Updated Definition of “Waters of the United States”

Federal RegisterNov 20, 2025

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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-2025-0322; FRL 11132.1-01-OW]

RIN 2040-AG44

Updated 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 U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (“the agencies”) are publishing for public comment a proposed rule revising the regulations defining the scope of waters federally covered under the Federal Water Pollution Control Act, as amended, also known as the Clean Water Act, in light of the U.S. Supreme Court's 2023 decision in

Sackett

Environmental Protection Agency.

With this proposed rule, the agencies intend to provide greater regulatory certainty and increase Clean Water Act program predictability and consistency by clarifying the definition of “waters of the United States.” This proposed rule is also intended to implement the overall objective of the Clean Water Act to restore and maintain the quality of the Nation's waters while respecting State and Tribal authority over their own land and water resources.

DATES:

Comments must be received on or before January 5, 2026.

ADDRESSES:

You may send comments, identified by Docket ID No. EPA-HQ-OW-2025-0322, 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-2025-0322 in the subject line of the message.

•

Mail:

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

•

Hand Delivery or Courier:

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

Instructions:

All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to

https://www.regulations.gov,

including 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.

The agencies will hold two hybrid public meetings, and additional information can be found at

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

Refer to the

SUPPLEMENTARY INFORMATION

section below for additional information.

FOR FURTHER INFORMATION CONTACT:

Stacey Jensen, Oceans, Wetlands and Communities Division, Office of Water (4504-T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566-0657; email address:

CWAwotus@epa.gov,

and Milton Boyd, 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) 693-3655; email address:

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

A. Purpose of the Regulatory Action

B. Summary of the Major Provisions of the Regulatory Action

C. Costs and Benefits

II. Public Participation

A. Written Comments

B. Participation in Virtual and In-Person Public Meetings

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 cost savings and forgone benefits of this action?

IV. Background

A. Legal Background

1. History of Federal Waterways Regulation

2. The Federal Water Pollution Control Act

3. U.S. Supreme Court Decisions

B. The Agencies' Rules and Regulatory Regimes

1. Pre-2015 Regulatory Regime (Prior to Sackett)

2. The 2020 Navigable Waters Protection Rule

3. January 2023 Rule

4. Conforming Rule

5. Current Applicable Regulatory Regimes

6. March 12, 2025, “Continuous Surface Connection” Guidance

C. WOTUS Notice and Summary of Stakeholder Outreach

1. Relatively Permanent Waters

2. Continuous Surface Connection

3. Ditches

4. Implementation

5. Additional Feedback Including Further Exclusions

V. Proposed Revised Definition

A. Basis of the Proposed Rule

B. Interstate Waters

1. Basis for Eliminating as an Independent Basis for Jurisdiction

C. Relatively Permanent Waters

1. Definition and Scope of “Relatively Permanent” Waters

2. Basis for the Proposed Definition

3. Alternative Approaches

4. Definition of “Tributary”

5. Implementation

a. Implementation of “Relatively Permanent”

b. Implementation of Tributaries

D. “Continuous Surface Connection”

1. Definition and Scope of “Continuous Surface Connection”

2. Basis for the Proposed Definition

3. Alternative Approaches

4. Implementation of Adjacent Wetlands

E. Lakes and Ponds Assessed Under Paragraph (a)(5)

1. Deletion of “Intrastate”

2. Alternative Approaches

3. Implementation

F. Exclusions From the Definition of “Waters of the United States”

1. The Paragraph (b)(1) Waste Treatment System Exclusion and Paragraph (c)(11) Definition of “Waste Treatment System”

a. The Agencies' Proposed Revisions to the Waste Treatment System Exclusion

b. Basis for the Proposed Definition

c. Alternative Approaches

d. Implementation of the Waste Treatment System Exclusion

2. Definition of “Prior Converted Cropland” Under Paragraph (c)(7) and Scope of the (b)(2) Prior Converted Cropland Exclusion

a. Basis for the Proposed Definition

b. Alternative Approaches

c. Implementation of the Prior Converted Cropland Exclusion

3. Definition of “Ditch” and Scope of the (b)(3) Ditch Exclusion

a. Basis for the Proposed Definition

b. Alternative Approaches

c. Implementation of Ditch Exclusion

4. The Paragraph (b)(9) Groundwater Exclusion

a. Basis for the Proposed Exclusion

b. Implementation of Groundwater Exclusion

G. Publicly Available Jurisdictional Information and Permit Data

H. Severability

VI. Supporting Information

A. Regulatory Impact Analysis

B. Children's Health

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review; Executive Order

13563: Improving Regulation and Regulatory Review

B. Executive Order 14192: Unleashing Prosperity Through Deregulation

C. Paperwork Reduction Act (PRA)

D. Regulatory Flexibility Act (RFA)

E. Unfunded Mandates Reform Act (UMRA)

F. Executive Order 13132: Federalism

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

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

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

J. National Technology Transfer and Advancement Act

I. Executive Summary

A. Purpose of the Regulatory Action

The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) (together, the agencies) are seeking public comment on a proposed rule that revises key aspects of the definition of “waters of the United States” to clarify the scope of Federal jurisdiction under the Federal Water Pollution Control Act, as amended, also known as the Clean Water Act, in light of the U.S. Supreme Court's May 25, 2023, decision in

Sackett

Environmental Protection Agency,

598 U.S. 651 (2023).

In September 2023, the agencies issued a final rule without notice and comment amending the regulations defining “waters of the United States” to conform to the Supreme Court's

Sackett

decision. “Revised Definition of `Waters of the United States'; Conforming,” 88 FR 61964 (September 8, 2023) (“Conforming Rule”). The agencies refer to the amended regulations following the Conforming Rule as the “Amended 2023 Rule” because the Conforming Rule amended regulations previously issued on January 18, 2023.

See

“Revised Definition of `Waters of the United States,' ” 88 FR 3004 (January 18, 2023).

The agencies have heard numerous concerns raised by stakeholders about the Amended 2023 Rule, including that the Amended 2023 Rule does not adequately comply with the Supreme Court's interpretation in

Sackett

of the scope of Federal jurisdiction under the Act as well as identifying implementation-related issues. With this action, the agencies are proposing to revise the Amended 2023 Rule to implement the

Sackett

decision, provide greater regulatory certainty, and increase Clean Water Act program predictability and consistency by clarifying the definition of “waters of the United States.”

