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Proposed Rule2021-25601

Revised Definition of “Waters of the United States”

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Published

December 7, 2021

Issuing agencies

Defense DepartmentEngineers CorpsEnvironmental Protection Agency

Abstract

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

Full Text

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[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Proposed Rules]
[Pages 69372-69450]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-25601]

[[Page 69371]]

Vol. 86

Tuesday,

No. 232

December 7, 2021

Part II

Department of Defense

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Department of the Army, Corps of Engineers

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33 CFR Part 328

Environmental Protection Agency

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40 CFR Part 120

Revised Definition of ``Waters of the United States''; Proposed Rule

Federal Register / Vol. 86 , No. 232 / Tuesday, December 7, 2021 /
Proposed Rules

[[Page 69372]]

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 120

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

Revised Definition of ``Waters of the United States''

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

ACTION: Proposed rule.

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

DATES: Comments must be received on or before February 7, 2022. Please
refer to the SUPPLEMENTARY INFORMATION section for additional
information on the public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2021-0602, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#b2fde59ff6ddd1d9d7c6f2d7c2d39cd5ddc4">[email&#160;protected]</a>. Include Docket ID No. EPA-HQ-OW-
2021-0602 in the subject line of the message.
Instructions: All submissions received must include Docket ID No.
EPA-HQ-OW-2021-0602. Comments received may be posted without change to
<a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document. Out
of an abundance of caution for members of the public and our staff, the
EPA Docket Center and Reading Room are open to the public by
appointment only to reduce the risk of transmitting COVID-19. Our
Docket Center staff also continues to provide remote customer service
via email, phone, and webform. Hand deliveries and couriers may be
received by scheduled appointment only. For further information on EPA
Docket Center services and the current status, please visit us online
at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.

FOR FURTHER INFORMATION CONTACT: Damaris Christensen, Oceans, Wetlands
and Communities Division, Office of Water (4504-T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 564-2281; email address: <a href="/cdn-cgi/l/email-protection#2a697d6b5d455e5f596a4f5a4b044d455c">[email&#160;protected]</a>, and
Stacey Jensen, Office of the Assistant Secretary of the Army for Civil
Works, Department of the Army, 108 Army Pentagon, Washington, DC 20310-
0104; telephone number: (703) 459-6026; email address:
<a href="/cdn-cgi/l/email-protection#84f1f7e5f6e9fdaaf4e1eaf0e5e3ebeaaaecf5e0e5a9e5f7e5a9e7f3aae9e6fcaae5f7e5a9e7f3a9f6e1f4ebf6f0edeae3c4e9e5ede8aae9ede8">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Public Participation
A. Written Comments
B. Virtual Public Hearings
III. General Information
A. What action are the agencies taking?
B. What is the agencies' authority for taking this action?
C. What are the incremental costs and benefits of this action?
IV. Background
A. Legal Background
B. The Agencies' Post-Rapanos Rules
C. Summary of Stakeholder Outreach
V. Proposed Revised Definition
A. Basis for Proposed Rule
B. Concerns With Alternatives
C. Proposed Rule
D. Implementation of Proposed Rule
E. Publicly Available Jurisdictional Information and Permit Data
F. Placement of the Definition of ``Waters of the United
States'' in the Code of Federal Regulations
VI. Summary of Supporting Analyses
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. Executive Summary

Congress enacted the Federal Water Pollution Control Act Amendments
of 1972, Public Law 92-500, 86 Stat. 816, as amended, 33 U.S.C. 1251 et
seq. (Clean Water Act or Act) ``to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' 33 U.S.C.
1251(a). In doing so, Congress performed a ``total restructuring'' and
``complete rewriting'' of the existing statutory framework, seeking to
better protect the quality of the nation's waters. City of Milwaukee v.
Illinois, 451 U.S. 304, 317 (1981). Congress thus intended the 1972 Act
to be a bold step forward in providing protections for the nation's
waters.
Central to the framework and protections provided by the Clean
Water Act is the term ``navigable waters,'' \1\ defined in the Act as
``the waters of the United States, including the territorial seas.'' 33
U.S.C. 1362(7). This term establishes the extent of most federal
programs to protect water quality under the Act--including, for
example, water quality standards, impaired waters and total maximum
daily loads, oil spill prevention, preparedness and response programs,
state and tribal water quality certification programs, and dredged and
fill programs--because such programs apply only to ``waters of the
United States.''
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\1\ To avoid confusion between the term ``navigable waters'' as
defined in the Clean Water Act and its implementing regulations, 33
U.S.C. 1362(7); 33 CFR 328.3 (2014), and the traditional use of the
term ``navigable waters'' to describe waters that are, have been, or
could be used for interstate or foreign commerce, 33 CFR 328.3(a)(1)
(2014), this preamble will refer to the latter as ``traditional
navigable waters'' or waters that are ``navigable-in-fact.''
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As the Supreme Court presciently noted decades ago, defining this
term requires the EPA and the U.S. Department of the Army (Army)
(together, ``the agencies'') to ``choose some point at which water ends
and land begins. Our common experience tells us that this is often no
easy task: The transition from water to solid

[[Page 69373]]

ground is not necessarily or even typically an abrupt one. Rather,
between open waters and dry land may lie shallows, marshes, mudflats,
swamps, bogs--in short, a huge array of areas that are not wholly
aquatic but nevertheless fall far short of being dry land. Where on
this continuum to find the limit of `waters' is far from obvious.''
United States v. Riverside Bayview Homes, 474 U.S. 121, 132 (1985)
(``Riverside Bayview'').\2\
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\2\ The Supreme Court has twice more addressed the issue of
Clean Water Act jurisdiction over ``waters of the United States.''
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001) (``SWANCC''); Rapanos v. United
States, 547 U.S. 715 (2006) (``Rapanos'').
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In the nearly five decades since the Clean Water Act was enacted,
the agencies have undertaken the challenge of developing and
implementing a durable definition of the term ``waters of the United
States'' that draws the line on the Riverside Bayview ``continuum''
consistent with the objective of the Act--to restore and maintain the
chemical, physical, and biological integrity of the nation's waters--
based on science, and refined over the years by extensive experience in
implementing the definition in the field. In 2020, however, the
agencies issued a rule, called the ``Navigable Waters Protection Rule''
(NWPR), which substantially departed from prior rules defining ``waters
of the United States.'' The earlier rules had been based on scientific
concepts, implementation experience, and consideration of how the water
quality implications of the definitions would advance the Clean Water
Act's statutory objective. While the NWPR's interpretation of the
statute and case law overlaps in some respects with those prior
regulations--for example, its understanding that the statute authorizes
the agencies to regulate waters beyond those that are navigable-in-
fact--it departed from prior regulations by diminishing the appropriate
role of science and Congress's objective in the Clean Water Act. The
NWPR provided less protection and could have allowed far more impacts
to the nation's waters than any rule that preceded it.
In response to President Joseph R. Biden Jr.'s Executive Order
13990, 86 FR 7037 (January 25, 2021), which directed federal agencies
to review certain regulations, EPA and the Army undertook a review of
the NWPR. The agencies found that the NWPR did not appropriately
consider the water quality impacts of its approach to defining ``waters
of the United States,'' in contravention of Congress's objective in the
Clean Water Act ``to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,'' and that the rule's
reduction in the scope of protected waters could have a potentially
extensive and adverse impact on the nation's waters. The agencies'
ongoing analyses of waters that fall outside of the Act's protections
because of the NWPR support these findings.
Following a federal district court decision vacating the NWPR on
August 30, 2021, the agencies halted implementation of the NWPR and
began interpreting ``waters of the United States'' consistent with the
pre-2015 regulatory regime.3 4 Though EPA and the U.S. Army
Corps of Engineers (Corps) are not currently implementing the NWPR, the
agencies are aware that further developments in litigation over the
rule could bring the rule back into effect. For these reasons, among
others discussed more fully below, the agencies have decided that
prompt replacement of the NWPR through the administrative rulemaking
process is vital.
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\3\ See Pascua Yaqui Tribe v. EPA, No. 20-00266 (D. Ariz. Aug.
30, 2021); U.S. EPA, Current Implementation of Waters of the United
States, <a href="https://www.epa.gov/wotus/current-implementation-waters-united-states">https://www.epa.gov/wotus/current-implementation-waters-united-states</a>.
\4\ The ``pre-2015 regulatory regime'' refers to the agencies'
pre-2015 definition of ``waters of the United States,'' implemented
consistent with relevant case law and longstanding practice, as
informed by applicable guidance, training, and experience.
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In order to ensure necessary federal protections for the nation's
waters, the agencies are proposing to exercise their discretion under
the statute to return generally to the familiar pre-2015 definition
that has bounded the Act's protections for decades, has been codified
multiple times, and has been implemented by every Administration for
the last 35 years, from that of Ronald Reagan through Donald Trump,
which re-promulgated the pre-2015 regulations. See In re EPA & Dep't of
Def. Final Rule, 803 F.3d 804, 808 (6th Cir. 2015). The pre-2015
regulations were largely in place for both agencies in 1986 and are
thus commonly referred to as ``the 1986 regulations.'' \5\
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\5\ EPA and the Corps have separate regulations defining the
statutory term ``waters of the United States,'' but their
interpretations were substantially similar and remained largely
unchanged between 1977 and 2015. See, e.g., 42 FR 37122, 37144 (July
19, 1977); 44 FR 32854, 32901 (June 7, 1979). For convenience, the
agencies in this preamble will generally cite the Corps'
longstanding regulations and will refer to them as ``the 1986
regulations,'' ``the pre-2015 regulations,'' or ``the regulations in
place until 2015'' as inclusive of EPA's comparable regulations that
were recodified in 1988 and of the exclusion for prior converted
cropland both agencies added in 1993.
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In this proposed rule the agencies are exercising their
discretionary authority to interpret ``waters of the United States'' to
mean the waters defined by the longstanding 1986 regulations, with
amendments to certain parts of those rules to reflect the agencies'
interpretation of the statutory limits on the scope of the ``waters of
the United States'' and informed by Supreme Court case law. Thus, in
the proposed rule, the agencies interpret the term ``waters of the
United States'' to include: Traditional navigable waters, interstate
waters, and the territorial seas, and their adjacent wetlands; most
impoundments of ``waters of the United States''; tributaries to
traditional navigable waters, interstate waters, the territorial seas,
and impoundments that meet either the relatively permanent standard or
the significant nexus standard; wetlands adjacent to impoundments and
tributaries, that meet either the relatively permanent standard or the
significant nexus standard; and ``other waters'' that meet either the
relatively permanent standard or the significant nexus standard. The
``relatively permanent standard'' means waters that are relatively
permanent, standing or continuously flowing and waters with a
continuous surface connection to such waters. The ``significant nexus
standard'' means waters that either alone or in combination with
similarly situated waters in the region, significantly affect the
chemical, physical, or biological integrity of traditional navigable
waters, interstate waters, or the territorial seas (the ``foundational
waters''). With these amendments to the 1986 regulations, the proposed
rule is within the proper scope of the agencies' statutory authority
and would restore and maintain the chemical, physical, and biological
integrity of the nation's waters.
The proposed rule advances the Clean Water Act's statutory
objective as it is based on the best available science concerning the
functions provided by upstream tributaries, adjacent wetlands, and
``other waters'' to restore and maintain the water quality of
downstream foundational waters. By contrast, the agencies conclude that
the NWPR, which this proposed rule would replace, and which found
jurisdiction primarily under the relatively permanent standard,
established a test for jurisdiction that did not adequately address the
impacts of degradation of upstream waters on downstream waters,
including traditional navigable waters, and was therefore incompatible
with the objective of the Clean Water Act. While

[[Page 69374]]

the ``more absolute position'' taken by the NWPR ``may be easier to
administer,'' it has ``consequences that are inconsistent with major
congressional objectives, as revealed by the statute's language,
structure, and purposes.'' County of Maui, Hawaii v. Hawaii Wildlife
Fund, 140 S. Ct. 1462, 1477 (2020).
In developing the proposed rule, the agencies also considered the
statute as a whole, the scientific record, relevant Supreme Court case
law, and the agencies' experience and expertise after more than 30
years of implementing the 1986 regulations defining ``waters of the
United States,'' including more than a decade of experience
implementing those regulations consistent with the Supreme Court's
decisions in Riverside Bayview, SWANCC, and Rapanos. The agencies'
interpretation also reflects consideration of the statute as a whole,
including section 101(b), which states that ``it is the policy of
Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution, to plan the development and use (including restoration,
preservation, and enhancement) of land and water resources.'' 33 U.S.C.
1251(b). The proposed rule's limits appropriately draw the boundary of
waters subject to federal protection by ensuring that where upstream
waters significantly affect the integrity of waters and the federal
interest is indisputable--the traditional navigable waters, interstate
waters, and territorial seas--Clean Water Act programs would apply to
ensure that those downstream waters are protected. And where they do
not, the agencies would leave regulation to the states and tribes. The
proposed rule's relatively permanent and significant nexus limitations
are thus based on the agencies' conclusion that together, those
standards are consistent with the statutory text, advance the objective
of the Act, are supported by the scientific record and Supreme Court
case law, and appropriately consider the policies of the Act. In
addition, because the proposed rule reflects consideration of the
agencies' experience and expertise, as well as updates in
implementation tools and resources, it is familiar and implementable.
While there are case-specific determinations that would need to be
made under this proposed rule, that was also true under the NWPR and
many other regulatory regimes where agencies must balance competing
factors. The agencies, moreover, believe that a return to the pre-2015
definition would provide a known and familiar framework for co-
regulators and stakeholders. In addition, the clarifications proposed
here and the intervening advancements in implementation resources,
tools, and scientific support (see section V.D.3.d of this preamble)
would address some of the concerns raised in the past about timeliness
and consistency of jurisdictional determinations under this regulatory
regime.
Through this rulemaking process, the agencies will consider all
public comments on the proposed rule including changes that improve
clarity, implementability, and long-term durability of the definition.
The agencies will also consider changes through a second rulemaking
that they anticipate proposing in the future, which would build upon
the foundation of this proposed rule.

II. Public Participation

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2021-
0602, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or via the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA and the Army
may publish any comment received to the public docket. Do not submit to
EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA and the
Army will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
Due to public health concerns related to COVID-19, the EPA Docket
Center and Reading Room are open to the public by appointment only. Our
Docket Center staff also continue to provide remote customer service
via email, phone, and webform. Hand deliveries or couriers will be
received by scheduled appointment only. For further information and
updates on EPA Docket Center services, please visit us online at
<a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
EPA and the Army continue to carefully monitor information from the
Centers for Disease Control and Prevention (CDC), local area health
departments, and our federal partners so that we can respond rapidly as
conditions change regarding COVID-19.

B. Virtual Public Hearings

Please note that because of current CDC recommendations, as well as
state and local orders for social distancing to limit the spread of
COVID-19, EPA and the Army cannot hold in-person public meetings at
this time. The agencies are hosting virtual public hearings on
Wednesday, January 12, 2022 from 10 a.m. to 1 p.m. Eastern Time; on
Thursday, January 13, 2022 from 2 p.m. to 5 p.m. Eastern Time; and on
Tuesday, January 18, 2022 from 5 p.m. to 8 p.m. Eastern Time.
EPA and the Army will begin pre-registering speakers for the
hearing upon publication of this document in the Federal Register. To
register to speak at a specific session of the virtual hearing, please
use the online registration forms available at:
1. Wednesday, January 12, 2022--<a href="https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211244667487">https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211244667487</a>.
2. Thursday, January 13, 2022--<a href="https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211258017417">https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211258017417</a>.
3. Tuesday, January 18, 2022--<a href="https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211274536827">https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211274536827</a>.
The last day to pre-register to speak at each session will be,
respectively, Friday, January 7, 2022; Monday, January 10, 2022; and
Thursday, January 13, 2022. A day before each scheduled session, EPA
and the Army will post a general agenda for the hearing that will list
pre-registered speakers in approximate order at <a href="https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities">https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities</a>. People may
also register to listen to the public sessions at the registration
links above.
To allow more time for speakers, the agencies may prerecord a video
introduction and overview of the rule, which will be available on the
EPA website above for viewing before the public hearings. EPA and the
Army will make every effort to follow the schedule as closely as
possible on the day of the hearing, but it is possible that the
hearings will run either ahead of schedule or behind schedule.
Each commenter will have three (3) minutes to provide oral
testimony. EPA and the Army encourage commenters to

[[Page 69375]]

provide the agencies with a copy of their oral testimony electronically
by emailing it to <a href="/cdn-cgi/l/email-protection#33706472445c474640735643521d545c45">[email&#160;protected]</a>. EPA and the Army also recommend
submitting the text of your oral comments as written comments to the
rulemaking docket.
The agencies may ask clarifying questions during the oral
presentations but will not respond to the presentations at that time.
Written statements and supporting information submitted during the
comment period will be considered with the same weight as oral comments
and supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at <a href="https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities">https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities</a>. While the agencies expect the
hearing to go forward as set forth above, please monitor our website or
contact <a href="/cdn-cgi/l/email-protection#b9faeef8ced6cdcccaf9dcc9d897ded6cf">[email&#160;protected]</a> to determine if there are any updates. EPA and
the Army do not intend to publish a document in the Federal Register
announcing updates.
If you require the services of a translator or special
accommodations such as audio description, please pre-register for the
hearing with <a href="/cdn-cgi/l/email-protection#95d6c2d4e2fae1e0e6d5f0e5f4bbf2fae3">[email&#160;protected]</a> and describe your needs a week in advance
of each session--respectively, by Wednesday, January 5, 2022; Thursday,
January 6, 2022; and Tuesday, January 11, 2022. EPA and the Army may
not be able to arrange accommodations without advanced notice.

III. General Information

A. What action are the agencies taking?

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

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

The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including sections 301, 304, 311,
401, 402, 404, and 501.

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

Because the agencies are not currently implementing the NWPR, the
proposed rule would provide protections that are generally comparable
to current practice; as such, the agencies find that there would be no
appreciable cost or benefit difference. Potential costs and benefits
would be incurred as a result of actions taken under existing Clean
Water Act programs (i.e., sections 303, 311, 401, 402, and 404) that
implement and follow this proposed rule. Entities currently are, and
would continue to be, regulated under these programs that protect
``waters of the United States'' under the Clean Water Act.
The agencies prepared the Economic Analysis for the Proposed
``Revised Definition of `Waters of the United States' '' Rule
(``Economic Analysis for the Proposed Rule''), available in the
rulemaking docket, for informational purposes to analyze the potential
costs and benefits associated with this proposed action. The agencies
analyze the potential costs and benefits against two baselines: The
current status quo and the vacated NWPR. The analysis is summarized in
section VI of this preamble. The agencies' primary estimate is that the
proposed rule would have zero impact.

