Revised Definition of “Waters of the United States”

Federal RegisterDec 7, 2021

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 120

[EPA-HQ-OW-2021-0602; FRL-6027.4-03-OW]

Revised Definition of “Waters of the United States”

AGENCY:

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

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act. This proposal is consistent with the Executive Order signed on January 20, 2021, on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which directed the agencies to review the agencies' rule promulgated in 2020 defining “waters of the United States.” This proposed rule would meet the objective of the Clean Water Act and ensure critical protections for the nation's vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.

DATES:

Comments must be received on or before February 7, 2022. Please refer to the

SUPPLEMENTARY INFORMATION

section for additional information on the public hearing.

ADDRESSES:

You may send comments, identified by Docket ID No. EPA-HQ-OW-2021-0602, by any of the following methods:

•

Federal eRulemaking Portal:

https://www.regulations.gov/

(our preferred method). Follow the online instructions for submitting comments.

•

Email:

OW-Docket@epa.gov.

Include Docket ID No. EPA-HQ-OW-2021-0602 in the subject line of the message.

Instructions:

All submissions received must include Docket ID No. EPA-HQ-OW-2021-0602. Comments received may be posted without change to

https://www.regulations.gov/,

including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Public Participation” heading of the

SUPPLEMENTARY INFORMATION

section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are open to the public by appointment only to reduce the risk of transmitting COVID-19. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at

https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT:

Damaris Christensen, Oceans, Wetlands and Communities Division, Office of Water (4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 564-2281; email address:

CWAwotus@epa.gov,

and Stacey Jensen, Office of the Assistant Secretary of the Army for Civil Works, Department of the Army, 108 Army Pentagon, Washington, DC 20310-0104; telephone number: (703) 459-6026; email address:

usarmy.pentagon.hqda-asa-cw.mbx.asa-cw-reporting@mail.mil.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Public Participation

A. Written Comments

B. Virtual Public Hearings

III. General Information

A. What action are the agencies taking?

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

C. What are the incremental costs and benefits of this action?

IV. Background

A. Legal Background

B. The Agencies' Post-Rapanos Rules

C. Summary of Stakeholder Outreach

V. Proposed Revised Definition

A. Basis for Proposed Rule

B. Concerns With Alternatives

C. Proposed Rule

D. Implementation of Proposed Rule

E. Publicly Available Jurisdictional Information and Permit Data

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

VI. Summary of Supporting Analyses

VII. Statutory and Executive Order Reviews

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

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

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

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

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

I. National Technology Transfer and Advancement Act

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

I. Executive Summary

Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 86 Stat. 816, as amended, 33 U.S.C. 1251

et seq.

(Clean Water Act or Act) “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). In doing so, Congress performed a “total restructuring” and “complete rewriting” of the existing statutory framework, seeking to better protect the quality of the nation's waters.

City of Milwaukee

Illinois,

451 U.S. 304, 317 (1981). Congress thus intended the 1972 Act to be a bold step forward in providing protections for the nation's waters.

Central to the framework and protections provided by the Clean Water Act is the term “navigable waters,”

defined in the Act as “the waters of the United States, including the territorial seas.” 33 U.S.C. 1362(7). This term establishes the extent of most federal programs to protect water quality under the Act—including, for example, water quality standards, impaired waters and total maximum daily loads, oil spill prevention, preparedness and response programs, state and tribal water quality certification programs, and dredged and fill programs—because such programs apply only to “waters of the United States.”

To avoid confusion between the term “navigable waters” as defined in the Clean Water Act and its implementing regulations, 33 U.S.C. 1362(7); 33 CFR 328.3 (2014), and the traditional use of the term “navigable waters” to describe waters that are, have been, or could be used for interstate or foreign commerce, 33 CFR 328.3(a)(1) (2014), this preamble will refer to the latter as “traditional navigable waters” or waters that are “navigable-in-fact.”

As the Supreme Court presciently noted decades ago, defining this term requires the EPA and the U.S. Department of the Army (Army) (together, “the agencies”) to “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.”

United States

Riverside Bayview Homes,

474 U.S. 121, 132 (1985) (“

Riverside Bayview”

The Supreme Court has twice more addressed the issue of Clean Water Act jurisdiction over “waters of the United States.”

Solid Waste Agency of Northern Cook County

U.S. Army Corps of Engineers,

531 U.S. 159 (2001) (“

SWANCC”

);

Rapanos

United States,

547 U.S. 715 (2006) (“

Rapanos”

In the nearly five decades since the Clean Water Act was enacted, the agencies have undertaken the challenge of developing and implementing a durable definition of the term “waters of the United States” that draws the line on the

Riverside Bayview

“continuum” consistent with the objective of the Act—to restore and maintain the chemical, physical, and biological integrity of the nation's waters—based on science, and refined over the years by extensive experience in implementing the definition in the field. In 2020, however, the agencies issued a rule, called the “Navigable Waters Protection Rule” (NWPR), which substantially departed from prior rules defining “waters of the United States.” The earlier rules had been based on scientific concepts, implementation experience, and consideration of how the water quality implications of the definitions would advance the Clean Water Act's statutory objective. While the NWPR's interpretation of the statute and case law overlaps in some respects with those prior regulations—for example, its understanding that the statute authorizes the agencies to regulate waters beyond those that are navigable-in-fact—it departed from prior regulations by diminishing the appropriate role of science and Congress's objective in the Clean Water Act. The NWPR provided less protection and could have allowed far more impacts to the nation's waters than any rule that preceded it.

In response to President Joseph R. Biden Jr.'s Executive Order 13990, 86 FR 7037 (January 25, 2021), which directed federal agencies to review certain regulations, EPA and the Army undertook a review of the NWPR. The agencies found that the NWPR did not appropriately consider the water quality impacts of its approach to defining “waters of the United States,” in contravention of Congress's objective in the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” and that the rule's reduction in the scope of protected waters could have a potentially extensive and adverse impact on the nation's waters. The agencies' ongoing analyses of waters that fall outside of the Act's protections because of the NWPR support these findings.

Following a federal district court decision vacating the NWPR on August 30, 2021, the agencies halted implementation of the NWPR and began interpreting “waters of the United States” consistent with the pre-2015 regulatory regime.

3 4

Though EPA and the U.S. Army Corps of Engineers (Corps) are not currently implementing the NWPR, the agencies are aware that further developments in litigation over the rule could bring the rule back into effect. For these reasons, among others discussed more fully below, the agencies have decided that prompt replacement of the NWPR through the administrative rulemaking process is vital.

See Pascua Yaqui Tribe

EPA,

No. 20-00266 (D. Ariz. Aug. 30, 2021); U.S. EPA,

Current Implementation of Waters of the United States, https://www.epa.gov/wotus/current-implementation-waters-united-states.

The “pre-2015 regulatory regime” refers to the agencies' pre-2015 definition of “waters of the United States,” implemented consistent with relevant case law and longstanding practice, as informed by applicable guidance, training, and experience.

In order to ensure necessary federal protections for the nation's waters, the agencies are proposing to exercise their discretion under the statute to return generally to the familiar pre-2015 definition that has bounded the Act's protections for decades, has been codified multiple times, and has been implemented by every Administration for the last 35 years, from that of Ronald Reagan through Donald Trump, which re-promulgated the pre-2015 regulations.

See In re EPA & Dep't of Def. Final Rule,

803 F.3d 804, 808 (6th Cir. 2015). The pre-2015 regulations were largely in place for both agencies in 1986 and are thus commonly referred to as “the 1986 regulations.”

EPA and the Corps have separate regulations defining the statutory term “waters of the United States,” but their interpretations were substantially similar and remained largely unchanged between 1977 and 2015.

See, e.g.,

42 FR 37122, 37144 (July 19, 1977); 44 FR 32854, 32901 (June 7, 1979). For convenience, the agencies in this preamble will generally cite the Corps' longstanding regulations and will refer to them as “the 1986 regulations,” “the pre-2015 regulations,” or “the regulations in place until 2015” as inclusive of EPA's comparable regulations that were recodified in 1988 and of the exclusion for prior converted cropland both agencies added in 1993.

In this proposed rule the agencies are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the longstanding 1986 regulations, with amendments to certain parts of those rules to reflect the agencies' interpretation of the statutory limits on the scope of the “waters of the United States” and informed by Supreme Court case law. Thus, in the proposed rule, the agencies interpret the term “waters of the United States” to include: Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments of “waters of the United States”; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and “other waters” that meet either the relatively permanent standard or the significant nexus standard. The “relatively permanent standard” means waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters. The “significant nexus standard” means waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas (the “foundational waters”). With these amendments to the 1986 regulations, the proposed rule is within the proper scope of the agencies' statutory authority and would restore and maintain the chemical, physical, and biological integrity of the nation's waters.

The proposed rule advances the Clean Water Act's statutory objective as it is based on the best available science concerning the functions provided by upstream tributaries, adjacent wetlands, and “other waters” to restore and maintain the water quality of downstream foundational waters. By contrast, the agencies conclude that the NWPR, which this proposed rule would replace, and which found jurisdiction primarily under the relatively permanent standard, established a test for jurisdiction that did not adequately address the impacts of degradation of upstream waters on downstream waters, including traditional navigable waters, and was therefore incompatible with the objective of the Clean Water Act. While

the “more absolute position” taken by the NWPR “may be easier to administer,” it has “consequences that are inconsistent with major congressional objectives, as revealed by the statute's language, structure, and purposes.”

County of Maui, Hawaii

Hawaii Wildlife Fund,

140 S. Ct. 1462, 1477 (2020).

In developing the proposed rule, the agencies also considered the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies' experience and expertise after more than 30 years of implementing the 1986 regulations defining “waters of the United States,” including more than a decade of experience implementing those regulations consistent with the Supreme Court's decisions in

Riverside Bayview, SWANCC,

and

Rapanos.

The agencies' interpretation also reflects consideration of the statute as a whole, including section 101(b), which states that “it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” 33 U.S.C. 1251(b). The proposed rule's limits appropriately draw the boundary of waters subject to federal protection by ensuring that where upstream waters significantly affect the integrity of waters and the federal interest is indisputable—the traditional navigable waters, interstate waters, and territorial seas—Clean Water Act programs would apply to ensure that those downstream waters are protected. And where they do not, the agencies would leave regulation to the states and tribes. The proposed rule's relatively permanent and significant nexus limitations are thus based on the agencies' conclusion that together, those standards are consistent with the statutory text, advance the objective of the Act, are supported by the scientific record and Supreme Court case law, and appropriately consider the policies of the Act. In addition, because the proposed rule reflects consideration of the agencies' experience and expertise, as well as updates in implementation tools and resources, it is familiar and implementable.

