Revised Definition of "Waters of the United States"

Revised Definition of

“Waters of the United States”

Tribal and State Webinars

Webinar 4:

Exclusions and Other Topics

April 12, 2023

Tribal and State Webinar Series

• March 22, 2023: Overview

• March 30, 2023: Relatively Permanent Standard

• April 5, 2023: Significant Nexus Standard

• April 12, 2023: Exclusions and Other Topics

See

https://www.epa.gov/wotus/2023-rule-revised-definition-

waters-united-states-training-presentations for prior webinar

recordings. Please email

wotus-outreach@epa.gov for additional

information.

Presentation Outline

 Final Rule Framework

 Paragraph (a)(2) Impoundments

 Exemptions vs. Exclusions

 Exclusions from the Definition of

“Waters of the United States”

 Questions and Answers

Rule Status and Litigation Update

• On March 19, 2023, the U.S. District Court for the Southern District

of Texas granted a motion preliminarily enjoining the 2023 final rule

in Idaho and Texas.

• On April 12, 2023, the U.S. District Court for the District of North

Dakota granted a motion preliminarily enjoining the 2023 final rule

in 24 additional States.

• The agencies are reviewing the decisions and their options.

https://www.epa.gov/wotus/definition-waters-united-states-rule-status-

and-litigation-update

Final Rule Framework

Categories of Jurisdictional Waters

(a)(1)

 (i) Traditional Navigable Waters

 (ii) Territorial Seas

 (iii) Interstate Waters

(a)(2) Impoundments of Jurisdictional Waters

(a)(3) Tributaries

(a)(4) Adjacent Wetlands

(a)(5) Intrastate lakes and ponds, streams, and

wetlands that do not fall within (a)(1) – (a)(4)

*NOTE: The categories of jurisdictional waters listed on this slide are shorthand categories that are being used for efficiency. See the final regulatory text at 33 CFR 328.3(a)

and 40 CFR 120.2(a) for the full text of the categories.

Final Rule Framework

Exclusions

(b)(1) Waste treatment systems

(b)(2) Prior converted cropland

(b)(3) Certain ditches

(b)(4) Artificially irrigated areas that would revert to dry

land if irrigation ceased

(b)(5) Certain artificial lakes and ponds

(b)(6) Artificial reflection or swimming pools or other

small ornamental bodies of water

(b)(7) Certain waterfilled depressions

(b)(8) Swales and erosional features

(b)(3) – (b)(8):

Pre-2015 “generally non-

jurisdictional features,” added

to the final rule as exclusions

(b)(1) – (b)(2):

Pre-2015 exclusions, modified

in the final rule

*NOTE: The categories of exclusions that are listed on this slide are shorthand categories that are being used for efficiency. See the final regulatory text at 33 CFR

328.3(b) and 40 CFR 120.2(b) for the full text of the categories.

Jurisdictional Category: (a)(2) Impoundments

 “Waters of the United States” include

impoundments of waters that

otherwise meet the definition of

“waters of the United States.”

 However, waters determined to be

jurisdictional under paragraph (a)(5),

and that are subsequently impounded,

do not retain their jurisdictional status

under this (a)(2) impoundments

provision. Such waters may still be

determined to be jurisdictional under

another rule category.

Paragraph (a)(2) impoundments include:

• (1) Impoundments created by impounding

one of the “waters of United States” that

was jurisdictional under this rule’s

definition at the time the impoundment was

created, and

• (2) Impoundments of waters that at the

time of assessment meet the definition of

“waters of the United States” under

paragraph (a)(1), (a)(3), or (a)(4) of this rule,

regardless of the water’s jurisdictional

status at the time the impoundment was

created.

Jurisdictional Category: (a)(2) Impoundments

The following resources* may be particularly helpful when making a

determination that an impounded water was one of the “waters of the

United States” based on the 2023 Rule’s definition

when the

impoundment was created:

• Aerial photographs

• Topographic maps, including from USGS

• Soil surveys, including from NRCS

• State/Tribal/local maps depicting aquatic resources

• USFWS National Wetlands Inventory maps

• Planning, engineering, and design documents

*Historic resources will be the focus when determining if a water meets this criterion.

