The Navigable Waters Protection Rule: Definition of “Waters of the United States”

Federal RegisterApr 21, 2020

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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, 120, 122, 230, 232, 300, 302, and 401

[EPA-HQ-OW-2018-0149; FRL-10004-88-OW]

RIN 2040-AF75

The Navigable Waters Protection Rule: Definition of “Waters of the United States”

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency and the Department of the Army are publishing a final rule defining the scope of waters federally regulated under the Clean Water Act. The Navigable Waters Protection Rule is the second step in a comprehensive, two-step process intended to review and revise the definition of “waters of the United States” consistent with the Executive Order signed on February 28, 2017, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.” Once effective, it replaces the rule published on October 22, 2019. This final rule implements the overall objective of the Clean Water Act to restore and maintain the integrity of the nation's waters by maintaining federal authority over those waters that Congress determined should be regulated by the Federal government under its Commerce Clause powers, while adhering to Congress' policy directive to preserve States' primary authority over land and water resources. This final definition increases the predictability and consistency of Clean Water Act programs by clarifying the scope of “waters of the United States” federally regulated under the Act.

DATES:

This rule is effective on June 22, 2020.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2018-0149. 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, Oceans, Wetlands, and Communities Division, Office of Water (4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566-2465; email address:

CWAwotus@epa.gov;

or Jennifer A. Moyer, Regulatory Community of Practice (CECW-CO-R), U.S. Army Corps of Engineers, 441 G Street NW, Washington, DC 20314; telephone number: (202) 761-5903; email address:

USACE_CWA_Rule@usace.army.mil.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information

A. 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 Final Rule

B. History of This Rulemaking

1. The Clean Water Act

2. Regulatory History

3. U.S. Supreme Court Decisions

4. The 2015 Rule

C. Executive Order 13778 and the “Step One” Rulemaking

D. Summary of Stakeholder Outreach and the “Step Two” Rulemaking

E. Overview of Legal Construct for the Final Rule

1. Statutory Framework

2. U.S. Supreme Court Precedent

3. Principles and Considerations

F. Summary of Final Rule as Compared to the 1986 Regulations Recodified in the 2019 Rule and the 2015 Rule

G. Existing Guidance

III. Definition of “Waters of the United States”

A. Key Terms and Concepts

1. Typical Year

2. Perennial, Intermittent, and Ephemeral

3. Breaks

B. Territorial Seas and Traditional Navigable Waters

C. Interstate Waters

D. Tributaries

E. Ditches

F. Lakes and Ponds, and Impoundments of Jurisdictional Waters

G. Adjacent Wetlands

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

I. Placement of the Definition of “Waters of the United States” in the Code of Federal Regulations

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

V. Overview of the Effects of the Rule and Supporting Analyses

VI. Statutory and Executive Order Reviews

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

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

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

E. Unfunded Mandates Reform Act

F. Executive Order 13132: Federalism

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

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

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

J. National Technology Transfer and Advancement Act

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

L. Congressional Review Act

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-2018-0149. The official public docket consists of the documents specifically referenced in this action and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The OW Docket telephone number is (202) 566-2426. A reasonable fee will be charged for copies.

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, including the economic and regulatory analyses for the final rule. 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 defining “waters of the United States” in 33 CFR 328.3 and 40 CFR 120.2.

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 Final Rule

The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army or Corps) (together, “the agencies”) are publishing the Navigable Waters Protection Rule defining the scope of waters subject to federal regulation under the Clean Water Act (CWA or the Act), in light of the U.S. Supreme Court cases in

United States

Riverside Bayview Homes

(

Riverside Bayview

Solid Waste Agency of Northern Cook County

United States

(

SWANCC

), and

Rapanos

United States

(

Rapanos

), and consistent with Executive Order 13778, signed on February 28, 2017, entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.”

In this final rule, the agencies interpret the term “waters of the United States” to encompass: The territorial seas and traditional navigable waters; perennial and intermittent tributaries that contribute surface water flow to such waters; certain lakes, ponds, and impoundments of jurisdictional waters; and wetlands adjacent to other jurisdictional waters. Paragraph (a) of the final rule identifies four categories of waters that are “waters of the United States.” These waters are referred to as “jurisdictional” in this notice and in the regulatory text. Paragraph (b) of the final rule identifies those waters and features that are excluded from the definition of “waters of the United States.” These waters are referred to as “non-jurisdictional” or “excluded” in this notice and as “non-jurisdictional” in the regulatory text. Paragraph (c) of the final rule defines applicable terms.

As a baseline concept, this final rule recognizes that waters of the United States are waters within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and that not all waters are waters of the United States. The final rule includes the agencies' longstanding category of the territorial seas and traditional navigable waters. A “tributary” is defined in the final rule as a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a territorial sea or traditional navigable water in a typical year either directly or indirectly through other tributaries, jurisdictional lakes, ponds, or impoundments, or adjacent wetlands. A tributary must be perennial or intermittent in a typical year. The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to be perennial or intermittent and contributes surface water flow to a traditional navigable water or territorial sea in a typical year. A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or other similar artificial feature, or through a debris pile, boulder field, or similar natural feature. The term “tributary” includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch is perennial or intermittent and contributes surface water flow to a traditional navigable water or territorial sea in a typical year.

The final rule defines “lakes and ponds, and impoundments of jurisdictional waters” as standing bodies of open water that contribute surface water flow in a typical year to a territorial sea or traditional navigable water either directly or through a tributary, another jurisdictional lake, pond, or impoundment, or an adjacent wetland. The agencies note that to be jurisdictional, an “impoundment of a jurisdictional water” must be an impoundment of a territorial sea or traditional navigable water, tributary, jurisdictional lake or pond, or an adjacent wetland, and must meet the conditions in paragraph (c)(6) of the final rule. A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. A lake, pond, or impoundment of a jurisdictional water is also jurisdictional if, in a typical year, it is inundated by flooding from a territorial sea or traditional navigable water, or tributary, or from another jurisdictional lake, pond, or impoundment.

The final rule defines “adjacent wetlands” as wetlands that abut a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water; are inundated by flooding from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water in a typical year; are physically separated from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water only by a natural berm, bank, dune, or similar natural feature; or are physically separated from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrological surface connection to the territorial sea or traditional navigable water, tributary, or lake, pond, or impoundment of a jurisdictional water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. “Abut” means when a wetland touches a territorial sea, traditional navigable water, tributary, or lake, pond, or impoundment of a jurisdictional water at least at one point or side. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year.

The final rule excludes from the definition of “waters of the United States” all waters or features not mentioned above. In addition to this general exclusion, the final rule specifically clarifies that waters of the United States do not include the following:

• Groundwater, including groundwater drained through subsurface drainage systems;

• ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools;

• diffuse stormwater runoff and directional sheet flow over upland;

• ditches that are not traditional navigable waters, tributaries, or that are

not constructed in adjacent wetlands, subject to certain limitations;

• prior converted cropland;

• artificially irrigated areas that would revert to upland if artificial irrigation ceases;

• artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters;

• water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;

• stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;

• groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and

• waste treatment systems.

In addition, the agencies have defined the terms “upland,” “prior converted cropland,” and “waste treatment system” to improve regulatory predictability and clarity.

