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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-02500

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 21, 2020
- **Citation:** 85 FR 22250

## Text

DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 110, 112, 116, 117, 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?

1.
Docket.
An official public docket for this action has been established under Docket ID No. EPA-HQ-OW-2018-0149. The official public docket consists of the documents specifically referenced in this action and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The OW Docket telephone number is (202) 566-2426. A reasonable fee will be charged for copies.

2.
Electronic Access.
You may access this
Federal Register
document electronically under the “
Federal Register
” listings at
http://www.regulations.gov.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may access EPA Dockets at
http://www.regulations.gov
to view public comments as they are submitted and posted, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically, 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
v.
Riverside Bayview Homes
(
Riverside Bayview
),
Solid Waste Agency of Northern Cook County
v.
United States
(
SWANCC
), and
Rapanos
v.
United States
(
Rapanos
), and consistent with Executive Order 13778, signed on February 28, 2017, entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.”

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,
1

in 1972 to address longstanding concerns regarding the quality of the nation's waters and the federal government's ability to address those concerns under existing law. Prior to 1972, the ability to control and redress water pollution in the nation's waters largely fell to the 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.”
2

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

1
The 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.

2
The term “navigable water of the United States” is a term of art used to refer to waters subject to federal jurisdiction under the RHA.
See, e.g.,
33 CFR 329.1. The term is not synonymous with the phrase “waters of the United States” under the CWA,
see id.,
and the general term “navigable waters” has different meanings depending on the context of the statute in which it is used.
See, e.g., PPL Montana, LLC
v.
Montana,
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
v.
Illinois,
451 U.S. 304, 310 (1981), so Congress performed a “total restructuring” and “complete rewriting” of the existing statutory framework in 1972,
id.
at 317 (quoting legislative history of 1972 amendments). That restructuring resulted in the enactment of a comprehensive scheme (including voluntary as well as regulatory programs) designed to prevent, reduce, and eliminate pollution in the nation's waters generally, and to regulate the discharge of pollutants into navigable waters specifically.
See, e.g., S.D. Warren Co.
v.
Maine Bd. of 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.
3

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).

3
33 U.S.C. 1370 also prohibits authorized States from adopting any limitations, prohibitions, or

standards that are less stringent than required by the CWA.

To carry out these policies, Congress broadly defined “pollution” to mean “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water,” 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.”
4

4
Members of Congress were aware when they drafted the 1972 CWA amendments that different types of the Nation's waters would be subject to different degrees of federal control. For instance, in House debate regarding a proposed and ultimately failed amendment to prohibit the discharge of pollutants to 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
v.
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
v.
Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (internal quotation marks and citation omitted);
see also United Sav. Ass'n of Texas
v.
Timbers of Inwood Forest Associates,
484 U.S. 365, 371 (“Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear[.]”) (citation omitted). Here, the non-regulatory sections of the CWA reveal Congress' intent to restore and maintain the integrity of the nation's waters using federal assistance to support State and local partnerships to control pollution in the nation's waters
and
a federal regulatory prohibition on the discharge of pollutants to the navigable waters. If Congress had intended the terms to be synonymous, it would have used identical terminology. Instead, Congress chose to use separate terms, and the agencies are instructed by the Supreme Court to presume Congress did so intentionally.

Under the enacted statutory scheme, the States are primarily responsible for developing water quality standards for waters of the United States within their borders and reporting on the condition of those waters to the EPA every two years. 33 U.S.C. 1313, 1315. States must develop total maximum daily loads (TMDLs) for waters that are not meeting established water quality standards and must submit those TMDLs to the EPA for approval.
Id.
at 1313(d). States also have authority to issue water quality certifications or waive certification for every federal permit or license issued within their borders that may result in a discharge to navigable waters.
Id.
at 1341.

