# Revised Definition of “Waters of the United States”

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2019-00791

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** February 14, 2019
- **Citation:** 84 FR 4154

## Text

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-2018-0149; FRL-9988-15-OW]
RIN 2040-AF75
Revised Definition of “Waters of the United States”

AGENCY:

Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency and the Department of the Army (“the agencies”) are publishing for public comment a proposed rule defining the scope of waters federally regulated under the Clean Water Act (CWA). This proposal is the second step in a comprehensive, two-step process intended to review and revise the definition of “waters of the United States” consistent with the Executive Order signed on February 28, 2017, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.” This proposed rule is intended to increase CWA program predictability and consistency by increasing clarity as to the scope of “waters of the United States” federally regulated under the Act. This proposed definition revision is also intended to clearly implement the overall objective of the CWA to restore and maintain the quality of the nation's waters while respecting State and tribal authority over their own land and water resources.

DATES:

Comments must be received on or before April 15, 2019.

ADDRESSES:

You may submit comments, identified by Docket ID No. EPA-HQ-OW-2018-0149, by any of the following methods:

•
Federal eRulemaking Portal: http://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting comments.

•
Email: OW-Docket@epa.gov.
Include Docket ID No. EPA-HQ-OW-2018-0149 in the subject line of the message.

•
Mail:
U.S. Environmental Protection Agency, EPA Docket Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

•
Hand Delivery/Courier:
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal Holidays).

Instructions:
All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to
https://www.regulations.gov/,
including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “How should I submit comments?” heading of the GENERAL INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Michael McDavit, Oceans, Wetlands, and Communities Division, Office of Water (4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566-2428; email address:
CWAwotus@epa.gov;
or Jennifer A. Moyer, Regulatory Community of Practice (CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street NW, Washington, DC 20314; telephone number: (202) 761-5903; email address:
USACE_CWA_Rule@usace.army.mil
.

SUPPLEMENTARY INFORMATION:

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 proposed rule issued?

C. How should I submit comments?

II. Background

A. Executive Summary

B. The Clean Water Act and Regulatory Definition of “Waters of the United States”

1. The Clean Water Act

2. Regulatory History

3. Supreme Court Decisions

4. The 2015 Rule

C. Executive Order 13778, the “Step One” Notice of Proposed Rulemaking, and the Applicability Date Rule

D. Summary of Stakeholder Outreach

E. Overview of Legal Construct for the Proposed Rule

1. Statutory Framework

2. Supreme Court Precedent

3. Guiding Legal Principles for Proposed Rule

III. Proposed Definition of “Waters of the United States”

A. Traditional Navigable Waters and Territorial Seas

B. Interstate Waters

C. Impoundments

D. Tributaries

E. Ditches

F. Lakes and Ponds

G. Wetlands

H. Waters and Features That Are Not Waters of the United States

I. Summary of Proposed Rule as Compared to the 1986 and 2015 Regulations

J. Placement of the Definition of Waters of the United States in the Code of Federal Regulations

IV. State, Tribal and Federal Agency Datasets of “Waters of the United States”

V. Overview of Supporting Analyses

VI. Statutory and Executive Order Reviews

A. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs

B. Executive Order 12866: Regulatory Planning and Review; Executive Order 13563: Improving Regulation and Regulatory Review

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

E. Unfunded Mandates Reform Act

F. Executive Order 13132: Federalism

G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

J. National Technology Transfer and Advancement Act

K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

I. 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-2018-0149. The official public docket consists of the documents specifically referenced in this action, and other information related to this action. 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 202-566-2426. 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 EPA's electronic public docket and comment system, EPA Dockets. You

may access EPA Dockets at
http://www.regulations.gov
to view public comments as they are submitted and posted, 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 EPA's public docket, visit the EPA Docket Center homepage at
https://www.epa.gov/dockets
. 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 proposed rule issued?

The authority for this action is the Federal Water Pollution Control Act, 33 U.S.C. 1251
et seq.,
including sections 301, 304, 311, 401, 402, 404, and 501.

C. How should I submit comments?

Throughout this notice, the agencies solicit comment on a number of issues related to the proposed rulemaking. Submit your comments, identified by Docket ID No. EPA-HQ-OW-2018-0149, at
https://www.regulations.gov
(our preferred method), or the other methods identified in the
ADDRESSES
section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (
i.e.,
on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit
https://www.epa.gov/dockets/commenting-epa-dockets.

This rule is the outgrowth of other rulemakings and extensive outreach efforts, including requests for recommendations and comments, and the agencies have taken recommendations and comments received into account in developing this proposal. In developing a final rule, the agencies will be considering comments submitted on this proposal. Persons who wish to provide views or recommendations on this proposal must provide comments to the agencies as part of this comment process. To facilitate the processing of comments, commenters are encouraged to organize their comments in a manner that corresponds to the outline of this proposal.

II. Background

A. Executive Summary

The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) (together, the agencies) are publishing for public comment a proposed rule defining the scope of waters subject to federal regulation under the Clean Water Act (CWA), in light of the U.S. Supreme Court cases in
United States
v.
Riverside Bayview Homes
(
Riverside Bayview
),
Solid Waste Agency of Northern Cook County
v.
United States
(
SWANCC
), and
Rapanos
v.
United States
(
Rapanos
), and consistent with Executive Order 13778, signed on February 28, 2017, entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.”

The agencies propose to interpret the term “waters of the United States” to encompass: Traditional navigable waters, including the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters.

The agencies propose as a baseline concept that “waters of the United States” are waters within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and that not all waters are “waters of the United States.” Under this proposed rule, a tributary is defined as a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a traditional navigable water or territorial sea in a typical year either directly or indirectly through other tributaries, jurisdictional ditches, jurisdictional lakes and ponds, jurisdictional impoundments, and adjacent wetlands or through water features identified in paragraph (b) of this proposal so long as those water features convey perennial or intermittent flow downstream. A tributary does not lose its status if it flows through a culvert, dam, or other similar artificial break or through a debris pile, boulder field, or similar natural break so long as the artificial or natural break conveys perennial or intermittent flow to a tributary or other jurisdictional water at the downstream end of the break. Ditches are generally proposed not to be “waters of the United States” unless they meet certain criteria, such as functioning as traditional navigable waters, if they are constructed in a tributary and also satisfy the conditions of the proposed “tributary” definition, or if they are constructed in an adjacent wetland and also satisfy the conditions of the proposed “tributary” definition.

The proposal defines “adjacent wetlands” as wetlands that abut or have a direct hydrological surface connection to other “waters of the United States” in a typical year. “Abut” is proposed to mean when a wetland touches an otherwise jurisdictional water at either a point or side. A “direct hydrologic surface connection” as proposed occurs as a result of inundation from a jurisdictional water to a wetland or via perennial or intermittent flow between a wetland and jurisdictional water. Wetlands physically separated from other waters of the United States by upland or by dikes, barriers, or similar structures and also lacking a direct hydrologic surface connection to such waters are not adjacent under this proposal.

The proposal would exclude from the definition of “waters of the United States” waters or water features not mentioned above. The proposed definition specifically clarifies that “waters of the United States” do not include features that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; certain ditches; prior converted cropland; artificially irrigated areas that would revert to upland if artificial irrigation ceases; certain artificial lakes and ponds constructed in upland; water-filled depressions created in upland incidental to mining or construction activity; stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off; wastewater recycling structures constructed in upland; and waste treatment systems. In addition, the agencies are proposing to clarify and define the terms “prior converted cropland” and “waste treatment system” to improve regulatory predictability and clarity.

In response to the interest expressed by some States in participating in the federal jurisdictional determination process, the agencies are soliciting comment as to how they could establish an approach to authorize States, Tribes, and Federal agencies to establish

geospatial datasets of “waters of the United States,” as well as waters that the agencies propose to exclude, within their respective borders for approval by the agencies. Under a separate action, the agencies may propose creating a framework under which States, Tribes, and Federal agencies could choose to develop datasets for approval for all, some, or none of the “waters of the United States” within their boundaries. If the agencies were to pursue such an action, they would do so in coordination with other Federal agencies, State, tribal, and interested stakeholders. This approach would not require State and tribal governments to establish these datasets; it would simply make this process available to those government agencies that would find it useful.

The fundamental basis used by the agencies for the revised definition proposed today is the text and structure of the CWA, as informed by its legislative history and Supreme Court precedent, taking into account agency policy choices and other relevant factors. This proposed definition revision is intended to strike a balance between Federal and State waters and would carry out Congress' overall objective to restore and maintain the integrity of the nation's waters in a manner that preserves the traditional sovereignty of States over their own land and water resources. The agencies believe the proposed definition would also ensure clarity and predictability for Federal agencies, States, Tribes, the regulated community, and the public. This proposed rule is intended to ensure that the agencies are operating within the scope of the Federal government's authority over navigable waters under the CWA and the Commerce Clause of the U.S. Constitution.

B. The Clean Water Act and Regulatory Definition of “Waters of the United States”

1. The Clean Water Act

Congress amended the Federal Water Pollution Control Act (FWPCA), or Clean Water Act (CWA) as it is commonly called,
1

in 1972 to address longstanding concerns regarding the quality of the nation's waters and the federal government's ability to address those concerns under existing law. Prior to 1972, the ability to control and redress water pollution in the nation's waters largely fell to the U.S. Army Corps of Engineers (Corps) under the Rivers and Harbors Act of 1899 (RHA). While much of that statute focused on restricting obstructions to navigation on the nation's major waterways, section 13 of the RHA made it unlawful to discharge refuse “into any navigable water of the United States,
2

or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.” 33 U.S.C. 407. Congress had also enacted the Water Pollution Control Act of 1948, Public Law 80-845, 62 Stat. 1155 (June 30, 1948), to address interstate water pollution, and subsequently amended that statute in 1956 (giving the statute its current formal name), 1961, and 1965. The early versions of the CWA promoted the development of pollution abatement programs, required States to develop water quality standards, and authorized the Federal government to bring enforcement actions to abate water pollution.

1
The FWCPA is commonly referred to as the CWA following the 1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566 (1977). For ease of reference, the agencies will generally refer to the FWPCA in this notice as the CWA or the Act.

2
The term “navigable water of the United States” is a term of art used to refer to waters subject to federal jurisdiction under the RHA.
See, e.g.,
33 CFR 329.1. The term is not synonymous with the phrase “waters of the United States” under the CWA,
see id.,
and the general term “navigable waters” has different meanings depending on the context of the statute in which it is used.
See, e.g., PPL Montana, LLC
v.
Montana,
132 S. Ct. 1215, 1228 (2012).