IV. Background

A. Legal Background

1. The Clean Water Act
Before passage of the Clean Water Act, the nation's waters were in
``serious trouble, thanks to years of neglect, ignorance, and public
indifference.'' H.R. Rep. No. 92-911, at 753 (1972). Congress enacted
the Federal Water Pollution Control Act Amendments of 1972, Public Law
92-500, 86 Stat. 816, as amended, 33 U.S.C. 1251 et seq., with the
objective ``to restore and maintain the chemical, physical and
biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a). The
Act was intended to address longstanding concerns regarding the quality
of the nation's waters and the Federal government's ability to respond
to those concerns under existing law.
Prior to 1972, the Federal government's authority to control and
redress pollution in the nation's waters largely fell to the Corps
under the Rivers and Harbors Act of 1899. While much of that statute
focused on restricting obstructions to navigation on the nation's major
waterways, section 13 of the statute made it unlawful to discharge
refuse ``into any navigable water of the United States, or into any
tributary of any navigable water from which the same shall float or be
washed into such navigable water.'' 33 U.S.C. 407. In 1948, Congress
enacted the Federal Water Pollution Control Act of 1948, Public Law 80-
845, 62 Stat. 1155 (June 30, 1948), to address interstate water
pollution, and subsequently amended that statute in 1956, 1961, and
1965. These early versions of the statute that eventually became known
as the Clean Water Act encouraged the development of pollution
abatement programs, required states to develop water quality standards,
and authorized the Federal government to bring enforcement actions to
abate water pollution. However, these authorities proved inadequate to
address the decline in the quality of the nation's waters. See City of
Milwaukee v. Illinois, 451 U.S. 304, 310 (1981).
As a result, in 1972, Congress performed ``a `total restructuring'
and `complete rewriting' of the existing'' statutory framework. City of
Milwaukee, 451 U.S. at 317 (quoting legislative history of 1972
amendments). The Clean Water Act, which was passed as an amendment to
the Federal Water Pollution Control Act, was described by its
supporters as the first truly comprehensive federal water pollution
legislation. The ``major purpose'' of the Clean Water Act was ``to
establish a comprehensive long-range policy for the elimination of
water pollution.'' S. Rep. No. 92-414, at 95 (1971), 2 Legislative
History of the Water Pollution Control Act Amendments of 1972
(Committee Print compiled for the Senate Committee on Public Works by
the Library of Congress), Ser. No. 93-1, p. 1511 (1971) (emphasis
added). ``No Congressman's remarks on the legislation were complete
without reference to [its] `comprehensive' nature.'' City of Milwaukee,
451 U.S. at 318. In passing the 1972 amendments, Congress ``intended to
repudiate limits that had been placed on federal regulation by earlier
water pollution control statutes and to exercise its powers under the
Commerce Clause to regulate at least some waters that would not be
deemed `navigable' under the classical understanding of that term.''
United States v. Riverside Bayview Homes, 474 U.S. 121, 133 (1985)
(``Riverside Bayview''); see also Int'l Paper Co. v. Ouellette, 479
U.S. 481, 486 n.6 (1987).
One of the Clean Water Act's principal tools to protect the
integrity of the nation's waters is section 301(a), which generally
prohibits ``the discharge of any pollutant by any person'' without a
permit or other authorization under the Act. The terms ``discharge of a
pollutant'' and ``discharge of pollutants'' are defined broadly to
include ``any addition of any pollutant to navigable waters from any
point source.'' 33 U.S.C. 1362(12). And ``navigable waters'' means
``the waters of the United States, including the territorial seas.''
Id. at 1362(7). Although Congress opted to carry over the term
``navigable waters'' from prior versions of the Federal Water Pollution
Control Act, Congress broadened the definition

[[Page 69376]]

of ``navigable waters'' to encompass all ``waters of the United
States.'' Id. Indeed, in finalizing the 1972 amendments, the conferees
specifically deleted the word ``navigable'' from the definition of
``waters of the United States'' that had originally appeared in the
House version of the Act. S. Conf. Rep. No. 92-1236, at 144 (1972).
Further, the Senate Report stated that ``navigable waters'' means ``the
navigable waters of the United States, portions thereof, tributaries
thereof, and includes the Territorial Seas and the Great Lakes.'' S.
Rep. No. 92-414, at 77 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668,
3742-43 (emphasis added). The Senate Report accompanying the 1972 Act
also explained that ``[w]ater moves in hydrologic cycles and it is
essential that the discharge of pollutants be controlled at the
source.'' Id.
The definition of ``waters of the United States'' affects most
Clean Water Act programs--including water quality standards, impaired
waters and total maximum daily loads, oil spill prevention,
preparedness and response programs, the state and tribal water quality
certification programs, National Pollutant Discharge Elimination System
(NPDES) programs, and dredge and fill programs--because such programs
apply only to ``waters of the United States.'' Some Clean Water Act
programs are implemented by the Federal government, and others are
implemented by state or tribal governments where the statute provides a
direct grant of authority to the state or authorized tribe or provides
an option for the state or authorized tribe to take on those programs.
States and tribes may additionally implement, establish, or modify
their own programs under state or tribal law to manage and regulate
waters independent of the Clean Water Act.
Under Clean Water Act section 303(d) and EPA's implementing
regulations, states are required to assemble and evaluate all existing
and readily available water quality-related data and information and to
submit to EPA every two years a list of impaired waters that require
total maximum daily loads (TMDLs). For waters identified on a 303(d)
list, states establish TMDLs for all pollutants preventing or expected
to prevent attainment of water quality standards. Section 303(d)
applies to ``waters of the United States'' and ``non-jurisdictional''
waterbodies are not required to be assessed or otherwise identified as
impaired; TMDL restoration plans likewise apply to ``waters of the
United States.''
Clean Water Act section 311 and the Oil Pollution Act (OPA) of 1990
authorize the Oil Spill Liability Trust Fund (OSLTF) to reimburse costs
of assessing and responding to oil spills to ``waters of the United
States'' or adjoining shorelines. The OSLTF allows an immediate
response to a spill, including containment, countermeasures, cleanup,
and disposal activities. The OSLTF is not available to reimburse costs
incurred by states or tribes to clean up spills and costs related to
business and citizen impacts (e.g., lost wages and damages) for spills
affecting waters not subject to Clean Water Act jurisdiction. EPA also
lacks authority to take enforcement actions based on spills solely
affecting waters not subject to Clean Water Act jurisdiction.
The scope of facilities required to prepare oil spill prevention
and response plans is also affected by the definition of ``waters of
the United States.'' EPA-regulated oil storage facilities with storage
capacities greater than 1,320 gallons (except farms) that have a
reasonable expectation of an oil discharge to ``waters of the United
States'' or adjoining shorelines are required to prepare and implement
spill prevention plans. High-risk oil storage facilities that meet
certain higher storage thresholds and related harm factors are required
to prepare and submit oil spill preparedness plans to EPA for review.
The U.S. Coast Guard and Department of Transportation also require oil
spill response plans under their respective authorities. However, Clean
Water Act section 311 spill prevention and preparedness plan
requirements do not apply to a facility if there is no reasonable
expectation that an oil discharge from a facility could reach a
jurisdictional water or adjoining shoreline.
Clean Water Act section 401 provides that a Federal agency cannot
issue a permit or license for an activity that may result in a
discharge to ``waters of the United States'' until the state or tribe
where the discharge would originate has granted or waived water quality
certification. As a result, section 401 certification provides states
and authorized tribes an opportunity to address the proposed aquatic
resource impacts of federally-issued permits and licenses. The
definition of ``waters of the United States'' affects where federal
permits are required and thus where section 401 certification applies.
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 a ``water of the United States.''
The Clean Water Act section 404 permitting program addresses the
discharge of dredged or fill material from a point source into ``waters
of the United States,'' unless the activity is exempt from Clean Water
Act section 404 regulation (e.g., certain farming, ranching, and
forestry activities). Section 404 requires a permit before dredged or
fill material may be discharged to ``waters of the United States.''
Where Clean Water Act jurisdiction does not apply, no section 404
permits are required for dredged or fill activities in those waters or
features.
States and tribes play a vital role in the implementation and
enforcement of these and other Clean Water Act programs. Section 101(b)
of the Act established that ``it is the policy of Congress to
recognize, preserve and protect the primary responsibilities and rights
of States to prevent, reduce and eliminate pollution, to plan the
development and use (including restoration, preservation, and
enhancement) of land and water resources.'' 33 U.S.C. 1251(b). All
states and 74 tribes have authority to implement section 401 water
quality certification programs. Currently 47 states and one territory
have authority to administer all or portions of the section 402 NPDES
program for ``waters of the United States.'' All states and 46 tribes
have established water quality standards pursuant to section 303 of the
Act, which form a legal basis for limitations on discharges of
pollutants to ``waters of the United States.''
Moreover, consistent with the Clean Water 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. Under section 510 of the Clean Water Act, unless
expressly stated, nothing in the Clean Water Act precludes or denies
the right of any state or tribe to establish more protective standards
or limits than the Clean Water Act.\6\ Many states and tribes, for
example, regulate groundwater, and some others protect wetlands that
are vital to their environment and economic

[[Page 69377]]

well-being but which may be outside the scope of the Clean Water Act.
---------------------------------------------------------------------------

\6\ Congress has provided for eligible tribes to administer
Clean Water Act programs over their reservations and expressed a
preference for tribal regulation of surface water quality on
reservations to ensure compliance with the goals of the statute. See
33 U.S.C. 1377; 56 FR 64876, 64878-79 (December 12, 1991). In
addition, tribes may establish more protective standards or limits
under tribal law that may be more stringent than the federal Clean
Water Act. Where appropriate, references to states in this document
may also include eligible tribes.
---------------------------------------------------------------------------

In 1977, Congress considered and rejected a legislative proposal
that would have redefined and limited the waters subject to the Corps'
permitting authority under section 404 of the Clean Water Act to only
navigable-in-fact waters and their adjacent wetlands. In 1975, the
Corps had extended the scope of ``waters of the United States'' to
encompass, in a phased approach, non-navigable tributaries, wetlands
adjacent to primary navigable waters, intermittent rivers, streams,
tributaries, and certain other categories of waters. 40 FR 31325-31326
(1975). In reaction to that broadened definition, Congress considered a
proposal to limit the geographic reach of section 404, but it was
defeated in the Senate and eliminated by the Conference Committee. H.R.
Conf. Rep. No. 95-830, at 97-105 (1977). As the Supreme Court explained
in Riverside Bayview, ``efforts to narrow the definition of `waters'
were abandoned; the legislation as ultimately passed, in the words of
Senator Baker, `retain[ed] the comprehensive jurisdiction over the
Nation's waters exercised in the 1972 Federal Water Pollution Control
Act. ' '' 474 U.S. at 136-137; see also 123 Cong. Rec. 26718 (1977)
(remarks of Senator Baker: ``Continuation of the comprehensive coverage
of this program is essential for the protection of the aquatic
environment. The once seemingly separable types of aquatic systems are,
we now know, interrelated and interdependent. We cannot expect to
preserve the remaining qualities of our water resources without
providing appropriate protection for the entire resource.'').
Rather than alter the geographic reach of section 404 in 1977,
Congress instead amended the statute by exempting certain activities--
for example, certain agricultural and silvicultural activities--from
the permit requirements of section 404. See 33 U.S.C. 1344(f). The
amendments also authorized the use of general permits to streamline the
permitting process. See id. at 1344(e). Finally, the 1977 Act
established for the first time a mechanism by which a state, rather
than the Corps, could assume responsibility for implementing the
section 404 permitting program, but only for waters ``other than''
traditional navigable waters and their adjacent wetlands. Id. at
1344(g)(1). Three states have since assumed the section 404 program.
The fact that a resource is a ``water of the United States'' does
not mean that activities such as farming, construction, infrastructure
development, or resource extraction, cannot occur in or near the
resource at hand. The Clean Water Act exempts a number of activities
from permitting or from the definition of ``point source,'' including
agricultural storm water and irrigation return flows. See id. at
1342(l)(2), 1362(14). As discussed above, since 1977 the Clean Water
Act in section 404(f) has exempted many normal farming activities from
the section 404 permitting requirement, including seeding, harvesting,
cultivating, planting, and soil and water conservation practices, among
other activities. Id. at 1344(f). The scope of ``waters of the United
States'' does not affect these statutory exemptions.
In addition, permits are routinely issued under sections 402 and
404 of the Clean Water Act. The permitting authority, which is most
often a state agency for the section 402 NPDES program and the Corps in
the context of section 404, generally works with permit seekers to
ensure that activities can occur without harming the integrity of the
nation's waters.
Effluent limitations serve as the primary mechanism in NPDES
permits for controlling discharges of pollutants to receiving waters,
and include technology-based effluent limitations and water quality-
based effluent limitations. These limits, which are typically numeric,
generally specify an acceptable level of a pollutant or pollutant
parameter in a discharge (for example, a certain level of bacteria).
The permittee may choose which technologies to use to achieve that
level. Some permits contain certain ``best management practices''
(BMPs) which are actions or procedures to prevent or reduce the
discharge of pollution to ``waters of the United States'' (for example,
stormwater control measures for construction activities).
In issuing section 404 permits, the Corps or authorized state works
with the applicant to avoid, minimize, or compensate for any
unavoidable impacts to ``waters of the United States.'' Permit
applicants show that steps have been taken to avoid impacts to
wetlands, streams, and other aquatic resources; that potential impacts
have been minimized; and that compensatory mitigation will be provided
for all remaining unavoidable impacts. For most discharges that will
have only minimal adverse effects, a general permit (e.g., a
``nationwide'' permit) may be suitable. General permits are issued on a
nationwide, regional, or state basis for particular categories of
activities. While some general permits require the applicant to submit
a pre-construction notification to the Corps, others allow the
applicant to proceed with no formal notification. The general permit
process eliminates individual review and allows certain activities to
proceed with little or no delay, provided that the general or specific
conditions for the general permit are met. For example, minor road
construction activities, utility line backfill, and minor discharges
for maintenance are activities in ``waters of the United States'' that
can be considered for a general permit. States and tribes also have a
role in section 404 decisions, through state program general permits,
water quality certification, or program assumption.
Under any regulation defining ``waters of the United States,''
property owners may obtain from the Corps jurisdictional determinations
whether waters on their property are subject to the Clean Water Act.
The Corps' regulations provide that a jurisdictional determination
consists of ``a written Corps determination that a wetland and/or
waterbody is subject to regulatory jurisdiction under Section 404 of
the Clean Water Act (33 U.S.C. 1344) or a written determination that a
waterbody is subject to regulatory jurisdiction under Section 9 or 10
of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).'' See 33
CFR 331.2. These jurisdictional determinations can be obtained at no
charge to the property owners. See 33 CFR 325.1 (omitting mention of
fees for jurisdictional determinations) and Regulatory Guidance Letter
16-01 (2016) (stating that such determinations are issued as a ``public
service'').
2. The 1986 Regulations Defining ``Waters of the United States''
In 1973, EPA published regulations defining ``navigable waters''
broadly to include traditional navigable waters; tributaries of
traditional navigable waters; interstate waters; and intrastate lakes,
rivers, and streams used in interstate commerce. 38 FR 13528, 13528-29
(May 22, 1973). The Corps published regulations in 1974 defining the
term ``navigable waters'' to mean ``those waters of the United States
which are subject to the ebb and flow of the tide, and/or are
presently, or have been in the past, or may be in the future
susceptible for use for purposes of interstate or foreign commerce.''
39 FR 12115, 12119 (April 3, 1974); 33 CFR 209.120(d)(1) (1974); see
also 33 CFR 209.260(e)(1) (1974) (explaining that ``[i]t is the water
body's capability of use by the public for purposes of transportation
or commerce which is the determinative factor'').
Several federal courts then held that the Corps had given ``waters
of the

[[Page 69378]]

United States'' an unduly restrictive reading in its regulations
implementing Clean Water Act section 404. See, e.g., United States v.
Holland, 373 F. Supp. 665, 670-676 (M.D. Fla. 1974). EPA and the House
Committee on Government Operations agreed with the decision in
Holland.\7\ In Natural Resources Defense Council, Inc. v. Callaway, 392
F. Supp. 685, 686 (D.D.C. 1975) (``Callaway''), the court held that in
the Clean Water Act, Congress had ``asserted federal jurisdiction over
the nation's waters to the maximum extent permissible under the
Commerce Clause of the Constitution. Accordingly, as used in the
[Federal] Water [Pollution Control] Act, the term [`navigable waters']
is not limited to the traditional tests of navigability.'' The court
ordered the Corps to publish new regulations ``clearly recognizing the
full regulatory mandate of the [Federal] Water [Pollution Control]
Act.'' Id.
---------------------------------------------------------------------------

\7\ EPA expressed the view that ``the Holland decision provides
a necessary step for the preservation of our limited wetland
resources,'' and that ``the [Holland] court properly interpreted the
jurisdiction granted under the [Clean Water Act] and Congressional
power to make such a grant.'' See section 404 of the Federal Water
Pollution Control Act Amendments of 1972: Hearings Before the Senate
Comm. on Pub. Works, 94th Cong., 2d Sess. 349 (1976) (letter dated
June 19, 1974, from Russell E. Train, Administrator of EPA, to Lt.
Gen. W.C. Gribble, Jr., Chief of Corps of Engineers). Shortly
thereafter, the House Committee on Government Operations discussed
the disagreement between the two agencies (as reflected in EPA's
June 19 letter) and concluded that the Corps should adopt the
broader view of the term ``waters of the United States'' taken by
EPA and by the court in Holland. See H.R. Rep. No. 93-1396, at 23-27
(1974). The Committee urged the Corps to adopt a new definition that
``complies with the congressional mandate that this term be given
the broadest possible constitutional interpretation.'' Id. at 27
(internal quotation marks omitted).
---------------------------------------------------------------------------

In response to the district court's order in Callaway, the Corps
promulgated interim final regulations providing for a phased-in
expansion of its section 404 jurisdiction. 40 FR 31320 (July 25, 1975);
see 33 CFR 209.120(d)(2) and (e)(2) (1976). The interim regulations
revised the definition of ``waters of the United States'' to include,
inter alia, waters (sometimes referred to as ``isolated waters'') that
are not connected by surface water or adjacent to traditional navigable
waters. 33 CFR 209.120(d)(2)(i) (1976).\8\ On July 19, 1977, the Corps
published its final regulations, in which it revised the 1975 interim
regulations to clarify many of the definitional terms. 42 FR 37122
(July 19, 1977). The 1977 final regulations defined the term ``waters
of the United States'' to include, inter alia, ``isolated wetlands and
lakes, intermittent streams, prairie potholes, and other waters that
are not part of a tributary system to interstate waters or to navigable
waters of the United States, the degradation or destruction of which
could affect interstate commerce.'' 33 CFR 323.2(a)(5) (1978); see also
40 CFR 122.3 (1979).\9\
---------------------------------------------------------------------------

