# 90 FR 52498: Updated Definition of “Waters of the United States”

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2025-20402

## Section

- **Citation:** 90 FR 52498
- **Heading:** Updated Definition of “Waters of the United States”
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 90 / 90 FR 52498

## Text

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
act 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 v. 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
rdinance 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 v. Ogden, 9 Wheat. (22 U.S.) 1, 218, 240 (1824); see Sackett, 598 U.S. at 673 (“Ever since Gibbons v. 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 . .
r, 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
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. 1
1 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 v. Standard Oil, 384 U.S. 224 (1966) (holding commercially valuable substances such as oil could be considered refuse); United States v. Republic Steel Corp., 362 U.S. 482 (1960) (holding industrial solid waste is refuse); see also SWANCC, 531 U.S. at 178 (Stevens, J., dissenting) (“the goals of federal water regulation began to shift away from an exclusive focus on protecting navigability and toward a concern for preventing environmental degradation.”). Federal regulators sought to adopt an ex ante permitting scheme for discharges, but courts held that the Refuse Act provided insufficient authority. See, e.g., Kalur v. Resor, 335 F. Supp. 1, 10-11 (D.D.C. 1972)
nerally, and to regulate the discharge of pollutants into “navigable waters” specifically, defined in the Act as “the waters of the United States, including the territorial seas,” 33 U.S.C. 1362(7). See, e.g., S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 385 (2006) (noting that “the Act does not stop at controlling the `addition of pollutants,' but deals with `pollution' generally”).
3 Following amendments in 1972 and 1977, the Federal Water Pollution Control Act became more commonly referred to as the Clean Water Act. See Public Law 92-500, 86 Stat. 816 (1972); Public Law 95-217, 91 Stat. 1566 (1977). In this document, for ease of reference, the agencies will generally refer to the Act as the Clean Water Act or the Act.
The objective of the new statutory scheme was “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). In order to meet that objective, Congress declared two national goals: (1) “that the discharge of pollutants into the navigable waters be eliminated by 1985”; and (2) “that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983 . . . .” Id. 1251(a)(1)-(2). Congress also established several key policies that direct the work of the agencies to effectuate those goals. For example, Congress declared as a national policy “that the discharge of toxic pollutants in toxic amounts be prohibited; . . . that Federal financial assistance be provided to construct publicly owned waste treatment works; . . . that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State; . .
ojects for prevention of pollution of any waters by industry including, but not limited to, the prevention, reduction, and elimination of the discharge of pollutants.” Id. 1255(b)-(c) (emphasis added); 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)
pliance 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.” 5 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. 6 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.”
5 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
scharge of pollutants to the subset of waters identified as “navigable waters.”
5 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 infra note 8 (discussing discharges of pollutants subject to the section 402 program).
6 Clean Water Act section 404(f) exempts several activities from the section 404 permitting requirement including many “normal farming, silviculture, and ranching activities” and the “construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches.” 33 U.S.C. 1344(f)(1).
Fundamental principles of statutory interpretation support this distinction between the “nation's waters” and “navigable waters.” As the Supreme Court has observed, “[w]e assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning.” Bailey v. United States, 516 U.S. 137, 146 (1995) (recognizing the canon of statutory construction against superfluity). Further, “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation marks and citation omitted); see also United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (“Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear[.]”) (citation omitted)
rks and citation omitted); see also United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (“Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear[.]”) (citation omitted). Here, the non-regulatory sections of the Clean Water Act reveal Congress' intent to restore and maintain the integrity of the Nation's waters using Federal assistance to support State and local partnerships to control pollution in the Nation's waters and a Federal regulatory prohibition on the discharge of pollutants to the “navigable waters.” If Congress had intended the terms to be synonymous, it would have used identical terminology. Instead, Congress chose to use separate terms, and the agencies are instructed by the Supreme Court to presume Congress did so intentionally. See Sackett, 598 U.S. at 661, 673 (recognizing distinction between a predecessor statute's definition of “interstate or navigable waters” and the Act's definition of “navigable waters”); 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.”).
The term “navigable waters” is used in most of the key programs established by the Clean Water Act, including the section 402 and section 404 permitting programs; the section 311 oil spill prevention, preparedness, and response program; 7 the water quality standards,

impaired waters, and total maximum daily load programs under section 303; and the section 401 State and Tribal water quality certification process. See additional discussion on “navigable waters” supra. Waters that meet the definition of “waters of the United States” are often called “covered” or “jurisdictional” waters
ure to comply with the

Administrative Procedure Act and reinstated the prior regulatory language. Am. Petroleum Inst. v. Johnson, 541 F. Supp. 2d 165 (D.D.C. 2008). However, EPA interprets “navigable waters of the United States” in Clean Water Act section 311(b), in both the pre-2002 regulations and the 2002 rule, to have the same meaning as “navigable waters” in Clean Water Act section 502(7).
8 For example, the Clean Water Act section 402 permit program regulates discharges of pollutants from “point sources” to “navigable waters” whether the pollutants reach jurisdictional waters directly or indirectly. See United States v. Rapanos, 547 U.S. 715, 743 (2006) (Scalia, J., plurality opinion); see also Cnty. of Maui v. Hawaii Wildlife Fund, 590 U.S. 165, 183-84 (2020) (holding that the statute also requires a permit “when there is the functional equivalent of a direct discharge”). Section 402 also regulates “any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.” See 33 U.S.C. 1362(12). As another example, section 311 applies to “discharges of oil or hazardous substances into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, or in connection with activities under the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq. ] or the Deepwater Port Act of 1974 [33 U.S.C. 1501 et seq. ], or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801 et seq. ]).” Id. 1321(b)(1)
ies under the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq. ] or the Deepwater Port Act of 1974 [33 U.S.C. 1501 et seq. ], or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson-Stevens Fishery Conservation and Management Act [16 U.S.C. 1801 et seq. ]).” Id. 1321(b)(1). And section 404(g) authorizes EPA to approve State and Tribal assumption of the section 404 dredged and fill permitting programs for certain waters of the United States; the Federal Government retains permitting authority over discharges into waters used as a means to transport interstate or foreign commerce. Id. 1344(g).
9 For example, with respect to the Clean Water Act sections 106 and 319 grant programs, the authorizing language and the range of programmatic activities are sufficiently broad such that they have long addressed both jurisdictional and non-jurisdictional waters, so it is unlikely that a change in the definition of “waters of the United States” would affect those programs and funding allocations.
Since the Federal Water Pollution Control Act Amendments of 1972, the agencies have defined the scope of jurisdictional “navigable waters” or “waters of the United States” in regulations. See section IV.B of this preamble, infra, for an overview of the history of the agencies' regulations defining “waters of the United States.” Most recently, the agencies issued a revised definition of “waters of the United States” in January 2023 that was then amended in September 2023 in light of the Supreme Court's Sackett decision. “Revised Definition of `Waters of the United States,' ” 88 FR 3004 (January 18, 2023) (“2023 Rule”); “Revised Definition of `Waters of the United States'; Conforming,” 88 FR 61964, 61968 (September 8, 2023) (“Conforming Rule”); see sections IV.B.3, IV.B.4, and IV.B.5 of this preamble, infra, for more information about these actions
n September 2023 in light of the Supreme Court's Sackett decision. “Revised Definition of `Waters of the United States,' ” 88 FR 3004 (January 18, 2023) (“2023 Rule”); “Revised Definition of `Waters of the United States'; Conforming,” 88 FR 61964, 61968 (September 8, 2023) (“Conforming Rule”); see sections IV.B.3, IV.B.4, and IV.B.5 of this preamble, infra, for more information about these actions. The agencies refer to the 2023 Rule as amended by the Conforming Rule as the “Amended 2023 Rule.”