These same regulatory authorities can be assumed by Indian tribes under section 518 of the CWA, which authorizes the EPA to treat eligible Indian tribes with reservations in a manner similar to States for a variety of purposes, including administering each of the principal CWA regulatory programs. 33 U.S.C. 1377(e). In addition, States and Tribes retain authority to protect and manage the use of those waters that are not navigable waters under the CWA.
See, e.g., id.
at 1251(b), 1251(g), 1370, 1377(a). At this time, forty-seven States administer portions of the CWA section 402 permit program for those waters of the United States within their boundaries,
5

and two States (Michigan and New Jersey) administer the section 404 permit program for those waters that are assumable by States pursuant to section 404(g). Several additional states are exploring the possibility of assuming the section 404 permit program. At present, no Tribes administer the section 402 or 404 programs, although some are exploring the possibility. For additional information regarding State and tribal programs, see the Resource and Programmatic Assessment for the final rule.

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

2. Regulatory History

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

• All navigable waters of the United States;

• Tributaries of navigable waters of the United States;

• Interstate waters;

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

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

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

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

In 1974, the Corps issued its first set of regulations defining “waters of the United States” for the purpose of implementing section 404 of the CWA as well as sections 9, 10, 11, 13, and 14 of the RHA. These regulations reaffirmed the Corps' view that its dredged and fill jurisdiction under section 404 was the same as its traditional jurisdiction under the RHA.
See
39 FR 12115, 12119 (Apr. 3, 1974) (codified at 33 CFR 209.120). Specifically, the Corps defined the “waters of the United States” as waters that “are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.”
Id.

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

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

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

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

irrigate crops sold in interstate commerce.
Id.
at 41217.

6
For convenience, the agencies generally refer to the Corps' regulations throughout this notice at 33 CFR 328.3. The EPA's codification of the definition of “waters of the United States” is found at 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 302.3, 401.11, and Appendix E to Part 300. This final rule also codifies the definition of “waters of the United States” in a new section 120.2.

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

• All traditional navigable waters,
7

interstate waters, and the territorial seas;

7
“Traditional navigable waters” (or waters that are traditionally understood as navigable) refers to all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide.

• All impoundments of jurisdictional waters;

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

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

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

33 CFR 328.3(a)(1)-(7) (1987). The 1986 regulation also excluded “waste treatment systems” from the definition of “waters of the United States,” consistent with the EPA's regulatory definition.
Id.
at 328.3 (a)(7), (b) (1987);
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.
8

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.

8
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.
9

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.

9
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.
v.
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
v.
United States,
547 U.S. 715, 739 (2006) (Scalia, J., plurality) (briefly summarizing case history). The federal courts have established different analytical frameworks to interpret the phrase, and the applicable test may differ from State to State.
See, e.g.,
Memorandum from Dick Pedersen, President of the Environmental Council of the States (ECOS) of September 11, 2014, Concerning Waters of the United States under the Act at 2-23 (2014) (hereinafter, the “ECOS Memorandum”),
available at http://acoel.org/file.axd?file=2014%2f9%2fWaters+of+the+U+S+Final+9_11_14.pdf
(summarizing case history following
Rapanos
).

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

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

The Supreme Court again addressed the definition of “waters of the United States” in
Solid Waste Agency of Northern Cook County
v.
U.S. Army Corps of Engineers,
531 U.S. 159 (2001) (
SWANCC
). In
SWANCC,
the Court 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.
10

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.

10

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

The Court most recently interpreted the term “waters of the United States” in
Rapanos
v.
United States,
547 U.S. 715 (2006).
Rapanos
involved two consolidated cases in which the CWA had been applied to wetlands located near man-made ditches that were ultimately connected to traditional navigable waters. All members of the Court agreed that the term “waters of the United States” encompasses some waters that are not navigable in the traditional sense.

A four-Justice plurality interpreted the term “waters of the United States” to “include[ ] only those relatively permanent, standing or continuously flowing bodies of water `forming geographic features' that are described in ordinary parlance as `streams[,] . . . oceans, rivers, [and] lakes,' ”
Rapanos,
547 U.S. at 739 (Scalia, J., plurality) (quoting
Webster's New International Dictionary
2882 (2d ed. 1954)), and “wetlands with a continuous surface connection” to a “relatively permanent 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
v.
United States
and
Carabell
v.
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”).
11

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.

11

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

Since
Rapanos,
litigation has continued to confuse the regulatory landscape.
See, e.g.,
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
v.
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
v.
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.
v.
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
12

—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.”).

