Home/Federal/Federal Register/2022-28595

Rule2022-28595

Revised Definition of “Waters of the United States”

Primary source

Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.

Published

January 18, 2023

Effective

March 20, 2023

Issuing agencies

Defense DepartmentEngineers CorpsEnvironmental Protection Agency

Abstract

The Environmental Protection Agency (EPA) and the Department of the Army ("the agencies") are finalizing a rule defining the scope of waters protected under the Clean Water Act. In developing this rule, the agencies considered the text of the relevant provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies' experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining "waters of the United States." This final rule advances the objective of the Clean Water Act and ensures 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

<html>
<head>
<title>Federal Register, Volume 88 Issue 11 (Wednesday, January 18, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 11 (Wednesday, January 18, 2023)]
[Rules and Regulations]
[Pages 3004-3144]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28595]

[[Page 3003]]

Vol. 88

Wednesday,

No. 11

January 18, 2023

Part II

Department of Defense

-----------------------------------------------------------------------

Department of the Army, Corps of Engineers

-----------------------------------------------------------------------

33 CFR Part 328

Environmental Protection Agency

-----------------------------------------------------------------------

40 CFR Part 120

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

Federal Register / Vol. 88, No. 11 / Wednesday, January 18, 2023 /
Rules and Regulations

[[Page 3004]]

-----------------------------------------------------------------------

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-6027.4-01-OW]
RIN 2040-AG19

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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) and the Department
of the Army (``the agencies'') are finalizing a rule defining the scope
of waters protected under the Clean Water Act. In developing this rule,
the agencies considered the text of the relevant provisions of the
Clean Water Act and the statute as a whole, the scientific record,
relevant Supreme Court case law, and the agencies' experience and
technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulations defining ``waters of the United
States.''
This final rule advances the objective of the Clean Water Act and
ensures 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: This action is effective on March 20, 2023.

ADDRESSES: The agencies have established a docket for this action under
Docket ID No. EPA-HQ-OW-2021-0602. All documents in the docket are
listed on the <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Whitney Beck, 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#dc9f8b9dabb3a8a9af9cb9acbdf2bbb3aa">[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#67121406150a1e491702091306000809490f1603064a0614064a0410490a051f490614064a04104a1502170815130e09002706150a1e490a0e0b">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. 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?
III. Background
A. Legal Background
1. The Clean Water Act
2. The 1986 Regulations Defining ``Waters of the United States''
3. U.S. Supreme Court Decisions
4. Post-Rapanos Appellate Court Decisions
5. Post-Rapanos Implementation of the 1986 Regulations
B. The Agencies' Post-Rapanos Rules
1. The 2015 Clean Water Rule
2. The 2019 Repeal Rule
3. The 2020 Navigable Waters Protection Rule
4. Legal Challenges to the Rules
5. 2021 Executive Order and Review of the Navigable Waters
Protection Rule
C. Summary of Co-Regulator Engagement and Stakeholder Outreach
IV. Revised Definition of ``Waters of the United States''
A. Basis for This Rule
1. The Agencies Are Exercising the Authority Granted by Congress
To Define ``Waters of the United States'' Under the Clean Water Act
2. This Rule Advances the Objective of the Clean Water Act
3. The Scope of This Rule Is Limited Consistent With the Law,
the Science, and Agency Expertise
4. This Rule is Both Generally Familiar and Implementable
5. Public Comments Received and Agency Responses
B. Alternatives to This Rule
1. 2015 Clean Water Rule
2. 2019 Repeal Rule
3. 2020 NWPR
C. This Rule
1. Summary of This Rule
2. Traditional Navigable Waters, the Territorial Seas, and
Interstate Waters
3. Impoundments
4. Tributaries
5. Adjacent Wetlands
6. Waters Not Identified in Paragraphs (a)(1) Through (4)
7. Exclusions
8. Other Definitions
9. Significantly Affect
10. Guidance for Landowners on How To Know When Clean Water Act
Permits Are Required
D. Placement of the Definition of ``Waters of the United
States'' in the Code of Federal Regulations
E. Severability
F. Jurisdictional Determinations Issued Under Previous Rules
G. Implementation Tools
H. Publicly Available Jurisdictional Information and Permit Data
V. 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 Risks 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
K. Congressional Review Act

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 then-existing statutory framework,
designed to ``establish an all-encompassing program of water pollution
regulation.'' City of Milwaukee v. Illinois, 451 U.S. 304, 317-18
(1981) (citation omitted). 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 broadly in the
Act as ``the waters of the United States, including the territorial
seas.'' 33 U.S.C. 1362(7). This term is relevant to the scope of

[[Page 3005]]

most Federal programs to protect water quality under the Clean Water
Act--for example, water quality standards, permitting to address
discharges of pollutants, including discharges of dredged or fill
material, processes to address impaired waters, oil spill prevention,
preparedness and response programs, and Tribal and State water quality
certification programs--because the Clean Water Act uses the term
``navigable waters'' in establishing such programs.
---------------------------------------------------------------------------

\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 use of the term
``navigable waters'' to describe waters that are, have been, or
could be used for interstate or foreign commerce, 33 CFR 328.3(a)(1)
(2014), this preamble will refer to the latter as ``traditional
navigable waters'' or waters that are ``navigable-in-fact.''
---------------------------------------------------------------------------

As a unanimous Supreme Court concluded decades ago, Congress
delegated a ``breadth of federal regulatory authority'' in the Clean
Water Act and expected the Environmental Protection Agency (EPA) and
the Department of the Army (``the agencies'') to tackle the ``inherent
difficulties of defining precise bounds to regulable waters.'' United
States v. Riverside Bayview Homes, 474 U.S. 121, 134 (1985)
(``Riverside Bayview''). The Supreme Court noted that ``[f]aced with
such a problem of defining the bounds of its regulatory authority, an
agency may appropriately look to the legislative history and underlying
policies of its statutory grants of authority.'' Id. at 132. The Court
went on to state that ``[p]rotection 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 (citations
omitted). The Supreme Court has twice more addressed the complex 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'').
This rule takes up that multi-faceted challenge. In developing this
rule, the agencies considered the text of the relevant provisions of
the Clean Water Act and the statute as a whole, the scientific record,
relevant Supreme Court case law, and the agencies' experience and
technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulations defining ``waters of the United
States.'' The agencies' experience includes more than a decade of
implementing those regulations consistent with the Supreme Court's
decisions in Riverside Bayview, SWANCC, and Rapanos. The agencies also
considered the extensive public comments on the proposed rule.
This rule establishes limits that appropriately draw the boundary
of waters subject to Federal protection. When upstream waters
significantly affect the integrity of waters for which the Federal
interest is indisputable--the traditional navigable waters, the
territorial seas, and interstate waters--this rule ensures that Clean
Water Act programs apply to protect those paragraph (a)(1) waters by
including such upstream waters within the scope of the ``waters of the
United States.'' Where waters do not significantly affect the integrity
of waters for which the Federal interest is indisputable, this rule
leaves regulation exclusively to the Tribes and States.\2\
Additionally, it is important to note that the fact that a water is one
of the ``waters of the United States'' does not mean that no activity
can occur in that water; rather, it means that activities must comply
with the Clean Water Act's permitting programs, and those programs
include numerous statutory exemptions and regulatory exclusions.
---------------------------------------------------------------------------