The EPA administers the Clean Water Act except as otherwise explicitly provided. 33 U.S.C. 1251(d). The Secretary of the Army, through the Corps, has authority to issue permits for the discharge of dredged or fill material pursuant to Clean Water Act section 404. Id. 1344. The United States Attorney General long ago determined that the “ultimate administrative authority to determine the reach of the term `navigable waters' for purposes of § 404” resides with the EPA. Administrative Authority to Construe § 404 of the Federal Water Pollution Control Act, 43 Op. Att'y Gen. 197 (1979) (“Civiletti Memorandum”). The Act enables the Federal Government to implement certain Clean Water Act programs, and it gives direct grants of authority to States and authorized Tribes for implementation and enforcement of others.
In some cases, the Act provides States the option to administer certain Clean Water Act programs. 10 For example, States implement the Clean Water Act section 401 water quality certification program and may request approval from the EPA to administer a Clean Water Act section 402 or 404 permitting program. Moreover, consistent with the Act, States and Tribes retain authority to implement their own programs to protect the waters in their jurisdiction more broadly and more stringently than the Federal Government
bes have established water quality standards pursuant to section 303 of the Clean Water Act, which form a legal basis for limitations on discharges of pollutants to “waters of the United States.” At this time, 47 States and one Territory have authority

to administer all or portions of the Clean Water Act section 402 permit program for those “waters of the United States” within their boundaries. 13 To date, three States (Florida, Michigan, and New Jersey) have been approved to administer an authorized section 404 permit program for certain waters in their boundaries pursuant to section 404(g), 14 with two States (New Jersey and Michigan) actively administering such programs. At present, no Tribes administer the section 402 or 404 programs, although at least one is exploring the possibility. For additional information regarding State and Tribal programs, see the Regulatory Impact Analysis for the proposed rule.
12 Tribes must apply for and receive EPA approval to be eligible for treatment in a manner similar as a State (TAS) for each Clean Water Act program they wish to administer.
13 Three States (Massachusetts, New Hampshire, and New Mexico) do not currently administer any part of the Clean Water Act section 402 program.
14 When a State or eligible Tribe assumes a section 404 program, the Corps retains permitting authority over certain waters. The scope of Clean Water Act jurisdiction as defined by “waters of the United States” is distinct from the scope of waters over which the Corps retains authority following State or Tribal assumption of the section 404 program. Corps-retained waters are identified during approval of a State or Tribal section 404 program, and any modifications are approved through a formal process. 40 CFR 233.11(i), 233.14(b)(4), and 233.16. This proposed rulemaking does not address the scope of Corps-retained waters, and nothing in this proposed rulemaking should be interpreted to affect the process for determining the scope of Corps-retained waters
ed waters are identified during approval of a State or Tribal section 404 program, and any modifications are approved through a formal process. 40 CFR 233.11(i), 233.14(b)(4), and 233.16. This proposed rulemaking does not address the scope of Corps-retained waters, and nothing in this proposed rulemaking should be interpreted to affect the process for determining the scope of Corps-retained waters.
Clean Water Act section 311 and the Oil Pollution Act of 1990 authorize the Oil Spill Liability Trust Fund (OSLTF) to pay for or reimburse costs of assessing and responding to oil spills to “waters of the United States” or adjoining shorelines or the Exclusive Economic Zone. 15 The OSLTF enables an immediate response to a spill, including containment, countermeasures, cleanup, and disposal activities. The OSLTF can only reimburse States and Tribes for cleanup costs and damages to businesses and citizens ( e.g., lost wages and damages) for spills affecting waters subject to Clean Water Act jurisdiction. EPA also lacks authority under the Clean Water Act to take enforcement actions based on spills solely affecting waters not subject to Clean Water Act jurisdiction under section 311(b). Moreover, section 311 requires that EPA establish an oil spill prevention program “to prevent discharges of oil and hazardous substances from vessels and from onshore facilities and offshore facilities, and to contain such discharges.” 33 U.S.C. 1321. Discharges of pollutants, such as oil and hazardous substances, are defined, as discussed above, as “any addition of any pollutant to navigable waters [ i.e., `waters of the United States'] from any point source.” Id. at 1362(12).
15 See 33 U.S.C. 1321(b) for the full jurisdictional scope of Clean Water Act section 311
be finalized. If requested, the agencies stand ready to assist the applicant or landowner, consistent with regulatory requirements and prior practice.
A preliminary jurisdictional determination (PJD) is a non-binding “written indication that there may be waters of the United States on a parcel or indications of the approximate location(s) of waters of the United States on a parcel.” 33 CFR 331.2. An applicant can elect to use a PJD to voluntarily waive or set aside questions regarding Clean Water Act jurisdiction over a particular site and thus move forward assuming that all waters will be treated as jurisdictional without the Corps making a formal determination. The Corps does not charge a fee for these jurisdictional determinations. See id. 325.1 (omitting mention of fees for jurisdictional determinations); Regulatory Guidance Letter 16-01 (2016) (stating that such determinations are issued as a “public service”).
3. U.S. Supreme Court Decisions
From the earliest rulemaking efforts following adoption of the 1972 Federal Water Pollution Control Act amendments, to the agencies' most recent attempt to define “waters of the United States” in 2023, the agencies' definition and interpretation of their regulations has spurred substantial litigation testing the meaning of the phrase. Hundreds of cases and dozens of courts have attempted to discern the intent of Congress when crafting the phrase. See, e.g., Sackett, 598 U.S. at 664-59 (summarizing history); Rapanos v. United States, 547 U.S. 715, 739 (2006) (Scalia, J., plurality opinion) (same); see also discussion supra of history of Federal waterways regulation in section 1.A.
As part of this complex litigation history, several key U.S. Supreme Court decisions have contributed to the agencies' interpretation of the phrase “waters of the United States” in the proposed rule. See discussion of early interpretations of “navigable waters” and “waters of the United States” supra in section 1.A
er connected to traditional interstate navigable waters.” Id. at 742. The plurality explained that “[w]etlands with only an intermittent, physically remote hydrologic connection to `waters of the United States' do not implicate the boundary-drawing problem of Riverside Bayview,” and thus do not have the “necessary connection” to covered waters that triggers Clean Water Act jurisdiction. Id. at 742. The plurality also noted that its reference to “relatively permanent” waters did “not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or “ seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.” Id. at 732 n.5 (emphasis in original). The plurality said that “adjacent” means “physically abutting,” and used “abutting” and “adjacent” interchangeably. Id. at 748; 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)
ucture 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:
In 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
e 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
rs” 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. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
In response to this decision, the Corps issued interim regulations in 1975 that defined the term “navigable waters” to include periodically inundated coastal wetlands contiguous with or adjacent to navigable waters, periodically inundated freshwater wetlands contiguous with or adjacent to navigable waters, and, as in the EPA's 1973 regulations, certain intrastate waters based on non-transportation impacts on interstate commerce
he 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. 22 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. 23 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.
22 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))
ations defining “waters of the United States” or “navigable waters” at 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 302.3, 401.11, and Appendix E to Part 300 all refer to the definition at 40 CFR 120.2.
The 1986 regulatory text identified the following waters as “waters of the United States” (33 CFR 328.3 (2014)): 26
26 “Waters of the United States” is defined in both the U.S. Army Corps of Engineers' regulations, at 33 CFR part 328, and in the EPA's regulations, at 40 CFR part 120. For the sake of convenience, in this preamble the agencies will generally just refer to the Corps' regulations at 33 CFR 328.3.
• All traditional navigable waters, 27 interstate waters, and the territorial seas;
27 “Traditional navigable waters” (or waters that are traditionally understood as navigable) refers to all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide.