To develop this revised definition of “waters of the United States,” the agencies looked to the text and structure of the CWA, as informed by its legislative history and Supreme Court guidance, and took into account the agencies' expertise, policy choices, and scientific principles. This final rule presents a unifying legal theory for federal jurisdiction over those waters and wetlands that maintain a sufficient surface water connection to traditional navigable waters or the territorial seas. This definition strikes a reasonable and appropriate balance between Federal and State waters and carries out Congress' overall objective to restore and maintain the integrity of the nation's waters in a manner that preserves the traditional sovereignty of States over their own land and water resources. The final rule also provides clarity and predictability for Federal agencies, States, Tribes, the regulated community, and the public. This final rule is intended to ensure that the agencies operate within the scope of the Federal government's authority over navigable waters under the CWA and the Commerce Clause of the U.S. Constitution.

B. History of This Rulemaking

1. The Clean Water Act

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

in 1972 to address longstanding concerns regarding the quality of the nation's waters and the federal government's ability to address those concerns under existing law. Prior to 1972, the ability to control and redress water pollution in the nation's waters largely fell to the Corps under the Rivers and Harbors Act of 1899 (RHA). While much of that statute focused on restricting obstructions to navigation on the nation's major waterways, section 13 of the RHA made it unlawful to discharge refuse “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.”

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

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

The term “navigable water of the United States” is a term of art used to refer to waters subject to federal jurisdiction under the RHA.

See, e.g.,

33 CFR 329.1. The term is not synonymous with the phrase “waters of the United States” under the CWA,

see id.,

and the general term “navigable waters” has different meanings depending on the context of the statute in which it is used.

See, e.g., PPL Montana, LLC

Montana,

565 U.S. 576, 591-93 (2012).

These early statutory efforts, however, proved inadequate to address the decline in the quality of the nation's waters,

see City of Milwaukee

Illinois,

451 U.S. 304, 310 (1981), so Congress performed a “total restructuring” and “complete rewriting” of the existing statutory framework in 1972,

id.

at 317 (quoting legislative history of 1972 amendments). That restructuring resulted in the enactment of a comprehensive scheme (including voluntary as well as regulatory programs) designed to prevent, reduce, and eliminate pollution in the nation's waters generally, and to regulate the discharge of pollutants into navigable waters specifically.

See, e.g., S.D. Warren Co.

Maine Bd. of Envtl. Prot.,

547 U.S. 370, 385 (2006) (noting that “the Act does not stop at controlling the `addition of pollutants,' but deals with `pollution' generally”).

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

Id.

at 1251(a)(1)-(2).

Congress also established several key policies that direct the work of the agencies to effectuate those goals. For example, Congress declared as a national policy “that the discharge of toxic pollutants in toxic amounts be prohibited; . . . that Federal financial assistance be provided to construct publicly owned waste treatment works; . . . that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; . . . [and] that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution.” 33 U.S.C. 1251(a)(3)-(7).

Congress provided a major role for the States in implementing the CWA, balancing the preservation of the traditional power of States to regulate land and water resources within their borders with the need for a national water quality regulation. For example, the statute highlighted “the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” 33 U.S.C. 1251(b). Congress also declared as a national policy that States manage the major construction grant program and implement the core permitting programs authorized by the statute, among other responsibilities.

Id.

Congress added that “[e]xcept as expressly provided in this Act, nothing in this Act shall . . . be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.”

Id.

at 1370.

Congress

pledged the Federal government to provide technical support and financial aid to the States “in connection with the prevention, reduction, and elimination of pollution.”

Id.

at 1251(b).

33 U.S.C. 1370 also prohibits authorized States from adopting any limitations, prohibitions, or

standards that are less stringent than required by the CWA.

To carry out these policies, Congress broadly defined “pollution” to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water,” 33 U.S.C. 1362(19), in keeping with the objective of the Act “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.”

Id.

at 1251(a). Congress then crafted a non-regulatory statutory framework to provide technical and financial assistance to the States to prevent, reduce, and eliminate pollution in the nation's waters generally. For example, section 105 of the Act, “Grants for research and development,” authorized the EPA “to make grants to any State, municipality, or intermunicipal or interstate agency for the purpose of assisting in the development of any project which will demonstrate a new or improved method of preventing, reducing, and eliminating the discharge into

any waters

of pollutants from sewers which carry storm water or both storm water and pollutants.”

Id.

at 1255(a)(1) (emphasis added). Section 105 also authorized the EPA “to make grants to any State or States or interstate agency to demonstrate, in

river basins or portions thereof,

advanced treatment and environmental enhancement techniques to control pollution from all sources . . . including nonpoint sources, . . . [and] . . . to carry out the purposes of section 301 of this Act . . . for research and demonstration projects for prevention of pollution of

any waters

by industry including, but not limited to, the prevention, reduction, and elimination of the discharge of pollutants.”

Id.

at 1255(b)-(c) (emphasis added);

see also id.

at 1256(a) (authorizing the 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 the 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.” 33 U.S.C. 1258(a) (emphasis added);

see also id.

at 1268(a)(3)(C) (defining the “Great Lakes System” as “

all

the streams, rivers, lakes, and other bodies of water within the drainage basin of the Great Lakes”) (emphasis added). Similar broad pollution control programs were created for other major watersheds, including, for example, the Chesapeake Bay,

see id.

at 1267(a)(3), Long Island Sound,

see id.

at 1269(c)(2)(D), and Lake Champlain,

see id.

at 1270(g)(2). Some commenters noted that the Great Lakes, Long Island Sound, Chesapeake Bay, and Lake Champlain are waters of the United States to which regulatory programs apply, and that the purpose of the technical assistance and grants in the cited sections is to assist states and others in achieving the requirements of the Act. The agencies agree that these waters are waters of the United States, but the emphasized language in the cited provisions above makes clear that these provisions address all bodies of water in the watersheds of the Great Lakes, Long Island Sound, Chesapeake Bay, and Lake Champlain, regardless of the jurisdictional status of those waters.

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,” 33 U.S.C. 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,” defined to mean “any discernible, confined and discrete conveyance” such as a pipe or ditch.

Id.

at 1362(12), (14). The term “pollutant” means “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”

Id.

at 1362(6). Thus, it is unlawful to discharge pollutants into the “waters of the United States” from a point source unless the discharge is in compliance with certain enumerated sections of the CWA, including obtaining authorization pursuant to the section 402 National Pollutant Discharge Elimination System (NPDES) permit program or the section 404 dredged or fill material permit program.

See id.

at 1342, 1344. Congress therefore intended 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 groundwater 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).