The agencies' fundamental basis for this proposed revised definition is the text, structure, and history of the Clean Water Act and Supreme Court precedent, taking into account other relevant factors. This proposed revision to the definition of “waters of the United States” is intended to adhere faithfully to the Supreme Court's direction, respect the Act's careful balance between Federal authority and State responsibilities over waters, and carry out Congress' overall objectives to restore and maintain the integrity of the Nation's waters in a manner that preserves the traditional sovereignty of States over their own land and water resources pursuant to the cooperative federalism framework predicated by the Act. The agencies believe the proposed revised definition would also ensure clarity and predictability for Federal agencies, States, Tribes, the regulated community, and the public, including by proposing to add definitions of “relatively permanent” and “continuous surface connection” for the first time to the agencies' regulations and by re-establishing definitions for “ditch,” “tributary,” “prior converted cropland,” and “waste treatment system” to ensure clear boundaries that indicate the distinction of Federal versus State and Tribal coverage of waters. Ultimately, the proposed rule is intended to ensure that the agencies are operating within the scope of the Federal Government's authority over navigable waters under the Clean Water Act and the Commerce Clause of the U.S. Constitution.

B. Summary of the Major Provisions of the Regulatory Action

The agencies are proposing to revise the following categories of “waters of the United States” under 33 CFR 328.3 and 40 CFR 120.2 paragraph (a) by deleting the interstate waters category under paragraph (a)(1)(iii) and deleting “intrastate” from the paragraph (a)(5) category for lakes and ponds. In addition, ministerial changes are proposed to add in one place and delete in another place an “or” from paragraph (a)(1) to conform to the deletion of the interstate waters category. In addition, the agencies are proposing to revise the following exclusions: the (b)(1) waste treatment system exclusion, the (b)(2) prior converted cropland exclusion, and the (b)(3) ditch exclusion. The agencies are also proposing to add an exclusion for groundwater at (b)(9). The agencies are also proposing to add definitions of “continuous surface connection,” “ditch,” “prior converted cropland,” “relatively permanent,” “tributary,” “and waste treatment system” in paragraph (c) of their regulations.

C. Costs and Benefits

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 rulemaking. Entities currently are, and would continue to be, regulated under these programs that rely on the definition of “waters of the United States” under the Clean Water Act.

The agencies prepared the Regulatory Impact Analysis for the Proposed Rule

Updated Definition of Waters of the United States

(“Regulatory Impact Analysis for the Proposed Rule”), available in the rulemaking docket, for informational purposes to analyze the potential cost savings and forgone benefits associated with this proposed action. The agencies analyzed the potential cost savings and forgone benefits against the baseline of the Amended 2023 Rule. The analysis is summarized in section VI of this preamble.

II. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2025-0322, at

https://www.regulations.gov

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

ADDRESSES

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

https://www.regulations.gov

any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), 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 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). Please visit

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

for additional submission methods; the full EPA public comment policy; information about CBI, PBI, or multimedia submissions; and general guidance on making effective comments.

B. Participation in Virtual and In-Person Public Meetings

The agencies will hold two in-person public meetings, with an option for virtual participation. To register to speak at the public meetings, please visit

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

or contact EPA staff at

wotus-outreach@epa.gov.

On the last working day before each meeting, EPA will post a general agenda for the meeting that will list pre-registered speakers in approximate order at

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

The agencies will make every effort to follow the schedule as closely as possible on the day of the public meeting; however, please plan for the meetings to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the meeting at the meeting registration desk for those participating in-person and during the speaker waitlist for those participating virtually. EPA and the Army will make every effort to accommodate all speakers who arrive and register, although preferences on speaking times may not be able to be fulfilled.

Each commenter will have three 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

wotus-outreach@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 meeting.

Please note that any updates made to any aspect of the public meetings are posted online at

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

While EPA and the Army expect the meetings to go forward as set forth above, please monitor our website or contact

wotus-outreach@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.

The agencies will not provide audiovisual equipment for presentations unless we receive special requests in advance. Commenters should notify

wotus-outreach@epa.gov

when they pre-register to speak that they will need specific equipment. If you require the services of an interpreter or special accommodations such as audio description, please pre-register for the meeting with

wotus-outreach@epa.gov

and describe your needs by at least one week before the meeting. The agencies may not be able to arrange accommodations without advance notice.

III. General Information

A. What action are the Agencies taking?

In this action, the agencies are publishing a proposed rule revising key aspects of the definition of “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 cost savings and forgone benefits of this action?

The Regulatory Impact Analysis for the Proposed Rule assesses the potential impacts of the changes to the definition of “waters of the United States” based on the potential effects to Clean Water Act programs that rely on the definition of “waters of the United States.” The Regulatory Impact Analysis is the agencies' qualitative assessment of the potential effects of the revised definition on the Federal coverage of waters and water resources, including wetlands, across the country, as well as the potential effects on Clean Water Act programs and certain other programs under other Federal statutes. The Regulatory Impact Analysis also provides snapshots of the applicable regulatory and legal framework currently in place in States and some Tribes to provide context for how aquatic resources outside of Federal jurisdiction are covered under State and Tribal laws and regulations.

The agencies anticipate that the impacts of the proposed rule, as a result of implementing the

Sackett

decision, would be most significant for the Clean Water Act section 404 program, reducing the number of 404 permits issued and acres of wetland impacts mitigated relative to the baseline. The agencies expect the changes to produce cost savings to project proponents from avoided permitting and mitigation activities, as well as potential indirect benefits from long-term reduction in regulatory burden. The agencies also expect forgone benefits from avoided impact minimization and mitigation measures. Notably, both the potential cost savings and forgone benefits are contingent on a number of factors, including decisions by States with respect to areas that would fall solely within State or Tribal and local jurisdiction. The agencies are considering methods to estimate the changes in the number of 404 permits issued by the U.S. Army Corps of Engineers (Corps) and the characteristics of the projects, notably the magnitude of wetland impacts that would no longer be minimized and mitigated, for the final rule Regulatory Impact Analysis. The agencies welcome input as to how this could be accomplished, for example, using geospatial analysis and Corps permit data. To estimate cost savings and forgone benefits for the final rule, the agencies could use similar methodologies to those used in previous economic analyses. In addition to direct burden reductions, small entities may also see benefits from this proposed rulemaking as the agencies anticipate increased opportunities and shorter delays for approved jurisdictional determinations (AJDs) for projects still requiring a permit due to less demand for AJDs and clearer regulatory language.