• All impoundments of jurisdictional waters;
• All “other waters” such as lakes, ponds, and sloughs the “use, degradation, or destruction of which would or could affect interstate or foreign commerce” (“other waters”);
• Tributaries of traditional navigable waters, interstate waters, impoundments, or “other waters”; and
• Wetlands adjacent to traditional navigable waters, interstate waters, the territorial seas, impoundments, tributaries, or “other waters” (other than waters that are themselves wetlands).
33 CFR 328.3(a)(1)-(7) (1987). The 1986 regulations also excluded “waste treatment systems” from the definition of “waters of the United States,” consistent with the EPA's regulatory definition. Id. 328.3 (a)(7), (b) (1987); see also 44 FR 32854 (June 7, 1979)
7, 322(a)(4), 110 Stat. 888 (1996); 16 U.S.C. 3822(a)(4). Thus, for purposes of farm program eligibility, the 1996 amendments meant that prior converted cropland would only be abandoned if the area was no longer devoted to an agriculture use, while the 1993 preamble abandonment principles would have disqualified such areas for the Clean Water Act exclusion if their specific conditions were not met. The agencies did not update their prior converted cropland regulations for purposes of the Clean Water Act following the 1996 amendments to wetland conservation provisions of the Food Security Act, as those regulations neither defined prior converted cropland nor specified when a valid prior converted cropland determination might cease to be valid. However, in 2005, the Army and the USDA issued a joint Memorandum to the Field (the 2005 Memorandum) in an effort to align the Clean Water Act section 404 program with the Food Security Act wetland conservation provisions. 30 The 2005 Memorandum provided that a “certified [prior converted] determination made by [USDA] remains valid as long as the area is devoted to an agricultural use. If the land changes to a non-agricultural use, the [prior converted] determination is no longer applicable and a new wetland determination is required for CWA purposes.” 2005 Memorandum at 4.
30 U.S. Department of Agriculture, Natural Resources Conservation Service and U.S. Department of the Army, Office of the Assistant Secretary of the Army (Civil Works). Memorandum to the Field on Guidance on Conducting Wetland Determinations for the Food Security Act of 1985 and Section 404 of the Clean Water Act (February 25, 2005), available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2508.
The 2005 Memorandum did not clearly address the abandonment principle that the agencies had been implementing since the 1993 rulemaking
the Clean Water Act.” January 28, 2020. Available in the docket for this action.
The agencies have implemented the pre-2015 regulatory regime consistent

with SWANCC and Rapanos after those Supreme Court decisions were issued in 2001 and 2006, respectively. The agencies issued guidance on SWANCC in 2001 and then in 2003. 68 FR 1991 (January 15, 2003) (superseding the agencies' 2001 guidance). To ensure that any assertion of jurisdiction over the “other waters” category ( i.e., paragraph (a)(3) waters in the 1986 regulations) is consistent with the Supreme Court's ruling in SWANCC, the agencies have required that field staff get approval from headquarters before exercising jurisdiction over an (a)(3) water. As a practical matter, field staff have rarely, if ever, sought such approval and therefore the agencies have not asserted jurisdiction under the “other waters” category of the 1986 regulations since SWANCC.
For nearly a decade after Rapanos, the agencies did not revise their regulations but instead determined jurisdiction under the 1986 regulations consistent with the two standards established in Rapanos (the plurality's relatively permanent standard and Justice Kennedy's significant nexus standard) and by using guidance issued jointly by the agencies. See Rapanos Guidance. Under the Rapanos Guidance, 32 the agencies concluded that Clean Water Act jurisdiction exists if a water meets either the relatively permanent standard or the significant nexus standard. The agencies' assertion of jurisdiction over traditional navigable waters and their adjacent wetlands remained unchanged by Rapanos. Under the relatively permanent standard, the guidance stated that the agencies would assert jurisdiction over: non-navigable tributaries of traditional navigable waters that typically flow year-round or have continuous flow at least seasonally; and wetlands that directly abut such tributaries. Id. at 4-7
n over traditional navigable waters and their adjacent wetlands remained unchanged by Rapanos. Under the relatively permanent standard, the guidance stated that the agencies would assert jurisdiction over: non-navigable tributaries of traditional navigable waters that typically flow year-round or have continuous flow at least seasonally; and wetlands that directly abut such tributaries. Id. at 4-7. The guidance further stated that the agencies would determine jurisdiction under the significant nexus standard for the following waters: non-navigable tributaries that are not relatively permanent, wetlands adjacent to non-navigable tributaries that are not relatively permanent, and wetlands adjacent to but not directly abutting a relatively permanent non-navigable tributary. Id. at 8-12. The agencies generally did not assert jurisdiction over non-wetland swales or erosional features ( e.g., gullies and small washes characterized by low volume or infrequent or short duration flow) or ditches (including roadside ditches) excavated wholly in and draining only uplands and that did not carry a relatively permanent flow of water. Id. at 11-12.
32 The agencies note that the guidance “does not impose legally binding requirements on EPA, the Corps, or the regulated community, and may not apply to a particular situation depending on the circumstances.” Rapanos Guidance at 4 n.17.
Even after promulgating a revised definition of “waters of the United States” that went into effect in 2015 (the 2015 Clean Water Rule), the agencies continued implementing the pre-2015 regulatory regime in certain States and, for a period of time, nationwide due to court orders staying implementation of the 2015 rule. 33 In 2018, the agencies again implemented the pre-2015 regulatory regime nationwide for about six months following the agencies' addition of an applicability date to the 2015 Clean Water Rule
2015 Clean Water Rule), the agencies continued implementing the pre-2015 regulatory regime in certain States and, for a period of time, nationwide due to court orders staying implementation of the 2015 rule. 33 In 2018, the agencies again implemented the pre-2015 regulatory regime nationwide for about six months following the agencies' addition of an applicability date to the 2015 Clean Water Rule. 34 The next year, after proceeding through public notice and comment, 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). The agencies indicated that they would implement the 1986 regulations informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice, thus restoring implementation of the pre-2015 regulatory regime nationwide after the 2019 Repeal Rule went into effect on December 23, 2019.
33 See, e.g., North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015) (preliminary injunction barring implementation of the 2015 Clean Water Rule in 13 States); Georgia v. Pruitt, 326 F. Supp. 3d 1356 (S.D. Ga. June 6, 2018) (same as to 11 States); Texas v. EPA, No. 3:15-cv-162, 2018 WL 4518230 (S.D. Tex. Sept. 12, 2018) (same as to three States). See section I.A of the Technical Support Document for the Proposed “Revised Definition of `Waters of the United States' ” Rule ( available at https://www.regulations.gov/document/EPA-HQ-OW-2021-0602-0081 ), for a comprehensive history of the effects of the litigation against the 2015 Clean Water Rule.
34 In February 2018, the agencies issued a rule that added an applicability date of February 6, 2020 to the 2015 Clean Water Rule. 83 FR 5200 (February 6, 2018) (“Applicability Date Rule”). The Applicability Date Rule was challenged in several district court actions, and on August 16, 2018 the rule was vacated and enjoined nationwide. See S.C. Coastal Conservation League v. Pruitt, 318 F
r Rule.
34 In February 2018, the agencies issued a rule that added an applicability date of February 6, 2020 to the 2015 Clean Water Rule. 83 FR 5200 (February 6, 2018) (“Applicability Date Rule”). The Applicability Date Rule was challenged in several district court actions, and on August 16, 2018 the rule was vacated and enjoined nationwide. See S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. Aug. 16, 2018); see also Puget Soundkeeper All. v. Wheeler, No. 15-01342 (W.D. Wash. Nov. 26, 2018) (vacating the Applicability Date Rule nationwide).
