering Centers River System Analysis System or
HEC-RAS). http://websoilsurvey.sc.egov.usda.gov/App/HomePage.htm and HEC-RAS and
http://www.hec.usace.army.mil/software/hec-ras/. Additional supporting information can
include historical evidence, such as photographs, prior delineations, topographic maps, and
existing site characteristics. Because identifying the 100-year floodplain is an important aspect
of establishing jurisdiction under the rule and the reliable and appropriate tools for identifying
the 100-year floodplain may vary, the agencies will coordinate with other federal and state
agencies to develop additional information for EPA and Corps field staff to further improve tools
for identifying the 100-year floodplain in a consistent, predictable, and scientifically valid
manner.
When determining the outer distance threshold for an adjacent water the line is drawn
perpendicular to the ordinary high water mark or high tide line of the traditional navigable water,
interstate water, the territorial seas, impoundment, or covered tributary and extended landward
from that point. If there are breaks in the ordinary high water mark, the line should be
extrapolated from the point where the ordinary high water mark is observed on the downstream
side to the point where the ordinary high water mark is lost on the upstream side. Therefore,
waters may meet the definition of neighboring even where, for example, a tributary temporarily
flows underground.
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The agencies emphasize that they fully support efforts by States and tribes to protect
under their own laws any additional waters, including locally special waters that may not be
within the Federal protections of the CWA as the agencies have interpreted its scope in this
rule. In promulgating the adjacent water boundaries, the agencies have balanced protection and
clarity, scientific uncertainties and regulatory experience, and established boundaries that are, in
their judgment, reasonable and consistent with the statute and its goals and objectives.
If waters identified in this section are determined to be adjacent, no case-specific
significant nexus evaluation is required.
2. What Changes Did the Agencies Make from the Proposed Rule Based on
Public Comments?
In the proposal, the agencies sought comment on a number of ways to address and clarify
jurisdiction over adjacent waters, including establishing a floodplain interval and providing
clarity on reasonable proximity as an important aspect of adjacency. In light of the comments,
the science, the agencies experience, and the Supreme Courts consistent recognition of the
agencies discretion to interpret the bounds of CWA jurisdiction, the agencies have made some
revisions in the final rule designed to more clearly establish boundaries on the scope of adjacent
waters.
Under the proposal and the final rule, adjacent waters are jurisdictional based on the
conclusion that they have a significant nexus to traditional navigable waters, interstate waters, or
the territorial seas, and there is no need for additional analysis. Some commenters wanted a
case-specific analysis for all adjacent waters as they believed that the waters would not
individually have a significant nexus to an adjacent water of the United States, while others
noted that their functional relationship to the downstream traditional navigable waters, interstate
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waters, or the territorial seas warranted the conclusion that they were all jurisdictional. Based on
a review of the science, the agencies expertise and experience, and the law, the agencies
determined that adjacent waters, as defined, alone or in combination with other covered
adjacent waters in a watershed have a significant nexus to a traditional navigable water,
interstate water or the territorial seas and therefore are waters of the United States" without the
need for any additional analysis. However, the rule also provides for case-specific analysis of
some waters that do not meet the definition of neighboring established by the rule. See section
IV.H.
The proposal included wetlands, ponds, lakes, and impoundments that contribute flow,
directly or indirectly, to the downstream traditional navigable waters, interstate waters, or the
territorial seas in the definition of tributary. Some commenters expressed concern that since
such waters generally do not have both an ordinary high water mark and a bed and banks, the
definition of tributary was contradictory and confusing. The agencies sought comment on
whether to treat these waters as adjacent waters instead of tributaries, since they not only
contribute flow, but they also border or are contiguous to the waters to which they contribute
flow. The SAB in particular commented that the agencies may want to consider whether flowthrough lentic systems should be included as adjacent waters and wetlands, rather than as
tributaries. SAB 2014b at 2. In light of the comments and to provide additional clarity, the
agencies revised the definitions of adjacent and tributary to include these waters as
adjacent.
Under the existing rule, there is no definition for the term neighboring, and the public
commented that not having a definition created a lack of clarity and inconsistent field practices
across the nation. In the proposal, neighboring was defined to include waters located within
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the riparian area or floodplain of a traditional navigable water, interstate water, territorial sea,
impoundment, or tributary; waters with a shallow subsurface hydrologic connection to a
jurisdictional water; and waters with a confined surface hydrologic connection to a jurisdictional
water. Although the definitions were scientifically-based for the terms riparian area and
floodplain to define the lateral reach of the term neighboring, some commenters indicated
that the proposed definitions to clarify neighboring were not clear. Those commenters requested
that a specific floodplain interval or other limitation should be established to more clearly
identify the outer limit of neighboring. Some commenters stated that the proposed definition of
neighboring was unclear, while other commenters found the definition helped clarify CWA
jurisdiction and were supportive of including a broad definition, based on ecological
interconnectedness.
Some commenters stated that the proposed definitions of riparian area and floodplain
were vague or ambiguous, broad or effectively limitless, beyond the agencies authority or
difficult or impossible to implement in the field. Other commenters were supportive of using the
riparian area as a basis for adjacency. Some commenters asked why the agencies were proposing
a new definition of floodplain that was inconsistent with the definition used by other Federal
agencies like NRCS or FEMA. Some commenters suggested that if the agencies use floodplains
as a means to define neighboring, it should be limited to the area inundated by the 2-year, 5year, 10-year, or 20-year flood, while other commenters supported the use of the 100-year
floodplain as a component of neighboring. Some commenters supported including all
wetlands and other waters in the 100-year floodplain as categorically jurisdictional. Other
commenters requested that floodplain size be based on tributary size, while others suggested that
it should be based on soil and geologic features, and some suggested the use of the FEMA flood
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zone maps. Some commenters stated that reasonable proximity was neither defined nor
clarified adjacency, noting that adjacency should not apply to waters separated from a water of
the United States by great distances.
In response to comments and to provide greater clarity and consistency, in the rule the
agencies establish a definition of neighboring which provides additional specificity requested by
some commenters, including establishing a floodplain interval and providing specific boundaries
from traditional navigable waters, interstate waters, the territorial seas, impoundments, and
tributaries. In the proposal, the agencies requested comment on whether the rule should provide
greater specificity with regard to how the agencies will determine if a water is located in the
floodplain of a jurisdictional water. 79 FR 22209. As recommended by the public and based on
science, the agencies boundaries for neighboring are based largely on use of the 100-year
floodplain. The agencies concluded that the use of the riparian area was unnecessarily
complicated and that as a general matter, waters in the riparian area will also be in the 100-year
floodplain. Further, should the riparian area on occasion extend beyond the 100-year floodplain,
the agencies have the ability to perform a case-specific significant nexus analysis on a water out
to 4,000 feet from the ordinary high water mark or high tide line of a traditional navigable water,
interstate water, the territorial sea, impoundment, or tributary. The agencies have drawn these
lines based on their technical expertise and experience in order to provide a rule that is practical
to understand and implement and protects those waters that significantly affect the chemical,
physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial
seas. Because science indicates that connectivity is on a gradient, the agencies have also
identified limited circumstances in which waters that do not meet the definition of neighboring
may be determined on a case-specific basis to have a significant nexus. See section IV.I.
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First, the rule establishes as neighboring waters that occur within 100 feet from
traditional navigable waters, interstate waters, the territorial seas, impoundments, and tributaries.
Second, the rule utilizes a specific floodplain and also establishes maximum distances for
purposes of neighboring. Studies have found that waters within the floodplain are dynamically
connected and frequently interact with the downstream traditional navigable water, interstate
water, territorial sea, impoundment, or tributary. Some commenters indicated that a specific
floodplain or other designation should be set to define the outer boundary of neighboring.
Further, some commenters requested that the 100-year floodplain designation be used to define
the outer boundary of adjacency because the public understands this concept. Several
commenters recommended that FEMA or NRCS maps be used to support the analysis as these
maps are easily accessible to the public. Because FEMA maps exist for many areas of the
country and the NRCS Soil Survey maps do as well, the agencies decided that defining
neighboring based in part on a particular floodplain or recurrence interval was a reasonable
means of ensuring the consistency and certainty that is important to the public and for
implementation of the CWA. In drawing lines, the agencies chose the 100-year floodplain in
part because FEMA and NRCS together have generally mapped large portions of the United
States, and these maps are publicly available, well-known and well-understood.
Because the 100-year floodplain can be very wide in some areas of the country,
particularly near large rivers, the agencies chose to provide increased clarity and certainty while
ensuring that waters that provide important functions significantly affecting the chemical,
physical, and biological integrity of the downstream traditional navigable waters, interstate
waters, or the territorial seas are protected by establishing a 1,500 foot maximum distance for
neighboring waters in the rule. Waters within the 100-year floodplain to a maximum of 1,500
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feet of the ordinary high water mark are adjacent without regard to the presence of berms or
other barriers. However, because the science demonstrates that floodplain waters provide
important functions for downstream waters, the agencies have established a provision under
(a)(8) for case-specific significant nexus evaluations of waters located in the 100-year floodplain
of a traditional navigable water, interstate water, or the territorial seas beyond 1,500 feet.
The rule also establishes a separate bright line for including as jurisdictional those waters
that occur within 1,500 feet of tidally-influenced traditional navigable waters or the territorial
seas.
The proposal defined neighboring to include waters with a surface connection to
jurisdictional waters and some commenters recommended eliminating surface hydrologic
connectivity as a basis for adjacency. The definition of neighboring does not include a provision
defining neighboring based on a surface hydrologic connection. However, waters with
confined surface hydrologic connections are considered adjacent where they are bordering,
contiguous, or neighboring a traditional navigable water, interstate water, the territorial seas,
impoundment, or covered tributary. For example, a water with a confined surface hydrologic
connection to a traditional navigable water that is 1,200 feet from the high tide line of that water
would meet the definition of neighboring and be considered an adjacent water. In circumstances
where a water does not meet the definition of neighboring but is located within the 100-year
floodplain of a traditional navigable water, interstate water, or the territorial seas, or within 4,000
feet of a jurisdictional water, a confined surface hydrologic connection may be an important
factor in evaluating a case-specific significant nexus under (a)(8). See section H. below.
The proposal defined neighboring to include waters connected with a shallow
subsurface connection, and some commenters recommended eliminating subsurface hydrologic
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connectivity as a basis for adjacency. For example, some commenters asserted that, because the
CWA does not apply to groundwater, the agencies do not have the authority to assert jurisdiction
over waters connected to other waters of the United States via a shallow subsurface hydrologic
connection. Some commenters were concerned that the distinction between groundwater and a
shallow subsurface connection was unclear and questioned whether using a shallow subsurface
connection as a basis for adjacency is contradictory to excluding groundwaterincluding
groundwater drained through subsurface drainage systemsas a water of the United States.
Some commenters supported use of shallow subsurface connectivity for adjacency, since the
significant nexus test would be employed to make the determination of jurisdiction. Several
commenters suggested that the rule should protect groundwater and shallow subsurface flow, due
to its connectivity to other waters of the United States and particularly since altering it could
affect the downstream waters. A few commenters simply requested clarifications regarding
issues such as how to determine whether a subsurface connection exists; the meaning of
shallow; distinguishing between shallow and deep; whether there were any boundaries on
adjacency via hydrologic connectivity; and determining whether the connection was sufficient
to establish adjacency. In order to provide more certainty to the public, the rule does not include
a provision defining neighboring based on shallow subsurface flow, though such flow may be an
important factor in evaluating a water on a case-specific basis under paragraph (a)(8), as
appropriate.
Some commenters expressed concern that the agencies proposed definition of
neighboring, riparian area, and floodplain would mean that all land within the floodplain
or riparian area would become regulated. In fact, only waters, not land, in the floodplain or
riparian area would have been considered adjacent under the proposed rule. Similarly, under the
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final rule, only waters, not land, are adjacent. In response, the agencies have eliminated the
definitions of floodplain and riparian area and have provided a definition of neighboring which is
clear that only waters in specified circumstances may be waters of the United States.
The agencies also eliminated a parenthetical from the existing adjacent wetlands
regulatory provision. The phrase other than waters that are themselves wetlands was intended
to preclude asserting CWA jurisdiction over wetlands that were simply adjacent to a nonjurisdictional wetland. Such waters do not meet the definition of "adjacent" under the rule since
waters must be adjacent to a traditional navigable water, interstate water, the territorial seas,
impoundment, or covered tributary, so the phrase is unnecessary and confusing. With this
change, the agencies are protecting all waters that meet the definition of adjacent as waters of
the United States," and eliminating confusion caused by the parenthetical. For example, where
the 100-year floodplain is greater than 1,500 feet, all wetlands within 1,500 feet of the tributary's
ordinary high water mark are jurisdictional because they are neighboring to the tributary,
regardless of the wetlands position relative to each other.
Some commenters stated that the proposed rule was an expansion of jurisdiction because
it would change the provision from adjacent wetlands to adjacent waters. The agencies
acknowledge that under the existing regulation, the adjacency provision applied only to wetlands
adjacent to waters of the United States. However, also under the existing regulation, other
waters (such as intrastate rivers, lakes and wetlands that are not otherwise jurisdictional under
other sections of the rule) could be determined to be jurisdictional if the use, degradation or
destruction of the water could affect interstate or foreign commerce. This provision of the
existing regulation reflected the agencies interpretation at the time of the jurisdiction of the
CWA to extend to the maximum extent permissible under the Commerce Clause of the
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Constitution. Therefore, while the language of the specific adjacency provision in the final rule
may have changed from wetlands to waters, that does not represent an expansion of jurisdiction
as a whole in comparison to the existing regulation, since adjacent non-wetland waters would
have been subject to jurisdiction under the other waters provision. The final rule does not
protect all waters that were protected under the other waters provision of the existing
regulation, and therefore the inclusion of adjacent ponds, for example, in the adjacent waters
provision of the final rule does not reflect an overall expansion of jurisdiction when compared to
the existing regulation.
3. How Do Science and Law Support the Rule?