The agencies expect the proposed rule to be deregulatory in nature, and to have cost savings and forgone benefits. However, the agencies have not quantified cost savings and forgone benefits for the purposes of this proposed rule (

see

the Regulatory Impact Analysis for the Proposed Rule for information on uncertainties associated with the available data). The agencies seek input on ways that they could address any uncertainties, on other data relevant to cost savings and forgone benefits of the proposed rule, and on opportunities for quantification. The agencies identify potential data and propose potential methodologies to quantify such costs and benefits in the Regulatory Impact Analysis. Specifically, the agencies highlight potential approaches to quantitatively estimate the impact of the proposed rule through changes to coverage of interstate waters, relatively permanent waters, continuous surface connection, lakes and ponds, and to exclusions for waste treatment systems, prior converted cropland, and ditches. At present, the agencies do not have sufficient information available to quantify all of the cost savings and forgone benefits that individual States or Tribes would receive under the

proposed rule. Although some States and Tribes already have laws or regulations in place that exceed the requirements of the current regulation and/or of the proposed rule, the way States or Tribes would interpret and apply their own laws and regulations is unknown. Further, the extent to which States and Tribes may enact new laws or regulations or alter their interpretations of existing laws and regulations in the future is also unknown. Consequently, the agencies invite comment to assess what proportion of cost savings and forgone benefits States and Tribes would receive.

Importantly, while the potential cost savings or forgone benefits of the rule inform the agencies' interpretation of the definition of “waters of the United States,” they cannot dictate where to draw the line between Federal and State or Tribal waters, as those are legal distinctions that have been established within the overall framework and construct of the Clean Water Act. The agencies therefore do not view the results of the Regulatory Impact Analysis as dictating the proper interpretation of “waters of the United States.” In previous rules the agencies have considered impacts as a factor in defining the scope of “waters of the United States.” The agencies now recognize that, as the Supreme Court explained in

Sackett,

“the CWA does not define the EPA's jurisdiction based on ecological importance” or similar impacts. 598 U.S. at 683. Rather, the impacts of faithfully implementing the statute's jurisdictional reach are a result of “the Act's allocation of authority” between the Federal Government and the States, and States, Tribes, and localities “can and will continue to exercise their primary authority to combat water pollution by regulating land and water use.”

Id.

The agencies seek comment on the view that impacts are not an appropriate decisional basis in implementing the Act's jurisdictional scope and, if so, on what basis and to what extent the agencies may consider such impacts.

IV. Background

A. Legal Background

1. History of Federal Waterways Regulation

Congress' authority to regulate navigable waters derives from its Commerce Clause power over the channels of interstate commerce.

See Solid Waste Agency of Northern Cook Cnty

Army Corps of Eng'rs,

531 U.S. 159, 168 & n.3, 172, 173-174 (2001) (

SWANCC

). Navigable waterways facilitating interstate and international commerce were understood at the Founding as an important asset worthy of protection and promotion.

See Ordinance of 1787,

§ 14, art. IV (“The navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways.”);

The Federalist No. 2,

at 6 (John Jay) (Gideon Ed., Carey & McClellan eds. 2001) (“Providence has in a particular manner blessed [the Nation] . . . with innumerable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities.”),

No. 14,

at 65 (James Madison) (“[T]he intercourse throughout the union will be daily facilitated by new improvements. . . . The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy, by those numerous canals, with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”). Consistent with that understanding, early authorities embraced the concept that waterways used in navigation were subject to Federal regulation while, at the same time, States continued to exercise sovereign prerogative to regulate water and land within their borders.

Gibbons

Ogden,

9 Wheat. (22 U.S.) 1, 218, 240 (1824);

see Sackett,

598 U.S. at 673 (“Ever since

Gibbons

Ogden,

this Court has used `waters of the United States' to refer to similar bodies of water, almost always in relation to ships.”).

Navigability remained the lodestar of Federal authority over water regulation for most of our Nation's history prior to the Clean Water Act.

See Gibbons,

9 Wheat. (22 U.S.) at 193, 203 (the Commerce Clause “has been always understood to comprehend, navigation within its meaning,” but did not encompass “[i]nspection laws, quarantine laws, health laws . . . [or] laws for regulating the internal commerce of a State”). Even as States shifted away from common-law nuisance suits against polluters, “federal regulation was largely limited to ensuring that `traditional navigable waters'—that is, interstate waters that were either navigable in fact and used in commerce or readily susceptible of being used in this way—remained free of impediments.”

Sackett,

598 U.S. at 659. In other words, Federal power traditionally encompassed navigable waters capable of being used “as a highway for interstate or foreign commerce [and] Congress could regulate such waters only for purposes of their navigability.”

Id.

at 694 (Thomas, J., concurring).

The navigability of United States waterways—and the extent of Congress' authority to regulate them—has been the subject of extensive litigation before the U.S. Supreme Court. In early cases, the Court held that the term “navigable” refers to waters that are “navigable in fact,” meaning that “they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

Daniel Ball,

10 Wall. (77 U.S.) 557, 563 (1871). Over time, the Court also recognized that Federal authority could extend to waterways susceptible to navigation through improvements that facilitated modern navigation. In

The Montello,

for example, the Court held that waterways were susceptible to navigation, and thus Federal authority, based on their “capability of use by the public for purposes of transportation and commerce” through improvement. 20 Wall. (87 U.S.) 430, 441-42 (1874). At the same time, not “every small creek in which a fishing skiff or gunning canoe can be made to float at high water” fell within this ambit; rather, “to give it the character of a navigable stream, it must be generally and commonly useful to some purpose of trade.”

Id.

Thus, Federal “authority over navigable waters” extended to “ `regulating and improving navigation.' ”

Sackett,

598 U.S. at 688 (Thomas, J., concurring) (quoting

Gibson

United States,

166 U.S. 269, 271-72 (1897)).

After the Supreme Court found that no Federal law banned obstructions of navigable waterways,

see Willamette Iron Bridge Co.

Hatch,

125 U.S. 1 (1888), Congress responded by enacting the Rivers and Harbors Act of 1899 (RHA). Section 10 of the RHA prohibits “[t]he creation of any obstruction . . . to the navigable capacity of any of the waters of the United States,” requires a permit to build “structures in any . . . water of the United States,” and makes it unlawful “to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity” of any water, “within the limits of any breakwater, or of the channel of any navigable water of the United States.” 33 U.S.C. 403. Section 13 of the RHA,

often called the Refuse Act, made it illegal to dump refuse “into any navigable waters of the United States, or into any tributary of any navigable water,” and gave the Corps the authority to regulate certain discharges into navigable waters of the United States.

