Definition of “Waters of the United States”-Recodification of Pre-Existing Rules

Federal RegisterOct 22, 2019

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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-2017-0203; FRL-10000-10-OW]

RIN 2040-AF74

Definition of “Waters of the United States”—Recodification of Pre-Existing Rules

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) are publishing a final rule to repeal the 2015 Clean Water Rule: Definition of “Waters of the United States” (“2015 Rule”), which amended portions of the Code of Federal Regulations (CFR), and to restore the regulatory text that existed prior to the 2015 Rule. The agencies will implement the pre-2015 Rule regulations informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.

The agencies are repealing the 2015 Rule for four primary reasons. First, the agencies conclude that the 2015 Rule did not implement the legal limits on the scope of the agencies' authority under the Clean Water Act (CWA) as intended by Congress and reflected in Supreme Court cases, including Justice Kennedy's articulation of the significant nexus test in

Rapanos.

Second, the agencies conclude that in promulgating the 2015 Rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in CWA section 101(b) 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.” 33 U.S.C. 1251(b). Third, the agencies repeal the 2015 Rule to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachment of federal jurisdiction over traditional State land-use planning authority. Lastly, the agencies conclude that the 2015 Rule's distance-based limitations suffered from certain procedural errors and a lack of adequate record support. The agencies find that these reasons, collectively and individually, warrant repealing the 2015 Rule.

With this final rule, the regulations defining the scope of federal CWA jurisdiction will be those portions of the CFR as they existed before the amendments promulgated in the 2015 Rule.

DATES:

This rule is effective on December 23, 2019.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2017-0203. All documents in the docket are listed on the

http://www.regulations.gov

website. Although listed in the index, some information is not publicly available,

e.g.,

CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Michael McDavit, 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 Moyer, Regulatory Community of Practice (CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street NW, Washington, DC 20314; telephone number: (202) 761-6903; email address:

USACE_CWA_Rule@usace.army.mil.

SUPPLEMENTARY INFORMATION:

The agencies are taking this final action to repeal the Clean Water Rule: Definition of “Waters of the United States,” 80 FR 37054 (June 29, 2015), and to recodify the regulatory definitions of “waters of the United States” that existed prior to the August 28, 2015 effective date of the 2015 Rule. Those pre-existing regulatory definitions are the ones that the agencies are currently implementing in more than half the States in light of various judicial decisions currently enjoining the 2015 Rule. As of the effective date of this final rule, the agencies will administer the regulations promulgated in 1986 and 1988 in portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401,

and will continue to interpret the statutory term “waters of the United States” to mean the waters covered by those regulations consistent with Supreme Court decisions and longstanding practice, as informed by applicable agency guidance documents, training, and experience.

While the EPA administers most provisions in the CWA, the Department of the Army, Corps of Engineers administers the permitting program under section 404. During the 1980s, both agencies adopted substantially similar definitions of “waters of the United States.”

See

51 FR 41206 (Nov. 13, 1986) (amending 33 CFR 328.3); 53 FR 20764 (June 6, 1988) (amending 40 CFR 232.2).

State, tribal, and local governments have well-defined and established relationships with the Federal government in implementing CWA programs. This final rule returns the relationship between the Federal government, States, and Tribes to the longstanding and familiar distribution of power and responsibilities that existed under the CWA for many years prior to the 2015 Rule.

In issuing the July 27, 2017 notice of proposed rulemaking (NPRM) and the July 12, 2018 supplemental notice of proposed rulemaking (SNPRM), the agencies gave interested parties an opportunity to comment on important considerations and reasons for the agencies' proposal, including whether it is desirable and appropriate to recodify the pre-2015 regulations as an interim step pending a substantive rulemaking to reconsider the definition of “waters of the United States.”

See

82 FR 34899, 34903 (July 27, 2017); 83 FR 32227 (July 12, 2018). The agencies received approximately 770,000 public comments on this rulemaking and carefully reviewed those comments in deciding whether to finalize this rule.

For the reasons discussed in Section III of this notice, the agencies conclude that the 2015 Rule exceeded the agencies' authority under the CWA by adopting an interpretation of Justice Kennedy's “significant nexus” standard articulated in

Rapanos

United States and Carabell

United States,

547 U.S. 715 (2006) (“

Rapanos

”) that was inconsistent with important aspects of that opinion (as well as the opinion of the Court in

Solid Waste Agency of Northern Cook County

U.S. Army Corps of Engineers,

531 U.S. 159 (2001) (“

SWANCC

”)) and which enabled federal regulation of waters outside the scope of the Act, even though Justice Kennedy's concurring opinion was identified as the basis for the significant nexus standard established in the 2015 Rule. The agencies also conclude that, contrary to reasons articulated in support of the 2015 Rule, the rule

expanded the meaning of “tributaries” and “adjacent” wetlands to include waters beyond those regulated by the agencies under the pre-existing regulations, including certain isolated waters, as applied by the agencies following decisions of the Supreme Court in

Rapanos

and

SWANCC.

One of the agencies' stated goals in the 2015 Rule was to provide greater clarity in identifying the geographic scope of the CWA, believing that “State, tribal, and local governments have well-defined and longstanding relationships with the Federal government in implementing CWA programs and these relationships are not altered by the final rule.” 80 FR 37054. The agencies now believe that the 2015 Rule improperly altered the balance of authorities between the Federal and State governments, in contravention of CWA section 101(b), 33 U.S.C. 1251(b), and pushed the envelope of the agencies' constitutional and statutory authority, despite the absence of a clear indication that Congress intended to invoke the outer limits of its power. The agencies also conclude that the 2015 Rule's distance-based limitations in the (a)(6) and (a)(8) categories of waters were procedurally deficient and lacked adequate record support.

Additionally, since the agencies' publication of the SNPRM, the U.S. District Courts for the Southern District of Texas and the Southern District of Georgia have found that the rule suffered from certain procedural (both courts) and substantive (Southern District of Georgia) errors and issued orders remanding the 2015 Rule back to the agencies.

Texas

EPA,

No. 3:15-cv-162, 2019 WL 2272464 (S.D. Tex. May 28, 2019);

Georgia

Wheeler,

No. 2:15-cv-079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019). As reflected below, a number of the agencies' conclusions regarding the validity of the 2015 Rule are consistent with and reinforced by the findings of these courts.