Jurisdictional Category: (a)(2) Impoundments

Paragraph (a)(2) waters also include impoundments of waters that at the time of

assessment are jurisdictional under paragraph (a)(1), (a)(3), or (a)(4) of

the 2023 Rule regardless of the water’s jurisdictional status at the time the

impoundment was created.

• A water that is impounded may not meet the 2023 Rule’s jurisdictional

criteria at the time the water was originally impounded, but the water may

meet the 2023 Rule’s jurisdictional criteria at the time of the assessment.

• Aquatic resources generally can evolve over time as environmental

conditions change, or due to human-caused changes.

Jurisdictional Category: (a)(2) Impoundments

Impoundments of waters that are

determined to be jurisdictional under

paragraph (a)(5) and that are subsequently

impounded

do not categorically retain

their jurisdictional status as “waters of

the United States” under the paragraph

(a)(2) impoundments category.

• Impoundments of paragraph (a)(5)

waters would need to be assessed for

jurisdiction in their current state

under paragraph (a)(1), (a)(3), (a)(4),

or (a)(5) of the 2023 Rule.

Jurisdictional Category: (a)(2) Impoundments

• Certain discharges of

pollutants are exempt from

Clean Water Act permitting

requirements under the

statute or EPA regulations.

• Exemptions are codified in the

Clean Water Act or elsewhere

in EPA’s regulations and are

not influenced by the

definition of “waters of the

Untied States.”

Exemptions vs. Exclusions

• Certain waters are excluded

from the definition of “waters

of the United States” under the

2023 Rule.

• Exclusions are codified

under paragraph (b) in

regulatory text in the

definition of “waters of the

United States,” not in the

Clean Water Act.

Exemptions

Some exempt activities under section 404(f) of the Clean Water

Act include:

See 33 CFR 323.4 for more examples of statutory exemptions. The Clean Water Act also exempts a number of activities

from permitting or from the definition of “point source,” under section 402 of the Act, including agricultural storm water

and irrigation return flows. See 33 U.S.C. 1342(l)(2), 1362(14).

• Normal farming,

silviculture and

ranching activities

• Construction of

irrigation ditches

or maintenance of

irrigation or drainage

ditches

• Construction or

maintenance of logging

roads

Exclusions

(b)(1) Waste treatment systems

(b)(2) Prior converted cropland

(b)(3) Certain ditches

(b)(4) Artificially irrigated areas that would revert to dry

land if irrigation ceased

(b)(5) Certain artificial lakes and ponds

(b)(6) Artificial reflection or swimming pools or other

small ornamental bodies of water

(b)(7) Certain waterfilled depressions

(b)(8) Swales and erosional features

(b)(3) – (b)(8):

Pre-2015 “generally non-

jurisdictional features,” added

to the final rule as exclusions

(b)(1) – (b)(2):

Pre-2015 exclusions, modified

in the final rule

*NOTE: The categories of exclusions that are listed on this slide are shorthand categories that are being used for efficiency. See the final regulatory text at 33 CFR

328.3(b) and 40 CFR 120.2(b) for the full text of the categories.

• Paragraph (a)(1) waters, which include traditional navigable waters, the

territorial seas, and interstate waters, are not subject to the exclusions in

the 2023 Rule.

• Even if a paragraph (a)(1) water meets the terms of an exclusion, the

water is not excluded and will be considered jurisdictional as a paragraph

(a)(1) water.

Exclusions

(b)(1) Exclusion: Waste Treatment Systems

“Waste treatment systems,

including treatment ponds or

lagoons, designed to meet the

requirements of the Clean Water

Act.”

(b)(1) Exclusion: Waste Treatment Systems

Implementation:

 Excluded waste treatment systems do

not sever upstream jurisdiction.

 The exclusion is generally available

only to the permittee using the system

for the treatment function for which

such system was designed.

 A waste treatment system that ceases

to serve the treatment function for

which it was designed would not

continue to qualify for the exclusion

and could be deemed jurisdictional if it

otherwise meets the 2023 Rule’s

definition of “waters of the United

States.”

(b)(2) Exclusion: Prior Converted Cropland

“Prior converted cropland designated by the Secretary of Agriculture.

The exclusion would cease upon a change of use, which means that

the area is no longer available for the production of agricultural

commodities. 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.”