Id.;

33 U.S.C. 407. In interpreting the RHA, the Supreme Court reaffirmed the principle that Federal authority over waters arose from navigability and that States may continue to exercise their traditional authority over land and water.

The Corps currently defines the scope of “navigable waters of the United States” under the RHA as encompassing “those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” 33 CFR 329.4. This definition does not apply to the scope of “waters of the United States” under the Clean Water Act.

See

33 CFR 329.1.

Over time, the Federal Government began applying the RHA, and the Refuse Act in particular, to regulate pollution that interfered with the navigable waters of the United States.

See, e.g., United States

Standard Oil,

384 U.S. 224 (1966) (holding commercially valuable substances such as oil could be considered refuse);

United States

Republic Steel Corp.,

362 U.S. 482 (1960) (holding industrial solid waste is refuse);

see also id.

1256(a) (authorizing the EPA to issue “grants to States and to interstate agencies to assist them in administering programs for the prevention, reduction, and elimination of pollution”).

Section 108, “Pollution control in the Great Lakes,” authorizes the EPA to enter into agreements with any State to develop plans for the “elimination or control of pollution,

within all or any part of the watersheds

of the Great Lakes.” 33 U.S.C. 1258(a) (emphasis added);

see also id.

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

all

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

see id.

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

see id.

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

see id.

1270(g)(2).

In addition to the Act's non-regulatory measures to control pollution of the Nation's waters generally, Congress created a permitting program designed to address the discharge of pollutants into a subset of those waters identified as “navigable waters.”

Id.

1362(7). Section 301 contains the key regulatory mechanism: “Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful.”

Id.

1311(a). A “discharge of a pollutant” is defined to include “any addition of any pollutant to navigable waters from any point source,” defined to mean “any discernible, confined and discrete conveyance” such as a pipe or ditch.

Id.

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

Id.

1362(6). Thus, it is unlawful to discharge pollutants into the “waters of the United States” from a point source unless the discharge is in compliance with certain enumerated sections of the Clean Water Act. Under section 402 of the Clean Water Act, a National Pollutant Discharge Elimination System (NPDES) permit is required where a point source discharges a pollutant to “waters of the United

States.”

Id.

1342. Clean Water Act section 404 requires a permit before dredged or fill material may be discharged to “waters of the United States,” with exemptions for certain activities, including normal farming, ranching, and forestry activities.

Id.

1344. Congress therefore intended to achieve the Act's objective “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters” by addressing pollution of all waters via non-regulatory means

and

federally regulating the discharge of pollutants to the subset of waters identified as “navigable waters.”

The term “point source” is defined in Clean Water Act section 502(14) and 40 CFR 122.2 to include “any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged.” This definition specifically excludes return flows from irrigated agriculture and agricultural stormwater runoff.

see also id.

at 742 (“

Riverside Bayview

rested upon the inherent ambiguity in defining where water ends and abutting (“adjacent”) wetlands begin[.]”). The plurality clarified that “the statutory definition [of `navigable waters' at 33 U.S.C. 1362(7)] can be read to include

some

wetlands—namely, those that directly `abut' covered waters.”

Id.

at 747 n.12 (emphasis in original). The plurality also explained how its standard for Clean Water Act jurisdiction remained consistent with the Court's precedent interpreting “waters of the United States,” including

Riverside Bayview. See id.

at 734-35, 740-42, 746-48 (Scalia, J., plurality opinion).

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

Id.

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

SWANCC,

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

Id.

at 780.

Following

Rapanos,

Federal courts took different approaches to determining which

Rapanos

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

Rapanos

United States

and

Carabell

United States”

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

Rapanos

Guidance”).

After issuance of the

Rapanos

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

See

U.S. EPA and U.S. Army Corps of Engineers. Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in

Rapanos

United States & Carabell v. United States

at 1 (December 2, 2008) (“

Rapanos

Guidance”),

available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf.

On May 25, 2023, the Supreme Court decided

Sackett

EPA.

In its majority opinion, the Supreme Court held that the Clean Water Act extends to relatively permanent bodies of water connected to traditional navigable waters and wetlands with a continuous surface connection to those waters “so that there is no clear demarcation between `waters' and wetlands.” 598 U.S. 651, 678 (quoting

Rapanos,

547 U.S. at 742, 755 (plurality opinion)). The Court concluded that the significant nexus standard was “inconsistent with the text and structure of the [Clean Water Act].”

Id.

at 679. Instead, the Court held that the

Rapanos

plurality was correct: the [Clean Water Act]'s use of `waters' encompasses `only those relatively permanent, standing or continuously flowing bodies of water “forming geographic[al] features” that are described in ordinary parlance as “streams, oceans, rivers, and lakes.” ' ”

Id.

at 671 (quoting

Rapanos,

547 U.S. at 739). The Court also “agree[d] with [the plurality's] formulation of when wetlands are part of `the waters of the United States,' ”

id.

at 678, explaining:

Rapanos,

the plurality spelled out clearly when adjacent wetlands are part of covered waters. It explained that “waters” may fairly be read to include only those wetlands that are “as a practical matter indistinguishable from waters of the United States,” such that it is “difficult to determine where the `water' ends and the `wetland' begins.” That occurs when wetlands have “a continuous surface connection to bodies that are `waters of the United States' in their own right, so that there is no clear demarcation between `waters' and wetlands.”

Id.

at 678 (citing

Rapanos,

547 U.S. at 742, 755).

The

Sackett

Court also found that “[w]etlands that are separate from traditional navigable waters cannot be considered part of those waters, even if they are located nearby,”

id.

at 678, and that “ `adjacent' cannot include wetlands that are not part of covered `waters,' ”

id.

at 682. Additionally, the Court found it “instructive” that section 101(b) of the Act expressly “protect[s] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources,” observing that “[i]t is hard to see how the States' role in regulating water resources would remain `primary' if the [agencies] had jurisdiction over anything defined by the presence of water.”

Id.

at 674. Finally, the Court emphasized that “the CWA does not define the EPA's jurisdiction based on ecological importance” and instead draws a careful balance that recognizes States' “primary authority to combat water pollution by regulating land and water use.”

Id.

at 683.