Further, for the reasons discussed in Section IV of this notice, the agencies conclude that regulatory certainty will be best served by repealing the 2015 Rule and recodifying the pre-2015 regulations currently in effect in those States where the 2015 Rule is enjoined. Though the agencies recognize that the pre-existing regulations pose certain implementation challenges, the agencies find that restoring the prior regulations is preferable to maintaining the 2015 Rule, including because returning to the pre-2015 regulations will reinstate nationwide a longstanding regulatory framework that is more familiar to and better-understood by the agencies, States, Tribes, local governments, regulated entities, and the public while the agencies consider public comments on the proposed revised definition of “waters of the United States.”

See

84 FR 4154 (Feb. 14, 2019). In that separate rulemaking, as referenced in Section VII, the agencies are reconsidering the proper scope of federal CWA jurisdiction and seek to establish a clear and implementable regulatory definition that better effectuates the language, structure, and purposes of the CWA.

Table of Contents

I. General Information

A. Where can I find information related to this rulemaking?

B. What action are the agencies taking?

C. What is the agencies' authority for taking this action?

II. Background

A. The 2015 Rule

B. Legal Challenges to the 2015 Rule

C. Executive Order 13778 and the “Step One” Notice of Proposed Rulemaking and the Supplemental Notice of Proposed Rulemaking

D. The Applicability Date Rule

III. Basis for Repealing the 2015 Rule

A. Legal Authority To Repeal

B. Legal Background

1. The Clean Water Act

2. U.S. Supreme Court Precedent

3. Principles and Considerations

C. Reasons for Repeal

IV. Basis for Restoring the Pre-Existing Regulations

V. Alternatives to the Final Rule

VI. Economic Analysis

VII. The Effect of this Rule and the Agencies' Next Steps

VIII. Statutory and Executive Order Reviews

I. General Information

A. Where can I find information related to this rulemaking?

Docket.

An official public docket for this action has been established under Docket ID No. EPA-HQ-OW-2017-0203. 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.

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

http://www.epa.gov/epahome/dockets.htm.

Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the Docket Facility.

B. What action are the agencies taking?

In this notice, the agencies are publishing a final rule repealing the 2015 amendments to the definition of “waters of the United States” in portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401, and are restoring the pre-existing regulatory text.

C. What is the agencies' authority for taking this action?

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.

II. Background

A. The 2015 Rule

On June 29, 2015, the agencies issued a final rule (80 FR 37054) amending various portions of the CFR that set forth a definition of “waters of the United States,” a term contained in the CWA section 502(7) definition of “navigable waters,” 33 U.S.C. 1362(7).

One of the stated purposes of the 2015 Rule was to “increase CWA program predictability and consistency by clarifying the scope of `waters of the United States' protected under the Act.” 80 FR 37054. The 2015 Rule defined the geographic scope of the CWA by placing waters into three categories: (A) Waters that are categorically “jurisdictional by rule” in all instances (

i.e.,

without the need for any additional analysis); (B) waters that are subject to case-specific analysis to determine whether they are jurisdictional; and (C) waters that are categorically excluded from jurisdiction. Waters considered “jurisdictional by rule” included (1) waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (2) interstate waters, including interstate wetlands; (3) the territorial seas; (4) impoundments of

waters otherwise identified as jurisdictional; (5) tributaries of the first three categories of “jurisdictional by rule” waters; and (6) waters adjacent to a water identified in the first five categories of “jurisdictional by rule” waters, including “wetlands, ponds, lakes, oxbows, impoundments, and similar waters.”

See

80 FR 37104.

The 2015 Rule added new definitions of key terms such as “tributaries” and revised previous definitions of terms such as “adjacent” (by adding a new definition of “neighboring” that is used in the definition of “adjacent”) that would determine whether waters were “jurisdictional by rule.”

See id.

at 37105. Specifically, a “tributary” under the 2015 Rule is a water that contributes flow, either directly or through another water, to a water identified in the first three categories of “jurisdictional by rule” waters and that is characterized by the presence of the “physical indicators” of a bed and banks and an ordinary high water mark. “These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary.”

Id.

Tributaries under the 2015 Rule could be natural, man-altered, or man-made, and do not lose their status as a tributary if, for any length, there is one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark could be identified upstream of the break.

Id.

at 37105-06.

The 2015 Rule did not delineate jurisdiction specifically based on categories with established scientific meanings such as ephemeral, intermittent, and perennial waters that are based on the source of the water and nature of the flow.

See id.

at 37076 (“Under the rule, flow in the tributary may be perennial, intermittent, or ephemeral.”). Under the 2015 Rule, tributaries also did not need to possess any specific volume, frequency, or duration of flow, or to contribute flow to a traditional navigable water in any given year or specific time period.

In the 2015 Rule, the agencies did not expressly amend the longstanding definition of “adjacent” (defined as “bordering, contiguous, or neighboring”), but the agencies added, for the first time, a definition of “neighboring” that affected the interpretation of “adjacent.” The 2015 Rule defined “neighboring” 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 category (1) through (3) “jurisdictional by rule” water; and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes.

Id.

at 37105. The entire water would be considered “neighboring” if any portion of it lies within one of these zones.

See id.

These quantitative measures did not appear in the proposed rule and were not sufficiently supported in the administrative record for the final rule.

In addition to the six categories of “jurisdictional by rule” waters, the 2015 Rule identified certain waters that would be subject to a case-specific analysis to determine if they had a “significant nexus” to a water that is jurisdictional.

Id.

at 37104-05. The first category consists of five specific types of waters in specific regions of the country: 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 category (1) through (3) “jurisdictional by rule” 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.

These quantitative measures did not appear in the proposed rule and were not sufficiently supported in the administrative record for the final rule.

The 2015 Rule defined “significant nexus” to mean a water, including wetlands, that either alone or in combination with other similarly situated waters in the region, significantly affected the chemical, physical, or biological integrity of a category (1) through (3) “jurisdictional by rule” water. 80 FR 37106. “For an effect to be significant, it must be more than speculative or insubstantial.”

Id.

The term “in the region” meant “the watershed that drains to the nearest” primary water.

Id.

This definition was different from the test articulated by the agencies in their 2008

Rapanos

Guidance.

That guidance interpreted “similarly situated” to include all wetlands (not waters) adjacent to the same tributary.

In this notice, a “primary water” is a category (1) through (3) “jurisdictional by rule” water as defined in the 2015 Rule.

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

United States & Carabell

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.