\8\ Phase I, which was immediately effective, included coastal
waters and traditional inland navigable waters and their adjacent
wetlands. 40 FR 31321, 31324, 31326 (July 25, 1975). Phase II, which
took effect on July 1, 1976, extended the Corps' jurisdiction to
lakes and certain tributaries of Phase I waters, as well as wetlands
adjacent to the lakes and certain tributaries. Id. Phase III, which
took effect on July 1, 1977, extended the Corps' jurisdiction to all
remaining areas encompassed by the regulations, including
``intermittent rivers, streams, tributaries, and perched wetlands
that are not contiguous or adjacent to navigable waters.'' Id. at
31325; see also 42 FR 37124 (July 19, 1977) (describing the three
phases).
\9\ An explanatory footnote published in the Code of Federal
Regulations stated that ``[p]aragraph (a)(5) incorporates all other
waters of the United States that could be regulated under the
Federal government's Constitutional powers to regulate and protect
interstate commerce.'' 33 CFR 323.2(a)(5), at 616 n.2 (1978).
---------------------------------------------------------------------------

In 1986, the Corps consolidated and recodified its regulatory
provisions defining ``waters of the United States'' for purposes of
implementing the section 404 program. See 51 FR 41216-17 (November 13,
1986). These regulations reflected the interpretation of both agencies.
While EPA and the Corps also have separate regulations defining the
statutory term ``waters of the United States,'' their interpretations,
reflected in the 1986 regulations, have been identical and remained
largely unchanged from 1977 to 2015. See 42 FR 37122, 37124, 37127
(July 19, 1977).\10\ EPA's comparable regulations were recodified in
1988 (53 FR 20764, June 6, 1988), and both agencies added an exclusion
for prior converted cropland in 1993 (58 FR 45008, 45031, August 25,
1993). For convenience, the agencies in this preamble will generally
cite the Corps' longstanding regulations and will refer to ``the 1986
regulations'' as inclusive of EPA's comparable regulations and the 1993
addition of the exclusion for prior converted cropland.
---------------------------------------------------------------------------

\10\ Multiple provisions in the Code of Federal Regulations
contained the definition of the phrases ``waters of the United
States'' and ``navigable waters'' for purposes of implementing the
Clean Water Act, 33 U.S.C. 1362(7), and other water pollution
protection statutes such as the Oil Pollution Act, 33 U.S.C.
2701(21). Some EPA definitions were added after 1986, but each
conformed to the 1986 regulations except for variations in the waste
treatment system exclusion. See, e.g., 55 FR 8666 (March 8, 1990);
73 FR 71941 (November 26, 2008).
---------------------------------------------------------------------------

The 1986 regulations define ``waters of the United States'' as
follows (33 CFR 328.3 (2014)) \11\:
---------------------------------------------------------------------------

\11\ There are some variations in the waste treatment system
exclusion across EPA's regulations defining ``waters of the United
States.'' The placement of the waste treatment system and prior
converted cropland exclusions also varies in EPA's regulations.
---------------------------------------------------------------------------

The term waters of the United States means:
1. All waters which are currently used, or were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters:
a. Which are or could be used by interstate or foreign travelers
for recreational or other purposes; or
b. From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
c. Which are used or could be used for industrial purposes by
industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the
United States under this definition;
5. Tributaries of waters identified in paragraphs (a)(1) through
(4) of this section;
6. The territorial seas;
7. Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a)(1) through (6) of
this section.
8. Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA. Waste treatment systems, including
treatment ponds or lagoons designed to meet the requirements of Clean
Water Act (other than cooling ponds as defined in 40 CFR 423.11(m)
which also meet the criteria of this definition) are not waters of the
United States.
Note that these categories in the 1986 regulations may be referred
to by this numbering system (for example, (a)(1) through (a)(8) waters)
throughout this preamble. See sections I.C.3 and I.C.4 of the Economic
Analysis for the Proposed Rule for a comparison of regulatory
categories between the NWPR and this proposed rule.
3. U.S. Supreme Court Decisions
The U.S. Supreme Court first addressed the scope of ``waters of the
United States'' protected by the Clean

[[Page 69379]]

Water Act in United States v. Riverside Bayview Homes, 474 U.S. 121
(1985) (``Riverside Bayview''), which involved wetlands adjacent to a
traditional navigable water in Michigan. In a unanimous opinion, the
Court deferred to the Corps' judgment that adjacent wetlands are
``inseparably bound up with the `waters' of the United States,'' thus
concluding that ``adjacent wetlands may be defined as waters under the
Act.'' Riverside Bayview, 474 U.S. at 134, 139. The Court observed that
the broad objective of the Clean Water Act to restore the integrity of
the nation's waters ``incorporated a broad, systemic view of the goal
of maintaining and improving water quality . . . . Protection of
aquatic ecosystems, Congress recognized, demanded broad federal
authority to control pollution, for `[w]ater moves in hydrologic cycles
and it is essential that discharge of pollutants be controlled at the
source.' '' Id. at 132-33 (citing S. Rep. 92-414). The Court then
stated: ``In keeping with these views, Congress chose to define the
waters covered by the Act broadly. Although the Act prohibits
discharges into `navigable waters,' see CWA [sections] 301(a), 404(a),
502(12), 33 U.S.C. [sections] 1311(a), 1344(a), 1362(12), the Act's
definition of `navigable waters' as `the waters of the United States'
makes it clear that the term `navigable' as used in the Act is of
limited import.'' Id. at 133.
The Court also recognized that ``[i]n determining the limits of its
power to regulate discharges under the Act, the Corps must necessarily
choose some point at which water ends and land begins. Our common
experience tells us that this is often no easy task: The transition
from water to solid ground is not necessarily or even typically an
abrupt one. Rather, between open waters and dry land may lie shallows,
marshes, mudflats, swamps, bogs--in short, a huge array of areas that
are not wholly aquatic but nevertheless fall far short of being dry
land. Where on this continuum to find the limit of `waters' is far from
obvious.'' Id. at 132. The Court then deferred to the agencies'
interpretation: ``In view of the breadth of federal regulatory
authority contemplated by the Act itself and the inherent difficulties
of defining precise bounds to regulable waters, the Corps' ecological
judgment about the relationship between waters and their adjacent
wetlands provides an adequate basis for a legal judgment that adjacent
wetlands may be defined as waters under the Act.'' Id. at 134.
The Court went on to note that to achieve the goal of preserving
and improving adjacent wetlands that have significant ecological and
hydrological impacts on traditional navigable waters, it was
appropriate for the Corps to regulate all adjacent wetlands, even
though some might not have any impacts on traditional navigable waters.
Id. at 135 n.9. Indeed, the Court acknowledged that some adjacent
wetlands might not have significant hydrological and biological
connections with navigable waters, but concluded that the Corps'
regulation was valid in part because such connections exist in the
majority of cases. Id.
The Court deferred to the Corps' definition of ``adjacent'': ``The
term adjacent means bordering, contiguous, or neighboring. Wetlands
separated from other waters of the United States by man-made dikes or
barriers, natural river berms, beach dunes and the like are `adjacent
wetlands.' '' The Court expressly reserved the question of whether the
Act applies to ``wetlands that are not adjacent to open waters.'' Id.
at 131 n.8.
The Supreme Court again addressed the issue of Clean Water Act
jurisdiction over ``waters of the United States'' in Solid Waste Agency
of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159
(2001) (``SWANCC''). In SWANCC, the Court (in a 5-4 opinion) held that
the use of ``isolated'' non-navigable intrastate ponds by migratory
birds was not by itself a sufficient basis for the exercise of federal
authority under the Clean Water Act. The Court noted that in Riverside
Bayview it had ``found that Congress' concern for the protection of
water quality and aquatic ecosystems indicated its intent to regulate
wetlands `inseparably bound up with the ``waters'' of the United
States' '' and that ``[i]t was the significant nexus between the
wetlands and `navigable waters' that informed [the Court's] reading of
the Clean Water Act'' in that case. Id. at 167.
While recognizing that in Riverside Bayview it had found the term
``navigable'' to be of limited import, the Court in SWANCC noted that
the term ``navigable'' could not be read entirely out of the Act. Id.
at 172. The Court stated: ``We said in Riverside Bayview Homes that the
word `navigable' in the statute was of `limited import' and went on to
hold that [section] 404(a) extended to non-navigable wetlands adjacent
to open waters. But it is one thing to give a word limited effect and
quite another to give it no effect whatever. The term `navigable' has
at least the import of showing us what Congress had in mind as its
authority for enacting the CWA: its traditional jurisdiction over
waters that were or had been navigable in fact or which could
reasonably be so made.'' Id. at 172 (internal citations omitted).
The Court found that the exercise of Clean Water Act regulatory
authority over discharges into the ponds, on the grounds that their use
by migratory birds is within the power of Congress to regulate
activities that in the aggregate have a substantial effect on
interstate commerce, raised questions. Id. at 173. The Court explained
that ``[w]here an administrative interpretation of a statute invokes
the outer limits of Congress' power, we expect a clear indication that
Congress intended that result,'' id. at 172, and that this is
particularly true ``where the administrative interpretation alters the
federal-state framework by permitting federal encroachment upon a
traditional state power,'' id. at 173 (citing United States v. Bass,
404 U.S. 336, 349 (1971)). The Court thus construed the Clean Water Act
to avoid the constitutional questions related to the scope of federal
authority authorized therein. Id. at 174.
Five years after SWANCC, the Court again addressed the Clean Water
Act term ``waters of the United States'' in Rapanos v. United States,
547 U.S. 715 (2006) (``Rapanos''). Rapanos involved two consolidated
cases in which the Act had been applied to wetlands adjacent to non-
navigable tributaries of traditional navigable waters. All members of
the Court agreed that the term ``waters of the United States''
encompasses some waters that are not navigable in the traditional
sense. Id. at 731 ((Scalia, J., plurality opinion) (``We have twice
stated that the meaning of `navigable waters' in the Act is broader
than the traditional understanding of that term, SWANCC, 531 U.S. at
167, 121 S. Ct. 675, 148 L. Ed. 2d 576; Riverside Bayview, 474 U.S. at
133, 106 S. Ct. 455, 88 L. Ed. 2d 419.'')).
A four-Justice plurality in Rapanos interpreted the term ``waters
of the United States'' as covering ``relatively permanent, standing or
continuously flowing bodies of water,'' id. at 739, that are connected
to traditional navigable waters, id. at 742, as well as wetlands with a
``continuous surface connection'' to such water bodies, id. (Scalia,
J., plurality opinion). The Rapanos plurality noted that its reference
to ``relatively permanent'' waters did ``not necessarily exclude
streams, rivers, or lakes that might dry up in extraordinary
circumstances, such as drought,'' or ``seasonal rivers, which contain
continuous flow during some months of the year but no flow during dry
months.'' Id. at 732 n.5 (emphasis in original).
Justice Kennedy's concurring opinion took a different approach that
was based

[[Page 69380]]

in the Court's SWANCC opinion. Justice Kennedy concluded that ``to
constitute `navigable waters' under the Act, a water or wetland must
possess a `significant nexus' to waters that are or were navigable in
fact or that could reasonably be so made.'' Id. at 759 (citing SWANCC,
531 U.S. at 167, 172). He concluded that wetlands possess the requisite
significant nexus if the wetlands ``either alone or in combination with
similarly situated [wet]lands in the region, significantly affect the
chemical, physical, and biological integrity of other covered waters
more readily understood as `navigable.' '' Id. at 780. Justice
Kennedy's opinion notes that to be jurisdictional, such a relationship
with traditional navigable waters must be more than ``speculative or
insubstantial.'' Id.
The four dissenting Justices in Rapanos, who would have affirmed
the court of appeals' application of the agencies' regulation to find
jurisdiction over the waters at issue, also concluded that the term
``waters of the United States'' encompasses, inter alia, all
tributaries and wetlands that satisfy ``either the plurality's
[standard] or Justice Kennedy's.'' Id. at 810 & n.14 (Stevens, J.,
dissenting). The four dissenting Justices stated: ``The Army Corps has
determined that wetlands adjacent to tributaries of traditionally
navigable waters preserve the quality of our Nation's waters by, among
other things, providing habitat for aquatic animals, keeping excessive
sediment and toxic pollutants out of adjacent waters, and reducing
downstream flooding by absorbing water at times of high flow. The
Corps' resulting decision to treat these wetlands as encompassed within
the term `waters of the United States' is a quintessential example of
the Executive's reasonable interpretation of a statutory provision.''
Id. at 788 (citation omitted).
In addition to joining the plurality's opinion, Chief Justice
Roberts issued his own concurring opinion noting that the agencies
``are afforded generous leeway by the courts in interpreting the
statute they are entrusted to administer,'' and the agencies thus have
``plenty of room to operate in developing some notion of an outer bound
to the reach of their authority'' under the Clean Water Act. Id. at
758.
Neither the plurality nor the concurring opinions in Rapanos
invalidated any of the regulatory provisions defining ``waters of the
United States.''
4. Post-Rapanos Appellate Court Decisions
The earliest post-Rapanos decisions by the United States Courts of
Appeals focused on which standard to apply in interpreting the scope of
``waters of the United States''--the plurality's or Justice Kennedy's.
Chief Justice Roberts anticipated this question and cited Marks v.
United States, 430 U.S. 188 (1977) in his concurring opinion to Rapanos
as applicable precedent. Marks v. United States provides that ``[w]hen
a fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, the holding of the Court
may be viewed as the position taken by those Members who concurred in
the judgments on the narrowest grounds.'' The dissenting Justices in
Rapanos also spoke to future application of the divided decision. While
Justice Stevens stated that he assumed Justice Kennedy's significant
nexus standard would apply in most instances, the dissenting Justices
noted that they would find the Clean Water Act extended to waters
meeting either the relatively permanent standard articulated by Justice
Scalia or the significant nexus standard described by Justice Kennedy.
Rapanos, 547 U.S. at 810 & n.14 (Stevens, J., dissenting).
Since Rapanos, every court of appeals to have considered the
question has determined that the government may exercise Clean Water
Act jurisdiction over at least those waters that satisfy the
significant nexus standard set forth in Justice Kennedy's concurrence.
None has held that solely the plurality's relatively permanent standard
may be used to establish jurisdiction. Some have held that the
government may establish jurisdiction under either standard. The
Eleventh Circuit has held that only Justice Kennedy's standard applies.
Precon Dev. Corp. v. U.S. Army Corps of Eng'rs, 633 F.3d 278 (4th Cir.
2011); see also United States v. Donovan, 661 F.3d 174 (3d Cir. 2011);
United States v. Bailey, 571 F.3d 791 (8th Cir. 2009); United States v.
Cundiff, 555 F.3d 200 (6th Cir. 2009); United States v. Lucas, 516 F.3d
316 (5th Cir. 2008); N. Cal. River Watch v. City of Healdsburg, 496
F.3d 993 (9th Cir. 2007) (superseding the original opinion published at
457 F.3d 1023 (9th Cir. 2006)); United States v. Robison, 505 F.3d 1208
(11th Cir. 2007); United States v. Johnson, 467 F.3d 56 (1st Cir.
2006); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir.
2006).
5. Post-Rapanos Implementation of the 1986 Regulations
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 relatively permanent standard and the significant nexus standard)
and by using guidance issued jointly by the agencies. See U.S. EPA &
U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following
the U.S. Supreme Court's Decision in Rapanos v. United States &
Carabell v. United States (June 5, 2007), superseded December 2, 2008
(the ``Rapanos Guidance'').
Under the Rapanos Guidance,\12\ 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. The guidance states that the agencies will 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.
---------------------------------------------------------------------------

\12\ 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.
---------------------------------------------------------------------------

B. The Agencies' Post-Rapanos Rules

Since 2015, EPA and the Army have finalized three rules revising
the definition of ``waters of the United States.''