Based on a review of the scientific literature and the agencies expertise and experience
the agencies determined that the categories of waters discussed below are integrally linked to the
chemical, physical, or biological functions of waters to which they are adjacent and downstream
to the traditional navigable waters, interstate waters or the territorial seas. Therefore, the
agencies determined that the waters defined as adjacent have a significant nexus with traditional
navigable waters, interstate waters or the territorial seas and are thus waters of the United
States. Additional information, including citations, can be found in section III of the preamble,
the Science Report,and the Technical Support Document for the rule.
a. Waters that are bordering or contiguous
As discussed in section III above, wetlands, ponds, lakes, oxbows, impoundments, and
similar water features that are bordering or contiguous perform a myriad of critical chemical and
biological functions associated with the downstream traditional navigable waters, interstate
waters, or the territorial seas. Such waters are integrally linked with the jurisdictional waters to
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which they are adjacent. Because of their close physical proximity to nearby jurisdictional
waters, bordering or contiguous waters readily exchange their waters through the saturated soils
surrounding the traditional navigable water, interstate water, the territorial seas, impoundment, or
covered tributary or through surface exchange. This commingling of waters allows bordering or
contiguous waters to both provide chemically transformed waters to streams and to absorb
excess stream flow, which in turn can significantly affect downstream traditional navigable
waters, interstate waters, or the territorial seas. The close proximity also allows for the direct
exchange of biological materials, including organic matter that serves as part of the food web of
downstream traditional navigable waters, interstate waters, or the territorial seas. Waters that are
bordering or contiguous are often located on the floodplain or within the riparian area of the
waters to which they are adjacent. Bordering or contiguous waters include those that directly
abut a traditional navigable water, interstate water, the territorial seas, impoundment, or covered
tributary. The Science Report and the Technical Support Document demonstrate that such waters
are physically, chemically, and biologically integrated with downstream traditional navigable
waters, interstate waters, or the territorial seas and significantly affect their integrity.
b. Waters separated from other waters of the United States by constructed
dikes or barriers, natural river berms, beach dunes and the like
Adjacent waters separated from a traditional navigable water, interstate water, the
territorial seas, impoundment, or covered tributary by constructed dikes or barriers, natural river
berms, beach dunes, and the like continue to have a significant effect on downstream traditional
navigable waters, interstate waters, or the territorial seas, either alone or in combination with
other adjacent waters. Such waters continue to have a hydrologic connection to downstream
waters. This is because constructed dikes or barriers, natural river berms, beach dunes, and the
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like typically do not block all water flow. This hydrologic connection can occur via seepage, or
the flow of water through the soil pores, or via over-topping, where water from the nearby
traditional navigable water, interstate water, the territorial seas, impoundment, or covered
tributary periodically overtops the berm or other similar feature. Berm-like landforms known as
natural levees occur naturally and do not isolate adjacent wetlands from the streams that form
them. Natural levees and the wetlands and waters behind them are part of the floodplain. Natural
levees are discontinuous, which allows for a hydrologic connection to the stream or river via
openings in the levees and thus the periodic mixing of river water and backwater. Man-made
levees and similar structures also do not isolate adjacent waters. Waters, including wetlands,
separated from a jurisdictional water by a natural or man-made berm serve many of the same
functions as other adjacent waters. Furthermore, even in cases where a hydrologic connection
may not exist, there are other important considerations, such as chemical and biological
functions, that result in a significant nexus between the adjacent wetlands or waters and the
nearby waters of the United States, and traditional navigable waters, interstate waters, or the
territorial seas. On this point, Justice Kennedy stated: In many cases, moreover, filling in
wetlands separated from another water by a berm can mean that floodwater, impurities, or runoff
that would have been stored or contained in the wetlands will instead flow out to major
waterways. With these concerns in mind, the Corps' definition of adjacency is a reasonable one,
for it may be the absence of an interchange of waters prior to the dredge and fill activity that
makes protection of the wetlands critical to the statutory scheme. Rapanos at 775. For
instance, covered adjacent waters behind berms can still serve important water quality functions,
serving to filter pollutants and sediment before they reach downstream waters. Wetlands and
open waters behind berms, where the system is extensive, can help reduce the impacts of storm
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surges caused by hurricanes. Such adjacent waters, including wetlands, separated from waters
by berms and the like maintain ecological connection with those waters. It is not the existence of
the dike, levee, and the like that makes these waters jurisdictional. Adjacent waters separated
from the tributary network by constructed dikes or barriers, natural river berms, beach dunes, and
the like continue to have a hydrologic connection to downstream waters. Waters behind berms
and the like can significantly affect the chemical, physical, and biologic integrity of traditional
navigable waters, interstate waters, or the territorial seas.
c. Waters within 100 feet
All wetlands, ponds, lakes, oxbows, impoundments, and similar water features that are
located in whole or in part within 100 feet of the ordinary high water mark of a jurisdictional
water perform a myriad of critical chemical, physical, and biological functions associated with
the downstream traditional navigable water, interstate water or the territorial seas and therefore
the agencies have determined that they are neighboring and thus waters of the United States.
Waters within 100 feet of a jurisdictional water are often located within the riparian area and are
often connected via surface and shallow subsurface hydrology to the water to which they are
adjacent. While the SAB was clear that distance is not the only factor that influences connections
and their effects downstream, due to their close proximity to jurisdictional waters, waters within
100 feet are often located within a landscape position that allows for them to receive and process
surface and shallow subsurface flows before they reach streams and rivers. These waters
individually and collectively affect the integrity of downstream waters by acting primarily as
sinks that retain floodwaters, sediments, nutrients, and contaminants that could otherwise
negatively impact the condition or function of downstream waters. Wetlands and open waters
within close proximity of jurisdictional waters improve water quality through assimilation,
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transformation, or sequestration of nutrients, sediment, and other pollutants that can affect the
integrity of downstream traditional navigable waters, interstate waters, or the territorial seas.
These waters, including wetlands, also provide important habitat for aquatic-associated species
to forage, breed, and rest.
In order to provide greater clarity and consistency and based on a review of the science
and the agencies expertise and experience, the agencies identified a 100 foot threshold for
neighboring waters to a traditional navigable water, interstate water, territorial sea, tributary, or
impoundment. Further, the agencies determined that there is a significant nexus with the
downstream traditional navigable waters, interstate waters, or the territorial seas, and these
adjacent waters are waters of the United States. With respect to provision of water quality
benefits downstream, non-floodplain waters within close proximity of the stream network often
are able to have more water quality benefits than those located at a distance from the stream.
Many studies indicate that the primary water quality and habitat benefits will generally occur
within a several hundred foot zone of a water. In addition, the scientific literature indicates that
to be effective, contaminant removal needs to occur at a reasonable distance prior to entry into
the downstream traditional navigable waters, interstate waters, or the territorial seas. Some
studies also indicate that fish, amphibians (e.g., frogs, toads), reptiles (e.g., turtles), and small
mammals (e.g., otters, beavers, etc.) will use at least a 100 foot zone for foraging, breeding,
nesting, and other life cycle needs.
Based on a review of the scientific literature and the agencies expertise and experience,
there is clear evidence that the identified waters within 100 feet of the ordinary high water mark
of a jurisdictional water, even when located outside the floodplain, perform critical processes and
functions discussed in section III above. All waters within 100 feet of a jurisdictional water
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significantly affect the chemical, physical, or biological integrity of the waters to which they are
adjacent, and those waters in turn significantly affect the chemical, physical, or biological
integrity of the downstream traditional navigable waters, interstate waters, or the territorial seas.
The agencies established a 100 foot threshold from the waters lateral limit in the definition of
neighboring because, based on the agencies expertise and experience implementing the CWA
and in light of the science, the agencies concluded this was a reasonable and practical boundary
within which to conclude the waters clearly significantly affected the integrity of traditional
navigable waters, interstate waters, or the territorial seas, and these adjacent waters are waters
of the United States.
d. Floodplain waters within 1,500 feet
As discussed in section III above, wetlands and open waters that are neighboring
perform a myriad of critical chemical and biological functions associated with the downstream
traditional navigable waters, interstate waters, or the territorial seas. The scientific literature
supports that wetlands and open waters in floodplains are chemically, physically, and
biologically connected to downstream traditional navigable waters, interstate waters, or the
territorial seas and significantly affect the integrity of such waters. The Science Report concludes
that wetlands and open waters located in floodplains are physically, chemically and biologically
integrated with rivers via functions that improve downstream water quality, including the
temporary storage and deposition of channel-forming sediment and woody debris, temporary
storage of local ground water that supports baseflow in rivers, and transformation and transport
of stored organic matter. Science Report at ES-2 to ES-3. Such waters act as the most effective
buffer to protect downstream waters from nonpoint source pollution (such as nitrogen and
phosphorus), provide habitat for breeding fish and aquatic insects that also live in streams, and
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retain floodwaters, sediment, nutrients, and contaminants that could otherwise negatively impact
the condition or function of downstream waters.
For waters in the 100-year floodplain within 1,500 feet of the ordinary high water mark
of a traditional navigable water, interstate water, the territorial seas, impoundment, or covered
tributary, the agencies determine there is a significant nexus with the downstream traditional
navigable waters, interstate waters, or the territorial seas and these waters are critical to protect
the downstream waters. Based on a review of the scientific literature, the agencies technical
expertise and experience, and the implementation value of drawing clear lines, the rule
establishes a boundary for floodplain waters to meet the definition of neighboring and be
waters of the United States by rule. This boundary was established in order to protect vitally
important waters within a watershed while at the same time providing a practical and
implementable rule. The agencies are not determining that waters in the floodplain farther than
1,500 feet from the ordinary high water mark never have a significant nexus. Rather, the
agencies are using their technical expertise to promulgate a practical rule that draws reasonable
boundaries in order to protect the waters that most clearly have a significant nexus while
minimizing uncertainty about the scope of waters of the United States. Because waters beyond
these boundaries may have a significant nexus, the rule also establishes areas in which a casespecific significant nexus determination must be made. See section IV.H.
e. Waters within 1,500 feet of tidally-influenced traditional navigable waters or
the territorial seas or the Great Lakes
Many tidally-influenced waters do not have floodplains, so the agencies include a
separate provision within the definition of neighboring to protect the adjacent waters that
have a significant nexus to tidally-influenced traditional navigable waters or the territorial seas or
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the Great Lakes. Under Riverside Bayview and Justice Kennedys opinion in Rapanos, waters
adjacent to traditional navigable waters, including the territorial seas, are waters of the United
States. Because the connection to a tidally-influenced traditional navigable water, the territorial
seas, or the Great Lakes is so close, the rule defines neighboring to include waters within 1,500
feet of the high tide line or the ordinary high water mark of the Great Lakes. Wetlands, ponds,
lakes, oxbows, impoundments, and similar water features within 1,500 feet of these waters are
physically connected to such waters by surface and shallow subsurface flow. As demonstrated in
section III above, these waters perform a myriad of critical chemical and biological functions
associated with these nearby waters to which they are adjacent.
These waters in combination significantly affect the integrity of the connected tidally
influenced traditional navigable water or the territorial seas or the Great Lakes by acting
primarily as sinks that retain floodwaters, sediments, nutrients, and contaminants that could
otherwise negatively impact the condition or function of those waters. Like floodplain waters,
the scientific literature supports that wetlands and other similar waters within close proximity
improve water quality through assimilation, transformation, or sequestration of nutrients,
sediment, and other pollutants that can affect downstream water quality. These waters also
provide important habitat for aquatic-associated species to forage, breed, and rest in.
For example, wetlands dominated by grass-like vegetation that occur in depressional
areas between sand dunes or beach ridges along the territorial seas and the Great Lakes shoreline
are dependent upon these waters for their water source. The waters, including wetlands,
generally form when water levels of the territorial seas fall or the Great Lakes drop, creating
swales that support a diverse mix of wetland vegetation and many endangered and threatened
species. Many studies demonstrate that these waters have been shown to act in concert with the
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rising and lowering of the tide, and that the critical functions provided by these waters are similar
and play an important role in maintaining the chemical, physical, or biological integrity of the
nearby traditional navigable waters, interstate waters, or the territorial seas because of the
hydrological and ecological connections to and interactions with those waters.
Science demonstrates that distance is a factor in the connectivity and the strength of
connectivity of wetlands and open waters to downstream waters. Thus, waters that are more
distant generally have less opportunity to be connected to downstream waters. Wetlands and
open waters closer to the stream network generally will have greater hydrologic and biological
connectivity than waters located farther from the same network. For instance, waters that are
more closely proximate have a greater opportunity to contribute flow. Via their hydrologic
connectivity, they also have chemical connectivity to and effects on these downstream waters
and are more likely to impact water quality due to their close distance. Waters more closely
located to these waters are also more likely to be biologically connected to such waters more
frequently and by more species, including amphibians and other aquatic animals. Because
tidally-influenced traditional navigable waters, the territorial seas, and the Great Lakes are
generally much larger in size than other jurisdictional waters, the agencies believe that a 1,500
foot threshold is a reasonable distance to capture most wetlands and open waters that are so
closely linked to these waters that they can properly be considered adjacent as neighboring
waters.
Based on a review of the scientific literature and the agencies expertise and experience,
there is clear evidence waters within 1,500 feet of these waters, even when located outside the
floodplain, perform critical processes and functions discussed in section III above. The agencies
established a 1,500 foot threshold from the waters lateral limit, which would be either the high
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tide line or the ordinary high water mark, in the definition of neighboring because, based on the
agencies expertise and experience implementing the CWA and in light of the science, the
agencies concluded this was a reasonable and practical boundary within which to conclude the
waters most clearly significantly affected the integrity of the traditional navigable water or the
territorial seas, and these covered adjacent waters are waters of the United States. Waters
located within the 100-year floodplain of a traditional navigable water, interstate water, or the
territorial seas, and waters located more than 1,500 feet and less than 4,000 feet from the
ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an
impoundment, or a tributary, may still be determined to have a significant nexus on a casespecific basis under paragraph (a)(8) of the rule and therefore be a water of the United States.
See section IV.H.
H.
Case-Specific Waters of the United States
The rule establishes two exclusive circumstances under which case-specific

determinations will be made for whether a water has a significant nexus and is therefore a
water of the United States. The proposed rule included a broad provision that allowed for a
case-specific determination of significant nexus for any water that was not categorically
jurisdictional or excluded. Many commenters expressed concern that such a broad opportunity
for case-specific waters of the United States determinations would lead to too much
uncertainty about the jurisdictional status of waters in broad areas throughout the country. The
agencies have greatly reduced the extent of waters subject to this individual review by carefully
incorporating the scientific literature and by utilizing agency expertise and experience to draw
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boundaries. The rule provides for case-specific determinations under more narrowly targeted
circumstances based on the agencies assessment of the importance of certain specified waters to
the chemical, physical, and biological integrity of traditional navigable waters, interstate waters,
and the territorial seas.
First, the rule identifies at paragraph (a)(7) five subcategories of waters (Prairie potholes,
prairie wetlands) that the agencies have determined are similarly situated for purposes of a
significant nexus determination. Second, the rule identifies at paragraph (a)(8) specific
circumstances under which waters will be subject to a case-specific significant nexus
determination but for which the agencies have not made a similarly situated determination:
waters within the 100-year floodplain of a traditional navigable water, interstate water, or the
territorial seas, and waters within 4,000 feet of the high tide line or the ordinary high water mark
of a traditional navigable water, interstate water, the territorial seas, impoundments, or
tributaries, as defined. If any water meets the definition of adjacent waters it is jurisdictional
under (a)(6) and no case-specific significant nexus is required. Waters that do not fall within the
six categorically jurisdictional waters identified in paragraph (a)(1) through (a)(6) of the rule or
within these two case-specific provisions are not waters of the United States.
This section first discusses the five subcategories of waters that the agencies determine
are similarly situated for purposes of a significant nexus determination; second, the 100-year
floodplain and 4,000 foot boundaries under which waters will be subject to a case-specific
significant nexus determination but for which the agencies have not made a similarly situated
determination; third, the definition of significant nexus and how the case-specific significant
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nexus determinations will be made under these two provisions; and, finally, the revisions made
to the rule with respect to case-specific determinations and major comments.
1. Waters Determined to Be Similarly Situated by Rule for which a Case-Specific

Significant Nexus Determinations is Required
In the rule, paragraph (a)(7) specifies the subcategories of waters (Prairie potholes,
prairie wetlands) that, if they are not otherwise jurisdictional under (a)(1) through (a)(6), the
agencies determine to be similarly situated by rule. In the proposal the agencies sought
comment on a number of options to address remaining waters that did not fit within the
jurisdictional categories, including whether to conclude that other waters were similarly
situated in certain areas of the country or whether to conclude that specified subcategories of
waters were jurisdictional. 79 FR 22215, 22216. The agencies concluded that waters within the
five subcategories were similarly situated in the areas of the country in which they are located.
The rationale for this determination is discussed above in Section III. Under paragraph (a)(7),
Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and
Texas coastal prairie wetlands are jurisdictional when they have a significant nexus to a
traditional navigable water, interstate water, or the territorial seas. Waters subject to normal
farming, silviculture, and ranching activities that are within these subcategories will be assessed
consistent with this provision of the rule. Waters in these subcategories are not jurisdictional as a
class under the rule. However, because the agencies determined that these subcategories of
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waters are similarly situated, the waters within the specified subcategories that are not
otherwise jurisdictional under (a)(6) of the rule must be assessed in combination with all waters
of the same subcategory in the region identified by the watershed that drains to the nearest point
of entry of a traditional navigable water, interstate water, or the territorial seas (hereinafter
referred to as the point of entry watershed).
When performing a case-specific significant nexus evaluation for a water in the (a)(7)
subcategories, the rule establishes which waters must be considered in combination. The
similarly situated waters identified in the subparagraphs will be combined with other waters in
the same subparagraph located in a single point of entry watershed. For example, under (a)(7)
only western vernal pools can be analyzed with other western vernal pools in the same point of
entry watershed. Waters identified in the subparagraphs that are otherwise jurisdictional under
the rule cannot be considered in combination with (a)(7) waters for purposes of a case-specific
significant nexus determination under (a)(7). Individual waters of the specified subcategories
may be jurisdictional under other paragraphs of this rule (e.g., a Prairie pothole that sits on a state
border is an interstate water under (a)(2) or a western vernal pool that meets the definition of
adjacent under (a)(6)). Where those individual waters are jurisdictional under (a)(1) through
(a)(6) by rule, no case-specific significant nexus analysis is required. The rule also states that
waters in (a)(7) shall not be combined with waters jurisdictional under (a)(6). Essentially, while
Prairie potholes are an identified subcategory under (a)(7), that identification does not affect a
Prairie pothole that borders a covered tributary and is jurisdictional as an adjacent water under
(a)(6). Additionally, a Prairie pothole that is jurisdictional under (a)(6) cannot be combined with
Prairie potholes that require a case-specific jurisdictional analysis under (a)(7) since adjacent
waters have already been determined to have a significant nexus by rule. Finally, waters within
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the specified subcategories in (a)(7) are assessed under (a)(7) not under (a)(8); waters within the
specified subcategories that are within the 100-year flood plain of a traditional navigable water,
interstate water, or the territorial seas or within the 4,000 foot boundary established for casespecific determinations under (a)(8) remain similarly situated waters under (a)(7). These
similarly situated waters are evaluated in combination for their effect on the chemical, physical,
or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.
Additional details about the case-specific significant nexus analysis are found in section 4 below.
2.
Waters Within the 100-Year Floodplain of a Traditional Navigable Water,

Interstate Water, or the Territorial Seas and Waters Within 4,000 Foot Boundary
for which a Case-Specific Significant Nexus Determination is Required
Paragraph (a)(8) in the rule specifies that a water that does not otherwise meet the
definition of adjacency is evaluated on a case-specific basis for significant nexus under this
paragraph where it is located within the 100-year floodplain of a traditional navigable water,
interstate water, or the territorial seas or within 4,000 feet of the high tide line or ordinary high
water mark of a traditional navigable water, interstate water, the territorial seas, impoundment, or
covered tributary. Although these waters are not considered similarly situated by rule, waters
under this paragraph can be determined on a case-specific basis to be similarly situated. This is a
change from the proposal which would have allowed for a similarly situated analysis and
significant nexus determination for any water, anywhere in the region. Under the rule, the waters
specified in (a)(7) and waters that meet the requirements in (a)(8) are the only waters for which a
case-specific significant nexus determination may be made.
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Under paragraph (a)(8), only waters that are within the 100-year floodplain of a
traditional navigable water, interstate water, or the territorial seas or within the 4,000 foot
boundary can be evaluated on a case-specific basis for significant nexus to a traditional navigable
water, interstate water, or the territorial seas. If a portion of the water is located within the 100year floodplain of a traditional navigable water, interstate water, or the territorial seas or 4,000
feet of the ordinary high water mark or high tide line of a traditional navigable water, interstate
water, the territorial seas, impoundment, or covered tributary, the entire water will be considered
to be within the boundaries for (a)(8) and will undergo a case-specific significant nexus
determination. Under this provision, if the 100-year floodplain of a traditional navigable water,
interstate water, or the territorial seas extends beyond 4,000 feet of the ordinary high water mark,
a water, that is not otherwise jurisdictional under the rule, within that floodplain will be
evaluated under the 100-year floodplain boundary of (a)(8). A water within the boundaries must
be evaluated on a case-specific basis for not only a significant nexus but also for a determination
of whether there are any waters with which the waters is similarly situated. Waters identified in
paragraph (a)(8) may not be combined with waters identified in (a)(6) for purposes of the
significant nexus analysis, but may be combined with similarly situated waters located in the
same point of entry watershed. If waters identified in (a)(8) also meet the definition of adjacency
under paragraph (a)(6), they are jurisdictional as adjacent waters and do not need a casespecific significant nexus analysis. Under (a)(8), for example, the agencies would evaluate on a
case-specific basis whether a low-centered polygonal tundra and patterned ground bog in an area
with a small floodplain and located beyond the 1,500 foot boundary but within the 100-year
floodplain of a traditional navigable water, interstate water, or the territorial seas or within the
4,000 foot boundary, or a wetland in which normal farming, ranching, or silviculture activities
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occur, as those terms are used in Section 404(f) Clean Water Act and its implementing
regulations, has a significant nexus as defined in the rule.
Waters identified in the subcategories in (a)(7) are evaluated under (a)(7) only; the
provisions of (a)(8), including the boundaries in (a)(8), do not apply to (a)(7) waters. The
significant nexus analysis for waters under (a)(8) will then consider the waters individually or, if
it is determined that there are similarly situated waters, as a group of waters within a point of
entry watershed for their effect on the chemical, physical, or biological integrity of traditional
navigable waters, interstate waters, or the territorial seas.
Some commenters asked how wetlands underlain by permafrost would be treated under
this rule. Waters subject to case-specific review under (a)(8) will include areas determined to
meet the technical definition of wetlands because they have the required hydrology,
vegetation, and soils. The presence of permafrost is not itself determinative of whether a
particular area satisfies the three parameter requirement needed to be wetlands under the rule.
This is true under existing regulations and remains unchanged in this rule. Because the
definition of wetland does not change under the rule, the agencies do not anticipate the rule will
alter the current scope of CWA jurisdiction over wetlands underlain by permafrost.
a.
Summary of Rationale for Case-Specific Significant Nexus Analysis