The agencies acknowledge that the

Rapanos

Guidance does not impose legally binding requirements,

see id.

at 4 n.17, but believe that this guidance is relevant to the discussion in this notice.

Under the 2015 Rule, to determine whether a water, alone or in combination with similarly situated waters across the watershed of the nearest primary water, had a significant nexus, one had to consider nine functions such as sediment trapping, runoff storage, provision of life cycle dependent aquatic habitat, and other functions. It was sufficient for determining whether a water had a significant nexus under the 2015 Rule if any single function performed by the water, alone or together with similarly situated waters in the region, contributed significantly to the chemical, physical, or biological integrity of the nearest category (1) through (3) “jurisdictional by rule” water.

Id.

Taken together, the enumeration of the nine functions and the more expansive consideration of “similarly situated waters in the region” in the 2015 Rule means that the vast majority of water features in the United States may have come within the jurisdictional purview of the Federal government.

“[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 2015 Rule also retained exclusions from the definition of “waters of the United States” for prior converted cropland and waste treatment systems.

Id.

at 37105. In addition, the agencies codified several exclusions that, in part, reflected longstanding agency practice and added others such as “puddles” and “swimming pools” in response to concerns raised by stakeholders during the public comment period on the proposed 2015 Rule.

Id.

at 37096-98, 37105.

B. Legal Challenges to the 2015 Rule

Following the 2015 Rule's publication, 31 States

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

and appellate

courts challenging the 2015 Rule. In those cases, the challengers alleged numerous procedural deficiencies in the development and promulgation of the 2015 Rule and substantive deficiencies in the 2015 Rule itself. Some challengers argued that the 2015 Rule was too expansive, while others argued that it excluded too many waters from federal jurisdiction.

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 legal challenge later in the process, bringing the total to 32 States. Colorado, New Mexico, and Wisconsin have since withdrawn from litigation against the 2015 Rule.

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. In April 2019, an additional challenge against the 2015 Rule was filed in the U.S. District Court for the District of Oregon.

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.

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

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 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.

Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. Iowa's motion to intervene in the case was granted after issuance of the preliminary injunction. In May 2019, the court granted motions from Colorado and New Mexico to withdraw from the litigation and lifted the preliminary injunction as to Colorado and New Mexico. Order,

North Dakota

EPA,

No. 3:15-cv-00059 (D.N.D. May 14, 2019). At the same time, the court stated that the preliminary injunction would remain in effect as to a plaintiff-intervenor that represents ten counties in New Mexico. The agencies filed a motion seeking clarification of the applicability of the court's preliminary injunction to those ten counties in New Mexico. Defendants' Motion for Clarification Regarding the Scope of the Court's Preliminary Injunction,

North Dakota

EPA,

No. 3:15-cv-00059 (D.N.D. May 24, 2019). As of the time of signature of this final rule, that motion is pending before the court.

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 because of the distance limitations and other issues. 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 concluding, 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, 807 (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.

Dep't of Def.,

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.

Dep't of Def.,

138 S. Ct. 617, 624 (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. At this time, the 2015 Rule continues to be subject to a preliminary injunction issued by the District of North Dakota as to 12 States: Alaska, Arizona, Arkansas, Idaho, Iowa, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, and Wyoming.

The 2015 Rule also is subject to a preliminary injunction issued by the U.S. 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.

Georgia

Pruitt,

326 F. Supp. 3d 1356, 1364 (S.D. Ga. 2018). The Southern District of Georgia has since issued an order remanding the 2015 Rule to the agencies, finding that the 2015 Rule exceeded the agencies' statutory authority under the CWA and was promulgated in violation of the APA.

Georgia

Wheeler,

No. 2:15-cv-079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019). “[I]n light of the serious defects identified,” the court retained its preliminary injunction against the 2015 Rule.

Id.

at *36.

As of the date this final rule was signed, it is unclear whether the North Dakota district court's preliminary injunction also applies to New Mexico.

See supra

note 10.

In September 2018, the U.S. 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

EPA,

No. 3:15-cv-162, 2018 WL 4518230, at *1 (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.

In May 2019, the court remanded the 2015 Rule to the agencies on the grounds that the rule violated the APA. Specifically, the court found that the rule violated the APA's notice and comment requirements because: (1) The 2015 Rule's definition of “adjacent” waters (which relied on distance-based limitations) was not a “logical outgrowth” of the proposal's definition of “adjacent” waters (which relied on ecologic and hydrologic criteria); and (2) the agencies denied interested parties an opportunity to comment on the final version of the Connectivity Report,

which served as the technical basis for the final rule.

See Texas

EPA,

No.

3:15-cv-162, 2019 WL 2272464 (S.D. Tex. May 28, 2019).

U.S. EPA. Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Jan. 2015) (EPA/600/R-14/475F).

Moreover, in July 2019, the U.S. District Court for the District of Oregon issued a preliminary injunction against the 2015 Rule in the State of Oregon. Order,

Or. Cattlemen's Ass'n

EPA,

No. 19-00564 (D. Or. July 26, 2019). As a result, at this time, the 2015 Rule is enjoined in more than half of the States.

Prior to this final rule, the applicability of the 2015 Rule in New Mexico has been unclear.

See supra

note 10.

Three additional States (Ohio, Michigan, and Tennessee) sought a preliminary injunction against the 2015 Rule in the U.S. District Court for the Southern District of Ohio. In March 2019, the court denied the States' motion, finding that the States had “failed to demonstrate that they will suffer imminent and irreparable harm absent an injunction.”

See Ohio

EPA,

No. 2:15-cv-02467, 2019 WL 1368850 (S.D. Ohio Mar. 26, 2019). The court subsequently denied the States' motion for reconsideration of its order denying the preliminary injunction motion, and the States have since filed an appeal of the court's order in the Sixth Circuit.

See Ohio

EPA,

No. 2:15-cv-02467, 2019 WL 1958650 (S.D. Ohio May 2, 2019); Plaintiffs' Notice of Appeal,

Ohio

EPA,

No. 2:15-cv-02467 (S.D. Ohio May 28, 2019).

Parties challenging the 2015 Rule in the U.S. District Court for the Northern District of Oklahoma, including the State of Oklahoma and the U.S. Chamber of Commerce, also filed a motion for a preliminary injunction against the 2015 Rule. In May 2019, the court denied the parties' motion, finding that the parties had “not shown that they will suffer irreparable harm if the 2015 Rule is permitted to remain in effect while this case is pending.”