2. The 2020 Navigable Waters Protection Rule
On January 23, 2020, the agencies signed the Navigable Waters Protection Rule: Definition of “Waters of the United States” (NWPR), a rule that for the first time defined “waters of the United States” based generally on the Rapanos plurality's standard. The NWPR was published on April 21, 2020, and went into effect on June 22, 2020. 85 FR 22250 (April 21, 2020). 35 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 the above three categories of jurisdictional waters. Id. at 22273.
35 The NWPR went into effect on June 22, 2020 in all States except Colorado. 85 FR 22250 (April 21, 2020). In Colorado, the NWPR was subject to a preliminary injunction issued by the U.S. District Court for the District of Colorado. Colorado v. EPA, 445 F. Supp. 3d 1295 (D. Colo. 2020)
ctional waters; and (4) wetlands adjacent to the above three categories of jurisdictional waters. Id. at 22273.
35 The NWPR went into effect on June 22, 2020 in all States except Colorado. 85 FR 22250 (April 21, 2020). In Colorado, the NWPR was subject to a preliminary injunction issued by the U.S. District Court for the District of Colorado. Colorado v. EPA, 445 F. Supp. 3d 1295 (D. Colo. 2020). The Tenth Circuit later reversed the Colorado district court's order on appeal; as a result, the NWPR went into effect in Colorado on April 26, 2021. Colorado v. EPA, 989 F.3d 874 (10th Cir. 2021); Colorado v. EPA, No. 20-1238, ECF No. 010110512604 (Doc. 10825032) (10th Cir. Apr. 26, 2021).
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. Id. at 22280-81. 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. Id. at 22286. A jurisdictional tributary was required to be perennial or intermittent in a typical year. Id. Additionally, 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 NWPR's “tributary” 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
ogic surface connection” between the wetland and the jurisdictional water in a typical year. Id. at 22338, 22240. Wetlands that did not have these types of connections to other waters were not jurisdictional under the NWPR.
The NWPR's regulatory text expressly provided that waters that did not fall into its jurisdictional categories were not considered “waters of the United States.” Id. at 22338. 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.”). 36 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. Id. at 22338-39.
36 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) (2020).
Similar to other rulemakings to revise the definition of “waters of the United States,” the NWPR was subject to multiple legal challenges
or in non-jurisdictional waters; and waste treatment systems. Id. at 22338-39.
36 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) (2020).
Similar to other rulemakings to revise the definition of “waters of the United States,” the NWPR was subject to multiple legal challenges. On August 30, 2021, the U.S. District Court for the District of Arizona remanded the NWPR and vacated the rule. Pascua Yaqui Tribe v. EPA, No. 4:20-cv-00266, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021). 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 v. Regan, No. 2:20-cv-00602 (D.N.M. Sept. 27, 2021). Six courts also remanded the NWPR without vacatur or without addressing vacatur. 37
37 Order, Pueblo of Laguna v. 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 v. Wheeler, No. 3:20-cv-03005, ECF No. 271 (N.D. Cal. Sept. 16, 2021) (same); Waterkeeper All. v. Regan, No. 3:18-cv-03521, ECF No. 125 (N.D. Cal. Sept. 16, 2021) (same); Order, Conservation Law Found. v. EPA, No. 1:20-cv-10820, ECF No. 122 (D. Mass. Sept. 1, 2021) (same); Order, S.C. Coastal Conservation League v. Regan, No. 2:20-cv-01687, ECF No. 147 (D.S.C. July 15, 2021) (remanding without vacating); Order, Murray v. Wheeler, No. 1:19-cv-01498, ECF No. 46 (N.D.N.Y. Sept. 7, 2021) (same). In this litigation, EPA and the Army had filed motions for remand without vacatur. See, e.g., U.S. Motion for Remand without Vacatur, Conservation Law Found. v. EPA, No. 1:20-cv-10820, ECF No. 112 (D. Mass. June 9, 2021).
Following vacatur of the NWPR, the agencies resumed implementing the pre-2015 regulatory regime across the country.
3
ination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters. Id. at 3006. The regulatory text also defined “significantly affect” for purposes of the significant nexus standard. Id. Under the 2023 Rule, waters were jurisdictional if they met either standard. Id.
The 2023 Rule also defined the term “adjacent” with no changes from the agencies' longstanding regulatory definition of “adjacent” as “bordering, contiguous, or neighboring.” 88 FR 3116-17. Wetlands separated from other “waters of the United States” by man-made dikes or barriers, natural river berms, beach dunes and the like were defined as “adjacent” wetlands. Id.
While the 2023 Rule was not before the Supreme Court in Sackett, the Court did review the rule's two jurisdictional standards and concluded that the significant nexus standard was “inconsistent with the text and structure of the [Clean Water Act].” 598 U.S. at 679.
4. Conforming Rule
In September 2023, EPA and the Army published a final rule amending the 2023 Rule's definition of “waters of the United States” in response to the Supreme Court decision in Sackett. “Revised Definition of `Waters of the United States'; Conforming,” 88 FR 61964, 61968 (September 8, 2023) (“Conforming Rule”). The Conforming Rule published in the Federal Register and became effective on September 8, 2023.
The Conforming Rule amended the provisions of the 2023 Rule that were invalid under the Supreme Court's interpretation of the Clean Water Act in Sackett. See 88 FR 61964. In particular, the agencies revised the 2023 Rule to remove the significant nexus standard and to amend its definition of “adjacent” as these provisions were rendered invalid by Sackett. Id. at 61965-66. Per Sackett, waters are not jurisdictional under the Clean Water Act based on the significant nexus standard. Id
Supreme Court's interpretation of the Clean Water Act in Sackett. See 88 FR 61964. In particular, the agencies revised the 2023 Rule to remove the significant nexus standard and to amend its definition of “adjacent” as these provisions were rendered invalid by Sackett. Id. at 61965-66. Per Sackett, waters are not jurisdictional under the Clean Water Act based on the significant nexus standard. Id. In addition, under the decision in Sackett, wetlands are not defined as “adjacent” or jurisdictional under the Clean Water Act solely because they are “bordering, contiguous, or neighboring . . . [or] separated from other `waters of the United States' by man-made dikes or barriers, natural river berms, beach dunes and the like.” Id. at 61965. Therefore, waters cannot be found to be jurisdictional because they meet the significant nexus standard; nor can wetlands be found to be jurisdictional based on the definition of “adjacent” previously codified in the 2023 Rule. Id. Consistent with the Sackett decision, the agencies in the Conforming Rule revised the definition of “adjacent” to mean “having a continuous surface connection.” Id. Furthermore, because Sackett invalidated the significant nexus standard, the agencies removed the provision for assessment of streams and wetlands under the additional waters provision of paragraph (a)(5) as no longer valid since any jurisdictional streams or wetlands would fall within paragraphs (a)(1) through (4) of the 2023 Rule. 38 Id.
38 Lakes and ponds, however, may still have been jurisdictional under paragraph (a)(5) of the 2023 Rule if they did not fall within paragraphs (a)(1) through (3) of the 2023 Rule (for example, if they were not tributaries connected to waters identified in paragraph (a)(1) or (2)) and they were relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (3)
finition of `Waters of the United States' under the Clean Water Act” (March 12, 2025) (“continuous surface connection guidance”), available at https://www.epa.gov/system/files/documents/2025-03/2025cscguidance.pdf. Consistent with this guidance, and consistent with Sackett, the agencies are interpreting “continuous surface connection” to mean abutting (or touching) a requisite jurisdictional water. The agencies issued the guidance in response to requests for clarification on the scope of adjacent wetlands in light of the Supreme Court's decision in Sackett.