Implementation

 The prior converted cropland exclusion encompasses prior

converted cropland designated by USDA, and no additional areas.

Areas USDA has not so designated are not eligible for this Clean

Water Act exclusion.

 The final rule exclusion for prior converted cropland only covers

wetlands

 Wetlands can be covered under the prior converted cropland

exclusion if they meet USDA’s longstanding definition of prior

converted cropland.

(b)(2) Exclusion: Prior Converted Cropland

Implementation

Prior converted cropland loses

its exclusion status if there is a

“change in use” – meaning the

area is no longer available for

the production of an agricultural

commodity.

(b)(2) Exclusion: Prior Converted Cropland

Are the wetlands

within a land area

designated by USDA

as prior converted

(PC) cropland?

Yes

Not Excluded

under (b)(2): these

wetlands are not

covered by an existing

USDA prior converted

(PC) cropland

designation.

Does the current or

proposed land use

disqualify the wetlands

from the exclusion?

Assess based on

“change in use.”

Not Excluded under

(b)(2): these wetlands

have lost their exclusion

status due to a change in

use.

Excluded under

(b)(2): these wetlands

are excluded under

paragraph (b)(2)

“Ditches (including roadside ditches)

excavated wholly in and draining only

dry land and that do not carry a

relatively permanent flow of water.”

(b)(3) Exclusion: Certain Ditches

Implementation

When assessing the jurisdictional status of a ditch, the agencies will evaluate the

entire reach of the ditch to determine if it has relatively permanent flow, consistent

with the reach approach used for tributaries.

 The agencies will assess the flow characteristics of a particular ditch reach at the

farthest downstream limit of the ditch reach (i.e., the point the ditch enters a higher

order in the network).

 Where data indicate the flow characteristics at the downstream limit is not

representative of the entire reach of the ditch, the flow characteristics that best

characterize the entire ditch reach will be used.

(b)(3) Exclusion: Certain Ditches

Implementation

Questions have sometimes arisen regarding the distinctions between ditches and

human-altered natural streams and rivers.

• Alteration or modification of a natural stream or river for flood control, erosion control,

development, agriculture, and other reasons does not convert the stream or river to an

excluded 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.

In these instances, the altered or modified streams and rivers are not ditches and

would also not satisfy the exclusion for ditches because they are not “excavated

wholly in and draining only dry land.”

(b)(3) Exclusion: Certain Ditches

Implementation

Questions have also arisen regarding relocated streams and rivers.

• A stream or river that has been relocated is not a ditch and would also not

satisfy the exclusion for ditches because it is not “excavated wholly in and

draining only dry land.”

• A stream or river that is relocated should be evaluated as a tributary when it

contributes flow directly or indirectly to a paragraph (a)(1) water or paragraph

(a)(2) impoundment.

• A stream or river is considered 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.

 An excluded ditch that connects downstream to a jurisdictional water would not be

jurisdictional merely because of its downstream connection to the jurisdictional water.

 Wetlands that develop entirely within the confines of an excluded ditch are not

urisdictional.

Paragraph (a)(1), (a)(2), or (a)(3) water

Excluded ditch

(b)(3) Exclusion: Certain Ditches

Wetlands that

develop wholly

within the

confines of an

excluded ditch

Examples of Tools and Resources That May Assist With

Identifying Excluded Ditches:

 Historic and current topographic maps, including from USGS

 Historic and recent aerial photographs

 Local, Tribal, and state records and surface water management plans (such as

county ditch or drainage maps and datasets)

 National Hydrography Dataset (NHD)

or National Wetlands

Inventory (NWI) data

 Agricultural records

 Street maintenance data

 Precipitation records

 Historic permitting and jurisdictional determination records

 Certain hydrogeomorphological or soil indicators, including NRCS soil

surveys

 Wetlands and conservation programs and plans, functional assessments, and

monitoring efforts

(b)(3) Exclusion: Certain Ditches

“Artificially irrigated areas that would

revert to dry land if the irrigation

ceased.”

Implementation

 The exclusion applies only to the

specific land being directly irrigated

that would reasonably revert to dry

land should irrigation cease.