Within 100-year Floodplain of a Traditional Navigable Water, Interstate
Water, or the Territorial Seas
As discussed in Section III, above, the scientific literature supports that wetlands and
open waters in floodplains are physically, chemically, and biologically connected to downstream
traditional navigable waters, interstate waters, or the territorial seas and significantly affect the
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integrity of such waters. The Science Report concludes that wetlands and open waters located in
floodplains are physically, chemically and biologically integrated with rivers via functions that
improve downstream water quality, including the temporary storage and deposition of channelforming sediment and woody debris, temporary storage of local ground water that supports
baseflow in rivers, and transformation and transport of stored organic matter. Science Report at
ES-2 to ES-3. As described in the Science Report and the Technical Support Document, such
waters act as the most effective buffer to protect downstream waters from nonpoint source
pollution (such as nitrogen and phosphorus), provide habitat for breeding fish and aquatic insects
that also live in streams, and retain floodwaters, sediment, nutrients, and contaminants that could
otherwise negatively impact the condition or function of downstream waters. As discussed
above, in defining waters as adjacent, and therefore categorically jurisdictional, the agencies
established a 1,500 foot boundary for waters located within the 100-year floodplain of a
traditional navigable water, interstate water, the territorial seas, impoundment, or covered
tributary in order to protect vitally important waters while at the same time providing a practical
and implementable rule. In light of the science on the functions provided by floodplain waters
and wetlands, waters and wetlands within the 100-year floodplain of traditional navigable waters,
interstate waters, or the territorial seas are likely to provide those functions for traditional
navigable waters, interstate waters, or the territorial seas. However, because the 100-year
floodplain of a traditional navigable water can, in some case be quite large, the agencies
concluded it was reasonable to subject waters and wetlands in the 100-year floodplain that are
beyond 1,500 feet of the ordinary high water mark, and therefore do not meet the definition of
neighboring, to a case-specific significant nexus analysis rather than concluding that such
waters are categorically jurisdictional. This inclusion of a case-specific analysis for such
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floodplain waters is supported by the SAB. The SAB concluded that distance should not be the
sole indicator used to evaluate the connection of other waters to jurisdictional waters. SAB
2014b at 3. In allowing the case-specific evaluation of waters within the 100-year floodplain of a
traditional navigable water, interstate water, or the territorial seas that do not meet the definition
of adjacency, the agencies are allowing for the functional relationship of those floodplain waters
to be considered regardless of distance. The SAB also supported the Science Reports conclusion
that the scientific literature strongly supports the conclusions that streams and bidirectional
floodplain wetlands are physically, chemically, and/or biologically connected to downstream
navigable waters; however, these connections should be considered in terms of a connectivity
gradient. SAB 2014a at 1. In addition, the SAB noted, the literature review does substantiate
the conclusion that floodplains and waters and wetlands in floodplain settings support the
physical, chemical, and biological integrity of downstream waters. Id. at 3.
The agencies do not anticipate that there will be numerous circumstances in which this
provision will be utilized because relatively few traditional navigable waters will have
floodplains larger than 4,000 feet (the other threshold in (a)(8) for waters regardless of
floodplain). Further, the agencies recognize that extensive areas of the nation's floodplains have
been affected by levees and dikes which reduce the scope of flooding. In these circumstances,
the scope of the 100-year floodplain is also reduced and is reflected in FEMA mapping used by
the agencies. In circumstances where there is little or no alteration of the floodplain and it
remains relatively broad, the agencies will explicitly consider distance between the water being
evaluated and traditional navigable water, interstate water, or the territorial seas when making
a case-specific significant nexus determination. Based on the science concerning the important
functions provided by floodplain waters and wetlands, the agencies established this provision to
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ensure that truly important waters may still be protected on a case-specific basis. By using the
100-year floodplain and limiting the provision to traditional navigable waters, interstate waters,
or the territorial seas, the agencies are reasonably balancing the protection of waters that may
have a significant nexus with the goal of providing additional certainty.
b.
Summary of Rationale for Case-Specific Significant Nexus Analysis

