Appendix
Part II. EPA/USACE Proposed Definition of WOTUS
I. Proposed Definition:
The EPA proposed definition is provided below [Note: The USACE proposed definition also is provided in the 2021 Proposed Rule]:
PART 120—DEFINITION OF WATERS OF THE UNITED STATES
3.The authority citation for part 120 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
4.Revise § 120.1 to read as follows:
120.1
Purpose and scope.
This part contains the definition of “waters of the United States” for purposes of the Clean Water Act, 33 U.S.C. 1251 et seq. and its implementing regulations. EPA regulations implementing the Clean Water Act use the term “navigable waters,” which is defined at section 502(7) of the Clean Water Act as “the waters of the United States, including the territorial seas,” or the term “waters of the United States.” In light of the statutory definition, the definition in this section establishes the scope of the terms “waters of the United States” and “navigable waters” in EPA's regulations.
5.Revise § 120.2 to read as follows:
120.2
Definitions.
For the purposes of this part, the following terms shall have the meanings indicated:
(a) Waters of the United States means:
(1) All waters which are currently used, or were used in the past, or may Start Printed Page 69450 be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds:
(i) That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1), (a)(2), (a)(5)(i), or (a)(6) of this section; or
(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1), (2), or (6) of this section;
(4) All impoundments of waters otherwise defined as waters of the United States under the definition, other than impoundments of waters identified under paragraph (a)(3) of this section;
(5) Tributaries of waters identified in paragraph (a)(1), (2), (4), or (6) of this section:
(i) That are relatively permanent, standing or continuously flowing bodies of water; or
(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1), (2), or (6) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to the following waters (other than waters that are themselves wetlands):
(i) Waters identified in paragraph (a)(1), (2), or (6) of this section; or
(ii) Relatively permanent, standing, or continuously flowing bodies of water identified in paragraph (a)(4) or (a)(5)(i) of this section and with a continuous surface connection to such waters; or
(iii) Waters identified in paragraph (a)(4) or (a)(5)(ii) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1), (2), or (6) of this section;
(8) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act are not waters of the United States; and
(9) Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
(b) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.
(c) Adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are “adjacent wetlands.”
(d) 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.
(e) Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
(f) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.
(g) Significantly affect means more than speculative or insubstantial effects on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1), (2), or (6) of this section. When assessing whether the effect that the functions waters have on waters identified in paragraph (a)(1), (2), or (6) of this section is more than speculative or insubstantial, the agencies will consider:
(1) The distance from a water of the United States;
(2) The distance from a water identified in paragraph (a)(1), (2), or (6) of this section;
(3) Hydrologic factors, including shallow subsurface flow;
(4) The size, density, and/or number of waters that have been determined to be similarly situated; and
(5) Climatological variables such as temperature, rainfall, and snowpack.
2021 Proposed Rule, pp. 69449-69450.
II. Topics of Interest:
Topics of interest through the lens of stakeholders are provided below (copied from the 2021 Proposed Rule). You can scan the heading for those topics that may impact your particular operations or activities.
1986 Regulations as the Foundation: In this proposed rule, the agencies are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the familiar 1986 regulations, with amendments to reflect the agencies' interpretation of the statutory limits on the scope of the “waters of the United States” informed by Supreme Court decisions and the scientific record. Id at 69388.
Proposed WOTUS Scope: The agencies propose to interpret the term “waters of the United States” to include: Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments of “waters of the United States”; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and “other waters” that meet either the relatively permanent standard or the significant nexus standard. Id. at 69390.
Proposed WOTUS use of Relatively Permanent and Significant Nexus Standards: The agencies are also proposing to add the relatively permanent and significant nexus standards based on their conclusion that together those standards are consistent with the statutory text, advance the objective and policies of the Act, and are supported by the scientific record. Indeed, the agencies are not reaching any conclusions, categorical or otherwise, about which tributaries, adjacent wetlands (other than those adjacent to traditional navigable waters, interstate waters, or the territorial seas), or “other waters” meet either the relatively permanent or the significant nexus standard. Instead, the proposal enables the agencies to make science-informed determinations of whether or not a water that falls within these categories meets either jurisdictional standard and is therefore a “water of the United States,” on a case-specific basis. Id.