[[Page 69381]]

1. The 2015 Clean Water Rule
On June 29, 2015, EPA and the Army published the ``Clean Water
Rule: Definition of `Waters of the United States,' '' 80 FR 37054 (June
29, 2015). The 2015 Clean Water Rule's definition of ``waters of the
United States'' established three categories: (A) Waters that are
categorically ``jurisdictional by rule'' (without the need for
additional analysis); (B) waters that are subject to case-specific
analysis to determine whether they are jurisdictional; and (C) waters
that are categorically excluded from jurisdiction. Id. at 37054. Waters
considered ``jurisdictional by rule'' included (1) traditional
navigable waters; (2) interstate waters, including interstate wetlands;
(3) the territorial seas; (4) impoundments of waters otherwise
identified as jurisdictional; (5) tributaries of the first three
categories of ``jurisdictional by rule'' waters; and (6) waters
adjacent to a water identified in the first five categories of
``jurisdictional by rule'' waters, including ``wetlands, ponds, lakes,
oxbows, impoundments, and similar waters.'' Finally, all exclusions
from the definition of ``waters of the United States'' in the pre-2015
regulations were retained, and several exclusions reflecting agency
practice or based on public comment were added to the regulation for
the first time.\13\
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\13\ 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--a mere six months after the rule had
been issued--the rule was vacated and enjoined nationwide. See South
Carolina 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).
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2. The 2019 Repeal Rule
On February 28, 2017, Executive Order 13778 ``Restoring the Rule of
Law, Federalism, and Economic Growth by Reviewing the `Waters of the
United States' Rule,'' directed EPA and the Army to review the 2015
Clean Water Rule for consistency with the policy outlined in section 1
of the order and to issue a proposed rule rescinding or revising the
2015 rule as appropriate and consistent with law. 82 FR 12497 (March 3,
2017). The Executive Order also directed the agencies to ``consider
interpreting the term `navigable waters' . . . in a manner consistent
with'' Justice Scalia's opinion in Rapanos. Id.
Consistent with this directive, after notice and comment, on
October 22, 2019, the agencies published a final rule repealing the
2015 Clean Water Rule and recodifying the 1986 regulations without any
changes to the regulatory text. 84 FR 56626 (October 22, 2019).
3. The 2020 Navigable Waters Protection Rule
Three months later, on January 23, 2020, the agencies signed
another final rule--the Navigable Waters Protection Rule: Definition of
``Waters of the United States'' (NWPR)--that for the first time defined
``waters of the United States'' based generally on Justice Scalia's
plurality test from Rapanos. The NWPR was published on April 21, 2020,
and went into effect on June 22, 2020. 85 FR 22250 (April 21, 2020).
The NWPR interpreted the term ``the waters'' within ``the waters of the
United States'' to ``encompass relatively permanent flowing and
standing waterbodies that are traditional navigable waters in their own
right or that have a specific surface water connection to traditional
navigable waters, as well as wetlands that abut or are otherwise
inseparably bound up with such relatively permanent waters.'' Id. at
22273. Specifically, the rule established four categories of
jurisdictional waters: (1) The territorial seas and traditional
navigable waters; (2) tributaries of such waters; (3) certain lakes,
ponds, and impoundments of jurisdictional waters; and (4) wetlands
adjacent to other jurisdictional waters (other than jurisdictional
wetlands). Id. at 22273.
The NWPR defined the scope of each of these four categories. The
territorial seas and traditional navigable waters were defined
consistent with the agencies' longstanding interpretations of those
terms. A ``tributary'' was defined as a river, stream, or similar
naturally occurring surface water channel that contributes surface
water flow to a territorial sea or traditional navigable water in a
typical year either directly or indirectly through other tributaries,
jurisdictional lakes, ponds, or impoundments, or adjacent wetlands. A
tributary was required to be perennial or intermittent in a typical
year. The term ``tributary'' included a ditch that either relocates a
tributary, is constructed in a tributary, or is constructed in an
adjacent wetland as long as the ditch is perennial or intermittent and
contributes surface water flow to a traditional navigable water or
territorial sea in a typical year. Id. at 22251. The definition did not
include ephemeral features, which were defined as surface waters that
flow only in direct response to precipitation, including ephemeral
streams, swales, gullies, rills, and pools. Id.
The NWPR defined ``lakes and ponds, and impoundments of
jurisdictional waters'' as ``standing bodies of open water that
contribute surface water flow in a typical year to a territorial sea or
traditional navigable water either directly or through a tributary,
another jurisdictional lake, pond, or impoundment, or an adjacent
wetland.'' Id. A lake, pond, or impoundment of a jurisdictional water
did not lose its jurisdictional status if it contributes surface water
flow to a downstream jurisdictional water in a typical year through
certain artificial or natural features. The NWPR also defined a lake,
pond, or impoundment of a jurisdictional water inundated by flooding
from a jurisdictional water in a typical year as jurisdictional. Id.
As for wetlands, the NWPR interpreted ``adjacent wetlands'' to be
those wetlands that abut jurisdictional waters and those non-abutting
wetlands that are (1) ``inundated by flooding'' from a jurisdictional
water in a typical year, (2) physically separated from a jurisdictional
water only by certain natural features (e.g., a berm, bank, or dune),
or (3) physically separated from a jurisdictional water by an
artificial structure that ``allows for a direct hydrologic surface
connection'' between the wetland and the jurisdictional water in a
typical year. Id. at 22251. Wetlands that do not have these types of
connections to other waters were not jurisdictional.
The NWPR expressly provided that waters that do not fall into one
of these jurisdictional categories are not considered ``waters of the
United States.'' Id. Moreover, waters within these categories,
including traditional navigable waters and the territorial seas, were
not ``waters of the United States'' if they also fit within the NWPR's
broad exclusions. See id. at 22325 (``If the water meets any of the[ ]
exclusions, the water is excluded even if the water satisfies one or
more conditions to be a [jurisdictional] water.'').\14\ 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

[[Page 69382]]

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.
---------------------------------------------------------------------------

\14\ The NWPR's exclusion for ditches, however, explicitly did
not encompass ditches that are traditional navigable waters or
jurisdictional tributaries. 33 CFR 328.3(b)(5).
---------------------------------------------------------------------------

4. Legal Challenges to the Rules
Starting with the 2015 Clean Water Rule, the agencies' rulemakings
to revise the definition of ``waters of the United States'' have been
subject to multiple legal challenges.
Multiple parties sought judicial review of the 2015 Clean Water
Rule in various district and circuit courts. On January 22, 2018, the
Supreme Court, in a unanimous opinion, held that rules defining the
scope of ``waters of the United States'' are subject to direct review
in the district courts. Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S.
Ct. 617 (2018). Several of those district court cases remain
pending.\15\ While the 2015 Clean Water Rule went into effect in some
parts of the country in August 2015, due to multiple injunctions \16\
and later rulemakings, the 2015 Clean Water Rule was never implemented
nationwide.
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\15\ See, e.g., North Dakota v. EPA, No. 15-00059 (D.N.D.); Ohio
v. EPA, No. 15-02467 (S.D. Ohio); Southeastern Legal Found. v. EPA,
No. 15-02488 (N.D. Ga.).
\16\ 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 3 states). See section I.A of the Technical Support
Document for the Proposed ``Revised Definition of `Waters of the
United States''' Rule (``Technical Support Document''; located in
the docket for this action), for a comprehensive history of the
effects of the litigation against the 2015 Clean Water Rule.
---------------------------------------------------------------------------

A number of pending cases involve claims against the NWPR. On
August 30, 2021, the U.S. District Court for the District of Arizona
remanded the NWPR and vacated the rule. Pascua Yaqui Tribe v. EPA, No.
4:20-cv-00266, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021). The court
found that ``[t]he seriousness of the Agencies' errors in enacting the
NWPR, the likelihood that the Agencies will alter the NWPR's definition
of `waters of the United States,' and the possibility of serious
environmental harm if the NWPR remains in place upon remand, all weigh
in favor of remand with vacatur.'' Id. at *5. On September 27, 2021,
the U.S. District Court for the District of New Mexico also issued an
order vacating and remanding the NWPR. Navajo Nation v. Regan, No.
2:20-cv-00602 (D.N.M. Sept. 27, 2021). In vacating the rule, the court
agreed with the reasoning of the Pascua Yaqui court that the NWPR
suffers from ``fundamental, substantive flaws that cannot be cured
without revising or replacing the NWPR's definition of `waters of the
United States.''' Slip. op. at 6. Six courts also remanded the NWPR
without vacatur or without addressing vacatur.\17\
---------------------------------------------------------------------------

\17\ 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).
---------------------------------------------------------------------------

At this time, 14 cases are pending challenging the agencies' rules
defining ``waters of the United States,'' including the 2015 Clean
Water Rule, 2019 Repeal Rule, and the NWPR.\18\ Some of these cases
challenge only one of the rules, while others challenge two or even all
three rules in the same lawsuit. See section I.A of the Technical
Support Document for a comprehensive history of the effects of the
litigation surrounding the 2015 Clean Water Rule, 2019 Repeal Rule, and
the NWPR.
---------------------------------------------------------------------------

\18\ Pascua Yaqui Tribe v. EPA, No. 20-00266 (D. Ariz.);
Colorado v. EPA, No. 20-01461 (D. Colo.); Am. Exploration & Mining
Ass'n v. EPA, No. 16-01279 (D.D.C.); Envtl. Integrity Project v.
Regan, No. 20-01734 (D.D.C.); Se. Stormwater Ass'n v. EPA, No. 15-
00579 (N.D. Fla.); Se. Legal Found. v. EPA, No. 15-02488 (N.D. Ga.);
Chesapeake Bay Found. v. Regan, Nos. 20-1063 & 20-1064 (D. Md.);
Navajo Nation v. Regan, No. 20-00602 (D.N.M.); N.M. Cattle Growers'
Ass'n v. EPA, No. 19-00988 (D.N.M.); North Dakota v. EPA, No. 15-
00059 (D.N.D.); Ohio v. EPA, No. 15-02467 (S.D. Ohio); Or.
Cattlemen's Ass'n v. EPA, No. 19-00564 (D. Or.); S.C. Coastal
Conservation League v. Regan, No. 19-03006 (D.S.C.); Puget
Soundkeeper All. v. EPA, No. 20-00950 (W.D. Wash.); Wash.
Cattlemen's Ass'n v. EPA, No. 19-00569 (W.D. Wash.).
---------------------------------------------------------------------------

5. 2021 Executive Order and Review of the Navigable Waters Protection
Rule
On January 20, 2021, President Biden signed Executive Order 13990,
entitled ``Executive Order on Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis,'' which
provides that ``[i]t is, therefore, the policy of my Administration to
listen to the science; to improve public health and protect our
environment; to ensure access to clean air and water; to limit exposure
to dangerous chemicals and pesticides; to hold polluters accountable,
including those who disproportionately harm communities of color and
low-income communities; to reduce greenhouse gas emissions; to bolster
resilience to the impacts of climate change; to restore and expand our
national treasures and monuments; and to prioritize both environmental
justice and the creation of the well-paying union jobs necessary to
deliver on these goals.'' 86 FR 7037 (published January 25, 2021,
signed January 20, 2021). The order ``directs all executive departments
and agencies (agencies) to immediately review and, as appropriate and
consistent with applicable law, take action to address the promulgation
of Federal regulations and other actions during the last 4 years that
conflict with these important national objectives, and to immediately
commence work to confront the climate crisis.'' Id. at section 2(a).
``For any such actions identified by the agencies, the heads of
agencies shall, as appropriate and consistent with applicable law,
consider suspending, revising, or rescinding the agency actions.'' Id.
The order also revoked Executive Order 13778 of February 28, 2017
(Restoring the Rule of Law, Federalism, and Economic Growth by
Reviewing the ``Waters of the United States'' Rule), which had
initiated development of the NWPR.
In conformance with Executive Order 13990, the agencies reviewed
the NWPR to determine if it is aligned with the principles laid out
therein:
Science: Science plays a critical role in understanding how to
protect the integrity of our nation's waters. As discussed in detail
below, see section V.B.3 of this preamble, the NWPR did not properly
consider the extensive scientific evidence demonstrating the
interconnectedness of waters and their downstream effects, thereby
undermining Congress's objective to restore and maintain the chemical,
physical, and biological integrity of the nation's waters. The NWPR's
definition of ``waters of the United States'' does not adequately
consider the way pollution moves through waters or the way filling in a
wetland affects downstream water resources.
Climate: Science has established that human and natural systems
have been extensively impacted by climate change. Climate change can
have a variety of impacts on water resources in particular. See
Technical Support Document section III.C. For instance, a warming
climate is already increasing precipitation in many areas (e.g., the
Northeast and Midwest), while decreasing precipitation in other areas
(e.g., the Southwest). Climate change can also increase the intensity
of

[[Page 69383]]

precipitation events, including storms, and runoff from these storms
can impair water quality as pollutants deposited on land wash into
water bodies. Changes in streamflow, snowmelt timing, snowpack
accumulation, and the size and frequency of heavy precipitation events
can also cause river floods to become larger or more frequent than they
used to be in some places. Climate change also affects streamflow
characteristics like the magnitude and timing of flows, in part due to
changes in snowpack magnitude and seasonality. As the climate continues
to change, many historically dry areas are likely to experience less
precipitation and increased risk of drought associated with more
frequent and intense heatwaves, which can cause streams and wetlands to
become drier, negatively affecting both water supplies and water
quality. Lower streamflow and groundwater levels can also increase
events such as wildfires, which can alter water quality and impact
wetlands and their functions. A warming climate can also result in
increased and more variable temperatures in streams, leading to fish
kills and negatively affecting other aquatic species that can live only
in colder water. Finally, rising sea levels associated with climate
change are inundating low-lying wetlands and dry land and further
contributing to coastal flooding and erosion.
Although water resources are vulnerable to the effects of climate
change, they perform a variety of functions that can help restore
ecological function of other water resources in light of climate change
(i.e., contribute to climate resiliency) and mitigate the negative
effects of climate change on other water resources including
traditional navigable waters, interstate waters, and the territorial
seas. For instance, wetlands inside and outside of floodplains are
well-known to store large volumes of floodwaters, thereby protecting
downstream watersheds from potential flooding. Coastal wetlands can
also help buffer storm surges, which are becoming more frequent due to
climate change. Additionally, small streams are particularly effective
at retaining and attenuating floodwaters. As natural filters, wetlands
help purify and protect the quality of other waters, including drinking
water sources--a function which is more important than ever as intense
precipitation events spurred on by a changing climate mobilize
sediment, nutrients, and other pollutants. Biological communities and
geomorphic processes in small streams and wetlands break down leaves
and other organic matter, burying and sequestering a portion of that
carbon that could otherwise be released to the atmosphere and lead to
continued negative effects on water resources.
The NWPR did not appropriately acknowledge or take account of the
effects of a changing climate on the chemical, physical, and biological
integrity of the nation's waters. For example, its rolling thirty-year
approach to determining a ``typical year'' does not allow the agencies
flexibility to account for the effects of a rapidly changing climate,
including positive trends in temperature, increasing storm events, and
extended droughts (see section V.B.3.c of this preamble). The NWPR also
excluded ephemeral streams and their adjacent wetlands in the arid West
from the definition of ``waters of the United States.'' These aquatic
systems are increasingly critical to protecting and maintaining
downstream integrity as the climate in that region continues to get
hotter and drier, but with altered monsoon seasons with fewer but more
intense storms that contribute to flashy hydrology (i.e., higher runoff
volume, leading to more rapidly rising and falling streamflow over
shorter periods of time).
Section V.A.2.c.iv of this preamble contains a discussion of how
the agencies believe that climate change can be appropriately
considered in implementing the proposed rule.
Environmental Justice: The agencies recognize that the burdens of
environmental pollution and climate change often fall
disproportionately on population groups of concern (e.g., minority,
low-income, and indigenous populations as specified in Executive Order
12898). Numerous groups have raised concerns that the NWPR had
disproportionate impacts on tribes and indigenous communities.\19\ The
NWPR decreased the scope of Clean Water Act jurisdiction across the
country, including in geographic regions where regulation of waters
beyond those covered by the Act is not authorized under current state
or tribal law (see section V.B.3.d of this preamble). Absent
regulations governing discharges of pollutants into previously
jurisdictional waters, population groups of concern where these waters
are located may experience increased water pollution and impacts from
associated increases in health risk.
---------------------------------------------------------------------------

\19\ See, e.g., Tribal Consultation Comment Letter from
President Jonathan Nez and Vice President Myron Lizer, Navajo
Nation, October 4, 2021 (``The Navajo Nation relies greatly on all
its surface waters, including ephemeral, intermittent, and perennial
surface waters. The Navajo Nation currently lacks the resources to
implement CWA permitting and other programs necessary to maintain
and protect water quality and relies on the Agencies to fill that
need. Therefore, any new WOTUS rule must not reduce the scope of the
waters that the Agencies can protect, or it will have
`disproportionately high and adverse human health or environmental
effects' on the Navajo Nation.''), and Tribal Consultation Comment
Letter from Clarice Madalena, Interim Director, Natural Resources
Department, Pueblo of Jemez, October 4, 2021 (``The combination of
these factors--[desert] hydrology and the geographic location of
Native communities--means that the Navigable Waters Rule had the
effect of disparately stripping Clean Water Act protections from
areas with higher Native populations. This means that the Rule
disproportionately harmed Native American communities. This
discriminatory impact violates the principles of environmental
justice'' (citations omitted). See, also, section V.B.3.d of this
preamble and the Technical Support Document.
---------------------------------------------------------------------------

Further, the NWPR categorically excluded ephemeral streams from
jurisdiction, which disproportionately impacts tribes and population
groups of concern in the arid West. Tribes may lack the authority and
often the resources to regulate waters within their boundaries, and
they may also be affected by pollution from adjacent jurisdictions.\20\
Therefore, the change in jurisdiction under the NWPR may have
disproportionately exposed tribes to increased pollution and health
risks.
---------------------------------------------------------------------------

\20\ See supra at note 18.
---------------------------------------------------------------------------

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

C. Summary of Stakeholder Outreach

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

[[Page 69384]]