Within 4,000 Foot Boundary
The agencies establish a provision in the rule for case-specific significant nexus
determinations because the agencies concluded that some waters located beyond the distance
limitations established for adjacent waters can have significant chemical, physical, and
biological connections to and effects on traditional navigable waters, interstate waters, or the
territorial seas. The agencies reasonably identified the 4,000 foot boundary for these casespecific significant nexus determinations by balancing consideration of the science and the
agencies expertise and experience in making significant nexus determinations with the goal of
providing clarity to the public while protecting the environment and public health. The agencies
experience has shown that the vast majority of waters where a significant nexus has been found,
and which are therefore important to protect to achieve the goals of the Act, are located within
the 4,000 foot boundary. Moreover, because of the unique status under the CWA of traditional
navigable waters, interstate waters, and the territorial seas, the 100-year floodplain boundary for
these waters provides another means of identifying on a case-specific basis those waters that
significantly affect traditional navigable waters, interstate waters or the territorial seas. The
agencies balancing of these considerations is consistent with the statute and the Supreme Court
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opinions. The agencies decided that it is important to promulgate a rule that not only protects the
most vital of our Nations waters, but one that is practical and provides sufficient boundaries so
that the public reasonably understands where CWA jurisdiction ends.
The agencies decision to establish a provision that authorizes case-specific significant
nexus analysis for waters within 4,000 feet is based on a number of factors. These waters may
be located within the floodplain of a traditional navigable water, interstate water, the territorial
seas, impoundment, or covered tributary. Section IV.G. and the Technical Support Document
discuss the importance of floodplain waters on the chemical, physical, and biological integrity of
downstream traditional navigable waters, interstate waters, or the territorial seas. For purposes of
clarity and to provide regulatory certainty, the agencies decided to use distance boundaries
within the 100-year floodplain to define adjacency for floodplain waters. Under the rule, the only
floodplain waters that are specifically identified as being jurisdictional as adjacent are those
located in whole or in part within the 100-year floodplain and not more than 1,500 feet of the
ordinary high water mark of jurisdictional waters.
Similarly, due to the many functions that waters located within 4,000 feet of the high tide
line of a traditional navigable water or the territorial seas provide and their often close
connections to the surrounding traditional navigable waters, science supports the agencies
determination that such waters are rightfully evaluated on a case-specific basis for significant
nexus to a traditional navigable water or the territorial seas. Waters within 4,000 feet of the
ordinary high water mark of a traditional navigable water, interstate water, the territorial seas,
impoundment, or covered tributary may fall within the riparian areas of such waters. As
discussed in section IV.G., in response to comments regarding the uncertainty of the term
riparian area, the agencies removed the term from the definition of neighboring. However,
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the agencies continue to recognize that science is clear that wetlands and open waters in riparian
areas individually and cumulatively can have a significant effect on the chemical, physical, or
biological integrity of downstream waters. Thus, the rule allows for a case-specific determination
of significant nexus for waters located within 4,000 feet of the high tide line or the ordinary high
covered tributary.
The agencies have always recognized that adjacency is bounded by proximity, and the
rule adds additional clarity to adjacency by bounding what can be considered neighboring. The
science is clear that a waters proximity to downstream waters influences its impact on those
waters. The Science Report states, [s]patial proximity is one important determinant of the
magnitude, frequency and duration of connections between wetlands and streams that will
ultimately influence the fluxes of water, materials and biota between wetlands and downstream
waters. Science Report at ES-11. Generally, waters that are closer to a jurisdictional water are
more likely to be connected to that water than waters that are farther away. A case-specific
analysis for waters located within 4,000 feet of the high tide line or the ordinary high water mark
of a traditional navigable water, interstate water, the territorial seas, impoundment, or covered
tributary allows such waters to be considered jurisdictional only where they meet the significant
nexus requirements. Even where not within a 100-year floodplain, waters within 4,000 feet of the
high tide line or the ordinary high water mark of a traditional navigable water, interstate water,
the territorial seas, impoundment, or covered tributary can have significant chemical, physical,
and biological connections with traditional navigable waters, interstate waters, or the territorial
seas.
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As noted previously, in response to comments concerned that there were no bounds in the
proposed rule on how far a surface hydrologic connection could be for purposes of adjacency,
the agencies did not include surface hydrologic connections as its own factor for determining
adjacency in the final rule. Such connections, however, are relevant in a case-specific significant
nexus determination under (a)(8). For example, waters located within 4,000 feet of the high tide
line or the ordinary high water mark of a traditional navigable water, interstate water, the
territorial seas, impoundment, or covered tributary that contribute confined surface flow to a
downstream water can have important hydrologic connections to and effects on that downstream
water such as the attenuation and cycling of nutrients that would otherwise effect downstream
water quality.
The agencies decision to establish the case-specific provision at (a)(8), including the
boundaries, was also informed by the knowledge that waters located within 4,000 feet of the high
tide line or the ordinary high water mark of a traditional navigable water, interstate water, the
territorial seas, impoundment, or covered tributary can have a confined surface or shallow
subsurface connection to such a water. In order to provide the clarity and certainty that many
commenters requested regarding adjacent waters, the rule does not define neighboring to
include all waters with confined surface or shallow subsurface connections.
However, the agencies recognize that the science demonstrates that waters with a
confined surface or shallow subsurface connection to jurisdictional waters can have important
effects on downstream waters. For purposes of a case-specific significant nexus analysis under
the rule, a shallow subsurface hydrologic connection is lateral water flow over a restricting layer
in the top soil horizons, or a shallow water table which fluctuates within the soil profile,
sometimes rising to or near the ground surface. In addition, water can move within confined
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man-made subsurface conveyance systems such as drain tiles and storm sewers, and in karst
topography. Confined subsurface systems can move water, and potential contaminants, directly
to surface waters and rapidly without the opportunity for nutrient or sediment reduction along the
pathway.
Shallow subsurface connections move quickly through the soil and impact surface water
directly within hours or days rather than the years it may take long pathways to reach surface
waters. See Technical Support Document. Tools to assess shallow subsurface flow include
reviewing the soils information from the NRCS Soil Survey, which is available for nearly every
county in the United States. When assessing whether a water within the 4,000 foot boundary
performs any of the functions identified in the rules definition of significant nexus, the
significant nexus determination can consider whether shallow subsurface connections contribute
to the type and strength of functions provided by a water or similarly situated waters. However,
neither shallow subsurface connections nor any type of groundwater, shallow or deep, are
themselves waters of the United States.
The proposed rule did not set a distance threshold for case-specific waters to be evaluated
for a significant nexus. Some commenters argued that there should be a limitation on areas
subject to case-specific analysis while others contended that the agencies lack discretion to set
regulatory limits that would exclude from jurisdiction any water meeting the significant nexus
test. The agencies disagree that the agencies lack the authority to establish reasonable
boundaries to determine what areas are subject to case-specific significant nexus analysis.
Nothing in the CWA or case law mandates that the agencies require every water feature in the
nation be subject to analysis for significant nexus. The Supreme Court has made clear that the
agencies have the authority and responsibility to determine the limits of CWA jurisdiction, and
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establishing boundaries based on agency judgment, expertise and experience in administering the
statute is at the core of the agencies authority and discretion.
After weighing the scientific information about these waters connectivity and
importance to protecting downstream waters, the agencies considerable experience making
jurisdictional determinations, the objective of enhancing regulatory clarity and consistent with
the statute and the caselaw, the agencies decided to set a boundary of 4,000 feet for case-specific
significant nexus analysis for waters that do not otherwise meet the requirements of (a)(1)
through (a)(7). Tying this provision for case-specific significant nexus analysis to distance
informed by the science, and the agencies experience and expertise, as spatial proximity is a key
contributor to connectivity among waters. Science Report at ES-11. Distance is by no means the
sole factor, and aquatic functions will play a prominent role in determining whether specific
waters covered under this aspect of paragraph (a)(8) have a significant nexus. In light of the role
spatial proximity plays in connectivity and the objective of enhancing regulatory clarity,
predictability and consistency, the agencies conclude that establishing a boundary for this aspect
of waters subject to case-specific significant nexus analysis based on distance is reasonable.
While, for purposes of this national rule, distance is a reasonable and appropriate measure
for identifying where this case-specific significant nexus analysis will be conducted, the science
does not point to any particular bright line delineating waters that have a significant nexus from
those that do not. The Science Report concluded that connectivity of streams and wetlands to
downstream waters occurs along a gradient. The evidence unequivocally demonstrates that the
stream channels and floodplain wetlands or open waters that together form river networks are
clearly connected to downstream waters in ways that profoundly influence downstream water
integrity. The connectivity and effects of non-floodplain wetlands and open waters are more
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variable and thus more difficult to address solely from evidence available in peer-reviewed
studies. Science Report at ES-5. Because of this variability, with respect to waters that are not
covered by (a)(1) through (a)(7) of the rule, the science does not provide a precise point along
the continuum at which waters provide only speculative or insubstantial functions to downstream
waters.
Like connectivity itself, there is also a continuum of outcomes associated with picking a
distance threshold. A smaller threshold increases the likelihood that waters that could have a
significant nexus will not be analyzed and therefore not subject to the Act; a larger threshold
reduces that possibility, but also means that agency and the publics resources are expended
conducting significant nexus analyses on waters that have a lower likelihood of meriting the
Acts protection.
Recognizing that there is no optimal line, in selecting both the 100-year floodplain for
and the 4,000 foot boundaries the agencies looked principally to the extensive experience the
Corps has gained in making significant nexus determinations since the Rapanos decision. As
noted in Section III above, since the Rapanos decision, the agencies have developed extensive
experience making significant nexus determinations, and that experience and expertise informed
the judgment of the agencies in establishing both the 100-year floodplain boundary and the 4,000
foot boundary. The agencies have made determinations in every state in the country, for a wide
range of waters in a wide range of conditions. The vast majority of the waters that the Corps has
determined have a significant nexus are located within 4,000 feet of a jurisdictional tributary,
traditional navigable or interstate water, or the territorial seas. Therefore, the agencies conclude
that the 100-year floodplain and 4,000 foot boundaries in the rule will sufficiently capture for
analysis those waters that are important to protect to achieve the goals of the Clean Water Act.
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The agencies acknowledge that, as with any meaningful boundary, some waters that
could be found jurisdictional lie beyond the boundary and will not be analyzed for significant
nexus. The agencies minimize that risk by also establishing a provision in (a)(8) for casespecific significant nexus analysis of waters located within the 100-year floodplain of a
traditional navigable water, interstate water, or the territorial seas. While in the agencies
experience the vast majority of wetlands with a significant nexus are located within the 4,000
foot boundary, it is the agencies experience that there are a few waters that have been
determined to be jurisdictional that are located beyond this boundary, typically due to a surface
or shallow subsurface hydrologic connections. Nonetheless, the agencies have weighed these
considerations and concluded that the value of enhancing regulatory clarity, predictability and
consistency through a distance limit outweigh the likelihood that a distinct minority of waters
that might be shown to meet the significant nexus test will not be subject to analysis. In the
agencies experience, requiring an evaluation of significant nexus for waters covered by
paragraph (a)(8) should capture the vast majority of waters having a significant nexus to the
downstream waters. The agencies therefore conclude that that adoption of the 4,000 foot
boundary is reasonable.
The rules requirements for these waters, coupled with those for adjacent waters, create
an integrated approach that tailors the regulatory regime based on the science and the agencies
policy objectives. Determining by rule that covered adjacent waters have a significant nexus
follows the science, achieves regulatory clarity and predictability, and avoids expenditure of
agency and public resources on case-specific significant nexus analysis. Similarly, providing
for case-specific significant nexus analysis for waters that are not adjacent but within the 4,000
foot distance limit, as well as those within the 100-year floodplain of a traditional navigable
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water, interstate water, or the territorial seas, is consistent with science and agency experience,
will ensure protection of the important waters whose protection will advance the goals of the
Clean Water Act, and will greatly enhance regulatory clarity for agency staff, regulated parties,
and the public.
For these reasons, the agencies decided to allow case-specific determinations of
significant nexus for waters located within the 100-year floodplain of a traditional navigable
water, interstate water, or the territorial seas and for waters located within 4,000 feet of the high
tide line or the ordinary high water mark of a traditional navigable water, an interstate water, the
territorial seas, an impoundment, or a covered tributary. Under the rule, these waters are
jurisdictional only where they individually or cumulatively (if it is determined that there are
other similarly situated waters) have a significant nexus to traditional navigable waters, interstate
waters, or the territorial seas. Additional scientific and policy rationale for including such waters
as waters that can be evaluated on a case-specific basis can be find in the Technical Support
Document.
The agencies emphasize that they fully support efforts by States and tribes to protect
under their own laws any additional waters, including locally special waters that may not be
within the jurisdiction of the CWA as the agencies have interpreted its scope in this rule. Indeed,
the promulgation of the 100-year floodplain and 4000 foot boundaries for purposes of a casespecific analysis of significant nexus does not foreclose states from acting consistent with their
state authorities to establish protection for waters that fall outside of the protection of the CWA.
In promulgating the 4,000 foot boundary, the agencies have balanced protection and clarity,
scientific uncertainties and regulatory experience, and established a line that is, in their
judgment, reasonable and consistent with the statute and its goals and objectives.
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3.
Case-Specific Significant Nexus Determinations
Only waters identified in paragraphs (a)(7) or (a)(8) of the rule require a case-specific
determination of significant nexus. This section discusses the definition of significant nexus in
the rule and how the agencies will make case-specific significant nexus determinations under the
rule.
a. Definition of Significant Nexus
Paragraph (c)(5) of the rule defines the term significant nexus to mean a significant
effect (more than speculative or insubstantial) on the chemical, physical, or biological integrity
of a traditional navigable water, interstate water, or the territorial seas. Waters, including
wetlands, are evaluated either alone, or in combination with other similarly situated waters in the
region, based on the functions the evaluated waters perform. Functions to be considered for the
purposes of determining significant nexus are sediment trapping, nutrient recycling, pollutant
trapping, transformation, filtering and transport, retention and attenuation of floodwaters, runoff
storage, contribution of flow, export of organic matter, export of food resources, and provision of
life-cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or
use as a nursery area) for species located in traditional navigable waters, interstate waters, or the
territorial seas.
The agencies definition of significant nexus is based upon the language in SWANCC and
Rapanos. The definition is also consistent with current practice, where field staff evaluate the
functions of the waters in question and the effects of these functions on downstream waters. In
order to add clarity and transparency to the definition of significant nexus, the agencies have
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listed in the definition the functions that will be considered in a significant nexus analysis. These
functions are consistent with the agencies scientific understanding of the functioning of aquatic
ecosystems. A water does not need to perform all of the functions listed in paragraph (c)(5) in
order to have a significant nexus. Depending upon the particular water and the functions it
provides, if a water, either alone or in combination with similarly situated waters, performs just
one function, and that function has a significant impact on the integrity of a traditional navigable
water, interstate water, or the territorial seas, that water would have a significant nexus.
Case-specific determinations of significant nexus require (a)(7) or (a)(8) waters to be
evaluated either alone, or in combination with other similarly situated waters in the region. In the
rule, the agencies interpret the phrase in the region to mean the watershed that drains to the
nearest traditional navigable water, interstate water, or the territorial seas through a single point
of entry. See Section III. In circumstances where the single point of entry watershed includes
waters that are identified under (a)(7) and waters that are subject to analysis under (a)(8), those
waters will be analyzed separately under the provisions of those paragraphs.
In a case-specific analysis of significant nexus, the agencies determine whether the water
they are evaluating, in combination with other similarly situated waters in the region, has a
significant effect on the chemical, physical, or biological integrity of the nearest traditional
navigable water, interstate water, or the territorial seas. As noted previously, the agencies
evaluate the listed functions in paragraph (c)(5) as part of that evaluation to determine if the
water has an impact that is more than speculative or insubstantial.
b. Conducting Case-Specific Significant Nexus Determinations Under (a)(7) and
(a)(8)
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The significant nexus analysis for waters assessed under (a)(7) and (a)(8) is a three-step
process: first, the region for the significant nexus analysis must be identified under the rule, it
is the watershed which drains to the nearest traditional navigable water, interstate water or
territorial sea; second, any similarly situated waters must be identified under the rule, that is
waters that function alike and are sufficiently close to function together in affecting downstream
waters; and third, the waters are evaluated individually or in combination with any identified
similarly situated waters in the single point of entry watershed to determine if they significantly
impact the chemical, physical or biological integrity of the traditional navigable water, interstate
water or the territorial seas.
i. In the region the point of entry watershed
As discussed in Section III of the preamble and established in the definition of
significant nexus, the region for purposes of a significant nexus analysis is the watershed that
drains to the nearest traditional navigable water, interstate water, or the territorial seas. The first
step of the analysis is to identify the point of entry watershed that the water being evaluated
under (a)(7) or (a)(8) drains to. This point of entry approach identifies the nearest traditional
navigable water, interstate water, or the territorial seas that the water being evaluated and any
similarly situated waters flow to and delineates the watershed of that nearest traditional
navigable water, interstate water, or the territorial seas. The point of entry watershed is the area
drained by the nearest traditional navigable water, interstate water, or the territorial seas and is
typically defined by the topographic divides between one traditional navigable water, interstate
water, or the territorial seas and another.
Available mapping tools, such as those that are based on the NHD, topographic maps,
and elevation data, can be used to demarcate boundaries of the single point of entry watershed.
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As discussed in Section III and in the Technical Support Document, the single point of entry
watershed represents the scientifically appropriate sized area for conducting a case-specific
significant nexus evaluation in most cases.
In the arid West, the agencies recognize there may be situations where the single point of
entry watershed is very large, and it may be reasonable to evaluate all similarly situated waters in
a smaller watershed. Under those circumstances, the agencies may demarcate adjoining
catchments surrounding the water to be evaluated that, together, are generally no smaller than a
typical 10-digit hydrologic unit code (HUC-10) watershed in the same area. The area identified
by this combination of catchments would be the region used for conducting a significant nexus
evaluation under (a)(7) or (a)(8) under those situations. The basis for such an approach in very
large single point of entry watersheds in the arid West should be documented in the jurisdictional
determination.
ii.
Similarly situated
Second, the agencies determine if the water or waters to be evaluated are similarly
situated. The waters identified in (a)(7) are similarly situated by rule and shall be combined with
other waters of the same category located in the same watershed that drains to the nearest
traditional navigable water, interstate water, or the territorial seas with no need for a casespecific similarly situated finding. Under (a)(7), only waters of the same subparagraph in the
point of entry watershed can be considered as similarly situated. For example, only pocosins may
be evaluated with other pocosins in the same point of entry watershed. Pocosins in different point
of entry watersheds cannot be combined, and pocosins cannot be combined with Carolina bays
under (a)(7), even where they occur in the same point of entry watershed.
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Unlike waters evaluated under (a)(7), the waters specified at (a)(8) require a
determination whether they are similarly situated. Under this step, the agencies apply factors in
the determination of when waters evaluated under (a)(8) should be considered either individually
or in combination for purposes of a significant nexus analysis. A determination of similarly
situated requires an evaluation of whether a group of waters in the region that meet the distance
thresholds set out under (a)(8) can reasonably be expected to function together in their effect on
the chemical, physical, or biological integrity of downstream traditional navigable waters,
interstate waters, or the territorial seas.
Similarly situated waters can be identified as sufficiently close together for purposes of
this paragraph of the regulation when they are within a contiguous area of land with relatively
homogeneous soils, vegetation, and landform (e.g., plain, mountain, valley, etc.). In general, it
would be inappropriate, for example, to consider waters as similarly situated under (a)(8) if
these waters are located in different landforms, have different elevation profiles, or have
different soil and vegetation characteristics, unless the waters perform similar functions and are
located sufficiently close to a water of the United States to allow them to consistently and
collectively function together to affect a traditional navigable water, interstate water, or the
territorial seas. In determining whether waters under (a)(8) are sufficiently close to each other the
agencies will also consider hydrologic connectivity to each other or a jurisdictional water.
In determining whether groups of waters under (a)(8) perform similar functions the
agencies will consider functions such as habitat, water storage, sediment retention, and pollution
sequestration. In addition, consideration of wetland/water type and landscape location are
relevant for determining if the waters are similarly situated. For example, Texas coastal sand
sheet wetlands that form a complex of wetlands with other wetlands of the same type on the
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landscape and are densely located may very well be similarly situated and considered in
combination with other Texas coastal sand sheet wetlands in the same single point of entry
watershed. However, under (a)(8), waters do not need to be of the same type (as they do in
(a)(7)) to be considered similarly situated. As described above, waters are similarly situated
under (a)(8) where they perform similar functions or are located sufficiently close to each other,
regardless of type. The agencies will consider the hydrologic, geomorphic, and ecological
characteristics and circumstances of the waters under consideration. Examples include:
documentation of chemical, physical, or biological interactions of the similarly situated waters;
aerial photography; USGS and state and local topographical or terrain maps and information;
NRCS soil survey maps and data; other available geographic information systems (GIS) data;
National Wetlands Inventory maps where wetlands meet the CWA definition; and state and local
information. The evaluation will use any available site information and pertinent field
observations where available, relevant scientific studies or data, or other relevant jurisdictional
determinations that have been completed in the region.
Only those waters that do not meet the requirements in (a)(1) through (a)(6) are to be
considered in case-specific significant nexus determinations; subcategory waters that meet the
provisions in (a)(1) through (a)(6) are per se jurisdictional without the need for a significant
nexus determination. For example, waters that are identified under paragraph (a)(6) are adjacent
and are not subject to a case-specific significant nexus evaluation under (a)(7) or (a)(8). Waters
evaluated under (a)(7) cannot be combined with waters identified in paragraph (a)(6) or (a)(8),
and waters evaluated under (a)(8) cannot be combined with waters identified in (a)(6) or (a)(7).
For example, Prairie potholes being evaluated under (a)(7) may not be combined with Prairie
potholes that are per se jurisdictional under (a)(6) that meet the definition of adjacent. When a
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water meets the specifications at both (a)(7) and (a)(8), it can only be evaluated under (a)(7).
That is, for example, if a wetland is a Western vernal pool and is also within 4,000 feet of the
ordinary high water mark of a covered tributary, it can only be assessed for significant nexus
under (a)(7) in combination with other Western vernal pools in the point of entry watershed.
Unlike (a)(8), there is no distance threshold for waters evaluated under (a)(7) that is, waters in
the (a)(7) subcategories that are more than 4,000 feet from the high tide line or the ordinary high
covered tributary or are beyond the 100-year floodplain of an traditional navigable water,
interstate water, or the territorial seas are to be included in combination in a significant nexus
analysis.
iii.
Significant nexus analysis for (a)(7) and (a)(8) waters
Third, the agencies evaluate waters individually or in combination with any identified
similarly situated waters in the single point of entry watershed to determine if they significantly
impact the chemical, physical, or biological integrity of the traditional navigable water, interstate
water, or the territorial seas. For purposes of determining significant nexus under (a)(7), all
waters of the specified subcategory are to be considered in combination in the point of entry
watershed, as those waters are similarly situated. For purposes of determining significant nexus
under (a)(8), depending on the results of step two, a water within the boundaries in paragraph
(a)(8) is evaluated either alone or in combination with other similarly situated waters in the
region. For example, in the case where the agencies have determined that a particular water
under (a)(8) is not similarly situated, it is evaluated individually for significant nexus; the water
cannot be aggregated if it is not similarly situated with other such waters.
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The analysis will include an evaluation of the functions listed in paragraph (c)(5) of the
rule, which defines significant nexus. A water has a significant nexus when any single function
or combination of functions performed by the water, alone or together with similarly situated
waters in the region, contributes significantly to the chemical, physical, or biological integrity of
the nearest traditional navigable water, interstate water, or the territorial seas. A water may be
determined to have a significant nexus based on performing any of the following functions:
sediment trapping, nutrient recycling, pollutant trapping, transformation, filtering, and
transport, retention and attenuation of floodwaters, runoff storage, contribution of flow, export of
organic matter, export of food resources, or provision of life cycle dependent aquatic habitat
(such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species
located in a traditional navigable water, interstate water, the territorial seas.,
For purposes of paragraph (c)(5)(I), a species is located in a traditional navigable water,
interstate water, or the territorial seas if such a water is a typical type of habitat for at least part of
the life cycle of the species. For example, amphibians and many reptiles can use a traditional
navigable water, interstate water, or the territorial seas for part of their life cycle needs.
When evaluating a water individually or in combination with other similarly situated
waters for the presence of a significant nexus to a traditional navigable water, interstate water, or
the territorial seas, a variety of factors will influence the chemical, physical, or biological
connections the water has with the downstream traditional navigable water, interstate water, or
the territorial seas, including distance from a jurisdictional water, the presence of surface or
shallow subsurface hydrologic connections, and density of waters of the same type (if it has been
concluded that such waters can be evaluated in combination). The likelihood of a significant
connection is greater with increasing size and decreasing distance from the identified traditional
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navigable water, interstate water, or the territorial seas, as well as with increased density of the
waters for such waters that can be considered in combination as similarly situated waters. In
addition, the presence of a surface or shallow subsurface hydrologic connection can influence the
impact that a water has with downstream waters.
In many cases, the presence of a hydrologic connection increases the strength of the
impact of the downstream traditional navigable water, interstate water, or the territorial seas.
However, a hydrologic connection is not necessary to establish a significant nexus, because, as
Justice Kennedy stated, in some cases the lack of a hydrologic connection would be a sign of the
waters function in relationship to the traditional navigable water, interstate water, or the
territorial seas. These functional relationships include retention of floodwaters or pollutants that
would otherwise flow downstream to the traditional navigable water, interstate water, or the
territorial seas. See 547 U.S. at 775 (citations omitted) (J. Kennedy) (it may be the absence of
an interchange of waters prior to the dredge and fill activity that makes protection of the
wetlands critical to the statutory scheme). The Science Report concludes, [s]ome effects of
non-floodplain wetlands on downstream waters are due to their isolation, rather than their
connectivity. Wetland sink functions that trap materials and prevent their export to downstream
waters (e.g., sediment and entrained pollutant removal, water storage) result because of the
wetlands ability to isolate material fluxes. Science Report at ES-4. For example, a report that
reviewed the results of multiple scientific studies concluded that depressional wetlands lacking a
surface outlet functioned together to significantly reduce or attenuate flooding. See Science
Report and Technical Support Document. Even when they lack a surface hydrologic connection
to downstream traditional navigable waters, interstate waters, or the territorial seas, Prairie
potholes, for instance, cumulatively can store large volumes of water, impacting streamflow and
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reducing flooding downstream, and several studies have quantified the large storage capacity of
Prairie pothole complexes. This water storage function is estimated to hold tens of millions of
cubic meters of water, including for example Prairie potholes located in the watersheds of Devils
Lake and the Red River of the North, which have both had a long history of flooding. Where
Prairie potholes lack a surface hydrologic connection, this water storage capacity is particularly
effective in reducing downstream flooding and can have a significant effect on downstream
traditional navigable waters, interstate waters, or the territorial seas. Thus, even when lacking a
surface hydrologic connection, a water can still have a significant effect on the chemical or the
biological integrity of downstream traditional navigable waters, interstate waters, or the
territorial seas.
The rule recognizes that not all waters have the requisite connection to traditional
navigable waters, interstate waters, or the territorial seas sufficient to be determined
jurisdictional. Waters with a significant nexus must significantly affect the chemical, physical,
or biological integrity of a downstream traditional navigable water, interstate water, or the
territorial seas, and the requisite nexus must be more than speculative or insubstantial.
Rapanos at 780.
Evidence of chemical connectivity and the effect on waters can be found by identifying
the properties of the water in comparison to the identified traditional navigable water, interstate
water, or the territorial seas; signs of retention, release, or transformation of nutrients or
pollutants; and the effect of landscape position on the strength of the connection to the nearest
water of the United States, and through it to a traditional navigable water, interstate water, or
the territorial seas. In addition, relevant factors influencing chemical connectivity include
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hydrologic connectivity (see physical factors, below), surrounding land use and land cover, the
landscape setting, and deposition of chemical constituents (e.g., acidic deposition).
Evidence of physical connectivity and the effect on traditional navigable waters,
interstate waters, or the territorial seas can be found by identifying evidence of physical
connections, such as flood water or sediment retention (flood prevention). Presence of indicators
of hydrologic connections between the other water and jurisdictional water are also indicators of
a physical connection. Factors influencing physical connectivity include rain intensity, duration
of rain events or wet season, soil permeability, and distance of hydrologic connection between
the (a)(7) or (a)(8) water and the traditional navigable water, interstate water, or the territorial
seas, depth from surface to water table, and any preferential flowpaths.
Evidence of biological connectivity and the effect on waters can be found by identifying:
resident aquatic or semi-aquatic species present in the case-specific water and the tributary
system (e.g., amphibians, aquatic and semi-aquatic reptiles, aquatic birds); whether those species
show life-cycle dependency on the identified aquatic resources (foraging, feeding, nesting,
breeding, spawning, use as a nursery area, etc.); and whether there is reason to expect presence
or dispersal around the case-specific water, and if so whether such dispersal extends to the
tributary system or beyond or from the tributary system to the case-specific water. Factors
influencing biological connectivity include species life history traits, species behavioral traits,
dispersal range, population size, timing of dispersal, distance between the case-specific water
and a traditional navigable water, interstate water, or the territorial seas, the presence of habitat
corridors or barriers, and the number, area, and spatial distribution of habitats. Non-aquatic
species or species such as non-resident migratory birds do not demonstrate a life cycle
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dependency on the identified aquatic resources and are not evidence of biological connectivity
for purposes of this rule.
For practical administrative purposes, the rule does not require evaluation of all similarly
situated waters under (a)(7) or (a)(8) when concluding that those waters have a significant nexus
to a traditional navigable water, interstate water, or territorial sea. When a subset of similarly
situated waters provides a sufficient science-based justification to conclude presence of a
significant nexus, for efficiency purposes a significant nexus analysis need not unnecessarily
require time and resources to locate and analyze all similarly situated waters in the entire point of
entry watershed. For example, if a single Carolina bay or a group of Carolina bays in a portion of
the point of entry watershed is determined to significantly affect the chemical, physical, or
biological integrity of a traditional navigable water, interstate water, or the territorial seas, the
analysis does not have to document all of the similarly situated Carolina bays in the watershed in
order to conduct the significant nexus analysis. A conclusion that significant nexus is lacking
may not be based on consideration of a subset of similarly situated waters because under the
significant nexus standard the inquiry is how the similarly situated waters in combination affect
the integrity of the downstream water.
While the rule is clear that waters that are jurisdictional by rule cannot be combined with
waters subject to a case-specific significant nexus analysis, the analysis may appropriately
include the evaluation of functions of (a)(8) waters that reach covered waters through (a)(6)
waters without consideration of the functions contributed by those (a)(6) waters. The hydrologic
connections between (a)(8) waters and a covered tributary and eventually to a traditional
navigable water, interstate water, or the territorial seas, can often occur through an adjacent
water. This hydrologic connection is an appropriate part of the case-specific analysis as to
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whether the (a)(8) waters, alone or in combination with any similarly situated (a)(8) waters in the
point of entry watershed, provide those functions downstream such that they significantly affect
the chemical, physical or biological integrity of the traditional navigable water, interstate water,
or the territorial seas. For example, when evaluating a wetland that is 2,500 feet from the
ordinary high water mark of an (a)(5) water and that has surface or shallow subsurface
connections to downstream traditional navigable waters, interstate waters, or the territorial seas
via a wetland that is adjacent to an (a)(4) water, the existence of those connections is not ignored.
However, while a waters connections to the traditional navigable water, interstate water, or the
territorial seas through (a)(5) through (a)(7) waters can be considered in the significant nexus
analysis in order to determine whether the functions of the (a)(8) waters are provided
downstream, only the functions of the water, along with any similarly situated waters, being
evaluated under (a)(8) on downstream water integrity can be included in the significant nexus
analysis.
The administrative record for a jurisdictional determination for a water under (a)(7) or
(a)(8) will include available information supporting the determination. In addition to location and
other descriptive information regarding the water at issue, the record will include an explanation
of the rationale for the jurisdictional conclusion and a description of the information used.
Relevant information can come from many sources, and need not always be specific to the water
whose jurisdictional status is being evaluated. Studies of the same type of water or similarly
situated waters can help to inform a significant nexus analysis as long as they are applicable to
the water being evaluated. In the case of (a)(8) waters, the administrative record will include the
rationale behind the similarly situated analysis, including an explanation of the data or
information examined.
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The agencies expect that where waters are determined to be similarly situated in a single
point of entry watershed, such similarly situated waters will often be found jurisdictional through
the case-specific analysis of significant nexus. However, case-specific factors such as distance to
the traditional navigable water, interstate water, or the territorial seas; density or number of
similarly situated waters; individual and cumulative size of the similarly situated waters; soil
permeability; climate; etc., may be considered in the determination, and there could be cases
where even considering these waters in combination with similarly situated waters will not be
sufficient for waters to have a significant nexus.
Within a single point of entry watershed, over a period of time there will likely be
multiple jurisdictional determinations. For (a)(7) waters, if a case-specific significant nexus
determination has been made in the point of entry watershed, all waters in the subcategory in the
point of entry watershed are jurisdictional. For (a)(8) waters, the case-specific significant nexus
analyses must use information used in previous jurisdictional determinations, and if a significant
nexus has been established for one water in the watershed, then other similarly situated waters in
the watershed would also be found to have a significant nexus. This is because under Justice
Kennedys test, similarly situated waters in the region should be evaluated together. A positive
significant nexus determination would then apply to all similarly situated waters within the point
of the watershed. A negative case-specific significant nexus evaluation under (a)(7) or (a)(8) of
all similarly situated waters in the point of entry watershed applies to all similarly situated waters
in that watershed. However, as noted above, a conclusion that significant nexus is lacking may
not be based on consideration of a subset of similarly situated waters, because under the
significant nexus standard the inquiry is how the similarly situated waters in combination affect
the integrity of the downstream water. The documentation for each case should be complete
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enough to support the specific jurisdictional determination, including an explanation of which

waters were considered together as similarly situated and in the same region.
4. Summary of Revisions to Case-Specific Determinations of Waters of the