12
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.
13

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.

13
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.
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 2015 Rule.

The 2015 Rule defined “significant nexus” to mean a water, including wetlands, that either alone or in combination with other similarly situated waters in the region, significantly affected the chemical, physical, or biological integrity of a category (1) through (3) “jurisdictional by rule” water. 80 FR 37106. “For an effect to be significant, it must be more than speculative or insubstantial.”
Id.
The term “in the region” meant “the watershed that drains to the nearest” primary water.
Id.
This definition was different from the test articulated by the agencies in their 2008
Rapanos
Guidance. That guidance interpreted “similarly situated” to include all wetlands (not waters) adjacent to the same tributary.

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.
14

14
“[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
15

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
16

and appellate
17

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.

15
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.

16
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.

17
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.
18

The district court found those States were “likely to succeed” on the merits of their challenge to the 2015 Rule because, among other reasons, “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule.”
North Dakota
v.
EPA,
127 F. Supp. 3d 1047, 1051 (D.N.D. 2015). In particular, the court noted concern that the 2015 Rule's definition of “tributary” “includes vast numbers of waters that are unlikely to have a nexus to navigable waters.”
Id.
at 1056. Further, the court found that “it appears likely 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.

18
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
v.
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
v.
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.
v.
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.
v.
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.
19

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
v.
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
v.
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.
20

19
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.

20
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
v.
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
v.
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
v.
EPA,
389 F. Supp. 3d 497 (S.D. Tex. 2019).
21

21
The Southern District of Texas later denied plaintiffs' motions for reconsideration urging the court to vacate, rather than remand, the 2015 Rule. Order,
Texas
v.
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
v.
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
v.
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
v.
EPA,
No. 2:15-cv-02467, 2019 WL 1958650 (S.D. Ohio May 2, 2019); Plaintiffs' Notice of Appeal,
Ohio
v.
EPA,
No. 2:15-cv-02467 (S.D. Ohio May 28, 2019).
22

22
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
v.
EPA,
No. 4:15-cv-00381 (N.D. Okla. May 29, 2019); Stipulation of Voluntary Dismissal,
Oklahoma
v.
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
v.
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
v.
United States,
547 U.S. 715 (2006) (Section 3).

On March 6, 2017, the agencies published a notice of intent to review the 2015 Rule and provide notice of a forthcoming proposed rulemaking consistent with the Executive Order. 82 FR 12532. Shortly thereafter, the agencies announced that they would implement the Executive Order in a two-step approach. On July 27, 2017,

the agencies 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
v.
Wheeler,
No. 19-11673 (S.D.N.Y., complaint filed Dec. 20, 2019);
Wash. Cattlemen's Ass'n
v.
EPA,
No. 2:19-cv-00569 (W.D. Wash., supplemental amended complaint filed Dec. 20, 2019);
Murray
v.
Wheeler,
No. 1:19-cv-01498 (N.D.N.Y., complaint filed Dec. 4, 2019);
S.C. Coastal Conservation League
v.
Wheeler,
No. 2:19-cv-3006 (D.S.C., complaint filed Oct. 23, 2019);
N.M. Cattle Growers' Ass'n
v.
EPA,
No. 1:19-cv-988 (D.N.M., complaint filed Oct. 22, 2019);
Pierce
v.
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
at
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.
23

23
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
v.
Winn,
542 U.S. 88, 101 (2004) (“A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.”). This includes pursuing the overall “objective” of the CWA 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
Webster's II, New Riverside University Dictionary (1994) (defining “policy” as a “plan or course of action, as of a government[,] designed to influence and determine decisions and actions;” an “objective” is “something worked toward or aspired to: Goal”).
24

The agencies therefore recognize a distinction between the specific word choices of Congress, including the need to develop regulatory and non-regulatory programs that aim to accomplish the goals of the Act while implementing the specific policy directives of Congress.
25