Specifically, the agencies had heard from a variety of co-regulators and stakeholders that the preamble to both the 2023 Rule and the Conforming Rule did not include adequate direction or guidance on the meaning of the “continuous surface connection” requirement, and the agencies' case-specific policy memoranda 41 issued post- Sackett neither provided national guidance on the topic nor clear and transparent direction for the public or the agencies. The agencies determined that the case-specific policy memoranda also contained conclusions which are inconsistent with the discussion of “continuous surface connection” as described in the pre-2015 regulatory regime guidance documents and the Sackett decision.
41 The agencies issued several case-specific policy memoranda in 2024 and 2025 as part of the process in place at the time for coordination of Corps draft AJDs. Such case-specific policy memoranda were issued by the agencies to provide guidance to the respective EPA regional and Corps district offices. Additional information regarding the agencies' coordination processes is available on EPA's website at https://www.epa.gov/wotus/coordination-process-approved-jurisdictional-determinations-and-field-memoranda.
C
time for coordination of Corps draft AJDs. Such case-specific policy memoranda were issued by the agencies to provide guidance to the respective EPA regional and Corps district offices. Additional information regarding the agencies' coordination processes is available on EPA's website at https://www.epa.gov/wotus/coordination-process-approved-jurisdictional-determinations-and-field-memoranda.
C. WOTUS Notice and Summary of Stakeholder Outreach
On March 21, 2025, the agencies signed a Federal Register document publicizing a series of listening sessions and a 30-day recommendations docket to solicit feedback on key aspects of the definition of “waters of the United States.” “WOTUS Notice: The Final Response to SCOTUS” (90 FR 13428, March 24, 2025). The agencies accepted written pre-proposal recommendations from members of the public from March 24, 2025, to April 23, 2025, which can be found in the docket (Docket ID EPA-HQ-OW-2025-0093). The agencies held a series of stakeholder and co-regulator listening sessions to hear pre-proposal input and recommendations including specific meetings in March, April, May and June of 2025 with Tribes, States and State associations, local governments, industry, environmental organizations, agricultural organizations, small businesses and congressional staff, and

two in-person public listening sessions held in communities outside of Washington, DC. A summary of the agencies' pre-proposal listening sessions is available in the docket (Docket ID No. EPA-HQ-OW-2025-0322) for this proposed rule.
The Federal Register announcement outlined three key topics the agencies were particularly interested in receiving recommendations on, including the scope of “relatively permanent” waters and to what features this phrase applies, the scope of “continuous surface connection” and to which features this phrase applies, and the scope of jurisdictional ditches. The agencies also sought input on implementation challenges related to these key topic areas
y topics the agencies were particularly interested in receiving recommendations on, including the scope of “relatively permanent” waters and to what features this phrase applies, the scope of “continuous surface connection” and to which features this phrase applies, and the scope of jurisdictional ditches. The agencies also sought input on implementation challenges related to these key topic areas.
Additionally, the agencies engaged State and local governments in a 60-day federalism consultation period during development of this proposed rule, beginning with an initial federalism consultation meeting on April 3, 2025, and concluding on June 2, 2025. The agencies also initiated a 60-day consultation period with federally recognized Indian Tribes, beginning March 21, 2025, and concluding May 20, 2025. Information about the federalism and Tribal consultation can be found in sections VII.F and VII.G of this preamble, respectively, and in the federalism and Tribal consultation reports, available in the docket (Docket ID No. EPA-HQ-OW-2025-0322) for this proposed rule.
The agencies received input from a wide variety of Tribes, States, local governments, environmental organizations, industry, agriculture organizations, small businesses, and the public through virtual meetings, consultation letters, and recommendation letters submitted to the docket. Of the more than 45,000 recommendations received, the docket included 48 letters from States and State associations, 25 letters from Tribes and Tribal associations, 97 letters from industry, 31 letters from agriculture organizations, 65 letters from environmental organizations, 37 letters from local governments and local government associations, two letters from Federal agencies, four from other non-governmental organizations, approximately 3,900 letters from the general public, and over a dozen mass mail campaigns. Through the conclusion of all listening sessions, the agencies documented 228 individual verbal remarks
zations, 65 letters from environmental organizations, 37 letters from local governments and local government associations, two letters from Federal agencies, four from other non-governmental organizations, approximately 3,900 letters from the general public, and over a dozen mass mail campaigns. Through the conclusion of all listening sessions, the agencies documented 228 individual verbal remarks.
The agencies received broad support for robust stakeholder outreach and the development of a rule that is consistent with Supreme Court precedent. Many stakeholders also emphasized the importance of regional geographic variability across the United States, and some stakeholders suggested the agencies consider regionally specific criteria for jurisdictional waters. Most recommendations focused on the three key topics for which the agencies solicited input (“relatively permanent” waters, “continuous surface connection,” and ditches), as well as consideration for implementation and further exclusions.
1. Relatively Permanent Waters
A broad range of recommendations were submitted on the scope of “relatively permanent” from a diverse array of stakeholder and co-regulator groups. One common theme across most stakeholder and co-regulator recommendations included the need for the definition to account for regional differences in hydrologic variability across the country. Of those who submitted recommendations, most of the States, State associations, agriculture organizations and many industry groups recommended that relatively permanent waters be defined as perennial waters only, or continuously flowing year-round. Conversely, of those who submitted recommendations, many Tribes, environmental advocacy groups, and some industry groups recommended against further revisions to the definition of “waters of the United States,” stating that the Amended 2023 Rule accurately implements the Sackett decision
ended that relatively permanent waters be defined as perennial waters only, or continuously flowing year-round. Conversely, of those who submitted recommendations, many Tribes, environmental advocacy groups, and some industry groups recommended against further revisions to the definition of “waters of the United States,” stating that the Amended 2023 Rule accurately implements the Sackett decision. In addition, Tribal and environmental advocacy groups broadly recommended interpreting relatively permanent to include intermittent (including seasonal) and perennial waters. The majority of local governments providing feedback recommended that they and local flood control districts be responsible for making jurisdictional determinations and for oversight. Nearly all individual citizens providing recommendations called for broad protection of water resources, including protecting intermittent (including seasonal) and perennial waters. Some States and industry supported the use of the streamflow duration assessment methods (SDAMs) to identify relatively permanent waters and requested the methods be available for all States. 42 Some agriculture organizations and industry stakeholders suggested SDAMs and ordinary high water mark (OHWM) not be used on their own to assess jurisdiction due in part to the implementation challenges they pose.
42 Information on the SDAMs is available on EPA's website at https://www.epa.gov/streamflow-duration-assessment. The SDAMs are discussed in more detail in section V.5 of this preamble.
2. Continuous Surface Connection
The recommendations received on the scope of “continuous surface connection” focused mainly on whether discrete features such as natural or man-made features sever continuous surface connection for wetlands and whether wetlands separated by such features are “abutting,” as that term has been understood by the Supreme Court
stakeholders cited or broadly discussed connectivity, including the EPA's 2015 Connectivity Report. 43
43 U.S. EPA. Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Final Report). U.S. Environmental Protection Agency, Washington, DC, EPA/600/R-14/475F, 2015. Available at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414.
3. Ditches
The recommendations received on ditches focused on whether ditches should be excluded from the definition of “waters of the United States” and whether the function of the ditch should be considered in identifying excluded ditches. Of those providing feedback, agriculture organizations, some industry stakeholders, some local governments, and a few States recommended excluding all ditches from the definition of “waters of the United States.” On the other hand, of those providing feedback, most States, State associations, Tribes, some environmental advocacy groups,

several local governments, and some industry stakeholders recommended that ditches that function as natural, relatively permanent features should be jurisdictional. Many of these recommendations also stated that ditches excavated only in uplands or non-jurisdictional waters and ditches that have no more than ephemeral flow should be excluded. Many local governments and agriculture organizations providing recommendations showed support for the 2020 Ditch Exemption Memo, 44 though they recommended limited revisions to clarify the Clean Water Act section 404(f) exemptions for construction or maintenance of irrigation ditches and maintenance of drainage ditches.