United States and Major Comments
a.
Significant nexus
Some commenters stated concerns over the potential for inconsistent application of the
significant nexus analysis in a jurisdictional determination. To address this concern within the
regulatory framework, the agencies provide more detail regarding the definition of significant
nexus in the rule and list the specific functions that will be considered in the analysis. This
approach provides individual regulators who conduct the analysis clear and consistent
parameters that they will consider during their review in making jurisdictional determinations
and provides transparency to the regulated public over which factors will be considered.
Overall, there was support for the concept of the single point of entry watershed as the
interpretation of in the region. Several commenters supported the approach that the single
point of entry watershed was an appropriate scale to use to measure effect on traditional
navigable waters, interstate waters, or the territorial seas. Other commenters felt the single point
of entry watershed was too small to capture all the benefits that waters that do not meet the
definition of adjacency contribute. Some of the SAB panel members thought that because surface
and ground-watershed units may not align, watersheds might be problematic for defining in the
region. These panel members suggested that a more scientifically justified approach would
include surface and subsurface waters in a watershed delineation. The agencies have retained the
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single point of entry watershed from the proposed rule as the appropriate unit of analysis for
significant nexus in the final rule as these watersheds are more easily understood and easier to
delineate than those that map subsurface waters as the SAB suggested.
With respect to the agencies approach to similarly situated waters, commenters offered
support for assessing waters in combination based on their type and function, particularly waters
such as Prairie potholes. Conversely, several commenters found that the ability to aggregate
waters that do not meet the definition of adjacency is over-reaching and causes uncertainty to the
regulated public. Some commenters also attributed uncertainty in which waters were regulated to
subjectivity in review by Federal regulator(s). Similarly, some commenters were concerned that
waters eligible for protection were based on an individual analysts interpretation and wanted to
know how the agencies would address consistency and potential bias. In response, the rule lists
in paragraph (a)(7) a limited number of subcategories of waters where waters of the specified
types have been determined by rule to be similarly situated for a significant nexus analysis. This
will add consistency, predictability, and clarity, as the rule explicitly states that such waters are
similarly situated for purposes of the significant nexus analysis. For waters identified under
paragraph (a)(8), the agencies have established two limitations: waters within the 100-year
floodplain of a traditional navigable water, interstate water, or the territorial seas, and waters
within 4,000 foot feet of a traditional navigable water, interstate water, the territorial seas,
impoundment, or covered tributary. The agencies also have established within the definition of
significant nexus at (c)(5) criteria for determining whether waters are similarly situated and
should therefore be analyzed in combination. Waters identified under (a)(8) are similarly
situated when they function alike and are sufficiently close to function together in affecting
downstream waters. The agencies have not determined that such waters are categorically
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similarly situated, so the agencies will base their case-specific determinations of whether a
particular water has any similarly situated waters on the available information and science. The
rule also clarifies that (a)(8) waters cannot be considered similarly situated with adjacent
waters, which are jurisdictional by rule, and (a)(7) waters, which have been determined to be
similarly situated by rule. These parameters will reduce inconsistency in reviews and add clarity.
Similarly, several commenters expressed concern that landowners would not know which
water bodies on their property are subject to CWA jurisdiction due to aggregation, as waters on
their property may be considered similarly situated with waters located off-site. While the rule
does not eliminate the use of case-specific significant nexus analyses, and the concern arises
from Justice Kennedys phrase similarly situated, the parameters placed on waters requiring a
case-specific determination and the clearer definition of significant nexus address the concerns
about uncertainty and inconsistencies in reviews. In particular, waters that are not either one of
the five identified subcategories in (a)(7) or within the thresholds in (a)(8) cannot be subject to a
case-specific significant nexus analysis under the rule. Generally, jurisdictional determinations
are conducted at the request of an applicant or landowner for specific waters. While the agencies
cannot arbitrarily depart from a determination that waters are similarly situated, landowners
may provide new information to inform subsequent jurisdictional determinations. In addition,
owners with questions regarding jurisdiction of waters on their property may always consult their
local Corps District or EPA Regional Office, which is not a change from longstanding practice.
b. Case-specific determinations
The rule provides more regulatory certainty by narrowing the scope of waters that can be
assessed under a case-specific significant nexus evaluation as compared to the proposal. These
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changes still allow the scientific value of specific waters not covered in (a)(1) through (a)(6) to
be evaluated on a case-specific basis.
In the proposal, the agencies solicited comment regarding a variety of approaches to the
category of waters subject to a case-specific significant nexus analysis. In addition, the agencies
solicited comment on additional scientific research and data that might further inform decisions
about these waters. In particular the agencies solicited information about whether current
scientific research and data regarding particular types of waters are sufficient to support the
inclusion of subcategories of types of waters, either alone or in combination with similarly
situated waters, that can appropriately be identified as always lacking or always having a
significant nexus. One of these alternate approaches in the preamble to the proposed rule was to
determine by rule that certain additional subcategories of waters would be jurisdictional rather
than addressed with a case-specific basis for determining significant nexus.
Many commenters expressed support for the agencies proposed approach to casespecific waters, included additional references to support these waters being protected by rule,
and supported the treatment of certain categories of waters as similarly situated (that is,
evaluating them in combination with similarly situated waters for the purposes of the significant
nexus analysis). Some suggested the agencies establish jurisdiction over case-specific waters by
rule and provided detailed information in support of their position. Other commenters suggested
additional subcategories of waters be considered as jurisdictional or as similarly situated by rule,
such as playa lakes, kettle lakes, and woodland vernal pools.
However, there was a concern raised by other commenters about what was termed
regulatory overreach and uncertainty created by the other waters category in the proposal.
Some commenters stated that the other waters category in the proposal would allow the
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agencies to regulate virtually any water. To address this concern, the rule places limits on which
waters could be subject to a case-specific significant nexus determination, in recognition that
case-specific analysis of significant nexus is resource-intensive and based on the body of science
that exists. As noted above, the agencies also establish by rule subcategories of waters that are
similarly situated for the purposes of a significant nexus analysis because science supports that
the subcategory waters fall within a higher gradient of connectivity. By not determining that any
one of the waters available for case-specific analysis is jurisdictional by rule, the agencies are
recognizing the gradient of connectivity that exists and will assert jurisdiction only when that
connection and the downstream effects are significant and more than speculative and
insubstantial.
Waters are covered under the rule only where they are identified as jurisdictional in
paragraphs (a)(1) through (a)(6), where they are not excluded under paragraph (b), or where they
are within the limited number of subcategories listed in paragraphs (a)(7) and (a)(8) and have a
case-specific significant nexus to a traditional navigable water, interstate water, or the territorial
seas. These limits on jurisdiction reflect the case law and are in response to comments requesting
greater regulatory certainty. Although some commenters suggested additional subcategories of
waters for consideration, such as playa lakes and kettle lakes, the agencies at this time are not
able to determine that the available science supports that the suggested additional subcategories
of waters as a class have a significant nexus to traditional navigable waters, interstate waters, or
the territorial seas. However, to be clear, under the rule, individual waters of the suggested
additional subcategories are jurisdictional where they meet the requirements of (a)(1) through
(a)(6) or (a)(8) (e.g., a playa lake that is an interstate water, a kettle lake that is an adjacent water,
or a woodland vernal pool that is less than 4,000 feet from a jurisdictional tributary and is
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determined on a case-specific basis to have a significant nexus to a traditional navigable water,

interstate water, or the territorial seas).
In consideration of the variety of views of the commenters, the Science Report, the input
from the SAB, and the developing state of the science, the agencies reasonably decided not to
establish jurisdiction over all waters that do not meet the requirements of (a)(1) through (a)(6) by
rule. Instead, the agencies established case-specific provisions for some specified waters at (a)(7)
and waters within the boundaries at (a)(8). This approach strikes a balance between requests for
clear boundaries and limited case-specific reviews with scientific support.
I.
Waters and Features that Are Not Waters of the United States
In the rule, the agencies identify a variety of waters and features that are not waters of
the United States. Prior converted cropland and waste treatment systems have been excluded
from this definition since 1992 and 1979, respectively, and they remain substantively and
operationally unchanged. Only ministerial changes to delete an outdated cross reference are
made to the exclusion for waste treatment systems. The agencies add exclusions for all waters
and features identified as generally exempt in preamble language from Federal Register
documents by the Corps on November 13, 1986, and by EPA on June 6, 1988. This is the first
time these exclusions have been established by rule. In addition, under prior preamble language,
the agencies retained the authority to determine that a particular feature generally considered
non-jurisdictional was in fact a water of the United States. The agencies do not retain that
authority for features excluded under the rule. The agencies for the first time also establish by
rule that certain ditches are excluded from jurisdiction. The agencies add exclusions for
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groundwater and erosional features, as well as exclusions for some waters that were identified in
public comments as possibly being found jurisdictional under proposed rule language where this
was never the agencies intent. These exclusions are reflective of current agencies practice, and
their inclusion in the rule furthers the agencies goal of providing greater clarity over what
waters are and are not protected under the CWA. Importantly, under the rule all waters and
features identified in paragraph (b) as excluded will not be waters of the United States, even if
they otherwise fall within one of the categories in paragraphs (a)(4) through (a)(8). For example,
a ditch that is excluded under paragraph (b)(3)(i) or (b)(3)(ii) is not jurisdictional even when the
ditch connects directly or through another water to a traditional navigable water, interstate water,
or the territorial seas. The proposed rule referenced paragraphs (a)(1) through (a)(8), but the
agencies did not intend to exclude any traditional navigable waters, for example, and the revision
clarifies that. Finally, nothing in the rule is intended to change the way in which the Corps
applies individual or nationwide permits.
The exclusions reflect the agencies long-standing practice and technical judgment that
certain waters and features are not subject to the CWA. The exclusions are also guided by
Supreme Court cases. The significant nexus standard arises from the case law and is used to
interpret the terms of the CWA. Thus, a significant nexus determination is not a purely scientific
inquiry, but rather is a determination by the agencies in light of the statutory language, the
statutes goals, objectives and policies, the case law, the relevant science, and the agencies
technical expertise and experience. The plurality opinion in Rapanos also noted that there were
certain features that were not primarily the focus of the CWA. See 547 U.S. at 734. In this
section of the proposed rule, the agencies are drawing lines and concluding that certain waters
and features are not subject to the jurisdiction of the Clean Water Act. The Supreme Court has
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recognized that clarifying the lines of jurisdiction is a difficult task: Our common experience
tells us that this is often no easy task: the transition from water to solid ground is not necessarily
or even typically an abrupt one. Rather, between open waters and dry land may lie shallows,
marshes, mudflats, swamps, bogs in short, a huge array of areas that are not wholly aquatic
but nevertheless fall far short of being dry land. Where on this continuum to find the limit of
waters is far from obvious. Riverside Bayview at 132-33. The exclusions are an important
aspect of the agencies policy goal of providing clarity and certainty. Just as the categorical
assertions of jurisdiction over covered tributaries and covered adjacent waters simplify the
jurisdiction issue, the categorical exclusions will likewise simplify the process, and they reflect
the agencies determinations of the lines of jurisdiction based on science, the case law and the
agencies experience and expertise.
The existing exclusion for waste treatment systems moves to paragraph (b)(1) with no
substantive changes. One ministerial change is the deletion of a cross-reference in the current
language to an EPA regulation that no longer exists. Because the agencies are not addressing the
substance of the exclusion, the agencies do not make conforming changes to ensure that each of
the existing definitions of the waters of the United States for the various CWA programs have
the exact same language with respect to the waste treatment system exclusion, with the exception
of deleting the cross-reference.
Many commenters expressed concern about whether the agencies insertion of a comma
following this ministerial change unintentionally narrowed the exclusion such that all excluded
waste treatment systems must be designed to meet the requirements of the Clean Water Act. The
commenters indicated concerns that waste treatment systems built before the Clean Water Act or
primarily for purposes of other environmental laws could not be exempt. The agencies do not
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intend to change how the waste treatment exclusion is implemented and have deleted this
proposed comma. Continuing current practice, any waste treatment system built in a water of
the United States would need a section 404 permit to be constructed and a section 402 permit
for discharges from the waste treatment system into waters of United States.
A number of commenters suggested the agencies clarify how the waste treatment system
exclusion is currently implemented. Many comments raised questions about stormwater systems
and wastewater reuse and whether such facilities qualified under the waste treatment system
exclusion as part of a complete waste treatment system. For clarity, the agencies have identified
related exclusions in paragraphs (b)(6) and (b)(7). Many commenters also suggested making
substantive changes to the existing exclusion for waste treatment systems. Because the agencies
are not making any substantive changes to the waste treatment system exclusion and these
comments are outside the scope of the proposed rule, the final rule does not reflect changes
suggested in public comments.
The existing exclusion for prior converted cropland moves to paragraph (b)(2) of the rule
and is unchanged. A number of commenters suggested changes to the existing exclusion for
prior converted cropland. As with waste treatment systems, the preamble to the proposed rule
stated this rulemaking was not making changes to the exclusion for prior converted cropland. As
a result, comments requesting changes to the prior converted cropland exclusion or seeking
clarification of how the exclusion is implemented in the field are outside the scope of this
rulemaking, and the rule does not reflect changes or respond to issues raised in public comments.
The agencies will continue to implement this exclusion consistent with current policy and
practice.
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The agencies identify excluded ditches in paragraph (b)(3). Jurisdictional ditches are
discussed at more detail in section IV.F. The rule excludes all ditches with ephemeral flow that
are not excavated in or relocate a tributary. The rule also excludes ditches with intermittent flow
that are not a relocated tributary, excavated in a tributary, or drain wetlands, regardless of
whether or not the wetland is a jurisdictional water. Finally, ditches that do not connect to a
traditional navigable water, interstate water, or territorial sea either directly or through another
water are excluded, regardless of whether the flow is ephemeral, intermittent, or perennial. These
ditch exclusions are clearer for the regulated public to identify and more straightforward for
agency staff to implement than the proposed rule or current policies. The ditch exclusions do not
affect the possible status of a ditch as a point source.
Many comments addressed ditches, and many of these comments are reflected in the
approach to ditches articulated in the rule. The majority of commenters requested that the
agencies ditch exclusion be clarified or broadened. Many commenters were confused by the
term uplands and did not feel the term had a common understanding. For example, some
commenters felt the term referred only to areas at higher elevations in the landscape. Many
expressed concerns that all ditches would be jurisdictional under the proposed rule. Many groups
especially called for exclusions of roadside ditches.
The revised exclusions reflect the agencies careful consideration of these comments.
First, the agencies have eliminated the term uplands in response to the questions the term
created. Second, the agencies have instead provided a clearer statement of the types of ditches
that are subject to exclusion ditches that are not excavated in or relocate a tributary and ditches
that do not drain a wetland. Eliminating the term uplands with this more straightforward
description should improve clarity. Finally, the agencies have more clearly stated the flow
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regimes in ditches that are subject to the exclusions; these flow regimes are described earlier and
have been used by the agencies consistently and are readily understood by field staff and the
public.
As noted, the agencies received many comments asking that roadside ditches be
addressed, and more specifically excluded, in the final rule. Like the proposed rule, the final rule
does not include an explicit exclusion for roadside ditches, but the agencies believe the
exclusions included in the final rule will address the vast majority of roadside and other
transportation ditches. Moreover, since the agencies have focused in the final rule on the
physical characteristics of excluded ditches, the exclusions will address all ditches that the
agencies have concluded should not be subject to jurisdiction, including certain ditches on
agricultural lands and ditches associated with modes of transportation, such as roadways,
airports, and rail lines.
As discussed in Section IV.F.1., the definition of tributary includes natural, undisturbed
waters and those that have been man-altered or constructed, but which science shows function as
a tributary. In addition, natural streams and rivers that are altered or modified for purposes as
flood control, erosion control, and other reasons does not convert the tributary to a ditch. A
stream or river that has been channelized or straightened because its natural sinuosity has been
altered, cutting off the meanders, is not a ditch. A stream that has banks stabilized through use
of concrete or rip-rap (e.g., rocks or stones) is not a ditch. The Los Angeles River, for example,
is a water of the United States (and, indeed, a traditional navigable water) and remains a
water of the United States and is not a excluded under paragraph (b)(3), even where it has been
ditched, channelized, or concreted.
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The rule excludes ditches with ephemeral flow except where a ditch is excavated in or
relocates a covered tributary. Under the rule, that portion of a ditch with ephemeral flow actually
excavated in or relocating the covered tributary would be considered jurisdictional. The
jurisdictional status of upstream and downstream portions of the same ditch would have to be
assessed based on the specific facts and under the terms of the rule to determine flow
characteristics and whether or not the ditch is excavated in or relocates a tributary. This approach
reasonably balances the exclusion with the need to ensure that covered tributaries, and the
significant functions they provide, are preserved. A ditch that relocates a stream is not an
excluded ditch under paragraph (b)(3), and a stream is relocated either when at least a portion of
its original channel has been physically moved, or when the majority of its flow has been
redirected. A ditch that is a relocated stream is distinguishable from a ditch that withdraws water
from a stream without changing the streams aquatic character. The latter type of ditch is
excluded from jurisdiction where it meets the listed characteristics of excluded ditches under
paragraph (b)(3). The agencies will determine historical presence of tributaries using a variety
of resources, such as USGS and state and local maps, historic aerial photographs, local surface
water management plans, street maintenance data, wetlands and conservation programs and
plans, as well as functional assessments and monitoring efforts.
The rule also excludes ditches with intermittent flow except where a ditch is excavated in
or relocates a covered tributary, or drains wetlands. Where an excluded ditch drains a wetland,
the segment of the ditch that physically intersects the wetland would be considered
jurisdictional. The jurisdictional status of upstream and downstream portions of the same ditch
would have to be assessed based on the specific facts and under the terms of the rule to
determine flow characteristics and whether or not the ditch drains a wetland. The provision of
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paragraph (b)(3) addressing draining of wetlands is specific to ditches with intermittent flow. As
discussed previously, features that are ephemeral will flow only in response to precipitation
events, such as rainfall or snowmelt. Ditches with ephemeral flow, therefore, do not typically
have the flow characteristics characteristic of ditches that drain wetlands. The agencies have
accordingly focused on intermittent ditches that drain wetlands.
In addition, the agencies clarify that a ditch drains a wetland when it physically intersects
the wetland. If the ditch has been cut to carry only ephemeral flows, such as those following a
storm event, the effect of the ditch is minimal as it carries only that flow that overtops the
wetland during and immediately following the rain event. However, if the ditch has been cut to
carry intermittent or perennial flows from the wetland, the ditch is serving as a conduit for
transferring flow from the wetland to a downstream tributary. As a result of the cut ditch, the
wetlands hydrologic regime is modified and can generally affect the natural functions performed
by the wetland. When the ditch has been cut to carry intermittent or perennial flow from the
wetland to the downstream tributary, the wetland soils and vegetation can shift into a community
that supports less hydric soils and a mix of riparian or upland vegetation. Consequently, the
ditch is draining the wetland and the wetland quality degrades and may cease to exist over time.
Therefore, a ditch that carries intermittent flow and physically intersects with a wetland is not
excluded under this provision.
A number of commenters expressed concern that a ditch could be viewed as both a point
source and a water of the United States. However, the approach that ditches can be considered
both reflects the CWA itself as well as longstanding agency policy.
Paragraph (b)(4) of the rule identifies features and waters that the agencies have
identified as generally not waters of the United States in previous preambles or guidance
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documents. Codifying these longstanding practices supports the agencies goals of providing
greater clarity, certainty, and predictability for the regulated public and the regulators. The
agencies 1986 and 1988 preambles indicated that these waters could be determined on a casespecific basis to be waters of the United States. This rule does not allow for this case-specific
analysis to be used to establish jurisdiction - these waters are categorically excluded from
jurisdiction. Some of the exclusions have been modified slightly to address public comments and
improve clarity. The following features are not waters of the United States:
Artificially irrigated areas that would revert to dry land should application of irrigation
water to that area cease
Artificial, constructed lakes or ponds created by excavating and/or diking dry land such
as farm and stock watering ponds, irrigation ponds, settling basins, log cleaning ponds,
cooling ponds, or fields flooded for rice growing
Artificial reflecting pools or swimming pools created by excavating and/or diking dry
land
Small ornamental waters created by excavating and/or diking dry land for primarily
aesthetic reasons
Water-filled depressions created in dry land incidental to mining or construction activity,