agencies signed a Federal Register notice that announced a schedule for
initial public meetings to hear from interested stakeholders on their
perspectives on defining ``waters of the United States'' under the
Clean Water Act and how to implement the definition. 86 FR 41911
(August 4, 2021). The agencies also announced their intent to accept
written pre-proposal recommendations from members of the public for a
30-day period beginning on August 4, 2021, and concluding on September
3, 2021. The agencies received over 32,000 recommendation letters from
the public, which can be found in the pre-proposal docket (Docket ID
EPA-HQ-OW-2021-0328). The agencies also announced their plans for
future engagement opportunities, including geographically focused
roundtables to provide for broad, transparent, regionally focused
discussions among a full spectrum of stakeholders. The Federal Register
notice articulated several specific issues that the agencies are
particularly interested in receiving feedback on, including
implementation of previous regulatory regimes; regional, state, and
tribal interests; identification of relevant science; environmental
justice interests; climate implications; the scope of jurisdictional
waters such as tributaries, jurisdictional ditches, and adjacent
features; and exclusions from jurisdiction.
The agencies also have engaged state and local governments over a
60-day federalism consultation period during development of this
proposed rule, beginning with an initial federalism consultation
meeting on August 5, 2021, and concluding on October 4, 2021.
Additional information about the federalism consultation can be found
in section VII.E of this preamble and in the report summarizing
consultation and additional outreach to state and local governments,
available in the docket (Docket ID No. EPA-HQ-OW-2021-0602) for this
proposed rule. On September 29, October 6, and October 20, 2021, the
agencies hosted virtual meetings with states focused on implementation
of prior ``waters of the United States'' regulatory regimes.
The agencies received input from a wide variety of states and local
governments through virtual meetings, consultation letters, and
recommendation letters submitted to the public docket. Many of these
groups encouraged meaningful dialogue between the states, local
governments, and the agencies, and identified implementation challenges
with determining the jurisdiction of waters under the pre-2015
regulatory regime. States and local governments stressed the need for
guidance, training, and tools early in the process to help with
implementing any revised definition of ``waters of the United States.''
A few also requested the agencies to consider a delayed effective date
for revised definitions of ``waters of the United States'' to give
state and local partners time to revise and develop new policies. Many
state and local governments emphasized the variability of water
resources across the United States and supported regionalized criteria
for determining jurisdictional waters. Some of these groups noted the
importance of strong Federal standards and the regulation of interstate
waters, since pollutants from upstream states can enter waters within
their borders.
States and local governments held divergent views on the agencies'
plans to revert to the pre-2015 regulatory regime, and on which water
resources should be considered ``waters of the United States.'' Some
supported the NWPR and recommended the agencies generally retain and
revise that rule. These state and local entities believed that the NWPR
provided a clear definition for ``waters of the United States,''
maintained a balance between federal and state jurisdiction, and
appropriately excluded waters that should not be subject to the Clean
Water Act. Others supported the agencies' current rulemaking efforts as
they thought the NWPR was not protective enough and did not account for
the complexities of the hydrologic cycle, importance of ephemeral
waters, or the connections among waters on the landscape. State and
local governments held differing opinions on how the criteria for
jurisdiction of ephemeral streams, ditches, tributaries, and wetlands
should be determined, and which resources should be included in the
scope of the Clean Water Act.
Several state and local governments recommended consideration of
climate change and environmental justice concerns in any new rulemaking
effort. Some emphasized that isolated wetlands and ephemeral streams
are important in reducing flooding during extreme weather events and
that the agencies should consider this importance in the rulemaking.
Others acknowledged the impacts of climate change but stated that other
programs and legislation are more appropriate ways to address climate
change. Some state and local governments also noted that NWPR excluded
wetlands that are important to minority and low-income communities and
that future rulemaking needs to consider environmental justice issues.
The agencies also initiated a tribal consultation and coordination
process on July 30, 2021. The agencies engaged tribes over a 66-day
tribal consultation period during development of this proposed rule
that concluded on October 4, 2021, including two consultation kick-off
webinars and meetings. The agencies received consultation comment
letters from 24 tribes and three tribal organizations and held three
leader-to-leader consultation meetings and two staff-level meetings
with tribes at their request. The agencies anticipate that consultation
meetings with additional tribes will be held with tribes during the
rulemaking process. Many tribes and tribal organizations expressed
support for the agencies' efforts to replace the NWPR. One tribe did
not support the agencies' efforts to revise the definition of ``waters
of the United States,'' stating tribal sovereignty concerns and
concerns that the agencies might exceed the power of Congress under the
Commerce Clause. Some tribes stated that the NWPR disadvantaged tribes
because unlike states, many tribes lack the resources to enforce a
definition of ``tribal waters'' that is broader than the definition of
``waters of the United States.'' Several tribes also stated that they
rely on the Federal government to permit discharges of pollutants into
waters on their lands and do not have the resources to administer their
own permitting programs. Some tribes spoke of the importance of
protecting ephemeral streams, which were eliminated from jurisdiction
under the NWPR, as well as for wetlands that were excluded under the
NWPR. Several tribes spoke about the need to include ``waters of the
tribe'' into the definition of ``waters of the United States'' Several
tribes stated support for furthering environmental justice with the
proposed rule, noting that the agencies failed to undertake an
environmental justice analysis for the NWPR. Some tribes also supported
the need to account for climate change in the definition of ``waters of
the United States.'' Additional information about the tribal
consultation process can be found in section VII.F of this preamble and
the Summary of Tribal Consultation and Coordination, which is available
in the docket for this proposed rule. On October 7, 13, 27, and 28,
2021, the agencies hosted virtual dialogues with tribes focused on
implementation of prior ``waters of the United States'' regulatory
regimes.
Consistent with the August 4, 2021 Federal Register notice, the
agencies held six public meeting webinars on

[[Page 69385]]

August 18, August 23, August 25 (specifically for small entities),
August 26, August 31, and September 2, 2021. At these pre-proposal
webinars, the agencies provided a brief presentation and sought input
on the agencies' intent to revise the definition of ``waters of the
United States'' and the specific issues included in the outreach
Federal Register notice described above. The agencies heard from
stakeholders representing a diverse range of interests, positions,
suggestions, and recommendations.
The agencies have received a variety of recommendations during this
pre-proposal outreach process. The agencies received broad support for
robust stakeholder outreach and the development of a rule that is
consistent with Supreme Court precedent. Stakeholders disagreed about
whether states and tribes could or would fill any perceived gap in
permitting introduced by the NWPR's decreased scope of jurisdiction,
with some stakeholders providing examples of environmental harms caused
by the NWPR. Some stakeholders expressed support for a science-based
rule, including stakeholders who believed the NWPR did not adequately
consider the agencies' scientific record. Most stakeholders who
provided input supported a clear, implementable rule that is easy for
the public to understand, and the agencies received feedback that the
significant nexus standard and typical year analysis were challenging
to implement under prior regulatory regimes.
Many stakeholders also emphasized the importance of regional
geographic variability across the United States, and some stakeholders
suggested that the agencies consider regionally specific criteria for
jurisdictional waters. Some stakeholders emphasized the importance of
climate change considerations in any new rulemaking effort, while other
stakeholders stated that climate change cannot be used as a tool to
expand jurisdictional authority. Some stakeholders explicitly supported
the consideration of impacts to minority and low-income communities in
developing a revised definition of ``waters of the United States'' and
asserted that the NWPR did not consider impacts to these communities.
Stakeholders also provided feedback on which water resources should
be considered jurisdictional as ``waters of the United States.'' For
instance, some stakeholders supported a jurisdictional category for
interstate waters, while others opposed such a category. Stakeholders
differed in whether they supported the criteria for jurisdictional
tributaries, wetlands, and ditches under the pre-2015 regulatory
regime, 2015 Clean Water Rule, or NWPR. Some stakeholders suggested
that the agencies should enhance clarity by using physical indicators,
functional characteristics, or surface water flow as jurisdictional
criteria. Some stakeholders asserted that the agencies should exclude
most ditches from the definition of ``waters of the United States,''
while others stated that the agencies should instead include ditches as
jurisdictional if they function as tributaries or have other
connections to other hydrologic features in the watershed. Some
stakeholders indicated that impoundments and ``other waters'' are not
appropriate categories of jurisdictional waters, while others suggested
regulating a broad spectrum of open waters.
Stakeholders expressed different views about which exclusions are
important and should be included in a revised definition of ``waters of
the United States.'' Many stakeholders noted that the waste treatment
system exclusion and prior converted cropland exclusion should be
retained, and some stakeholders expressed support for other exclusions
such as stormwater control features and artificial lakes and ponds. As
described in section V.C.8 of this preamble, the agencies are proposing
to retain the waste treatment system exclusion and prior converted
cropland exclusion from the 1986 regulations and have specified in the
preamble that certain other waters are generally not considered
``waters of the United States.'' Stakeholders also had divergent views
on whether ephemeral streams should be categorically excluded from the
definition of ``waters of the United States'' or evaluated as
tributaries. As described in section V.C.5 of this preamble, the
agencies are not proposing to exclude ephemeral streams but are instead
proposing that ephemeral streams that meet the significant nexus
standard be jurisdictional as tributaries.
The agencies have considered the input that they received as part
of the consultation processes and other opportunities for pre-proposal
recommendations. The proposed rule, discussed in section V of this
preamble, seeks to balance the considerations and concerns of co-
regulators and stakeholders. The agencies welcome feedback on this
proposed rule through a public hearing and the 60-day public comment
period initiated through publication of this action. The agencies will
consider all comments received during the comment period on this
proposal, and this consideration will be reflected in the final rule
and supporting documents.

V. Proposed Revised Definition

A. Basis for Proposed Rule

In this proposed rule, the agencies are exercising their
discretionary authority to interpret ``waters of the United States'' to
mean the waters defined by the familiar 1986 regulations, with
amendments to reflect the agencies' determination of the statutory
limits on the scope of the ``waters of the United States'' informed by
Supreme Court precedent. The agencies propose to interpret the term
``waters of the United States'' to include: Traditional navigable
waters, interstate waters, and the territorial seas, and their adjacent
wetlands; most impoundments of ``waters of the United States'';
tributaries to traditional navigable waters, interstate waters, the
territorial seas, and impoundments, that meet either the relatively
permanent standard or the significant nexus standard; wetlands adjacent
to impoundments and tributaries, that meet either the relatively
permanent standard or the significant nexus standard; and ``other
waters'' that meet either the relatively permanent standard or the
significant nexus standard.
The proposed rule advances the Clean Water Act's statutory
objective to ``restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,'' section 101(a), as it is
based on the best available science concerning the functions provided
by upstream tributaries, adjacent wetlands, and ``other waters'' to
restore and maintain the water quality of downstream foundational
waters. In developing the proposed rule, the agencies also considered
the statute as a whole, relevant Supreme Court case law, and the
agencies' experience and expertise after more than 30 years of
implementing the longstanding 1986 regulations defining ``waters of the
United States,'' including more than a decade of experience
implementing those regulations consistent with the decisions in
Riverside Bayview, SWANCC, and Rapanos collectively. This proposed
interpretation also reflects consideration of provisions of the Act
including section 101(b) which states that ``[i]t is the policy of the
Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution, to plan the development and use (including restoration,
preservation, and enhancement) of land and water resources'' because
the limitations

[[Page 69386]]

reflect consideration of both the comprehensive nature and objective of
the Clean Water Act and avoid assertions of jurisdiction that raise
federalism concerns. Determining where to draw the boundaries of
federal jurisdiction to ensure that the agencies achieve Congress's
objective while preserving and protecting the responsibilities and
rights of the states is a matter of judgment assigned by Congress to
the agencies. The proposed rule's relatively permanent and significant
nexus limitations appropriately draw this boundary by ensuring that
where upstream waters significantly affect the integrity of the
traditional navigable waters, interstate waters, and territorial seas,
Clean Water Act programs will apply to ensure that those downstream
waters are protected, and where they do not, the agencies will leave
regulation to the states and tribes. These limitations are thus based
on the agencies' conclusion that together those standards are
consistent with the statutory text, advance the objective of the Act,
are supported by the scientific record, and appropriately consider the
objective in section 101(a) of the Act and the policy in section
101(b). In addition, because the proposed rule reflects consideration
of the agencies' experience and expertise, as well as updates in
implementation tools and resources, it is familiar and implementable.
For all these reasons, the proposed rule would achieve the
agencies' goals of quickly and durably protecting the quality of the
nation's waters. Quickly, because the regulatory framework is familiar
to the agencies and stakeholders and supporting science is available
along with confirmatory updates; and durably, because the foundation of
the rule is the longstanding regulations amended to reflect the
agencies' interpretation of appropriate limitations on the geographic
scope of the Clean Water Act that is consistent with case law, the Act,
and the best available science. The proposal would protect the quality
of the nation's waters by restoring the important protections for
jurisdictional waters provided by the Clean Water Act, including not
only protections provided by the Act's permitting programs, but also
protections provided by programs ranging from water quality standards
and total maximum daily loads to oil spill prevention, preparedness and
response programs, to the state and tribal water quality certification
programs.
The proposed rule is based on the agencies' interpretation of the
Clean Water Act, and the proposed rule's protection of water resources
advances both the goals of the Act and the goals identified in the
Executive Order, including: Listening to the science; improving public
health and protecting our environment; ensuring access to clean water;
limiting exposure to dangerous chemicals and pesticides; holding
polluters accountable, including those who disproportionately harm
communities of color and low-income communities; and bolstering
resilience to the impacts of climate change.
1. The Proposed Rule Is Within the Agencies' Discretion Under the Act
The Clean Water Act delegates authority to the agencies to
interpret the term ``navigable waters'' and its statutory definition
``waters of the United States,'' and agencies have inherent authority
to reconsider past decisions and to revise, replace, or repeal a
decision to the extent permitted by law and supported by a reasoned
explanation. Given the regulatory and litigation history described
above, there can be little disagreement that both terms under the Clean
Water Act are ambiguous and that therefore the agencies have generous
leeway to provide the considered and reasonable interpretation of the
terms provided in this proposal. Indeed, the Supreme Court has twice
held that the Act's terms ``navigable waters'' and ``waters of the
United States'' are ambiguous and, therefore, that the agencies have
delegated authority to reasonably interpret this phrase in the statute.
First, in Riverside Bayview, the Supreme Court deferred to and
upheld the agencies' interpretation of the Act to protect wetlands
adjacent to navigable-in-fact bodies of water, relying on the familiar
Chevron standard that ``[a]n agency's construction of a statute it is
charged with enforcing is entitled to deference if it is reasonable and
not in conflict with the expressed intent of Congress.'' 474 U.S. at
131 (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-45 (1984)). Second, in Rapanos, all Justices
found ambiguity in the terms--albeit to varying degrees. In his
concurring opinion, Justice Kennedy referenced ``ambiguity in the
phrase `navigable waters.' '' 547 U.S. at 780. So did the dissenting
Justices. See id. at 796 (``[G]iven the ambiguity inherent in the
phrase `waters of the United States,' the Corps has reasonably
interpreted its jurisdiction[.]'') (Stevens, J., dissenting); id. at
811-12 (``Congress intended the Army Corps of Engineers to make the
complex technical judgments that lie at the heart of the present cases
(subject to deferential judicial review).'') (Breyer, J., dissenting).
The plurality also agreed that the term ``is in some respects
ambiguous.'' Id. at 752.
Ambiguity in a statute represents ``delegations of authority to the
agency to fill the statutory gap in reasonable fashion.'' Nat'l Cable &
Telecomm. Ass'n v. Brand X internet Servs., 545 U.S. 967, 980 (2005).
As the Supreme Court explained in Riverside Bayview, Congress delegated
a ``breadth of federal regulatory authority'' and expected the agencies
to tackle the ``inherent difficulties of defining precise bounds to
regulable waters.'' 474 U.S. at 134. And, in concurring with the
Rapanos plurality opinion, Chief Justice Roberts emphasized the breadth
of the agencies' discretion in defining ``waters of the United States''
through rulemaking, noting that ``[g]iven the broad, somewhat
ambiguous, but nonetheless clearly limiting terms Congress employed in
the Clean Water Act, the [agencies] would have enjoyed plenty of room
to operate in developing some notion of an outer bound to the reach of
their authority'' under the Clean Water Act. 547 U.S. at 758 (Roberts,
C.J., concurring). Indeed, the agencies' interpretations under the Act,
Chief Justice Roberts emphasized, are ``afforded generous leeway by the
courts.'' Id.
In addition, agencies have inherent authority to reconsider past
decisions and to revise, replace, or repeal a decision to the extent
permitted by law and supported by a reasoned explanation. FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009) (``Fox''); Motor
Vehicle Manufacturers Ass'n of the United States, Inc. v. State Farm
Mutual Automobile Insurance Co., 463 U.S. 29, 42 (1983) (``State
Farm''); see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,
2125 (2016) (``Agencies are free to change their existing policies as
long as they provide a reasoned explanation for the change.''). Such a
decision need not be based upon a change of facts or circumstances. A
revised rulemaking based ``on a reevaluation of which policy would be
better in light of the facts'' is ``well within an agency's
discretion.'' Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1038
& 1043 (D.C. Cir. 2012) (citing Fox, 556 U.S. at 514-15).
As discussed further in section V.B.3 of this preamble, the
agencies have reviewed the NWPR and determined that the rule should be
replaced. The proposed rule properly considers the objective of the
Act, is consistent with the text and structure of the Act and

[[Page 69387]]

Supreme Court precedent, and is supported by the best available
science.
2. The Proposed Rule Advances the Objective of the Clean Water Act
The proposed rule is grounded in the Act's objective ``to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters,'' 33 U.S.C. 1251(a). The proposed rule advances the
Act's objective by defining ``waters of the United States'' to include
waters that significantly affect the chemical, physical, or biological
integrity of traditional navigable waters, interstate waters, and the
territorial seas and waters that are relatively permanent or that have
a continuous surface connection to such waters. Those limitations also
ensure that the agencies will not assert jurisdiction where the effect
is not significant. The proposed rule is supported by the best
available science on the functions provided by upstream waters,
including wetlands, to restore and maintain the integrity of
foundational waters because it recognizes that upstream waters can have
significant effects and enables the agencies to make science-informed
decisions about such effects. The proposed rule thus retains the
familiar categories of waters in the 1986 regulations--traditional
navigable waters, interstate waters, ``other waters,'' impoundments,
tributaries, the territorial seas, and adjacent wetlands--while
proposing to add, where appropriate, a requirement that waters also
meet either the significant nexus standard or the relatively permanent
standard.
a. The Objective of the Clean Water Act To Protect Water Quality Must
Be Considered When Defining ``Waters of the United States''
A statute must be interpreted in light of the purposes Congress
sought to achieve. See, e.g., Dickerson v. New Banner Institute, Inc.,
460 U.S. 103, 118 (1983). Thus, the agencies must consider the
objective of the Clean Water Act in interpreting the scope of the
statutory term ``waters of the United States.'' The objective of the
Clean Water Act is ``to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a).
To thus adequately consider the Act's statutory objective, a rule
defining ``waters of the United States'' must consider its effects on
the chemical, physical, and biological integrity of the nation's
waters. And--as the text and structure of the Act, supported by
legislative history and Supreme Court decisions, make clear--chemical,
physical, and biological integrity refers to water quality.
The Act begins with the objective in section 101(a) and establishes
numerous programs all designed to protect the integrity of the nation's
waters, ranging from permitting programs and enforcement authorities,
to water quality standards and effluent limitations guidelines, to
research and grant provisions.
One of the Clean Water Act's principal tools in protecting the
integrity of the nation's waters is section 301(a), which prohibits
``the discharge of any pollutant by any person'' without a permit or
other authorization under the Act. Other substantive provisions of the
Clean Water Act that apply to ``navigable waters'' and are designed to
meet the statutory objective include the section 402 NPDES permit
program, the section 404 dredged and fill permit program, the section
311 oil spill prevention and response program, the section 303 water
quality standards and total maximum daily load programs, and the
section 401 state and tribal water quality certification process, as
discussed above. Each of these programs is designed to protect water
quality and, therefore, further the objective of the Act. The question
of federal jurisdiction is foundational to most programs administered
under the Clean Water Act. See section IV.A.1 of this preamble.\21\
---------------------------------------------------------------------------

\21\ Additional provisions are also designed to achieve the
Act's statutory objective and use its specific language, including
the definition of ``pollution,'' which the Act defines as ``the man-
made or man-induced alteration of the chemical, physical,
biological, and radiological integrity of water.'' 33 U.S.C.
1362(19).
---------------------------------------------------------------------------

Two recent Supreme Court Clean Water Act decisions, County of Maui,
Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1476 (2020) (``Maui'')
and Nat'l Ass'n of Mfrs. v. Dep't of Defense, 138 S. Ct. 617, 624
(2018) (``National Association of Manufacturers''), affirm that
Congress used specific language in the definitions of the Act in order
to meet the objective of the Act, that the definition of ``waters of
the United States'' is fundamental to meeting the objective of the Act,
and, therefore, that the objective of the Act must be considered in
interpreting the term ``waters of the United States.''
In Maui, the Supreme Court instructed that ``[t]he object in a
given scenario will be to advance, in a manner consistent with the
statute's language, the statutory purposes that Congress sought to
achieve.'' 140 S. Ct. at 1476. The Court, in recognizing that
Congress's purpose to `` `restore and maintain the . . . integrity of
the Nation's waters' '' is ``reflected in the language of the Clean
Water Act,'' also found that ``[t]he Act's provisions use specific
definitional language to achieve this result,'' noting that among that
definitional language is the phrase ``navigable waters.'' Id. at 1468-
69.\22\ Thus, in accordance with Maui, in interpreting the ``specific
definitional language'' of the Clean Water Act, the agencies must
consider whether they are advancing the statutory purposes Congress
sought to achieve.
---------------------------------------------------------------------------