Proposed WOTUS Scope: While the agencies are not proposing to establish that any tributaries, adjacent wetlands (other than those wetlands adjacent to traditional navigable waters, interstate waters, and the territorial seas), or “other waters” are jurisdictional without the need for further assessment, they are proposing a rule that, based on the scientific record, identifies those categories of waters as subject to jurisdiction under the Clean Water Act under either the relatively permanent or significant nexus standard. Id.
Tributaries: Based on the importance of the functions that can be provided by tributaries to foundational waters, the agencies' proposal to interpret the Clean Water Act to protect tributaries where those tributaries meet either the relatively permanent standard or the significant nexus standard reflects proper consideration of the objective of the Act and the best available science. Id. at 69392.
Adjacent Wetlands: Based on the importance of the functions that are provided by adjacent wetlands to foundational waters, the agencies' proposal to interpret the Clean Water Act to protect adjacent wetlands where those adjacent wetlands meet either the relatively permanent standard or the significant nexus standard reflects proper consideration of the objective of the Act and the best available science. Id
“Other waters”—examples of which include, but are not limited to, intrastate lakes, wetlands, prairie potholes, playa lakes, streams that are not tributaries, and natural ponds—can provide important functions which affect the chemical, physical, and biological integrity of downstream foundational waters. . . . Based on the functions that can be provided by “other waters” to traditional navigable waters, interstate waters, and the territorial seas, the agencies' proposal to assess “other waters” to determine whether they meet either the relatively permanent standard or the significant nexus standard reflects proper consideration of the objective of the Act and the best available science. Id at 69393.
Climate Change: The significant nexus standard allows for the agencies to consider a changing climate when evaluating if upstream waters significantly affect foundational waters. This is because the significant nexus standard is based on the science of the strength of the effects that upstream tributaries, adjacent wetlands, and “other waters” can and do have on downstream foundational waters, and so implementation of the standard can adapt to changing climatic conditions. . . . In addition, the significant nexus standard allows the agencies to consider the functions of streams, wetlands, and open waters that support the resilience of the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas to climate change. . . . Changes in flow in tributaries caused by climate change will also be relevant to the relatively permanent standard, but that standard may not allow the agencies to take into account the contribution of upstream waters to the resilience of the integrity of downstream waters. . . . Considering a changing climate when conducting jurisdictional decisions by considering on a case-by-case basis the functions of aquatic resources that contribute to the resilience of the integrity of downstream foundational waters to climate change is consistent with the policy and goals of the Clean Water Act, case law, and the policy goals of this administration as articulated in Executive Order 13990. Id. at 69394.
Proposed WOTUS use of Relatively Permanent and Significant Nexus Standards: The agencies, however, are proposing that it is the significant nexus standard that advances the objective of the Act because it is linked to effects on downstream water quality while establishing a reasonable limitation on the scope of jurisdiction by requiring those links to be significant. The relatively permanent standard is administratively useful as an example of a subset of waters that will virtually always have the requisite nexus, but, on its own, is insufficiently protective to meet the objective of the Clean Water Act. Id. at 69395.
States and Tribes: The proposed rule both advances the objective of the Act in section 101(a) and respects the role of states and tribes in 101(b). The proposed rule appropriately draws the boundary of waters subject to federal protection by extending, and limiting, it to the protection of upstream waters that significantly affect the integrity of waters where the federal interest is indisputable—the traditional navigable waters, interstate waters, and territorial seas. Waters that do not implicate federal interest in these foundational waters are left entirely to state and tribal protection and management. Id. at 69399-69400.
States and Tribes: Many states and tribes do not regulate waters more broadly than the Clean Water Act requires. Id at 69415.
Proposed Rule Scope:
Traditional Navigable Waters: The proposed rule retains the provision in the 1986 regulations that defines “waters of the United States” to include “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.” Id. at 69416.