including pits excavated for obtaining fill, sand or gravel that fill with water
Erosional features, including gullies, rills, and other ephemeral features that do not meet
the definition of tributary, non-wetland swales, and lawfully constructed grassed
waterways
Puddles
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Several of these exclusions use the phrase dry land. This phrase appears in the 1986
and 1988 preambles, and the agencies believe the term is well understood based on the more than
30 years of practice and implementation. But in keeping with the goal of providing greater
clarity, the agencies state that dry land refers to areas of the geographic landscape that are not
water features such as streams, rivers, wetlands, lakes, ponds and the like. However, it is
important to note that a water of the United States is not considered dry land just because it
lacks water at a given time. Similarly, an area remains dry land even if it is wet after a rainfall
event. The agencies received comments suggesting that the final rule provide a definition of
dry land as it relates to the exclusion for stormwater control features. The agencies considered
the request and determined that there was no agreed upon definition given geographic and
regional variability. The agencies concluded that further clarity on this issue can be provided
during implementation.
In the exclusion for artificial lakes or ponds, the agencies have removed language
regarding use of the ponds, including the term exclusively. In most cases, the use of the
pond is captured in its name. More importantly, the agencies recognize that artificial lakes and
ponds are often used for more than one purpose and can have other beneficial purposes, such as
animal habitat, water retention or recreation. For example, rice growing is typically facilitated by
land leveling and inundation that floods vast areas. The fields are flooded for the purpose of
weed control and to facilitate rice cultivation, but these rice fields are often extensively used by
waterfowl and other wildlife. The agencies agree with commenters who raised concern that rice
fields used both for rice growing and waterfowl habitat should continue to be excluded even
where they are not used exclusively for a single purpose. The change to the exclusion reflects
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the agencies practice and ensures that waters the agencies have historically not treated as
jurisdictional do not become so because of another incidental beneficial use.
The agencies have also added farm ponds, log cleaning ponds, and cooling ponds to the
list of excluded ponds in the rule based on public comments. The list of ponds has always been
illustrative rather than exhaustive, and the additions respond to requests to clarify that farm
ponds, and log cleaning ponds 12 created in dry land are excluded. The agencies have also added
cooling ponds created in dry land to the list of excluded waters. The agencies also note that
cooling ponds that are created under section 404 in jurisdictional waters and that have NPDES
permits are subject to the waste treatment system exclusion, which is not changing. Cooling
ponds created to serve as part of a cooling water system with a valid state permit constructed in
waters of the United States prior to enactment of the Clean Water Act and currently excluded
from jurisdiction remain excluded under the new rule. Additional ponds will also likely fall
under the exclusion based on site specific evaluation, including, for example, fire control ponds
and fishing ponds excavated from dry land. Artificial lakes and ponds created in dry land that do
not connect to jurisdictional waters are covered by this exclusion. Where these ponds do connect
and discharge to jurisdictional waters, the agencies will evaluate factors such as the potential for
introduction of pollutants and coverage under an issued NPDES permit. As a general matter,
ponds created in dry land that discharge to waters of the United States are covered by the
exclusion where such discharge is regulated under a NPDES permit. Conveyances created in dry
land that are physically connected to and are a part of the excluded feature are also excluded.
These artificial features are working together as a system, and it is appropriate to treat them as
12
Log cleaning ponds are used to float logs for removal of twigs, branches, and large knots.
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one functional unit. The agencies emphasize that ponds excluded from waters of the United
States can, in some circumstances, be point sources of pollution subject to section 301 of the
Act.
The rule includes several refinements to the exclusion for water-filled depressions created
as a result of certain activities. In addition to construction activity, the agencies have also
excluded water-filled depressions created in dry land incidental to mining activity. This change
is consistent with the agencies 1986 and 1988 preambles, which generally excluded pits
excavated for obtaining fill, sand or gravel, and there is no need to distinguish between features
based on whether they are created by construction or mining activity.
The agencies also here clarify their longstanding view that only the specific land being
directly irrigated that would revert to dry land should irrigation cease is exempt; it is not the case
that all waters within watersheds where irrigation occurs are exempt.
The rule identifies all erosional features, including gullies and rills, as non-jurisdictional
features. While the proposed rule specifically identified gullies and rills, the agencies intended
that all erosional features would be excluded. The final rule makes this clear. Erosional features
are not jurisdictional under the terms of paragraph (a) and the definitions in paragraph (c),
especially the definition of tributary. These features are specifically excluded in the rule to avoid
confusion, because preceding guidance identified them as non-jurisdictional and many
commenters stated these exclusions were important to maintain in the rule.
Tributaries can be distinguished from erosional features by the presence of bed and banks
and an ordinary high water mark. Concentrated surface runoff can occur within erosional
features without creating the permanent physical characteristics associated with bed and banks
and ordinary high water mark. See Technical Support Document. It should be noted that some
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ephemeral streams are colloquially called gullies or the like even when they exhibit a bed and
banks and an ordinary high water mark; regardless of the name they are given locally, waters that
meet the definition of tributary are not excluded erosional features.
The rule also excludes lawfully constructed grassed waterways. Grassed waterways are
lawfully constructed for purposes of this rule either where they are on dry land and replace nonjurisdictional erosional features or, more commonly, where they have been lawfully converted
from an intermittent or ephemeral stream under a CWA permit. Once converted to grassed
waterways, these former streams segments no longer exhibit a bed and banks or ordinary high
water mark and are excluded because they do not meet the definition of tributary. However,
such conversion does not sever jurisdiction over the entire length of the tributary above and
below the grassed waterway. Instead, the grassed waterway is considered a constructed break in
the bed and banks and ordinary high water mark. This is reflected in the definition of tributary,
which specifically addresses natural or man-made breaks in bed and banks and ordinary high
water mark.
The final rule adds an exclusion for puddles. The proposed rule did not explicitly
exclude puddles because the agencies have never considered puddles to meet the minimum
standard for being a water of the United States, and it is an inexact term. A puddle is
commonly considered a very small, shallow, and highly transitory pool of water that forms on
pavement or uplands during or immediately after a rainstorm or similar precipitation event.
However, numerous commenters asked that the agencies expressly exclude them in a rule. The
final rule does so.
The agencies include an exclusion for groundwater, including groundwater drained
through subsurface drainage systems. As discussed in the preamble to the proposed rule, the
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agencies have never interpreted waters of the United States to include groundwater. The
exclusion does not apply to surface expressions of groundwater, as some commenters requested,
such as where groundwater emerges on the surface and becomes baseflow in streams or spring
fed ponds.
The final rule includes a new exclusion in paragraph (b)(6) for stormwater control
features constructed to convey, treat, or store stormwater that are created in dry land. The
agencies stated in the proposed rule that the exclusions were guided by decisions of the Supreme
Court and were intended to further the agencies goal of providing clarity and certainty. The
agencies in the proposed rule sought to provide a full description of the waters that will not be
waters of the United States. 79 FR at 22218. In response to the agencies proposal, several
commenters indicated additional clarity was needed, particularly with respect to stormwater
control features and wastewater recycling facilities. This exclusion responds to numerous
commenters who raised concerns that the proposed rule would adversely affect municipalities
ability to operate and maintain their stormwater systems, and also to address confusion about the
state of practice regarding jurisdiction of these features at the time the rule was proposed.
The agencies longstanding practice is to view stormwater control measures that are not
built in waters of the United States as non-jurisdictional. Conversely, the agencies view some
waters, such as channelized or piped streams, as jurisdictional currently even where used as part
of a stormwater management system. Nothing in the proposed rule was intended to change that
practice. Nonetheless, the agencies recognize that the proposed rule brought to light confusion
about which stormwater control features are jurisdictional waters and which are not, and agree
that it is appropriate to address this confusion by creating a specific exclusion in the final rule for
stormwater controls features that are created in dry land.
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Many commenters, particularly municipalities and other public entities that operate storm
sewer systems and stormwater management programs, expressed concern that various
stormwater control measuressuch as stormwater treatment systems, rain gardens, low impact
development/green infrastructure, and flood control systemscould be considered waters of the
United States under the proposed rule, either as part of a tributary system, an adjacent water, or
as a result of a case-specific significant nexus analysis. This exclusion should clarify the
appropriate limits of jurisdiction relating to these systems. A key element of the exclusion is
whether the feature or control system was built in dry land and whether it conveys, treats, or
stores stormwater. Certain features, such as curbs and gutters, may be features of stormwater
collection systems, but have never been considered waters of the United States.
Stormwater control features have evolved considerably over the past several years, and
their nomenclature is not consistent, so in order to avoid unintentionally limiting the exclusion,
the agencies have not included a list of excluded features in the rule. The rule is intended to
exclude the diverse range of control features that are currently in place and may be developed in
the future.
Traditionally, stormwater controls were designed to direct runoff away from people and
property as quickly as possible. Cities built systems to collect, convey, or store stormwater, using
structures such as curbs, gutters, and sewers. Often, cities used existing stream networks as part
of the stormwater drainage network. Retention and detention stormwater ponds were built to
store excess stormwater until it could be more safely released.
Recently, treatment of stormwater has become more prevalent to remove harmful
pollutants before the stormwater is discharged. Even more recently, cities have turned to green
infrastructure, using existing natural features or creating new features that mimic natural
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hydrological processes that work to infiltrate or evapo-transpirate precipitation, to manage

stormwater at its source and keep it out of the conveyance system. These engineered components
of stormwater management systems can address both water quantity and quality concerns, as
well as provide other benefits to communities. This rule is designed to avoid disincentives to this
environmentally beneficial trend in stormwater management practices. This exclusion does not
cover transportation ditches; those ditches are addressed under paragraph (b)(3) of the rule. As
discussed above, the exclusion in paragraph (b)(6) is intended to address engineered stormwater
control structures in municipal or urban environments. Stormwater control features are designed
to address runoff that occurs during and shortly after precipitation events; as a result, stormwater
features that convey runoff are expected to only carry ephemeral or intermittent flow. For ease
of implementation, the agencies want water features to be dealt with under only one provision of
the rule. However, the agencies do not expect the scope of ditches excluded to be different under
(b)(3) and (b)(6), so there should be little practical need to distinguish between the two.
Paragraph (b)(7) of the rule clarifies that wastewater recycling structures constructed in
dry land are excluded. This new exclusion clarifies the agencies current practice that such
waters and water features used for water reuse and recycling are not jurisdictional when
constructed in dry land. The agencies recognize the importance of water reuse and recycling,
particularly in areas like California and the Southwest where water supplies can be limited and
droughts can exacerbate supply issues. This exclusion responds to numerous commenters and
encourages water reuse and conservation while still appropriately protecting the chemical,
physical, and biological integrity of the nations water under CWA.
The agencies specifically exclude constructed detention and retention basins created in
dry land used for wastewater recycling as well as groundwater recharge basins and percolation
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ponds built for wastewater recycling. Many commenters noted the growing interest in and
commitment to water recycling and reuse projects. Detention and retention basins can play an
important role in capturing and storing water prior to beneficial reuse. Similarly, groundwater
recharge basins and percolation ponds are becoming more prevalent tools for water reuse and
recycling. These features are used to collect and store water, which then infiltrates into
groundwater via permeable soils. Though these features are often created in dry land, they are
also often located in close proximity to tributaries or other larger bodies of water. The exclusion
also covers water distributary structures that are built in dry land for water recycling. These
features often connect or carry flow to other water recycling structures, for example a channel or
canal that carries water to a percolation pond. The agencies have not considered these water
distributary systems jurisdictional where they do not have surface connections back into, and
contribute flow to, waters of the United States. In contrast, the agencies have consistently
regulated aqueducts and canals as waters of the United States where they serve as tributaries,
removing water from one part of the tributary network and moving it to another. The exclusion
in paragraph (b)(7) codifies long-standing agency practice and encourages water management
practices that the agencies agree are important and beneficial.
The agencies also received other suggestions for new exclusions that were not adopted in
the final rule. The agencies determined that it was not appropriate or necessary to add certain
requested exclusions for one or more reasons, including: (1) the requested exclusion was so
broadly characterized as to introduce significant confusion and potentially have the effect of
excluding waters that the agencies have consistently determined should be covered as waters of
the U.S., (2) the requested exclusion was so site-specific or activity-based as to lack illustrative
value, or (3) the requested exclusion was likely covered by another exclusion in the final rule.
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It is important to note that while the waters listed in the exclusions are not waters of the
United States, they can serve as a hydrologic connection that the agencies would consider under
a case-specific significant nexus under paragraphs (a)(7) and (a)(8). For example, a wetland may
be directly hydrologically connected to a covered tributary via flow through an excluded nonwetland swale. While the swale itself is excluded from jurisdiction, the connection of the
wetland to the tributary is relevant for determining whether the wetland has a significant nexus to
downstream traditional navigable waters, interstate waters, or the territorial seas. In addition,
these geographic features may function as point sources under CWA section 502(14), such that
discharges of pollutants to waters through these features would be subject to other CWA
regulations (e.g., CWA section 402).
V.
Economic Impacts
This rule establishing the definition of waters of the United States, by itself, imposes no
direct costs. The potential costs and benefits incurred as a result of this rule are considered
indirect, because the rule involves a definitional change to a term that is used in the
implementation of CWA programs (i.e., sections 303, 305, 311, 401, 402, and 404). Entities
currently are, and will continue to be, regulated under these programs that protect waters of the
United States from pollution and destruction. Each of these programs may subsequently impose
direct or indirect costs as a result of implementation of their specific regulations.
While the rule imposes no direct costs, the agencies prepared an economic analysis for
informational purposes. In preparing the economic analysis to accompany the final rule, the
agencies considered what should be the appropriate baseline for comparison. Existing regulations
and historic practice in implementing them represent one appropriate baseline for comparison,
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and because the final rule is narrower in jurisdictional scope than the existing regulations, there
would be no additional costs in comparison to this baseline. A comparison to recent field
practice following the 2008 guidance is also an appropriate baseline, and the agencies prepared
illustrative estimates of how the costs and benefits of various CWA programs may change with
an increase in positive jurisdictional determinations relative to that baseline.
To estimate changes in potential costs and benefits of different CWA programs, the
economic analysis utilizes available program data to estimate the extent to which assertion of
jurisdiction might change under the associated final policies. The proposed rule analysis utilized
CWA Section 404 jurisdictional determination and permit data from fiscal years 2009-2010 (post
SWANCC and Rapanos), following issuance of program guidance in 2008 by the EPA and the
Corps. The analysis for the final rule has been updated using data from fiscal years 2013-2014,
providing a comparison to a more recent year of data, which responds to public comments. An
estimate of how assertion of jurisdiction may change compared to the recent practice baseline,
developed using updated data from fiscal years 2013-2014 jurisdictional determinations, is then
applied to cost and benefit information for affected CWA programs. Additional updates to the
economic analysis include a refined approach to calculating benefits from section 404
compensatory mitigation, differentiating between emergent and forested wetlands, as well as
presenting results in ranges to reflect uncertainty. The agencies economic analysis yielded the
following key conclusions:
Compared to the current regulations and historic practice of making jurisdictional

determinations, the scope of jurisdictional waters will decrease, as would the costs and
benefits of CWA programs.
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Compared to a baseline of recent practice, the agencies assessed two scenarios. Those
scenarios result in an estimated increase of between 2.84 and 4.65 percent in positive
jurisdictional determinations annually.
The agencies analysis indicates that for both scenarios, the change in benefits of CWA
programs exceed the costs by a ratio of greater than 1:1.
The economic analysis estimates that incremental annual costs for scenario 1 will range
from $158M - $307M and incremental annual benefits will range from $339M - $350M
and, for scenario 2, costs will range from $237M $465M and benefits will range from
$555M - $572M.
The agencies conducted this economic analysis to provide the public with information on the
potential changes to the costs and benefits of various CWA programs that may result from a
change in the number of positive jurisdictional determinations. The economic analysis was done
for informational purposes only, and the final decisions on the scope of waters of the United
States in this rulemaking are not based on consideration of the information in the economic
analysis. The economic analysis fulfills the requirements of Executive Orders 13563 and 12866.
An explanation of the data, methods, and assumptions used to estimate indirect costs and benefits
can be found in the Economic Analysis for the Clean Water Rule; Definition of Waters of the
United States Under the Clean Water Act (Final Rule) in the accompanying docket.
VI.
Related Acts of Congress, Executive Orders, and Agency Initiatives
A.
Executive Order 12866: Regulatory Planning and Review and Executive Order
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13563: Improving Regulation and Regulatory Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a
significant regulatory action. Accordingly, EPA and the Army submitted this action to the
Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations
have been documented in the docket for this action.
In addition, EPA and the Army prepared an analysis of the potential costs and benefits
associated with this action. This analysis is contained in Economic Analysis of the EPA-Army
Clean Water Rule. A copy of the analysis is available in the docket for this action.
B.
Paperwork Reduction Act
This action does not impose any information collection burden under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). An
agency may not conduct or sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number. The OMB control numbers
for the CWA section 402 program may be found at 40 CFR 9.1. (OMB Control No. 2040-0004,
EPA ICR No. 0229.19). For the CWA section 404 regulatory program, the current OMB
approval number for information requirements is maintained by the Corps of Engineers (OMB
approval number 07100003). However, there are no new approval or application processes
required as a result of this rulemaking that necessitate a new Information Collection Request
(ICR).
C.
Regulatory Flexibility Act