\22\ The Court explained:
The Act's provisions use specific definitional language to
achieve this result. First, the Act defines ``pollutant'' broadly,
including in its definition, for example, any solid waste,
incinerator residue, `` `heat,' '' `` `discarded equipment,' '' or
sand (among many other things). Sec. 502(6), 86 Stat. 886. Second,
the Act defines a ``point source'' as `` `any discernible, confined
and discrete conveyance . . . from which pollutants are or may be
discharged,' '' including, for example, any `` `container,' '' ``
`pipe, ditch, channel, tunnel, conduit,' '' or `` `well.' '' Sec.
502(14), id., at 887. Third, it defines the term ``discharge of a
pollutant'' as `` `any addition of any pollutant to navigable waters
[including navigable streams, rivers, the ocean, or coastal waters]
from any point source.' '' Sec. 502(12), id., at 886.
Maui, 140 S. Ct. at 1469.
---------------------------------------------------------------------------

In National Association of Manufacturers, the Court confirmed the
importance of considering the objective of the Clean Water Act when
interpreting the specific definitional language of the Act, and in
particular when interpreting the definitional language ``waters of the
United States.'' The Court identified section 301's prohibition on
unauthorized discharges as one of the Act's principal tools for
achieving the objective and then identified ``waters of the United
States'' as key to the scope of the Act: ``Congress enacted the Clean
Water Act in 1972 `to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.' [33 U.S.C.] 1251(a). One
of the Act's principal tools in achieving that objective is [section]
1311(a), which prohibits `the discharge of any pollutant by any
person,' except in express circumstances. . . . Because many of the
Act's substantive provisions apply to `navigable waters,' the statutory
phrase `waters of the United States' circumscribes the geographic scope
of the Act in certain respects.'' 138 S. Ct. 617, 624. Thus,
consideration of the objective of the Act is of particular importance
when defining the foundational phrase ``waters of the United States.''
Many other Supreme Court decisions confirm the importance of
considering the Act's objective. When faced with questions of statutory
interpretation on the scope of the Clean Water Act, many Supreme Court
decisions begin with the

[[Page 69388]]

objective of the Act and examine the relevant question through that
lens. See, e.g., PUD No. 1 of Jefferson Cty v. Washington Dep't of
Ecology, 511 U.S. 700, 704 (1994) (interpreting the scope of Clean
Water Act section 401 and finding that the Act ``is a comprehensive
water quality statute designed to `restore and maintain the chemical,
physical, and biological integrity of the Nation's waters,' '' that
``[t]he Act also seeks to attain `water quality which provides for the
protection and propagation of fish, shellfish, and wildlife,' '' and
that ``[t]o achieve these ambitious goals, the Clean Water Act
establishes distinct roles for the Federal and State Governments'');
EPA v. California ex rel. State Water Resources Control Bd., 426 U.S.
200, 203, 205 n.12 (1976) (``In 1972, prompted by the conclusion of the
Senate Committee on Public Works that `the Federal water pollution
control program . . . has been inadequate in every vital aspect,'
Congress enacted the [Clean Water Act], declaring `the national goal
that the discharge of pollutants into the navigable waters be
Eliminated by 1985.''); Arkansas v. Oklahoma, 503 U.S. 91 (1992)
(reviewing the scope of EPA's authority to issue a permit affecting a
downstream state and finding that the Act ``anticipates a partnership
between the States and the Federal Government, animated by a shared
objective: `to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters' ''); S.D. Warren Co. v.
Maine Bd. of Envtl. Protection, 126 S. Ct. 1843, 1852-53 (2006)
(interpreting the scope of ``discharge'') (``Congress passed the Clean
Water Act to `restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,' 33 U.S.C. [section]
1251(a)''); Int'l Paper Co. v. Ouellette, 479 U.S. 481, 492-93 (1987)
(``Congress intended the 1972 Act amendments to `establish an all-
encompassing program of water pollution regulation.' . . . The Act
applies to all point sources and virtually all bodies of water, and it
sets forth the procedures for obtaining a permit in great detail. . . .
Given that the Act itself does not speak directly to the issue, the
Court must be guided by the goals and policies of the Act in
determining whether it in fact pre-empts an action based on the law of
an affected State.'').
Along with Maui and National Association of Manufacturers, these
cases confirm that, for purposes of a rulemaking revising the
definition of ``waters of the United States,'' the agencies must
consider the rule's effect on the chemical, physical, and biological
integrity of the nation's waters--i.e., the quality of those waters.
The Supreme Court in Riverside Bayview explained the inherent link
between the Act's objective and water quality: ``This objective
incorporated a broad, systemic view of the goal of maintaining and
improving water quality: As the House Report on the legislation put it,
`the word ``integrity'' . . . refers to a condition in which the
natural structure and function of ecosystems [are] maintained.' '' 474
U.S. at 132 (citations omitted).
Indeed, the Clean Water Act is replete with 90 references to water
quality--from the goals set forth in furtherance of meeting the
statutory objective to the provisions surrounding research, effluent
limitations, and water quality standards. See, e.g., 33 U.S.C.
1251(a)(2) (``[I]t is the national goal 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''), 1254(b)(6) (providing
that the Administrator shall collect ``basic data on chemical,
physical, and biological effects of varying water quality''),
1311(b)(1)(C) (requiring permits to have limits as stringent as
necessary to meet water quality standards), 1313(c) (providing that
water quality standards ``shall be such as to protect the public health
or welfare, enhance the quality of water and serve the purposes of this
[Act]''). And Congress was clear that ``[t]he development of
information which describes the relationship of pollutants to water
quality is essential for carrying out the objective of the Act.'' S.
Rep. No. 92-414 (1972), as reprinted in 1972 U.S.C.C.A.N. 3668, 3716.
See also id. at 3717 (``Water quality is intended to refer to the
biological, chemical and physical parameters of aquatic ecosystems, and
is intended to include reference to key species, natural temperature
and current flow patterns, and other characteristics which help
describe ecosystem integrity. . . . The criteria will allow the
translation of the narrative of the general objective of the Act to
specific and precise parameters.''); id. at 3742 (``The Committee has
added a definition of pollution to further refine the concept of water
quality measured by the natural chemical, physical and biological
integrity.''). As the Sixth Circuit explained shortly after the 1972
enactment of the Clean Water Act: ``It would, of course, make a mockery
of [Congress's] powers if its authority to control pollution was
limited to the bed of the navigable stream itself. The tributaries
which join to form the river could then be used as open sewers as far
as federal regulation was concerned. The navigable part of the river
could become a mere conduit for upstream waste.'' United States v.
Ashland Oil & Transp. Co., 504 F.2d 1317, 1326 (6th Cir. 1974).
To be clear, the agencies do not interpret the objective of the
Clean Water Act to be the only factor relevant to determining the scope
of the Act. Rather, in light of the precise definitional language of
the definitions in the Act, the importance of water quality to the
statute as a whole, and Maui and other Supreme Court decisions
affirming that consideration of the objective of the Act is important
in defining the scope of the Act, the agencies conclude that
consideration of the objective of the Act for purposes of a rule
defining ``waters of the United States'' must include substantive
consideration of the effects of a revised definition on the integrity
of the nation's waters. As discussed further below, the proposed rule
properly considers and advances the objective of the Act because it
focuses on the effects of upstream waters including wetlands on
traditional navigable waters, interstate waters, and the territorial
seas, and is supported by the best available science on those water
quality effects.
b. The Proposed Rule Builds Upon the 1986 Regulations, Which Were
Designed To Advance the Objective of the Act
The 1986 regulations--which are substantially the same as the 1977
regulations--represented the agencies' interpretation of the Clean
Water Act in light of its objective and their scientific knowledge
about aquatic ecosystems. The 1986 regulations were designed to advance
the objective of the Act and are thus a reasonable foundation upon
which to build the proposed rule. In this proposed rule, the agencies
are exercising their discretionary authority to interpret ``waters of
the United States'' to mean the waters defined by the familiar 1986
regulations, with amendments to reflect the agencies' interpretation of
the statutory limits on the scope of the ``waters of the United
States'' informed by Supreme Court decisions and the scientific record.
The best available science as discussed below confirms that the
1986 regulations remain a reasonable foundation for a definition of
``waters of the United States'' that furthers the water quality
objective of the Clean Water Act. See Technical Support Document. This
section describes the agencies' historic rationale for the 1986
regulations and its regulatory categories

[[Page 69389]]

and describes the latest science that supports the conclusion that the
categories of waters identified in the 1986 regulations, such as
tributaries, adjacent wetlands, and ``other waters,'' provide functions
that restore and maintain the chemical, physical, and biological
integrity of traditional navigable waters, interstate waters, and the
territorial seas.
The agencies' historic regulations, which became the 1986
regulations, were based on the agencies' scientific and technical
judgment about which waters needed to be protected to restore and
maintain the chemical, physical, and biological integrity of
traditional navigable waters, interstate waters, and the territorial
seas. For more than 40 years, EPA and the Corps recognized the need to
protect ``the many tributary streams that feed into the tidal and
commercially navigable waters . . . since the destruction and/or
degradation of the physical, chemical, and biological integrity of each
of these waters is threatened by the unregulated discharge of dredged
or fill material.'' 42 FR 37121, 37123. The agencies further recognized
that the nation's wetlands are ``a unique, valuable, irreplaceable
water resource. . . . Such areas moderate extremes in waterflow, aid in
the natural purification of water, and maintain and recharge the ground
water resource.'' EPA, Protection of Nation's Wetlands: Policy
Statement, 38 FR 10834 (May 2, 1973). In Riverside Bayview, the Supreme
Court acknowledged that the agencies were interpreting the Act
consistent with its objective and based on their scientific expertise:

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

474 U.S. at 134.
As the Corps stated in promulgating the 1977 definition, ``[t]he
regulation of activities that cause water pollution cannot rely on . .
. artificial lines, however, but must focus on all waters that together
form the entire aquatic system. Water moves in hydrologic cycles, and
the pollution of . . . part of the aquatic system . . . will affect the
water quality of the other waters within that aquatic system.'' 42 FR
37128. Thus, the proposed rule includes the categories long identified
by the agencies as affecting the water quality of traditional navigable
waters, interstate waters, and the territorial seas, including
tributaries, adjacent wetlands, impoundments, and ``other waters.''
For example, the agencies have long construed the Act to include
tributaries as ``waters of the United States.'' The Corps explained in
1977 that its regulations necessarily encompassed ``the many tributary
streams that feed into the tidal and commercially navigable waters''
because ``the destruction and/or degradation of the physical, chemical,
and biological integrity of each of these waters is threatened by the
unregulated discharge of dredged or fill material.'' Id. at 37123.
Construing ``waters of the United States'' to include tributaries
of traditional navigable waters, interstate waters, the territorial
seas, and impoundments of ``waters of the United States'' is consistent
with the discussion of tributaries in the Act's legislative history.
The Senate Report accompanying the 1972 Act states that ``navigable
waters'' means ``the navigable waters of the United States, portions
thereof, tributaries thereof, and includes the territorial seas and the
Great Lakes.'' S. Rep. No. 92414, at 77 (1971), as reprinted in 1972
U.S.C.C.A.N. 3668, 3742 (emphasis added). Furthermore, Congress
recognized that Clean Water Act jurisdiction must extend broadly
because ``[w]ater moves in hydrologic cycles and it is essential that
[the] discharge of pollutants be controlled at the source.'' Id.
Congress thus restated that ``reference to the control requirements
must be made to the navigable waters, portions thereof, and their
tributaries.'' Id. at 3743 (emphasis added).
As discussed below and further in the Technical Support Document,
the best available science supports the 1986 regulations' conclusions
about the importance of tributaries to the water quality of downstream
foundational waters: Tributaries provide natural flood control,
recharge groundwater, trap sediment, store and transform pollutants
from fertilizers, decrease high levels of chemical contaminants,
recycle nutrients, create and maintain biological diversity, and
sustain the biological productivity of downstream rivers, lakes, and
estuaries.
With the 1986 regulations, the agencies determined that wetlands
adjacent to navigable waters generally play a key role in protecting
and enhancing water quality: ``Water moves in hydrologic cycles, and
the pollution of this part of the aquatic system, regardless of whether
it is above or below an ordinary high water mark, or mean high tide
line, will affect the water quality of the other waters within that
aquatic system. For this reason, the landward limit of Federal
jurisdiction under Section 404 must include any adjacent wetlands that
form the border of or are in reasonable proximity to other waters of
the United States, as these wetlands are part of this aquatic system.''
42 FR 37128; see also 38 FR 10834.
In Riverside Bayview, the Supreme Court deferred to the agencies'
judgment that adjacent wetlands provide valuable functions for
downstream waters:

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

474 U.S. at 134-35 (citations omitted). The Supreme Court then
unanimously held that ``a definition of `waters of the United States'
encompassing all wetlands adjacent to other bodies of water over which
the Corps has jurisdiction is a permissible interpretation.'' Id. at
135.
As discussed below and further in the Technical Support Document,
the best available science supports the 1986 regulations' conclusions
about the functions provided by adjacent wetlands to downstream
traditional navigable waters, interstate waters, and the territorial
seas, namely that adjacent wetlands provide valuable flood control and
water quality functions including interruption and delay of the
transport of water-borne contaminants over long distances, retention of
sediment, prevention and mitigation of drinking water contamination,
and assurance of drinking water supply.
The 1986 regulations also included ``other waters'' based on their
effects on water quality and their effects on interstate commerce. 42
FR 37128. As discussed below and further in section IV.D of the
Technical Support Document, the best available science also shows that
``other waters''--such as depressional wetlands, open waters, and
peatlands--can provide important hydrologic (e.g., flood control),
water quality, and habitat functions which vary as a result of the
diverse settings in which they exist across the country and which can
have downstream effects on larger rivers, lakes, and estuaries,
particularly when considered collectively with other non-floodplain
wetlands on the landscape. The

[[Page 69390]]

functions that ``other waters'' provide include storage of floodwater,
recharge of ground water that sustains river baseflow, retention and
transformation of nutrients, metals, and pesticides, export of
organisms to downstream waters, and habitats needed for aquatic and
semi-aquatic species that also utilize streams.
While the 1986 regulations are a reasonable foundation upon which
to build the proposed rule, the agencies are exercising their
discretionary authority to interpret ``waters of the United States'' to
mean the waters defined by the familiar 1986 regulations, with
amendments to reflect the agencies' interpretation of the statutory
limits on the scope of the ``waters of the United States'' informed by
Supreme Court decisions as discussed in section V.A.3 of this preamble.
c. The Proposed Rule Properly Considers the Objective by the Act
Because It Is Informed by the Best Available Science on Water Quality
As noted above, the agencies propose to interpret the term ``waters
of the United States'' to include: Traditional navigable waters,
interstate waters, and the territorial seas, and their adjacent
wetlands; most impoundments of ``waters of the United States'';
tributaries to traditional navigable waters, interstate waters, the
territorial seas, and impoundments, that meet either the relatively
permanent standard or the significant nexus standard; wetlands adjacent
to impoundments and tributaries, that meet either the relatively
permanent standard or the significant nexus standard; and ``other
waters'' that meet either the relatively permanent standard or the
significant nexus standard. The proposal is supported by the best
available science on the functions provided by upstream waters,
including wetlands, that are important for the chemical, physical, and
biological integrity of foundational waters. The agencies' proposal is
supported by a wealth of scientific knowledge. The scientific
literature extensively illustrates the effects tributaries, wetlands
adjacent to impoundments and tributaries, and ``other waters'' can and
do have on the integrity of downstream traditional navigable waters,
interstate waters, and the territorial seas. The relevant science on
the relationship and downstream effects of streams, wetlands, and open
waters has advanced considerably in recent years, and confirms the
agencies' longstanding view that these waters can be subject to
jurisdiction. A comprehensive report prepared by EPA's Office of
Research and Development entitled ``Connectivity of Streams and
Wetlands to Downstream Waters: A Review and Synthesis of the Scientific
Evidence'' \23\ (hereafter the Science Report) in 2015 synthesized the
peer-reviewed science. Since the release of the Science Report,
additional published peer-reviewed scientific literature has
strengthened and supplemented the report's conclusions. The agencies
have summarized and provided an update on more recent literature and
scientific support for this section in the Technical Support Document
section II.
---------------------------------------------------------------------------

\23\ U.S. Environmental Protection Agency, Connectivity of
Streams and Wetlands to Downstream Waters: A Review and Synthesis of
the Scientific Evidence (Final Report), EPA/600/R-14/475F (2015),
available at <a href="https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414">https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414</a>.
---------------------------------------------------------------------------