\2\ As explained in section IV.A.3.a.ii of this preamble, the
agencies find it appropriate to assert Federal jurisdiction over
waters meeting the relatively permanent standard in addition to
waters meeting the significant nexus standard because--though the
relatively permanent standard identifies only a subset of the
``waters of the United States''--it provides important efficiencies
and additional clarity for regulators and the public by more readily
identifying a subset of waters that will virtually always
significantly affect paragraph (a)(1) waters; i.e., those waters for
which the Federal interest is indisputable. By promulgating a rule
interpreting the Clean Water Act to cover waters that meet the
relatively permanent standard or the significant nexus standard, the
agencies have appropriately construed the Act to protect those
waters necessary to protect the integrity of traditional navigable
waters, the territorial seas, and interstate waters, while leaving
regulatory authority over all the waters that do not have the
requisite connection to paragraph (a)(1) waters exclusively to the
Tribes and States.
---------------------------------------------------------------------------

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). This rule is founded on that familiar pre-2015
definition that has bounded the Clean Water Act's protections for
decades, has been codified multiple times, and has been implemented by
every administration in the last 45 years.\3\ The pre-2015 regulations
are commonly referred to as ``the 1986 regulations,'' and this preamble
will refer to them as such, but the agencies note that ``the 1986
regulations'' have largely been in place since 1977 and were also
amended in 1993 to add an exclusion.\4\
---------------------------------------------------------------------------

\3\ The Corps' 1977 regulations (42 FR 37122, 37144 (July 19,
1977)), though organized differently than their 1986 regulations,
contained many of the same categories as those later regulations,
and its definition of ``adjacent'' was identical to the definition
promulgated in 1986. EPA's 1979 regulations (44 FR 32854, 32901
(June 7, 1979)) were substantially similar to the Corps' 1977
regulations and added for the first time an exclusion for waste
treatment systems. In 1986 and 1988, the Corps and EPA,
respectively, promulgated nearly identical definitions of ``waters
of the United States.'' 51 FR 41206, 41217 (November 13, 1986); 53
FR 20764, 20765 (June 6, 1988). Besides the addition of an exclusion
for prior converted cropland in 1993 (58 FR 45008, 45031 (August 25,
1993)), the agencies' regulations defining ``waters of the United
States'' remained unchanged until the agencies finalized the 2015
Clean Water Rule (80 FR 37054, 37104 (June 29, 2015)). In 2019, the
agencies repromulgated their pre-2015 regulations (84 FR 56626,
56667 (October 22, 2019)).
\4\ For convenience, in this preamble the agencies 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.'' These references are
inclusive of EPA's comparable regulations that were recodified in
1988 and of the exclusion for prior converted cropland, which both
agencies added in 1993.
---------------------------------------------------------------------------

Since 2015, the agencies have finalized three rules revising the
definition of ``waters of the United States.'' See 80 FR 37054 (June
29, 2015); 84 FR 56626 (October 22, 2019); 85 FR 22250 (April 21,
2020). The most recent rule, the 2020 ``Navigable Waters Protection
Rule'' (``2020 NWPR''), substantially departed from prior rules
defining ``waters of the United States.'' 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,'' directing all executive
departments and agencies to immediately review and, as appropriate and
consistent with applicable law, take action to address the promulgation
of Federal regulations and other actions that conflict with national
policies of science-based decision making in order to improve public
health, protect our environment, and ensure access to clean air and
water. 86 FR 7037 (published January 25, 2021, signed January 20,
2021). After completing a review of and reconsidering the record for
the 2020 NWPR, on June 9, 2021, the agencies announced their intention
to revise or replace the rule. The 2020 NWPR was subsequently vacated
by two district courts, as discussed further below.
In this rule, consistent with the general framework of the 1986
regulations, the agencies interpret the term ``waters of the United
States'' to include:
<bullet> traditional navigable waters, the territorial seas, and
interstate waters (``paragraph (a)(1) waters'');
<bullet> impoundments of ``waters of the United States''
(``paragraph (a)(2) impoundments'');
<bullet> tributaries to traditional navigable waters, the
territorial seas, interstate waters, or paragraph (a)(2)

[[Page 3006]]

impoundments when the tributaries meet either the relatively permanent
standard or the significant nexus standard (``jurisdictional
tributaries'');
<bullet> wetlands adjacent to paragraph (a)(1) waters, wetlands
adjacent to and with a continuous surface connection to relatively
permanent paragraph (a)(2) impoundments, wetlands adjacent to
tributaries that meet the relatively permanent standard, and wetlands
adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries
when the wetlands meet the significant nexus standard (``jurisdictional
adjacent wetlands''); and
<bullet> intrastate lakes and ponds, streams, or wetlands not
identified in paragraphs (a)(1) through (4) that meet either the
relatively permanent standard or the significant nexus standard
(``paragraph (a)(5) waters'').
The ``relatively permanent standard'' refers to the test to
identify relatively permanent, standing or continuously flowing waters
connected to paragraph (a)(1) waters, and waters with a continuous
surface connection to such relatively permanent waters or to
traditional navigable waters, the territorial seas, or interstate
waters. The ``significant nexus standard'' refers to the test to
identify 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, the
territorial seas, or interstate waters--i.e., the paragraph (a)(1)
waters. The regulatory text defines ``significantly affect'' in order
to increase the clarity and consistency of implementation of the
significant nexus standard.
With respect to ``adjacent wetlands,'' the concept of adjacency and
the significant nexus standard create separate, additive limitations
that work together to ensure that such wetlands are covered (i.e.,
jurisdictional under the Act) when they have the necessary relationship
to other covered waters. The adjacency limitation focuses on the
relationship between the wetland and the covered water to which it is
adjacent. Consistent with the plain meaning of the term and the
agencies' 45-year-old definition of ``adjacent,'' the rule requires
that an ``adjacent wetland'' be ``bordering, contiguous, or
neighboring'' to another covered water.\5\ Where a wetland is adjacent
to a traditional navigable water, the territorial seas, or an
interstate water, consistent with longstanding regulations and
practice, no further inquiry is required, and the wetland is
jurisdictional. But where a wetland is adjacent to a covered water that
is not a traditional navigable water, the territorial seas, or an
interstate water, such as a tributary, this rule requires an additional
showing for that adjacent wetland to be covered: the wetland must
satisfy either the relatively permanent standard or the significant
nexus standard. And that inquiry, under either standard, fundamentally
concerns the adjacent wetland's relationship to the relevant paragraph
(a)(1) water rather than the relationship between the adjacent wetland
and the covered water to which it is adjacent. In other words, the
adjacent wetland must have a continuous surface connection to a
relatively permanent, standing or continuously flowing water connected
to a paragraph (a)(1) water or must either alone or in combination with
similarly situated waters significantly affect the chemical, physical,
or biological integrity of a paragraph (a)(1) water.
---------------------------------------------------------------------------