While there are case-specific determinations that would need to be made under this proposed rule, that was also true under the NWPR and many other regulatory regimes where agencies must balance competing factors. The agencies, moreover, believe that a return to the pre-2015 definition would provide a known and familiar framework for co-regulators and stakeholders. In addition, the clarifications proposed here and the intervening advancements in implementation resources, tools, and scientific support (

see

section V.D.3.d of this preamble) would address some of the concerns raised in the past about timeliness and consistency of jurisdictional determinations under this regulatory regime.

Through this rulemaking process, the agencies will consider all public comments on the proposed rule including changes that improve clarity, implementability, and long-term durability of the definition. The agencies will also consider changes through a second rulemaking that they anticipate proposing in the future, which would build upon the foundation of this proposed rule.

II. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2021-0602, at

https://www.regulations.gov

(our preferred method), or via the other methods identified in the

ADDRESSES

section. Once submitted, comments cannot be edited or removed from the docket. EPA and the Army may publish any comment received to the public docket. Do not submit to EPA's docket at

https://www.regulations.gov

any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA and the Army will generally not consider comments or comment contents located outside of the primary submission (

i.e.,

on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit

https://www.epa.gov/dockets/commenting-epa-dockets.

Due to public health concerns related to COVID-19, the EPA Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continue to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at

https://www.epa.gov/dockets.

EPA and the Army continue to carefully monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our federal partners so that we can respond rapidly as conditions change regarding COVID-19.

B. Virtual Public Hearings

Please note that because of current CDC recommendations, as well as state and local orders for social distancing to limit the spread of COVID-19, EPA and the Army cannot hold in-person public meetings at this time. The agencies are hosting virtual public hearings on Wednesday, January 12, 2022 from 10 a.m. to 1 p.m. Eastern Time; on Thursday, January 13, 2022 from 2 p.m. to 5 p.m. Eastern Time; and on Tuesday, January 18, 2022 from 5 p.m. to 8 p.m. Eastern Time.

EPA and the Army will begin pre-registering speakers for the hearing upon publication of this document in the

Federal Register

. To register to speak at a specific session of the virtual hearing, please use the online registration forms available at:

1. Wednesday, January 12, 2022—

https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211244667487.

2. Thursday, January 13, 2022—

https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211258017417.

3. Tuesday, January 18, 2022—

https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211274536827.

The last day to pre-register to speak at each session will be, respectively, Friday, January 7, 2022; Monday, January 10, 2022; and Thursday, January 13, 2022. A day before each scheduled session, EPA and the Army will post a general agenda for the hearing that will list pre-registered speakers in approximate order at

https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities.

People may also register to listen to the public sessions at the registration links above.

To allow more time for speakers, the agencies may prerecord a video introduction and overview of the rule, which will be available on the EPA website above for viewing before the public hearings. EPA and the Army will make every effort to follow the schedule as closely as possible on the day of the hearing, but it is possible that the hearings will run either ahead of schedule or behind schedule.

Each commenter will have three (3) minutes to provide oral testimony. EPA and the Army encourage commenters to

provide the agencies with a copy of their oral testimony electronically by emailing it to

CWAwotus@epa.gov.

EPA and the Army also recommend submitting the text of your oral comments as written comments to the rulemaking docket.

The agencies may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at

https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities.

While the agencies expect the hearing to go forward as set forth above, please monitor our website or contact

CWAwotus@epa.gov

to determine if there are any updates. EPA and the Army do not intend to publish a document in the

Federal Register

announcing updates.

If you require the services of a translator or special accommodations such as audio description, please pre-register for the hearing with

CWAwotus@epa.gov

and describe your needs a week in advance of each session—respectively, by Wednesday, January 5, 2022; Thursday, January 6, 2022; and Tuesday, January 11, 2022. EPA and the Army may not be able to arrange accommodations without advanced notice.

III. General Information

A. What action are the agencies taking?

In this action, the agencies are publishing a proposed rule defining “waters of the United States” in 33 CFR 328.3 and 40 CFR 120.2.

B. 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.

C. What are the incremental costs and benefits of this action?

Because the agencies are not currently implementing the NWPR, the proposed rule would provide protections that are generally comparable to current practice; as such, the agencies find that there would be no appreciable cost or benefit difference. Potential costs and benefits would be incurred as a result of actions taken under existing Clean Water Act programs (

i.e.,

sections 303, 311, 401, 402, and 404) that implement and follow this proposed rule. Entities currently are, and would continue to be, regulated under these programs that protect “waters of the United States” under the Clean Water Act.

The agencies prepared the Economic Analysis for the Proposed “Revised Definition of `Waters of the United States' ” Rule (“Economic Analysis for the Proposed Rule”), available in the rulemaking docket, for informational purposes to analyze the potential costs and benefits associated with this proposed action. The agencies analyze the potential costs and benefits against two baselines: The current status quo and the vacated NWPR. The analysis is summarized in section VI of this preamble. The agencies' primary estimate is that the proposed rule would have zero impact.

IV. Background

A. Legal Background

1. The Clean Water Act

Before passage of the Clean Water Act, the nation's waters were in “serious trouble, thanks to years of neglect, ignorance, and public indifference.” H.R. Rep. No. 92-911, at 753 (1972). Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 86 Stat. 816, as amended, 33 U.S.C. 1251

et seq.,

with the objective “to restore and maintain the chemical, physical and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). The Act was intended to address longstanding concerns regarding the quality of the nation's waters and the Federal government's ability to respond to those concerns under existing law.

Prior to 1972, the Federal government's authority to control and redress pollution in the nation's waters largely fell to the Corps under the Rivers and Harbors Act of 1899. While much of that statute focused on restricting obstructions to navigation on the nation's major waterways, section 13 of the statute made it unlawful to discharge refuse “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.” 33 U.S.C. 407. In 1948, Congress enacted the Federal 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, 1961, and 1965. These early versions of the statute that eventually became known as the Clean Water Act encouraged 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. However, these authorities proved inadequate to address the decline in the quality of the nation's waters.

See City of Milwaukee

Illinois,

451 U.S. 304, 310 (1981).

As a result, in 1972, Congress performed “a `total restructuring' and `complete rewriting' of the existing” statutory framework.

City of Milwaukee,

451 U.S. at 317 (quoting legislative history of 1972 amendments). The Clean Water Act, which was passed as an amendment to the Federal Water Pollution Control Act, was described by its supporters as the first truly comprehensive federal water pollution legislation. The “major purpose” of the Clean Water Act was “to establish a comprehensive long-range policy for the elimination of water pollution.” S. Rep. No. 92-414, at 95 (1971), 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 1511 (1971) (emphasis added). “No Congressman's remarks on the legislation were complete without reference to [its] `comprehensive' nature.”

City of Milwaukee,

451 U.S. at 318. In passing the 1972 amendments, Congress “intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and 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.”

United States

Riverside Bayview Homes,

474 U.S. 121, 133 (1985) (“

Riverside Bayview”

);

see also

123 Cong. Rec. 26718 (1977) (remarks of Senator Baker: “Continuation of the comprehensive coverage of this program is essential for the protection of the aquatic environment. The once seemingly separable types of aquatic systems are, we now know, interrelated and interdependent. We cannot expect to preserve the remaining qualities of our water resources without providing appropriate protection for the entire resource.”).

Rather than alter the geographic reach of section 404 in 1977, Congress instead amended the statute by exempting certain activities—for example, certain agricultural and silvicultural activities—from the permit requirements of section 404.

See

33 U.S.C. 1344(f). The amendments also authorized the use of general permits to streamline the permitting process.

See id.

at 1344(e). Finally, the 1977 Act established for the first time a mechanism by which a state, rather than the Corps, could assume responsibility for implementing the section 404 permitting program, but only for waters “other than” traditional navigable waters and their adjacent wetlands.

Id.

at 1344(g)(1). Three states have since assumed the section 404 program.

The fact that a resource is a “water of the United States” does not mean that activities such as farming, construction, infrastructure development, or resource extraction, cannot occur in or near the resource at hand. The Clean Water Act exempts a number of activities from permitting or from the definition of “point source,” including agricultural storm water and irrigation return flows.

See id.

at 1342(

)(2), 1362(14). As discussed above, since 1977 the Clean Water Act in section 404(f) has exempted many normal farming activities from the section 404 permitting requirement, including seeding, harvesting, cultivating, planting, and soil and water conservation practices, among other activities.

Id.

at 1344(f). The scope of “waters of the United States” does not affect these statutory exemptions.

In addition, permits are routinely issued under sections 402 and 404 of the Clean Water Act. The permitting authority, which is most often a state agency for the section 402 NPDES program and the Corps in the context of section 404, generally works with permit seekers to ensure that activities can occur without harming the integrity of the nation's waters.

Effluent limitations serve as the primary mechanism in NPDES permits for controlling discharges of pollutants to receiving waters, and include technology-based effluent limitations and water quality-based effluent limitations. These limits, which are typically numeric, generally specify an acceptable level of a pollutant or pollutant parameter in a discharge (for example, a certain level of bacteria). The permittee may choose which technologies to use to achieve that level. Some permits contain certain “best management practices” (BMPs) which are actions or procedures to prevent or reduce the discharge of pollution to “waters of the United States” (for example, stormwater control measures for construction activities).

In issuing section 404 permits, the Corps or authorized state works with the applicant to avoid, minimize, or compensate for any unavoidable impacts to “waters of the United States.” Permit applicants show that steps have been taken to avoid impacts to wetlands, streams, and other aquatic resources; that potential impacts have been minimized; and that compensatory mitigation will be provided for all remaining unavoidable impacts. For most discharges that will have only minimal adverse effects, a general permit (

e.g.,

a “nationwide” permit) may be suitable. General permits are issued on a nationwide, regional, or state basis for particular categories of activities. While some general permits require the applicant to submit a pre-construction notification to the Corps, others allow the applicant to proceed with no formal notification. The general permit process eliminates individual review and allows certain activities to proceed with little or no delay, provided that the general or specific conditions for the general permit are met. For example, minor road construction activities, utility line backfill, and minor discharges for maintenance are activities in “waters of the United States” that can be considered for a general permit. States and tribes also have a role in section 404 decisions, through state program general permits, water quality certification, or program assumption.

Under any regulation defining “waters of the United States,” property owners may obtain from the Corps jurisdictional determinations whether waters on their property are subject to the Clean Water Act. The Corps' regulations provide that a jurisdictional determination consists of “a written Corps determination that a wetland and/or waterbody is subject to regulatory jurisdiction under Section 404 of the Clean Water Act (33 U.S.C. 1344) or a written determination that a waterbody is subject to regulatory jurisdiction under Section 9 or 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401

et seq.