B. The Agencies' Rules and Regulatory Regimes

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

• All navigable waters of the United States;

• Tributaries of navigable waters of the United States;

• Interstate waters;

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

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

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

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

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

Id.

Environmental organizations challenged the Corps' 1974 regulation in the U.S. District Court for the District of Columbia, arguing that the Corps' definition of “navigable waters” was inadequate because it did not include tributaries or coastal marshes above the mean high tide mark or wetlands above the ordinary high water mark. In a brief summary judgment order, the district court held that the term “navigable waters” is not limited to the traditional tests of navigability and ordered the Corps to revoke its definition and publish a new one “clearly recognizing the full regulatory mandate of the Water Act.”

Natural Resources Defense Council, Inc.

Callaway,

392 F. Supp. 685 (D.D.C. 1975).

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

The agencies have revised the definition of “waters of the United States” multiple times since then.

In fact, since 2015, EPA and the Army have finalized five rules revising the definition of “waters of the United States.” Additional information regarding the agencies' prior rulemakings on “waters of the United States,” including the 2015 Clean Water Rule and the 2019 Repeal Rule, can be found in the preambles for the agencies' prior rules.

The remainder of section IV.B of this preamble focuses on the agencies' most recent rules and regulatory regimes—namely, the pre-2015 regulatory regime, the 2020 Navigable Waters Protection Rule, the 2023 Rule, the Conforming Rule, and resulting Amended 2023 Rule regulatory regime.

The Corps has revised the definition of “navigable waters” or “waters of the United States” for its section 404 regulations in 1975 (40 FR 31320, 31324, 31326 (July 25, 1975) (interim final regulations)), 1977 (42 FR 37122, 37144 (July 19, 1977) (including a definition of “wetlands”; “freshwater wetlands” had been defined in 1975)), 1982 (47 FR 31794 (July 22, 1982) (interim final regulations)), 1984 (49 FR 39478 (October 5, 1984)), and 1986 (51 FR 41250 (November 13, 1986)). For its part, EPA has revised the definition of “navigable waters” or “waters of the United States” in 1979 (44 FR 32854 (June 7, 1979) (promulgating the waste treatment system exclusion)), 1980 (45 FR 48620 (July 21, 1980) (revising the waste treatment system exclusion in its NPDES regulations only at 40 CFR 122.3) and 45 FR 48620 (July 21, 1980) (suspending a portion of the waste treatment system exclusion in its NPDES regulations)), 1983 (48 FR 14146, 14157 (April 1, 1983) (republishing the waste treatment system exclusion in its NPDES regulations at 40 CFR 122.2)), 1988 (53 FR 20764, 20774 (June 6, 1988) (revising EPA's section 404 program definitions at 40 CFR 232.2)), and 2002 (67 FR 47042 (July 17, 2002) (revising the definition of “waters of the United States” in EPA's section 311 regulations at 40 CFR part 112 to ensure consistency with other Clean Water Act programs)). The agencies have also issued several joint revisions to their regulations, including in 1993 (58 FR 45008, 45031 (August 25, 1993) (adding an exclusion for prior converted cropland)), 2015 (80 FR 37045 (June 29, 2015) (“Clean Water Rule: Definition of `Waters of the United States' ” or 2015 Clean Water Rule)), 2019 (84 FR 56626 (October 22, 2019) (“Definition of `Waters of the United States'—Recodification of Pre-Existing Rules” or the 2019 Repeal Rule)), 2020 (85 FR 22250 (April 21, 2020) (“Navigable Waters Protection Rule”)), and 2023 (88 FR 3004 (January 18, 2023) (“Revised Definition of `Waters of the United States' ”) and 88 FR 61964, 61968 (September 8, 2023) (“Revised Definition of `Waters of the United States' ; Conforming”)).

See supra

note 22.

1. Pre-2015 Regulatory Regime (Prior to Sackett)

The “pre-2015 regulatory regime” refers to the agencies' pre-2015 regulations defining “waters of the United States,” implemented in light of relevant case law and longstanding practice, as informed by applicable guidance, training, and experience. The pre-2015 regulations are commonly referred to as “the 1986 regulations.”

In 1986, the Corps consolidated and recodified its regulations defining “waters of the United States” for purposes of implementing the section 404 program to align with clarifications that the EPA had previously promulgated.

See

51 FR 41206, 41216-17 (November 13, 1986). While EPA and the Corps have maintained separate regulations defining the statutory term “waters of the United States,” their interpretations, reflected in the 1986 regulations, were identical and remained largely unchanged from 1977 to 2015.

See

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

24 25

EPA's comparable regulations were recodified in 1988.

See

53 FR 20764 (June 6, 1988). While the Corps stated in 1986 that the recodified regulation neither reduced nor expanded jurisdiction, its previous exclusion for ditches was moved from the regulatory text to the final rule preamble.

Id.

at 41216-17. And the Corps added to the preamble what later became known as the “Migratory Bird Rule,” which claimed jurisdiction over any waters which are or may be used by birds protected by migratory bird treaties, waters which may be used as habitat for birds flying across State lines, waters which may be used by endangered species, and waters used to irrigate crops sold in interstate commerce.

Id.

at 41217.

Multiple provisions in the Code of Federal Regulations contained the definition of the phrases “navigable waters” and “waters of the United States” 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);

see also id.

1370. The oft-quoted objective of the Clean Water Act at 101(a) must be implemented in a manner consistent with Congress' directives to the agencies. The Supreme Court long ago recognized the distinction between Federal waters traditionally understood as navigable and waters “subject to the control of the States.”

Daniel Ball,

77 U.S. (10 Wall.) at 557. Over a century later, the Supreme Court in

SWANCC

reaffirmed “the States' traditional and primary power over land and water use.”

SWANCC,

531 U.S. at 174;

accord Rapanos,

547 U.S. at 738 (Scalia, J., plurality opinion). And in

Sackett,

the Supreme Court confirmed that the balance between State and Federal authority embodied in the Act cannot be redrawn in response to ecological concerns. 598 U.S. at 683. While Clean Water Act section 101(b) does not specifically identify Tribes, the policy of preserving States' sovereign authority over land and water use is equally relevant to ensuring the primary authority of Tribes to address pollution and plan the development and use of Tribal land and water resources. This proposed rule recognizes and preserves the autonomy of Tribes just as it recognizes and preserves the authority of States.

Ensuring that States and Tribes retain authority over their land and water resources, reflecting the policy in section 101(b), helps carry out the overall objective of the Clean Water Act and ensures that the agencies are giving full effect and consideration to the entire structure and function of the Act.