Many commenters on this rulemaking agreed with this summary of the CWA, stating that it accurately characterizes the full scope of the Act and the thoughtful, holistic approach Congress enacted to address water pollution in this country. Many commenters stated that Congress developed both regulatory and non-regulatory approaches for addressing water pollution, whereby “navigable waters” are subject to federal regulatory requirements under the CWA but many other classes of the “nation's waters” are not. 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 mischaracterizations of the Act's provisions. Some commenters argued that the two terms are synonymous under the Act, and others stated that the non-regulatory provisions of the CWA were intended to complement the regulatory requirements applicable to waters of the United States, as opposed to addressing a separate category of waters. 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

44 FR 32854 (June 7, 1979).

On August 25, 1993, the agencies amended the regulatory definition of “waters of the United States” to categorically exclude “prior converted croplands.” 58 FR 45008, 45031 (Aug. 25, 1993) (“1993 Rule”) (codified at 33 CFR 328.3(a)(8) (1994)). The stated purpose of the amendment was to promote “consistency among various federal programs affecting wetlands,” in particular the Food Security Act of 1985 (FSA) programs implemented by the U.S. Department of Agriculture (USDA) and the CWA programs implemented by the agencies.

58 FR 45031. The agencies did not include a definition of “prior converted cropland” in the text of the Code of Federal Regulations but noted in the preamble to the 1993 Rule that the term was defined at that time by the USDA National Food Security Act Manual (NFSAM).

Id.

The agencies at that time also declined to establish regulatory text specifying when the prior converted cropland designation is no longer applicable. In the preamble to the 1993 Rule, the agencies stated that “[t]he Corps and EPA will use the [Natural Resources Conservation Service's] provisions on `abandonment,' thereby ensuring that PC cropland that is abandoned within the meaning of those provisions and which exhibit[s] wetlands characteristics will be considered wetlands subject to Section 404 regulation.”

Id.

at 45034. The agencies summarized these abandonment provisions by explaining that prior converted cropland which meets wetland criteria is considered to be abandoned unless: At least once in every five years the area has been used for the production of an agricultural commodity, or the area has been used and will continue to be used for the production of an agricultural commodity in a commonly used rotation with aquaculture, grasses, legumes, or pasture production.

Id.

Title XII of the Food Security Act of 1985, as amended, encourages participants in USDA programs to adopt land management measures by linking eligibility for USDA program benefits to farming practices on highly erodible land and wetlands (

i.e.,

the wetland conservation provisions). USDA policy guidance regarding implementation of the wetland conservation provisions is found in the current edition of the Natural Resource Conservation Service National Food Security Act Manual (NFSAM), including the procedures for how to delineate wetlands and make wetland determinations in accordance with Subpart C of 7 CFR part 12. Due to the unique statutory provisions of the FSA, USDA wetland determinations may identify certain areas as exempt under the 1985 Act but remain subject to the requirements of the CWA. To avoid potential confusion, USDA clearly informs program participants that USDA wetland determinations are for purposes of implementing the wetland conservation provisions only, and that participants should contact the Corps for clarification as to whether a particular activity will require a CWA section 404 permit.

Congress amended the FSA wetland conservation provisions in 1996 to state that USDA certifications of eligibility for program benefits (

e.g.,

determinations by the Natural Resources Conservation Service (NRCS) that particular areas constitute prior converted cropland) “shall remain valid and in effect as long as the area is devoted to an agricultural use or until such time as the person affected by the certification requests review of the certification by the Secretary [of Agriculture].” Public Law 104-127, 322(a)(4), 110 Stat. 888 (1996); 16 U.S.C. 3822(a)(4). Thus, for purposes of farm program eligibility, the 1996 amendments designate as prior converted cropland those areas that may not have qualified for the CWA exclusion under the abandonment principles from the 1993 preamble, so long as such areas remain in agricultural use. The agencies did not update their prior converted cropland regulations for purposes of the CWA following the 1996 amendments to wetland conservation provisions of the FSA, as those regulations neither defined prior converted cropland nor specified when a valid prior converted cropland determination might cease to be valid. However, in 2005, the Army and USDA issued a joint Memorandum to the Field (the 2005 Memorandum) in an effort to again align the CWA section 404 program with the FSA amendments.

The 2005 Memorandum provided that a “certified [prior converted] determination made by [USDA] remains valid as long as the area is devoted to an agricultural use. If the land changes to a non-agricultural use, the [prior converted] determination is no longer applicable and a new wetland determination is required for CWA purposes.” 2005 Memorandum at 4.

Natural Resources Conservation Service and U.S. Army Corps of Engineers. Memorandum to the Field on Guidance on Conducting Wetland Determinations for the Food Security Act of 1985 and section 404 of the Clean Water Act (Feb. 25, 2005),

available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2508.

The 2005 Memorandum did not clearly address the abandonment principle that the agencies had been implementing since the 1993 rulemaking. The change in use policy was also never promulgated as a rule and was declared unlawful by one district court because it effectively modified the 1993 preamble language without any rulemaking process.

New Hope Power Co.

U.S. Army Corps of Eng'rs,

746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010).

3. U.S. Supreme Court Decisions

From the earliest rulemaking efforts following adoption of the 1972 CWA amendments, to the agencies' most recent attempt to define “waters of the United States” in 2015, the sparse statutory definition has spurred substantial litigation testing the meaning of the phrase. Hundreds of cases and dozens of courts have attempted to discern the intent of Congress when crafting the phrase.

See, e.g., Rapanos

United States,

547 U.S. 715, 739 (2006) (Scalia, J., plurality) (briefly summarizing case history). The federal courts have established different analytical frameworks to interpret the phrase, and the applicable test may differ from State to State.

See, e.g.,

Memorandum from Dick Pedersen, President of the Environmental Council of the States (ECOS) of September 11, 2014, Concerning Waters of the United States under the Act at 2-23 (2014) (hereinafter, the “ECOS Memorandum”),

available at http://acoel.org/file.axd?file=2014%2f9%2fWaters+of+the+U+S+Final+9_11_14.pdf

(summarizing case history following

Rapanos

As part of this complex litigation history, three key U.S. Supreme Court decisions have interpreted the term

“waters of the United States” and its implementing regulations and serve as guideposts for the agencies' interpretation of the phrase “waters of the United States.” In 1985, the Supreme Court deferred to the Corps' assertion of jurisdiction over wetlands actually abutting a traditional navigable water in Michigan, stating that adjacent wetlands may be regulated as waters of the United States because they are “inseparably bound up” with navigable waters and “in the majority of cases” have “significant effects on water quality and the aquatic ecosystem” in those waters.

United States

Riverside Bayview Homes,

474 U.S. 121, 131-35 & n.9 (1985). The Court recognized that “[i]n determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins . . . . Where on this continuum to find the limit of `waters' is far from obvious.”

Id.

at 132. The Court acknowledged the “inherent difficulties of defining precise bounds to regulable waters,” and deferred to the agencies' interpretation that the close ecological relationship between adjacent wetlands and traditional navigable waters provided a legal justification for treating wetlands as waters.

Id.

at 134. The Court also “conclude[d] that a definition of `waters of the United States' encompassing all wetlands adjacent to other bodies of water over which the Corps has jurisdiction is a permissible interpretation of the Act.”

Id.

at 135.

The Supreme Court again addressed the definition of “waters of the United States” in

Solid Waste Agency of Northern Cook County

U.S. Army Corps of Engineers,

531 U.S. 159 (2001) (

SWANCC

). In

SWANCC,

the Court rejected a claim of federal jurisdiction over nonnavigable, isolated, intrastate ponds that lack a sufficient connection to traditional navigable waters, noting that the term “navigable” must be given meaning within the context and application of the statute.