Again, in the proposed rule, the agencies are not including all
tributaries, adjacent wetlands, and ``other waters'' as jurisdictional
waters. Rather, the agencies are concluding that proposing these
longstanding, familiar categories of waters as subject to the
relatively permanent or significant nexus jurisdictional standards is
consistent with the best available science because waters in these
categories can have significant effects on downstream foundational
waters, and are therefore proposing to restore them from the 1986
regulations. The agencies are also proposing to add the relatively
permanent and significant nexus standards based on their conclusion
that together those standards are consistent with the statutory text,
advance the objective and policies of the Act, and are supported by the
scientific record. Indeed, the agencies are not reaching any
conclusions, categorical or otherwise, about which tributaries,
adjacent wetlands (other than those adjacent to traditional navigable
waters, interstate waters, or the territorial seas), or ``other
waters'' meet either the relatively permanent or the significant nexus
standard. Instead, the proposal enables the agencies to make science-
informed determinations of whether or not a water that falls within
these categories meets either jurisdictional standard and is therefore
a ``water of the United States,'' on a case-specific basis.
The agencies also reiterate their previous conclusion that
significant nexus is not a purely scientific determination. 80 FR
37054, 37060 (June 29, 2015). As the agencies charged with interpreting
the statute, EPA and the Corps must develop the outer bounds of the
scope of the Clean Water Act and science does not provide bright line
boundaries with respect to where ``water ends'' for purposes of the
Clean Water Act. Riverside Bayview, 474 U.S. at 132-33. This section
summarizes the best available science in support of the longstanding
categories of the 1986 regulation, and in support of the proposed rule
and the agencies' conclusion that the proposal advances the objective
of the Clean Water Act. This section reflects the scientific consensus
on the strength of the effects that upstream tributaries, adjacent
wetlands, and ``other waters'' can and do have on downstream
foundational waters. However, a significant nexus determination
requires legal, technical, and policy judgment, as well as scientific
considerations, for example, to assess the significance of any effects.
Section V.D of this preamble discusses the agencies' approaches to
making case-specific relatively permanent and significant nexus
determinations under the proposed rule.
Thus, while the agencies are not proposing to establish that any
tributaries, adjacent wetlands (other than those wetlands adjacent to
traditional navigable waters, interstate waters, and the territorial
seas), or ``other waters'' are jurisdictional without the need for
further assessment, they are proposing a rule that, based on the
scientific record, identifies those categories of waters as subject to
jurisdiction under the Clean Water Act under either the relatively
permanent or significant nexus standard.
i. Tributaries Can Provide Functions That Restore and Maintain the
Chemical, Physical, and Biological Integrity of Downstream Traditional
Navigable Waters, Interstate Waters, and the Territorial Seas
Tributaries play an important role in the transport of water,
sediments, organic matter, nutrients, and organisms to downstream
foundational waters. See Technical Support Document section IV.A.
Tributaries slow and attenuate floodwaters; provide functions that help
maintain water quality; trap and transport sediments; transport, store
and modify pollutants; and sustain the biological productivity of
downstream mainstem waters. Tributaries can provide these functions
whether they are natural, modified, or constructed and whether they are
perennial, intermittent, or ephemeral.
All tributary streams, including perennial, intermittent, and
ephemeral streams, are chemically, physically, and biologically
connected to larger downstream waters via channels and associated
alluvial deposits where water and other materials are concentrated,
mixed, transformed, and transported. Streams, even where seasonally
dry, are

[[Page 69391]]

the dominant source of water in most rivers, rather than direct
precipitation or groundwater input to mainstem river segments. Within
stream and river networks, headwater streams make up most of the total
channel length. The smallest streams represent an estimated three-
quarters of the total length of stream and river channels in the United
States.\24\ Because of their abundance and location in the watershed,
small streams offer the greatest opportunity for exchange between the
water and the terrestrial environment.
---------------------------------------------------------------------------

\24\ The actual proportion may be much higher because this
estimate is based on the stream networks shown on the U.S.
Geological Survey (USGS) National Hydrography Dataset, which does
not show all headwater streams.
---------------------------------------------------------------------------

In addition, compared with the humid regions of the country, stream
and river networks in arid regions have a higher proportion of channels
that flow ephemerally or intermittently. For example, in Arizona, most
of the stream channels--96% by length--are classified as ephemeral or
intermittent. The functions that streams provide to benefit downstream
waters occur even when streams flow less frequently, such as
intermittent or ephemeral streams. For example, ephemeral headwater
streams shape larger downstream river channels by accumulating and
gradually or episodically releasing stored materials such as sediment
and large woody debris.\25\ Due to the episodic nature of flow in
ephemeral and intermittent channels, sediment and organic matter can be
deposited some distance downstream in the arid Southwest in particular,
and then moved farther downstream by subsequent precipitation events.
Over time, sediment and organic matter continue to move downstream and
influence larger downstream waters. These materials help structure
downstream river channels by slowing the flow of water through channels
and providing substrate and habitat for aquatic organisms.
---------------------------------------------------------------------------

\25\ Videos of ephemeral streams flowing after rain events in
the Southwest highlight how effective ephemeral streams can be in
transporting woody debris (e.g., tree branches) and sediment
downstream during the rainy season. See, e.g., U.S. Department of
Agriculture, Agricultural Research Service, Multiflume Runoff Event
August 1, 1990, <a href="https://www.tucson.ars.ag.gov/unit/WGWebcam/WalnutGulchWebcam.htm">https://www.tucson.ars.ag.gov/unit/WGWebcam/WalnutGulchWebcam.htm</a>; U.S. Geological Survey, Post-fire Flash Flood
in Coronado National Memorial, Arizona (August 25, 2011), <a href="https://www.youtube.com/watch?v=qJ8JxBZt6Ws">https://www.youtube.com/watch?v=qJ8JxBZt6Ws</a>; Santa Clara Pueblo Fire/Rescue/
EMS Volunteer Department, Greg Lonewolf, #4 Santa Clara Pueblo Flash
Flood Event 01 Sept 2013 (April 14, 2017), <a href="https://www.youtube.com/watch?v=nKOQzkRi4BQ">https://www.youtube.com/watch?v=nKOQzkRi4BQ</a>; Rankin Studio, Amazing Flash Flood/Debris Flow
Southern Utah HD (July 19, 2019), <a href="https://www.youtube.com/watch?v=_yCnQuILmsM">https://www.youtube.com/watch?v=_yCnQuILmsM</a>.
---------------------------------------------------------------------------

Stream and wetland ecosystems also process natural and human
sources of nutrients, such as those found in leaves that fall into
streams and those that may flow into creeks from agricultural fields.
Some of this processing converts the nutrients into more biologically
useful forms. Other aspects of the processing store nutrients, thereby
allowing their slow and steady release and preventing the kind of
short-term glut of nutrients that can cause algal blooms in downstream
rivers or lakes. Small streams and their associated wetlands play a key
role in both storing and modifying potential pollutants, ranging from
chemical fertilizers to rotting salmon carcasses, in ways that maintain
downstream water quality. Inorganic nitrogen and phosphorus, the main
chemicals in agricultural fertilizers, are essential nutrients not just
for plants, but for all living organisms. However, in excess or in the
wrong proportions, these chemicals can harm natural systems and humans.
Larger rivers process excess nutrients much more slowly than smaller
streams. Loss of nutrient retention capacity in headwater streams is
known to cause downstream water bodies to contain higher concentrations
and loads of nitrogen and phosphorus. In freshwater ecosystems,
eutrophication, the enriching of waters by excess nitrogen and
phosphorus, reduces water quality in streams, lakes, estuaries, and
other downstream water bodies. One obvious result of eutrophication is
the excessive growth of algae. Too much algae clouds previously clear
streams, such as those favored by trout. Algal blooms not only reduce
water column visibility, but the microbial decay of algal blooms
reduces the amount of oxygen dissolved in the water, sometimes to a
degree that causes fish kills. Fish are not the only organisms harmed
by eutrophication: Some of the algae species that grow in eutrophic
waters generate tastes and odors or are toxic--a clear problem for
stream systems, reservoirs, and lakes that supply drinking water for
municipalities or that are used for swimming and other contact-
recreational purposes. In addition, increased nitrogen and phosphorus
and associated algal blooms can injure people and animals. Algal blooms
can also lead to beach closures. In addition to causing algal blooms,
eutrophication changes the natural community composition of aquatic
ecosystems by altering environmental conditions.
Recycling organic carbon contained in dead plants and animals is
another crucial function provided by headwater streams and wetlands.
Ecological processes that transform inorganic carbon into organic
carbon and recycle organic carbon are the basis for every food web on
the planet. In freshwater ecosystems, much of the recycling happens in
small streams and wetlands, where microorganisms transform everything
from leaf litter and downed logs to dead salamanders into food for
other organisms in the aquatic food web, including salmon. Like
nitrogen and phosphorus, carbon is essential to life but can be harmful
to freshwater ecosystems if it is present in excess or in the wrong
chemical form. If all organic material received by headwater streams
and wetlands went directly downstream, the glut of decomposing material
could deplete oxygen in downstream rivers, thereby damaging and even
killing fish and other aquatic life. The ability of headwater stream
ecosystems to transform organic matter into more usable forms helps
maintain healthy downstream ecosystems.
Microorganisms in headwater stream systems use material such as
leaf litter and other decomposing material for food and, in turn,
become food for other organisms. For example, fungi that grow on leaf
litter become nutritious food for invertebrates that make their homes
on the bottom of a stream, including mayflies, stoneflies, and caddis
flies. These animals provide food for larger animals, including birds
such as flycatchers and fish such as trout. The health and productivity
of downstream traditional navigable waters, interstate waters, or the
territorial seas depend in part on processed organic carbon delivered
by upstream headwater systems.
To be clear, the agencies recognize that SWANCC held that the use
of ``isolated'' non-navigable intrastate ponds by migratory birds was
not by itself a sufficient basis for the exercise of federal regulatory
authority under the Clean Water Act. Consideration of biological
functions does not constitute an assertion of jurisdiction over a water
based solely on its use by migratory birds; rather, the agencies would
consider biological functions for purposes of significant nexus
determinations under the proposed rule only to the extent that the
functions provided by tributaries, adjacent wetlands, and ``other
waters'' significantly affect the biological integrity of the
downstream traditional navigable waters, interstate waters, or the
territorial seas. For example, to protect Pacific and Atlantic salmon
in traditional navigable waters (and their associated commercial and
recreational fishing industries), headwater streams must be protected
because Pacific and

[[Page 69392]]

Atlantic salmon require both freshwater and marine habitats over their
life cycles and therefore migrate along river networks, providing one
of the clearest illustrations of biological connectivity. Many Pacific
salmon species spawn in headwater streams, where their young grow for a
year or more before migrating downstream, live their adult life stages
in the ocean, and then migrate back upstream to spawn. Even where they
do not provide direct habitat for salmon themselves, ephemeral streams
may contribute to the habitat needs of salmon by supplying sources of
cold water that these species need to survive (i.e., by providing
appropriate physical conditions for cold water upwelling to occur at
downstream confluences), transporting sediment that supports fish
habitat downstream, and providing and transporting food for juveniles
and adults downstream. These species thereby create a biological
connection along the entire length of the river network and
functionally help to maintain the biological integrity of the
downstream traditional navigable water. Many other species of
anadromous fish--that is fish that are born in freshwater, spend most
of their lives in saltwater, and return to freshwater to lay eggs--as
well as species of freshwater fish like rainbow trout and brook trout
also require small headwater streams to carry out life cycle functions.
Based on the importance of the functions that can be provided by
tributaries to foundational waters, the agencies' proposal to interpret
the Clean Water Act to protect tributaries where those tributaries meet
either the relatively permanent standard or the significant nexus
standard reflects proper consideration of the objective of the Act and
the best available science.
ii. Adjacent Wetlands Provide Functions That Restore and Maintain the
Chemical, Physical, and Biological Integrity of Downstream Traditional
Navigable Waters, Interstate Waters, and the Territorial Seas
Adjacent wetlands provide valuable flood control and water quality
functions that affect the chemical, physical, and biological integrity
of downstream foundational waters including interruption and delay of
the transport of water-borne contaminants over long distances;
retention of sediment; retention and slow release of flood waters; and
prevention and mitigation of drinking water contamination and assurance
of drinking water supply. See Technical Support Document section IV.B.
Because adjacent wetlands retain sediment and augment streamflow
via the gradual release of groundwater or water flowing just beneath
the solid surface, wetland loss correlates with increased need for
dredging and unpredictability of adequate streamflow for navigation.
The Supreme Court has recognized the importance of the physical
integrity of upstream tributaries in overcoming sedimentation hazards
to navigation. United States v. Rio Grande Dam Irrigation Co., 174 U.S.
690 (1899). Headwater wetlands are located where erosion risk is
highest and are therefore best suited to recapture and stabilize
manageable amounts of sediment that might enter traditional navigable
waters, interstate waters, or the territorial seas. Adjacent wetlands
naturally serve to recapture and stabilize sediment carried by streams
and rivers in times when flood flow distributes water across a
floodplain.
Adjacent wetlands affect the integrity of downstream waters by
retaining stormwater and slowly releasing floodwaters that could
otherwise negatively affect the condition or function of downstream
waters. The filling or draining of wetlands, including those that are
close to the stream network, reduces water storage capacity in a
watershed and causes runoff from rainstorms to overwhelm the remaining
available water conveyance system. The resulting stream erosion and
channel downcutting quickly drains the watershed as surface water
leaves via incised (deeper) channels. Disconnecting the incised channel
from the wetlands leads to more downstream flooding. As the adjacent
wetlands remain disconnected, riparian vegetation and wetland functions
are reduced. Because less water is available in groundwater and
wetlands for slow release to augment streamflow during dry periods, the
filling or draining of wetlands can make the timing and extent of
navigability on some waterways less predictable during dry periods.
Therefore, the filling or draining of adjacent wetlands, including
headwater wetlands, can interfere with the ability to maintain
navigability on the nation's rivers and harbors and can lead to
flooding in larger downstream waters.
The loss of wetlands adjacent to tributaries of navigable waters,
interstate waters, and the territorial seas can also result in notable
reductions in drinking water supply and quality. Over 225 million
people are served by nearly 15,000 public water systems using surface
water such as streams, rivers, lakes, tributaries, and surface-water
storage impoundments as a primary source of water. Though drinking
water supplied through public water supplies is regulated by the Safe
Drinking Water Act, many water suppliers also rely on source water
protection efforts, as the quality of the drinking water source is
dependent on the protection of its upstream waters. Discharge of
agricultural, industrial, sanitary, or other waste into any surface
water may pose a public health risk downstream. For example, excessive
upstream discharge may overwhelm a public water system filtration unit,
allowing microbial pathogens into the drinking water system. EPA's
Science Advisory Board cited drinking water contamination by pathogens
as one of the most important environmental risks. Drinking water
treatment to address microbial pathogens has little effect on many
toxic chemicals, metals, and pesticides discharged into streams,
drainage ditches, canals, or other surface waters. Conserving wetlands
in source water protection areas can help protect water quality,
recharge aquifers, and maintain surface water flow during dry periods.
Adjacent wetlands have an important role in improving source water
quality, due to their strategic location as buffers for other water
bodies and their filtration of surface water. Detention of water and
its associated constituents by wetlands allows the biochemical uptake
and/or breakdown of contaminants, and the destruction of pathogens. A
wide and dense distribution of adjacent wetlands protects and mitigates
against contaminant discharges. The water detention capacity of
adjacent wetlands also allows for the storage and gradual release of
surface waters that may supply public water system intakes during times
of drought. In either case, this detention substantially improves both
the supply and quality of drinking water. For example, wetlands
conservation is a crucial feature of the low-cost New York City
municipal water system, which provides high-quality drinking water to
millions of people through watershed protection, including of adjacent
wetlands, of its source waters rather than extensive treatment.
Based on the importance of the functions that are provided by
adjacent wetlands to foundational waters, the agencies' proposal to
interpret the Clean Water Act to protect adjacent wetlands where those
adjacent wetlands meet either the relatively permanent standard or the
significant nexus standard reflects proper consideration of the
objective of the Act and the best available science.

[[Page 69393]]

iii. ``Other waters'' Can Provide Functions That Restore and Maintain
the Chemical, Physical, and Biological Integrity of Downstream
Traditional Navigable Waters, Interstate Waters, and the Territorial
Seas
``Other waters''--examples of which include, but are not limited
to, intrastate lakes, wetlands, prairie potholes, playa lakes, streams
that are not tributaries, and natural ponds--can provide important
functions which affect the chemical, physical, and biological integrity
of downstream foundational waters. See Technical Support Document
section IV.D. These functions are particularly valuable when considered
cumulatively across the landscape or across different watershed/sub-
watershed scales and are similar to the functions that adjacent
wetlands provide, including water storage to control streamflow and
mitigate downstream flooding; interruption and delay of the transport
of water-borne pollutants (such as excess nutrients and contaminants)
over long distances; and retention of sediment. These functions can be
important to the physical integrity of downstream foundational waters.
For non-floodplain wetlands and open waters lacking a channelized
surface or regular shallow subsurface connection, generalizations from
the available literature about their specific effects on downstream
waters are difficult because information on both function and
connectivity is needed, and thus case-specific analysis of their
effects on downstream waters is appropriate from both a scientific and
policy perspective.
``Other waters'' individually span the gradient of connectivity
identified in the Science Report; they can be open waters located in
the riparian area or floodplain of traditional navigable waters,
interstate waters, and the territorial seas (e.g., oxbow lakes) and
otherwise be physically proximate to the stream network (similar to
adjacent wetlands) or they can be open waters or wetlands that are
fairly distant from the network. They can be connected to downstream
foundational waters via confined surface or subsurface connections
(including channels, pipes, and culverts), unconfined surface
connections, shallow subsurface connections, deeper groundwater
connections, biological connections, or spillage. They can also provide
additional functions such as storage and mitigation of peak flows,
natural filtration by biochemical uptake and/or breakdown of
contaminants, and in some locations, high volume aquifer recharge that
contributes to the baseflow in downstream waters. The strength of
functions provided by ``other waters'' on downstream waters will vary
depending on the type and degree of connection (i.e.., from highly
connected to highly isolated) to downstream waters and landscape
features such as proximity to stream networks and to ``other waters''
with similar characteristics that function as a group to influence
jurisdictional downstream waters.
Since the publication of the Science Report in 2015, the published
literature has expanded scientific understanding and quantification of
functions that ``other waters'' perform that affect the integrity of
traditional navigable waters, interstate waters, and the territorial
seas, particularly in the aggregate. The more recent literature (i.e.,
2014-present, as some literature from 2014 and 2015 may not have been
included in the Science Report) has determined that non-floodplain
wetlands can have demonstrable hydrologic and biogeochemical downstream
effects, such as decreasing peak flows, maintaining baseflows, and
performing nitrate removal, particularly when considered cumulatively.
Oxbow lakes and other lakes and ponds that are in close proximity
to the stream network, located within floodplain or riparian areas, or
that are connected via surface and shallow subsurface hydrology to the
stream network or to other ``waters of the United States'' also perform
critical chemical, physical, and biological functions that affect
downstream foundational waters. Like adjacent wetlands, these waters
individually and collectively affect the integrity of downstream waters
by acting as sinks that retain floodwaters, sediments, nutrients, and
contaminants that could otherwise negatively impact the condition or
function of downstream waters. They also provide important habitat for
aquatic species to forage, breed, and rest.
Some ``other waters'' are wetlands that are located too far from
other jurisdictional waters to be considered ``adjacent.'' The specific
distance may vary based on the characteristics of the aquatic resources
being evaluated, but they are often located outside of the riparian
area or floodplain, lack a confined surface or shallow subsurface
hydrologic connection to jurisdictional waters, or exceed the minimum
distances necessary for aquatic species that cannot disperse overland
to utilize both the subject waters and the waters in the broader
tributary network. Some ``other waters'' may be too removed from the
stream network or from jurisdictional waters to have significant
effects on downstream traditional navigable waters, interstate waters,
or the territorial seas. However, particularly when considered in the
aggregate, some ``other waters'' can, in certain circumstances, have
strong chemical, physical, and biological connections to and effects on
foundational waters. Sometimes it is their relative isolation from the
stream network (e.g., lack of a hydrologic surface connection) that
contributes to the important effect that they have downstream; for
example, depressional non-floodplain wetlands lacking surface outlets
can function individually and cumulatively to retain and transform
nutrients, retain sediment, provide habitat, and reduce or attenuate
downstream flooding, depending on site-specific conditions such as
landscape characteristics (e.g., slope of the terrain, permeability of
the soils).
Based on the functions that can be provided by ``other waters'' to
traditional navigable waters, interstate waters, and the territorial
seas, the agencies' proposal to assess ``other waters'' to determine
whether they meet either the relatively permanent standard or the
significant nexus standard reflects proper consideration of the
objective of the Act and the best available science.
The agencies' use of the best available science to interpret the
scope of ``waters of the United States'' is a change from the NWPR. In
the NWPR's preamble, the agencies stated: ``While science informs the
agencies' interpretation'' of the phrase ``waters of the United
States,'' ``science cannot dictate where to draw the line between
Federal and State or tribal waters, as those are legal distinctions.''
85 FR 22271, April 21, 2020; see also id. at 22314 (``the line between
Federal and State waters is a legal distinction, not a scientific
one''). In this proposal, the agencies agree that science alone cannot
dictate where to draw the line defining ``waters of the United
States.'' But science is critical to attaining Congress's objective to
restore and maintain the chemical, physical, and biological integrity
of the nation's waters: Only by relying upon scientific principles to
understand the way waters affect one another can the agencies know
whether they are achieving that objective. Drawing the line without
regard to science risks nullifying Congress's objective altogether. And
because the agencies believe that the definition of ``waters of the
United States'' should advance the objective of the Act and that
objective is focused on restoring and maintaining water quality, see
section V.A.2 of this preamble, the best available science is of far
more importance to the agencies' proposed