See, e.g., Sackett,

598 U.S. at 674 (“It is hard to see how the States' role in regulating water resources would remain `primary' if the EPA had jurisdiction over anything defined by the presence of water.”);

Rapanos,

547

U.S. at 755-56 (Scalia, J., plurality opinion) (“[C]lean water is not the

only

purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions. 33 U.S.C. 1251(b).”) (emphasis in original). That includes the dozens of non-regulatory grant, research, nonpoint source, groundwater, and watershed planning programs that were intended by Congress to assist the States in controlling pollution in the Nation's waters, not just its navigable waters. These non-regulatory sections of the Clean Water Act reveal Congress' intent to restore and maintain the integrity of the Nation's waters using Federal assistance to support State, Tribal, and local partnerships to control pollution of the Nation's waters in addition to a Federal regulatory prohibition on the discharge of pollutants to its navigable waters.

See, e.g., Rapanos,

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

see

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

all

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

See, e.g., Bailey,

516 U.S. at 146;

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

567 U.S. at 519, 544 (2012).

The proposed rule is also consistent with and informed by the Supreme Court's seminal decision in

Sackett

. In developing the proposed rule, the agencies considered the text and structure of the statute, other relevant precedents, and the agencies' experience and expertise implementing the definition of “waters of the United States.” The limitations in the proposed rule both reflect consideration of the comprehensive nature and objective of the Clean Water Act and avoid assertions of jurisdiction that exceed the agencies' statutory authority or raise federalism concerns. The

Sackett

decision clarifies where the agencies draw the boundaries of Federal jurisdiction in keeping with Congress's objective while preserving and protecting the responsibilities and rights of the States, as Congress recognized in the Clean Water Act. The proposed rule's limitations conform with the

Sackett

decision and thereby ensure that Clean Water Act regulatory programs will apply where waters meet the definition of “waters of the United States.” States and Tribes have authority to regulate waters that do not meet the proposed rule's definition of “waters of the United States” as they deem appropriate. Finally, the proposed rule would also achieve the agencies' goals of ensuring clarity, simplicity, and improvements that will stand the test of time, while providing for durable, stable, and more effective and efficient jurisdictional determinations and permitting actions.

The Regulatory Impact Analysis for the Proposed Rule provides information about the potential differences between current implementation and the proposed rule. The assessment can be found in the docket for this proposed action.

When preparing an approved jurisdictional determination,

which is typically made at the request of a landowner or applicant, the agencies bear the burden of proof in demonstrating that an aquatic resource meets the requirements under the proposed rule to be jurisdictional or excluded. The agencies' jurisdictional determinations must adequately document the basis of jurisdiction—that is, summarize the indicators that support the determination such as the information that demonstrates that the waters, including any wetlands, at issue meet the requirements of paragraphs (a) or (b) of the proposed rule, as applicable. Under any definition of “waters of the United States,” the agencies will rely on a weight of evidence approach when determining whether a water meets the regulatory requirements for asserting Federal jurisdiction. This means that if the agencies do not have adequate information to demonstrate that a water meets the jurisdictional standards to be a “water of the United States,” the agencies would find such a water to be non-jurisdictional. The agencies invite comment on approaches for increasing predictability in jurisdictional determinations, including options for leveraging data and tools discussed

infra

in section V of this preamble and in section 3 of the Regulatory Impact Analysis for the Proposed Rule.

For convenience, EPA decisions on jurisdiction are referred to as jurisdictional determinations throughout this document, but such decisions are not “approved jurisdictional determinations” as defined and governed by the Corps' regulations at 33 CFR 331.2. Approved jurisdictional determinations are typically made at the request of a landowner or applicant.

See, e.g.,

Regulatory Guidance Letter (RGL) 16-01,

available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll9/id/1256

This proposal does not propose to change the scope of paragraph (a)(1)(i), addressing traditional navigable waters. However, the agencies are considering whether clarifications to the scope of that provision may be warranted in the final rule preamble or in a separate administrative action. Specifically, the agencies are considering whether it may be necessary to elucidate what it means for a water to be “susceptible to use in interstate or foreign commerce.” The agencies welcome comments from members of the public about any experiences they may have had with findings that waters are “susceptible to use in interstate or foreign commerce,” any concerns they may have with current or potential future implementation of that provision, or other aspects of this provision that may warrant additional clarification or interpretation by the agencies. In addition, the agencies solicit input on whether the agencies should reinstate the joint agency coordination memorandum issued on June 30, 2020, requiring elevation of certain traditional navigable waters determinations (

See

U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) Process for Elevating and Coordinating Specific Draft Determinations under the Clean Water Act (CWA), available in the docket for this proposed rule).

The agencies also solicit comment on an alternative approach to the proposed rule, whereby “waters of the United States” would encompass traditional navigable waters, tributaries that directly flow into these waters, and wetlands with a continuous surface water connection to such waters. All other waters would be excluded. This alternative is informed by Justice Thomas's concurring opinion in

Sackett,

which emphasized that “the term `navigable waters' refers solely to the aquatic channels of interstate commerce over which Congress traditionally exercised authority.” 598 U.S. at 697 (Thomas, J., concurring). The agencies seek comment on whether the statute and the relevant history of Federal authority over navigable waters support this approach, or whether they support the agencies' proposal to include a broader category of tributaries and adjacent wetlands within the scope of “navigable waters,” based on the plain meaning of the term “waters” (informed by the qualifier “navigable”) and the continuous surface connection between such waters and wetlands.

B. Interstate Waters

The proposed rule would remove the category of interstate waters from the definition of “waters of the United States.” Because this category can encompass bodies of water that are not relatively permanent, standing, or continuously flowing or that are not themselves connected to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relatively permanent flow, its removal would ensure consistency with the

Sackett

decision as well as the Clean Water Act. This approach would also address persistent litigation over this category. Under the proposal, interstate waters would only be “waters of the United States” if they fall within another jurisdictional category in the definition. The change would likely have few practical impacts and would not undermine significant reliance interests, as the agencies rarely identify waters as jurisdictional solely because they are interstate as they often fall under one of the other categories of “waters of the United States” (

e.g.,

the waters are also traditional navigable waters or jurisdictional tributaries). Based on an analysis of data associated with approved jurisdictional determinations finalized by the Corps between August 28, 2015, and September 18, 2025, a total of 15 waters were found to be jurisdictional as interstate waters during that time frame. Under the proposed rule, rivers like the Amargosa River, which flows from Nevada into a dry playa in Death Valley, California, would not be jurisdictional simply because they cross a state boundary. Rather, these rivers would only be covered by Federal jurisdiction if they are themselves jurisdictional by some other means, such as being traditional navigable waters or jurisdictional tributaries.