).”

See

33 CFR 331.2. These jurisdictional determinations can be obtained at no charge to the property owners.

See

33 CFR 325.1 (omitting mention of fees for jurisdictional determinations) and Regulatory Guidance Letter 16-01 (2016) (stating that such determinations are issued as a “public service”).

2. The 1986 Regulations Defining “Waters of the United States”

In 1973, EPA published regulations defining “navigable waters” broadly to include traditional navigable waters; tributaries of traditional navigable waters; interstate waters; and intrastate lakes, rivers, and streams used in interstate commerce. 38 FR 13528, 13528-29 (May 22, 1973). The Corps published regulations in 1974 defining the term “navigable waters” to mean “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.” 39 FR 12115, 12119 (April 3, 1974); 33 CFR 209.120(d)(1) (1974);

see also

33 CFR 209.260(e)(1) (1974) (explaining that “[i]t is the water body's capability of use by the public for purposes of transportation or commerce which is the determinative factor”).

Several federal courts then held that the Corps had given “waters of the

United States” an unduly restrictive reading in its regulations implementing Clean Water Act section 404.

See, e.g., United States

Holland,

373 F. Supp. 665, 670-676 (M.D. Fla. 1974). EPA and the House Committee on Government Operations agreed with the decision in

Holland.

Natural Resources Defense Council, Inc.

Callaway,

392 F. Supp. 685, 686 (D.D.C. 1975) (“

Callaway”

), the court held that in the Clean Water Act, Congress had “asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause of the Constitution. Accordingly, as used in the [Federal] Water [Pollution Control] Act, the term [`navigable waters'] is not limited to the traditional tests of navigability.” The court ordered the Corps to publish new regulations “clearly recognizing the full regulatory mandate of the [Federal] Water [Pollution Control] Act.”

Id.

EPA expressed the view that “the

Holland

decision provides a necessary step for the preservation of our limited wetland resources,” and that “the [

Holland

] court properly interpreted the jurisdiction granted under the [Clean Water Act] and Congressional power to make such a grant.”

See

section 404 of the Federal Water Pollution Control Act Amendments of 1972: Hearings Before the Senate Comm. on Pub. Works, 94th Cong., 2d Sess. 349 (1976) (letter dated June 19, 1974, from Russell E. Train, Administrator of EPA, to Lt. Gen. W.C. Gribble, Jr., Chief of Corps of Engineers). Shortly thereafter, the House Committee on Government Operations discussed the disagreement between the two agencies (as reflected in EPA's June 19 letter) and concluded that the Corps should adopt the broader view of the term “waters of the United States” taken by EPA and by the court in

Holland. See

H.R. Rep. No. 93-1396, at 23-27 (1974). The Committee urged the Corps to adopt a new definition that “complies with the congressional mandate that this term be given the broadest possible constitutional interpretation.”

Id.

at 27 (internal quotation marks omitted).

In response to the district court's order in

Callaway,

the Corps promulgated interim final regulations providing for a phased-in expansion of its section 404 jurisdiction. 40 FR 31320 (July 25, 1975);

see

33 CFR 209.120(d)(2) and (e)(2) (1976). The interim regulations revised the definition of “waters of the United States” to include,

inter alia,

waters (sometimes referred to as “isolated waters”) that are not connected by surface water or adjacent to traditional navigable waters. 33 CFR 209.120(d)(2)(i) (1976).

On July 19, 1977, the Corps published its final regulations, in which it revised the 1975 interim regulations to clarify many of the definitional terms. 42 FR 37122 (July 19, 1977). The 1977 final regulations defined the term “waters of the United States” to include,

inter alia,

“isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.” 33 CFR 323.2(a)(5) (1978);

see also

40 CFR 122.3 (1979).

Phase I, which was immediately effective, included coastal waters and traditional inland navigable waters and their adjacent wetlands. 40 FR 31321, 31324, 31326 (July 25, 1975). Phase II, which took effect on July 1, 1976, extended the Corps' jurisdiction to lakes and certain tributaries of Phase I waters, as well as wetlands adjacent to the lakes and certain tributaries.

Id.

Phase III, which took effect on July 1, 1977, extended the Corps' jurisdiction to all remaining areas encompassed by the regulations, including “intermittent rivers, streams, tributaries, and perched wetlands that are not contiguous or adjacent to navigable waters.”

Id.

at 31325;

see also

42 FR 37124 (July 19, 1977) (describing the three phases).

An explanatory footnote published in the Code of Federal Regulations stated that “[p]aragraph (a)(5) incorporates all other waters of the United States that could be regulated under the Federal government's Constitutional powers to regulate and protect interstate commerce.” 33 CFR 323.2(a)(5), at 616 n.2 (1978).

In 1986, the Corps consolidated and recodified its regulatory provisions defining “waters of the United States” for purposes of implementing the section 404 program.

See

51 FR 41216-17 (November 13, 1986). These regulations reflected the interpretation of both agencies. While EPA and the Corps also have separate regulations defining the statutory term “waters of the United States,” their interpretations, reflected in the 1986 regulations, have been identical and remained largely unchanged from 1977 to 2015.

See

42 FR 37122, 37124, 37127 (July 19, 1977).

EPA's comparable regulations were recodified in 1988 (53 FR 20764, June 6, 1988), and both agencies added an exclusion for prior converted cropland in 1993 (58 FR 45008, 45031, August 25, 1993). For convenience, the agencies in this preamble will generally cite the Corps' longstanding regulations and will refer to “the 1986 regulations” as inclusive of EPA's comparable regulations and the 1993 addition of the exclusion for prior converted cropland.

Multiple provisions in the Code of Federal Regulations contained the definition of the phrases “waters of the United States” and “navigable waters” for purposes of implementing the Clean Water Act, 33 U.S.C. 1362(7), and other water pollution protection statutes such as the Oil Pollution Act, 33 U.S.C. 2701(21). Some EPA definitions were added after 1986, but each conformed to the 1986 regulations except for variations in the waste treatment system exclusion.

See, e.g.,

55 FR 8666 (March 8, 1990); 73 FR 71941 (November 26, 2008).

The 1986 regulations define “waters of the United States” as follows (33 CFR 328.3 (2014))

There are some variations in the waste treatment system exclusion across EPA's regulations defining “waters of the United States.” The placement of the waste treatment system and prior converted cropland exclusions also varies in EPA's regulations.

The term waters of the United States means:

1. All waters which are currently used, or 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. All interstate waters including interstate wetlands;

3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

a. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

c. Which are used or could be used for industrial purposes by industries in interstate commerce;

4. All impoundments of waters otherwise defined as waters of the United States under this definition;

5. Tributaries of waters identified in paragraphs (a)(1) through (4) of this section;

6. The territorial seas;

7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1) through (6) of this section.

8. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of Clean Water Act (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.

Note that these categories in the 1986 regulations may be referred to by this numbering system (for example, (a)(1) through (a)(8) waters) throughout this preamble.

See

sections I.C.3 and I.C.4 of the Economic Analysis for the Proposed Rule for a comparison of regulatory categories between the NWPR and this proposed rule.

3. U.S. Supreme Court Decisions

The U.S. Supreme Court first addressed the scope of “waters of the United States” protected by the Clean

Water Act in

United States

Riverside Bayview Homes,

474 U.S. 121 (1985) (“

Riverside Bayview”

), which involved wetlands adjacent to a traditional navigable water in Michigan. In a unanimous opinion, the Court deferred to the Corps' judgment that adjacent wetlands are “inseparably bound up with the `waters' of the United States,” thus concluding that “adjacent wetlands may be defined as waters under the Act.”

Riverside Bayview,

474 U.S. at 134, 139. The Court observed that the broad objective of the Clean Water Act to restore the integrity of the nation's waters “incorporated a broad, systemic view of the goal of maintaining and improving water quality . . . . Protection of aquatic ecosystems, Congress recognized, demanded broad federal authority to control pollution, for `[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.' ”

Id.

at 132-33 (citing S. Rep. 92-414). The Court then stated: “In keeping with these views, Congress chose to define the waters covered by the Act broadly. Although the Act prohibits discharges into `navigable waters,' see CWA [sections] 301(a), 404(a), 502(12), 33 U.S.C. [sections] 1311(a), 1344(a), 1362(12), the Act's definition of `navigable waters' as `the waters of the United States' makes it clear that the term `navigable' as used in the Act is of limited import.”

Id.

at 133.

The Court also 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. 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. The Court then deferred to the agencies' interpretation: “In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.”

Id.

at 134.

The Court went on to note that to achieve the goal of preserving and improving adjacent wetlands that have significant ecological and hydrological impacts on traditional navigable waters, it was appropriate for the Corps to regulate all adjacent wetlands, even though some might not have any impacts on traditional navigable waters.

Id.

at 135 n.9. Indeed, the Court acknowledged that some adjacent wetlands might not have significant hydrological and biological connections with navigable waters, but concluded that the Corps' regulation was valid in part because such connections exist in the majority of cases.

Id.

The Court deferred to the Corps' definition of “adjacent”: “The term adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are `adjacent wetlands.' ” The Court expressly reserved the question of whether the Act applies to “wetlands that are not adjacent to open waters.”

Id.

at 131 n.8.

The Supreme Court again addressed the issue of Clean Water Act jurisdiction over “waters of the United States” in

Solid Waste Agency of Northern Cook County

U.S. Army Corps of Engineers,

531 U.S. 159 (2001) (“

SWANCC”

). In

SWANCC,

the Court (in a 5-4 opinion) held that the use of “isolated” non-navigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of federal authority under the Clean Water Act. The Court noted that in

Riverside Bayview

it had “found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands `inseparably bound up with the “waters” of the United States' ” and that “[i]t was the significant nexus between the wetlands and `navigable waters' that informed [the Court's] reading of the Clean Water Act” in that case.

Id.

at 167.

While recognizing that in

Riverside Bayview

it had found the term “navigable” to be of limited import, the Court in

SWANCC

noted that the term “navigable” could not be read entirely out of the Act.

Id.

at 172. The Court stated: “We said in

Riverside Bayview Homes

that the word `navigable' in the statute was of `limited import' and went on to hold that [section] 404(a) extended to non-navigable wetlands adjacent to open waters. But it is one thing to give a word limited effect and quite another to give it no effect whatever. The term `navigable' has at least the import of showing us 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.”

Id.

at 172 (internal citations omitted).