Id.

The Court held that interpreting the statute to extend to nonnavigable, isolated, intrastate ponds that lack a sufficient connection to traditional navigable waters would invoke the outer limits of Congress' power under the Commerce Clause.

Id.

at 172. Where an administrative interpretation of a statute presses against the outer limits of Congress' constitutional authority, the Court explained, it expects a clear statement from Congress that it intended that result, and even more so when the broad interpretation authorizes federal encroachment upon a traditional State power.

Id.

The CWA contains no such clear statement.

Id.

at 174.

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

SWANCC.

The guidance indicated that

SWANCC

focused on nonnavigable, isolated, intrastate waters, and called for field staff to coordinate with their respective Corps or EPA Headquarters on jurisdictional determinations that asserted jurisdiction over such waters. The agencies at that time focused their interpretation of

SWANCC

to its facts, and applied the decision narrowly as restricting the exercise of federal jurisdiction solely based on the Migratory Bird Rule.

See

U.S. EPA and U.S. Army Corps of Engineers. Legal Memoranda Regarding

Solid Waste Agency of Northern Cook County (SWANCC)

United States

(Jan. 15, 2003),

available at https://www.epa.gov/sites/production/files/2016-04/documents/swancc_guidance_jan_03.pdf.

The Court most recently interpreted the term “waters of the United States” in

Rapanos

United States,

547 U.S. 715 (2006).

Rapanos

involved two consolidated cases in which the CWA had been applied to wetlands located near man-made ditches that were ultimately connected to traditional navigable waters. All members of the Court agreed that the term “waters of the United States” encompasses some waters that are not navigable in the traditional sense.

A four-Justice plurality interpreted the term “waters of the United States” to “include[ ] only those relatively permanent, standing or continuously flowing bodies of water `forming geographic features' that are described in ordinary parlance as `streams[,] . . . oceans, rivers, [and] lakes,' ”

Rapanos,

547 U.S. at 739 (Scalia, J., plurality) (quoting

Webster's New International Dictionary

2882 (2d ed. 1954)), and “wetlands with a continuous surface connection” to a “relatively permanent body of water connected to traditional interstate navigable waters.”

Id.

at 742. The plurality explained that “[w]etlands with only an intermittent, physically remote hydrologic connection to `waters of the United States' do not implicate the boundary-drawing problem of

Riverside Bayview,

” and thus do not have the “necessary connection” to covered waters that triggers CWA jurisdiction.

Id.

at 742. The plurality also noted that its reference to “relatively permanent” waters did “not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or “

seasonal

rivers, which contain continuous flow during some months of the year but no flow during dry months.”

Id.

at 732 n.5 (emphasis in original).

In a concurring opinion, Justice Kennedy took a different approach, concluding that “to constitute `navigable waters' under the Act, a water or wetland must possess a `significant nexus' to waters that are or were navigable in fact or that could reasonably be so made.”

Rapanos,

547 U.S. at 759 (Kennedy, J., concurring in the judgment) (citing

SWANCC,

531 U.S. at 167, 172). He stated that adjacent wetlands possess the requisite significant nexus if the wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable.' ”

Id.

at 780.

Following

Rapanos,

on June 7, 2007, the agencies issued joint guidance entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in

Rapanos

United States

and

Carabell

United States

” to address the waters at issue in that decision. The guidance did not change the codified definition of “waters of the United States.” The guidance indicated that the agencies would assert jurisdiction over traditional navigable waters and their adjacent wetlands, relatively permanent nonnavigable tributaries of traditional navigable waters and wetlands that abut them, nonnavigable tributaries that are not relatively permanent if they have a significant nexus with a traditional navigable water, and wetlands adjacent to nonnavigable tributaries that are not relatively permanent if they have a significant nexus with a traditional navigable water. The guidance was reissued with minor changes on December 2, 2008 (hereinafter, the “

Rapanos

Guidance”).

After issuance of the

Rapanos

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

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.

Since

Rapanos,

litigation has continued to confuse the regulatory landscape.

See, e.g.,

ECOS Memorandum at 2-23. The Supreme

Court also has twice weighed in on topics related to the agencies' implementation of their authorities under the CWA to help clarify federal authority in this area. In each case, members of the Court noted the longstanding confusion regarding the scope of federal jurisdiction under the CWA and the importance of providing clear guidance to the regulated community. In 2012, for example, the Supreme Court unanimously rejected the EPA's longstanding position that compliance orders issued under the CWA to force property owners to restore wetlands are not judicially reviewable as final agency actions.

See Sackett

EPA,

566 U.S. 120, 131 (2012). In a concurring opinion, Justice Alito referred to the jurisdictional reach of the CWA as “notoriously unclear” and noted that the Court's decision provided only “a modest measure of relief.”

Id.

at 133 (Alito, J., concurring) (“For 40 years, Congress has done nothing to resolve this critical ambiguity, and the EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase [`waters of the United States']”).

In 2016, the Supreme Court in a unanimous opinion rejected the Corps' longstanding position that jurisdictional determinations issued by the Corps were not judicially reviewable as final agency actions. Writing for the Court, the Chief Justice recognized that it “is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does.”

U.S. Army Corps of Eng'rs

Hawkes Co.,

136 S. Ct. 1807, 1812 (2016). Given those important consequences, the Court held that jurisdictional determinations are subject to immediate judicial review when made. Justice Kennedy authored a concurring opinion, “not to qualify what the Court says but to point out that, based on the Government's representations in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern.”

Id.

at 1816-17 (referring to the “ominous reach” of the Act). On remand, the lower court found that the Corps' assertion of jurisdiction over a peat farm more than 90 miles from the nearest traditional navigable water based on the “significant nexus” test described in the agencies'

Rapanos

Guidance was “arbitrary and capricious.”

Hawkes Co.

U.S. Army Corps of Eng'rs,

No. 13-107 ADM/TNL, 2017 U.S. Dist. LEXIS 10680 at *33 (D. Minn. Jan. 24, 2017).

4. The 2015 Rule

On June 29, 2015, the agencies issued a final rule (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's 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 relied on a scientific literature review—the Connectivity Report

—to support exerting federal jurisdiction over certain waters.

See

80 FR 37065 (“[T]he agencies interpret the scope of `waters of the United States' protected under the CWA based on the information and conclusions in the [Connectivity] Report . . . .”). Although the agencies acknowledged that science cannot dictate where to draw the line of federal jurisdiction,

see, e.g., id.

at 37060, notwithstanding that qualifier, the agencies relied on the Connectivity Report extensively in establishing the 2015 Rule's definition of “waters of the United States.”

See id.

at 37057 (“The [Connectivity] Report provides much of the technical basis for [the] rule.”).

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).

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

80 FR 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 that is characterized by the presence of the “physical indicators” of a bed and banks and an ordinary high water mark. According to the 2015 Rule's preamble, “[t]hese 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

80 FR 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 changed the meaning 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. 80 FR 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, as discussed in the 2019 Rule and below, the agencies concluded that they 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. 80 FR 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.

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.

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. 80 FR 37106. A single function performed by a water, alone or together with similarly situated waters in the region, that contributed significantly to the chemical, physical, or biological integrity of the nearest category (1) through (3) “jurisdictional by rule” water was sufficient to establish a significant nexus.