These early statutory efforts, however, proved inadequate to address the decline in the quality of the nation's waters,
see City of Milwaukee
v.
Illinois,
451 U.S. 304, 310 (1981), so Congress performed a “total restructuring” and “complete rewriting” of the existing statutory framework in 1972,
id.
at 317 (quoting legislative history of 1972 amendments). That restructuring resulted in the enactment of a comprehensive scheme (including voluntary as well as regulatory programs) designed to prevent, reduce, and eliminate pollution in the nation's waters generally, and to regulate the discharge of pollutants into navigable waters specifically.
See, e.g., S.D. Warren Co.
v.
Maine Bd. of Environmental Protection,
547 U.S. 370, 385 (2006) (noting that “the Act does not stop at controlling the `addition of pollutants,' but deals with `pollution' generally”).

The objective of the new statutory scheme was “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). In order to meet that objective, Congress declared two national goals: (1) “that the discharge of pollutants into the navigable waters be eliminated by 1985;” and (2) “that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983 . . . .”
Id.
at 1251(a)(1)-(2).

Congress also established several key policies that direct the work of the agencies to effectuate those goals. For example, Congress declared as a national policy “that the discharge of toxic pollutants in toxic amounts be prohibited; . . . . that Federal financial assistance be provided to construct publicly owned waste treatment works; . . . . that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; . . . [and] that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution.”
Id.
at 1251(a)(3)-(7).

Congress provided a major role for the States in implementing the CWA, balancing the traditional power of States to regulate land and water resources within their borders with the need for a national water quality regulation. For example, the statute highlighted “the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce and eliminate pollution” and “to plan the development and use . . . . of land and water resources . . . . .”
Id.
at 1251(b). Congress also declared as a national policy that States manage the major construction grant program and implement the core permitting programs authorized by the statute, among other responsibilities.
Id.
Congress added that “[e]xcept as expressly provided in this Act, nothing in this Act shall . . . . be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.”
Id.
at 1370.
3

Congress pledged to provide technical support and financial aid to the States “in connection with the prevention, reduction, and elimination of pollution.”
Id.
at 1251(b).

3
33 U.S.C. 1370 also prohibits authorized States from adopting any limitations, prohibitions, or standards that are less stringent than required by the CWA.

To carry out these policies, Congress broadly defined “pollution” to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of

water,”
id.
at 1362(19), to parallel the broad objective of the Act “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”
Id.
at 1251(a). Congress then crafted a non-regulatory statutory framework to provide technical and financial assistance to the States to prevent, reduce, and eliminate pollution in the nation's waters generally. For example, section 105 of the Act, “Grants for research and development,” authorized EPA “to make grants to any State, municipality, or intermunicipal or interstate agency for the purpose of assisting in the development of any project which will demonstrate a new or improved method of preventing, reducing, and eliminating the discharge into
any waters
of pollutants from sewers which carry storm water or both storm water and pollutants.” 33 U.S.C. 1255(a)(1) (emphasis added). Section 105 also authorized EPA “to make grants to any State or States or interstate agency to demonstrate, in
river basins or portions thereof,
advanced treatment and environmental enhancement techniques to control pollution from all sources . . . . including nonpoint sources, . . . . [and] . . . . to carry out the purposes of section 301 of this Act . . . . for research and demonstration projects for prevention of pollution of
any waters
by industry including, but not limited to, the prevention, reduction, and elimination of the discharge of pollutants.” 33 U.S.C. 1255(b)-(c) (emphasis added);
see also id.
at 1256(a) (authorizing EPA to issue “grants to States and to interstate agencies to assist them in administering programs for the prevention, reduction, and elimination of pollution”). Section 108, “Pollution Control in Great Lakes,” authorized EPA to enter into agreements with any State to develop plans for the “elimination or control of pollution,
within all or any part of the watersheds
of the Great Lakes.”
Id.
at 1258(a) (emphasis added);
see also id.
at 1268(a)(3)(C) (defining the “Great Lakes System” as “
all
the streams, rivers, lakes and other bodies of water within the drainage basin of the Great Lakes”) (emphasis added). Similar broad pollution control programs were created for other major watersheds, including, for example, the Chesapeake Bay,
see id.
at 1267(a)(3), Long Island Sound,
see id.
at 1269(c)(2)(D), and Lake Champlain,
see id.
at 1270(g)(2).

In addition to the Act's non-regulatory measures to control pollution of the nation's waters generally, Congress created a federal regulatory permitting program designed to address the discharge of pollutants into a subset of those waters identified as “navigable waters” or “the waters of the United States,”
id.
at 1362(7). Section 301 contains the key regulatory mechanism: “Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful.”
Id.
at 1311(a). A “discharge of a pollutant” is defined to include “any addition of any pollutant to navigable waters from any point source,” such as a pipe, ditch or other “discernible, confined and discrete conveyance.”
Id.
at 1362(12), (14). The term “pollutant” means “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”
Id.
at 1362(6). Thus, it is unlawful to discharge pollutants into the waters of the United States from a point source unless the discharge is in compliance with certain enumerated sections of the CWA, including obtaining authorization pursuant to the section 402 National Pollutant Discharge Elimination System (NPDES) permit program or the section 404 dredged or fill material permit program.
See id.
at 1342 and 1344. Congress therefore hoped to achieve the Act's objective “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters” by addressing pollution of all waters via non-regulatory means and federally regulating the discharge of pollutants to the subset of waters identified as “navigable waters.”
4

4
Members of Congress were aware when they drafted the 1972 CWA amendments that different types of the Nation's waters would be subject to different degrees of federal control. For instance, in House Debate regarding a proposed and ultimately failed amendment to prohibit the discharge of pollutants to ground waters in addition to navigable waters, Representative Don H. Clausen stated, “Mr. Chairman, in the early deliberations within the committee which resulted in the introduction of H.R. 11896, a provision for ground waters . . . . was thoroughly reviewed and it was determined by the committee that there was not sufficient information on ground waters to justify the types of controls that are required for navigable waters. I refer the gentleman to the objectives of this act as stated in section 101(a). The objective of this act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. I call your attention to the fact that this does not say the Nation's `navigable waters,' `interstate waters,' or `intrastate waters.' It just says `waters.' This includes ground waters.” 118 Cong. Rec. at 10,667 (daily ed. March 28, 1972).

Under this statutory scheme, the States are primarily responsible for developing water quality standards for “waters of the United States” within their borders and reporting on the condition of those waters to EPA every two years.
Id.
at 1313, 1315. States must develop total maximum daily loads (TMDLs) for waters that are not meeting established water quality standards and must submit those TMDLs to EPA for approval.
Id.
at 1313(d). States also have authority to issue water quality certifications or waive certification for every federal permit or license issued within their borders that may result in a discharge to navigable waters.
Id.
at 1341.

These same regulatory authorities can be assumed by Indian tribes under section 518 of the CWA, which authorizes EPA to treat eligible Indian tribes with reservations in a manner similar to States for a variety of purposes, including administering each of the principal CWA regulatory programs.
Id.
at 1377(e). In addition, States and Tribes retain authority to protect and manage the use of those waters that are not navigable waters under the CWA.
See, e.g., id.
at 1251(b), 1251(g), 1370, 1377(a). At this time, forty-seven states administer portions of the CWA section 402 permit program for those “waters of the United States” within their boundaries,
5

and two states (Michigan and New Jersey) administer the section 404 permit program. At present, no Tribes administer the section 402 or 404 programs, although some are exploring the possibility. For additional information regarding State and tribal programs,
see
the Technical Support Document.

5
Three states (Massachusetts, New Hampshire, and New Mexico) do not currently administer any part of the CWA section 402 program.

2. Regulatory History

In May 1973, the EPA issued its first set of regulations to implement the new NPDES permit program established in the 1972 CWA amendments. Those regulations defined the phrase “navigable waters” as:

• All navigable waters of the United States;

• Tributaries of navigable waters of the United States;

• Interstate waters;

• Intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes;

• Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce; and

• Intrastate lakes, rivers, and streams which are utilized for industrial purposes by industries in interstate commerce.

38 FR 13528, 13529 (May 22, 1973) (codified at 40 CFR 125.1 (1973)).

In 1974, the Corps issued its first set of regulations defining “waters of the United States” for the purpose of implementing section 404 of the CWA, as well as sections 9, 10, 11, 13, and 14 of the RHA, that reaffirmed the Corps' view that its dredged and fill jurisdiction under section 404 was the same as its traditional jurisdiction under the RHA.
See
39 FR 12115, 12119 (Apr. 3, 1974) (codified at 33 CFR 209.12033). Specifically, the Corps defined “the waters of the United States” as waters that “are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.” 39 FR 12119.

Environmental organizations challenged the Corps' 1974 regulation in the District Court for the District of Columbia based on the concern that the Corps' definition of “navigable waters” did not include tributaries or coastal marshes above the mean high tide mark or wetlands above the ordinary high water mark. The District Court held that the term “navigable waters” is not limited to the traditional tests of navigability and ordered the Corps to revoke its definition and publish a new one “clearly recognizing the full regulatory mandate of the Water Act.”
Natural Resources Defense Council, Inc.
v.
Callaway,
392 F. Supp. 685 (D.D.C. 1975).

In response to this decision, the Corps issued interim regulations in 1975 that defined the term “navigable waters” to include periodically inundated coastal wetlands contiguous with or adjacent to navigable waters, periodically inundated freshwater wetlands contiguous with or adjacent to navigable waters, and, like EPA's 1973 regulations, certain intrastate waters based on non-transportation impacts on interstate commerce. The Corps revised the definition in 1977 to encompass traditional navigable waters, tributaries to navigable waters, interstate waters, adjacent wetlands to those categories of waters, and “[a]ll other waters” the “degradation or destruction of which could affect interstate commerce.” 42 FR 37122, 37144 (July 19, 1977).

The EPA and the Corps through the years have maintained separate regulations defining the statutory term “waters of the United States,” but the text of the regulations has been virtually identical starting in 1986.
6

In 1986, for example, the Corps consolidated and recodified its regulations to align with clarifications EPA had previously promulgated.
See
51 FR 41206 (Nov. 13, 1986). While the Corps stated in 1986 that the recodified regulation neither reduced nor expanded jurisdiction, its previous exclusion for ditches was moved from the regulatory text to the final rule preamble.
Id.
at 41216-17. And the Corps added to the preamble what later became known as the “Migratory Bird Rule,” which claimed jurisdiction over any water which is or may be used by birds protected by migratory bird treaties or may be used as habitat for birds flying across state lines, and waters which may be used by endangered species, and waters used to irrigate crops sold in interstate commerce.
Id.
at 41217.

6
For convenience, the agencies generally refer to the Corps' regulations throughout this notice. EPA codification of the definition of “waters of the United States” is found at 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 401.11, and Appendix E to Part 300.

The 1986 regulatory text identified the following as “waters of the United States”:

• All traditional navigable waters,
7

interstate waters, and the territorial seas;

7
“Traditional navigable waters” (or waters that are traditionally understood as navigable) refers to 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 subject to the ebb and flow of the tide.