The Court found that the exercise of Clean Water Act regulatory authority over discharges into the ponds, on the grounds that their use by migratory birds is within the power of Congress to regulate activities that in the aggregate have a substantial effect on interstate commerce, raised questions.

Id.

at 173. The Court explained that “[w]here 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, and that 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 (citing

United States

Bass,

404 U.S. 336, 349 (1971)). The Court thus construed the Clean Water Act to avoid the constitutional questions related to the scope of federal authority authorized therein.

Id.

at 174.

Five years after

SWANCC,

the Court again addressed the Clean Water Act term “waters of the United States” in

Rapanos

United States,

547 U.S. 715 (2006) (“

Rapanos”

Rapanos

involved two consolidated cases in which the Act had been applied to wetlands adjacent to non-navigable tributaries of 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.

Id.

at 731 ((Scalia, J., plurality opinion) (“We have twice stated that the meaning of `navigable waters' in the Act is broader than the traditional understanding of that term,

SWANCC,

531 U.S. at 167, 121 S. Ct. 675, 148 L. Ed. 2d 576;

Riverside Bayview,

474 U.S. at 133, 106 S. Ct. 455, 88 L. Ed. 2d 419.”)).

A four-Justice plurality in

Rapanos

interpreted the term “waters of the United States” as covering “relatively permanent, standing or continuously flowing bodies of water,”

id.

at 739, that are connected to traditional navigable waters,

id.

at 742, as well as wetlands with a “continuous surface connection” to such water bodies,

id.

(Scalia, J., plurality opinion). The

Rapanos

plurality 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).

Justice Kennedy's concurring opinion took a different approach that was based

in the Court's

SWANCC

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

Id.

at 759 (citing

SWANCC,

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

Id.

at 780. Justice Kennedy's opinion notes that to be jurisdictional, such a relationship with traditional navigable waters must be more than “speculative or insubstantial.”

Id.

The four dissenting Justices in

Rapanos,

who would have affirmed the court of appeals' application of the agencies' regulation to find jurisdiction over the waters at issue, also concluded that the term “waters of the United States” encompasses,

inter alia,

all tributaries and wetlands that satisfy “either the plurality's [standard] or Justice Kennedy's.”

Id.

at 810 & n.14 (Stevens, J., dissenting). The four dissenting Justices stated: “The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation's waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps' resulting decision to treat these wetlands as encompassed within the term `waters of the United States' is a quintessential example of the Executive's reasonable interpretation of a statutory provision.”

Id.

at 788 (citation omitted).

In addition to joining the plurality's opinion, Chief Justice Roberts issued his own concurring opinion noting that the agencies “are afforded generous leeway by the courts in interpreting the statute they are entrusted to administer,” and the agencies thus have “plenty of room to operate in developing

some

notion of an outer bound to the reach of their authority” under the Clean Water Act.

Id.

at 758.

Neither the plurality nor the concurring opinions in

Rapanos

invalidated any of the regulatory provisions defining “waters of the United States.”

4. Post-Rapanos Appellate Court Decisions

The earliest post-

Rapanos

decisions by the United States Courts of Appeals focused on which standard to apply in interpreting the scope of “waters of the United States”—the plurality's or Justice Kennedy's. Chief Justice Roberts anticipated this question and cited

Marks

United States,

430 U.S. 188 (1977) in his concurring opinion to

Rapanos

as applicable precedent.

Marks

United States

provides that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds.” The dissenting Justices in

Rapanos

also spoke to future application of the divided decision. While Justice Stevens stated that he assumed Justice Kennedy's significant nexus standard would apply in most instances, the dissenting Justices noted that they would find the Clean Water Act extended to waters meeting either the relatively permanent standard articulated by Justice Scalia or the significant nexus standard described by Justice Kennedy.

Rapanos,

547 U.S. at 810 & n.14 (Stevens, J., dissenting).

Since

Rapanos,

every court of appeals to have considered the question has determined that the government may exercise Clean Water Act jurisdiction over at least those waters that satisfy the significant nexus standard set forth in Justice Kennedy's concurrence. None has held that solely the plurality's relatively permanent standard may be used to establish jurisdiction. Some have held that the government may establish jurisdiction under either standard. The Eleventh Circuit has held that only Justice Kennedy's standard applies.

Precon Dev. Corp.

U.S. Army Corps of Eng'rs,

633 F.3d 278 (4th Cir. 2011);

see also Puget Soundkeeper All.

Wheeler,

No. 15-01342 (W.D. Wash. Nov. 26, 2018) (vacating the Applicability Date Rule nationwide).

2. The 2019 Repeal Rule

On February 28, 2017, Executive Order 13778 “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule,” directed EPA and the Army to review the 2015 Clean Water 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. 82 FR 12497 (March 3, 2017). The Executive Order also directed the agencies to “consider interpreting the term `navigable waters' . . . in a manner consistent with” Justice Scalia's opinion in

Rapanos. Id.

Consistent with this directive, after notice and comment, on October 22, 2019, the agencies published a final rule repealing the 2015 Clean Water Rule and recodifying the 1986 regulations without any changes to the regulatory text. 84 FR 56626 (October 22, 2019).

3. The 2020 Navigable Waters Protection Rule

Three months later, on January 23, 2020, the agencies signed another final rule--the Navigable Waters Protection Rule: Definition of “Waters of the United States” (NWPR)--that for the first time defined “waters of the United States” based generally on Justice Scalia's plurality test from

Rapanos.

The NWPR was published on April 21, 2020, and went into effect on June 22, 2020. 85 FR 22250 (April 21, 2020). The NWPR interpreted the term “the waters” within “the waters of the United States” to “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific surface water connection to traditional navigable waters, as well as wetlands that abut or are otherwise inseparably bound up with such relatively permanent waters.”

Id.

at 22273. Specifically, the rule established four categories of jurisdictional waters: (1) The territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than jurisdictional wetlands).

Id.

at 22273.

The NWPR defined the scope of each of these four categories. The territorial seas and traditional navigable waters were defined consistent with the agencies' longstanding interpretations of those terms. A “tributary” was defined 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 was required to be perennial or intermittent in a typical year. The term “tributary” included 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.

Id.

at 22251. The definition did not include ephemeral features, which were defined as surface waters that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools.

Id.

The NWPR defined “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.”

Id.

A lake, pond, or impoundment of a jurisdictional water did not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through certain artificial or natural features. The NWPR also defined a lake, pond, or impoundment of a jurisdictional water inundated by flooding from a jurisdictional water in a typical year as jurisdictional.

Id.

As for wetlands, the NWPR interpreted “adjacent wetlands” to be those wetlands that abut jurisdictional waters and those non-abutting wetlands that are (1) “inundated by flooding” from a jurisdictional water in a typical year, (2) physically separated from a jurisdictional water only by certain natural features (

e.g.,

a berm, bank, or dune), or (3) physically separated from a jurisdictional water by an artificial structure that “allows for a direct hydrologic surface connection” between the wetland and the jurisdictional water in a typical year.

Id.

at 22251. Wetlands that do not have these types of connections to other waters were not jurisdictional.

The NWPR expressly provided that waters that do not fall into one of these jurisdictional categories are not considered “waters of the United States.”

Id.

Moreover, waters within these categories, including traditional navigable waters and the territorial seas, were not “waters of the United States” if they also fit within the NWPR's broad exclusions.

See id.

at 22325 (“If the water meets any of the[ ] exclusions, the water is excluded even if the water satisfies one or more conditions to be a [jurisdictional] water.”).

The rule excluded groundwater, including groundwater drained through subsurface drainage systems; ephemeral features; 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; artificial lakes and ponds; water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to

mining or construction activity; 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; groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and waste treatment systems.

The NWPR's exclusion for ditches, however, explicitly did not encompass ditches that are traditional navigable waters or jurisdictional tributaries. 33 CFR 328.3(b)(5).

4. Legal Challenges to the Rules

Starting with the 2015 Clean Water Rule, the agencies' rulemakings to revise the definition of “waters of the United States” have been subject to multiple legal challenges.

Multiple parties sought judicial review of the 2015 Clean Water Rule in various district and circuit courts. On January 22, 2018, the Supreme Court, in a unanimous opinion, held that rules defining the scope of “waters of the United States” are subject to direct review in the district courts.

Nat'l Ass'n of Mfrs.

Dep't of Def.,

138 S. Ct. 617 (2018). Several of those district court cases remain pending.

While the 2015 Clean Water Rule went into effect in some parts of the country in August 2015, due to multiple injunctions

and later rulemakings, the 2015 Clean Water Rule was never implemented nationwide.

See, e.g., North Dakota

EPA,

No. 15-00059 (D.N.D.);

Ohio

EPA,

No. 15-02467 (S.D. Ohio);

Southeastern Legal Found.

EPA,

No. 15-02488 (N.D. Ga.).

See, e.g., North Dakota

EPA,

127 F. Supp. 3d 1047 (D.N.D. 2015) (preliminary injunction barring implementation of the 2015 Clean Water Rule in 13 states);

Georgia

Pruitt,

326 F. Supp. 3d 1356 (S.D. Ga. June 6, 2018) (same as to 11 states);

Texas

EPA,

No. 3:15-cv-162, 2018 WL 4518230 (S.D. Tex. Sept. 12, 2018) (same as to 3 states). See section I.A of the Technical Support Document for the Proposed “Revised Definition of `Waters of the United States'” Rule (“Technical Support Document”; located in the docket for this action), for a comprehensive history of the effects of the litigation against the 2015 Clean Water Rule.

A number of pending cases involve claims against the NWPR. On August 30, 2021, the U.S. District Court for the District of Arizona remanded the NWPR and vacated the rule.

Pascua Yaqui Tribe

EPA,

No. 4:20-cv-00266, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021). The court found that “[t]he seriousness of the Agencies' errors in enacting the NWPR, the likelihood that the Agencies will alter the NWPR's definition of `waters of the United States,' and the possibility of serious environmental harm if the NWPR remains in place upon remand, all weigh in favor of remand with vacatur.”

Id.

at *5. On September 27, 2021, the U.S. District Court for the District of New Mexico also issued an order vacating and remanding the NWPR.

Navajo Nation

Regan,

No. 2:20-cv-00602 (D.N.M. Sept. 27, 2021). In vacating the rule, the court agreed with the reasoning of the

Pascua Yaqui

court that the NWPR suffers from “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR's definition of `waters of the United States.'” Slip. op. at 6. Six courts also remanded the NWPR without vacatur or without addressing vacatur.