44 https://www.epa.gov/sites/default/files/2020-07/documents/final_ditch_exemption_memo_july_2020_with_epa.pdf.
4
s discussed below, with amendments to reflect the agencies' determination of the statutory limits on the scope of the “waters of the United States” consistent with, and informed by, Supreme Court precedent. Section I.B of this preamble contains a summary of the agencies' proposed revisions. All other aspects of the agencies' regulations defining “waters of the United States” would remain unchanged. Under the agencies' proposed rule, the term “waters of the United States” would include (1) traditional navigable waters and the territorial seas; (2) most impoundments of “waters of the United States;” (3) relatively permanent tributaries of traditional navigable waters, the territorial seas, and impoundments; (4) wetlands adjacent ( i.e., having a continuous surface connection) to traditional navigable waters, impoundments, and tributaries; and (5) lakes and ponds that are relatively permanent and have a continuous surface connection to a traditional navigable water, the territorial seas, or a tributary. The agencies are also proposing to amend the exclusions for waste treatment systems, prior converted cropland, and certain ditches, and to add an exclusion for groundwater. Finally, the agencies are proposing to add definitions for “continuous surface connection,” “ditch,” “prior converted cropland,” “relatively permanent,” “tributary,” and “waste treatment system.”
The proposed rule reflects the balance Congress struck between the Clean Water Act section 101(a) statutory objective to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” and the policy in Clean Water Act section 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” 33 U.S.C. 1251(a) and (b)
) statutory objective to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” and the policy in Clean Water Act section 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” 33 U.S.C. 1251(a) and (b). In developing an appropriate regulatory framework for the proposed rule, the agencies recognize and respect the primary responsibilities and rights of States to regulate their land and water resources. Id. 1251(b), 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
tate, 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
rements 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.
45 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
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
y 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
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)
ncluded 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
ermanent 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 v. California, 426 U.S. 200, 202 (1976) (emphasis added) (footnote omitted)
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 v. 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 v. City of Milwaukee, 406 U.S. 91 (1972) and City of Milwaukee v. 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)
urface water year-round are, by definition, permanent. And while the Rapanos plurality noted that waters of the United States do not include “ordinarily dry channels through which water occasionally or intermittently flows,” 547 U.S. at 733, it would “not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.” Id. at 732 n.5. The proposed definition of “relatively permanent” includes water features that are standing or flowing continuously “at least during the wet season,” which is consistent with the plain meaning of “waters,” “lakes” and “streams” and with the Rapanos plurality's intent to avoid excluding seasonal waters. The Sackett decision adopted the Rapanos plurality's interpretation of “relatively permanent,” 598 U.S. at 671, although the agencies acknowledge that the Sackett decision did not specifically address the reference to seasonal waters in the Rapanos plurality. Having standing or continuous flow at least during the wet season most typically occurs in surface waters at the same time each year; for example, during times when groundwater tables are elevated or when snowpack runoff produces relatively permanent flow, returning on an annual basis during the wet season in known, fixed geographic locations. The proposed definition is thus consistent with the Rapanos plurality's concepts of “relatively permanent,” as explicitly endorsed by the Sackett decision, and “seasonal,” while not capturing features that are ephemeral. Moreover, while excluding features that lack flow during the wet season, the agencies are implementing Clean Water Act section 101(b), which “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.” 33 U.S.C. 1251(b); see also Sackett, 598 U.S
uring features that are ephemeral. Moreover, while excluding features that lack flow during the wet season, the agencies are implementing Clean Water Act section 101(b), which “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.” 33 U.S.C. 1251(b); see also 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.”) 33 U.S.C. 1251(b); see also 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.”)
Finally, the proposed definition incorporates terms that are easily understood in ordinary parlance and should be implementable by both ordinary citizens and trained professionals. In a similar way, scientists, environmental consultants, and other water resource professionals, including the agencies' staff, have used the concept of the “wet season” for decades to assess water features—including to assess if observations made during a site visit or through interpretation of aerial photography are made under normal, wetter than normal, or drier than normal climatic conditions, and to assist with delineating wetlands—and the concept of a body of surface water that is standing or continuously flowing year-round has been a part of the relatively permanent standard since the Rapanos guidance. Indeed, the agencies apply the concept of “wet season” in the use of the Corps' Antecedent Precipitation Tool (APT), 46 which is routinely used to inform wetland delineations and jurisdictional determinations
46 Available at https://github.com/erdc/Antecedent-Precipitation-Tool/releases .
47 Sparrow, K.H., Brown, SW, French, C.E., Gutenson, J.L., Hamilton, C.O., and Deters, J.C. 2025. Antecedent Precipitation Tool (APT) Version 3.0: Technical and User Guide . U.S. Army Corps of Engineers. ERDC/TN WRAP-25-1. Available at https://erdc-library.erdc.dren.mil/items/af14290c-ed08-411b-ae5d-effa5b5b947d .
48 The APT reports an interpretation of the average monthly water-balance metrics from WebWIMP ( available at http://cyclops.deos.udel.edu/wimp/public_html/index.html ), as an estimation of the approximate dates of the wet and dry seasons for the observation location, including whether the date of observation falls within the wet season or the dry season. The interpretation of wet season using the results from WebWIMP is that the wet season corresponds to all periods of the year where precipitation is estimated to, on average, exceed evapotranspiration. See “Additional Information on the Antecedent Precipitation Tool (APT),” available at https://www.epa.gov/system/files/documents/2022-12/Additional%20Information%20on%20the%20APT.pdf .
3. Alternative Approaches
The agencies considered proposing to limit the definition of “relatively permanent waters” to only “perennial” waters and solicit public comment as to whether the agencies should adopt this alternative definition. The agencies evaluated this interpretation because “perennial” streams are most obviously “permanent,” consistent with the Sackett decision and the Rapanos plurality opinion. The agencies are not proposing this approach, however, because the term “relatively” in Sackett and the Rapanos plurality suggests that Clean Water Act jurisdiction may not be limited to waters that are standing or continuously flowing every day or that always have standing water
ennial” streams are most obviously “permanent,” consistent with the Sackett decision and the Rapanos plurality opinion. The agencies are not proposing this approach, however, because the term “relatively” in Sackett and the Rapanos plurality suggests that Clean Water Act jurisdiction may not be limited to waters that are standing or continuously flowing every day or that always have standing water. Moreover, limiting the scope of relatively permanent waters to perennial streams would exclude waters that the Rapanos plurality stated are “not necessarily exclude[d]” (emphasis added): “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.” 547 U.S. at 732 n.5 (emphasis in original); see also Sackett, 598 U.S. at 651, 671 (“we conclude that the Rapanos plurality was correct.”). While this approach would exclude the “seasonal” streams that the Rapanos plurality may have not necessarily intended to exclude, the absence of an explicit reference to such “seasonal” streams in Sackett could be interpreted to mean that Sackett defined the scope of “relatively permanent” to exclude such water features.
Perennial streams are common in wetter parts of the country but are rare in the arid West, so this approach may result in Federal regulatory jurisdiction over a greater proportion of water bodies in certain parts of the country compared to other regions. However, as an implementation matter, limiting “relatively permanent” waters to “perennial” features may simplify implementation of the rule. If members of the public see that waters dry up on a regular basis other than in times of drought, they would know those waters are not jurisdictional simply by observation, without the need for any further analysis or professional consultation. However, it may be more challenging to identify whether a stream flows year-round or a few days less than year-round
at is more than during the wet season but less than perennial flow.