\5\ The agencies have a longstanding, specific definition of
``adjacent,'' and section IV.C.6 of this preamble provides
additional clarity by articulating the criteria the agencies have
long used to interpret and implement that definition.
---------------------------------------------------------------------------

In addition, this rule codifies several exclusions from the
definition of ``waters of the United States,'' including longstanding
exclusions for prior converted cropland and waste treatment systems,
and for features that were generally considered non-jurisdictional
under the pre-2015 regulatory regime.\6\
---------------------------------------------------------------------------

\6\ 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.
---------------------------------------------------------------------------

This rule advances the Clean Water Act's statutory objective as it
is informed by the best available science concerning the functions
provided by upstream tributaries, adjacent wetlands, as well as
intrastate lakes and ponds, streams, and wetlands that do not fall
within the other jurisdictional categories to restore and maintain the
water quality of traditional navigable waters, the territorial seas,
and interstate waters (i.e., the paragraph (a)(1) waters). 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 \7\
(hereinafter, ``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 Technical Support Document for the Final
Rule: Revised Definition of ``Waters of the United States''
(hereinafter, ``Technical Support Document'') provides additional
scientific and technical information about issues raised in this
rule.8 9
---------------------------------------------------------------------------

\7\ 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>.
\8\ Appendix A of the Technical Support Document contains a
glossary of terms used in the document. Appendix B of the Technical
Support Document contains the references cited in the document.
Appendix C of the Technical Support Document is a list of citations
that have been published since the Science Report and that contain
findings relevant to the report's conclusions.
\9\ Throughout this preamble, when the agencies refer to
``science,'' that means foundational principles related to chemical,
physical, and biological integrity, including biology, hydrology,
geology, chemistry, and soil science; the Science Report; and the
Technical Support Document for this rule.
---------------------------------------------------------------------------

The agencies' interpretation also reflects consideration of the
statute as a whole, including both its objective in section 101(a) and
its policies, such as that of section 101(b), which states in part 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, [and] to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources.'' 33 U.S.C. 1251(b). The agencies find that the scope of
Clean Water Act jurisdiction established in this final rule enhances
States' ability to protect waters within their borders, such as by
participating in the section 401 certification process and by providing
input during the permitting process for out-of-state section 402 and
404 permits that may affect their waters. See 33 U.S.C. 1341, 1342(b),
1344(h)(1)(E). Indeed, in implementing and participating in the Clean
Water Act's regulatory requirements and framework, States can have more
powerful and holistic tools for addressing water quality than they
would have in implementing state-only laws and regulations.
Further, this rule is based on the agencies' conclusion that the
significant nexus standard is consistent with the statutory text and
legislative history, advances the objective of the Clean Water Act, is
informed by the scientific record and Supreme Court case law, and
appropriately considers the policies of the Act. The agencies have also
determined that the relatively permanent standard is appropriate to
include in this rule because, while it

[[Page 3007]]

identifies only a subset of the ``waters of the United States,'' it
also provides important efficiencies and additional clarity for
regulators and the public by more readily identifying a subset of
waters that will virtually always significantly affect paragraph (a)(1)
waters. In addition, because this rule is founded upon a longstanding
regulatory framework and reflects the agencies' experience and
expertise, as well as updates in implementation tools and resources, it
is generally familiar to the public and implementable. The
clarifications in this rule, including the addition of exclusions that
codify longstanding practice, and review of the advancements in
implementation resources, tools, and scientific support (see section
IV.G of this preamble) address many of the concerns raised in the past
about timeliness and consistency of jurisdictional determinations under
the Clean Water Act.
By contrast, the agencies conclude that the 2020 NWPR, which
substantially departed from prior rules defining ``waters of the United
States,'' is incompatible with the objective of the Clean Water Act and
inconsistent with the text of relevant provisions of the statute, the
statute as a whole, relevant case law, and the best available science.
The 2020 NWPR found jurisdiction primarily under the relatively
permanent standard. The agencies have concluded that while the
relatively permanent standard is administratively useful by more
readily identifying a subset of waters that will virtually always
significantly affect paragraph (a)(1) waters, it is insufficient as the
sole test for Clean Water Act jurisdiction. Sole reliance on the
relatively permanent standard's extremely limited approach has no
grounding in the Clean Water Act's text, structure, or history.
Limiting determinations to that standard alone upends an understanding
of the Clean Water Act's coverage that has prevailed for nearly half a
century. The relatively permanent standard as the exclusive
jurisdictional test would seriously compromise the Clean Water Act's
comprehensive scheme by denying any protection to tributaries that are
not relatively permanent and adjacent wetlands that do not have a
continuous surface connection to other jurisdictional waters. The
exclusion of these waters runs counter to the science demonstrating how
such waters can affect the integrity of larger downstream waters,
including traditional navigable waters, the territorial seas, and
interstate waters. The agencies have concluded that the relatively
permanent standard should still be included in the rule in conjunction
with the significant nexus standard because the subset of waters that
meet the relatively permanent standard will virtually always have the
requisite connection \10\ to traditional navigable waters, the
territorial seas, or interstate waters to properly fall within the
Clean Water Act's scope. The relatively permanent standard is also
administratively useful as it more readily identifies a subset of
waters that will virtually always significantly affect paragraph (a)(1)
waters.
---------------------------------------------------------------------------

\10\ Throughout this preamble, the agencies' reference to a
``connection'' to traditional navigable waters, the territorial
seas, or interstate waters (when used without qualification such as
``continuous surface connection'' or an ``unbroken surface or
shallow subsurface connection'') includes all the types of
connections relevant to either the relatively permanent standard or
the significant nexus standard: physical (including hydrological),
chemical, biological, or functional relationships (including where
the water retains floodwaters or pollutants that would otherwise
flow to the traditional navigable water, the territorial seas, or an
interstate water). See Technical Support Document section III. A
``requisite'' connection is one that satisfies either the relatively
permanent or significant nexus standard.
---------------------------------------------------------------------------

Following a Federal district court decision vacating the 2020 NWPR
on August 30, 2021, the agencies halted implementation of the 2020 NWPR
and began interpreting ``waters of the United States'' consistent with
the pre-2015 regulatory regime.\11\ For the reasons discussed more
fully below, the agencies have decided that replacement of the 2020
NWPR is vital.
---------------------------------------------------------------------------

\11\ See Pascua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949 (D.
Ariz. 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>; U.S. Army Corps of Engineers, Navigable Waters
Protection Rule Vacatur (published January 5, 2022), <a href="https://www.usace.army.mil/Media/Announcements/Article/2888988/5-january-2022-navigable-waters-protection-rule-vacatur/">https://www.usace.army.mil/Media/Announcements/Article/2888988/5-january-2022-navigable-waters-protection-rule-vacatur/</a>.
---------------------------------------------------------------------------

Through the rulemaking process, the agencies have considered all
timely public comments on the proposed rule, including changes that
improve the clarity, implementability, and durability of the
definition. The regulations established in this rule are founded on the
familiar framework of the 1986 regulations and are generally consistent
with the pre-2015 regulatory regime. They are fully consistent with the
statute, informed by relevant Supreme Court decisions, and reflect the
record before the agencies, including consideration of the best
available science, as well as the agencies' expertise and experience
implementing the pre-2015 regulatory regime. In addition, this final
rule increases clarity and implementability by streamlining and
restructuring the 1986 regulations and providing implementation
guidance informed by sound science, implementation tools including
modern assessment tools, and other resources.