(b)(4) Exclusion: Certain Artificially Irrigated

Areas

“Artificial lakes or ponds created by excavating

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.”

Implementation

 If a previously excluded feature no longer

meets the terms of the exclusion (e.g., if it is

no longer used for purposes such as stock

watering, irrigation, settling basins, or rice

growing), it is no longer excluded.

(b)(5) Exclusion: Certain Artificial Lakes and

Ponds

“Artificial reflecting or swimming pools or

other small ornamental bodies of water

created by excavating or diking dry land to

retain water for primarily aesthetic

reasons.”

Implementation

• For the exclusion to apply, these bodies of

water must have been created by

excavation or diking, wholly in dry land.

(b)(6) Exclusion: Certain Artificial Reflecting or

Swimming Pools or Other Small Ornamental

Bodies of Water

“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 waters of the United States.”

Implementation

 The exclusion requires that the waterfilled depression was created

wholly in dry land.

 The exclusion includes an abandonment provision.

 If a previously excluded feature no longer meets the terms of the exclusion

and/or is abandoned, it is no longer excluded.

(b)(7) Exclusion: Certain Waterfilled

Depressions

“Swales and erosional features (e.g., gullies,

small washes) characterized by low volume,

infrequent, or short duration flow.”

Implementation

• Swales are generally shallow features in the

landscape that may convey water across dry

land areas during and following storm events

and typically have grass or other low-lying

vegetation throughout the swale.

• While a swale is a discrete topographic feature,

it does not have a defined channel, nor an

ordinary high water mark (OHWM). This

distinguishes a swale from an ephemeral

stream because ephemeral streams typically

have a channel and at least one indicator of an

OHWM.

(b)(8) Exclusion: Certain Swales and Erosional

Features

Implementation

 Erosional features can typically be

distinguished from swales because erosional

features are generally deeper than swales

and have an absence of vegetation.

 Erosional features can be distinguished from

tributaries by the absence of a channel and

an OHWM

 Rills: small incisions formed by overland

water flow eroding the soil surface during

rainstorms.

 Gullies: tend to be much smaller than

streams, and are often deeper than they

are wide, with very steep banks,

commonly found in areas without much

vegetation or with soils that are prone to

erosion.

(b)(8) Exclusion: Certain Swales and Erosional

Features

Exclusions: Additional Considerations

Dry Land

• Some of the exclusions in the 2023

Rule refer to the term “dry land.”

• The preamble explains that the

term “dry land” refers to areas of

the geographic landscape that

do not

include waters such as

streams, rivers, wetlands, lakes,

ponds, tidal waters, ditches, and

the like.

 Even when a feature is excluded and therefore is not “waters of the United States,” the

excluded feature may be relevant to the analysis of whether another water is jurisdictional.

 For example, excluded surface features (e.g., c

ertain ditches, swales, gullies, or erosional

features) may still contribute to a hydrologic connection relevant for asserting jurisdiction

(e.g., between an adjacent wetland and a jurisdictional water, or between a tributary and the

downstream tributary network).

Paragraph (a)(3) Tributary that Meets the

Relatively Permanent Standard

Excluded

paragraph(b)(8) swale

Provides continuous

surface connection

between an adjacent

wetland and a relatively

permanent water

Paragraph (a)(4) adjacent

wetland

Exclusions: Additional Considerations

“Wetlands that develop entirely

within the confines of an excluded

feature are not jurisdictional.” (88

FR 3105)

Exclusions: Additional Considerations

Paragraph (a)(1), (a)(2), or (a)(3) water

Excluded feature

Wetlands that develop wholly

within the confines of an

excluded feature

Wetlands that develop within

and outside the confines of an

excluded feature

“However, a wetland may be located

both within and outside the boundaries

of a non-jurisdictional feature or

entirely outside the boundaries of non-

jurisdictional feature. In these

circumstances, the wetland will be

evaluated under this rule’s provisions

for ‘adjacent wetlands’ and paragraph

(a)(5) ‘intrastate lakes and ponds,

streams, or wetlands’ and not

considered as part of the non-

jurisdictional feature.” (88 FR 3105)

Additional Information

• See https://www.epa.gov/wotus for additional information.

• Please contact wotus-[email protected] with questions.

Questions and Answers

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