• All impoundments of jurisdictional waters;

• All “other waters” such as lakes, ponds, and sloughs the “use, degradation or destruction of which could affect interstate or foreign commerce”;

• Tributaries of traditional navigable waters, interstate waters, the territorial seas, impoundments, or “other waters”; and,

• Wetlands adjacent to traditional navigable waters, interstate waters, the territorial seas, impoundments, tributaries, or “other waters” (other than waters that are themselves wetlands).

33 CFR 328.3(a)(1)-(7) (1987). The 1986 regulation also excluded “waste treatment systems” from the definition of “waters of the United States.”
Id.
at 328.3(a)(7), (b) (1987).

On August 25, 1993, the agencies amended the regulatory definition of “waters of the United States” to categorically exclude “prior converted croplands.” 58 FR 45008, 45031 (Aug. 25, 1993) (“1993 Rule”) (codified at 33 CFR 328.3(b)(2) (1994)). The stated purpose of the amendment was to promote “consistency among various federal programs affecting wetlands,” in particular the Food Security Act (FSA) programs implemented by the U.S. Department of Agriculture (USDA) and the CWA programs implemented by the agencies. 58 FR 45033. The agencies did not include a definition of “prior converted cropland” in the text of the Code of Federal Regulations but noted in the preamble to the 1993 Rule that the term was defined at that time by the USDA National Food Security Act Manual (NFSAM). The agencies at that time also declined to establish clear rules for when the prior converted cropland designation is no longer applicable. In the preamble to the 1993 Rule, the agencies stated that “[t]he Corps and EPA will use the [Natural Resources Conservation Service's] provisions on `abandonment,' thereby ensuring that PC cropland that is abandoned within the meaning of those provisions and which exhibit[s] wetlands characteristics will be considered wetlands subject to Section 404 regulation.”
Id.
at 45034. The agencies summarized these abandonment provisions by explaining that prior converted cropland which now meets wetland criteria is considered to be abandoned unless: At least once in every five years the area has been used for the production of an agricultural commodity, or the area has been used and will continue to be used for the production of an agricultural commodity in a commonly used rotation with aquaculture, grasses, legumes or pasture production.
Id.

Congress amended the wetland conservation (“Swampbuster”) provisions of the FSA in 1996 to state that USDA certifications of eligibility for program benefits (
e.g.,
determinations by Natural Resources Conservation Service (NRCS) that particular areas constitute prior converted cropland) “shall remain valid and in effect as long as the area is devoted to an agricultural use or until such time as the person affected by the certification requests review of the certification by the Secretary [of Agriculture].” Public Law 104-127, 322(a)(4); 16 U.S.C. 3822(a)(4). Thus, for purposes of farm program eligibility, the 1996 amendments designate as prior converted cropland those areas that may not have qualified for the CWA exclusion under the abandonment principles from the 1993 preamble, so long as such areas remain in agricultural use. The agencies did not update their prior converted cropland regulations for purposes of the CWA following the 1996 Swampbuster amendments, as those regulations neither defined prior converted cropland nor specified when a valid prior converted cropland determination might cease to be valid. However, in 2005, the Army and USDA issued a joint Memorandum to the Field (the 2005 Memorandum) in an effort to again align the CWA 404 program with

Swampbuster.
8

The 2005 Memorandum provided that a “certified [prior converted] determination made by [USDA] remains valid as long as the area is devoted to an agricultural use. If the land changes to a non-agricultural use, the [prior converted] determination is no longer applicable and a new wetland determination is required for CWA purposes.”

8
Memorandum to the Field on Guidance on Conducting Wetland Determinations for the Food Security Act of 1985 and Section 404 of the Clean Water Act, February 25, 2005,
available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2508.

The 2005 Memorandum did not clearly address the abandonment principle that the agencies had been implementing since the 1993 rulemaking. The change in use policy was also never promulgated as a rule and was declared unlawful by one district court because it effectively modified the 1993 preamble language without any formal rulemaking process.
New Hope Power Co.
v.
U.S. Army Corps of Eng'rs,
746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010).

3. Supreme Court Decisions

From the earliest rulemaking efforts following adoption of the 1972 CWA amendments, to the agencies most recent attempt to define “waters of the United States” in 2015, the sparse statutory definition has spurred substantial litigation testing the meaning of the phrase. Hundreds of cases and dozens of courts have attempted to discern the intent of Congress when crafting the phrase.
See, e.g., Rapanos
v.
United States,
547 U.S. 715, 739 (2006) (Scalia, J., plurality) (briefly summarizing case history). The federal courts have established different analytical frameworks to interpret the phrase, and the applicable test may differ from state to state.
See, e.g.,
Memorandum from Dick Pedersen, President of the Environmental Council of the States (ECOS) of September 11, 2014 Concerning Waters of the United States under the Act at 2-23 (2014) (hereinafter, the “ECOS Memorandum”),
available at http://acoel.org/file.axd?file=2014%2f9%2fWaters+of+the+U+S+Final+9_11_14.pdf
(summarizing case history following
Rapanos
).

As part of this complex litigation history, three key U.S. Supreme Court decisions have interpreted the term “waters of the United States” and its implementing regulations and serve as guideposts for the agencies' interpretation of the phrase “waters of the United States.” In 1985, for example, the Supreme Court deferred to the Corps' assertion of jurisdiction over wetlands actually abutting a traditional navigable water in Michigan, stating that adjacent wetlands may be regulated as “waters of the United States” because they are “inseparably bound up” with navigable waters and “in the majority of cases” have “significant effects on water quality and the aquatic ecosystem” in those waters.
United States
v.
Riverside Bayview Homes,
474 U.S. 121, 131-35 & n.9 (1985). The Court 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 . . . . . Where on this continuum to find the limit of `waters' is far from obvious.”
Id.
at 132. The Court acknowledged the “inherent difficulties of defining precise bounds to regulable waters,” and deferred to the agencies' interpretation that the close ecological relationship between adjacent wetlands and traditional navigable waters provided a legal justification for treating wetlands as waters.
Id.
at 134. The Court also “conclude[d] that a definition of `waters of the United States' encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act.”
Id.
at 135.

The Supreme Court again addressed the definition of “waters of the United States” 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 relied on the statute to reject a claim of federal jurisdiction over nonnavigable, isolated, intrastate ponds that lack a sufficient connection to traditional navigable waters, noting that the term “navigable” must be given meaning within the context and application of the statute.
Id.
The Court held that interpreting the statute to extend to nonnavigable, isolated, intrastate ponds that lack a sufficient connection to traditional navigable waters would invoke the outer limits of Congress' power under the Commerce Clause.
Id.
at 172. Where an administrative interpretation of a statute presses against the outer limits of Congress' constitutional authority, the Court explained, it expects a clear statement from Congress that it intended that result, and even more so when the broad interpretation authorizes federal encroachment upon a traditional state power.
Id.
The CWA contains no such clear statement.
Id.
at 174.

In January 2003, EPA and the Corps issued joint guidance interpreting the Supreme Court decision in
SWANCC.
9

The guidance indicated that
SWANCC
focused on nonnavigable, isolated, intrastate waters, and called for field staff to coordinate with their respective Corps or EPA Headquarters on jurisdictional determinations which asserted jurisdiction over such waters. The agencies at that time focused the application of
SWANCC
to its facts, and applied the decision as restricting the exercise of federal jurisdiction based on the Migratory Bird Rule.

9

See
Legal Memoranda Regarding
Solid Waste Agency of Northern Cook County (SWANCC)
v.
United States
(Jan. 15, 2003),
available at https://www.epa.gov/sites/production/files/2016-04/documents/swancc_guidance_jan_03.pdf.

The Court most recently interpreted the term “waters of the United States” in
Rapanos
v.
United States,
547 U.S. 715 (2006).
Rapanos
involved two consolidated cases in which the CWA had been applied to wetlands located near man-made ditches that were ultimately connected to 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 interpreted the term “waters of the United States” to “include[ ] only those relatively permanent, standing or continuously flowing bodies of water `forming geographic features' that are described in ordinary parlance as `streams[,] . . . oceans, rivers, [and] lakes,' ”
Rapanos,
547 U.S. at 739 (Scalia, J., plurality) (quoting
Webster's New International Dictionary
2882 (2d ed. 1954)), and “wetlands with a continuous surface connection” to a relatively permanent water.
Id.
at 742. The plurality explained that “[w]etlands with only an intermittent, physically remote hydrologic connection to `waters of the United States' do not implicate the boundary-drawing problem of
Riverside Bayview,”
and thus do not have the “necessary connection” to covered waters that triggers CWA jurisdiction.
Id.
at 742. The plurality also 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).

In a concurring opinion, Justice Kennedy took a different approach, concluding 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). He stated that adjacent wetlands possess the requisite significant nexus if the wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.' ”
Id.
at 780.

Following
Rapanos,
on June 7, 2007, the agencies issued joint guidance entitled, “Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in
Rapanos
v.
United States
and
Carabell
v.
United States,”
to address the waters at issue in that decision but did not change the codified definition. The guidance indicated that the agencies would assert jurisdiction over traditional navigable waters and their adjacent wetlands, relatively permanent nonnavigable tributaries of traditional navigable waters and wetlands that abut them, nonnavigable tributaries that are not relatively permanent if they have a significant nexus with a traditional navigable water, and wetlands adjacent to nonnavigable tributaries that are not relatively permanent if they have a significant nexus with a traditional navigable water. The guidance was reissued on December 2, 2008, with minor changes (hereinafter, the “
Rapanos
Guidance”).
10

After issuance of the
Rapanos
Guidance, Members of Congress, developers, farmers, state and local governments, environmental organizations, energy companies, and others asked the agencies to replace the guidance with a regulation that would provide clarity and certainty regarding the scope of the waters federally regulated under the CWA.

10

See
U.S. EPA and U.S. Army Corps of Engineers. Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in
Rapanos
v.
United States & Carabell v. United States
at 1 (Dec. 2, 2008) (“
Rapanos
Guidance”),
available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf.

Since
Rapanos,
litigation has continued to confuse the regulatory landscape.
See, e.g.,
the ECOS Memorandum at 2-23. The Supreme Court also has twice weighed in on topics related to the agencies' implementation of their authorities under the CWA to help clarify federal authority in this area. In each case, members of the Court noted the longstanding confusion regarding the scope of federal jurisdiction under the CWA and the importance of providing clear guidance to the regulated community. In 2012, for example, the Supreme Court unanimously rejected EPA's long-standing position that compliance orders issued under the CWA to force property owners to restore wetlands are not judicially reviewable as final agency actions.
See Sackett
v.
EPA,
132 S. Ct. 1367, 1374 (2012). In a concurring opinion, Justice Alito referred to the jurisdictional reach of the CWA as “notoriously unclear” and noted that the Court's decision provided only “a modest measure of relief.”
Id.
at 1375 (“For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase” waters of the United States.).