Order,

Pueblo of Laguna

Regan,

No. 1:21-cv-00277, ECF No. 40 (D.N.M. Sept. 21, 2021) (declining to reach issue of vacatur in light of the

Pascua

decision); Order,

California

Wheeler,

No. 3:20-cv-03005, ECF No. 271 (N.D. Cal. Sept. 16, 2021) (same);

Waterkeeper All.

Regan,

No. 3:18-cv-03521, ECF No. 125 (N.D. Cal. Sept. 16, 2021) (same); Order,

Conservation Law Found.

EPA,

No. 1:20-cv-10820, ECF No. 122 (D. Mass. Sept. 1, 2021) (same); Order,

S.C. Coastal Conservation League

Regan,

No. 2:20-cv-01687, ECF No. 147 (D.S.C. July 15, 2021) (remanding without vacating); Order,

Murray

Wheeler,

No. 1:19-cv-01498, ECF No. 46 (N.D.N.Y. Sept. 7, 2021) (same).

At this time, 14 cases are pending challenging the agencies' rules defining “waters of the United States,” including the 2015 Clean Water Rule, 2019 Repeal Rule, and the NWPR.

Some of these cases challenge only one of the rules, while others challenge two or even all three rules in the same lawsuit. See section I.A of the Technical Support Document for a comprehensive history of the effects of the litigation surrounding the 2015 Clean Water Rule, 2019 Repeal Rule, and the NWPR.

Pascua Yaqui Tribe

EPA,

No. 20-00266 (D. Ariz.);

Colorado

EPA,

No. 20-01461 (D. Colo.);

Am. Exploration & Mining Ass'n

EPA,

No. 16-01279 (D.D.C.);

Envtl. Integrity Project

Regan,

No. 20-01734 (D.D.C.);

Se. Stormwater Ass'n

EPA,

No. 15-00579 (N.D. Fla.);

Se. Legal Found.

EPA,

No. 15-02488 (N.D. Ga.);

Chesapeake Bay Found.

Regan,

Nos. 20-1063 & 20-1064 (D. Md.);

Navajo Nation

Regan,

No. 20-00602 (D.N.M.);

N.M. Cattle Growers' Ass'n

EPA,

No. 19-00988 (D.N.M.);

North Dakota

EPA,

No. 15-00059 (D.N.D.);

Ohio

EPA,

No. 15-02467 (S.D. Ohio);

Or. Cattlemen's Ass'n

EPA,

No. 19-00564 (D. Or.);

S.C. Coastal Conservation League

Regan,

No. 19-03006 (D.S.C.);

Puget Soundkeeper All.

EPA,

No. 20-00950 (W.D. Wash.);

Wash. Cattlemen's Ass'n

EPA,

No. 19-00569 (W.D. Wash.).

5. 2021 Executive Order and Review of the Navigable Waters Protection Rule

On January 20, 2021, President Biden signed Executive Order 13990, entitled “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which provides that “[i]t is, therefore, the policy of my Administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.” 86 FR 7037 (published January 25, 2021, signed January 20, 2021). The order “directs all executive departments and agencies (agencies) to immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis.”

Id.

at section 2(a). “For any such actions identified by the agencies, the heads of agencies shall, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding the agency actions.”

Id.

The order also revoked Executive Order 13778 of February 28, 2017 (Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule), which had initiated development of the NWPR.

In conformance with Executive Order 13990, the agencies reviewed the NWPR to determine if it is aligned with the principles laid out therein:

Science:

Science plays a critical role in understanding how to protect the integrity of our nation's waters. As discussed in detail below,

see

section V.B.3 of this preamble, the NWPR did not properly consider the extensive scientific evidence demonstrating the interconnectedness of waters and their downstream effects, thereby undermining Congress's objective to restore and maintain the chemical, physical, and biological integrity of the nation's waters. The NWPR's definition of “waters of the United States” does not adequately consider the way pollution moves through waters or the way filling in a wetland affects downstream water resources.

Climate:

Science has established that human and natural systems have been extensively impacted by climate change. Climate change can have a variety of impacts on water resources in particular.

See

Technical Support Document section III.C. For instance, a warming climate is already increasing precipitation in many areas (

e.g.,

the Northeast and Midwest), while decreasing precipitation in other areas (

e.g.,

the Southwest). Climate change can also increase the intensity of

precipitation events, including storms, and runoff from these storms can impair water quality as pollutants deposited on land wash into water bodies. Changes in streamflow, snowmelt timing, snowpack accumulation, and the size and frequency of heavy precipitation events can also cause river floods to become larger or more frequent than they used to be in some places. Climate change also affects streamflow characteristics like the magnitude and timing of flows, in part due to changes in snowpack magnitude and seasonality. As the climate continues to change, many historically dry areas are likely to experience less precipitation and increased risk of drought associated with more frequent and intense heatwaves, which can cause streams and wetlands to become drier, negatively affecting both water supplies and water quality. Lower streamflow and groundwater levels can also increase events such as wildfires, which can alter water quality and impact wetlands and their functions. A warming climate can also result in increased and more variable temperatures in streams, leading to fish kills and negatively affecting other aquatic species that can live only in colder water. Finally, rising sea levels associated with climate change are inundating low-lying wetlands and dry land and further contributing to coastal flooding and erosion.

Although water resources are vulnerable to the effects of climate change, they perform a variety of functions that can help restore ecological function of other water resources in light of climate change (

i.e.,

contribute to climate resiliency) and mitigate the negative effects of climate change on other water resources including traditional navigable waters, interstate waters, and the territorial seas. For instance, wetlands inside and outside of floodplains are well-known to store large volumes of floodwaters, thereby protecting downstream watersheds from potential flooding. Coastal wetlands can also help buffer storm surges, which are becoming more frequent due to climate change. Additionally, small streams are particularly effective at retaining and attenuating floodwaters. As natural filters, wetlands help purify and protect the quality of other waters, including drinking water sources—a function which is more important than ever as intense precipitation events spurred on by a changing climate mobilize sediment, nutrients, and other pollutants. Biological communities and geomorphic processes in small streams and wetlands break down leaves and other organic matter, burying and sequestering a portion of that carbon that could otherwise be released to the atmosphere and lead to continued negative effects on water resources.

The NWPR did not appropriately acknowledge or take account of the effects of a changing climate on the chemical, physical, and biological integrity of the nation's waters. For example, its rolling thirty-year approach to determining a “typical year” does not allow the agencies flexibility to account for the effects of a rapidly changing climate, including positive trends in temperature, increasing storm events, and extended droughts (

see

section V.B.3.c of this preamble). The NWPR also excluded ephemeral streams and their adjacent wetlands in the arid West from the definition of “waters of the United States.” These aquatic systems are increasingly critical to protecting and maintaining downstream integrity as the climate in that region continues to get hotter and drier, but with altered monsoon seasons with fewer but more intense storms that contribute to flashy hydrology (

i.e.,

higher runoff volume, leading to more rapidly rising and falling streamflow over shorter periods of time).

Section V.A.2.c.iv of this preamble contains a discussion of how the agencies believe that climate change can be appropriately considered in implementing the proposed rule.

Environmental Justice:

The agencies recognize that the burdens of environmental pollution and climate change often fall disproportionately on population groups of concern (

e.g.,

minority, low-income, and indigenous populations as specified in Executive Order 12898). Numerous groups have raised concerns that the NWPR had disproportionate impacts on tribes and indigenous communities.

The NWPR decreased the scope of Clean Water Act jurisdiction across the country, including in geographic regions where regulation of waters beyond those covered by the Act is not authorized under current state or tribal law (

see

section V.B.3.d of this preamble). Absent regulations governing discharges of pollutants into previously jurisdictional waters, population groups of concern where these waters are located may experience increased water pollution and impacts from associated increases in health risk.

See, e.g.,

Tribal Consultation Comment Letter from President Jonathan Nez and Vice President Myron Lizer, Navajo Nation, October 4, 2021 (“The Navajo Nation relies greatly on all its surface waters, including ephemeral, intermittent, and perennial surface waters. The Navajo Nation currently lacks the resources to implement CWA permitting and other programs necessary to maintain and protect water quality and relies on the Agencies to fill that need. Therefore, any new WOTUS rule must not reduce the scope of the waters that the Agencies can protect, or it will have `disproportionately high and adverse human health or environmental effects' on the Navajo Nation.”), and Tribal Consultation Comment Letter from Clarice Madalena, Interim Director, Natural Resources Department, Pueblo of Jemez, October 4, 2021 (“The combination of these factors—[desert] hydrology and the geographic location of Native communities—means that the Navigable Waters Rule had the effect of disparately stripping Clean Water Act protections from areas with higher Native populations. This means that the Rule disproportionately harmed Native American communities. This discriminatory impact violates the principles of environmental justice” (citations omitted).

See, also,

section V.B.3.d of this preamble and the Technical Support Document.

Further, the NWPR categorically excluded ephemeral streams from jurisdiction, which disproportionately impacts tribes and population groups of concern in the arid West. Tribes may lack the authority and often the resources to regulate waters within their boundaries, and they may also be affected by pollution from adjacent jurisdictions.

Therefore, the change in jurisdiction under the NWPR may have disproportionately exposed tribes to increased pollution and health risks.

See supra

at note 18.

After completing the review and reconsidering the record for the NWPR, on June 9, 2021, the agencies announced their intention to revise or replace the rule. The factors the agencies found most relevant in making this decision are: The text of the Clean Water Act; Congressional intent and the objective of the Clean Water Act; Supreme Court precedent; the current and future harms to the chemical, physical, and biological integrity of the nation's waters due to the NWPR; concerns raised by stakeholders about the NWPR, including implementation-related issues; the principles outlined in the Executive Order; and issues raised in ongoing litigation challenging the NWPR. EPA and the Army concluded that the NWPR did not appropriately consider the effect of the revised definition of “waters of the United States” on the integrity of the nation's waters, and that the rule threatened the loss or degradation of waters critical to the protection of traditional navigable waters, among other concerns.

C. Summary of Stakeholder Outreach

EPA held a series of stakeholder meetings during the agencies' review of the NWPR, including specific meetings in May 2021 with industry, environmental organizations, agricultural organizations, and state associations. On July 30, 2021, the

agencies signed a

Federal Register

notice that announced a schedule for initial public meetings to hear from interested stakeholders on their perspectives on defining “waters of the United States” under the Clean Water Act and how to implement the definition. 86 FR 41911 (August 4, 2021). The agencies also announced their intent to accept written pre-proposal recommendations from members of the public for a 30-day period beginning on August 4, 2021, and concluding on September 3, 2021. The agencies received over 32,000 recommendation letters from the public, which can be found in the pre-proposal docket (Docket ID EPA-HQ-OW-2021-0328). The agencies also announced their plans for future engagement opportunities, including geographically focused roundtables to provide for broad, transparent, regionally focused discussions among a full spectrum of stakeholders. The

Federal Register

notice articulated several specific issues that the agencies are particularly interested in receiving feedback on, including implementation of previous regulatory regimes; regional, state, and tribal interests; identification of relevant science; environmental justice interests; climate implications; the scope of jurisdictional waters such as tributaries, jurisdictional ditches, and adjacent features; and exclusions from jurisdiction.