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The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a

regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking
requirements under the Administrative Procedure Act or any other statute unless the agency
certifies that the rule will not have a significant economic impact on a substantial number of
small entities. Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of this final action on small entities, small entity
is defined as: (1) a small business that is a small industrial entity as defined in the U.S. Small
Business Administrations size standards (see 13 CFR 121.201); (2) a small governmental
jurisdiction that is a government of a city, county, town, school district, or special district with a
population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise
that is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this rule on small entities, we certify that this
final rule will not have a significant economic impact on a substantial number of small entities.
See, e.g., Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001); Michigan v.
EPA, 213 F.3d 663 (D.C. Cir. 2000); Am. Trucking Assn v. EPA, 175 F.3d 1027 (D.C. Cir.
1999); Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985).
Under the RFA, the impact of concern is any significant adverse economic impact on
small entities, because the primary purpose of the initial regulatory flexibility analysis is to
identify and address regulatory alternatives which minimize any significant economic impact of
the proposed rule on small entities. 5 U.S.C. 603. The scope of jurisdiction in this rule is
narrower than that under the existing regulations. See 40 CFR 122.2 (defining waters of the
United States). Because fewer waters will be subject to the CWA under the rule than are subject
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to regulation under the existing regulations, this action will not affect small entities to a greater
degree than the existing regulations. As a consequence, this action will not have a significant
adverse economic impact on a substantial number of small entities, and therefore no regulatory
flexibility analysis is required.
Todays rule is not designed to subject any entities of any size to any specific
regulatory burden. Rather, it is designed to clarify the statutory scope of the waters of the
United States, including the territorial seas, section 502(7), consistent with Supreme Court
precedent. This question of CWA jurisdiction is informed by the tools of statutory construction
and the geographical and hydrological factors identified in Rapanos v. United States, 547 U.S.
715 (2006), which are not factors readily informed by the RFA.
Nevertheless, the scope of the term waters of the United States is a question that has
continued to generate substantial interest, particularly within the small business community,
because permits must be obtained for many discharges of pollutants into those waters. In light of
this interest, the EPA and the Army determined to seek wide input from representatives of small
entities while formulating the proposed and final definition of this term that reflects the intent of
Congress consistent with the mandate of the Supreme Courts decisions. Such outreach, although
voluntary, is also consistent with the Presidents January 18, 2011 Memorandum on Regulatory
Flexibility, Small Business, and Job Creation, which emphasizes the important role small
businesses play in the American economy. This process has enabled the agencies to hear directly
from these representatives, throughout the rule development, about how they should approach
this complex question of statutory interpretation, together with related issues that such
representatives of small entities may identify for possible consideration in separate proceedings.
The agencies have prepared a report summarizing their small entity outreach, the results of this
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outreach, and how these results have informed the development of this rule. This report, Report
of the Discretionary Small Entity Outreach for the Revised Definition of Waters of the United
States (Docket Id. No. EPA-HQ-OW-2011-0880-1927), is available in the docket.
D.
Unfunded Mandates Reform Act
This action does not contain any unfunded mandate under the regulatory provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538), and does
not significantly or uniquely affect small governments. The action imposes no enforceable duty
on any state, local, or tribal governments, or the private sector, and does not contain regulatory
requirements that might significantly or uniquely affect small governments. The definition of
waters of the United States applies broadly to CWA programs.
E.
Executive Order 13132: Federalism
This rule does not have federalism implications. It will not have substantial direct effects
on the states, on the relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of government.
Keeping with the spirit of Executive Order 13132 and consistent with the agencies
policy to promote communications with state and local governments, the agencies consulted with
state and local officials throughout the process and solicited their comments on the proposed
action and on the development of the rule.
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For this rule state and local governments were consulted at the onset of rule development
in 2011, and following the publication of the proposed rule in 2014. In addition to engaging key
organizations under federalism, the agencies sought feedback on this rule from a broad audience
of stakeholders through extensive outreach to numerous state and local government
organizations.
Early in the rulemaking process, EPA held two in-person meetings and two phone calls in
the fall and winter of 2011. Organizations involved include the National Governors Association,
the National Conference of State Legislatures, the Council of State Governments, the National
Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the
County Executives of America, the National Associations of Towns and Townships, the
International City/County Management Association, and the Environmental Council of the
States. Additionally, the National Association of Clean Water Agencies and the Association of
Clean Water Administrators were invited to participate. The agencies held many additional
calls and meetings with state and local governments and their associations, in preparation for the
development of a proposed rule.
Similarly to the outreach conducted prior to the development of the rule, the agencies
committed themselves to providing a transparent, comprehensive, and effective process for
taking public comment on the proposed rule. As part of this consultation, EPA held a meeting
on May 13, 2014 to seek technical input on the proposed rule from the largest national
representative organizations for State and local governments. During this process the agencies
also extended its focused outreach to include a series of meetings with the Local Government
Advisory Committee, and the Environmental Council of the States in conjunction with the
Association of Clean Water Administrators and the Association of State Wetland Managers. In
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addition to engaging these key organizations, the agencies sought additional feedback on the
proposed rule through broader public outreach to state and local government organizations
during the public comment period.
During the consultation process, some participants expressed concern that the proposed
changes may impose a resource burden on state and local governments. Some participants urged
EPA to ensure that states are not unduly burdened by the regulatory revisions.
The agencies have prepared a report summarizing their voluntary consultation and
extensive outreach to State, local, and county governments, the results of this outreach, and how
these results have informed the development of todays rule. This report, Report on the
Discretionary Consultation and Outreach to State, Local, and County Governments on the Clean
Water Rule: Definition of Waters of the United States; Final Rule (Docket Id. No. EPA-HQOW-2011-0880) is available in the docket for this rule.
F.
Executive Order 13175: Consultation and Coordination With Indian Tribal

Governments
Subject to the Executive Order (E.O.) 13175 (65 FR 67249, November 9, 2000), agencies
generally may not issue a regulation that has tribal implications, (1) that imposes substantial
direct compliance costs, and that is not required by statute, unless the Federal government
provides the funds necessary to pay the direct compliance costs incurred by tribal governments,
or the agencies consult with tribal officials early in the process of developing the proposed
regulation and develop a tribal summary impact statement, or (2) that preempts tribal law unless
the agencies consult with tribal officials early in the process of developing the proposed
regulation and develops a tribal summary impact statement.
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This action does not have tribal implications as specified in E.O. 13175. In compliance
with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), the
agencies consulted with tribal officials throughout the rulemaking process to gain an
understanding of tribal views and solicited their comments on the proposed action and on the
development of todays rule. In the course of this consultation, EPA and the Corps jointly
participated in aspects of the process.
The agencies began consultation with federally-recognized Indian tribes on the Clean
Water Rule defining waters of the United States in October 2011. The consultation and
coordination process, including providing information on the development of an accompanying
science report on the connectivity of streams and wetlands, continued, in stages, over a four year
period, until the close of the public comment period on November 14, 2014. EPA invited tribes
to provide written input on the rulemaking throughout both the tribal consultation process and
public comment period.
EPA specifically consulted with tribal officials to gain an understanding of, and to
address, the tribal views on the proposed rule. In 2011, close to 200 tribal representatives and
more than 40 tribes participated in the consultation process, which included multiple webinars
and national teleconferences and face-to-face meetings. In addition, EPA received written
comments from three tribes during the initial consultation period.
EPA continued to provide status updates to the National Tribal Water Council and the
National Tribal Caucus during 2012 through 2014. The final consultation event was completed
on October 23, 2014 as a national teleconference with the Office of Waters Deputy Assistant
Administrator. Ultimately, EPA received an additional 23 letters from tribes/tribal organizations
by the completion of the consultation period. The comments indicated that Tribes, overall,
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support increased clarity of waters protected by the Clean Water Act, but some expressed
concern with the consultation process and the burden of any expanded jurisdiction. The agencies
considered the feedback received through consultation and written comments in developing
todays rule.
The agencies have prepared a report summarizing their consultation with tribal nations,
and how these results have informed the development of this rule. This report, Final Summary of
Tribal Consultation for the Clean Water Rule: Definition of Waters of the United States Under
the Clean Water Act; Final Rule (Docket Id. No. EPA-HQ-OW-2011-0880), is available in the
docket for this rule.
G.
Executive Order 13045: Protection of Children From Environmental Health

Risks and Safety Risks
This action is not subject to Executive Order 13045 (62 FR 19885, April 23,
1997) because the environmental health or safety risks addressed by this action do not
present a disproportionate risk to children.
H.
Executive Order 13211: Actions Concerning Regulations That Significantly

Affect Energy Supply, Distribution, or Use
This action is not a significant energy action as defined in Executive Order

13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
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I.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement Act of 1995
(NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs federal agencies to use
voluntary consensus standards in regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures, and business practices) that are
developed or adopted by voluntary consensus standards bodies. NTTAA directs federal agencies
to provide Congress, through OMB, explanations when the agency decides not to use available
and applicable voluntary consensus standards.
This rule does not involve technical standards. Therefore, the agencies are not
considering the use of any voluntary consensus standards.
J.
Executive Order 12898: Federal Actions To Address Environmental Justice in

Minority Populations and Low-Income Populations
Executive Order (E.O.) 12898 (59 FR 7629, Feb. 16, 1994) establishes Federal executive
policy on environmental justice. Its main provision directs Federal agencies, to the greatest
extent practicable and permitted by law, to make environmental justice part of their mission by
identifying and addressing, as appropriate, disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States.
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The agencies have determined that the rule will not have disproportionately high and
adverse human health or environmental effects on minority or low-income populations, because
it does not adversely affect the level of protection provided to human health or the environment.
The rule defines the scope of waters protected under the CWA. The increased clarity
regarding the definition of waters of the United States is intended to benefit all regulators,
stakeholders, and interested parties. In addition, this rule is national in scope and, therefore, is
not specific to a particular geographic area.
In the spirit of E.O. 12898, input from environmental justice stakeholders was requested
during the rule development process, through a series of stakeholder meetings between April and
November 2014. On May 12, 2014, EPA held a focused teleconference with non-traditional
stakeholders, including environmental justice and faith-based stakeholders, to solicit their
individual input on the proposed rule. The agencies have used the feedback from public outreach
as the source of early guidance and recommendations for refining the proposed rule. Stakeholder
input received during public outreach events in combination with the written comments received
during the public comment period have reshaped each of the definitions included in todays rule,
and incorporate increased clarity for regulators, stakeholders, and the regulated public to assist
them in identifying waters as waters of the United States.
The agencies prepared a report summarizing their outreach to the environmental justice
community, analysis of potential impacts, and how these results informed the development of the
rule. This report, Environmental Justice Report for the Clean Water Rule: Definition of Waters
of the United States Under the Clean Water Act; Final Rule (Docket Id. No. EPA-HQ-OW2011-0880), is available in the docket for this rule.
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K.
Congressional Review Act
This action is subject to the Congressional Review Act (CRA), and the agencies will
submit a rule report to each House of the Congress and to the Comptroller General of the United
States. This action is a major rule as defined by 5 U.S.C. 804(2) based on potential indirect
costs.
L.
Environmental Documentation
In this joint rulemaking, the agencies establish a definitional rule that clarifies the scope
of the Clean Water Act. The definition will apply to all provisions of the Act, and this regulation
specifically amends EPA regulations implementing sections 301, 304, 306, 311, 402 and 404,
while the Army is making substantively identical revisions to its regulations under section 404 of
the CWA. Section 511(c) of the Clean Water Act provides that, except for certain actions not
relevant here, no action by EPA constitutes a major federal action significantly affecting the
quality of the human environment within the meaning of [NEPA].
The Army has prepared a final environmental assessment and Findings of No Significant
Impact consistent with the National Environmental Policy Act (NEPA). The Army has
determined that the rule is not a major federal action significantly affecting the quality of the
human environment that would require the preparation of an environmental impact statement.
The assessment is contained in the record for this rulemaking. Furthermore, appropriate
environmental documentation, including an EIS when required, is prepared by the Corps for
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general permits and specifically for each and every standard individual permit application before
making final permit decisions.
M.
Judicial Review
Section 509(b)(1) of the CWA provides for judicial review in the courts of appeals of
specifically enumerated actions of the Administrator. The Supreme Court and lower courts have
reached different conclusions on the types of actions that fall within section 509. Compare, E.I.
du Pont de Nemours and Co. v. Train, 430 U.S. 112 (1977); NRDC v. EPA, 673 F.2d 400 (D.C.
Cir. 1982); National Cotton Council of Amer. v. EPA, 553 F.3d 927(6th Cir. 2009) cert denied
559 U.S. 936 (2010) with, Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir.
2008); Friends of the Everglades v. EPA, 699 F.3d 1280 (11th Cir. 2012) cert denied 559 U.S.
936 (2010).
See DATES section for information regarding the timing for seeking judicial review of
this rule.
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Clean Water Rule: Definition of Waters of the United States
List of Subjects
33 CFR Part 328
Environmental protection, Administrative practice and procedure, Intergovernmental
relations, Navigation, Water pollution control, Waterways.
40 CFR Part 110
Environmental protection, Water pollution control.
40 CFR Part 112
40 CFR Part 116
40 CFR Part 117
40 CFR Part 122
40 CFR Part 230
40 CFR Part 232
40 CFR Part 300
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40 CFR Part 302

40 CFR Part 401
Dated:
Gina McCarthy,
Administrator,
Environmental Protection Agency.
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Dated:
Jo Ellen Darcy,
Assistant Secretary of the Army
(Civil Works)
Department of the Army.
Title 33Navigation and Navigable Waters

For the reasons set out in the preamble, title 33, chapter I of the Code of Federal
Regulations is amended as follows:
PART 328DEFINITION OF WATERS OF THE UNITED STATES
1. The authority citation for part 328 is revised to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et.seq.
2. Section 328.3 is amended by revising paragraphs (a) through (c), deleting paragraphs (d)
and (e), and redesignating paragraph (f) as paragraph (d) to read as follows:
328.3 Definitions.
(a) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing
regulations, subject to the exclusions in paragraph (b) of this section, the term waters of the
United States means:
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(1) All waters which are currently used, were used in the past, or may be susceptible to
use in interstate or foreign commerce, including all waters which are subject to the ebb
and flow of the tide;
(2) All interstate waters, including interstate wetlands;
(3) The territorial seas;
(4) All impoundments of waters otherwise identified as waters of the United States under
this section;
(5) All tributaries, as defined in paragraph (c)(3) of this section, of waters identified in
paragraphs (a)(1) through (3) of this section;
(6) All waters adjacent to a water identified in paragraphs (a)(1) through (5) of this
section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;
(7) All waters in paragraphs (i) through (v) of this paragraph where they are determined,
on a case-specific basis, to have a significant nexus to a water identified in
paragraphs (a)(1) through (3) of this section. The waters identified in each of paragraphs
(i) through (v) of this paragraph are similarly situated and shall be combined, for
purposes of a significant nexus analysis, in the watershed that drains to the nearest water
identified in paragraphs (a)(1) through (3) of this section. Waters identified in this
paragraph shall not be combined with waters identified in paragraph (a)(6) of this section
when performing a significant nexus analysis. If waters identified in this paragraph are
also an adjacent water under paragraph (a)(6), they are an adjacent water and no casespecific significant nexus analysis is required.
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(i) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually
occurring in depressions that lack permanent natural outlets, located in the upper
Midwest.
(ii) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded,
depressional wetlands that occur along the Atlantic coastal plain.
(iii) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found
predominantly along the Central Atlantic coastal plain.
(iv) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of
California and associated with topographic depression, soils with poor drainage, mild,
wet winters and hot, dry summers.
(v) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater
wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima
mound wetlands located along the Texas Gulf Coast.
(8) All waters located within the 100-year floodplain of a water identified in (a)(1)
through (3) of this section and all waters located within 4,000 feet of the high tide line or
ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of this
section where they are determined on a case-specific basis to have a significant nexus to a
water identified in paragraphs (a)(1) through (3) of this section. For waters determined to
have a significant nexus, the entire water is a water of the United States if a portion is
located within the 100-year floodplain of a water identified in (a)(1) through (3) of this
section or within 4,000 feet of the high tide line or ordinary high water mark. Waters
identified in this paragraph shall not be combined with waters identified in paragraph
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(a)(6) of this section when performing a significant nexus analysis. If waters identified in
this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent
water and no case-specific significant nexus analysis is required.
(b) The following are not waters of the United States even where they otherwise meet the
terms of paragraphs (a)(4) through (8) of this section.
(1) Waste treatment systems, including treatment ponds or lagoons designed to meet the
requirements of the Clean Water Act.
(2) Prior converted cropland. Notwithstanding the determination of an areas status as
prior converted cropland by any other Federal agency, for the purposes of the Clean
Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
(3) The following ditches:
(i) Ditches with ephemeral flow that are not a relocated tributary or excavated in a
tributary.
(ii) Ditches with intermittent flow that are not a relocated tributary, excavated in a
tributary, or drain wetlands.
(iii) Ditches that do not flow, either directly or through another water, into a water
identified in paragraphs (a)(1) through (3) of this section.
(4) The following features:
(i) Artificially irrigated areas that would revert to dry land should application of water to
that area cease;
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(ii) Artificial, constructed lakes and ponds created in dry land such as farm and stock
watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log
cleaning ponds, or cooling ponds;
(iii) Artificial reflecting pools or swimming pools created in dry land;
(iv) Small ornamental waters created in dry land;
(v) Water-filled depressions created in dry land incidental to mining or construction
activity, including pits excavated for obtaining fill, sand, or gravel that fill with water;
(vi) Erosional features, including gullies, rills, and other ephemeral features that do not
meet the definition of tributary, non-wetland swales, and lawfully constructed grassed
waterways; and
(vii) Puddles.
(5) Groundwater, including groundwater drained through subsurface drainage systems.
(6) Stormwater control features constructed to convey, treat, or store stormwater that are
created in dry land.
(7) Wastewater recycling structures constructed in dry land; detention and retention
basins built for wastewater recycling; groundwater recharge basins; percolation ponds
built for wastewater recycling; and water distributary structures built for wastewater
recycling.
(c) DefinitionsIn this section, the following definitions apply:
(1) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water
identified in paragraphs (a)(1) through (5) of this section, including waters separated by
constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of
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adjacency, an open water such as a pond or lake includes any wetlands within or abutting its
ordinary high water mark. Adjacency is not limited to waters located laterally to a water
identified in paragraphs (a)(1) through (5) of this section. Adjacent waters also include all
waters that connect segments of a water identified in paragraphs (a)(1) through (5) or are
located at the head of a water identified in paragraphs (a)(1) through (5) of this section and
are bordering, contiguous, or neighboring such water. Waters being used for established
normal farming, ranching, and silviculture activities (33 U.S.C. 1344(f)) are not adjacent.
(2) Neighboring. The term neighboring means:
(i) All waters located within 100 feet of the ordinary high water mark of a water
identified in paragraphs (a)(1) through (5) of this section. The entire water is neighboring
if a portion is located within 100 feet of the ordinary high water mark;
(ii) All waters located within the 100-year floodplain of a water identified in paragraphs
(a)(1) through (5) of this section and not more than 1,500 feet from the ordinary high
water mark of such water. The entire water is neighboring if a portion is located within
1,500 feet of the ordinary high water mark and within the 100-year floodplain;
(iii) All waters located within 1,500 feet of the high tide line of a water identified in
paragraphs (a)(1) or (a)(3) of this section, and all waters within 1,500 feet of the ordinary
high water mark of the Great Lakes. The entire water is neighboring if a portion is
located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high
water mark of the Great Lakes.
(3) Tributary and tributaries. The terms tributary and tributaries each mean a water that
contributes flow, either directly or through another water (including an impoundment
identified in paragraph (a)(4) of this section), to a water identified in paragraphs (a)(1)
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through (3) of this section that is characterized by the presence of the physical indicators of a
bed and banks and an ordinary high water mark. These physical indicators demonstrate there
is volume, frequency, and duration of flow sufficient to create a bed and banks and an
ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural,
man-altered, or man-made water and includes waters such as rivers, streams, canals, and
ditches not excluded under paragraph (b) of this section. A water that otherwise qualifies as
a tributary under this definition does not lose its status as a tributary if, for any length, there
are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more
natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a
stream that flows underground) so long as a bed and banks and an ordinary high water mark
can be identified upstream of the break. A water that otherwise qualifies as a tributary under
this definition does not lose its status as a tributary if it contributes flow through a water of
the United States that does not meet the definition of tributary or through a non-jurisdictional
water to a water identified in paragraphs (a)(1) through (3) of this section.
(4) Wetlands. The term wetlands means those areas that are inundated or saturated by surface
or groundwater at a frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted for life in saturated
soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.
(5) Significant nexus. The term significant nexus means that a water, including wetlands,
either alone or in combination with other similarly situated waters in the region, significantly
affects the chemical, physical, or biological integrity of a water identified in paragraphs
(a)(1) through (3) of this section. The term in the region means the watershed that drains to
the nearest water identified in paragraphs (a)(1) through (3) of this section. For an effect to
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be significant, it must be more than speculative or insubstantial. Waters are similarly situated
when they function alike and are sufficiently close to function together in affecting
downstream waters. For purposes of determining whether or not a water has a significant
nexus, the waters effect on downstream (a)(1) through (3) waters shall be assessed by
evaluating the aquatic functions identified in paragraphs (i) through (ix) of this paragraph. A
water has a significant nexus when any single function or combination of functions
performed by the water, alone or together with similarly situated waters in the region,
contributes significantly to the chemical, physical, or biological integrity of the nearest water
identified in paragraphs (a)(1) through (3) of this section. Functions relevant to the
significant nexus evaluation are the following:
(i) Sediment trapping,
(ii) Nutrient recycling,
(iii) Pollutant trapping, transformation, filtering, and transport,
(iv) Retention and attenuation of flood waters,
(v) Runoff storage,
(vi) Contribution of flow,
(vii) Export of organic matter,
(viii) Export of food resources, and
(ix) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting,
breeding, spawning, or use as a nursery area) for species located in a water identified in
paragraphs (a)(1) through (3) of this section.
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(6) Ordinary high water mark. The term ordinary high water mark means that line on the
shore established by the fluctuations of water and indicated by physical characteristics such
as a clear, natural line impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.
(7) High tide line. The term high tide line means the line of intersection of the land with the
water's surface at the maximum height reached by a rising tide. The high tide line may be
determined, in the absence of actual data, by a line of oil or scum along shore objects, a more
or less continuous deposit of fine shell or debris on the foreshore or berm, other physical
markings or characteristics, vegetation lines, tidal gages, or other suitable means that
delineate the general height reached by a rising tide. The line encompasses spring high tides
and other high tides that occur with periodic frequency but does not include storm surges in
which there is a departure from the normal or predicted reach of the tide due to the piling up
of water against a coast by strong winds such as those accompanying a hurricane or other
intense storm.
*****
Title 40Protection of the Environment
For reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations
is amended as follows:
PART 110DISCHARGE OF OIL
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Authority: The Clean Water Act, 33 U.S.C. 1251 et.seq., 33 U.S.C. 1321(b)(3) and (b)(4) and
1361(a); E.O. 11735, 38 FR 21243, 3 CFR Parts 19711975 Comp., p. 793.
4. Section 110.1 is amended by revising the definition of navigable waters to read as follows:
110.1 Definitions.
*****
Navigable waters means waters of the United States, including the territorial seas.
this section;
(7) All waters in paragraphs (A) through (E) of this paragraph where they are determined,
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(A) through (E) of this paragraph are similarly situated and shall be combined, for
(A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually
Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded,
(C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found
(D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater
Page 208 of 297
(A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a
tributary.
(B) Ditches with intermittent flow that are not a relocated tributary, excavated in a
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(C) Ditches that do not flow, either directly or through another water, into a water
identified in paragraphs (1)(i) through (iii) of this section.
(A) Artificially irrigated areas that would revert to dry land should application of water to
that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such as farm and stock
(C) Artificial reflecting pools or swimming pools created in dry land;
(D) Small ornamental waters created in dry land;
(E) Water-filled depressions created in dry land incidental to mining or construction
(F) Erosional features, including gullies, rills, and other ephemeral features that do not
waterways; and
(G) Puddles.
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recycling.
(3) All waters located within 100 feet of the ordinary high water mark of a water
(4) All waters located within the 100-year floodplain of a water identified in paragraphs
(5) All waters located within 1,500 feet of the high tide line of a water identified in
Page 211 of 297
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evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A
(v) Runoff storage,
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intense storm.
*****
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PART 112 OIL POLLUTION PREVENTION