Interstate Waters: The proposed rule would restore the longstanding categorical protections for interstate waters, regardless of their navigability, that were established by the earliest predecessors to the 1972 Clean Water Act and remained in place until the promulgation of the NWPR. . . . Interstate waters may be streams, lakes or ponds, or wetlands. Under this provision of the proposed rule, consistent with the pre-2015 regulatory regime, the agencies would consider lakes, ponds, and similar lentic (or still) water features, as well as wetlands, crossing state boundaries jurisdictional as interstate waters in their entirety. For streams and rivers, including impoundments, the agencies would determine the upstream and downstream extent of the stream or river crossing a state boundary or serving as a state boundary that should be considered the “interstate water.” Id. at 69417-69418.
Other Waters: The agencies are proposing to retain the “other waters” category from the 1986 regulations in the definition of “waters of the United States,” but with changes informed by relevant Supreme Court precedent. Under the 1986 regulations, “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. The proposed rule amends the 1986 regulations to delete all of the provisions referring to authority over activities that “could affect interstate or foreign commerce” and replace them with the relatively permanent and significant nexus standards the agencies have developed based on their best judgment and relevant Supreme Court case law. The proposed rule provides that “other waters” meet the relatively permanent standard if they are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to a traditional navigable water, interstate water, or the territorial seas. The proposed rule also provides that “other waters” meet the significant nexus standard if they, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of a traditional navigable water, interstate water, or the territorial seas. Id. The “other waters” provision in the 1986 regulations contains a non-exclusive list of water types that could be jurisdictional under this provision if they are not jurisdictional under the other provisions of the definition: “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds.” The agencies are not proposing to change this language. Rather, the agencies are proposing to replace the Commerce Clause-based standard for determining jurisdiction with the relatively permanent and significant nexus standards. Id. at 69419.
Impoundments: The proposed rule retains the provision in the 1986 regulations that defines “waters of the United States” to include impoundments of “waters of the United States” with one change. Waters that are determined to be jurisdictional under the “other waters” provision would be excluded from this provision under the proposed rule. . . . [D]amming or impounding a “water of the United States” does not make the water non-jurisdictional. . . . Under the proposed rule and pre-2015 practice, impounding waters can create traditional navigable waters, even if the waters that are impounded are not themselves traditional navigable waters. In addition, under the proposed rule impounding a water can create a relatively permanent water, even if the water that is being impounded is a non-relatively permanent water. For purposes of implementation, relatively permanent waters include waters where water is standing or ponded at least seasonally. Id. at 69420.
Tributaries: The proposed rule retains the tributary provision of the 1986 regulations, updated to reflect consideration of relevant Supreme Court decisions. The 1986 regulations defined “waters of the United States” to include tributaries of traditional navigable waters, interstate waters, “other waters,” or impoundments. The proposed rule defines “waters of the United States” to include tributaries of traditional navigable waters, interstate waters, impoundments, or the territorial seas if the tributary meets either the relatively permanent standard or the significant nexus standard. . . . The agencies' longstanding interpretation of tributary for purposes of Clean Water Act jurisdiction includes not only rivers and streams, but also lakes and ponds that flow directly or indirectly to downstream traditional navigable waters, interstate waters, the territorial seas, or impoundments of jurisdictional waters. . . . The agencies' longstanding interpretation of tributary for purposes of the definition of “waters of the United States” includes natural, man-altered, or man-made water bodies that flow directly or indirectly into a traditional navigable water, interstate water, or the territorial seas. Id. at 69421-69422.
Territorial Seas: This proposed rule makes no changes to that provision, and would retain the territorial seas provision near the end of the list of jurisdictional waters, consistent with the 1986 regulations. Id. at 69422.
Adjacent Wetlands: Adjacent wetlands that would be jurisdictional under the proposed rule include wetlands adjacent to traditional navigable waters, interstate waters, or the territorial seas; wetlands adjacent to relatively permanent, standing, or continuously flowing impoundments or tributaries and that have a continuous surface connection to such waters; and wetlands adjacent to impoundments or tributaries that meet the significant nexus standard when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of foundational waters. Id. at 69422.
Exclusions: The agencies are also proposing to repromulgate two longstanding exclusions from the definition of “waters of the United States”: the exclusion for prior converted cropland and the exclusion for waste treatment systems. Id. at 69424.