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

24
The legislative history of the CWA further illuminates the distinction between the terms “policy” and “objective,” or “goal.” As Congress drafted the 1972 CWA amendments, the Senate bill set the “no-discharge of pollutants into the navigable water by 1985” provision as a policy whereas the House bill set it as a goal. The Act was ultimately passed with the “no-discharge by 1985” provision established as a goal.
See
33 U.S.C 1251(a)(1). During the House's consideration of the Conference Report, Representative Robert E. Jones, Jr. captured the policy versus goal distinction in section 101(a)(1) as follows: “The objective of this legislation is to restore and preserve for the future the integrity of our Nation's waters. The bill sets forth as a national goal the complete elimination of all discharges into our navigable waters by 1985, but . . . the conference report states clearly that achieving the 1985 target date is a goal, not a national policy. As such, it serves as a focal point for long-range planning, and for research and development in water pollution control technology . . . . While it is our hope that we can succeed in eliminating all discharge into our waters by 1985, without unreasonable impact on the national life, we recognized in this report that too many imponderables exist, some still beyond our horizons, to prescribe this goal today as a legal requirement.” 118 Cong. Rec. H. 33749 (daily ed. October 4, 1972).

25

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

Congress' authority to regulate navigable waters under the CWA derives from its power to regulate the “channels of interstate commerce” under the Commerce Clause.
Gibbons
v.
Ogden,
22 U.S. (9 Wheat.) 1 (1824). In
United States
v.
Lopez,
the Supreme Court explained that the Commerce Clause gives Congress the authority to regulate in three areas: The “channels of interstate commerce,” the “instrumentalities of interstate commerce,” and those additional activities having “a substantial relation to interstate commerce.” 514 U.S. 549, 558-59 (1995). Some commenters stated that Congress' authority over “waters of the United States” is not tethered to navigable channels of interstate commerce, but is also derived from its authority over the “instrumentalities of interstate commerce” and activities that “substantially affect” interstate commerce.
See id.
The agencies disagree with these comments. The Supreme Court made clear in
SWANCC
that the term “navigable” indicates “what Congress had in mind as its authority for enacting the CWA: Its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” 531 U.S. 159, 172 (2001). The Court further explained that nothing in the legislative history of the Act provides any indication that “Congress intended to exert anything more than its commerce power over navigation.”
Id.
at 168 n.3. The Supreme Court, however, has recognized that Congress intended “to exercise its powers under the Commerce clause to regulate at least some waters that would not be deemed `navigable' under the classical understanding of that term.”
Riverside Bayview,
474 U.S. at 133;
see also SWANCC,
531 U.S. at 167.

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

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

77 U.S. (10 Wall.) 557, 563 (1871). Subsequently, this traditional test was expanded to include waters that had been used in the past for interstate commerce,
see Economy Light & Power Co.
v.
United States,
256 U.S. 113, 123 (1921), and waters that are susceptible

for use with reasonable improvement,
see United States
v.
Appalachian Elec. Power Co.,
311 U.S. 377, 407-10 (1940).

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

These developments were discussed during the legislative process leading up to the passage of the 1972 CWA amendments, and certain members referred to the scope of the amendments as encompassing waterways that serve as a “link in the chain” of interstate commerce as it flows through various channels of transportation, such as railroads and highways.
See, e.g.,
118 Cong. Rec. 33756-57 (1972) (statement of Rep. Dingell); 118 Cong. Rec. 33699 (Oct. 4, 1972) (statement of Sen. Muskie).
26

Other references suggest that congressional committees at least contemplated applying the “control requirements” of the Act “to the navigable waters, portions thereof, and their tributaries.” S. Rep. No. 92-414, at 77 (1971). Some commenters on this rulemaking stated that Congress' authority under the CWA is limited to waters that actually transport commerce, not their tributaries or adjacent wetlands, and that this limitation on CWA jurisdiction would fully preserve the authority of States to address pollution. The agencies disagree with these commenters based on the Supreme Court's holdings and the legislative history of the 1972 amendments discussed above, as well as the text of the 1977 amendments to the CWA. Specifically, in 1977, when Congress authorized State assumption over the section 404 dredged or fill material permitting program, Congress limited the scope of waters that could be assumed by a State or Tribe by requiring the Corps to retain permitting authority over RHA waters (as identified by the test outlined in
The Daniel Ball
) plus wetlands adjacent to those waters, minus historic-use-only waters.
See
33 U.S.C. 1344(g)(1).
27