II. General Information

A. What action are the agencies taking?

In this action, the agencies are publishing a final 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?

The agencies prepared the Economic Analysis for the Final ``Revised
Definition of `Waters of the United States' '' Rule (hereinafter,
``Economic Analysis for the Final Rule''), available in the rulemaking
docket, for informational purposes to analyze the potential costs and
benefits associated with this final action. This rule establishing the
definition of ``waters of the United States'' does not by itself impose
costs or benefits. Potential costs and benefits would only be incurred
as a result of actions taken under existing Clean Water Act programs
relying on the definition of ``waters of the United States'' (i.e.,
sections 303, 311, 401, 402, and 404). The agencies analyze the
potential costs and benefits against two baselines: the current status
quo and the vacated 2020 NWPR. The findings of this analysis for the
primary baseline of the current status quo conclude that there are de
minimis costs and benefits associated with this rulemaking. The
findings of this analysis for the secondary baseline of the 2020 NWPR
conclude that within the ranges of indirect costs and benefits
considered, benefits consistently outweigh the costs. The analysis is
summarized in section V.A of this preamble.

III. 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. 911, 92d Cong., 2d Sess. at 66 (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

[[Page 3008]]

Nation's waters.'' 33 U.S.C. 1251(a). The Clean Water 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. A centerpiece of that comprehensive
framework is the term ``navigable waters,'' which the Clean Water Act
broadly defines as ``the waters of the United States, including the
territorial seas.'' 33 U.S.C. 1362(7). Waters satisfying that
definition are often called ``covered'' or ``jurisdictional'' waters
because the term ``navigable waters'' appears in most of the Clean
Water Act's key programs, including those for water quality standards,
oil-spill prevention, and permits regulating the discharge of
pollutants.
a. History of the Clean Water Act
Prior to 1972, the Federal Government's authority to control and
redress pollution in the nation's waters largely fell to the U.S. Army
Corps of Engineers (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.\12\ 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,
Congress subsequently concluded 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) (citing S. Rep. No. 92-
414, p. 7 (1971)).
---------------------------------------------------------------------------

\12\ The 1948 Act was enacted ``in connection with the exercise
of jurisdiction over the waterways of the Nation'' and focused
specifically on the protection of water quality in interstate waters
and tributaries of interstate waters. See Public Law 80-845, 62
Stat. 1155 (1948). Congress's 1956 amendments to the Act
strengthened measures for controlling pollution of interstate waters
and their tributaries. Public Law 84-660, 70 Stat. 498 (1956). In
1961, Congress amended the Act to substitute the term ``interstate
or navigable waters'' for ``interstate waters.'' See Public Law 87-
88, 75 Stat. 208 (1961). Accordingly, beginning in 1961, the Act's
provisions applied to all interstate waters and navigable waters and
to the tributaries of each. See 33 U.S.C. 466a, 466g(a) (1964). The
1965 amendments established the requirement that states develop
water quality standards for interstate waters. Public Law 89-234, 79
Stat. 903, 908, 909 (1965).
---------------------------------------------------------------------------

As a result, in 1972, Congress performed ``a `total restructuring'
and `complete rewriting' of the existing'' statutory framework. Id. 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 Act,
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.'' Riverside Bayview, 474 U.S. at 133; 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'' has a
broad, specialized definition: ``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 of ``navigable waters'' to encompass all the ``waters of the
United States.'' Id. The relevant House bill would have defined
``navigable waters'' as the ``navigable waters of the United States,
including the territorial seas.'' H.R. Rep. No. 911, 92d Cong., 2d
Sess. 356 (1972) (emphasis omitted). But in conference the word
``navigable'' was deleted from that definition, and the conference
report urged that the term ``be given the broadest possible
constitutional interpretation.'' S. Conf. Rep. No. 1236, 92d Cong., 2d
Sess. 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.
In 1977, Congress substantially amended the Clean Water Act while
leaving unchanged the 1972 definition of ``navigable waters.'' See
Clean Water Act of 1977 (1977 Act), Public Law 95-217, 91 Stat. 1566.
In the run-up to those amendments, Congress considered proposals to
amend section 404, which requires a permit for discharges of dredged or
fill material into ``waters of the United States,'' and debate on those
proposals ``centered largely on the issue of wetlands preservation.''
SWANCC, 531 U.S. at 170 (citation omitted). The legislative proposal
followed the Corps' 1975 rulemaking, which defined the scope of
``waters of the United States'' to cover all of the following waters,
but phased Corps' regulation of discharges of dredged or fill material
into these waters in three phases: first, into ``coastal waters and
coastal wetlands contiguous or adjacent thereto or into inland
navigable waters of the United States and freshwater wetlands
contiguous or adjacent thereto;'' second, into ``primary tributaries,
freshwater wetlands contiguous or adjacent to primary tributaries, and
lakes;'' and third, ``into intrastate lakes, rivers and streams
landward to their ordinary high water mark''. 40 FR 31320, 31324, 31326
(July 25, 1975); see section III.A.2 of this preamble infra for further
discussion of the phased rulemaking through which the Corps established
a definition of ``waters of the United States'' and the dates when the
Corps began regulating activities under that definition. The House
passed a bill that would have limited the waters and adjacent wetlands
to which section 404 applies. H.R. 3199, 95th Cong., section 16 (1977).
Many legislators objected, with one characterizing the proposed
limitation as an ``open invitation'' to pollute other

[[Page 3009]]

wetlands. 123 Cong. Rec. 26,725 (1977) (statement of Sen. Hart); see
id. at 26,714-26,716. The Senate ultimately rejected the proposal. Id.
at 26,728; cf. S. Rep. No. 370, 95th Cong., 1st Sess. 10 (1977).
Congress instead modified the Clean Water Act in other respects.
Rather than alter the geographic reach of section 404 in 1977, Congress
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.\13\ 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 to administer the section 404 permitting
program. Id. at 1344(g)(1). In so doing, however, Congress limited
States' potential jurisdiction to waters ``other than those waters
which are presently used, or are susceptible to use in their natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce shoreward to their ordinary high water
mark, including all waters which are subject to the ebb and flow of the
tide shoreward to their mean high water mark, or mean higher high water
mark on the west coast, including wetlands adjacent thereto.'' Id. The
Corps retains jurisdiction to issue permits in those waters. See
section IV.A.2.b for additional analysis of the Corps' regulations, the
text of the 1977 amendments, and their legislative history for purposes
of construing the scope of ``waters of the United States.''
---------------------------------------------------------------------------