In 2016, the Supreme Court in a unanimous opinion rejected the Corps' longstanding position that jurisdictional determinations issued by the Corps were not judicially reviewable as final agency actions. Writing for the Court, the Chief Justice recognized that it “is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does.”
U.S. Army Corps of Engineers
v.
Hawkes,
136 S. Ct. 1807, 1812 (2016). Given those important consequences, the Court held that jurisdictional determinations are subject to immediate judicial review when made. Justice Kennedy authored a concurring opinion, “not to qualify what the Court says but to point out, that based on the Government's representations in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern.”
Id.
at 1816 (referring to the “ominous reach” of the Act). On remand, the lower court found that the Corps' assertion of jurisdiction over a peat farm more than 90 miles from the nearest traditional navigable water based on the “significant nexus” test described in the agencies'
Rapanos
Guidance was “arbitrary and capricious.”
Hawkes Co.
v.
United States Army Corps of Eng'rs,
No. 13-107 ADM/TNL, 2017 U.S. Dist. LEXIS 10680 at *33 (D. Minn. Jan. 24, 2017).

4. The 2015 Rule

On June 29, 2015, the agencies issued a final rule amending various portions of the Code of Federal Regulations that set forth a new definition of “waters of the United States.” 80 FR 37054 (June 29, 2015). The 2015 Rule revised the definition of “waters of the United States” by grouping waters and features in three categories: (1) Waters that are jurisdictional by rule; (2) waters that will be found jurisdictional only upon a case-specific showing of a significant nexus with a primary water;
11

and (3) waters and aquatic features that are expressly excluded from jurisdiction.
Id.
at 37057. The 2015 Rule did not modify the regulatory text from the 1986 regulation for traditional navigable waters, interstate waters, the territorial seas, or impoundments of jurisdictional waters.
Id.
at 37058.

11
In this notice, a “primary” water is a category (1) through (3) “jurisdictional by rule” water according to the 2015 Rule.

As in the 1986 regulation and its predecessors, the 2015 Rule identified tributaries as jurisdictional. Unlike the 1986 regulation, the 2015 Rule defined “tributary” as a water that “contributes flow, either directly or through another water,” to a traditional navigable water, interstate water, or the territorial seas, and that has the “physical indicators of a bed and banks and an ordinary high water mark.”
Id.
at 37104, 37105-6. The 2015 Rule also defined “waters of the United States” to include “wetlands, ponds, lakes, oxbows, impoundments, and similar waters” that are “adjacent to” a primary water, impoundment, or tributary.
Id.
at 37104. The term “adjacent” continued to be defined as in the 1986 regulation to mean “bordering, contiguous, or neighboring.”
Id.
at 37105. The 2015 Rule, however, promulgated a new definition for “neighboring,” interpreting that term to encompass all waters located within 100 feet of the ordinary high water mark of a category (1) through (5) “jurisdictional by rule” water; all waters located within the 100-year floodplain of a category (1) through (5) “jurisdictional by rule” water and not more than 1,500 feet from the ordinary high water mark of such water; all waters located within 1,500 feet of the high tide line of a primary water; and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes.
Id.
at 37105. Under the 2015 Rule, the entire water is considered neighboring if any portion of it lies within one of these zones.
See id.

In addition to the six categories of “jurisdictional by rule” waters, the 2015 Rule identifies two other categories of waters that are subject to a case-specific analysis to determine if they have a “significant nexus” to a primary water.
Id.
at 37104-5. The first category of these waters consists of five specific types of waters in specific regions of the country considered similarly situated: Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands.
Id.
at 37105. The second category consists of all waters located within the 100-year floodplain of any primary water and all waters located

within 4,000 feet of the high tide line or ordinary high water mark of any category (1) through (5) “jurisdictional by rule” water.
Id.

The 2015 Rule also changed the implementation of “significant nexus” previously adopted by the agencies in the
Rapanos
Guidance. The 2015 Rule defines “significant nexus” to mean a water, including wetlands, that either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a primary water. 80 FR 37106. “For an effect to be significant, it must be more than speculative or insubstantial.”
Id.
The term “in the region” means “the watershed that drains to the nearest” primary water, and waters are “similarly situated” when they function alike and are sufficiently close to function together in affecting downstream primary waters.
Id.
This definition is different than the test articulated by the agencies in their
Rapanos
Guidance. That guidance interpreted “similarly situated” to include all wetlands (not waters) adjacent to the same tributary, a less expansive treatment of similarly situated waters than in the 2015 Rule.

Under the 2015 Rule, to determine whether a water, alone or in combination with similarly situated waters, has a significant nexus, one must look at nine functions, including sediment trapping, runoff storage, provision of life cycle dependent aquatic habitat, and others. It is sufficient for determining whether a water has a significant nexus if any single function performed by the water, alone or together with similarly situated waters in the watershed, contributes significantly to the chemical, physical, or biological integrity of the nearest primary water.
Id.
Taken together, the enumeration of the nine functions and the more expansive consideration of “similarly situated” in the 2015 Rule relative to the
Rapanos
Guidance could mean that the vast majority of water features in the United States not otherwise excluded from the 2015 Rule's definition of “waters of the United States” may come within the jurisdictional purview of the federal government.
12

12
“[T]he vast majority of the nation's water features are located within 4,000 feet of a covered tributary, traditional navigable water, interstate water, or territorial sea.” U.S. EPA and Department of the Army. Economic Analysis of the EPA-Army Clean Water Rule at 11 (May 20, 2015) (“2015 Rule Economic Analysis”) (Docket ID: EPA-HQ-OW-2011-0880-20866),
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20866.

The agencies retained exclusions from the definition of “waters of the United States” for prior converted cropland and waste treatment systems.
Id.
In addition, the agencies codified several exclusions that reflected longstanding agency practice.
Id.
For instance, certain ditches and artificial, constructed lakes and ponds (including small ornamental waters created in dry land) are excluded from jurisdiction under the 2015 Rule, as are groundwater and a number of other specified features.
See
80 FR 37109. The agencies also added specific exclusions for “puddles” and “swimming pools” in response to concerns raised by many stakeholders during the public comment period on the proposed 2015 Rule.

Following publication of the 2015 Rule, 31 States
13

and 53 non-state parties, including environmental groups and groups representing farming, recreational, forestry, and other interests, filed complaints and petitions for review in multiple federal district
14

and appellate
15

courts challenging the 2015 Rule. In those cases, the challengers alleged numerous procedural deficiencies in the development and promulgation of the 2015 Rule and significant substantive deficiencies in the 2015 Rule itself.

13
Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico (Environment Department and State Engineer), North Carolina (Department of Environment and Natural Resources), North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming. Iowa joined the challenge later in the process, bringing the total to 32 States.

14
U.S. District Courts for the Northern and Southern District of Georgia, District of Minnesota, District of North Dakota, Southern District of Ohio, Northern District of Oklahoma, Southern District of Texas, District of Arizona, Northern District of Florida, District of the District of Columbia, Western District of Washington, Northern District of California, and Northern District of West Virginia.

15
U.S. Court of Appeals for the Second, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and District of Columbia Circuits.

The day before the 2015 Rule's August 28, 2015 effective date, the U.S. District Court for the District of North Dakota preliminarily enjoined the 2015 Rule in the 13 States that challenged the rule in that court.
16

The district court found those States were “likely to succeed” on the merits of their challenge to the 2015 Rule because, among other reasons, “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule.”
North Dakota
v.
EPA,
127 F. Supp. 3d 1047, 1051 (D.N.D. 2015). In particular, the court noted concern that the 2015 Rule's definition of tributary “includes vast numbers of waters that are unlikely to have a nexus to navigable waters.”
Id.
at 1056. Further, the court found that “it appears likely that the EPA failed to comply with [Administrative Procedure Act (APA)] requirements when promulgating the Rule,” suggesting that certain distance-based measures were not a logical outgrowth of the proposal to the 2015 Rule.
Id. at
1058. No party sought an interlocutory appeal.

16
Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. The agencies note that Iowa is now also subject to the preliminary injunction issued by the District of North Dakota.
See
Order,
North Dakota
v.
EPA,
No. 3:15-cv-59 (D.N.D. Sept. 18, 2018).

The numerous petitions for review filed in the courts of appeals were consolidated in the U.S. Court of Appeals for the Sixth Circuit. In that litigation, state and industry petitioners raised concerns about whether the 2015 Rule violated the Constitution and the CWA, and whether its promulgation violated the APA and other statutes. Environmental petitioners also challenged the 2015 Rule, claiming that the 2015 Rule was too narrow. On October 9, 2015, approximately six weeks after the 2015 Rule took effect in the 37 States, the District of Columbia, and U.S. Territories that were not subject to the preliminary injunction issued by the District of North Dakota, the Sixth Circuit stayed the 2015 Rule nationwide after finding, among other things, that State petitioners had demonstrated “a substantial possibility of success on the merits of their claims.”
In re EPA & Dep't of Def. Final Rule,
803 F.3d 804 (6th Cir. 2015) (“
In re EPA”
).

On January 13, 2017, the U.S. Supreme Court granted
certiorari
on the question of whether the courts of appeals have original jurisdiction to review challenges to the 2015 Rule.
See Nat'l Ass'n of Mfrs.
v.
Dep't of Defense,
137 S. Ct. 811 (2017). The Sixth Circuit granted petitioners' motion to hold in abeyance the briefing schedule in the litigation challenging the 2015 Rule pending a Supreme Court decision on the question of the court of appeals' jurisdiction. On January 22, 2018, the Supreme Court, in a unanimous opinion, held that the 2015 Rule is subject to direct review in the district courts.
Nat'l Ass'n of Mfrs.
v.
Dep't of Def.,
138 S. Ct. 617, 624 (Jan. 22, 2018). Throughout the pendency of the Supreme Court litigation (and for a short time thereafter), the Sixth Circuit's nationwide stay remained in effect. In response to the Supreme Court's decision, on February 28, 2018, the Sixth Circuit lifted the stay and dismissed the corresponding petitions for review.
See In re Dep't of Def. & EPA Final Rule,
713 Fed. Appx. 489 (6th Cir. 2018).

Since the Supreme Court's jurisdictional ruling, district court litigation regarding the 2015 Rule has resumed. The 2015 Rule continues to be subject to a preliminary injunction issued by the District of North Dakota as to 14 States: Alaska, Arizona, Arkansas, Colorado, Idaho, Iowa, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming, and New Mexico. The 2015 Rule also is subject to a preliminary injunction recently issued by the United States District Court for the Southern District of Georgia as to 11 more States: Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia, and Wisconsin.
See Georgia
v.
Pruitt,
No. 15-cv-79 (S.D. Ga.). When issuing the preliminary injunction, the Southern District of Georgia court held that the State plaintiffs had demonstrated “a likelihood of success on their claims that the [2015] WOTUS Rule was promulgated in violation of the CWA and the APA.”
Georgia
v.
Pruitt,
No. 15-cv-79, slip op. at 10 (S.D. Ga. June 8, 2018) (Order Granting Preliminary Injunction) (“
Georgia
”). In support of the preliminary injunction, the court stated that the 2015 Rule failed to meet the standard expounded in
SWANCC
and
Rapanos,
and that the rule was fatally defective because it “allows the Agencies to regulate waters that do not bear any effect on the `chemical, physical, and biological integrity' of any navigable-in-fact water.”
Id.
at 12. The court also held that the plaintiffs “have demonstrated a likelihood of success on both of their claims under the APA” that the 2015 Rule “is arbitrary and capricious” and “that the final rule is not a logical outgrowth of the proposed rule.”
Id.
at 13.