The agencies previously eliminated the category of interstate wetlands from the interstate waters category in the Conforming Rule,

see

88 FR 69166-69169 (September 8, 2023), meaning that the proposed rule's elimination of the interstate waters category water by itself would not impact the jurisdictional status of interstate wetlands like the Great Dismal Swamp, which crosses the border between Virginia and North Carolina—under both current implementation and the proposed rule, such wetlands are only jurisdictional if they meet another category of “waters of the United States” (

e.g.,

wetlands subject to the ebb and flow of the tide or adjacent wetlands).

Given the proposed deletion of the (a)(1)(iii) interstate waters category, the agencies are also proposing a ministerial change to paragraph (a) to add an “or” after the (a)(1)(i) category and delete the “or” after the (a)(1)(ii) category. This revision would be necessary as there would be only two remaining water types under category (a)(1) with the proposed deletion of interstate waters. The agencies are not proposing any other changes to the (a)(1)(i) or (ii) categories.

1. Basis for Eliminating as an Independent Basis for Jurisdiction

Removing the category of “interstate waters” as an independent basis for jurisdiction reflects the language of the Clean Water Act, as interpreted by the Supreme Court, as well as the history of the Act and Congress' authority under the Constitution to regulate “waters of the United States.” The Supreme Court has interpreted “waters” in the context of the Clean Water Act to encompass “only those relatively permanent, standing or continuously flowing bodies of water `forming geographic[al] features' that are described in ordinary parlance as `streams, oceans, rivers, and lakes.' ”

Sackett,

598 U.S. at 671 (citing

Rapanos,

547 U.S. at 739 (plurality opinion)). Specifically with respect to “waters of the United States,” the

Sackett

Court held that a “water of the United States” must be “a relatively permanent body of water connected to traditional interstate navigable waters” or “wetland[s] [with] a continuous surface connection with that water.”

Id.

at 678 (citing

Rapanos,

547 U.S. at 742, 755);

see

section IV.A of this preamble. Nothing in

Sackett

or the

Rapanos

plurality opinion suggests that Congress intended to separately regulate interstate waters that do

not

meet this test.

As discussed in section IV.A of this preamble, the Court has made clear that Congress' authority for enacting the Clean Water Act is derived from “[i]ts traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.”

SWANCC,

531 U.S. at 172. The Court explained in

SWANCC

that nothing in the legislative history of the Clean Water Act Amendments “signifies that Congress intended to exert anything more than its commerce power over navigation.”

Id.

at 168 n.3. The scope of the agencies' regulation must therefore reflect the limits imposed by the term, “navigable waters.” The agencies propose that regulating all interstate waters—from isolated ponds to ephemeral washes—regardless of their connection to navigability would impermissibly “read[ ] the term `navigable waters' out of the statute.”

See id.

at 172.

The history of the Clean Water Act supports the agencies' proposed removal of the category of interstate waters. The original Water Pollution Control Act (WPCA) of 1948 regulated the “pollution of interstate waters,” defined as “all rivers, lakes, and other waters that flow across, or form a part of, State boundaries.” WPCA of 1948, 2(d)(1), (4), 10(e), 62 Stat. 1155, 1156-57, 1161. In 1961, Congress amended the statute to substitute the term “interstate or navigable waters” for “interstate waters” in the statute's enforcement provision while making minor changes to the definition of “interstate waters.”

See

Public Law 87-88, 75 Stat. 208 (1961). In 1965, Congress again amended the statute to require States to develop water quality standards for all “interstate waters” within their borders.

See

Public Law 89-234, 79 Stat. 908 (1965). In the 1972 Amendments, however, establishing the current statutory structure, Congress selected the term “navigable waters” as the operative term for the major regulatory programs established by the 1972 amendments, dropping the definition of “interstate waters” from the statute.

See, e.g.,

33 U.S.C. 1362(7) (defining “navigable waters” as “waters of the United States”). In doing so, however, Congress allowed States to retain existing water quality standards for interstate waters developed under the pre-1972 statutory program.

See

33 U.S.C. 1313(a). Congress specifically did not carry the term “interstate waters” forward as the operative phrase for Federal jurisdiction. Following basic canons of statutory construction, the agencies now interpret Congress' removal of the term “interstate waters” as intentional.

See, e.g., Stone

INS,

514 U.S. 386, 397 (1995) (“When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.”).

Congress' removal of the prior term, “interstate waters,” and its replacement of that term with “navigable waters,” supports the agencies' view that interstate waters can only be jurisdictional if they have the requisite connection to traditional navigable waters and fall within the Supreme Court's interpretation of “waters of the United States.” After considering Congress' constitutional authority over navigable waters that forms the basis for Clean Water Act jurisdiction (

see

section IV.A of this preamble), the Supreme Court's interpretation of the term “waters of the United States,” and the history of the statute, the agencies

are proposing that only those interstate waters that would fall within another category in this proposed rule are jurisdictional. Other interstate waters fall beyond the agencies' authority under the Clean Water Act and are more appropriately regulated by the States and Tribes under their sovereign authorities.

The agencies evaluated their longstanding interpretation prior to 2020, and reinstated in 2023, which included interstate waters as a standalone jurisdictional category (though the agencies clarified that “waters of the United States” does not include “interstate wetlands” in the Conforming Rule following

Sackett

). 88 FR 61966. As discussed in section IV.B of this preamble above, the EPA promulgated its first regulatory definition for the term “navigable waters” in 1973. 38 FR 13528 (May 22, 1973). In that regulation, the EPA established “interstate waters” as a separate category of “waters of the United States,” distinct from the traditional navigable waters category, retained it as such until 2020, and restored it in 2023. The agencies are now proposing that the best interpretation of “waters of the United States” is that it only encompasses those interstate waters that meet the jurisdictional test laid out by the Supreme Court in

Sackett

and the

Rapanos

plurality opinion. As noted above, the agencies are not proposing any other changes to the (a)(1)(i) or (ii) categories.