\13\ Whereas individual permits are issued directly to an
individual discharger, a ``general permit'' may provide coverage for
multiple dischargers. See also preamble section III.A.1.b for
additional discussion of general permits.
---------------------------------------------------------------------------

b. Clean Water Act Programs
The term ``navigable waters'' is used in most of the key programs
established by the Clean Water Act, including the section 402 National
Pollutant Discharge Elimination System (NPDES) permit program; the
section 404 permit program for dredged or fill material; the section
311 oil spill prevention, preparedness, and response program; \14\ the
water quality standards, impaired waters, and total maximum daily load
programs under section 303; and the section 401 Tribal and State water
quality certification process. While there is only one definition of
``waters of the United States'' for purposes of the Clean Water Act,
there may be other statutory factors that define the reach of a
particular Clean Water Act program or provision.\15\
---------------------------------------------------------------------------

\14\ While Clean Water Act section 311 uses the phrase
``navigable waters of the United States,'' EPA has interpreted it to
have the same breadth as the phrase ``navigable waters'' used
elsewhere in section 311, and in other sections of the Clean Water
Act. See United States v. Texas Pipe Line Co., 611 F.2d 345, 347
(10th Cir. 1979); United States v. Ashland Oil & Transp. Co., 504
F.2d 1317, 1324-25 (6th Cir. 1974). In 2002, EPA revised its
regulations defining ``waters of the United States'' in 40 CFR part
112 to ensure that the rule's language was consistent with the
regulatory language used in other Clean Water Act programs. Oil
Pollution Prevention & Response; Non-Transportation-Related Onshore
& Offshore Facilities, 67 FR 47042 (July 17, 2002). A district court
vacated the rule for failure to comply with the Administrative
Procedure Act and reinstated the prior regulatory language. American
Petroleum Ins. v. Johnson, 541 F. Supp. 2d 165 (D.D.C. 2008).
However, EPA interprets ``navigable waters of the United States'' in
Clean Water Act section 311(b), in both the pre-2002 regulations and
the 2002 rule, to have the same meaning as ``navigable waters'' in
Clean Water Act section 502(7).
\15\ For example, the Clean Water Act section 402 permit program
regulates discharges of pollutants from ``point sources'' to
``navigable waters'' whether the pollutants reach jurisdictional
waters directly or indirectly. See Rapanos, 547 U.S. at 743
(plurality); see also County of Maui, Hawaii v. Hawaii Wildlife
Fund, 140 S. Ct. 1462, 1476 (2020) (holding that the statute also
requires a permit ``when there is the functional equivalent of a
direct discharge''). Section 402 also regulates ``any addition of
any pollutant to the waters of the contiguous zone or the ocean from
any point source other than a vessel or other floating craft.'' See
33 U.S.C. 1362(12). As another example, section 311 applies to
``discharges of oil or hazardous substances into or upon the
navigable waters of the United States, adjoining shorelines, or into
or upon the waters of the contiguous zone, or in connection with
activities under the Outer Continental Shelf Lands Act [43 U.S.C.
1331 et seq.] or the Deepwater Port Act of 1974 [33 U.S.C. 1501 et
seq.], or which may affect natural resources belonging to,
appertaining to, or under the exclusive management authority of the
United States (including resources under the Magnuson-Stevens
Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.]).''
33 U.S.C. 1321(b)(1).
---------------------------------------------------------------------------

EPA administers the Clean Water Act except as otherwise explicitly
provided. 33 U.S.C. 1251(d). The United States Attorney General long
ago determined that the ``ultimate administrative authority to
determine the reach of the term `navigable waters' for purposes of
Sec. 404'' resides with EPA. 43 Op. Att'y Gen. 197 (1979). The Act
provides for the Federal Government to implement some Clean Water Act
programs, and it gives direct grants of authority to authorized Tribes
as well as States for implementation and enforcement of others. In some
cases, the Act provides authorized Tribes and States the option to take
on certain Clean Water Act programs.\16\ Eligible Tribes or States
implement the section 401 program and may request approval by EPA to
administer a Clean Water Act section 402 or 404
program.17 18 Moreover, consistent with the Clean Water Act,
Tribes and States retain authority to implement their own programs to
protect the waters in their jurisdiction more broadly and more
stringently than the Federal Government. Section 510 of the Clean Water
Act provides that, unless expressly stated, nothing in the Clean Water
Act precludes or denies the right of any Tribe or State to establish
more protective standards or limits than the Clean Water Act.\19\ For
example, many Tribes and States regulate groundwater, and some others
protect vital wetlands that may be outside the scope of the Clean Water
Act.
---------------------------------------------------------------------------

\16\ The Clean Water Act defines ``state'' as ``a State, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and the Trust Territory of the Pacific Islands.''
33 U.S.C. 1362(3). Clean Water Act section 518(e), which is part of
the 1987 amendments to the Act, authorizes EPA to treat eligible
federally recognized Tribes in a similar manner as a State for
implementing and managing certain environmental programs. 33 U.S.C.
1377(e).
\17\ All States and 79 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 47 Tribes have established water quality
standards pursuant to section 303 of the Clean Water Act, which form
a legal basis for limitations on discharges of pollutants to
``waters of the United States.'' Three States are authorized to
administer a section 404 program for certain waters in their
boundaries.
\18\ As noted in section III.A.1.a of this preamble, when a
Tribe or State assumes a section 404 program, the Corps retains
permitting authority over certain waters. The scope of Clean Water
Act jurisdiction as defined by ``waters of the United States'' is
distinct from the scope of waters over which the Corps retains
authority following Tribal or State assumption of the section 404
program. Corps-retained waters are identified during approval of a
Tribal or State section 404 program, and any modifications are
approved through a formal EPA process. 40 CFR 233.36. This rule does
not address the scope of Corps-retained waters, and nothing in this
rule should affect the process for determining the scope of Corps-
retained waters.
\19\ 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 preamble
may also include eligible Tribes.
---------------------------------------------------------------------------

In addition to section 301(a) which regulates discharges of
pollutants to jurisdictional waters, many other provisions of the Clean
Water Act operate based on the definition of ``waters of the United
States.'' For example, under section 303, water quality standards and
total maximum daily loads are not required under the Clean Water Act
for waters that are not ``waters of the United States,'' and Tribes and
States have no authority to provide certifications under section 401

[[Page 3010]]

with water quality conditions for a permit or license issued by a
Federal agency for an activity that does not result in a discharge to
``waters of the United States.''
Under section 402 of the Clean Water Act, an NPDES permit is
required where a point source discharges a pollutant to ``waters of the
United States.'' \20\ Clean Water Act section 404 requires a permit
before dredged or fill material may be discharged to ``waters of the
United States,'' with regulatory exemptions for certain farming,
ranching, and forestry activities. No section 404 permits are required
for discharging dredged or fill material into waters or features that
are not ``waters of the United States.''
---------------------------------------------------------------------------