In September 2018, the United States District Court for the Southern District of Texas issued a preliminary injunction against the 2015 Rule in response to motions filed by the States of Texas, Louisiana, and Mississippi and several business associations, finding that enjoining the rule would provide “much needed governmental, administrative, and economic stability” while the rule undergoes judicial review.
See Texas
v.
EPA,
No. 3:15-cv-162, 2018 U.S. Dist. LEXIS 160443, at *4 (S.D. Tex. Sept. 12, 2018). The court observed that if it did not temporarily enjoin the rule, “it risks asking the states, their governmental subdivisions, and their citizens to expend valuable resources and time operationalizing a rule that may not survive judicial review.”
Id.
At this time, the 2015 Rule is enjoined in 28 States and remains in effect following the lift of the Sixth Circuit stay in 22 States, the District of Columbia, and U.S. Territories.

C. Executive Order 13778, the “Step One” Notice of Proposed Rulemaking, and the Applicability Date Rule

On February 28, 2017, the President issued Executive Order 13778 entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.” Section 1 of the Executive Order states, “[i]t is in the national interest to ensure the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The Executive Order directs the EPA and the Army to review the 2015 Rule for consistency with the policy outlined in section 1 of the Order and to issue a proposed rule rescinding or revising the 2015 Rule as appropriate and consistent with law (Section 2). The Executive Order also directs the agencies to “consider interpreting the term `navigable waters' . . . in a manner consistent with” Justice Scalia's plurality opinion in
Rapanos
v.
United States,
547 U.S. 715 (2006) (Section 3).

On March 6, 2017, the agencies published a notice of intent to review the 2015 Rule and provide notice of a forthcoming proposed rulemaking consistent with the Executive Order. 82 FR 12532. Shortly thereafter, the agencies announced that they would implement the Executive Order in a two-step approach. On July 27, 2017, the agencies issued the “Step One” notice of proposed rulemaking (82 FR 34899) that proposed to repeal the 2015 Rule and recodify the regulatory text that governed prior to the promulgation of the 2015 Rule, consistent with Supreme Court decisions and informed by applicable guidance documents and agency practice, and which the agencies have been implementing since the judicial stay of the 2015 Rule. 82 FR 34899. The agencies invited comment on the notice of proposed rulemaking over a 62-day period. On July 12, 2018, the agencies published a supplemental notice of proposed rulemaking to clarify, supplement, and seek additional comment on the Step One notice of proposed rulemaking. 83 FR 32227.

On November 22, 2017, the agencies published and solicited public comment on a proposal to establish an applicability date for the 2015 Rule that would be two years from the date of any final rule (82 FR 55542). On February 6, 2018, the agencies issued a final rule, 83 FR 5200 (Feb. 6, 2018), adding an applicability date to the 2015 Rule. The applicability date was established as February 6, 2020. When adding an applicability date to the 2015 Rule, the agencies clarified that they will continue to implement nationwide the previous regulatory definition of “waters of the United States,” consistent with the practice and procedures the agencies implemented long before and immediately following the 2015 Rule pursuant to the preliminary injunction issued by the District of North Dakota and the nationwide stay issued by the Sixth Circuit. The agencies further explained that the final applicability date rule would ensure regulatory certainty and consistent implementation of the CWA nationwide while the agencies reconsider the 2015 Rule and pursue further rulemaking to develop a new definition of “waters of the United States.”

The applicability date rule was challenged in a number of district courts by States and environmental organizations. On August 16, 2018, the U.S. District Court for the District of South Carolina granted summary judgment in favor of the plaintiffs and enjoined the Applicability Date Rule nationwide.
South Carolina Coastal Conservation League, et al.,
v.
Pruitt,
No. 2-18-cv-330-DCN, 2018 U.S. Dist. LEXIS 138595 (D.S.C. Aug. 16, 2018). In addition, on November 26, 2018, the U.S. District Court for the Western District of Washington vacated the Applicability Date Rule nationwide.
Puget Soundkeeper Alliance, et al.
v.
Andrew Wheeler, et al.,
No. C15-1342-JCC (W.D. Wash. November 26, 2018). As a result, the 2015 Rule is now in effect in 22 States.
17

The 2015 Rule continues to be subject to preliminary injunctions issued by the U.S. District Court for the District of North Dakota, the U.S. District Court for the Southern District of Georgia, and the U.S. District Court for the Southern District of Texas in a total of 28 States.

17
To assist the public in keeping up with the changing regulatory landscape of federal jurisdiction under the CWA, the EPA has posted a map of current effective regulation by state online at
https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update.

D. Summary of Stakeholder Outreach

Following the March 6, 2017
Federal Register
notice announcing the agencies' intent to review and rescind or revise the 2015 Rule, the agencies initiated an effort to engage the public to hear perspectives as to how the agencies could define “waters of the United States,” including creating a new website to provide information on the

rulemaking.
See www.epa.gov/wotus-rule.
On April 19, 2017, the agencies held an initial Federalism consultation with State and local government officials as well as national organizations representing such officials. The agencies also convened several additional meetings with intergovernmental associations and their members to solicit input on the future rule. The EPA, with participation from the Army, initiated Tribal consultation on April 20, 2017, under the
EPA Policy on Consultation and Coordination with Indian Tribes.
See Section VI for further details on the agencies' Federalism and Tribal consultations.

In addition to engaging key State, tribal and local officials through Federalism and Tribal consultations, the agencies sought feedback on the definition of “waters of the United States” from a broad audience of stakeholders, including small entities (small businesses, small organizations and small government jurisdictions), through a series of outreach webinars that were held September 9, 2017, through November 21, 2017, as well as an in-person meeting for small entities on October 23, 2017. A summary of these public meetings is available in the docket (Docket Id. No. EPA-HQ-OW-2018-0149) for this proposed rule. The webinars were tailored to specific sectors, including agriculture (row crop, livestock, silviculture); conservation (hunters and anglers); small entities (small businesses, small organizations, small jurisdictions); construction and transportation; environment and public advocacy (including health and environmental justice); mining; energy and chemical industry; scientific organizations and academia; stormwater, wastewater management, and drinking water agencies; and the general public.

At the webinars and meetings, the agencies provided a presentation and sought input on specific issues, such as potential approaches to defining “relatively permanent” waters and “continuous surface connections” after the plurality opinion in
Rapanos.
The agencies did not provide participants with specific rule text or alternatives for consideration, but requested feedback on other considerations addressing specific geomorphological features, exclusions and exemptions, costs and benefits, and aquatic resource data that the agencies might consider in the technical analyses for a future rule. Participant comments and letters submitted represent a diverse range of interests, positions, suggestions, and recommendations provided to the agencies. Several themes emerged throughout this process, including support for ongoing State and tribal engagement; clarity and predictability of the regulation; specific suggestions for rule language; suggested exclusions and exemptions; regionalization of the definition; and, procedural concerns.

As part of this outreach effort, the agencies established a public recommendations docket (Docket ID No. EPA-HQ-OW-2017-0480) that opened August 28, 2017, and closed November 28, 2017. The agencies received over 6,300 recommendations that have been considered as the agencies developed this proposed rule, which are available on
Regulations.gov
at
https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0480.
Another source of recommendations as to how the agencies should define “waters of the United States” came from public comments on the agencies' proposed “Step One” rule (82 FR 34899) and the July 2018 supplemental notice of proposed rulemaking (83 FR 32227). These comments also have been considered.

In addition, on March 8 and 9, 2018, the agencies held an in-person meeting with a group of nine states (Arizona, Arkansas, Florida, Iowa, Maryland, Minnesota, Oregon, Pennsylvania, and Wyoming), and convened a subsequent in-person meeting on March 22, 2018, with representatives from all states at the spring meeting of the Environmental Council of the States. The agencies also held an in-person Tribal Co-Regulators Workshop on March 6 and 7, 2018. These meetings were intended to seek technical input on the proposed rule. A summary of these meetings is available in the docket (Docket Id. No. EPA-HQ-OW-2018-0149) for this proposed rule.

E. Overview of Legal Construct for the Proposed Rule

As the preceding summary of the statutory and regulatory history makes clear, the central term delineating the federal geographic scope of authority under the CWA—“waters of the United States”—has been the subject of debate and litigation for many years. The agencies today are proposing to establish a regulation that would define “waters of the United States” in simple, understandable, and implementable terms to reflect the ordinary meaning of the statutory term, as well as to adhere to Constitutional and statutory limitations, the policies of the CWA, and case law, and to meet the needs of regulatory agencies and the regulated community. This subsection summarizes the legal principles that inform the agencies' proposal, and the following section (Section III) describes how the agencies are applying those legal principles to support the proposed “waters of the United States” definition.

1. Statutory Framework

To determine the scope of executive branch authority under the CWA, the agencies begin with the text of the statute. The objective of the CWA, as established by Congress, is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). As discussed in Section II.B above, in order to meet that objective, Congress declared two national water quality goals and established several key policies that direct the work of the agencies. Congress also envisioned a major role for the States in implementing the CWA, carefully balancing the traditional power of States to regulate land and water resources within their borders with the need for national water quality regulation.

The agencies have developed programs designed to ensure that the full statute is implemented as Congress intended.
See, e.g., Hibbs
v.
Winn,
542 U.S. 88, 101 (2004) (“A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.”). This includes pursuing the overall “objective” of the CWA while implementing the specific “policy” directives from Congress to, among other things, “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources,” 33 U.S.C. 1251(b).
See Webster's II, New Riverside University Dictionary
(1994) (defining “policy” as a “plan or course of action, as of a government[,] designed to influence and determine decisions and actions;” an “objective” is “something worked toward or aspired to: Goal”).
18

The

agencies therefore recognize a distinction between the specific word choices of Congress, including the need to develop regulatory programs that aim to accomplish the goals of the Act while implementing the specific policy directives of Congress.
19

To do so, the agencies must determine what Congress had in mind when it defined “navigable waters” in 1972 as simply “the waters of the United States.”

18
As Congress drafted the 1972 CWA amendments, the Senate bill set the “no-discharge of pollutants into the navigable water by 1985” provision as a policy whereas the House bill set it as a goal. The Act was ultimately passed with the “no-discharge by 1985” provision established as a goal.
See
33 U.S.C 1251(a)(1). In House consideration of the Conference Report, Congressman Jones captured the policy versus goal distinction in Section 101(a)(1) as follows: “The objective of this legislation is to restore and preserve for the future the integrity of our Nation's waters. The bill sets forth as a national goal the complete elimination of all discharges into our navigable waters by 1985, but . . . the conference report states clearly that achieving the 1985 target date is a goal, not a national policy. As such, it serves as a focal point for long-range planning, and

for research and development in water pollution control technology . . . . While it is our hope that we can succeed in eliminating all discharge into our waters by 1985, without unreasonable impact on the national life, we recognized in this report that too many imponderables exist, some still beyond our horizons, to prescribe this goal today as a legal requirement.” 118 Cong. Rec. H. 33749 (daily ed. October 4, 1972).