See Oklahoma

EPA,

No. 4:15-cv-00381, slip. op. at 11-12 (N.D. Okla. May 29, 2019). Proceedings in this case are stayed pending the parties' appeal of the court's order denying a preliminary injunction to the Tenth Circuit.

See

Order,

Oklahoma

EPA,

No. 4:15-cv-00381 (N.D. Okla. June 14, 2019).

Finally, an additional motion for a preliminary injunction against the 2015 Rule is pending in the U.S. District Court for the Western District of Washington.

See

Motion for Preliminary Injunction,

Wash. Cattlemen's Ass'n

EPA,

No. 19-00569 (W.D. Wash. June 14, 2019).

C. Executive Order 13778 and the “Step One” Notice of Proposed Rulemaking and Supplemental Notice of Proposed Rulemaking

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 Department of 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

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 published the “Step One” NPRM (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 longstanding agency practice. The agencies invited comment on the NPRM 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. The agencies invited comment on the SNPRM over a 30-day period.

In developing this final rule, the agencies reviewed approximately 690,000 public comments received on the NPRM and approximately 80,000 comments received on the SNPRM from a broad spectrum of interested parties. With the NPRM and SNPRM the agencies sought comment on the repeal of the 2015 Rule, the recodification of the prior regulations, the considerations and agencies' reasons for the proposal, and proposed conclusions that the agencies exceeded their authority under the CWA. In addition, the public could comment on all aspects of the NPRM, the economic analysis for the NPRM, and the SNPRM. Some commenters expressed support for the agencies' proposal to repeal the 2015 Rule, stating, among other things, that the 2015 Rule exceeds the agencies' statutory authority. Other commenters opposed the proposal, stating, among other things, that repealing the 2015 Rule will increase regulatory uncertainty and adversely impact water quality. A complete response to comment document is available in the docket for this final rule at Docket ID No. EPA-HQ-OW-2017-0203.

D. The Applicability Date Rule

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, 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 would 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.,

Pruitt,

318 F. Supp. 3d 959 (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.

Andrew Wheeler, et al.,

No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018). As a result, the 2015 Rule is now in effect in 22 States.

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 District of Oregon, 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 27 States.

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.

The agencies filed a motion seeking clarification of the applicability of the North Dakota district court's preliminary injunction to New Mexico.

See supra

note 10. That motion remains pending before the court as of the time of signature of this final rule.

III. Basis for Repealing the 2015 Rule

A. Legal Authority To Repeal

The agencies' ability to repeal an existing regulation through notice-and-comment rulemaking is well-grounded in the law. The APA defines “rule making” to mean “agency process for formulating, amending, or repealing a rule.” 5 U.S.C. 551(5). The CWA complements this authority by providing the Administrator with broad authority to “prescribe such regulations as are necessary to carry out the functions under this Act.” 33 U.S.C. 1361(a). This broad authority includes issuing regulations that repeal or revise CWA implementing regulations promulgated by a prior administration.

As discussed in the NPRM and SNPRM, “agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.”

See Encino Motorcars, LLC

Navarro,

136 S. Ct. 2117, 2125 (2016) (citations omitted);

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 the 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”). 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,” defined as “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 waters of the United States from a point source unless the discharge is in compliance with certain enumerated sections of the CWA, including obtaining authorizations 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.”

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).

Some commenters disagreed that the CWA distinguishes between the “nation's waters” and a subset of those waters known as the “navigable waters.” Many of these commenters suggested that the agencies' interpretation is not supported by the text or structure of the Act and is based instead on selectively quoting from and mischaracterizing the Act's provisions. Other commenters argued that the two terms are synonymous under the Act.

Fundamental principles of statutory interpretation support the agencies' recognition of a distinction between the “nation's waters” and “navigable waters.” As the Supreme Court has observed, “[w]e assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning.”

Bailey

United States,

516 U.S. 137, 146 (1995) (recognizing the canon of statutory construction against superfluity). Further, “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

FDA

Brown & Williamson Tobacco Corp.,

529 U.S. 120, 133 (2000) (internal quotation marks and citation omitted);

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 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 also interpreted the reasoning of

SWANCC

to exclude certain isolated waters. His opinion notes that: “Because such a nexus 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 (internal quotations and citations omitted). 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

lack 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.”

Id.

He noted that the Corps could establish by regulation categories of tributaries based on volume of flow, proximity to navigable waters, or other relevant 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.

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

SWANCC.

And while the focus of

Rapanos

was on whether the Corps could regulate wetlands adjacent to nonnavigable tributaries far removed from navigable-in-fact waters, the plurality and concurring opinions do provide guidance as to the scope of CWA coverage of tributaries to navigable-in-fact waters.

The plurality and Justice Kennedy both recognize that 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 does have limits.

See id.

at 731-32 (plurality).

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 appear to 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 “their volume of flow (either annually or on average), their proximity to navigable waters, or other relevant considerations” 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.”

Though some commenters agreed that aspects of the plurality's and Justice Kennedy's opinions align regarding the limits of federal jurisdiction under the CWA, other commenters disagreed that the opinions share important commonalities. These commenters asserted that the opinions have disparate rationales that cannot be reconciled. While the agencies acknowledge that the plurality and Justice Kennedy viewed the question of federal CWA jurisdiction differently, the agencies find that 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' conclusion that the agencies exceeded their authority when defining the scope of CWA jurisdiction under the 2015 Rule. 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 certain nonnavigable, isolated, intrastate waters that lack a sufficient connection to traditional navigable waters. This counsels 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.

The agencies also recognize and respect the primary responsibilities and rights of States 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 all of the nation's waters, not just 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 the 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., Bailey

United States,

516 U.S. at 146;

Nat'l Fed'n of Indep. Bus.

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

Hawkes Co.,

136 S. Ct. 1807, 1812 (2016). As Justice Kennedy observed in 2016, “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 . . . .”).

Id.

at 1816-17 (Kennedy, J., concurring). The agencies recognize that the 2015 Rule and subsequent litigation challenging the legality of core components of that rule have added to the questions regarding the appropriate scope of the Federal government's regulatory power and power over private property, and that currently the scope of those powers varies based on State line.