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 meant 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. 80 FR 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.

Following the 2015 Rule's publication, 31 States

and numerous 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 Districts 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. Courts 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 1051, 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 in part 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).

Following the Supreme Court's jurisdictional ruling, district court litigation regarding the 2015 Rule 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 subsequently 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 injunction against the 2015 Rule.

Id.

at *36.

As of the date this final rule was signed, the applicability and scope of the North Dakota district court's preliminary injunction in New Mexico is unclear.

See supra

note 18.

The Southern District of Georgia later denied as moot plaintiffs' motions for reconsideration asking the court to vacate, rather than remand, the 2015 Rule. Order,

Georgia

Wheeler,

No. 2:15-cv-079 (S.D. Ga. Jan. 3, 2020).

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,

389 F. Supp. 3d 497 (S.D. Tex. 2019).

The Southern District of Texas later denied plaintiffs' motions for reconsideration urging the court to vacate, rather than remand, the 2015 Rule. Order,

Texas

EPA,

No. 3:15-cv-00162 (S.D. Tex. Nov. 6, 2019).

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, the 2015 Rule was enjoined in more than half of the States.

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, unsuccessfully sought a motion for a preliminary injunction against the 2015 Rule and later stipulated to a voluntary dismissal of the case.

See

Opinion & Order,

Oklahoma

EPA,

No. 4:15-cv-00381 (N.D. Okla. May 29, 2019); Stipulation of Voluntary Dismissal,

Oklahoma

EPA,

No. 4:15-cv-00381 (N.D. Okla. Jan. 7, 2019). Following the effective date of the 2019 Rule, an additional motion for a preliminary injunction against the 2015 Rule was denied as moot in the U.S. District Court for the Western District of Washington. Order,

Wash. Cattlemen's Ass'n

EPA,

No. 19-00569 (W.D. Wash. Dec. 30, 2019).

C. Executive Order 13778 and the “Step One” 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 that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The Executive Order directs the EPA and the Army to review the 2015 Rule for consistency with the policy outlined in Section 1 of the Order and to issue a proposed rule rescinding or revising the 2015 Rule as appropriate and consistent with law (Section 2). The Executive Order also directs the agencies to “consider interpreting the term `navigable waters' . . . in a manner consistent with” Justice Scalia's plurality opinion in

Rapanos

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 “Definition of `Waters of the United States'—Recodification of Pre-Existing Rules” notice of proposed rulemaking (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 refer to this as the “Step One” rule. 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 (SNPRM) to clarify, supplement, and seek additional comment on the proposed repeal and recodification. 83 FR 32227. The agencies invited comment on the SNPRM over a 30-day period.

On October 22, 2019, the agencies published a final rule repealing the 2015 Rule and recodifying the pre-existing regulations as an interim matter until this final rule becomes effective. 84 FR 56626. In developing the final Step One rule (referred to as the “2019 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. In the NPRM and SNPRM the agencies sought comment on all aspects of the NPRM, the economic analysis for the NPRM, and the SNPRM, including the repeal of the 2015 Rule, the recodification of the prior regulations, the considerations underlying the proposal and agencies' reasons for the proposal, and the agencies' proposed conclusions that the 2015 Rule exceeded the agencies' authority under the CWA.

The agencies finalized the 2019 Rule, which became effective December 23, 2019, and repealed the 2015 Rule for four primary reasons. First, the agencies concluded that the 2015 Rule did not implement the legal limits on the scope of the agencies' authority under the 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 concluded 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 repealed 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 concluded that the 2015 Rule's distance-based limitations suffered from certain procedural errors and a lack of adequate record support. The agencies found that these reasons, collectively and individually, warranted repealing the 2015 Rule.

At this time, the regulations defining the scope of federal CWA jurisdiction are those portions of the CFR as they existed before the amendments promulgated in the 2015 Rule. The agencies concluded that it was appropriate as an interim matter to restore the pre-existing regulations to provide regulatory certainty as the agencies considered the proposed revised definition of “waters of the United States” and because, as implemented, those prior regulations adhere more closely than the 2015 Rule to the jurisdictional limits reflected in the statute and case law. As anticipated in the 2019 Rule, this final rule replaces the recodified pre-2015 regulations, upon its effective date.

As of the time of signature of this final rule, challenges to the agencies' 2019 Rule are pending in six district courts, wherein both environmental and industry groups have either filed new complaints or sought to supplement existing complaints to challenge the rule in whole or in part.

See New York

Wheeler,

No. 19-11673 (S.D.N.Y., complaint filed Dec. 20, 2019);

Wash. Cattlemen's Ass'n

EPA,

No. 2:19-cv-00569 (W.D. Wash., supplemental amended complaint filed Dec. 20, 2019);

Murray

Wheeler,

No. 1:19-cv-01498 (N.D.N.Y., complaint filed Dec. 4, 2019);

S.C. Coastal Conservation League

Wheeler,

No. 2:19-cv-3006 (D.S.C., complaint filed Oct. 23, 2019);

N.M. Cattle Growers' Ass'n

EPA,

No. 1:19-cv-988 (D.N.M., complaint filed Oct. 22, 2019);

Pierce

EPA,

No. 0:19-cv-2193 (D. Minn., supplemental complaint filed Oct. 22, 2019).

D. Summary of Stakeholder Outreach and the “Step Two” Rulemaking

Following the March 6, 2017

Federal Register

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

See www.epa.gov/wotus-rule.

On April 19, 2017, the agencies held an initial Federalism consultation meeting with State and local government officials as well as national organizations representing such officials. The agencies also convened several additional meetings with intergovernmental associations and their members to solicit input on the future rule. The EPA, with participation from the Army, initiated Tribal consultation on April 20, 2017, under the

EPA Policy on Consultation and Coordination with Indian Tribes. See

Section VI for further details on the agencies' consultations. The agencies considered comments received from federalism and tribal consultations as they developed this final rule.

In addition to engaging State, tribal, and local officials through federalism and tribal consultations, the agencies sought feedback on the definition of “waters of the United States” from a broad audience of stakeholders, including small entities (small businesses, small organizations, and small government jurisdictions), through a series of outreach webinars that were held September 9, 2017, through November 21, 2017, and through an in-person meeting for small entities on October 23, 2017. A summary of these public listening sessions is available in the docket (Docket Id. No. EPA-HQ-OW-2018-0149-0091) for this rule. The webinars were tailored to specific sectors, including agriculture (row crop, livestock, silviculture); conservation (hunters and anglers); small entities (small businesses, small organizations, small government jurisdictions); construction and transportation; environment and public advocacy (including health and environmental justice); mining; energy and chemical industry; scientific organizations and academia; stormwater, wastewater management, and drinking water agencies; and the general public.