19

See, e.g., Nat'l Fed'n of Indep. Bus.
v.
Sebelius,
567 U.S. 519, 544, (2012) (“Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally”);
Russello
v.
United States,
464 U.S. 16, 23 (1983) (“[Where] Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”).

Congress' authority to regulate navigable waters derives from its power to regulate the “channels of interstate commerce” under the Commerce Clause.
Gibbons
v.
Ogden,
22 U.S. (9 Wheat.) 1 (1824);
see also United States
v.
Lopez,
514 U.S. 549, 558-59 (1995) (describing the “channels of interstate commerce” as one of three areas of congressional authority under the Commerce Clause). The Supreme Court explained in
SWANCC
that the term “navigable” indicates “what Congress had in mind as its authority for enacting the Clean Water Act: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” 531 U.S. 159, 172 (2001). The Court further explained that nothing in the legislative history of the Act provides any indication that “Congress intended to exert anything more than its commerce power over navigation.”
Id.
at 168 n.3. The Supreme Court, however, has recognized that Congress intended “to exercise its powers under the Commerce clause to regulate at least some waters that would not be deemed `navigable' under the classical understanding of that term.”
Riverside Bayview,
474 U.S. at 133;
see also SWANCC,
531 U.S. at 167.

The classical understanding of the term navigable was first articulated by the Supreme Court in
The Daniel Ball:

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the Acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.

77 U.S. (10 Wall.) 557, 563 (1871). Over the years, this traditional test has been expanded to include waters that had been used in the past for interstate commerce,
see Economy Light & Power Co.
v.
United States,
256 U.S. 113, 123 (1921), and waters that are susceptible for use with reasonable improvement,
see United States
v.
Appalachian Elec. Power Co.,
311 U.S. 377, 407-10 (1940).

By the time the 1972 CWA amendments were enacted, the Supreme Court had also made clear that Congress' authority over the channels of interstate commerce was not limited to regulation of the channels themselves, but could extend to non-navigable tributaries as necessary to protect the channels.
See Oklahoma ex rel. Phillips
v.
Guy F. Atkinson Co.,
313 U.S. 508, 523 (1941) (“Congress may exercise its control over the non-navigable stretches of a river in order to preserve or promote commerce on the navigable portions.”). The Supreme Court had also clarified that Congress could regulate waterways that formed a part of a channel of interstate commerce, even if they are not themselves navigable or do not cross state boundaries.
See Utah
v.
United States,
403 U.S. 9, 11 (1971).

These developments were discussed during the legislative process leading up to the passage of the 1972 CWA amendments, and certain members referred to the scope of the amendments as encompassing waterways that serve as “links in the chain” of interstate commerce as it flows through various channels of transportation, such as railroads and highways.
See, e.g.,
118 Cong. Rec. 33756-57 (1972) (statement of Rep. Dingell); 118 Cong. Rec. 33699 (Oct. 4, 1972) (statement of Sen. Muskie).
20

Other references suggest that congressional committees at least contemplated applying the “control requirements” of the Act “to the navigable waters, portions thereof, and their tributaries.” S. Rep. No. 92-414, 92nd Cong. 1st Sess. at 77 (1971). And in 1977, when Congress authorized State assumption over the section 404 dredged or fill material permitting program, Congress limited the scope of assumable waters by requiring the Corps to retain permitting authority over Rivers and Harbors Act waters (as identified by the
Daniel Ball
test) plus wetlands adjacent to those waters, minus historic use only waters.
See
33 U.S.C. 1344(g)(1).
21

This suggests that Congress had in mind a broader scope of waters subject to CWA jurisdiction than waters traditionally understood as navigable.
See SWANCC,
531 U.S. at 171;
Riverside Bayview,
474 U.S. at 138 n.11.

20
The agencies recognize that individual member statements are not a substitute for full congressional intent, but they do help provide context for issues that were discussed during the legislative debates. For a detailed discussion of the legislative history of the 1972 CWA amendments,
see, e.g.,
Albrecht & Nickelsburg,
Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act,
32 ELR 11042 (Sept. 2002).

21
For a detailed discussion of the legislative history supporting the enactment of CWA section 404(g), see
Final Report of the Assumable Waters Subcommittee
(May 2017), App. F.,
available at https://www.epa.gov/sites/production/files/2017-05/documents/awsubnaceptpresent5-final.pdf.

Thus, Congress intended to assert federal authority over more than just waters traditionally understood as navigable, and Congress rooted that authority in “its commerce power over navigation.”
SWANCC,
531 U.S. at 168 n.3. However, there must necessarily be a limit to that authority and to what water is subject to federal jurisdiction. How the agencies should exercise that authority has been the subject of dispute for decades, but the Supreme Court on three occasions has analyzed the issue and provided some instructional guidance.

2. Supreme Court Precedent

a. Adjacent Wetlands

In
Riverside Bayview,
the Supreme Court considered the Corps' assertion of jurisdiction over “low-lying, marshy land” immediately abutting a water traditionally understood as navigable on the grounds that it was an “adjacent wetland” within the meaning of the Corps' then existing regulations. 474 U.S. at 124. The Court addressed the question of whether non-navigable wetlands may be regulated as “waters of the United States” on the basis that they are “adjacent to” navigable-in-fact waters and “inseparably bound up with” them because of their “significant effects on water quality and the aquatic ecosystem.”
Id.
at 131-135 & n.9.

In determining whether to give deference to the Corps' assertion of jurisdiction over adjacent wetlands, the Court acknowledged the difficulty in determining where the limits of federal jurisdiction end, noting that the line is somewhere between open water and dry land:

In 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.
at 132 (emphasis added). Within this statement, the Supreme Court identifies a basic principle for adjacent wetlands: The limits of jurisdiction lie within the “continuum” or “transition” “between open waters and dry land.” Observing that Congress intended the CWA “to regulate at least some waters that would not be deemed `navigable,' ” the Court therefore held that it is “a permissible interpretation of the Act” to conclude that “a wetland that actually abuts on a navigable waterway” falls within the “definition of `waters of the United States.' ”
Id.
at 133, 135. Thus, a wetland that abuts a navigable water traditionally understood as navigable is subject to CWA permitting because it is “inseparably bound up with the `waters' of the United States.”
Id.
at 134. “This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water.”
Id.
The Court also noted that the agencies can establish categories of jurisdiction for adjacent wetlands.
See id.
at 135 n.9.

The Supreme Court in
Riverside Bayview
declined to decide whether wetlands that are not adjacent to navigable waters could also be regulated by the agencies.
See id.
at 124 n.2 and 131 n.8. In
SWANCC
a few years later, however, the Supreme Court analyzed a similar question but in the context of an abandoned sand and gravel pit located some distance from a traditional navigable water, with excavation trenches that ponded—some only seasonally—and served as habitat for migratory birds. 531 U.S. at 162-64. The Supreme Court rejected the government's stated rationale for asserting jurisdiction over such “nonnavigable, isolated, intrastate waters” as outside the scope of CWA jurisdiction.
Id.
at 171-72. In doing so, the Supreme Court noted that
Riverside Bayview
upheld “jurisdiction over wetlands that actually abutted on a navigable waterway” because the wetlands were “inseparably bound up with the `waters' of the United States.”
Id.
at 167.
22

As summarized by the
SWANCC
majority:

22
For additional context, at oral argument during
Riverside Bayview,
the government attorney characterized the wetland at issue as “in fact an adjacent wetland, adjacent—by adjacent, I mean it is immediately next to, abuts, adjoins, borders, whatever other adjective you might want to use, navigable waters of the United States.” Official Tr. at 5-6,
quoted in
Edgar B. Washburn,
Current Status of the 404 Regulatory Programs,
ALI Wetlands L. & Reg. (May/June 2001).

It was the significant nexus between the wetlands and “navigable waters” that informed our reading of the CWA in
Riverside Bayview Homes.
Indeed, we did not “express any opinion” on the “question of authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water. . . . In order to rule for [the Corps] here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this.

Id.
at 167-68 (internal citations omitted).

The Court also rejected the argument that the use of the abandoned ponds by migratory birds fell within the power of Congress to regulate activities that in the aggregate have a substantial effect on interstate commerce, or that the CWA regulated the use of the ponds as a municipal landfill because such use was commercial in nature. Such arguments, the Court noted, raised “significant constitutional questions.”
Id.
at 173. “Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result.”
Id.
172-73 (“Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority”). This is particularly true “where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.”
Id.
at 173;
see also Atascadero State Hospital
v.
Scanlon,
473 U.S. 234, 242 (1985) (“If Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute,' ”);
Gregory
v.
Ashcroft,
501 U.S. 452, 460-61 (1991) (“the plain statement rule . . . acknowledg[es] that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.”). “Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose [in the CWA] to `recognize, preserve, and protect the primary responsibilities and rights of States . . . to plan the development and use . . . of land and water resources . . . .”
Id.
at 174 (quoting 33 U.S.C. 1251(b)). The Court found no clear statement from Congress that it had intended to permit federal encroachment on traditional State power, and construed the CWA to avoid the significant constitutional questions related to the scope of Federal authority authorized therein.
Id.

Historically, the Federal government has interpreted and applied the
SWANCC
decision narrowly, focusing on the specific holding in the case as rejecting federal jurisdiction over the isolated ponds and mudflats at issue in that case based on their use by migratory birds. By contrast, members of the regulated community, certain states and other interested stakeholders have argued that the case stands for a broader proposition based on key federalism and separation of powers principles. They argue that the case should be read as restricting federal jurisdiction over all “nonnavigable, isolated, intrastate waters” and argue for a broader interpretation and application of the rationale articulated in the decision.
23

As the agencies revisit the definition of “waters of the United States” in this rulemaking, the agencies solicit comment on the proper reading of
SWANCC.
In addition, the agencies solicit comment on whether to revoke their 2003 guidance on the subject should the agencies finalize this proposal because existence of the final rule may mean that guidance on
SWANCC
may no be longer needed.

23

See, e.g.,
American Farm Bureau Federation et al. to Hon. Andrew Wheeler and Hon. R.D. James. August 13, 2018. Docket ID: EPA-HQ-OW-2017-0203-15275),
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15275.