C. Reasons for Repeal

The agencies are repealing the 2015 Rule for four primary reasons. First, the agencies have concluded that the 2015 Rule misapplied Justice Kennedy's significant nexus standard despite identifying that standard as its touchstone. The 2015 Rule adopted an interpretation of the significant nexus standard that impermissibly expanded the scope of federal jurisdiction, resulting in the regulation of waters beyond what Congress intended. The rule did so by misapplying Justice Kennedy's standard to broaden the meaning and application of the terms “tributary,” “adjacent,” and “significant nexus” while reinterpreting the phrase “similarly situated lands in the region” to support the potential assertion of federal regulation over nearly all waters within large watersheds. The agencies are repealing the 2015 Rule because the agencies have now concluded that the 2015 Rule exceeded the legal limits on the scope of the agencies' jurisdiction under the CWA as intended by Congress and as reflected in Supreme Court cases, including Justice Kennedy's articulation of the significant nexus standard in

Rapanos.

The agencies are not taking a position in this rulemaking regarding whether Justice Kennedy's concurring opinion in

Rapanos

is or should be the controlling authority regarding the scope of federal jurisdiction under the CWA.

See, e.g., Rapanos,

547 U.S. at 758 (Roberts, C.J., concurring). The agencies used Justice Kennedy's significant nexus standard as the touchstone for the 2015 Rule, and for the reasons described herein, the agencies are repealing the 2015 Rule because it exceeded the scope of authority described in that standard. The agencies requested comment regarding whether Justice Kennedy's concurring opinion “must be a mandatory component of any future definition of `waters of the United States' ” as part of the rulemaking on a proposed revised definition.

See

84 FR 4154, 4167, 4177 (Feb. 14, 2019).

Second, the agencies have concluded that the 2015 Rule did not adequately consider and accord due weight to the express congressional policy in CWA section 101(b) 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.” 33 U.S.C. 1251(b). The CWA balances preservation of the traditional power of States to regulate land and water resources within their borders with federal water quality regulation and oversight to protect the “waters of the United States.” The agencies now conclude that in promulgating the 2015 Rule, they did not accord due weight to that balance. The 2015 Rule expanded jurisdiction over the pre-existing regulatory regime in a manner that encroached on traditional State land-use regulation and the authority of States to regulate State waters, and it altered Federal, State, tribal, and local government relationships in implementing CWA programs without a clear statement from Congress. By repealing the 2015 Rule, the agencies are reversing that encroachment on State authority and restoring those pre-existing relationships.

Third, given the errors in applying Justice Kennedy's significant nexus standard to assert an expanded theory of federal jurisdiction and the failure to adequately consider and accord due weight to the policy direction from Congress to respect the roles and responsibilities of the Federal government and States in implementing the full suite of regulatory and non-regulatory programs in the CWA, the agencies have concluded that the 2015 Rule, like the application of the Corps' regulations in

SWANCC,

“raise[s] significant questions of Commerce Clause authority and encroach[es] on traditional state land-use regulation.”

Rapanos,

547 U.S. at 776 (Kennedy, J., concurring);

see also id.

at 774 (describing “

SWANCC'

s holding” to mean that “`nonnavigable, isolated, intrastate waters,' are not `navigable waters.' ” (quoting

SWANCC,

531 U.S. at 171));

id.

at 781-82 (“[I]n many cases wetlands adjacent to tributaries covered by [the Corps' existing tributary] 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

.”). The

Rapanos

plurality recognized the same jurisdictional limits articulated in

SWANCC. See

547 U.S. at 726 (“Observing that `[i]t was the significant nexus between the wetlands and `navigable waters' that informed our reading of the CWA in

Riverside Bayview,'

we held that

Riverside Bayview

did not establish ‘that the jurisdiction of the Corps extends to ponds that are not adjacent to open water.' ” (citations and emphasis omitted)). And Justice Stevens, writing for four Justices in dissent in

Rapanos,

also recognized this principle.

See id.

at 795 (Stevens, J., dissenting) (“The Court [in

SWANCC

] rejected [the Corps' exercise of jurisdiction] since these isolated pools, unlike the wetlands at issue in

Riverside Bayview,

had no `significant nexus' to traditionally navigable waters.”);

id.

at 796 (Stevens, J., dissenting) (“[T]he Corps has reasonably interpreted its jurisdiction to cover

nonisolated

wetlands.” (emphasis added)).

In the SNPRM, the agencies specifically requested comment and additional information on “whether the water features at issue in

SWANCC

or other similar water features could be deemed jurisdictional under the 2015 Rule,” and whether such a determination would be “consistent with or otherwise well-within the agencies' statutory authority.” 83 FR 32249. The agencies now conclude that in formulating the significant nexus test in the 2015 Rule, the agencies failed to properly consider or adopt the limits of the significant nexus standard established in

SWANCC

—the very case in which the phrase “significant nexus” originated—and Justice Kennedy's opinion in

Rapanos.

The preamble to the 2015 Rule stated that “[t]he agencies utilize[d] the significant nexus standard, as articulated by Justice Kennedy's opinion [in

Rapanos

] and informed by the unanimous opinion in

Riverside Bayview

and the plurality opinion in

Rapanos.”

80 FR 37061. But the rule did not properly consider the limits of the significant nexus standard as first described in

SWANCC

and subsequently relied upon by Justice Kennedy in

Rapanos,

nor was it adequately informed by the unanimous opinion in

Riverside Bayview.

For example, applying the 2015 Rule to the waters at issue in

SWANCC

demonstrates that the 2015 Rule did not comport with the limits of the CWA as interpreted in that decision. The “seasonally ponded, abandoned gravel mining depressions” at issue in

SWANCC

were within 4,000 feet of Poplar Creek—a “tributary” under the 2015 Rule which leads to the Fox River and in turn flows into the Illinois and Mississippi Rivers. Based on this information, the

SWANCC

ponds and mudflats would have been subject to a case-specific significant nexus analysis under the 2015 Rule's (a)(8) provision.

See

80 FR 37105.

Considering the nine functions relevant to a significant nexus evaluation as defined in the 2015 Rule, including “runoff storage” and “sediment trapping,”

id.

at 37067, as well as the descriptions of the site available to the agencies, the

SWANCC

ponds and mudflats would almost certainly have a “significant nexus” under the 2015 Rule because they could be found to retain “stormwater volumes and associated sediment coming off the landfill” that would otherwise reach a navigable water.

See

Brief of Dr. Gene Likens et al. as

Amici Curiae

in Support of Respondent at 6-28,

SWANCC,

531 U.S. 159 (No. 99-1178) [hereinafter Scientists' Brief] (quoting Decision Document A.R. 15645-47);

see also id.