\20\ The term ``point source'' is defined in Clean Water Act
section 502(14) and 40 CFR 122.2 to include ``any discernible,
confined and discrete conveyance . . . from which pollutants are or
may be discharged.'' This definition specifically excludes return
flows from irrigated agriculture and agricultural stormwater runoff.
See also supra note 15 (discussing discharges of pollutants subject
to the section 402 program).
---------------------------------------------------------------------------

Section 303(c) of the Clean Water Act requires States to establish
water quality standards for ``waters of the United States.'' States
must periodically review their water quality standards and modify or
adopt standards as required by the Clean Water Act or as otherwise
appropriate. States must submit new or revised standards for EPA
review. Water quality standards are the foundation for a wide range of
programs under the Clean Water Act. They serve multiple purposes
including establishing the water quality goals for a specific
waterbody, or portion thereof, and providing the regulatory basis for
establishing water quality-based effluent limits beyond the technology-
based levels of treatment required by the Clean Water Act. Water
quality standards also serve as a target for Clean Water Act
restoration goals such as total maximum daily loads.
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. For waters identified on a 303(d) list,
States establish total maximum daily loads for all pollutants
preventing or expected to prevent attainment of water quality
standards. Section 303(d) applies to ``waters of the United States.''
Non-jurisdictional waterbodies are not required to be assessed or
otherwise identified as impaired. Total maximum daily load restoration
plans likewise apply only 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 pay for or
reimburse costs of assessing and responding to oil spills to ``waters
of the United States'' or adjoining shorelines or the Exclusive
Economic Zone.\21\ The OSLTF allows an immediate response to a spill,
including containment, countermeasures, cleanup, and disposal
activities. The OSLTF can only reimburse Tribes or States for cleanup
costs and damages to businesses and citizens (e.g., lost wages and
damages) for spills affecting waters subject to Clean Water Act
jurisdiction. EPA also lacks authority under the Clean Water Act to
take enforcement actions based on spills solely affecting waters not
subject to Clean Water Act jurisdiction under section 311(b). Moreover,
section 311's requirements for oil spill and prevention plans only
apply to those facilities where there is a reasonable expectation that
an oil discharge could reach a jurisdictional water or adjoining
shoreline or the Exclusive Economic Zone.
---------------------------------------------------------------------------

\21\ See 33 U.S.C. 1321(b) for the full jurisdictional scope of
Clean Water Act section 311.
---------------------------------------------------------------------------

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 \22\ 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, 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 that facility could reach a
jurisdictional water or adjoining shoreline or the Exclusive Economic
Zone.
---------------------------------------------------------------------------

\22\ See supra note 14.
---------------------------------------------------------------------------

Clean Water Act section 401 provides authorized Tribes and States
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 and licenses are
required and thus where section 401 certification applies. Section 401
prohibits Federal agencies from issuing permits or licenses for
activities that may result in a discharge to ``waters of the United
States'' until after the State or authorized Tribe where the discharge
would originate has granted or waived water quality certification.
The fact that a resource meets the definition of ``waters 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. For example, 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 33 U.S.C. 1342(l)(2), 1362(14). As discussed above,
since 1977 the Clean Water Act in section 404(f) has exempted
activities such as many ``normal farming, silviculture, and ranching
activities'' from the section 404 permitting requirement, including
seeding, harvesting, cultivating, planting, and soil and water
conservation practices. Id. at 1344(f)(1). This rule does not affect
these statutory exemptions.
In addition, permits are routinely issued under Clean Water Act
sections 402 and 404 to authorize certain discharges to ``waters of the
United States.'' Further, under both permitting programs, the agencies
have established general permits for a wide variety of activities that
have minimal impacts to waters. General permits provide dischargers
with knowledge about applicable requirements before dischargers may
obtain coverage under them. Furthermore, obtaining coverage under a
general permit is typically quicker than obtaining coverage under an
individual permit, with coverage under a general permit often occurring
immediately (depending on how the permit is written) or after a short
waiting period. The permitting authority \23\ generally works with
permit applicants to ensure that activities can occur without harming
the integrity of the nation's waters. Thus, the permitting programs
allow for discharges to ``waters of the United States'' to occur while
also ensuring that those discharges meet statutory and regulatory
requirements designed to protect water quality.
---------------------------------------------------------------------------

\23\ Generally, the permitting authority is either EPA or an
authorized State for the NPDES program and either the Corps or an
authorized State for the section 404 program. No eligible Tribes
have authority to administer a Clean Water Act section 402 or
section 404 program at this time.

---------------------------------------------------------------------------

[[Page 3011]]

In issuing section 404 permits, the Corps or authorized State works
with the applicant to avoid, minimize, and compensate for any
unavoidable impacts to ``waters of the United States.'' For most
discharges that ``will cause only minimal adverse environmental
effects,'' a general permit (e.g., a ``nationwide'' permit) may be
suitable. 33 U.S.C. 1344(e)(1). 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 or the State, others allow
the applicant to proceed with no formal notification. The general
permit process allows certain activities to proceed with little or no
delay, provided 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 can be
considered for a general permit, where the activity meets the threshold
limits and only results in minimal impacts, individually and
cumulatively. Tribes and States can also have a role in Corps section
404 permit decisions, through State Programmatic General Permits
(SPGPs), Regional General Permits (RGPs), and water quality
certification.
Property owners may obtain a jurisdictional determination from the
Corps.\24\ A jurisdictional determination is a written Corps document
indicating whether a water is subject to regulatory jurisdiction under
section 404 of the Clean Water Act (33 U.S.C. 1344) or under section 9
or 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).
Jurisdictional determinations are identified as either preliminary or
approved. An approved jurisdictional determination (AJD) is ``a Corps
document stating the presence or absence of waters of the United States
on a parcel or a written statement and map identifying the limits of
waters of the United States on a parcel.'' 33 CFR 331.2. An approved
jurisdictional determination is administratively appealable and is a
final agency action subject to judicial review. U.S. Army Corps of
Engineers v. Hawkes Co., Inc., 578 U.S. 590 (2016). A preliminary
jurisdictional determination (PJD) is a non-binding ``written
indication that there may be waters of the United States on a parcel or
indications of the approximate location(s) of waters of the United
States on a parcel.'' 3 CFR 331.2. An applicant can elect to use a PJD
to voluntarily waive or set aside questions regarding Clean Water Act
jurisdiction over a particular site and thus move forward assuming all
waters will be treated as jurisdictional without making a formal
determination. The Corps does not charge a fee for these jurisdictional
determinations. See 33 CFR 325.1 (omitting mention of fees for
jurisdictional determinations); Regulatory Guidance Letter 16-01 (2016)
(stating that such determinations are issued as a ``public service'').
---------------------------------------------------------------------------