At the pre-proposal webinars and meetings with stakeholders, the agencies provided a presentation and sought input on specific issues, such as potential approaches to defining the phrases “relatively permanent” waters and “continuous surface connections” as articulated by the plurality opinion in

Rapanos,

as well as other considerations addressing specific geomorphological features, exclusions and exemptions, costs and benefits, and aquatic resource data that the agencies might consider in the technical analyses for a future rule. As part of this outreach effort, the agencies established a public recommendations docket (Docket ID No. EPA-HQ-OW-2017-0480) that opened

August 28, 2017, and closed November 28, 2017. Participant comments and letters submitted represent a diverse range of interests, positions, suggestions, and recommendations provided to the agencies. The agencies received over 6,300 recommendations (available on

Regulations.gov

https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0480

) that were considered as the agencies developed the proposed revised definition of “waters of the United States.” The agencies also considered recommendations as to how the agencies should define “waters of the United States” that were submitted in public comments on the agencies' proposed “Step One” rule (82 FR 34899, July 27, 2017) and the July 2018 SNPRM (83 FR 32227, July 12, 2018).

The agencies continued their pre-proposal engagement with States and Tribes via additional webinars and in-person meetings. On March 8 and 9, 2018, the agencies held an in-person State Co-Regulators Workshop with representatives from nine States (Arizona, Arkansas, Florida, Iowa, Maryland, Minnesota, Oregon, Pennsylvania, and Wyoming) and convened a subsequent in-person meeting on March 22, 2018, with representatives from all States at the spring meeting of the Environmental Council of the States. The agencies also held an in-person Tribal Co-Regulators Workshop on March 6 and 7, 2018, with representatives from 20 tribes. These meetings were intended to seek technical input as the agencies developed the proposed rule. The agencies also sought pre-proposal input from Tribes through national and regional tribal meetings, including through listening sessions at the Tribal Land and Environment Forum (August 16, 2017 and August 15, 2018) and the National Congress of American Indians Annual Convention (October 24, 2018).

On December 12, 2018, the agencies signed the proposed rule to revise the definition of “waters of the United States,” as the second step of the comprehensive two-step process consistent with Executive Order 13778. The proposal was published on February 14, 2019. 84 FR 4154. The agencies proposed to interpret the term “waters of the United States” to encompass: Traditional navigable waters, including the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters. The 60-day public comment period for the proposed revised definition of “waters of the United States” (“Step Two” Rule) closed on April 15, 2019.

The pre-publication of the proposed rule was published on EPA's website on December 12, 2018, approximately 60 days prior to its publication in the

Federal Register

and the date the formal public comment period began.

The agencies conducted a variety of stakeholder outreach on the proposed rule upon its publication in the

Federal Register

. On February 14, 2019, the agencies held a public webcast to present key elements of the proposed rule (

see https://www.youtube.com/watch?v=ZZ6kFJasDhg&feature=youtu.be

), and held a public hearing in Kansas City, Kansas, on February 27 and 28, 2019, to hear feedback from individuals from regulated industry sectors, environmental and conservation organizations, State agencies, tribal governments, and private citizens. The agencies also continued engagement with States and Tribes through a series of in-person meetings with State and tribal representatives in Kansas City, Kansas; Atlanta, Georgia; Albuquerque, New Mexico; and Seattle, Washington during the public comment period for the proposed rule. During these meetings, the agencies provided an overview of the proposed rule, responded to clarifying questions from participants, discussed implementation considerations, and heard feedback on the agencies' interest in developing geospatial datasets of jurisdictional waters. A transcript of the public hearing and related materials and summaries of the State and tribal meetings can be found in the docket for the final rule. At the request of individual Tribes, the agencies also continued to hold staff-level and leader-to-leader meetings with individual Tribes.

In developing this final rule, the agencies reviewed and considered approximately 620,000 comments received on the proposed rule from a broad spectrum of interested parties. Commenters provided a wide range of feedback on the various aspects of the proposal, including the legal basis for the proposed rule, the agencies' proposed treatment of categories of jurisdictional waters and those features that would not be jurisdictional, the economic analysis and resource and programmatic assessment for the proposed rule, and the agencies' considerations for developing geospatial datasets of jurisdictional waters in partnership with other federal agencies, States, and Tribes. The agencies discuss comments received and their responses in the applicable sections of this final rule. A complete response to comments document is available in the docket for this final rule at Docket ID No. EPA-HQ-OW-2018-0149.

The agencies also engaged with the EPA's Science Advisory Board (SAB) during the development of the rule on several occasions. The agencies met with the SAB prior to the proposed rule and following publication of the proposed rule to explain the basis for the rule and to address the SAB's questions and initial observations. The SAB issued a draft commentary on the proposed rule on December 31, 2019, and held a public meeting on the matter on January 17, 2020. The SAB's draft commentary asserted that the proposed rule did not fully incorporate the Connectivity Report and offers no comparable body of peer reviewed evidence to support this departure. As the agencies made clear in the proposed rule preamble and explain in greater detail in this notice, the agencies used the Connectivity Report to inform certain aspects of the definition of “waters of the United States,” but recognize that science cannot dictate where to draw the line between Federal and State waters, as this is a legal question that must be answered based on the overall framework and construct of the CWA. The SAB's draft also addresses the absence of “ground water protection;” the exclusion of “irrigation canals” from regulatory jurisdiction; the exclusion of “adjacent wetlands that do not abut or have a direct hydrologic surface connection to otherwise jurisdictional waters;” and the absence of “long term clarity” as a result of the asserted lack of scientific basis for the proposed rule.

The relevant comments raised by the SAB were also raised by public commenters throughout the rulemaking process, and as a result, have been addressed by the agencies in the final rule, supporting documents, and throughout this notice. In brief, however, the agencies note that the final rule is consistent with the agencies' longstanding position that “waters of the United States” do not include groundwater; that the agencies do not use the term “irrigation canals” in the final rule; that “irrigation ditches” constructed in uplands and “irrigation return flows” generally have been not been subject to CWA regulatory requirements; and that the agencies have expanded jurisdiction over certain “adjacent wetlands” compared to the proposal to better incorporate common principles from the

Rapanos

plurality and concurring opinions, that the final rule strikes a better balance between the objective and policy in CWA sections 101(a) and 101(b), respectively; and that

the final rule is consistent with the text, structure, legislative history, and applicable Supreme Court guidance. A memorandum summarizing the agencies' interactions with the SAB and the SAB's draft commentary are available in the docket for this final rule.

E. Overview of Legal Construct for the Final Rule

As the preceding summary of the statutory and regulatory history makes clear, the central term delineating the federal geographic scope of authority under the CWA—“waters of the United States”—has been the subject of debate and litigation for many years. The agencies are promulgating a regulation to define “waters of the United States” adhering to Constitutional and statutory limitations, the policies and objective of the CWA, and case law. The revised definition will allow the regulatory agencies and the regulated community to protect navigable waters from pollution while providing an implementable approach to determining regulatory jurisdiction under the CWA. This subsection summarizes the legal principles that inform the agencies' final rule, and the following section (Section III) describes how the agencies are applying those legal principles to support the final revised definition of “waters of the United States.”

1. Statutory Framework

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

The agencies have developed regulatory and non-regulatory programs designed to ensure that the full statute is implemented as Congress intended.

See, e.g., Hibbs

Winn,

542 U.S. 88, 101 (2004) (“A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.”). This includes pursuing the overall “objective” of the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” 33 U.S.C. 1251(a), while implementing the specific “policy” directives from Congress to, among other things, “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.”