(“[The

SWANCC

site] holds enough water to fill the Pentagon four feet deep. . . . Absent strict controls, this water could easily end up directly or indirectly in the Fox River, . . . which in turn flows into the navigable Illinois and Mississippi Rivers.”);

Rapanos,

547 U.S. at 749 (Scalia, J., plurality) (“[T]he ponds at issue in

SWANCC

could . . . offer nesting, spawning, rearing and resting sites for aquatic or land species, and serve as valuable storage areas for storm and flood waters[.]” (internal quotation marks and citations omitted)). In fact, given this evidence, were the Corps not to find jurisdiction over the

SWANCC

ponds under the 2015 Rule's (a)(8) provision, the agencies are cognizant that the Corps could be subject to allegations that such a finding would be an arbitrary and capricious application of that provision. And yet, with this information before it,

the majority of the

SWANCC

Court concluded that the nonnavigable, isolated, intrastate waters at issue in

SWANCC

fell beyond the scope of federal CWA jurisdiction.

See SWANCC,

531 U.S. at 174 (“[W]e find nothing approaching a clear statement from Congress that it intended § 404(a) to reach an abandoned sand and gravel pit such as we have here.”).

The “seasonally ponded, abandoned gravel mining depressions located on the [

SWANCC

] project site,” 531 U.S. at 164, would not have been covered by the 2015 Rule's exclusion for water-filled depressions created incidental to mining activity.

See e.g.,

33 CFR 328.3(b)(4)(v). While the text of the 2015 Rule is not clear on this point, the earlier regulatory preambles that this exclusion is based on and the 2015 Rule Response to Comments (RTC) document confirm that this exclusion ceases to apply if the mining activities that created the waters are abandoned.

See

53 FR 20764, 20765 (June 6, 1988) (“we generally do not consider the following waters to be `waters of the United States' . . . [w]ater-filled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel

unless and until

the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States”) (emphasis added);

see also id.

at 748 (“If isolated permanent and seasonal ponds of varying size and depth, which, after all, might at least be described as `waters' in their own right—did not constitute `waters of the United States,'

a fortiori,

isolated swampy

lands

do not constitute `waters of the United States.' ”) (original emphasis) (internal quotation marks and citations omitted).

Given the 2015 Rule permitted federal jurisdiction over certain physically disconnected waters and wetlands like those at issue in

SWANCC

—either categorically as “adjacent” waters or on a case-specific basis according to an expanded significant nexus test—the agencies now conclude for this and other reasons that the 2015 Rule exceeded the agencies' statutory authority as interpreted in

SWANCC

and Justice Kennedy's concurrence in

Rapanos.

The agencies may not exceed the authority of the statutes they are charged with administering,

see

5 U.S.C. 706(2)(C) (prohibiting agency actions “in excess of statutory jurisdiction, authority, or limitations”), and must avoid interpretations of the statutes they administer that push constitutional boundaries.

See

Section III.C.3,

supra.

In contrast to the 2008

Rapanos

Guidance, the 2015 Rule failed to respect the limits of the significant nexus standard established in

SWANCC

and the foundation for Justice Kennedy's significant nexus standard in

Rapanos.

For these reasons, the agencies repeal the 2015 Rule.

b. The 2015 Rule's Interpretation and Application of the Significant Nexus Standard Did Not Respect the Limits of Federal Jurisdiction Reflected in Justice Kennedy's Opinion in Rapanos

In the SNPRM, the agencies “propose[d] to conclude that the 2015 Rule exceeded the agencies' authority under the CWA” by adopting an “expansive” interpretation of Justice Kennedy's significant nexus standard that was “inconsistent with important aspects of that opinion” and resulted in a rule that “cover[ed] waters outside the scope of the Act.” 83 FR 32228, 32240. The agencies have considered the many comments received discussing these issues and now conclude that, in contrast to the limiting nature of the significant nexus standard first described in

SWANCC

and elaborated on by Justice Kennedy in

Rapanos,

the agencies' interpretation of the significant nexus standard in the 2015 Rule was overly expansive and did not comport with or respect the limits of jurisdiction reflected in the CWA and decisions of the Supreme Court.

The agencies' broader interpretation of the significant nexus standard served as a fundamental basis of the 2015 Rule and informed the development of the definitions of the categorically jurisdictional and case-specific waters under the rule.

See

80 FR 37060 (“The key to the agencies' interpretation of the CWA is the significant nexus standard, as established and refined in Supreme Court opinions.”). In applying this broad standard, the agencies established an expansive definition of jurisdictional “tributaries,” which in turn provided for

per se

jurisdictional “adjacent” (including “neighboring”) waters and wetlands within specific distance and geographic limits of those tributaries and from which even farther-reaching case-specific significant nexus analyses could be conducted for isolated waters and wetlands not already meeting the broad jurisdictional-by-rule definitions. The result was a compounding of errors that subjected the vast majority of water features in the United States to the jurisdictional purview of the Federal government.

This outcome is incompatible with the significant nexus standard and the limits of jurisdiction described in

SWANCC

and by Justice Kennedy in

Rapanos.

The agencies noted in 2015 “that the 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.” 2015 Rule Economic Analysis at 11.

To be sure, the agencies enjoy discretion in setting the jurisdictional limits of the Act.

See Rapanos,

547 U.S. at 758 (Roberts, C.J., concurring);

but see id.

at 757 (noting that the Corps' “boundless view” of its authority in

SWANCC

“was inconsistent with the limiting terms Congress had used in the Act”). However, that discretion is not unbridled. It must remain within the confines of the Act's text and the Supreme Court's interpretations of the outer bounds of jurisdiction. The agencies exercised this discretion in an impermissible manner in 2015 by codifying a regulatory test for jurisdiction that exceeded the agencies' authority under the Act. Whereas “the significant-nexus test itself

prevents

problematic applications of the statute,” 547 U.S. at 783 (Kennedy, J., concurring) (emphasis added), the 2015 Rule misapplied the standard to

create

them.

i. The 2015 Rule's Definition of “Significant Nexus” Was Inconsistent With the Limiting Nature of Justice Kennedy's Significant Nexus Standard

Rapanos,

Justice Kennedy found 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 (Kennedy, J., concurring). Justice Kennedy articulated this significant nexus standard to limit federal jurisdiction under the CWA to avoid “problematic” or “unreasonable” applications of the statute arising from the breadth of the Corps' then-existing standard for tributaries.