This suggests that Congress had in mind a broader scope of waters subject to CWA jurisdiction than waters traditionally understood as navigable.
See SWANCC,
531 U.S. at 171;
Riverside Bayview,
474 U.S. at 138 n.11. Thus, Congress intended to assert federal authority over more than just waters traditionally understood as navigable, and Congress rooted that authority in “its commerce power over navigation.”
SWANCC,
531 U.S. at 168 n.3. However, there must be a limit to that authority and to what water is subject to federal jurisdiction. How the agencies should exercise that authority has been the subject of dispute for decades, but the Supreme Court on three occasions has analyzed the issue and provided some instructional guidance for the agencies to consider in developing this final rule.

26
The agencies recognize that individual member statements are not a substitute for full congressional intent, but they do help provide context for issues that were discussed during the legislative debates. For a detailed discussion of the legislative history of the 1972 CWA amendments,
see
Albrecht & Nickelsburg,
Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act,
32 ELR 11042 (Sept. 2002).

27
For a detailed discussion of the legislative history supporting the enactment of CWA section 404(g),
see Final Report of the Assumable Waters Subcommittee
(May 2017), App. F.,
available at https://www.epa.gov/sites/production/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf
< Caution-
https://www.epa.gov/sites/production/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf.

2. U.S. Supreme Court Precedent

a. Adjacent Wetlands

In
Riverside Bayview,
the Supreme Court considered the Corps' assertion of jurisdiction over “low-lying, marshy land” immediately abutting a water traditionally understood as navigable on the grounds that it was an “adjacent wetland” within the meaning of the Corps' then-existing regulations. 474 U.S. at 124. The Court addressed the question of whether non-navigable wetlands may be regulated as waters of the United States on the basis that they are “adjacent to” navigable-in-fact waters and “inseparably bound up with” them because of their “significant effects on water quality and the aquatic ecosystem.”
See id.
at 131-35 & n.9.

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

In determining the limits of its power
to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: The transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of “waters” is far from obvious.

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

The Supreme Court also noted that the agencies can establish categories of jurisdiction for adjacent wetlands.
See id.
at 135 n.9. It made clear that these categories could be reasonable if the Corps concludes that “in the majority of cases, adjacent wetlands have significant effects on water quality and the aquatic ecosystem.”
Id.
A definition of “waters of the United States” “can stand” even if it potentially sweeps in individual wetlands that are not sufficiently “intertwined with the ecosystem of adjacent waterways” to warrant protection.
Id.
In such cases, if the regulating entity determines that a particular wetland lacks importance to the aquatic environment, or its importance is outweighed by other factors, that wetland could be developed through the permit issuance process.
Id.

Some commenters noted that the definition of “adjacent wetlands” that the Supreme Court unanimously upheld in
Riverside Bayview
included categories of wetlands that would not be
per se
“adjacent” under the proposed rule, including all “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.” 51 FR 41251 (Nov. 13, 1986). These commenters stated that the Court deferred to the Corps' judgment that

wetlands may affect the water quality of jurisdictional waterbodies even if the waterbodies do not inundate the wetlands.
See Riverside Bayview,
474 U.S. at 133-35. The proposed rule included wetlands as jurisdictional absent inundation by another water.
See e.g.,
84 FR 4187 (“The proposed definition of `adjacent wetlands' would not require surface water exchange between wetlands and the jurisdictional waters they abut to create the jurisdictional link[.]”). As explained in Section III.G., the agencies have considered public comments in light of the statutory text and other relevant considerations and are finalizing a definition of “adjacent wetlands” that is more encompassing than the proposal. In any event, the agencies note that a Court's deference to an agency's particular interpretation of a statute does not foreclose alternative interpretations. The Supreme Court has held that “a court's choice of one reasonable reading of an ambiguous statute does not preclude an implementing agency from later adopting a different reasonable interpretation.”
United States
v.
Eurodif S.A.,
555 U.S. 305, 315 (2009). This principle follows from
Chevron, U.S.A., Inc.
v.
Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), which “established a `presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.' ”
Nat'l Cable & Telecommunications Ass'n
v.
Brand X Internet Servs.,
545 U.S. 967, 982 (2005) (quoting
Smiley
v.
Citibank,
517 U.S. 735, 740-41 (1996)). Moreover, an “initial agency interpretation is not instantly carved in stone.”
Chevron,
467 U.S. at 863;
see also Encino Motorcars, LLC
v.
Navarro,
136 S. Ct. 2117, 2125 (2016) (“[A]gencies are free to change their existing policies as long as they provide a reasoned explanation for the change.”) (citations omitted). Consistent with the APA and applicable case law, in this final rule the agencies have provided ample justification for a change in interpretation of the CWA concerning the scope of jurisdiction over waters and wetlands, including any changes from their prior interpretations.