Id.

at 1251(b);

see also id.

at 726 (“We held that `nonnavigable, isolated, intrastate waters—which, unlike the wetlands at issue in

Riverside Bayview,

did not `actually abu[t] on a navigable waterway,'—were not included as `waters of the United States.' ”) (internal citations omitted). It interpreted the reasoning of

SWANCC

to exclude isolated waters. The plurality also found “no support for the inclusion of physically unconnected wetlands as covered `waters' ” based on

Riverside Bayview'

s treatment of the Corps' definition of adjacent.

Id.

at 747;

see also id.

at 746 (“[T]he Corps' definition of `adjacent' . . . has been extended beyond reason . . . .”).

Although ultimately concurring in the judgment, Justice Kennedy focused on the “significant nexus” between adjacent wetlands and traditional navigable waters as the basis for determining whether a wetland is a water subject to CWA jurisdiction. He quotes the

SWANCC

decision, which explains that “[i]t was the significant nexus between the wetlands and `navigable waters' that informed our reading of the [Act] in

Riverside Bayview Homes.” SWANCC,

531 U.S. at 167. But Justice Kennedy also interpreted the reasoning of

SWANCC

to exclude certain isolated waters. His opinion notes that: “Because such a nexus [in that case] was lacking with respect to isolated ponds, the Court held that the plain text of the statute did not permit the Corps' action.”

Rapanos,

547 U.S. at 767 (Kennedy, J., concurring in the judgment) (internal citation omitted). It further states that the wetlands at issue in

Riverside Bayview

were “adjacent to [a] navigable-in-fact waterway[ ]” while the “ponds and mudflats” considered in

SWANCC

“were isolated in the sense of being unconnected to other waters covered by the Act.”

Id.

at 765-66. “Taken together, these cases establish that in some instances, as exemplified by

Riverside Bayview,

the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a `navigable water' under the Act. In other instances, as exemplified by

SWANCC,

there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking.”

Id.

at 767.

According to Justice Kennedy, whereas the isolated ponds and mudflats in

SWANCC

lacked a “significant nexus” to navigable waters, it is the “conclusive standard for jurisdiction” based on “a reasonable inference of ecological interconnection” between adjacent wetlands and navigable-in-fact waters that allows for their categorical inclusion as “waters of the United States.”

Rapanos,

547 U.S. 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:

[T]he 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.

Rapanos,

547 U.S. 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. Justice Kennedy noted that under the Corps' interpretation at issue in the case, which did not require adjacent wetlands to possess a significant nexus with navigable waters, 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 to the Corps' interpretation of the statute does not extend so far.”

Id.

at 778-79.

Since the

Rapanos

decision, the Federal government has adopted a broad interpretation of Justice Kennedy's concurring opinion, arguing that his “significant nexus” test provides an independent basis for establishing jurisdiction over certain waters of the United States. And rather than limiting the application of Justice Kennedy's opinion to the specific facts and wetlands at issue in that case, similar to their treatment of the

SWANCC

decision, the agencies previously have applied Justice Kennedy's reasoning more broadly to include, for example, the application of the significant nexus test to determining jurisdiction over tributaries, not just wetlands. Many courts have deferred to this position, and some courts rely exclusively on Justice Kennedy's significant nexus test while other courts have held that jurisdiction can be established under either the plurality or concurring opinions. The agencies' final rule, as explained in Section III, is informed in several key aspects by Justice Kennedy's opinion, but the agencies now appropriately recognize some of the limiting principles articulated within his concurring opinion. The agencies also recognize that the reasoning in

SWANCC

contains more instruction than the agencies have historically acknowledged.

In summary, although the standards that the

Rapanos

plurality and Justice Kennedy established are not identical, and each standard excludes some waters and wetlands that the other standard does not, the standards contain substantial similarities. The plurality and Justice Kennedy agreed 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 agreed that the connection between the wetland and the tributary must be close. The plurality referred 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 recognized 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

As some commenters noted, the definition of “tributary” was not addressed in either

Riverside Bayview

SWANCC,

nor were tributaries the waters at issue in

Rapanos.

Yet 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 provide some guidance as to the scope of CWA coverage of tributaries to waters more traditionally understood as navigable.

The plurality and Justice Kennedy both recognized the jurisdictional scope of the CWA is not restricted to traditional navigable waters.

Rapanos,

547 U.S. at 731 (Scalia, J., plurality) (“[T]he Act's term `navigable waters' includes something more than traditional navigable waters.”);

id.

at 767 (Kennedy, J., concurring in the judgment) (“Congress intended to regulate at least some waters that are not navigable in the traditional sense.”). Both also agreed that federal authority under the Act has limits.

See id.

at 731-32 (Scalia, J., plurality) (“ `[T]he waters of the United States' . . . cannot bear the expansive meaning that the Corps would give it.”);

id.

at 778-79 (Kennedy, J., concurring in the judgment) (“The deference owed to the Corps' interpretation of the statute does not extend” to “wetlands” which “lie alongside a ditch or drain, however remote or insubstantial, that eventually may flow into traditional navigable waters.”).

With respect to tributaries specifically, both the plurality and Justice Kennedy focused 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.”

Rapanos,

547 U.S. at 732-33, 739 (Scalia, J., plurality). The plurality would have also required 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 also have excluded 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 likely would exclude some streams considered jurisdictional under the plurality's opinion, but he may include some that would be excluded by the plurality.

See id.

at 769 (Kennedy, J., concurring in the judgment) (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 have included some seasonal or intermittent streams as waters of the United States.

Rapanos,

547 U.S. at 732 n.5, 733 (Scalia, J., plurality);

id.

at 769 (Kennedy, J., concurring in the judgment). 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.

See, e.g., id.

(Scalia, J., plurality) (“[W]e have no occasion in this litigation to decide exactly when the drying-up of a stream bed is continuous and frequent enough to disqualify the channel as a `wate[r] of the United States.' It suffices for present purposes that channels containing permanent flow are plainly within the definition, and that . . . streams whose flow is `[c]oming and going at intervals . . . [b]roken, fitful,' . . . or `existing only, or no longer than, a day; diurnal . . . short-lived,' . . . are not.”) (internal citations omitted). The plurality provided, however, that “navigable waters” must have “at a bare minimum, the ordinary presence of water,”

id.

at 734, and Justice Kennedy noted 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 (Kennedy, J., concurring in the judgment).

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.

See Rapanos,

547 U.S. at 738 (Scalia, J., 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 waters deemed tributaries under the Corps' then-existing 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.”

Id.

at 781 (Kennedy, J., concurring in the judgment);

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.

”).

Beyond tributaries, the plurality and Justice Kennedy also offered some insight regarding CWA jurisdiction with respect to other relatively permanent bodies of water, such as lakes and ponds, and their connection to traditional navigable waters. The plurality describes a “water of the United States” as “a relatively permanent body of water

connected to

traditional interstate navigable waters[.]”