See id.

at 783, 782. Pursuant to Justice Kennedy's opinion, if a water lacks a “significant nexus,” it is not jurisdictional under the Act.

See id.

at 767.

After reviewing the public comments received on this rulemaking, the agencies conclude that the 2015 Rule's definition of “significant nexus” was inconsistent with the limiting nature of Justice Kennedy's significant nexus standard, resulting in a definition of “waters of the United States” that exceeded the scope of federal jurisdiction under the Act. In particular, the agencies now find that the 2015

Rule's interpretation of the phrase “similarly situated lands in the region” contravened the limiting principles inherent in Justice Kennedy's articulation of the significant nexus test. The significant change in the agencies' understanding of the meaning of Justice Kennedy's opinion and reasons for reinterpreting it was not explained and led to a compounding of errors in the agencies' misapplication of the significant nexus test.

Justice Kennedy did not expressly define the phrase “similarly situated lands in the region.” His opinion, nevertheless, provides indications of the intended meaning of this phrase. The agencies expressed their understanding of this phrase in the 2008

Rapanos

Guidance (at 8), stating that the phrase includes a tributary and all wetlands adjacent to that tributary. The guidance describes a “tributary” as “the entire reach of the stream that is of the same order (

i.e.,

from the point of confluence, where two lower order streams meet to form the tributary, downstream to the point such tributary enters a higher order stream).”

Id.

at 10. Thus, under the agencies' 2008 guidance:

[W]here evaluating significant nexus for an adjacent wetland, the agencies will consider the flow characteristics and functions performed by the tributary to which the wetland is adjacent along with the functions performed by the wetland and all other wetlands adjacent to that tributary. This approach reflects the agencies' interpretation of Justice Kennedy's term “similarly situated” to include all wetlands adjacent to the same tributary. . . . Interpreting the phrase “similarly situated” to include all wetlands adjacent to the same tributary is reasonable because such wetlands are physically located in a like manner (

i.e.,

lying adjacent to the same tributary).

Id.

In the 2015 Rule, the agencies reinterpreted the phrase “similarly situated lands in the region” by defining “(1) which waters are `similarly situated,' and thus should be analyzed in combination, in (2) the `region,' for purposes of a significant nexus analysis.” 80 FR 37065. This approach departed from the agencies' interpretation in the 2008

Rapanos

Guidance by splitting the phrase into two separate, expansive concepts (“similarly situated” and “in the region”). The agencies considered waters to be “similarly situated” in the 2015 Rule when they “function alike and are sufficiently close to function together in affecting downstream waters.” 80 FR 37106. The preamble of the 2015 Rule further explained the concept of “sufficiently close”:

Similarly situated waters can be identified as sufficiently close together for purposes of this paragraph of the regulation when they are within a contiguous area of land with relatively homogeneous soils, vegetation, and landform (

e.g.,

plain, mountain, valley, etc.). In general, it would be inappropriate, for example, to consider waters as “similarly situated” under paragraph (a)(8) if these waters are located in different landforms, have different elevation profiles, or have different soil and vegetation characteristics,

unless the waters perform similar functions and are located sufficiently close to a “water of the United States”

to allow them to consistently and collectively function together to affect a traditional navigable water, interstate water, or the territorial seas. In determining whether waters under paragraph (a)(8) are sufficiently close to each other the agencies will also consider hydrologic connectivity to each other

or a jurisdictional water.

80 FR 37092 (emphasis added). The 2015 Rule preamble also established that “under paragraph (a)(8), waters do not need to be of the same type (as they do in paragraph (a)(7)) to be considered similarly situated. As described above, waters are similarly situated under paragraph (a)(8) where they perform similar functions

are located sufficiently close to each other, regardless of type.”

Id.

(emphasis added). The agencies explained that this interpretation was based in part on “one of the main conclusions of the [Connectivity Report] . . . that the incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands in that watershed.”

Id.

at 37066. The agencies then defined “in the region” within the 2015 Rule's regulatory definition of “significant nexus” to mean “the watershed that drains to the nearest” primary water (

i.e.,

categories (a)(1)-(3)).

The preamble of the 2015 Rule, however, created an exception for the codified definition of “in the region” in the Arid West in “situations where the single point of entry watershed is very large.”

See

80 FR 37092 (“[In those situations] it may be reasonable to evaluate all similarly situated waters in a smaller watershed. Under those circumstances, the agencies may demarcate adjoining catchments surrounding the water to be evaluated that, together, are generally no smaller than a typical 10-digit hydrologic unit code (HUC-10) watershed in the same area. The area identified by this combination of catchments would be the `region' used for conducting a significant nexus evaluation under paragraphs (a)(7) or (a)(8) under those situations. The basis for such an approach in very large single point of entry watersheds in the arid West should be documented in the jurisdictional determination.”). The agencies now conclude that this exception, included in the final rule preamble without adequate notice, was at odds with the regulatory text of the 2015 Rule and created further confusion as to the application of the 2015 Rule's “significant nexus” test and the scope of aggregation for purposes of a significant nexus inquiry under the rule.

The agencies acknowledged this change in position from the 2008

Rapanos

Guidance by explaining: “The functions of the contributing waters are inextricably linked and have a cumulative effect on the integrity of the downstream traditional navigable water, interstate water, or the territorial sea. For these reasons, it is more appropriate to conduct a significant nexus analysis at the watershed scale than to focus on a specific site, such as an individual stream segment.”

Id.

at 37066. As expressed in the 2008

Rapanos

Guidance, the agencies previously understood the phrase “similarly situated lands in the region” to include all wetlands adjacent to the same tributary. The 2008

Rapanos

Guidance states that “[a] tributary . . . is the entire reach of the stream that is of the same order[.]” 2008

Rapanos

Guidance at 10.

The 2015 Rule also departed from the 2008

Rapanos

Guidance by applying the concept of “similarly situated lands in the region” to other waters, not only wetlands, across the entire watershed of the nearest primary water.

See id.

at 37066 (“A single point of entry watershed is the drainage basin within whose boundaries all precipitation ultimately flows to the nearest single traditional navigable water, interstate water, or the territorial sea. . . . The watershed includes all streams, wetlands, lakes, and open waters within its boundaries.”). In essence, the agencies determined that not only do “

wetlands

possess the requisite 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,' ” 547 U.S. at 780 (Kennedy, J., concurring) (emphasis added), but also “[

tributaries

] possess the requisite nexus, and thus come within the statutory phrase `navigable waters,' if the [

tributaries

], either alone or in combination with similarly situated [

tributaries

] in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.' ” 80 FR 37068 (“[W]aters meeting the definition of `tributary' in a single point of entry watershed are similarly situated and have a significant nexus because they significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas.”).