\24\ When a Tribe, State, or territory is approved to administer
the Clean Water Act section 404 program for certain waters, it is
responsible for decisions on whether or not a section 404 permit is
required.
---------------------------------------------------------------------------

2. The 1986 Regulations Defining ``Waters of the United States''
In 1973, EPA published regulations defining ``navigable waters'' 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'' for purposes of section 404 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'').\25\
---------------------------------------------------------------------------

\25\ See Lance Wood, Don't Be Misled: CWA Jurisdiction Extends
to All Non-Navigable Tributaries of the Traditional Navigable Waters
and to Their Adjacent Wetlands, 34 Envtl. L. Rptr. (Envtl. L. Inst.)
10,187 (2004) (explaining history and limitations of the 1974 Corps
regulation as an interpretation of the scope of the Clean Water
Act).
---------------------------------------------------------------------------

Around the same time, several Federal courts found that limiting
``waters of the United States'' to those that are navigable-in-fact is
an unduly restrictive reading of the Act. See, e.g., United States v.
Holland, 373 F. Supp. 665, 670-676 (M.D. Fla. 1974) (``Holland'');
Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685,
686 (D.D.C. 1975) (``Callaway''). EPA and the House Committee on
Government Operations agreed with the decision in Holland.\26\ In
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.'' Callaway, 392 F. Supp. at
686.
---------------------------------------------------------------------------

\26\ 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. 1396, 93d Cong.,
2d Sess. 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), (e)(2) (1976). The court required that the
Corps put forth a new definition within a short timeframe. The
regulatory phased-in approach was to ensure enough time for the Corps
to build up their resources to implement the expanded jurisdiction and
workload. Thus, the phases did not mean all of the waters in the final
regulation were not ``waters of the United States,'' but rather
established when the Corps would begin regulating activities within
each type of jurisdictional water.\27\ The interim regulations revised
the definition of ``waters of the United States'' to include waters not
covered by the other regulatory provisions. 33 CFR 209.120(d)(2)(i)
(1976).\28\ On July 19, 1977, the Corps published its final
regulations, in which it revised the 1975 interim regulations to
clarify many of

[[Page 3012]]

the definitional terms for purposes of section 404. 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).\29\
---------------------------------------------------------------------------

\27\ See Wood, supra note 25.
\28\ 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 after 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 after 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).
\29\ An explanatory footnote published in the Code of Federal
Regulations stated that this paragraph ``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 41206, 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, were identical and
remained largely unchanged from 1977 to 2015. See 42 FR 37122, 37124,
37127 (July 19, 1977).\30\ 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 including EPA's comparable regulations and
the 1993 addition of the exclusion for prior converted cropland.
---------------------------------------------------------------------------

\30\ 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)): \31\
---------------------------------------------------------------------------

\31\ 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.
---------------------------------------------------------------------------

(a) The term ``waters of the United States'' means:
1. All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters 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 would or could affect
interstate or foreign commerce including any such waters:
i. Which are or could be used by interstate or foreign travelers
for recreational or other purposes; or
ii. From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
iii. 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; and
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.
See section I.B of the Economic Analysis for the Final Rule for a
comparison of regulatory categories between the pre-2015 regulatory
regime, the 2020 NWPR, and this rule.
3. U.S. Supreme Court Decisions
The U.S. Supreme Court first addressed the scope of ``waters of the
United States'' protected by the Clean Water Act in United States 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 reversed the Sixth Circuit
Court of Appeals and held that court had erred when it imposed a
limitation requiring inundation or ``frequent flooding'' of wetlands by
the adjacent body of water for the wetlands to be jurisdictional when
such a limitation was required by neither the regulation nor the Clean
Water Act. Id. at 129, 134. The Supreme Court then deferred to the
Corps' judgment that adjacent wetlands ``that form the border of or are
in reasonable proximity to'' other ``waters of the United States'' 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. The Court observed that the
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 `[water] 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 (1972)). 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

[[Page 3013]]

wetlands may be defined as waters under the Act.'' Id. at 134. The
Court further stated, ``[i]f it is reasonable for the Corps to conclude
that in the majority of cases, adjacent wetlands have significant
effects on water quality and the aquatic ecosystem, its definition can
stand.'' Id. at 135 n.9. The Court expressly reserved the question of
whether the Clean Water 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''). A 5-4 Court in SWANCC held that the use of
``nonnavigable, isolated, intrastate waters'' by migratory birds was
not by itself a sufficient basis for the exercise of Federal authority
under the Clean Water Act. SWANCC, 531 U.S. at 172. 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 Riverside Bayview 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 (``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.'' (citations omitted)).
The Corps asserted authority in this instance based on an
interpretation of the regulations (known as the ``Migratory Bird
Rule'') that waters used as habitat for migratory birds were
jurisdictional. The Court found that the exercise of Clean Water Act
regulatory authority over discharges into the ponds based on their use
by migratory birds raised ``significant constitutional 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. 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 concluded that ``the `Migratory Bird Rule' is not fairly
supported by the CWA.'' Id. at 167.
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 Clean Water Act had been applied to wetlands
adjacent to tributaries, that are not themselves navigable-in-fact, of
traditional navigable waters. Although the Court remanded the Court of
Appeals' finding of Clean Water Act jurisdiction, the plurality opinion
and Justice Kennedy's concurrence disagreed on the proper test to
apply. Despite this disagreement, all nine 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 waterbodies, 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,
concluding that ``to constitute `` `navigable waters' '' under the Act,
a water or wetland must possess a `significant nexus' to waters that
are or were navigable in fact or that could reasonably be so made.''
Id. at 759 (citing SWANCC, 531 U.S. at 167, 172); see also id. at 774
(``As Riverside Bayview recognizes, the Corps' adjacency standard is
reasonable in some of its applications. Indeed, the Corps' view draws
support from the structure of the Act.''). 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 noted 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 or
Justice Kennedy's test'' and that in ``future cases the United States
may elect to prove jurisdiction under either test.'' 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 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
(emphasis in original). The Chief Justice observed that the Court's
division over the proper standard ``could have been avoided'' had the
agencies conducted rulemaking more clearly defining ``its authority to
regulate wetlands.'' Id.