The agencies also have engaged state and local governments over a 60-day federalism consultation period during development of this proposed rule, beginning with an initial federalism consultation meeting on August 5, 2021, and concluding on October 4, 2021. Additional information about the federalism consultation can be found in section VII.E of this preamble and in the report summarizing consultation and additional outreach to state and local governments, available in the docket (Docket ID No. EPA-HQ-OW-2021-0602) for this proposed rule. On September 29, October 6, and October 20, 2021, the agencies hosted virtual meetings with states focused on implementation of prior “waters of the United States” regulatory regimes.

The agencies received input from a wide variety of states and local governments through virtual meetings, consultation letters, and recommendation letters submitted to the public docket. Many of these groups encouraged meaningful dialogue between the states, local governments, and the agencies, and identified implementation challenges with determining the jurisdiction of waters under the pre-2015 regulatory regime. States and local governments stressed the need for guidance, training, and tools early in the process to help with implementing any revised definition of “waters of the United States.” A few also requested the agencies to consider a delayed effective date for revised definitions of “waters of the United States” to give state and local partners time to revise and develop new policies. Many state and local governments emphasized the variability of water resources across the United States and supported regionalized criteria for determining jurisdictional waters. Some of these groups noted the importance of strong Federal standards and the regulation of interstate waters, since pollutants from upstream states can enter waters within their borders.

States and local governments held divergent views on the agencies' plans to revert to the pre-2015 regulatory regime, and on which water resources should be considered “waters of the United States.” Some supported the NWPR and recommended the agencies generally retain and revise that rule. These state and local entities believed that the NWPR provided a clear definition for “waters of the United States,” maintained a balance between federal and state jurisdiction, and appropriately excluded waters that should not be subject to the Clean Water Act. Others supported the agencies' current rulemaking efforts as they thought the NWPR was not protective enough and did not account for the complexities of the hydrologic cycle, importance of ephemeral waters, or the connections among waters on the landscape. State and local governments held differing opinions on how the criteria for jurisdiction of ephemeral streams, ditches, tributaries, and wetlands should be determined, and which resources should be included in the scope of the Clean Water Act.

Several state and local governments recommended consideration of climate change and environmental justice concerns in any new rulemaking effort. Some emphasized that isolated wetlands and ephemeral streams are important in reducing flooding during extreme weather events and that the agencies should consider this importance in the rulemaking. Others acknowledged the impacts of climate change but stated that other programs and legislation are more appropriate ways to address climate change. Some state and local governments also noted that NWPR excluded wetlands that are important to minority and low-income communities and that future rulemaking needs to consider environmental justice issues.

The agencies also initiated a tribal consultation and coordination process on July 30, 2021. The agencies engaged tribes over a 66-day tribal consultation period during development of this proposed rule that concluded on October 4, 2021, including two consultation kick-off webinars and meetings. The agencies received consultation comment letters from 24 tribes and three tribal organizations and held three leader-to-leader consultation meetings and two staff-level meetings with tribes at their request. The agencies anticipate that consultation meetings with additional tribes will be held with tribes during the rulemaking process. Many tribes and tribal organizations expressed support for the agencies' efforts to replace the NWPR. One tribe did not support the agencies' efforts to revise the definition of “waters of the United States,” stating tribal sovereignty concerns and concerns that the agencies might exceed the power of Congress under the Commerce Clause. Some tribes stated that the NWPR disadvantaged tribes because unlike states, many tribes lack the resources to enforce a definition of “tribal waters” that is broader than the definition of “waters of the United States.” Several tribes also stated that they rely on the Federal government to permit discharges of pollutants into waters on their lands and do not have the resources to administer their own permitting programs. Some tribes spoke of the importance of protecting ephemeral streams, which were eliminated from jurisdiction under the NWPR, as well as for wetlands that were excluded under the NWPR. Several tribes spoke about the need to include “waters of the tribe” into the definition of “waters of the United States” Several tribes stated support for furthering environmental justice with the proposed rule, noting that the agencies failed to undertake an environmental justice analysis for the NWPR. Some tribes also supported the need to account for climate change in the definition of “waters of the United States.” Additional information about the tribal consultation process can be found in section VII.F of this preamble and the Summary of Tribal Consultation and Coordination, which is available in the docket for this proposed rule. On October 7, 13, 27, and 28, 2021, the agencies hosted virtual dialogues with tribes focused on implementation of prior “waters of the United States” regulatory regimes.

Consistent with the August 4, 2021

Federal Register

notice, the agencies held six public meeting webinars on

August 18, August 23, August 25 (specifically for small entities), August 26, August 31, and September 2, 2021. At these pre-proposal webinars, the agencies provided a brief presentation and sought input on the agencies' intent to revise the definition of “waters of the United States” and the specific issues included in the outreach

Federal Register

notice described above. The agencies heard from stakeholders representing a diverse range of interests, positions, suggestions, and recommendations.

The agencies have received a variety of recommendations during this pre-proposal outreach process. The agencies received broad support for robust stakeholder outreach and the development of a rule that is consistent with Supreme Court precedent. Stakeholders disagreed about whether states and tribes could or would fill any perceived gap in permitting introduced by the NWPR's decreased scope of jurisdiction, with some stakeholders providing examples of environmental harms caused by the NWPR. Some stakeholders expressed support for a science-based rule, including stakeholders who believed the NWPR did not adequately consider the agencies' scientific record. Most stakeholders who provided input supported a clear, implementable rule that is easy for the public to understand, and the agencies received feedback that the significant nexus standard and typical year analysis were challenging to implement under prior regulatory regimes.

Many stakeholders also emphasized the importance of regional geographic variability across the United States, and some stakeholders suggested that the agencies consider regionally specific criteria for jurisdictional waters. Some stakeholders emphasized the importance of climate change considerations in any new rulemaking effort, while other stakeholders stated that climate change cannot be used as a tool to expand jurisdictional authority. Some stakeholders explicitly supported the consideration of impacts to minority and low-income communities in developing a revised definition of “waters of the United States” and asserted that the NWPR did not consider impacts to these communities.

Stakeholders also provided feedback on which water resources should be considered jurisdictional as “waters of the United States.” For instance, some stakeholders supported a jurisdictional category for interstate waters, while others opposed such a category. Stakeholders differed in whether they supported the criteria for jurisdictional tributaries, wetlands, and ditches under the pre-2015 regulatory regime, 2015 Clean Water Rule, or NWPR. Some stakeholders suggested that the agencies should enhance clarity by using physical indicators, functional characteristics, or surface water flow as jurisdictional criteria. Some stakeholders asserted that the agencies should exclude most ditches from the definition of “waters of the United States,” while others stated that the agencies should instead include ditches as jurisdictional if they function as tributaries or have other connections to other hydrologic features in the watershed. Some stakeholders indicated that impoundments and “other waters” are not appropriate categories of jurisdictional waters, while others suggested regulating a broad spectrum of open waters.

Stakeholders expressed different views about which exclusions are important and should be included in a revised definition of “waters of the United States.” Many stakeholders noted that the waste treatment system exclusion and prior converted cropland exclusion should be retained, and some stakeholders expressed support for other exclusions such as stormwater control features and artificial lakes and ponds. As described in section V.C.8 of this preamble, the agencies are proposing to retain the waste treatment system exclusion and prior converted cropland exclusion from the 1986 regulations and have specified in the preamble that certain other waters are generally not considered “waters of the United States.” Stakeholders also had divergent views on whether ephemeral streams should be categorically excluded from the definition of “waters of the United States” or evaluated as tributaries. As described in section V.C.5 of this preamble, the agencies are not proposing to exclude ephemeral streams but are instead proposing that ephemeral streams that meet the significant nexus standard be jurisdictional as tributaries.

The agencies have considered the input that they received as part of the consultation processes and other opportunities for pre-proposal recommendations. The proposed rule, discussed in section V of this preamble, seeks to balance the considerations and concerns of co-regulators and stakeholders. The agencies welcome feedback on this proposed rule through a public hearing and the 60-day public comment period initiated through publication of this action. The agencies will consider all comments received during the comment period on this proposal, and this consideration will be reflected in the final rule and supporting documents.

V. Proposed Revised Definition

A. Basis for Proposed Rule

In this proposed rule, the agencies are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the familiar 1986 regulations, with amendments to reflect the agencies' determination of the statutory limits on the scope of the “waters of the United States” informed by Supreme Court precedent. The agencies propose to interpret the term “waters of the United States” to include: Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments of “waters of the United States”; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and “other waters” that meet either the relatively permanent standard or the significant nexus standard.

The proposed rule advances the Clean Water Act's statutory objective to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” section 101(a), as it is based on the best available science concerning the functions provided by upstream tributaries, adjacent wetlands, and “other waters” to restore and maintain the water quality of downstream foundational waters. In developing the proposed rule, the agencies also considered the statute as a whole, relevant Supreme Court case law, and the agencies' experience and expertise after more than 30 years of implementing the longstanding 1986 regulations defining “waters of the United States,” including more than a decade of experience implementing those regulations consistent with the decisions in

Riverside Bayview, SWANCC,

and

Rapanos

collectively. This proposed interpretation also reflects consideration of provisions of the Act including section 101(b) which states that “[i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources” because the limitations

reflect consideration of both the comprehensive nature and objective of the Clean Water Act and avoid assertions of jurisdiction that raise federalism concerns. Determining where to draw the boundaries of federal jurisdiction to ensure that the agencies achieve Congress's objective while preserving and protecting the responsibilities and rights of the states is a matter of judgment assigned by Congress to the agencies. The proposed rule's relatively permanent and significant nexus limitations appropriately draw this boundary by ensuring that where upstream waters significantly affect the integrity of the traditional navigable waters, interstate waters, and territorial seas, Clean Water Act programs will apply to ensure that those downstream waters are protected, and where they do not, the agencies will leave regulation to the states and tribes. These limitations are thus based on the agencies' conclusion that together those standards are consistent with the statutory text, advance the objective of the Act, are supported by the scientific record, and appropriately consider the objective in section 101(a) of the Act and the policy in section 101(b). In addition, because the proposed rule reflects consideration of the agencies' experience and expertise, as well as updates in implementation tools and resources, it is familiar and implementable.