The Supreme Court in
Riverside Bayview
declined to decide whether wetlands that are not adjacent to navigable waters could also be regulated by the agencies.
See
474 U.S. at 124 n.2 and 131 n.8. In
SWANCC
a few years later, however, the Supreme Court analyzed a similar question in the context of an abandoned sand and gravel pit located some distance from a traditional navigable water, with excavation trenches that ponded—some only seasonally—and served as habitat for migratory birds. 531 U.S. at 162-63. The Supreme Court rejected the government's stated rationale for asserting jurisdiction over such “nonnavigable, isolated, intrastate waters” as outside the scope of CWA jurisdiction.
Id.
at 171-72. In doing so, the Supreme Court noted that
Riverside Bayview
upheld “jurisdiction over wetlands that actually abutted on a navigable waterway” because the wetlands were “inseparably bound up with the `waters' of the United States.”
Id.
at 167.
28

As summarized by the
SWANCC
majority:

28
At oral argument during
Riverside Bayview,
the attorney representing the United States characterized the wetland at issue as “in fact an adjacent wetland, adjacent—by adjacent, I mean it is immediately next to, abuts, adjoins, borders, whatever other adjective you might want to use, navigable waters of the United States.” Transcript of Oral Argument at 16,
United States
v.
Riverside Bayview Homes,
474 U.S. 121 (1985) (No. 84-701).

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

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

The Court also rejected the argument that the use of the abandoned ponds by migratory birds fell within the power of Congress to regulate activities that in the aggregate have a substantial effect on interstate commerce, or that the CWA regulated the use of the ponds as a municipal landfill because such use was commercial in nature.
Id.
at 173. Such arguments, the Court noted, raised “significant constitutional questions.”
Id.
“Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result.”
Id.
at 172-73 (“Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority.”). This is particularly true “where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.”
Id.
at 173;
see also Will
v.
Michigan Dep't of State Police,
491 U.S. 58, 65 (1989) (“[I]f Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.' ” (quoting
Atascadero State Hospital
v.
Scanlon,
473 U.S. 234, 242 (1985)));
Gregory
v.
Ashcroft,
501 U.S. 452, 460-61 (1991) (“[The] plain statement rule . . . acknowledg[es] that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.”). “Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose [in the CWA] to `recognize, preserve, and protect the primary responsibilities and rights of States . . . to plan the development and use . . . of land and water resources . . . .”
SWANCC,
531 U.S. at 174 (quoting 33 U.S.C. 1251(b)). The Court found no clear statement from Congress that it had intended to permit federal encroachment on traditional State power and construed the CWA to avoid the significant constitutional questions related to the scope of federal authority authorized therein.
Id.
29

29
The agencies note that during oral argument in
SWANCC,
Justice Kennedy stated, “[T]his case, it seems to me, does point up the problem that petitioner's counsel raised quoting from page 1 of the blue brief, `it is the primary responsibility of the states to eliminate pollution and to plan development and use of land' . . . . It seems to me that this illustrates that the way in which the Corps has promulgated its regulation departs from the design of the statute.” Transcript of Oral Argument at 40,
Solid Waste Agency of Northern Cook County
v.
U.S. Army Corps of Engineers,
531 U.S. 159 (2001) (No. 99-1178) (emphasis added). And several years later, during oral argument in
Rapanos,
after the U.S. Solicitor General stated, “[W]hat Congress recognized in 1972 is that they had to regulate beyond traditional navigable waters,” Justice Kennedy stated, “But the Congress in 1972 also . . . said it's a statement of policy to reserve to the States the power and the responsibility to plan land use and water resources. And under your definition, I just see that we're giving no scope at all to that clear statement of the congressional policy.” Transcript of Oral Argument at 58,
Rapanos
v.
United States
and
Carabell
v.
United States,
547 U.S. 715 (2006) (Nos. 04-1034, 04-1384). Although the agencies do not give independent weight to these statements at oral argument, the statements are consistent with the agencies' interpretation of the CWA and applicable Supreme Court decisions.