49 See, e.g., James, A., McCune, K., Mazor, R. 2021. Review of Flow Duration Methods and Indicators of Flow Duration in the Scientific Literature, Northeast and Southeast of the United States . Document No. EPA-840-B-22007. Available at https://www.epa.gov/system/files/documents/2023-05/Literature-Review-Beta-SDAM-NE-and-SE.pdf .
The agencies also considered an approach that would set certain minimum flow volume thresholds in the proposed definition of “relatively permanent.” The proposed definition of “relatively permanent” does not establish bright line requirements, such as for a particular flow volume. In 1977, the Corps proposed to use flow volumes ( i.e., normally less than five cubic feet per second) to define “headwaters” in the definition of “waters of the United States,” and instead finalized the use of flow volumes for implementation of their general permit program. 42 FR 37129 (July 19, 1977). Stream flow volume is challenging to measure directly, in particular in a stream where flow is not always present and may require multiple field-based measurements that can make implementation inefficient and result in delays in making a jurisdictional determination. While the proposed approach to “relatively permanent” may also be supported by field measurements, remote tools may also be used to observe presence or absence of flow and identify flow during the wet season. Those remote tools can assess flow frequency, and some can provide flow volume estimates. 50 In addition, the agencies have not identified a rationale for a threshold of specific flow volumes that would establish jurisdiction given the broad nationwide applicability of the proposed rule and the regional variability in flow volumes.
50 See USGS Enhanced Runoff Method, or EROM, used to compute estimates of the mean annual flow for the National Hydrography Dataset (NHD) Plus flowline features in the NHDPlus High Resolution network
oposed definition considers streamflow duration in the flow classification definitions generally ( e.g., “flowing continuously year-round,” “flowing continuously during the wet season”) but without specifying an exact number of days of flow. The time period that encompasses flow during the wet season can vary across the country based upon climate, hydrology, topography, soils, and other conditions. While establishing a minimum duration of flow could ultimately enhance national consistency per the regulatory text, it would likely be inconsistent with the regionalized implementation of relatively permanent tributaries in the proposed rule. For example, streams with continuous flow during the wet season in the arid West are fundamentally different from such streams in the Southeast. Similar to identifying flow duration year-round, a bright line for minimum flow durations can pose implementation challenges to identify that flow has occurred for that exact duration threshold—even landowners familiar with their properties may not know the exact number of days a stream flows per year. However, the agencies acknowledge there are benefits to setting bright lines as they can provide clarity to stakeholders and may provide additional transparency on the requirements for flow duration of relatively permanent waters without the use of additional tools; therefore, the agencies solicit comment and would welcome any supporting rationales for particular thresholds that take into account the broad nationwide applicability of the proposed rule, as well as address any implementation challenges, in particular related to the minimum 90-day or 270-day flow duration requirement under this alternative approach and whether and how continuous flow could be identified under such a regime
ed rule's approach because regions which have bodies of surface water that are standing or continuously flowing with seasonal flow for less than 90 days ( e.g., the arid West) would still be considered relatively permanent, while the rest of the country would simply need to demonstrate having at least seasonal flow, typically three months in duration, regardless of their specific wet season length. For example, under this alternative approach, even if the wet season is five months, continuous flow could occur for 90 days and be considered relatively permanent. Whereas under the proposed approach, the entire country would need to demonstrate flow at least during their regionally-specific wet season. Alternatively, the agencies could implement seasonal flow to mean continuous surface flow except during dry months. 53 This approach is similar to the proposed approach, incorporating concepts from the Rapanos plurality and Sackett while allowing for regional variation, and uses “dry months” language from the Rapanos plurality footnote, but could be read to require more extended periods of flow than the proposed approach. The agencies also solicit comment on these alternative approaches, including whether they are consistent with the Rapanos plurality and Sackett, as well as any accompanying implementation methods. The agencies welcome comments generally on the concept of a “seasonal” flow duration and what that term may include, as well as implementation tools that could be used to identify such flow duration.
52 Three months was provided as an example of seasonal flow in the Rapanos Guidance, but under the pre-2015 regulatory regime the agencies have flexibility to determine what seasonally means in a specific case. See Rapanos Guidance at 6-7; U.S. Environmental Protection Agency and U.S. Army Corps of Engineers
flow continuously during the wet season are distinct from streams that flow discontinuously or only in direct response to discrete precipitation events, such as ephemeral streams. The agencies recognize that the WebWIMP outputs reported in APT may not have complete functionality in certain territories, and the agencies are

exploring ways to improve functionality in those limited circumstances. Another method could be to identify when the majority of precipitation occurs in a given location or region based on percentages and utilize that to identify the wet season, which may better account for continuous streamflow that can occur in the arid West during monsoon season. This approach could identify in which months greater than 50% (or another percentage such as 70%) of the rainfall occurs at the identified location or region and identify that as the wet season. In another approach, the agencies could adopt the Wet Season Totals, which identify the climatologically wettest three months (91 days) of the year. 54 The agencies could ensure that this would include multiple years of data analysis. The agencies solicit comment on whether a definition of “wet season” should be added to the regulatory text to provide clarity and transparency. The agencies could adopt a definition that includes the months when precipitation exceeds evapotranspiration or the agencies could adopt any of the options described above for a definition.
54 Funk, C., Harrison, S., Alexander, L., Peterson, P., Behrangi, A., and Husak, G. 2019. “Exploring trends in wet-season precipitation and drought indices in wet, humid and dry regions.” Environmental Research Letters 14(11): 115002. Available at https://iopscience.iop.org/article/10.1088/1748-9326/ab4a6c .
The agencies propose to have the flow “at least during the wet season” be specifically bound by the wet season such that the number of months with continuous flow would need to be at least throughout the entirety of the wet season
ought indices in wet, humid and dry regions.” Environmental Research Letters 14(11): 115002. Available at https://iopscience.iop.org/article/10.1088/1748-9326/ab4a6c .
The agencies propose to have the flow “at least during the wet season” be specifically bound by the wet season such that the number of months with continuous flow would need to be at least throughout the entirety of the wet season. For example, if a wet season extended for six months, the stream would need to flow for at least six months coincident with the identified wet season to be considered relatively permanent. The agencies solicit comment on whether this is an appropriate approach for identifying “at least during the wet season,” and whether implementation of this approach is feasible. The agencies also specifically solicit comment on how this might be implemented when there may be a lag in the surface hydrology response to seasonal precipitation as described at section V.C.1 of this preamble above. Such an approach could result in many streams in the arid West not meeting the proposed definition of “relatively permanent,” and the agencies solicit comment on the implications of such an approach in those arid West States. In an alternative approach, the agencies could interpret “at least during the wet season” where surface hydrology must occur for at least a proportionate amount of time as the identified wet season duration which would be in response to the wet season but need not be coincident with the specific wet season timeframe. For example, if a wet season extended from December through March (a wet season of four months), the stream would need to flow for at least four months to be considered relatively permanent, even if the surface hydrology occurred for four months from February through May. In another alternative approach, the agencies could interpret “at least during the wet season” where surface hydrology must occur for at least some months in response to the wet season
ortions of the tributary network. Tributaries under the proposed rule may also connect through certain features, both natural ( e.g., debris piles, boulder fields, beaver dams) and artificial ( e.g., culverts, ditches, pipes, tunnels, pumps, tide gates, dams), even if such features themselves are non-jurisdictional under the proposed rule, so long as those features convey relatively permanent flow. Features with non-relatively permanent flow, however, would sever jurisdiction upstream under the proposed rule, including flow through non-relatively permanent reaches or streams or wetlands, except when the tributary is part of a water transfer currently in operation. Features that sever jurisdiction under the proposed rule would only be relevant to the paragraph (a)(3) category. Additional information about implementation of “tributary” is discussed in section V.C.5.b of this preamble below.