112.2 Definitions.
*****
Navigable waters means waters of the United States, including the territorial seas.
(1) For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing
regulations, subject to the exclusions in paragraph (2) of this section, the term waters of the
(i) All waters which are currently used, were used in the past, or may be susceptible to
(ii) All interstate waters, including interstate wetlands;
(iii) The territorial seas;
(iv) All impoundments of waters otherwise identified as waters of the United States under
this section;
(v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in
paragraphs (1)(i) through (iii) of this section;
(vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this
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(vii) All waters in paragraphs (A) through (E) of this paragraph where they are
determined, on a case-specific basis, to have a significant nexus to a water identified in
paragraphs (1)(i) through (iii) of this section. The waters identified in each of paragraphs
identified in paragraphs (1)(i) through (iii) of this section. Waters identified in this
paragraph shall not be combined with waters identified in paragraph (1)(vi) of this
section when performing a significant nexus analysis. If waters identified in this
paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water
and no case-specific significant nexus analysis is required.
Midwest.
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(viii) All waters located within the 100-year floodplain of a water identified in (1)(i)
through (iii) of this section and all waters located within 4,000 feet of the high tide line or
ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this
water identified in paragraphs (1)(i) through (iii) of this section. For waters determined
to have a significant nexus, the entire water is a water of the United States if a portion is
located within the 100-year floodplain of a water identified in (1)(i) through (iii) of this
(1)(vi) of this section when performing a significant nexus analysis. If waters identified in
this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent
(2) The following are not waters of the United States even where they otherwise meet the
terms of paragraphs (1)(iv) through (viii) of this section.
(i) Waste treatment systems, including treatment ponds or lagoons designed to meet the
(ii) Prior converted cropland. Notwithstanding the determination of an areas status as
(iii) The following ditches:
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tributary.
(iv) The following features:
that area cease;
waterways; and
(G) Puddles.
(v) Groundwater, including groundwater drained through subsurface drainage systems.
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(vi) Stormwater control features constructed to convey, treat, or store stormwater that are
(vii) Wastewater recycling structures constructed in dry land; detention and retention
recycling.
(3) DefinitionsIn this section, the following definitions apply:
(i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water
identified in paragraphs (1)(i) through (v) of this section, including waters separated by
identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all
waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are
located at the head of a water identified in paragraphs (1)(i) through (v) of this section and
normal farming, ranching, and silviculture activities (33 USC 1344(f)) are not adjacent.
(ii) Neighboring. The term neighboring means:
(A) all waters located within 100 feet of the ordinary high water mark of a water
identified in paragraphs (1)(i) through (v) of this section. The entire water is neighboring
(B) all waters located within the 100-year floodplain of a water identified in paragraphs
(1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high
Page 219 of 297
(C) all waters located within 1,500 feet of the high tide line of a water identified in
paragraphs (1)(i) or (1)(iii) of this section, and all waters within 1,500 feet of the ordinary
(iii) Tributary and tributaries. The terms tributary and tributaries each mean a water that
identified in paragraph (1)(iv) of this section), to a water identified in paragraphs (1)(i)
through (iii) of this section that is characterized by the presence of the physical indicators of
a bed and banks and an ordinary high water mark. These physical indicators demonstrate
there is volume, frequency, and duration of flow sufficient to create a bed and banks and an
ditches not excluded under paragraph (2) of this section. A water that otherwise qualifies as
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water to a water identified in paragraphs (1)(i1) through (iii) of this section.
(iv) Wetlands. The term wetlands means those areas that are inundated or saturated by
surface or groundwater at a frequency and duration sufficient to support, and that under
normal circumstances do support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar
areas.
(v) Significant nexus. The term significant nexus means that a water, including wetlands,
affects the chemical, physical, or biological integrity of a water identified in paragraphs (1)(i)
through (iii) of this section. The term in the region means the watershed that drains to the
nearest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be
significant, it must be more than speculative or insubstantial. Waters are similarly situated
nexus, the waters effect on downstream (1)(i) through (iii) waters shall be assessed by
identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the
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(A) Sediment trapping,

(B) Nutrient recycling,
(C) Pollutant trapping, transformation, filtering, and transport,
(D) Retention and attenuation of flood waters,
(E) Runoff storage,
(F) Contribution of flow,
(G) Export of organic matter,
(H) Export of food resources, and
(I) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting,
(vi) Ordinary high water mark. The term ordinary high water mark means that line on the
(vii) High tide line. The term high tide line means the line of intersection of the land with the
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intense storm.
*****
PART 116DESIGNATION OF HAZARDOUS SUBSTANCE
116.3 Definitions.
*****
Navigable waters is defined in section 502(7) of the Act to mean waters of the United
States, including the territorial seas.
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this section;
(A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands,
usually occurring in depressions that lack permanent natural outlets, located in the upper
Midwest.
Page 224 of 297
Page 225 of 297
(i) Prior converted cropland. Notwithstanding the determination of an areas status as

(ii) The following ditches:
tributary.
(iii) The following features:
that area cease;
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waterways; and
(G) Puddles.
(iv) Groundwater, including groundwater drained through subsurface drainage systems.
(v) Stormwater control features constructed to convey, treat, or store stormwater that are
(vi) Wastewater recycling structures constructed in dry land; detention and retention
recycling.
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(A) all waters located within 100 feet of the ordinary high water mark of a water
(B) all waters located within the 100-year floodplain of a water identified in paragraphs
(C) all waters located within 1,500 feet of the high tide line of a water identified in
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areas.
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(E) Runoff storage,
(I) provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting,
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intense storm.
*****
PART 117DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS

SUBSTANCES

Authority: The Clean Water Act, 33 U.S.C. 1321 et.seq. and Executive Order 11735,
superseded by Executive Order 12777, 56 FR 54757.
10. Section 117.1 is amended by revising the definition of navigable waters to read as
follows:
117.1 Definitions.
*****
(i) Navigable waters is defined in section 502(7) of the Act to mean waters of the United States,
including the territorial seas.
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this section;
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Midwest.
Page 233 of 297
tributary.
that area cease;
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waterways; and
(G) Puddles.
recycling.
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(A) All waters located within 100 feet of the ordinary high water mark of a water
(B) All waters located within the 100-year floodplain of a water identified in paragraphs
(C) All waters located within 1,500 feet of the high tide line of a water identified in
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areas.
Page 237 of 297
(E) Runoff storage,
Page 238 of 297
intense storm.
*****
PART 122EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL

POLLUTANT DISCHARGE ELIMINATION SYSTEM
11. The authority citation for part 122 continues to read as follows:
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12. Section 122.2 is amended by revising the definition of Waters of the United States to
read as follows:
122.2 Definitions.
*****
Waters of the United States or waters of the U.S. means:
this section;
(7) All waters in paragraphs (i) through (v) of this paragraph where they are determined,
Page 240 of 297
(i) through (v) of this paragraph are similarly situated and shall be combined, for
(i) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually
Midwest.
(ii) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded,
(iii) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found
(iv) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of
(v) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater
Page 241 of 297
(1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the
requirements of the Clean Water Act. This exclusion applies only to manmade bodies of
water which neither were originally created in waters of the United States (such as
disposal area in wetlands) nor resulted from the impoundment of waters of the United
States. 13
13
At 45 FR 48620, July 21, 1980, the Environmental Protection Agency suspended until further
notice in 122.2, the last sentence, beginning This exclusion applies in the definition of
Waters of the United States. This revision (48 FR 14153, Apr. 1, 1983) continues that
suspension.
Page 242 of 297

(i) Ditches with ephemeral flow that are not a relocated tributary or excavated in a
tributary.
(ii) Ditches with intermittent flow that are not a relocated tributary, excavated in a
(iii) Ditches that do not flow, either directly or through another water, into a water
identified in paragraphs (a)(1) through (3) of this section.
(i) Artificially irrigated areas that would revert to dry land should application of water to
that area cease;
(ii) Artificial, constructed lakes and ponds created in dry land such as farm and stock
(iii) Artificial reflecting pools or swimming pools created in dry land;
(iv) Small ornamental waters created in dry land;
(v) Water-filled depressions created in dry land incidental to mining or construction
Page 243 of 297
(vi) Erosional features, including gullies, rills, and other ephemeral features that do not
waterways; and
(vii) Puddles.
recycling.
Page 244 of 297

(i) All waters located within 100 feet of the ordinary high water mark of a water
(ii) All waters located within the 100-year floodplain of a water identified in paragraphs
(iii) All waters located within 1,500 feet of the high tide line of a water identified in
Page 245 of 297
Page 246 of 297
(v) Runoff storage,
Page 247 of 297
intense storm.
*****
PART 230SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF DISPOSAL
SITES FOR DREDGED OR FILL MATERIAL.
14. Section 230.3 is amended by revising paragraphs (s) and deleting paragraph (t):
230.3 Definitions.
*****
(s) The term waters of the United States means
Page 248 of 297

this section;
Midwest.
Page 249 of 297
Page 250 of 297
tributary.
that area cease;
Page 251 of 297

waterways; and
(G) Puddles.
recycling.
Page 252 of 297
Page 253 of 297
areas.
Page 254 of 297
(E) Runoff storage,
Page 255 of 297
intense storm.
*****
PART 232404 PROGRAMS DEFINITIONS; EXEMPT ACTIVITIES NOT

REQUIRING 404 PERMITS
16. Section 232.2 is amended by revising the definition of Waters of the United States to read
as follows:
232.2 Definitions.
*****
Page 256 of 297
(a) Waters of the United States or waters means:

(1)
For purposes of the Clean Water Act, 33 U.S.C. 1251 et. seq. and its implementing
this section;
Page 257 of 297

Midwest.
Page 258 of 297
tributary.
that area cease;
Page 259 of 297
waterways; and
(G) Puddles.
recycling.
Page 260 of 297
Page 261 of 297
areas.
Page 262 of 297
(E) Runoff storage,
Page 263 of 297
intense storm.
*****
PART 300NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINTENCY PLAN
Page 264 of 297
300.5 Definitions.
*****
Navigable waters as defined by 40 CFR 110.1, means the waters of the United States,
this section;
Page 265 of 297
Midwest.
Page 266 of 297
tributary.
Page 267 of 297
that area cease;
waterways; and
(G) Puddles.
Page 268 of 297
recycling.
Page 269 of 297
Page 270 of 297
areas.
(E) Runoff storage,
Page 271 of 297

intense storm.
*****
Page 272 of 297
19. In appendix E to part 300, section 1.5 Definitions is amended by revising the definition
of navigable waters to read as follows:
Appendix E to Part 300Oil Spill Response

1.5 Definitions. * * *
*****
this section;
Page 273 of 297
Midwest.
Page 274 of 297
Page 275 of 297
tributary.
that area cease;
waterways; and
(G) Puddles.
Page 276 of 297
recycling.
Page 277 of 297
Page 278 of 297
areas.
Page 279 of 297

(E) Runoff storage,
Page 280 of 297
intense storm.
*****
PART 302DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION
302.3 Definitions.
*****
Page 281 of 297
this section;
Midwest.
Page 282 of 297
Page 283 of 297
(i) The following ditches:

tributary.
(ii) The following features:
that area cease;
waterways; and
(G) Puddles.
Page 284 of 297
(iii) Groundwater, including groundwater drained through subsurface drainage systems.

(iv) Stormwater control features constructed to convey, treat, or store stormwater that are
(v) Wastewater recycling structures constructed in dry land; detention and retention
recycling.
Page 285 of 297
Page 286 of 297
areas.
Page 287 of 297

(E) Runoff storage,
Page 288 of 297
intense storm.
*****
PART 401GENERAL PROVISIONS
23. Section 401.11 is amended by revising paragraph (l) to read as follows:
401.11 General definitions.
*****
(l) The term navigable waters as defined by 40 CFR 110.1, means the waters of the United
States, including the territorial seas.
Page 289 of 297
this section;
Midwest.
Page 290 of 297
terms of paragraphs (1)(iv) through (viii) of this section..
Page 291 of 297
(i) Prior converted cropland. Notwithstanding the determination of an areas status as

(ii) The following ditches:
tributary.
(iii) The following features:
that area cease;
Page 292 of 297
waterways; and
(G) Puddles.
(iv) Groundwater, including groundwater drained through subsurface drainage systems.
(v) Stormwater control features constructed to convey, treat, or store stormwater that are
(vi) Wastewater recycling structures constructed in dry land; detention and retention
recycling.
Page 293 of 297

Page 294 of 297
water to a water identified in paragraphs (1)(i) through (iii) of this section.
areas.
Page 295 of 297
(E) Runoff storage,
Page 296 of 297
intense storm.
*****
Page 297 of 297

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ENVIRONMENTAL PROTECTION AGENCY

Clean Water Rule: Definition of Waters of the United States

ACTION: Final rule.

FOR FURTHER INFORMATION CONTACT: Ms. Donna Downing, Office of Water

How Can I Get Copies of This Document and Related Information?

Under What Legal Authority is This Rule Issued?

Significant Nexus Determinations

The Significant Nexus Standard

Significant Nexus Conclusions

Definition of Waters of the United States

Traditional Navigable Waters

Case-Specific Waters of the United States

Related Acts of Congress, Executive Orders, and Agency Initiatives

Paperwork Reduction Act

Regulatory Flexibility Act

Unfunded Mandates Reform Act

Executive Order 13132: Federalism

Executive Order 13175: Consultation and Coordination with Indian Tribal

Executive Order 13045: Protection of Children from Environmental Health and

Executive Order 13211: Actions Concerning Regulations That Significantly

National Technology Transfer and Advancement Act

Executive Order 12898: Federal Actions to Address Environmental Justice in

Congressional Review Act

How Can I Get Copies of This Document and Related Information?

Confidential Business Information or other information whose disclosure is restricted by statute.

Under What Legal Authority Is This Rule Issued?

Chief Justice Roberts concurrence in Rapanos emphasized that [a]gencies delegated

Tributary streams, including perennial, intermittent, and ephemeral streams, are

U.S. Environmental Protection Agency, Connectivity of Streams and Wetlands to Downstream

Major Rule Provisions

Traditional Navigable Waters, Interstate Waters, Territorial Seas, and Impoundments of

Case-Specific Significant Nexus

Role of States and Tribes Under the Clean Water Act

Overview of the Preamble

Significant Nexus Standard

The Significant Nexus Standard

water quality . Protection of aquatic ecosystems, Congress recognized, demanded broad

recommended strengthening the conclusion regarding non-floodplain waters to include a more

SAB Review of the Proposed Rule

Significant Nexus Conclusions

Scope of Significant Nexus Analysis

2. Categories of Waters Determined to Have a Significant Nexus

Definition of Waters of the United States

Summary of the Rule

Traditional Navigable Waters

Have been determined by a Federal court to be navigable-in-fact under Federal law;

See Technical Support Document; U.S. Army Corps of Engineers Jurisdictional

1. What Are the Provisions in the Rule?

excluded from jurisdiction.

Ditches with perennial flow,

Ditches, regardless of flow, that are excavated in or relocate a tributary.

man-altered or constructed, but which science shows function as a tributary. In addition,

Page 104 of 297

3. How Do Science and Law Support the Rule?

Case-Specific Waters of the United States

The rule establishes two exclusive circumstances under which case-specific

Page 128 of 297

1. Waters Determined to Be Similarly Situated by Rule for which a Case-Specific

Waters Within the 100-Year Floodplain of a Traditional Navigable Water,