As a result of the agencies' reinterpretation of a Supreme Court Justice's opinion referencing “similarly situated lands in the region,” the 2015 Rule broadened the scope of aggregation for determining jurisdiction in a “significant nexus” analysis relative to the 2008

Rapanos

Guidance, which more closely aligned with what Justice Kennedy intended for that test. In the SNPRM, the agencies solicited comment on whether the 2015 Rule's approach to the phrase “similarly situated lands in the region” relied on the scientific literature “without due regard for the restraints imposed by the statute and case law.” 83 FR 32240. Multiple commenters expressed concern that the 2015 Rule's interpretation of the phrase was inconsistent with Justice Kennedy's opinion. In particular, these commenters suggested that the 2015 Rule's approach of aggregating the contributions of all streams or all wetlands within an entire watershed impermissibly lowered the bar for establishing a significant nexus. Other commenters asserted that the 2015 Rule's approach was consistent with Justice Kennedy's opinion because the agencies found, in reliance on the Connectivity Report, that waters aggregated at a watershed scale have a connection to and impact downstream traditional navigable waters.

The agencies now conclude that applying Justice Kennedy's concept of “similarly situated lands in the region” to encompass all “tributaries” as broadly defined in the 2015 Rule and potentially all wetlands in a single point of entry watershed of the nearest primary water resulted in a regulatory definition that expanded federal jurisdiction to cover waters outside the scope of the Act, and thus exceeded the agencies' statutory authority. The agencies' analytical failure occurred in the first instance in the transition between the proposed and final versions of the 2015 Rule. For example, potential inclusion of all of the wetlands or waters in the watershed of the nearest primary water under the final 2015 Rule significantly expanded the scope of aggregation that determined jurisdiction in a “significant nexus” analysis from the focus in the proposed rule on waters “located sufficiently close together or sufficiently close to a `water of the United States' so that they can be evaluated as a single landscape unit.” 79 FR 22263. The proposed rule adhered more closely to the agencies' position on aggregation in the 2008

Rapanos

Guidance in that wetlands adjacent to the same tributary reach are inherently located closer together and closer to a “water of the United States” than are all non-adjacent wetlands across an entire single point of entry watershed. But in finalizing the 2015 Rule, the agencies viewed the scientific literature through a broader lens relative to the proposed rule.

See, e.g.,

80 FR 37094. This broader lens, as discussed in the following subsections, resulted in the

per se

regulation of a more expansive class of (a)(5) “tributaries,” including categorical jurisdiction over ephemeral “tributaries,” the

per se

regulation of a broader range of waters (not just wetlands) considered “adjacent” under the (a)(6) category, and case-specific inclusion of waters (not just wetlands) that are not “adjacent” to other waters but nonetheless could be regulated as “waters of the United States” according to the rule's (a)(7) and (a)(8) categories.

The agencies adopted this broader aggregation approach without proper analysis of whether this approach was consistent with the statutory limits in the CWA's text and the limits included in Justice Kennedy's opinion in

Rapanos.

As explained in Section III.B, Justice Kennedy articulated the significant nexus standard to limit federal jurisdiction under the CWA to avoid “unreasonable” assertions of jurisdiction arising from the breadth of the Corps' then-existing standard for tributaries. As evidenced by the discussion in his concurrence, Justice Kennedy intended his significant nexus standard to be a limiting test, cabining the potential overreach of federal CWA jurisdiction. The agencies now believe that interpreting “similarly situated lands in the region” to encompass all “tributaries” as broadly defined in the 2015 Rule and potentially all wetlands in a “watershed that drains to the nearest” primary water was inconsistent with the application of Justice Kennedy's significant nexus test as a limiting standard.

For example, the agencies should have considered whether the aggregated landscape approach swept certain isolated ponds, such as those at issue in

SWANCC,

into federal jurisdiction.

See

Section III.C.1.a,

supra.

The

SWANCC

Court concluded that “the text of the statute will not allow” the Corps to regulate “ponds that are not adjacent to open water.”

SWANCC,

531 U.S. at 168. And in

Rapanos,

Justice Kennedy even questioned the dissent's conclusion “that the ambiguity in the phrase `navigable waters' allows the Corps to construe the statute as reaching all `

non

-isolated wetlands[.]' ” 547 U.S. at 780 (emphasis added) (stating that this position “seems incorrect”). Similarly, Justice Kennedy did not subscribe to the

Rapanos

dissent's position that “would permit federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters.”

Id.

at 778. “The deference owed to the Corps' interpretation of the statute,” Justice Kennedy wrote, “does not extend so far.”

Id.

at 778-79.

The 2015 Rule also permitted the agencies to find a “significant nexus” based on “just one function,” 80 FR 37068, such as “provision of life cycle dependent aquatic habitat” for species found in primary waters.

Id.

at 37106. For an effect to be significant, the rule required that it must be more than speculative or insubstantial.

Id.

The rule allowed for jurisdiction when a water significantly affects “aquatic habitats through wind- and animal-mediated dispersal” of “[a]nimals and other organisms,”

id.

at 37072, including when “[p]lants and invertebrates” “ `hitchik[e]' on waterfowl” “to and from prairie potholes” anywhere across an entire watershed. Connectivity Report at 5-5. Yet if, as the

SWANCC

Court held, the use of isolated ponds by migratory birds themselves was an insufficient basis upon which to establish jurisdiction, it cannot stand to reason that the seeds and critters clinging to their feathers can constitute a “significant nexus.”

See

547 U.S. at 749 (Scalia, J., plurality) (“This [strictly ecological] reasoning would swiftly overwhelm

SWANCC

altogether[.]”).

Several federal courts have now questioned the 2015 Rule's interpretation of Justice Kennedy's significant nexus standard in

Rapanos.

The U.S. District Court for the District of North Dakota found “[t]he Rule . . . likely fails to meet [Justice Kennedy's significant nexus] standard” and “allows EPA regulation of waters that do not bear any effect on the `chemical, physical, and biological integrity' of any navigable-in-fact water.”

North Dakota

EPA,

127 F. Supp. 3d 1047,

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