In support of their prior interpretation, the agencies have argued that the term “waters of the United States” unambiguously covers “interstate waters.” The agencies have asserted that “interstate waters” are waters of the several States and, thus, the United States. However, the agencies now recognize that nothing in the

Rapanos

plurality or

Sackett

opinions provides a basis for interpreting interstate waters as jurisdictional if they are not themselves traditional navigable waters or the territorial seas, relatively permanent tributaries of traditional navigable waters or the territorial seas, wetlands with a continuous surface connection to these waters, or impoundments of otherwise jurisdictional waters.

The agencies have referred to section 303(a) of the Clean Water Act as further textual evidence that Congress intended “interstate waters” to be retained as an independent category of jurisdictional waters. That provision authorizes water quality standards for “interstate waters” developed following the 1965 amendments to remain in effect, subject to revision under the new statutory program. 33 U.S.C. 1313(a). Yet the legislative history of the 1972 amendments indicates that Congress did not consider interstate waters and navigable waters to be two distinct categories; rather, they referred to terms in the pre-1972 statutory regime conjunctively as “interstate navigable waters.” S. Rep. No. 92-414, at 2 (1971) (“Each State was required by the 1965 Act to develop standards for water quality within its boundaries. These standards were to be applied to all

interstate navigable waters

flowing through the State; intrastate waters were not included.”) (emphasis added);

id.

at 4 (“The setting of water quality standards for

interstate navigable waters

. . . is the keystone of the present program for control of water pollution.”) (emphasis added);

id.

(“The States have first responsibility for enforcement of their standards. When approved by the [EPA], however, the standards for

interstate navigable waters

become Federal-State standards.”) (emphasis added). In 1976, the Supreme Court shared the same view of the pre-1972 statutory scheme: “Before it was amended in 1972, the Federal Water Pollution Control Act employed ambient water quality standards specifying the acceptable levels of pollution in a State's

interstate navigable waters

as the primary mechanism in its program for the control of water pollution.”

EPA

California,

426 U.S. 200, 202 (1976) (emphasis added) (footnote omitted). In light of this history, the section 303(a) provision relating to existing water quality standards for “interstate waters” may be best understood as referring to “interstate navigable waters,” rather than

any

interstate waters regardless of their connection to traditional navigable waters.

The agencies also historically relied on two Supreme Court cases—

Illinois

City of Milwaukee,

406 U.S. 91 (1972) and

City of Milwaukee

Illinois,

451 U.S. 304 (1981)—addressing interstate water pollution to support their prior interpretation. Yet neither case addressed the specific question of whether “interstate waters” and “navigable waters” are separate categories of jurisdictional waters under the Clean Water Act. They instead addressed interstate water pollution generally, and the water at issue in those cases was Lake Michigan, a water that is

both

interstate

and

navigable. The 1972 case, which was decided prior to the 1972 Federal Water Pollution Control Act amendments, refers to the two categories in the disjunctive, implying that the Court viewed the pre-1972 statutory program as encompassing two separate categories.

See Illinois,

406 U.S. at 102 (“it is federal, not state, law that in the end controls pollution of

interstate or navigable waters”

) (emphasis added). However, the 1981 decision refers to the 1972 Amendments as a “`total restructuring' and `complete rewriting' of the existing water pollution legislation considered in that case.”

Milwaukee,

451 U.S. at 317 (citing legislative history of the 1972 Federal Water Pollution Control Act amendments). While

Milwaukee

refers to the 1972 Amendments of the Federal Water Pollution Control Act as affecting “interstate waters,” its language generally supports the agencies' interpretation that prior iterations of the statute referring to both interstate waters and navigable waters were replaced with a completely new program in 1972. The agencies therefore no longer find these cases a persuasive basis for regulating “interstate waters” as a distinct category of “waters of the United States.”

The proposed rule's approach to interstate waters is consistent with a district court decision that ruled on a motion for summary judgment on this issue following

SWANCC

and

Rapanos.

Georgia

Wheeler,

the court directly addressed the 2015 Clean Water Rule's assertion of authority over all interstate waters, including nonnavigable interstate waters. 418 F. Supp. 3d 1336, 1358-59 (S.D. Ga. 2019). The court noted that under that rule, “a mere trickle, an isolated pond, or some other small, non-navigable body of water would be under federal jurisdiction simply because it crosses a state line or lies along a state border.”

Id.

at 1359. The court concluded that “the inclusion of all interstate waters,” including those with “little or no connection to navigable-in-fact waters,” exceeds the agencies' authority under the Clean Water Act, as discussed in

SWANCC. Id.

The agencies find persuasive the court's analysis and conclusion in

Georgia

Wheeler

C. Relatively Permanent Waters

1. Definition and Scope of “Relatively Permanent” Waters

In this proposal, the agencies define “relatively permanent” to mean “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.” Consistent with the

Sackett

decision, ephemeral waters (

i.e.,

those with surface water flowing or standing only in direct response to precipitation (

e.g.,

rain or snow fall)) are not jurisdictional because they are not relatively permanent. The phrase “at least during the wet season” is intended to include extended periods of predictable, continuous surface hydrology occurring in the same geographic feature year after year in response to the wet season, such as when average monthly precipitation exceeds average monthly evapotranspiration. As proposed, surface hydrology would be required to be continuous throughout the entirety of the wet season. The temporal component for wet season is intended to be an extended period where there is continuous surface hydrology resulting from predictable seasonal precipitation patterns year after year. The agencies acknowledge that surface hydrology may not always exactly overlap with the wet season, for example in regions exhibiting a time lag or delay in demonstration of surface hydrology due to various factors. The latter may occur, for example, as a result of snowpack melt occurring several months after repeated snowfall creates a snowpack. In another example, some streams experience delayed (

i.e.,

lagged) surface hydrology during the transition from the dry season to the wet season, as it may take some time for the water table to rise due to seasonal precipitation patterns.

Under the proposed rule, “relatively permanent” applies to both tributaries under paragraph (a)(3) and lakes and ponds under paragraph (a)(5). The proposed definition of “relatively permanent” would also apply to determining when wetlands are adjacent to impoundments that are relatively permanent, standing or continuous flowing bodies of water.

See

section V.C.5.a of this preamble for additional information about implementation of “relatively permanent.” In light of the

Sackett

decision, the agencies solicit comment on the definition of “relatively permanent” in this proposed rule, including implementation of the definition and regional implications of the proposed approach.

2. Basis for the Proposed Definition

This proposed definition is based on the text of the Clean Water Act and recent Supreme Court decisions interpreting the term “waters of the

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