Waste Treatment Systems: The proposed rule provides that “[w]aste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act are not waters of the United States.” This language is the same as the agencies' 1986 regulation's version of the waste treatment system exclusion, with a ministerial change to delete the exclusion's cross-reference to a definition of “cooling ponds” that no longer exists in the Code of Federal Regulations, and the addition of a comma that clarifies the agencies' longstanding implementation of the exclusion as applying only to systems that are designed to meet the requirements of the Act. Id. at 69426. [T]he exclusion does not free a discharger from the need to comply with the Clean Water Act for pollutants discharged from a waste treatment system to a water of the United States; only discharges into the waste treatment system are excluded from the Act's requirements. Id. at 69427-69428.
Definitions:
Significantly Affect: The proposed rule defines the term “significantly affect” for purposes of determining whether a water meets the significant nexus standard to mean “more than speculative or insubstantial effects on the chemical, physical, or biological integrity of” a traditional navigable water, interstate water, or the territorial seas. Waters, including wetlands, would be evaluated either alone, or in combination with other similarly situated waters in the region,[52] based on the functions the evaluated waters perform. The proposal also identifies specific “factors” that will be considered when assessing whether the “functions” provided by the water, alone or in combination, are more than speculative or insubstantial. The factors include readily understood criteria ( e.g., distance, hydrologic metrics, and climatological metrics) that influence the types and strength of chemical, physical, or biological connections and associated effects on those downstream foundational waters. Id. at 69430.
Proposed Rule Approach, Generally Not WOTUS: Under the pre-2015 regulatory regime, the waters described below were generally not considered WOTUS even though they were not explicitly excluded by regulation [Note: The agencies indicated, however, that these waters may function as point sources, with discharges of pollutants to other waters through these features requiring a CWA section 402 or 404 permit, and discharges to these waters may be subject to other CWA regulations.]. The agencies intend to continue this longstanding approach and are soliciting comment on this approach for the proposed rule [Note: The waters generally not considered WOTUS: certain ditches (ditches, including roadside ditches, excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water) ; artificially irrigated areas which would revert to upland if the irrigation ceased; artificial lakes or ponds created by excavating and/or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing; artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating and/or diking dry land to retain water for primarily aesthetic reasons; waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of WOTUS; swales or erosional features (gullies, small washes characterized by low volume, infrequent, or short duration flow)]. Id. at 69433.
Ditches: Where a ditch is jurisdictional, the agencies have historically taken the position that the ditch can be both a “water of the United States” and a point source and are proposing to reinstate this position. Id. at 69434.
Relatively Permanent Standard:
Tributaries: Under the Rapanos Guidance, “relatively permanent” tributaries include perennial streams that typically flow year-round and intermittent streams that have continuous flow at least seasonally. However, “relatively permanent” tributaries do not include ephemeral streams that flow only in response to precipitation and intermittent streams which do not have continuous flow at least seasonally. Id. at 69435.
Wetlands: The agencies assert jurisdiction over wetlands that have a continuous surface connection with a relatively permanent, non-navigable tributary. These wetlands are a subset of adjacent wetlands. Id.
Significant Nexus Standard:
General: The proposed rule would add the significant nexus standard to the “other waters,” tributary, and adjacent wetland categories in the 1986 regulations. . . . In practice, the agencies have asserted jurisdiction over tributary lakes and ponds that meet the significant nexus standard. . . . Where it is determined that a tributary and its adjacent wetlands collectively have a significant nexus with traditional navigable waters, the tributary and all of its adjacent wetlands are jurisdictional. Id. at 69436 - 69437.
Statutory Location of WOTUS: The definition of “waters of the United States” had historically been placed in eleven locations in the Code of Federal Regulations (CFR). For the sake of simplicity, in the NWPR, the agencies codified the definition of “waters of the United States” in only two places in the CFR—in Title 33 of the CFR, which implements the Corps' statutory authority, at 33 CFR 328.3, and in Title 40, which generally implements EPA's statutory authority, at 40 CFR 120.2 (and cross-referenced to these sections in the other locations). . . . The agencies agree with this approach and propose no change to the placement of the definition of “waters of the United States.” Id. at 69445.