Several years after
SWANCC,
the Supreme Court considered the concept of adjacency in consolidated cases arising out of the Sixth Circuit.
See Rapanos
v.
United States,
547 U.S. 715 (2006). In one case, the Corps had determined that wetlands on three separate sites were subject to CWA jurisdiction because they were adjacent to ditches or man-made drains that eventually connected to traditional navigable waters several miles away through other ditches, drains, creeks, and/or rivers.
Id.
at 719, 729. In another case, the Corps had asserted jurisdiction over a wetland separated from a man-made drainage ditch by a four-foot-wide man-made berm.
Id.
at 730. The ditch emptied into another ditch, which then connected to a creek, and eventually connected to Lake St. Clair approximately a mile from the parcel at issue. The berm was largely or entirely

impermeable, but may have permitted occasional overflow from the wetland to the ditch.
Id.
The Court, in a fractured opinion, vacated and remanded the Sixth Circuit's decision upholding the Corps' asserted jurisdiction over the four wetlands at issue, with Justice Scalia writing for the plurality and Justice Kennedy concurring in the judgment but on alternate grounds.
Id.
at 757 (plurality), 787 (Kennedy, J., concurring).

The plurality determined that CWA jurisdiction only extended to adjacent “wetlands with a continuous surface connection to bodies that are `waters of the United States' in their own right, so that there is no clear demarcation between `waters' and wetlands.”
Id.
at 742. The plurality then concluded that “establishing . . . wetlands . . . covered by the Act requires two findings: First that the adjacent channel contains a `wate[r] of the United States,' (
i.e.,
a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the `water' ends and the `wetland' begins.”
Id.
(alteration in original).

In reaching the adjacency component of the two-part analysis, the plurality interpreted the
Riverside Bayview
decision, and subsequent
SWANCC
decision characterizing
Riverside Bayview,
as authorizing jurisdiction over wetlands that physically abutted traditional navigable waters.
Id.
at 740-42. The plurality focused on the “inherent ambiguity” described in
Riverside Bayview
in determining where on the continuum between open waters and dry land the scope of federal jurisdiction should end.
Id.
at 740. It was “the inherent difficulties of defining precise bounds to regulable waters,”
id.
at 741 n.10, according to the plurality, that prompted the Court in
Riverside Bayview
to defer to the Corps' inclusion of adjacent wetlands as “waters” subject to CWA jurisdiction based on proximity.
Id.
at 741 (“When we characterized the holding of
Riverside Bayview
in
SWANCC,
we referred to the close connection between waters and the wetlands they gradually blend into: `It was the significant nexus between the wetlands and `navigable waters' that informed our reading of the CWA in
Riverside Bayview Homes.' ”
);
see also Riverside Bayview,
474 U.S. 134, quoting 42 FR 37128 (July 19, 1977) (“For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system.”). The plurality also noted that “
SWANCC
rejected the notion that the ecological considerations upon which the Corps relied in
Riverside Bayview
. . . provided an
independent
basis for including entities like `wetlands' (or `ephemeral streams') within the phrase `the waters of the United States.'
SWANCC
found such ecological considerations irrelevant to the question whether physically isolated waters come within the Corps' jurisdiction.”
Id.
at 741-42 (original emphasis).

Justice Kennedy disagreed with the plurality's determination that adjacency requires a “continuous surface connection” to covered waters.
Id.
at 772. In reading the phrase “continuous surface connection” to mean a continuous “surface-water connection,”
id.
at 776, and interpreting the plurality's standard to include a “surface-water-connection requirement,”
id.
at 774, Justice Kennedy stated that “when a surface-water connection is lacking, the plurality forecloses jurisdiction over wetlands that abut navigable-in-fact waters—even though such navigable waters were traditionally subject to federal authority,”
id.
at 776, despite the fact that the
Riverside Bayview
Court “deemed it irrelevant whether `the moisture creating the wetlands . . . find[s] its source in the adjacent bodies of water.”
Id.
at 772 (internal citations omitted).

The plurality did not directly address the precise distinction raised by Justice Kennedy, but did note in response that the “
Riverside Bayview
opinion required” a “continuous
physical
connection,”
id.
at 751 n.13 (emphasis added), and focused on evaluating adjacency between a “water” and a wetland “in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in
Riverside Bayview.” Id.
at 757. The plurality also noted that its standard includes a “physical-connection requirement” between wetlands and covered waters.
Id.
at 751 n.13. In other words, the plurality appeared to be more focused on the abutting nature rather than the source of water creating the wetlands at issue in
Riverside Bayview
to describe the legal constructs applicable to adjacent wetlands,
see id.
at 747;
see also Webster's II, New Riverside University Dictionary
(1994) (defining “abut” to mean “to border on” or “to touch at one end or side of something”), and indeed agreed with Justice Kennedy and the
Riverside Bayview
Court that “[a]s long as the wetland is `adjacent' to covered waters . . . its creation
vel non
by inundation is irrelevant.”
Id.
at 751 n.13.
24

24
The agencies'
Rapanos
Guidance recognizes that the plurality's “continuous surface connection” does not refer to a continuous surface
water
connection.
See, e.g., Rapanos
Guidance at n.28 (“A continuous surface connection does not require surface water to be continuously present between the wetland and the tributary.”)

Because wetlands with a physically remote hydrologic connection do not raise the same boundary-drawing problem presented by actually abutting wetlands, the plurality determined that the “inherent ambiguity in defining where water ends and abutting (`adjacent') wetlands begin” upon which
Riverside Bayview
rests does not apply to such features.
Id.
at 742 (“Wetlands with only an intermittent, physically remote hydrologic connection to `waters of the United States' do not implicate the boundary-drawing problem of
Riverside Bayview,
and thus lack the necessary connection to covered waters that we described as a `significant nexus' in
SWANCC
[.]”). The plurality supported this position by referring to the Court's treatment of certain isolated waters in
SWANCC
as non-jurisdictional.
Id.
741-42 (“We held that `nonnavigable, isolated, intrastate waters—which, unlike the wetlands at issue in
Riverside Bayview,
did not `actually abu[t] on a navigable waterway,'—were not included as `waters of the United States.' ”). The plurality found “no support for the inclusion of physically unconnected wetlands as covered `waters' ” based on
Riverside Bayview's
treatment of the Corps' definition of adjacent.
Id.
at 747;
see also id.
at 746 (“the Corps' definition of `adjacent' . . . has been extended beyond reason.”).

Although ultimately concurring in judgment, Justice Kennedy focused on the “significant nexus” between adjacent wetlands and traditional navigable waters as the basis for determining whether a wetland is a water subject to CWA jurisdiction. He quotes the
SWANCC
decision, which explains, “[i]t was the significant nexus between wetlands and navigable waters . . . that informed our reading of the [Act] in
Riverside Bayview Homes.”
531 U.S. at 167.

Justice Kennedy then notes that: “Because such a nexus [in that case] was lacking with respect to isolated ponds, the Court held that the plain text of the statute did not permit the Corps' action.” 547 U.S. at 767. Justice Kennedy notes that the wetlands at issue in
Riverside Bayview
were “adjacent to [a] navigable-in-fact waterway[ ]” while the “ponds and

mudflats” considered in
SWANCC
“were isolated in the sense of being unconnected to other waters covered by the Act.”
Id.
at 765-66. “Taken together, these cases establish that in some instances, as exemplified by
Riverside Bayview,
the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a `navigable water' under the Act. In other instances, as exemplified by
SWANCC,
there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking.”
Id.
at 767.

According to Justice Kennedy, whereas the isolated ponds and mudflats in
SWANCC
lacked a “significant nexus” to navigable waters, it is the “conclusive standard for jurisdiction” based on “a reasonable inference of ecological interconnection” between adjacent wetlands and navigable-in-fact waters that allows for their categorical inclusion as “waters of the United States.”
Id.
at 780 (“[T]he assertion of jurisdiction for those wetlands [adjacent to navigable-in-fact waters] is sustainable under the act by showing adjacency alone.”). Justice Kennedy surmised that it may be that the same rationale “without any inquiry beyond adjacency . . . could apply equally to wetlands adjacent to certain major tributaries,” noting that the Corps could establish by regulation categories of tributaries based on volume of flow, proximity to navigable waters, or other factors that “are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.”
Id.
at 780-81. However, “[t]he Corps' existing standard for tributaries” provided Justice Kennedy “no such assurance” to infer the categorical existence of a requisite nexus between waters traditionally understood as navigable and wetlands adjacent to nonnavigable tributaries.
Id.
at 781. That is because

the breadth of the [tributary] standard—which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes towards it—precludes its adoption as the determinative measure of whether adjacent wetlands are likely to play an important role in the integrity of an aquatic system comprising navigable waters as traditionally understood. Indeed, in many cases, wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act's scope in
SWANCC.

Id.
at 781-82.

To avoid this outcome, Justice Kennedy stated that, absent development of a more specific regulation and categorical inclusion of wetlands adjacent to “certain major” or even “minor” tributaries as was established in
Riverside Bayview, id.
at 780-81, the Corps “must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries. Given the potential overbreadth of the Corps' regulations, this showing is necessary to avoid unreasonable applications of the statute.”
Id.
at 782. Justice Kennedy stated that adjacent “wetlands possess the requisite nexus, and thus come within the statutory phrase `navigable waters,' if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.' ”
Id.
at 780. “Where an adequate nexus is established for a particular wetland, it may be permissible, as a matter of administrative convenience or necessity, to presume covered status for other comparable wetlands in the region.”
Id.
at 782.

In establishing this significant nexus test, Justice Kennedy relied, in part, on the overall objective of the CWA to “restore and maintain the chemical, physical and biological integrity of the Nation's waters.”
Id.
at 779 (quoting 33 U.S.C. 1251(a)). However, Justice Kennedy also acknowledged that “environmental concerns provide no reason to disregard limits in the statutory text.”
Id.
at 778. With respect to wetlands adjacent to nonnavigable tributaries, Justice Kennedy therefore determined that “mere adjacency . . . is insufficient. A more specific inquiry, based on the significant-nexus standard, is . . . necessary.”
Id.
at 786. By not requiring adjacent wetlands to possess a significant nexus with navigable waters, Justice Kennedy noted that under the Corps' interpretation, federal regulation would be permitted “whenever wetlands lie alongside a ditch or drain, however remote or insubstantial, that eventually may flow into traditional navigable waters. The deference owed the Corps' interpretation of the statute does not extend so far.”
Id
at 778-79.

Since the
Rapanos
decision, the Federal government has adopted a broad interpretation of Justice Kennedy's concurring opinion, arguing that his “significant nexus” test provides an independent basis for establishing jurisdiction over certain waters of the United States. And rather than limiting the application of Justice Kennedy's opinion to the specific facts and wetlands at issue in that case, the agencies have applied the rationale more broadly to include, for example, the application of the significant nexus test to determining jurisdiction over tributaries, not just wetlands. Many courts have agreed with this position and rely exclusively on Justice Kennedy's significant nexus test, or have held that jurisdiction can be established under either the plurality or concurring opinions. The agencies note that their historically broad interpretation and application of Justice Kennedy's opinion stands in contrast to their more narrow reading and application of the majority opinion in
SWANCC,
where the agencies have historically limited the decision's application to isolated ponds and mudflats used by migratory birds. The agencies therefore invite comment on their reliance on Justice Kennedy's opinion, particularly as compared to their treatment of the
SWANCC
decision. The agencies also solicit comment on whether they should revoke their 2008
Rapanos
Guidance should the agencies finalize this proposal because existence of the final rule may mean that guidance on
Rapanos
may no longer be needed.