[[Page 69394]]

rule than it was in the NWPR. Moreover, the agencies have concluded
that the NWPR was not informed by the science, but rather was
inconsistent with the best available science in substantially important
ways. See section V.B.3 of this preamble.
iv. The Significant Nexus Standard Allows for Consideration of the
Effects of Climate Change on Water Resources Consistent With the Best
Available Science
The significant nexus standard allows for the agencies to consider
a changing climate when evaluating if upstream waters significantly
affect foundational waters. This is because the significant nexus
standard is based on the science of the strength of the effects that
upstream tributaries, adjacent wetlands, and ``other waters'' can and
do have on downstream foundational waters, and so implementation of the
standard can adapt to changing climatic conditions. For example, a lake
that dries up from warming temperatures due to climate change and no
longer has a surface hydrologic connection to downstream waters might
become non-jurisdictional, whereas another lake that previously had
limited surface hydrologic connectivity might have increased hydrologic
connectivity with higher precipitation conditions under a changing
climate.
In addition, the significant nexus standard allows the agencies to
consider the functions of streams, wetlands, and open waters that
support the resilience of the chemical, physical, or biological
integrity of traditional navigable waters, interstate waters, or the
territorial seas to climate change. For example, as more intense and
frequent storms and other shifts in precipitation cause floods to
increase in frequency and volume in some areas of the United States, a
significant nexus determination can evaluate the strength of the effect
of runoff storage in wetlands, open waters, and headwater tributaries
in mitigating increased flood risk associated with climate change in
downstream foundational waters. In addition, as drought leads to
decreased baseflows in foundational waters in other areas of the
country, the transmission of flows into alluvial or regional aquifer
storage through tributaries and wetlands can mitigate for these climate
change-related conditions, and those benefits to downstream traditional
navigable waters or interstate waters can be assessed as part of a
significant nexus analysis. Changes in flow in tributaries caused by
climate change will also be relevant to the relatively permanent
standard, but that standard may not allow the agencies to take into
account the contribution of upstream waters to the resilience of the
integrity of downstream waters.
As discussed in section V.C.10 of this preamble, the agencies
believe that there are climate benefits that streams, wetlands, and
open waters provide that are not related to restoring or maintaining
the integrity of downstream traditional navigable waters, interstate
waters, or the territorial seas, such as carbon sequestration. Those
functions would not be considered under this rule because they are not
directly related to the chemical, physical, and biological integrity of
downstream waters. However, considering a changing climate when
conducting jurisdictional decisions by considering on a case-by-case
basis the functions of aquatic resources that contribute to the
resilience of the integrity of downstream foundational waters to
climate change is consistent with the policy and goals of the Clean
Water Act, case law, and the policy goals of this administration as
articulated in Executive Order 13990.
3. The Proposed Rule Establishes Limitations That Together Are
Consistent With the Statutory Text, Supported by the Scientific Record,
and Informed by Relevant Supreme Court Decisions
In this proposed rule, the agencies are exercising their
discretionary authority to interpret ``waters of the United States'' to
mean the waters defined by the familiar 1986 regulations, with
amendments to reflect the agencies' interpretation of the statutory
limits on the scope of the ``waters of the United States'' informed by
Supreme Court decisions. The proposed rule's relatively permanent and
significant nexus limitations are based on the agencies' conclusion
that together those standards are consistent with the statutory text,
are supported by the scientific record, and appropriately consider the
objective in section 101(a) of the Act and the policy in section
101(b). Moreover, these fact-dependent, science-informed approaches to
jurisdiction are not unique under the Clean Water Act.
At the outset, the agencies think it is useful to lay out the areas
where the agencies agree with the statutory interpretation and case law
laid out in the NWPR. The agencies agree that ``[b]y the time the 1972
amendments were enacted, the Supreme Court had held that Congress'
authority over the channels of interstate commerce was not limited to
regulation of the channels themselves but could extend to activities
necessary to protect the channels,'' 85 FR 22263, April 21, 2020
(citing Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508,
523 (1941)), and that ``Congress had in mind a broader scope of waters
subject to CWA jurisdiction than waters traditionally understood as
navigable,'' id.; see also id. at 22267 (recognizing that ``[t]he
plurality and Justice Kennedy both recognized the jurisdictional scope
of the CWA is not restricted to traditional navigable waters'' in
Rapanos). In fact, it would be impossible to achieve Congress's
objective if the scope of authority were constrained to waters
traditionally understood as navigable because those channels cannot be
protected without protecting the tributaries that flow into them and
wetlands adjacent to them. Cf. United States v. Ashland Oil & Transp.
Co., 504 F.2d 1317, 1326 (6th Cir. 1974) (``It would, of course, make a
mockery of [Congress's] powers if its authority to control pollution
was limited to the bed of the navigable stream itself. The tributaries
which join to form the river could then be used as open sewers as far
as federal regulation was concerned. The navigable part of the river
could become a mere conduit for upstream waste.''). The Supreme Court
has explained both that the term ``navigable'' in the defined term
``navigable waters'' has ``limited import,'' Riverside Bayview, 474
U.S. at 133, and also that by using the term ``navigable,'' ``Congress
had in mind as its authority for enacting the CWA[ ] [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. As the
agencies did in the NWPR, the agencies interpret this to mean that the
object of federal protection is foundational waters, and that
jurisdiction encompasses (and is limited to) those tributaries,
wetlands, and open waters that are necessary to protect the
foundational waters.\26\
---------------------------------------------------------------------------

\26\ Unlike the NWPR, the agencies now interpret the
foundational waters to include ``interstate waters.'' See section
V.C.2 of this preamble.
---------------------------------------------------------------------------

The agencies also agree that ``there must be a limit to that
authority and to what water is subject to federal jurisdiction,'' 85 FR
22263, April 21, 2020, that where to draw that limit is ambiguous, and
that ``Congress, when it left ambiguity in a statute meant for
implementation by an agency, understood that the ambiguity would be
resolved, first and foremost, by the agency, and desired the agency
(rather than the courts) to possess whatever degree of discretion the
ambiguity allows,'' id. at 22264 (quoting Nat'l Cable & Telecomm. Ass'n
v. Brand X

[[Page 69395]]

internet Servs., 545 U.S. 967, 982 (2005)). In determining that limit,
the agencies generally continue to believe that the determination of
jurisdiction with regard to wetlands adjacent to tributaries ``must be
made using a basic two-step approach that considers (1) the connection
of the wetland to the tributary; and (2) the status of the tributary
with respect to downstream traditional navigable waters'' and that the
concept of a ``connectivity gradient'' is useful. Id. at 22267, 22271.
Similarly, for tributaries, the agencies agree that ``contribution of
flow to and connection'' matters. Id. at 22267. At bottom, the agencies
agree that the Supreme Court has indicated that the limit should relate
to the ``significant effects'' of or ``significant nexus'' between that
water and traditional navigable waters, interstate waters, and the
territorial seas, id at 22263-64 (discussing Supreme Court case law,
although as explained in section V.A.3.a of this preamble, the NWPR in
fact removed the significant nexus test without considering an
alternative approach to protecting waters that significantly affect
downstream traditional navigable waters). Finally, the agencies agree
that the Supreme Court has ``call[ed] into question the agencies'
authority to regulate nonnavigable, isolated, intrastate waters that
lack a sufficient connection to traditional navigable waters,'' id. at
22269, and this proposal would not assert jurisdiction over such
waters.\27\
---------------------------------------------------------------------------

\27\ The NWPR criticized the agencies' prior practice as
insufficiently attentive to the concerns raised by the Supreme Court
in SWANCC regarding jurisdiction over the ``other waters'' category
defined in (a)(3) of the regulatory definition that was at issue in
SWANCC. Id. at 22264. This criticism is inaccurate. Cognizant of the
Supreme Court's direction in SWANCC and to ensure that any assertion
of authorities over (a)(3) waters is consistent with the Court's
precedents, since SWANCC, the agencies have required that before
exercising jurisdiction over an (a)(3) water field staff get
approval from headquarters. 68 FR 1991 (January 15, 2003). As a
practical matter, and as discussed in more detail below, section
V.C.3 of this preamble, field staff have rarely, if ever, sought
such approval and therefore the agencies have not asserted
jurisdiction over (a)(3) waters. But (a)(3) waters can have
significant effects on foundational waters and, when they do,
jurisdiction is proper and would not implicate the constitutional
concerns expressed by the Court in SWANCC for the reasons explained
herein.
---------------------------------------------------------------------------

a. The Relatively Permanent Standard and the Significant Nexus Standard
Together Advance the Objective of the Act
The proposed rule's utilization of both the relatively permanent
standard and the significant nexus standard gives effect to the Act's
broad terms and environmentally protective aim as well as its
limitations. See Rapanos, 547 U.S. at 767-69 (observing ``the evident
breadth of congressional concern for protection of water quality and
aquatic ecosystems'' and referring to the Act as ``a statute concerned
with downstream water quality'') (Kennedy, J., concurring) (citations
omitted); Riverside Bayview, 474 U.S. at 133 (``Congress chose to
define the waters covered by the Act broadly.''). The agencies,
however, are proposing that it is the significant nexus standard that
advances the objective of the Act because it is linked to effects on
downstream water quality while establishing a reasonable limitation on
the scope of jurisdiction by requiring those links to be significant.
The relatively permanent standard is administratively useful as an
example of a subset of waters that will virtually always have the
requisite nexus, but, on its own, is insufficiently protective to meet
the objective of the Clean Water Act.
The agencies have consistently construed Rapanos to mean that a
water is jurisdictional under the Clean Water Act if it meets either
the relatively permanent standard or the significant nexus standard.
The NWPR, however, interpreted the statute to primarily find waters
jurisdictional only if they met the relatively permanent standard, as
specifically interpreted in the NWPR. The NWPR argued that it reflected
both the plurality and Kennedy opinions, which it characterized as
having ``sufficient commonalities . . . to help instruct the agencies
on where to draw the line between Federal and State waters.'' 85 FR
22268, April 21, 2020. The opinions have important differences,
however. Justice Kennedy looked to the existence of a significant nexus
between waters at issue and downstream traditional navigable waters,
whereas the plurality held that ``waters of the United States'' is
limited to ``relatively permanent'' waters connected to traditional
navigable waters, and wetlands with a ``continuous surface connection''
with those waters. Rapanos, 547 U.S. at 742. Justice Kennedy rejected
these two limitations in the plurality as ``without support in the
language and purposes of the Act or in our cases interpreting it.'' Id.
at 768; see also id. at 776 (``In sum the plurality's opinion is
inconsistent with the Act's text, structure, and purpose.''). Yet the
plurality's limitation of jurisdiction to ``relatively permanent
waters'' and those with a ``continuous surface connection'' to those
waters pervades the NWPR. See 85 FR 22338-39; 33 CFR 328.3(a), (c)(1),
(c)(6), and (c)(12). The NWPR disregards the significant nexus
standard, see generally 85 FR 22338-39; 33 CFR 328.3, and, in doing so,
restricted the scope of the statute using limitations Justice Kennedy
viewed as anathema to the purpose and text of the Clean Water Act.
The agencies propose to reject the NWPR's interpretation as
inconsistent with the objective of the Clean Water Act, the science,
and the case law, and instead to propose an interpretation whereby if a
water meets either standard, it falls within the protections of the
Clean Water Act. This section first discusses why the significant nexus
test is consistent with the Act and the best available science; then
explains why the relatively permanent standard is administratively
useful, but limiting the scope of jurisdiction to waters meeting the
relatively permanent standard is insufficient to meet the objective of
the Clean Water Act; and finally, explains that fact-based standards
for determining Clean Water Act jurisdiction are reasonable and not
unique to the definition of ``waters of the United States.''
i. The Significant Nexus Test Is Consistent With the Act and the Best
Available Science
The significant nexus standard advances the objective of the Act
because it is linked to effects on downstream water quality while
establishing a reasonable limitation on the scope of jurisdiction. The
significant nexus standard reasonably effectuates the text of 33 U.S.C.
1362(7), which defines ``navigable waters.'' The requirement that a
significant nexus exist between upstream waters, including wetlands and
``navigable waters in the traditional sense'' fulfills ``the need to
give the term `navigable' some meaning.'' Rapanos, 547 U.S. at 779
(Kennedy, J., concurring). With the significant nexus standard, the
proposed rule is properly focused on protecting the foundational waters
clearly protected by the Clean Water Act. The significant nexus is thus
consistent with the text of the Act, with scientific principles and
supported by the best available science, with the Act's legislative
history, and with case law.
Congress was focused on water quality when it enacted the Clean
Water Act and established its objective, as discussed in section V.A.2
of this preamble. The significant nexus standard is derived from the
objective of the Act and thus also focused on water quality and
specifically focused on the water quality of the foundational waters.
As described more fully in section V.A.2.c of this preamble, supra, the

[[Page 69396]]

significant nexus standard is consistent with scientific principles
about the aquatic ecosystem: Upstream waters can significantly affect
the chemical, physical, and biological integrity of downstream
traditional navigable waters, interstate waters, and the territorial
seas. Therefore, assessing the effects that waters have on downstream
foundational waters when considered, alone or in combination with other
similar waters in a region, is a reasonable means of identifying those
waters necessary to protect in order to advance the objective of the
Act.
A significant nexus analysis is consistent with the framework
through which scientists assess a river system--examining how the
components of the system (e.g., wetlands, tributaries), in the
aggregate (in combination), in the region, contribute and connect to
the river (significantly affect the chemical, physical, or biological
integrity of foundational waters). Indeed, the significant nexus
standard in the proposed rule reflects the type of analysis in the
Science Report by describing the components of a river system and
watershed; the types of physical, chemical, and biological connections
that link those components; the factors that influence connectivity at
various temporal and spatial scales; and methods for quantifying
connectivity. The structure and function of rivers are highly dependent
on the constituent materials stored in and transported through them.
Most of these materials originate from either the upstream river
network or other components of the river system and then are
transported to the river by water movement or other mechanisms.
Further, the significant nexus standard is supported by the Science
Report's discussion of connectivity, a foundational concept in
hydrology and freshwater ecology. See also Technical Support Document.
Connectivity is the degree to which components of a system are
joined, or connected, by various transport mechanisms and is determined
by the characteristics of both the physical landscape and the biota of
the specific system. Connectivity serves to demonstrate the ``nexus''
between upstream water bodies and the downstream traditional navigable
water, interstate water, or the territorial sea and, while the
scientific literature does not use the term ``significant'' in the same
manner used by the Supreme Court, the literature does provide
information on the strength of the effects on the chemical, physical,
and biological functioning of the downstream water bodies that permits
the agencies to judge when an effect is significant such that a water,
alone or in combination, should be protected by the Clean Water Act in
order to meet the objective of the Act. The Science Report presents
evidence of connections for various categories of waters, evaluated
singly or in combination, which affect downstream waters and the
strength of those effects. The connections and mechanisms discussed in
the Science Report include: Transport of physical materials and
chemicals such as water, wood, sediment, nutrients, pesticides, and
mercury; functions that jurisdictional adjacent waters perform, such as
storing and cleansing water; and movement of organisms. Again, the
significant nexus standard, under which waters are assessed alone or in
combination for the functions they provide downstream, is consistent
with the foundational scientific framework and concepts of hydrology.
The agencies' use of scientific principles to determine the scope
of ``waters of the United States'' is consistent with the Supreme
Court's approach in Maui. The Court also looked to scientific
principles to inform its interpretation of the Clean Water Act's
jurisdictional scope, noting: ``[m]uch water pollution does not come
from a readily identifiable source. See 3 Van Nostrand's Scientific
Encyclopedia, at 5801 (defining `Water Pollution'). Rainwater, for
example, can carry pollutants (say, as might otherwise collect on a
roadway); it can pollute groundwater, and pollution collected by
unchanneled rainwater runoff is not ordinarily considered point source
pollution.'' 140 S. Ct. at 1471. The Court further observed that
``[v]irtually all water, polluted or not, eventually makes its way to
navigable water. This is just as true for groundwater. See generally 2
Van Nostrand's Scientific Encyclopedia 2600 (10th ed. 2008) (defining
`Hydrology').'' Id. at 1470. The Court then enumerated a series of
factors relevant to determining whether a discharge is jurisdictional
under the Act, many of which are scientifically based, including the
nature of the material through which the pollutant travels and the
extent to which the pollutant is diluted or chemically changed as it
travels. Id. at 1476-77.
In carefully considering the objective of the Act and the best
available science, the proposed rule's incorporation of the significant
nexus standard is consistent with the legislative history of the Clean
Water Act. The Supreme Court has noted that ``some Members of this
Court have consulted legislative history when interpreting ambiguous
statutory language.'' Bostock v. Clayton County, Georgia, 140 S. Ct.
17

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