Id.

at 742 (emphasis added). The plurality did not specify, however, what would constitute a sufficient connection between such relatively permanent waters and downstream traditional navigable waters. When considered in the context of Justice Scalia's entire opinion, the plurality signaled concern that certain types of connections are likely insufficient to maintain jurisdiction; for instance, by characterizing an “expansive definition of `tributaries' ” as one that includes “dry arroyos connected to remote waters through the flow of groundwater over `centuries,' ”

id.

at 725-26 (internal citations omitted), and describing potential federal control over “irrigation ditches and drains that intermittently connect to covered waters” as “sweeping.”

Id.

at 726-27. In addition to “tributaries,” the plurality noted that the Corps and lower courts have “define[d] `adjacent' wetlands broadly” to include wetlands “hydrologically connected” “to covered waters” “through directional sheet flow during storm events,” and wetlands “connected to the navigable water by flooding, on average, once every 100 years[.]”

Rapanos,

547 U.S. at 728 (internal quotations and citations omitted). Justice Kennedy noted that “in some instances, as exemplified by

Riverside Bayview,

the connection between a nonnavigable water . . . and a navigable water may be so close, or potentially so close, that the Corps may deem the water . . . a `navigable water' under the Act. In other instances, as exemplified by

SWANCC,

there may be little or no connection.”

Id.

at. 767 (Kennedy, J., concurring in the judgment). Justice Kennedy also stated that “mere hydrologic connection should not suffice in all cases; the connection may be too insubstantial for the hydrologic linkage to establish the required nexus with navigable waters as traditionally understood.”

Id.

at 784-85.

Some commenters agreed that aspects of the plurality's and Justice Kennedy's opinions share similarities regarding the limits of federal jurisdiction under the CWA, while 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, as discussed above, 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 sections, a few important principles emerge that can serve as the basis for the agencies' final regulatory definition. 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 and relatively permanent bodies of water connected to those traditional navigable waters, but the agencies 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 covered waters beyond those traditionally understood as navigable, if the wetlands are closely connected to those waters, such as in the transitional zone between open waters and dry land. The Supreme

Court's opinion in

SWANCC,

however, calls into question the agencies' authority to regulate nonnavigable, isolated, intrastate waters that lack a sufficient connection to traditional navigable waters. The decision 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 burdens while still effectuating the purposes of the Act.

In developing an appropriate regulatory framework for the final rule, the agencies recognize and respect the primary responsibilities and rights of States to regulate their land and water resources as reflected in CWA section 101(b). 33 U.S.C. 1251(b),

see also id.

at 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.”

SWANCC,

531 U.S. at 174;

accord Rapanos,

547 U.S. at 738 (Scalia, J., plurality). While CWA section 101(b) does not specifically identify Tribes, the policy of preserving States' sovereign authority over land and water use is equally relevant to ensuring the primary authority of Tribes to address pollution and plan the development and use of tribal land and water resources. This final rule recognizes and preserves the autonomy of Tribes just as it recognizes and preserves the authority of States.

Ensuring that States and Tribes retain authority over their land and water resources, reflecting the policy in section 101(b), 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., Rapanos,

547 U.S. at 755-56 (Scalia, J., plurality) (“[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).”) (emphasis in original). That includes the dozens of non-regulatory grant, research, nonpoint source, groundwater, and watershed planning programs that were intended by Congress to assist the States in controlling pollution in the nation's waters, not just its navigable waters. These non-regulatory sections of the CWA reveal Congress' intent to restore and maintain the integrity of the nation's waters using federal assistance to support State, tribal, and local partnerships to control pollution of the nation's waters in addition to a federal regulatory prohibition on the discharge of pollutants to its navigable waters.

See e.g., id.

at 745 (“It is not clear that the state and local conservation efforts that the CWA explicitly calls for,

see

33 U.S.C. 1251(b), are in any way inadequate for the goal of preservation.”). Regulating

all

of the nation's waters using the Act's federal regulatory mechanisms would call into question the need for the more holistic planning provisions of the Act and the State partnerships they entail. Therefore, by recognizing the distinctions between the nation's waters and its navigable waters and between the overall objective and goals of the CWA and the specific policy directives from Congress, the agencies can fully implement the entire structure of the Act while respecting the specific word choices of Congress.

See, e.g., Bailey,

516 U.S. at 146;

Nat'l Fed'n of Indep. Bus.,

567 U.S. at 544.

Some commenters agreed with the interpretation that the CWA establishes a comprehensive scheme to achieve the Act's objective through a combination of non-regulatory programs and grants for all of the nation's waters, and a more targeted federal permitting program for discharges of pollutants to the subset of the nation's waters identified as waters of the United States. Other commenters expressed concern that the proposed rule would not further the CWA's objective to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” 33 U.S.C. 1251(a), because fewer waters would be jurisdictional under the proposal than were regulated under the 2015 Rule or the pre-2015 regulatory regime. The agencies disagree with these commenters. The agencies are mindful that “no legislation pursues its purposes at all costs,”

Rodriguez

United States,

480 U.S. 522, 525-26 (1987), including the CWA. The CWA's objective must be balanced with the policy of Congress to preserve the primary State responsibility for ordinary land-use decisions. The purpose of this rulemaking is to establish the boundary between regulated “waters of the United States” and the waters subject solely to State and tribal authority. The CWA's longstanding regulatory permitting programs, coupled with the controls that States, Tribes, and local entities choose to exercise over their land and water resources, will continue to address the discharge of pollutants into waters of the United States, and the CWA's non-regulatory measures will continue to address pollution of the nation's waters generally. These programs and measures collectively pursue the objective of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters.

Some commenters agreed with the statements in the preamble to the proposed rule that the CWA preserves a significant and primary role for the States in implementing various aspects of the CWA, reflecting an intent to balance the States' traditional powers to regulate land and water resources within their borders with the need for national water quality regulation. Other commenters stated that section 101(b) is primarily concerned with State implementation of water pollution control measures, not the jurisdictional reach of the Act, and that a lawful and protective definition of jurisdictional waters under the Act does not disturb or undermine the States' exercise of primary authority. Rather, they expressed concern that the rule would harm the States in exercising their authority as envisioned by section 101(b) by, for example, increasing the financial and administrative burden on States to protect their waters.

The agencies interpret the policy of Congress, set forth in section 101(b), as relevant to all aspects of the implementation of the CWA, both implementing federally-established standards as well as the scope of waters subject to such standards and regulatory programs. When promulgating the 2015 Rule, the agencies endorsed a narrower view of Congress' policy in section 101(b) as limited to implementation of the Act's regulatory programs by States and State authority to impose conditions on “waters of the United States” that are more stringent than the conditions that the agencies impose under the Act. In the final Step One Rule, the agencies concluded that such a view was improperly narrow and failed to place sufficient weight on the policy of Congress in section 101(b).

See

84 FR 56654. Having considered the public comments submitted in this rulemaking, the agencies remain of the view that nothing in section 101(b) suggests that it is limited to implementing federal regulatory programs or imposing conditions on

“waters of the United States” that are more stringent than the conditions that the agencies impose under the Act. Indeed, the overarching policy statement of 101(b) “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use . . . of land and water resources,” was included in the Act in 1972; the additional 101(b) policy statement “that the States . . . implement the permit programs under sections 402 and 404 of this Act” was not added until the 1977 amendments. 91 Stat. 1567, 1575 Public Law 95-217 (1977);