In summary, although the standards that the plurality and Justice Kennedy established are not identical, and each standard excludes some waters that the other standard does not, the standards contain substantial similarities. The plurality and Justice Kennedy agree in principle that the determination must be made using a basic two-step approach that considers: (1) The connection of the wetland to the tributary; and (2) the status of the tributary with respect to downstream traditional navigable waters. The plurality and Justice Kennedy also agree that the connection between the wetland and the tributary must be close. The plurality refers to that connection as a “continuous surface connection” or “continuous physical connection,” as demonstrated in
Riverside Bayview. Id.
at 742, 751 n.13. Justice Kennedy recognizes that “the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a `navigable water' under the Act.”
Id.
at 767. The second part of their common analytical framework is addressed in the next section.

b. Tributaries

The definition of tributary was not addressed in either
Riverside Bayview
or

SWANCC.
And while the focus of
Rapanos
was on whether the Corps could regulate wetlands far removed from navigable-in-fact waters, the plurality and concurring opinions do provide some guidance as to the potential regulatory status of tributaries to navigable-in-fact waters.

The plurality and Justice Kennedy both recognize the jurisdictional scope of the CWA is not restricted to traditional navigable waters.
Rapanos,
547 U.S. at 731 (Scalia, J., plurality) (“the Act's term `navigable waters' includes something more than traditional navigable waters”);
id.
at 767 (Kennedy, J., concurring) (“Congress intended to regulate at least some waters that are not navigable in the traditional sense.”). Both also agree that federal authority under the Act is not without limit.
See id.
at 731-32 (plurality) (“the waters of the United States . . . cannot bear the expansive meaning that the Corps would give it”);
id.
at 778-79 (Kennedy, J., concurring) (“The deference owed to the Corps' interpretation of the statute does not extend” to “wetlands” which “lie alongside a ditch or drain, however remote or insubstantial, that eventually may flow into traditional navigable waters.”).

With respect to tributaries specifically, both the plurality and Justice Kennedy focus in part on a tributary's contribution of flow to and connection with traditional navigable waters. The plurality would include as “waters of the United States” “only relatively permanent, standing or flowing bodies of water” and would define such “waters” as including streams, rivers, oceans, lakes and other bodies of waters that form geographical features, noting that all such “terms connote continuously present, fixed bodies of water . . . .”
Id.
at 732-33, 739. The plurality would also require relatively permanent waters to be connected to traditional navigable waters in order to be jurisdictional.
See id.
at 742 (describing a “ `wate[r] of the United States'” as “
i.e.,
a relatively permanent body of water
connected to
traditional interstate navigable waters”) (emphasis added). The plurality would exclude ephemeral flows and related features, stating “[n]one of these terms encompasses transitory puddles or ephemeral flows of water.”
Id.
at 733;
see also id.
at 734 (“In applying the definition to `ephemeral streams,' . . . the Corps has stretched the term `waters of the United States' beyond parody. The plain language of the statute simply does not authorize this `Land Is Waters' approach to federal jurisdiction.”). Justice Kennedy would likely exclude some streams considered jurisdictional under the plurality's test, but he may include some that would be excluded by the plurality.
See id.
at 769 (noting that under the plurality's test, “[t]he merest trickle, if continuous, would count as a `water' subject to federal regulation, while torrents thundering at irregular intervals through otherwise dry channels would not”).

Both the plurality and Justice Kennedy would include some seasonal or intermittent streams as “waters of the United States.”
Id.
at 733 & n.5, 769. The plurality noted, for example, 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). Neither the plurality nor Justice Kennedy, however, defined with precision where to draw the line. The plurality provides that “navigable waters” must have “at a bare minimum, the ordinary presence of water,”
id.
at 734, and Justice Kennedy notes that the Corps can identify by regulation categories of tributaries based on volume of flow, proximity to navigable waters, or other factors that “are significant enough that wetlands adjacent to them are likely, in the majority of cases, to perform important functions for an aquatic system incorporating navigable waters.”
Id.
at 780-81.

Both the plurality and Justice Kennedy also agreed that the Corps' existing treatment of tributaries raised significant jurisdictional concerns. For example, the plurality was concerned about the Corps' broad interpretation of tributaries themselves.
See id.
at 738 (plurality) (“Even if the term `the waters of the United States' were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity.”). And Justice Kennedy objected to the categorical assertion of jurisdiction over wetlands adjacent to the Corps' existing standard for tributaries “which seems to leave wide room for regulation of drains, ditches, and streams remote from any navigable-in-fact water and carrying only minor water volumes towards it”
Id.
at 781 (Kennedy, J. concurring),
see also id.
at 781-82 (“[I]n many cases wetlands adjacent to tributaries covered by this standard might appear little more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act's scope in
SWANCC.”
). Thus, while the plurality and Justice Kennedy viewed the question of federal CWA jurisdiction differently, there are sufficient commonalities between these opinions to help instruct the agencies on where to draw the line between Federal and State waters.

3. Principles and Considerations

As discussed in the previous section, a few important principles emerge that can serve as the basis for the agencies' proposed regulatory definitions. As a threshold matter, the power conferred on the agencies under the CWA to regulate the “waters of the United States” is grounded in Congress' commerce power over navigation. The agencies can choose to regulate beyond waters more traditionally understood as navigable, including some tributaries to those traditional navigable waters, but must provide a reasonable basis grounded in the language and structure of the Act for determining the extent of jurisdiction. The agencies can also choose to regulate wetlands adjacent to the traditional navigable waters and some tributaries, if the wetlands are closely connected to the tributaries, such as in the transitional zone between open waters and dry land. The Supreme Court's opinion in
SWANCC,
however, calls into question the agencies' authority to regulate nonnavigable, isolated, intrastate waters that lack a sufficient connection to traditional navigable waters, and suggests that the agencies should avoid regulatory interpretations of the CWA that raise constitutional questions regarding the scope of their statutory authority. Finally, the agencies can regulate certain waters by category, which could improve regulatory predictability and certainty and ease administrative burden while still effectuating the purposes of the Act.

In developing a clear and predictable regulatory framework to support this proposed rule, the agencies also recognize and respect the primary responsibilities and rights of States and Tribes to regulate their land and water resources.
See
33 U.S.C. 1251(b), 1370. The oft-quoted objective of the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,”
id.
at 1251(a), must be implemented in a manner consistent with Congress' policy directives to the agencies. The Supreme Court long ago recognized the distinction between federal waters traditionally understood as navigable and waters “subject to the control of the States.”
The Daniel Ball,
77 U.S. (10 Wall.) 557, 564-65 (1870).

Over a century later, the Supreme Court in
SWANCC
reaffirmed the State's “traditional and primary power over land and water use.” 531 U.S. at 174;
accord Rapanos,
547 U.S. at 738 (Scalia, J., plurality opinion).

Ensuring that States retain authority over their land and water resources pursuant to section 101(b) and section 510 helps carry out the overall objective of the CWA and ensures that the agencies are giving full effect and consideration to the entire structure and function of the Act.
See, e.g., id.
at 755-56 (Scalia, J., plurality opinion) (“[C]lean water is not the
only
purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions. 33 U.S.C. 1251(b).”) (original emphasis). That includes the dozens of non-regulatory grant, research, nonpoint source, groundwater, and watershed planning programs that were intended by Congress to assist the States in controlling pollution in the nation's waters, not just its navigable waters. These non-regulatory sections of the CWA reveal Congress' intent to restore and maintain the integrity of the nation's waters using federal assistance to support State and local partnerships to control pollution of in the nation's waters in addition to a federal regulatory prohibition on the discharge of pollutants into its navigable waters. Controlling all waters using the Act's federal regulatory mechanisms would significantly reduce the need for the more holistic planning provisions of the Act and the state partnerships they entail. Therefore, by recognizing the distinctions between the nation's waters and its navigable waters and between the overall objective and goals of the CWA and the specific policy directives from Congress, the agencies can fully implement the entire structure of the Act while respecting the specific word choices of Congress.
See, e.g., Nat'l Fed'n of Indep. Bus.
v.
Sebelius,
567 U.S. at 544.

Further, the agencies are cognizant that the “Clean Water Act imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit . . . .”
U.S. Army Corps of Engineers
v.
Hawkes Co.,
136 S. Ct. 1807, 1812 (2016);
see also Sackett
v.
EPA,
132 S. Ct. 1367, 1374-75 (2012) (Alito, J., concurring) (“[T]he combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA's tune.”). As the Chief Justice observed in
Hawkes,
“[i]t is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does.”
Id.; see also id.
at 1816-17 (Kennedy, J., concurring) (“the reach and systemic consequences of the Clean Water Act remain a cause for concern” and “continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property throughout the Nation”). Given the significant civil and criminal penalties associated with the CWA, the agencies seek to promote regulatory certainty while providing fair and predictable notice of the limits of federal jurisdiction.
See, e.g., Sessions
v.
Dimaya,
No. 15-1498, 2018 U.S. LEXIS 2497, at *39, 42-43 (Apr. 17, 2018) (Gorsuch, J., concurring in part and concurring in judgment) (characterizing fair notice as possibly the most fundamental of the protections provided by the Constitution's guarantee of due process, and stating that vague laws are an exercise of “arbitrary power . . . leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up”).

Under this proposed rule, the agencies would not view the definition of “waters of the United States” as conclusively determining which of the nation's waters warrant environmental protection; rather, the agencies interpret the definition as drawing the boundary between those waters subject to federal requirements under the CWA and those waters that States and Tribes are free to manage under their independent authorities. The agencies are proposing this line-drawing based primarily on their interpretation of the language, structure, and legislative history of the statute and the policy choices of the executive branch agencies.

The agencies interpret their authority to include promulgation of a new regulatory definition of “waters of the United States,” consistent with the guidance in Executive Order 13778, so long as the new definition is authorized under the law and based on a reasoned explanation.
FCC
v.
Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009) (“
Fox
”). A revised rulemaking based on a desired change in policy is well within an agency's discretion and “[a] change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal” of its regulations and programs.
Nat'l Ass'n of Home Builders
v.
EPA,
682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012) (citing
Fox,
556 U.S. at 514-15 (Rehnquist, J., concurring in part and dissenting in part)). In developing this proposed rule, the agencies have re-evaluated their legal authority and those policies that they deem most important in shaping the jurisdiction of the CWA: Prioritizing the text of the statute, adherence to constitutional limitations, including the autonomy of States, and providing clarity for the regulated community.

The agencies consider these proposed

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2019-00791. Public record. Not legal advice.