For all these reasons, the proposed rule would achieve the agencies' goals of quickly and durably protecting the quality of the nation's waters. Quickly, because the regulatory framework is familiar to the agencies and stakeholders and supporting science is available along with confirmatory updates; and durably, because the foundation of the rule is the longstanding regulations amended to reflect the agencies' interpretation of appropriate limitations on the geographic scope of the Clean Water Act that is consistent with case law, the Act, and the best available science. The proposal would protect the quality of the nation's waters by restoring the important protections for jurisdictional waters provided by the Clean Water Act, including not only protections provided by the Act's permitting programs, but also protections provided by programs ranging from water quality standards and total maximum daily loads to oil spill prevention, preparedness and response programs, to the state and tribal water quality certification programs.

The proposed rule is based on the agencies' interpretation of the Clean Water Act, and the proposed rule's protection of water resources advances both the goals of the Act and the goals identified in the Executive Order, including: Listening to the science; improving public health and protecting our environment; ensuring access to clean water; limiting exposure to dangerous chemicals and pesticides; holding polluters accountable, including those who disproportionately harm communities of color and low-income communities; and bolstering resilience to the impacts of climate change.

1. The Proposed Rule Is Within the Agencies' Discretion Under the Act

The Clean Water Act delegates authority to the agencies to interpret the term “navigable waters” and its statutory definition “waters of the United States,” and agencies have inherent authority to reconsider past decisions and to revise, replace, or repeal a decision to the extent permitted by law and supported by a reasoned explanation. Given the regulatory and litigation history described above, there can be little disagreement that both terms under the Clean Water Act are ambiguous and that therefore the agencies have generous leeway to provide the considered and reasonable interpretation of the terms provided in this proposal. Indeed, the Supreme Court has twice held that the Act's terms “navigable waters” and “waters of the United States” are ambiguous and, therefore, that the agencies have delegated authority to reasonably interpret this phrase in the statute.

First, in

Riverside Bayview,

the Supreme Court deferred to and upheld the agencies' interpretation of the Act to protect wetlands adjacent to navigable-in-fact bodies of water, relying on the familiar

Chevron

standard that “[a]n agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress.” 474 U.S. at 131 (citing

Chevron U.S.A. Inc.

Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-45 (1984)). Second, in

Rapanos,

all Justices found ambiguity in the terms—albeit to varying degrees. In his concurring opinion, Justice Kennedy referenced “ambiguity in the phrase `navigable waters.' ” 547 U.S. at 780. So did the dissenting Justices.

See id.

at 796 (“[G]iven the ambiguity inherent in the phrase `waters of the United States,' the Corps has reasonably interpreted its jurisdiction[.]”) (Stevens, J., dissenting);

id.

at 811-12 (“Congress intended the Army Corps of Engineers to make the complex technical judgments that lie at the heart of the present cases (subject to deferential judicial review).”) (Breyer, J., dissenting). The plurality also agreed that the term “is in

some

respects ambiguous.”

Id.

at 752.

Ambiguity in a statute represents “delegations of authority to the agency to fill the statutory gap in reasonable fashion.”

Nat'l Cable & Telecomm. Ass'n

Brand X internet Servs.,

545 U.S. 967, 980 (2005). As the Supreme Court explained in

Riverside Bayview,

Congress delegated a “breadth of federal regulatory authority” and expected the agencies to tackle the “inherent difficulties of defining precise bounds to regulable waters.” 474 U.S. at 134. And, in concurring with the

Rapanos

plurality opinion, Chief Justice Roberts emphasized the breadth of the agencies' discretion in defining “waters of the United States” through rulemaking, noting that “[g]iven the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the [agencies] would have enjoyed plenty of room to operate in developing

some

notion of an outer bound to the reach of their authority” under the Clean Water Act. 547 U.S. at 758 (Roberts, C.J., concurring). Indeed, the agencies' interpretations under the Act, Chief Justice Roberts emphasized, are “afforded generous leeway by the courts.”

Id.

In addition, agencies have inherent authority to reconsider past decisions and to revise, replace, or repeal a decision to the extent permitted by law and supported by a reasoned explanation.

FCC

Fox Television Stations, Inc.,

556 U.S. 502, 515 (2009) (“

Fox”

);

Motor Vehicle Manufacturers Ass'n of the United States, Inc.

State Farm Mutual Automobile Insurance Co.,

463 U.S. 29, 42 (1983) (“

State Farm”

);

see also

38 FR 10834.

Riverside Bayview,

the Supreme Court deferred to the agencies' judgment that adjacent wetlands provide valuable functions for downstream waters:

[T]he Corps has concluded that wetlands may serve to filter and purify water draining into adjacent bodies of water and to slow the flow of surface runoff into lakes, rivers, and streams and thus prevent flooding and erosion. In addition, adjacent wetlands may “serve significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic . . . species.” . . . [W]e cannot say that the Corps' judgment on these matters is unreasonable . . . .

474 U.S. at 134-35 (citations omitted). The Supreme Court then unanimously held 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.”

Id.

at 135.

As discussed below and further in the Technical Support Document, the best available science supports the 1986 regulations' conclusions about the functions provided by adjacent wetlands to downstream traditional navigable waters, interstate waters, and the territorial seas, namely that adjacent wetlands provide valuable flood control and water quality functions including interruption and delay of the transport of water-borne contaminants over long distances, retention of sediment, prevention and mitigation of drinking water contamination, and assurance of drinking water supply.

The 1986 regulations also included “other waters” based on their effects on water quality and their effects on interstate commerce. 42 FR 37128. As discussed below and further in section IV.D of the Technical Support Document, the best available science also shows that “other waters”—such as depressional wetlands, open waters, and peatlands—can provide important hydrologic (

e.g.,

flood control), water quality, and habitat functions which vary as a result of the diverse settings in which they exist across the country and which can have downstream effects on larger rivers, lakes, and estuaries, particularly when considered collectively with other non-floodplain wetlands on the landscape. The

functions that “other waters” provide include storage of floodwater, recharge of ground water that sustains river baseflow, retention and transformation of nutrients, metals, and pesticides, export of organisms to downstream waters, and habitats needed for aquatic and semi-aquatic species that also utilize streams.

While the 1986 regulations are a reasonable foundation upon which to build the proposed rule, the agencies are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the familiar 1986 regulations, with amendments to reflect the agencies' interpretation of the statutory limits on the scope of the “waters of the United States” informed by Supreme Court decisions as discussed in section V.A.3 of this preamble.

c. The Proposed Rule Properly Considers the Objective by the Act Because It Is Informed by the Best Available Science on Water Quality

As noted above, the agencies propose to interpret the term “waters of the United States” to include: Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments of “waters of the United States”; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and “other waters” that meet either the relatively permanent standard or the significant nexus standard. The proposal is supported by the best available science on the functions provided by upstream waters, including wetlands, that are important for the chemical, physical, and biological integrity of foundational waters. The agencies' proposal is supported by a wealth of scientific knowledge. The scientific literature extensively illustrates the effects tributaries, wetlands adjacent to impoundments and tributaries, and “other waters” can and do have on the integrity of downstream traditional navigable waters, interstate waters, and the territorial seas. The relevant science on the relationship and downstream effects of streams, wetlands, and open waters has advanced considerably in recent years, and confirms the agencies' longstanding view that these waters can be subject to jurisdiction. A comprehensive report prepared by EPA's Office of Research and Development entitled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”

(hereafter the Science Report) in 2015 synthesized the peer-reviewed science. Since the release of the Science Report, additional published peer-reviewed scientific literature has strengthened and supplemented the report's conclusions. The agencies have summarized and provided an update on more recent literature and scientific support for this section in the Technical Support Document section II.

U.S. Environmental Protection Agency,

Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence

(Final Report), EPA/600/R-14/475F (2015),

available at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414.

Again, in the proposed rule, the agencies are not including all tributaries, adjacent wetlands, and “other waters” as jurisdictional waters. Rather, the agencies are concluding that proposing these longstanding, familiar categories of waters as subject to the relatively permanent or significant nexus jurisdictional standards is consistent with the best available science because waters in these categories can have significant effects on downstream foundational waters, and are therefore proposing to restore them from the 1986 regulations. The agencies are also proposing to add the relatively permanent and significant nexus standards based on their conclusion that together those standards are consistent with the statutory text, advance the objective and policies of the Act, and are supported by the scientific record. Indeed, the agencies are not reaching any conclusions, categorical or otherwise, about which tributaries, adjacent wetlands (other than those adjacent to traditional navigable waters, interstate waters, or the territorial seas), or “other waters” meet either the relatively permanent or the significant nexus standard. Instead, the proposal enables the agencies to make science-informed determinations of whether or not a water that falls within these categories meets either jurisdictional standard and is therefore a “water of the United States,” on a case-specific basis.

The agencies also reiterate their previous conclusion that significant nexus is not a purely scientific determination. 80 FR 37054, 37060 (June 29, 2015). As the agencies charged with interpreting the statute, EPA and the Corps must develop the outer bounds of the scope of the Clean Water Act and science does not provide bright line boundaries with respect to where “water ends” for purposes of the Clean Water Act.

Riverside Bayview,

474 U.S. at 132-33. This section summarizes the best available science in support of the longstanding categories of the 1986 regulation, and in support of the proposed rule and the agencies' conclusion that the proposal advances the objective of the Clean Water Act. This section reflects the scientific consensus on the strength of the effects that upstream tributaries, adjacent wetlands, and “other waters” can and do have on downstream foundational waters. However, a significant nexus determination requires legal, technical, and policy judgment, as well as scientific considerations, for example, to assess the significance of any effects. Section V.D of this preamble discusses the agencies' approaches to making case-specific relatively permanent and significant nexus determinations under the proposed rule.

Thus, while the agencies are not proposing to establish that any tributaries, adjacent wetlands (other than those wetlands adjacent to traditional navigable waters, interstate waters, and the territorial seas), or “other waters” are jurisdictional without the need for further assessment, they are proposing a rule that, based on the scientific record, identifies those categories of waters as subject to jurisdiction under the Clean Water Act under either the relatively permanent or significant nexus standard.

i. Tributaries Can Provide Functions That Restore and Maintain the Chemical, Physical, and Biological Integrity of Downstream Traditional Navigable Waters, Interstate Waters, and the Territorial Seas

Tributaries play an important role in the transport of water, sediments, organic matter, nutrients, and organisms to downstream foundational waters.