Historically, the Federal government has interpreted and applied the
SWANCC
decision more narrowly, focusing on the specific holding in the case as rejecting federal jurisdiction over the isolated ponds and mudflats at issue in that case based on their use by migratory birds. By contrast, members of the regulated community, certain States and other interested stakeholders have

argued that
SWANCC
stands for a broader proposition based on key federalism and separation of powers principles.
30

In the preamble to the proposed rule, the agencies solicited comment as to the proper scope and interpretation of
SWANCC.
84 FR 4165. Some commenters argued that the
SWANCC
decision should be interpreted narrowly to apply only to the facts presented in that case; other commenters argued that the agencies should apply the reasoning of the
SWANCC
decision broadly, in a manner similar to how the agencies had previously interpreted the reasoning of Justice Kennedy's concurring opinion in
Rapanos
to extend beyond wetlands to tributaries and other waters, for example. The agencies agree with commenters that the interpretation and implementation of these Supreme Court decisions within agency regulatory programs should be consistent, and that the reasoning in the
SWANCC
decision stands for key principles related to federalism and the balancing of the traditional power of States to regulate land and water resources within their borders with the need for national water quality regulation.

30
The agencies also recognize that Justice Stevens, writing for himself and three other Justices in dissent in
SWANCC,
interpreted the
SWANCC
majority opinion to apply beyond the Migratory Bird Rule and the specific ponds at issue in
SWANCC.
His dissent stated that the decision “invalidates the 1986 migratory bird regulation
as well as the Corps' assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each.”
531 U.S. at 176-77 (Stevens, J., dissenting) (emphasis added).

The agencies recently repealed the 2015 Rule and explained in the preamble of that action that the 2015 Rule had improperly allowed for the application of the significant nexus standard in a manner that would result in the assertion of jurisdiction over waters that the Court deemed non-jurisdictional in
SWANCC.
84 FR 56626-27. By allowing federal jurisdiction to reach certain isolated ponds, such as those at issue in
SWANCC,
and certain physically remote wetlands that “do not implicate the boundary-drawing problem of
Riverside Bayview,
” the agencies concluded that the 2015 Rule asserted federal control over some features that “lack the necessary connection to covered waters . . . described as a `significant nexus' in
SWANCC
[.]”
Rapanos,
547 U.S. at 742 (Scalia, J., plurality);
see also Hawkes,
136 S. Ct. at 1817 (Kennedy, J., concurring in the judgment) (“[T]he
reach
and systemic consequences of the Clean Water Act remain a cause for concern.” (emphasis added)). This final rule, in contrast to the 2015 Rule, avoids pressing against the outer limits of the agencies' authority under the Commerce Clause and Supreme Court case law and recognizes the limiting principles articulated by the
SWANCC
decision. This final rule would not allow for the exercise of jurisdiction over waters similar to those at issue in
SWANCC.

Several years after
SWANCC,
the Supreme Court considered the concept of adjacency in consolidated cases arising out of the Sixth Circuit.
See Rapanos
v.
United States,
547 U.S. 715 (2006). In one case, the Corps had determined that wetlands on three separate sites were subject to CWA jurisdiction because they were adjacent to ditches or man-made drains that eventually connected to traditional navigable waters several miles away through other ditches, drains, creeks, and rivers.
Id.
at 719-20, 729. In another case, the Corps had asserted jurisdiction over a wetland separated from a man-made drainage ditch by a four-foot-wide man-made berm.
Id.
at 730. The ditch emptied into another ditch, which then connected to a creek, a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-02500. Public record. Not legal advice.