With respect to tributaries specifically, the Rapanos plurality, which was adopted by Sackett, focuses in part on a tributary's contribution of flow to and connection with traditional navigable waters. See Rapanos, 547 U.S. at 742 (interpreting surface waters to be jurisdictional if they are “relatively permanent bod[ies] of water connected to traditional interstate navigable waters”). The agencies' proposed definition of “tributary” requires relatively permanent flow and a connection to a downstream traditional navigable water, consistent with Supreme Court precedent.
In addition, the agencies' proposal would require that tributaries have a bed and banks to clearly identify those waters that are considered tributaries under the proposed rule. The agencies believe that the proposed definition would provide clear and predictable jurisdictional boundaries to guide the agencies and the regulated community
os, 547 U.S. at 739).
In addition, lakes and ponds may be considered a tributary consistent with the agencies' current implementation if they meet the proposed definition. Lakes, ponds, and impoundments that contain standing or continuous flowing water, year round or at least during the wet season, would be considered to be “a body of water with relatively permanent flow” under the proposed rule. Generally, lakes and ponds do have a bottom, or bed, as well as side slopes, or banks. These may look different than the bed and banks of more channelized version of streams which are tributaries, but the agencies intend that these in-line lakes and ponds that meet the proposed definition of “tributary” would be considered jurisdictional under paragraph (a)(3). Even though such waters are considered to be lentic or “still” systems, such waters still contribute flow downstream at the point that they outlet to the tributary network and therefore the agencies have long concluded it is appropriate to consider such waters to be tributaries where they otherwise meet the requirements of the category.
This proposed definition of tributary identifies a category of rivers and streams that, due to their flow duration ( i.e., relatively permanent flow) and their connection to traditional navigable waters or the territorial seas, should be deemed federally jurisdictional. Through this proposed definition of “tributary,” the agencies would also acknowledge the policy direction from Congress to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan for the development and use (including restoration, preservation, and enhancement) of land and water resources.” 33 U.S.C. 1251(b); see also Rapanos, 547 U.S. at 737 (Scalia, J., plurality)
eview area that would sever jurisdiction.
The agencies also seek comment on the proposed treatment of natural and man-made features regarding the jurisdictional status of upstream waters, including whether these features can connect tributaries downstream when they convey relatively permanent flow or if they should sever downstream jurisdiction in all cases other than as part of a water transfer. The Supreme Court has not spoken directly to the question of whether a non-jurisdictional feature that lacks relatively permanent flow along or downstream of an otherwise jurisdictional tributary, lake, pond, or impoundment would sever jurisdiction of upstream waters. The agencies are interested in comments addressing whether the current approach is preferable because it avoids incentivizing the construction of certain features within the tributary network to prevent relatively permanent flow through the features with the intent to sever upstream jurisdiction. The agencies recognize, however, that the Supreme Court has stated that even when a barrier between a wetland and a water of the United States would ordinarily remove that wetland from Federal jurisdiction, a property owner may not carve out wetlands from Federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the Clean Water Act. Sackett, 598 U.S. at 678 n.16.
The agencies also solicit comment on whether they should instead adopt the approach similar to the NWPR, whereby a tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water through a channelized non-jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or other similar artificial feature, or through a debris pile, boulder field, or similar natural feature. See 85 FR 22277, 22289 (April 21, 2020)
by a tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water through a channelized non-jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or other similar artificial feature, or through a debris pile, boulder field, or similar natural feature. See 85 FR 22277, 22289 (April 21, 2020). The agencies solicit comment on whether the NWPR approach is easier to implement than the proposed approach and whether that approach better implements the objectives and policies of the Clean Water Act. Another approach could provide that a tributary would lose its jurisdictional status if it contributes surface water flow to a jurisdictional water through non-surface features ( e.g., subterranean rivers, underground tunnels), even if such features convey relatively permanent flow. The agencies solicit comment on such an alternative approach.
Similarly, the agencies seek comment on the proposed approach that adjacent wetlands with non-relatively permanent flow through them cannot serve as a connection and therefore sever jurisdiction upstream of the tributary network. This proposed approach is consistent with the other proposed approaches for non-relatively permanent flow features serving as breaks of upstream jurisdiction. The agencies believe this proposed approach is appropriate because the waterbody would not convey surface water to a paragraph (a)(1) water year-round or continuously for extended periods of time, and therefore would not exhibit relatively permanent flow. The agencies recognize that there are implementation challenges with the proposed approach as it may be difficult to ascertain if there are downstream wetlands located at any point in the tributary's path to a traditional navigable water and whether those wetlands have relatively permanent flow through them
ly for extended periods of time, and therefore would not exhibit relatively permanent flow. The agencies recognize that there are implementation challenges with the proposed approach as it may be difficult to ascertain if there are downstream wetlands located at any point in the tributary's path to a traditional navigable water and whether those wetlands have relatively permanent flow through them.
The agencies are also interested in hearing from the public regarding the proposed approach related to water transfers for non-relatively permanent waters establishing breaks of jurisdiction. The NPDES permitting exemption under the Water Transfers Rule, 73 FR 33697 (June 13, 2008), does not require NDPES permits for water transfers between “waters of the United States” because they do not result in the “addition” of a pollutant. Id. at 33699. For example, in many regions of the country, particularly the arid West, inter- and intra-basin water transfers may originate in relatively permanent waters that may be disconnected from downstream waters by non-relatively permanent stream reaches. In many circumstances, those non-relatively permanent stream reaches may be caused by water management systems, including through water transfers, water storage reservoirs, flood irrigation channels, and similar structures. The agencies recognize the importance of water management practices in the States and the explicit policy directives of Congress to recognize the authority of States to allocate and manage water resources within their respective jurisdictions. See 33 U.S.C. 1251(g), 1370. Under the proposed rule, if the upstream tributaries that are part of a water transfer ultimately flow through non-relatively permanent reaches that eventually connect to traditional navigable waters or the territorial seas, the upstream tributaries would retain their jurisdictional status as waters of the United States
seasons that are separated by drier months, 57 and in such cases, the tributary would need to have continuous surface hydrology at least during both wet seasons to meet the definition of “relatively permanent” under the proposed rule. Precipitation includes both rain and snow, as some wet seasons across the country encompass the winter months and the precipitation events may often include snowfall.
56 NOAA's Climate Division Scale Palmer Drought Severity Index (PDSI) dataset is one drought index that may be used to observe dry and wet conditions in a given region, and the index is used to display monthly values in the APT. The PDSI integrates precipitation, evapotranspiration, and soil moisture data into the monthly drought index. The PDSI Divisional Time Series may be used to observe PDSI across States and ecoregion divisions on a monthly scale from a start year of 1895 to 2025. Available at https://www.ncei.noaa.gov/access/monitoring/climate-at-a-glance/divisional/time-series/0101/pdsi/1/0/1895-2025.
57 See supra note 47.
The agencies have experience evaluating if a water is standing or continuously flowing at least during the wet season and will continue to use multiple tools, including remote and field-based indicators to inform decisions. As stated earlier, the agencies intend to use the WebWIMP outputs as a primary tool for determining the wet season at a given location. The WebWIMP outputs reported by APT can also be used to assess the presence of drought conditions, as well

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2025-20402. Check the current official text before relying on it. Not legal advice.