See

Technical Support Document section IV.A. Tributaries slow and attenuate floodwaters; provide functions that help maintain water quality; trap and transport sediments; transport, store and modify pollutants; and sustain the biological productivity of downstream mainstem waters. Tributaries can provide these functions whether they are natural, modified, or constructed and whether they are perennial, intermittent, or ephemeral.

All tributary streams, including perennial, intermittent, and ephemeral streams, are chemically, physically, and biologically connected to larger downstream waters via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported. Streams, even where seasonally dry, are

the dominant source of water in most rivers, rather than direct precipitation or groundwater input to mainstem river segments. Within stream and river networks, headwater streams make up most of the total channel length. The smallest streams represent an estimated three-quarters of the total length of stream and river channels in the United States.

Because of their abundance and location in the watershed, small streams offer the greatest opportunity for exchange between the water and the terrestrial environment.

The actual proportion may be much higher because this estimate is based on the stream networks shown on the U.S. Geological Survey (USGS) National Hydrography Dataset, which does not show all headwater streams.

In addition, compared with the humid regions of the country, stream and river networks in arid regions have a higher proportion of channels that flow ephemerally or intermittently. For example, in Arizona, most of the stream channels—96% by length—are classified as ephemeral or intermittent. The functions that streams provide to benefit downstream waters occur even when streams flow less frequently, such as intermittent or ephemeral streams. For example, ephemeral headwater streams shape larger downstream river channels by accumulating and gradually or episodically releasing stored materials such as sediment and large woody debris.

Due to the episodic nature of flow in ephemeral and intermittent channels, sediment and organic matter can be deposited some distance downstream in the arid Southwest in particular, and then moved farther downstream by subsequent precipitation events. Over time, sediment and organic matter continue to move downstream and influence larger downstream waters. These materials help structure downstream river channels by slowing the flow of water through channels and providing substrate and habitat for aquatic organisms.

Videos of ephemeral streams flowing after rain events in the Southwest highlight how effective ephemeral streams can be in transporting woody debris (

e.g.,

tree branches) and sediment downstream during the rainy season.

See, e.g.,

U.S. Department of Agriculture, Agricultural Research Service,

Multiflume Runoff Event August 1, 1990, https://www.tucson.ars.ag.gov/unit/WGWebcam/WalnutGulchWebcam.htm;

U.S. Geological Survey,

Post-fire Flash Flood in Coronado National Memorial, Arizona

(August 25, 2011),

https://www.youtube.com/watch?v=qJ8JxBZt6Ws;

Santa Clara Pueblo Fire/Rescue/EMS Volunteer Department, Greg Lonewolf,

#4 Santa Clara Pueblo Flash Flood Event 01 Sept 2013

(April 14, 2017),

https://www.youtube.com/watch?v=nKOQzkRi4BQ;

Rankin Studio,

Amazing Flash Flood/Debris Flow Southern Utah HD

(July 19, 2019),

https://www.youtube.com/watch?v=_yCnQuILmsM.

Stream and wetland ecosystems also process natural and human sources of nutrients, such as those found in leaves that fall into streams and those that may flow into creeks from agricultural fields. Some of this processing converts the nutrients into more biologically useful forms. Other aspects of the processing store nutrients, thereby allowing their slow and steady release and preventing the kind of short-term glut of nutrients that can cause algal blooms in downstream rivers or lakes. Small streams and their associated wetlands play a key role in both storing and modifying potential pollutants, ranging from chemical fertilizers to rotting salmon carcasses, in ways that maintain downstream water quality. Inorganic nitrogen and phosphorus, the main chemicals in agricultural fertilizers, are essential nutrients not just for plants, but for all living organisms. However, in excess or in the wrong proportions, these chemicals can harm natural systems and humans. Larger rivers process excess nutrients much more slowly than smaller streams. Loss of nutrient retention capacity in headwater streams is known to cause downstream water bodies to contain higher concentrations and loads of nitrogen and phosphorus. In freshwater ecosystems, eutrophication, the enriching of waters by excess nitrogen and phosphorus, reduces water quality in streams, lakes, estuaries, and other downstream water bodies. One obvious result of eutrophication is the excessive growth of algae. Too much algae clouds previously clear streams, such as those favored by trout. Algal blooms not only reduce water column visibility, but the microbial decay of algal blooms reduces the amount of oxygen dissolved in the water, sometimes to a degree that causes fish kills. Fish are not the only organisms harmed by eutrophication: Some of the algae species that grow in eutrophic waters generate tastes and odors or are toxic—a clear problem for stream systems, reservoirs, and lakes that supply drinking water for municipalities or that are used for swimming and other contact-recreational purposes. In addition, increased nitrogen and phosphorus and associated algal blooms can injure people and animals. Algal blooms can also lead to beach closures. In addition to causing algal blooms, eutrophication changes the natural community composition of aquatic ecosystems by altering environmental conditions.

Recycling organic carbon contained in dead plants and animals is another crucial function provided by headwater streams and wetlands. Ecological processes that transform inorganic carbon into organic carbon and recycle organic carbon are the basis for every food web on the planet. In freshwater ecosystems, much of the recycling happens in small streams and wetlands, where microorganisms transform everything from leaf litter and downed logs to dead salamanders into food for other organisms in the aquatic food web, including salmon. Like nitrogen and phosphorus, carbon is essential to life but can be harmful to freshwater ecosystems if it is present in excess or in the wrong chemical form. If all organic material received by headwater streams and wetlands went directly downstream, the glut of decomposing material could deplete oxygen in downstream rivers, thereby damaging and even killing fish and other aquatic life. The ability of headwater stream ecosystems to transform organic matter into more usable forms helps maintain healthy downstream ecosystems.

Microorganisms in headwater stream systems use material such as leaf litter and other decomposing material for food and, in turn, become food for other organisms. For example, fungi that grow on leaf litter become nutritious food for invertebrates that make their homes on the bottom of a stream, including mayflies, stoneflies, and caddis flies. These animals provide food for larger animals, including birds such as flycatchers and fish such as trout. The health and productivity of downstream traditional navigable waters, interstate waters, or the territorial seas depend in part on processed organic carbon delivered by upstream headwater systems.

To be clear, the agencies recognize that

SWANCC

held that the use of “isolated” non-navigable intrastate ponds by migratory birds was not by itself a sufficient basis for the exercise of federal regulatory authority under the Clean Water Act. Consideration of biological functions does not constitute an assertion of jurisdiction over a water based solely on its use by migratory birds; rather, the agencies would consider biological functions for purposes of significant nexus determinations under the proposed rule only to the extent that the functions provided by tributaries, adjacent wetlands, and “other waters” significantly affect the biological integrity of the downstream traditional navigable waters, interstate waters, or the territorial seas. For example, to protect Pacific and Atlantic salmon in traditional navigable waters (and their associated commercial and recreational fishing industries), headwater streams must be protected because Pacific and

Atlantic salmon require both freshwater and marine habitats over their life cycles and therefore migrate along river networks, providing one of the clearest illustrations of biological connectivity. Many Pacific salmon species spawn in headwater streams, where their young grow for a year or more before migrating downstream, live their adult life stages in the ocean, and then migrate back upstream to spawn. Even where they do not provide direct habitat for salmon themselves, ephemeral streams may contribute to the habitat needs of salmon by supplying sources of cold water that these species need to survive (

i.e.,

by providing appropriate physical conditions for cold water upwelling to occur at downstream confluences), transporting sediment that supports fish habitat downstream, and providing and transporting food for juveniles and adults downstream. These species thereby create a biological connection along the entire length of the river network and functionally help to maintain the biological integrity of the downstream traditional navigable water. Many other species of anadromous fish—that is fish that are born in freshwater, spend most of their lives in saltwater, and return to freshwater to lay eggs—as well as species of freshwater fish like rainbow trout and brook trout also require small headwater streams to carry out life cycle functions.

Based on the importance of the functions that can be provided by tributaries to foundational waters, the agencies' proposal to interpret the Clean Water Act to protect tributaries where those tributaries meet either the relatively permanent standard or the significant nexus standard reflects proper consideration of the objective of the Act and the best available science.

ii. Adjacent Wetlands Provide Functions That Restore and Maintain the Chemical, Physical, and Biological Integrity of Downstream Traditional Navigable Waters, Interstate Waters, and the Territorial Seas

Adjacent wetlands provide valuable flood control and water quality functions that affect the chemical, physical, and biological integrity of downstream foundational waters including interruption and delay of the transport of water-borne contaminants over long distances; retention of sediment; retention and slow release of flood waters; and prevention and mitigation of drinking water contamination and assurance of drinking water supply.

See

Technical Support Document section IV.B.

Because adjacent wetlands retain sediment and augment streamflow via the gradual release of groundwater or water flowing just beneath the solid surface, wetland loss correlates with increased need for dredging and unpredictability of adequate streamflow for navigation. The Supreme Court has recognized the importance of the physical integrity of upstream tributaries in overcoming sedimentation hazards to navigation.

United States

Rio Grande Dam Irrigation Co.,

174 U.S. 690 (1899). Headwater wetlands are located where erosion risk is highest and are therefore best suited to recapture and stabilize manageable amounts of sediment that might enter traditional navigable waters, interstate waters, or the territorial seas. Adjacent wetlands naturally serve to recapture and stabilize sediment carried by streams and rivers in times when flood flow distributes water across a floodplain.

Adjacent wetlands affect the integrity of downstream waters by retaining stormwater and slowly releasing floodwaters that could otherwise negatively affect the condition or function of downstream waters. The filling or draining of wetlands, including those that are close to the stream network, reduces water storage capacity in a watershed and causes runoff from rainstorms to overwhelm the remaining available water conveyance system. The resulting stream erosion and channel downcutting quickly drains the watershed as surface water leaves via incised (deeper) channels. Disconnecting the incised channel from the wetlands leads to more downstream flooding. As the adjacent wetlands remain disconnected, riparian vegetation and wetland functions are reduced. Because less water is available in groundwater and wetlands for slow release to augment streamflow during dry periods, the filling or draining of wetlands can make the timing and extent of navigability on some waterways less predictable during dry periods. Therefore, the filling or draining of adjacent wetlands, including headwater wetlands, can interfere with the ability to maintain navigability on the nation's rivers and harbors and can lead to flooding in larger downstream waters.

The loss of wetlands adjacent to tributaries of navigable waters, interstate waters, and the territorial seas can also result in notable reductions in drinking water supply and quality. Over 225 million people are served by nearly 15,000 public water systems using surface water such as streams, rivers, lakes, tributaries, and surface-water storage impoundments as a primary source of water. Though drinking water supplied through public water supplies is regulated by the Safe Drinking Water Act, many water suppliers also rely on source water protection efforts, as the quality of the drin

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