[[Page 3014]]

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.' '' Marks, 430
U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)).
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 the plurality's relatively permanent standard is the
sole basis that may be used to establish jurisdiction. 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. Johnson, 467 F.3d 56
(1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723
(7th Cir. 2006). Some Courts of Appeals have held that the government
may establish jurisdiction under either standard. See, e.g., United
States v. Johnson, 467 F.3d 56, 62-64 (1st Cir. 2006); United States v.
Bailey, 571 F.3d 791, 799 (8th Cir. 2009). The Eleventh Circuit has
held that only Justice Kennedy's significant nexus standard applies.
United States v. Robison, 505 F.3d 1208 (11th Cir. 2007).
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 plurality's relatively permanent standard and Justice Kennedy's
significant nexus standard--informed by 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'').
In the Rapanos Guidance,\32\ the agencies concluded that Clean
Water Act jurisdiction exists if a water meets either the relatively
permanent standard or the significant nexus standard. The agencies'
assertion of jurisdiction over traditional navigable waters and their
adjacent wetlands remained unchanged by Rapanos. Under the relatively
permanent standard, the guidance stated that the agencies would assert
jurisdiction over: non-navigable tributaries of traditional navigable
waters that typically flow year-round or have continuous flow at least
seasonally; and wetlands that directly abut such tributaries. Rapanos
Guidance at 4-7. The guidance stated that the agencies would determine
jurisdiction under the significant nexus standard for the following
waters: non-navigable tributaries that are not relatively permanent;
wetlands adjacent to non-navigable tributaries that are not relatively
permanent; and wetlands adjacent to but not directly abutting a
relatively permanent non-navigable tributary. Id. at 8-12. Under the
guidance, the agencies generally did not assert jurisdiction over
swales or erosional features (e.g., gullies and small washes
characterized by low volume or infrequent or short duration flow) or
ditches (including roadside ditches) excavated wholly in and draining
only uplands and that did not carry a relatively permanent flow of
water. Id. at 11-12.
---------------------------------------------------------------------------

\32\ The agencies note that the guidance ``does not impose
legally binding requirements on EPA, the Corps, or the regulated
community, and may not apply to a particular situation depending on
the circumstances.'' Rapanos Guidance at 4 n.17.
---------------------------------------------------------------------------

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.''
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''). 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. The rule excluded the following (unless
they were traditional navigable waters, the territorial seas, or
interstate waters): certain ditches; artificially irrigated areas that
would revert to dry land should application of water to that area
cease; artificial, constructed lakes and ponds created in dry land such
as farm and stock watering ponds, irrigation ponds, settling basins,
fields flooded for rice growing, log cleaning ponds, or cooling ponds;
artificial reflecting pools or swimming pools created in dry land;
small ornamental waters created in dry land; water-filled depressions
created in dry land incidental to mining or construction activity,
including pits excavated for obtaining fill, sand, or gravel that fill
with water; erosional features, including gullies, rills, and other
ephemeral features that do not meet the definition of tributary, non-
wetland swales, and lawfully constructed grassed waterways; puddles;
groundwater, including groundwater drained through subsurface drainage
systems; stormwater control features constructed to convey, treat, or
store stormwater that are created in dry land; and wastewater

[[Page 3015]]

recycling structures constructed in dry land.
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 Clean Water 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
rulemaking, 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). The final rule provided that the agencies would
implement the definition ``consistent with Supreme Court decisions and
longstanding practice, as informed by applicable agency guidance
documents, training, and experience''; i.e., consistent with the pre-
2015 regulatory regime. Id. at 56626.
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''' (``2020 NWPR'')--that for the first
time defined ``waters of the United States'' based primarily on Justice
Scalia's plurality test from Rapanos. The 2020 NWPR was published on
April 21, 2020, and went into effect on June 22, 2020.\33\ 85 FR 22250
(April 21, 2020). The 2020 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.
---------------------------------------------------------------------------

\33\ The 2020 NWPR went into effect on June 22, 2020, in all
jurisdictions except Colorado, where the rule was subject to a
preliminary injunction issued by the U.S. District Court for the
District of Colorado. Colorado v. EPA, 445 F. Supp. 3d 1295 (D.
Colo. 2020). After the Tenth Circuit reversed the Colorado district
court's order on appeal, the 2020 NWPR went into effect in Colorado
on April 26, 2021. Colorado v. EPA, 989 F.3d 874 (6th Cir. 2021);
Colorado v. EPA, No. 20-1238, ECF No. 010110512604 (Doc. 10825032)
(10th Cir. Apr. 26, 2021).
---------------------------------------------------------------------------

The 2020 NWPR further 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 the territorial seas 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 the
territorial seas 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 2020 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
was jurisdictional under the 2020 NWPR if it contributed surface water
flow to a downstream jurisdictional water in a typical year through
certain artificial or natural features. A lake, pond, or impoundment of
a jurisdictional water inundated by flooding from a jurisdictional
water in a typical year was also jurisdictional. Id.
As for wetlands, the 2020 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 2020 NWPR expressly provided that waters that do not fall into
one of these jurisdictional categories were not considered ``waters of
the United States.'' Id. For the first time, interstate waters were not
included in the definition of ``waters of the United States.'' The rule
also excluded groundwater, including groundwater drained through
subsurface drainage systems; ephemeral features, including ephemeral
streams, swales, gullies, rills, and pools; diffuse stormwater run-off
and directional sheet flow over upland; ditches that are not
traditional navigable waters, the territorial seas, or tributaries as
defined in the rule; and those portions of ditches constructed in
adjacent wetlands as defined in the rule that do not satisfy the
conditions of an adjacent wetland under the rule; prior converted
cropland; artificially irrigated areas, including fields flooded for
agricultural production, that would revert to upland should application
of irrigation water to that area cease; artificial lakes and ponds,
including water storage reservoirs and farm, irrigation, stock
watering, and log cleaning ponds, constructed or excavated in upland or
in non-jurisdictional waters, so long as those artificial lakes and
ponds are not impoundments of jurisdictional waters that meet the
rule's definition of lakes and ponds, and impoundments of
jurisdictional waters; water-filled depressions constructed or
excavated in upland or in non-jurisdictional waters incidental to
mining or construction activity; pits excavated in upland or in non-
jurisdictional waters for the purpose of obtaining fill, sand, or
gravel; stormwater control features constructed or excavated in upland
or in non-jurisdictional waters to convey, treat, infiltrate, or store
stormwater runoff; groundwater recharge, water reuse, and wastewater
recycling structures, including detention, retention, and infiltration
basins and ponds, constructed or excavated in upland or in non-
jurisdictional waters; and waste treatment systems. While many of these
exclusions were based on the exclusions

[[Page 3016]]

in the 2015 Clean Water Rule, new exclusions were added and some were
substantially broadened in a number of ways. For example, for the first
time, all ephemeral streams were excluded. Moreover, waters within the
2020 NWPR's jurisdictional categories, including traditional navigable
waters and the territorial seas, were not ``waters of the United
States'' if they also fit within the 2020 NWPR's 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.'').\34\ In addition, the rule expanded the
longstanding exclusion for prior converted cropland. Generally
speaking, the 2020 NWPR's approach to prior converted cropland
substantially reduced the likelihood that prior converted cropland
would ever lose its excluded status. The 2020 NWPR definition extended
prior converted cropland status beyond those areas the U.S. Department
of Agriculture (USDA) defines as prior converted cropland for purposes
of the Food Security Act.
---------------------------------------------------------------------------

\34\ The 2020 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) (2022).
---------------------------------------------------------------------------

4. Legal Challenges to the Rules
The agencies' rulemakings to revise the definition of ``waters of
the United States'' have been subject to a series of legal
challenges.\35\
---------------------------------------------------------------------------

\35\ The agencies note that a Clean Water Act case currently
pending before the Supreme Court is not a direct challenge to any of
the rules defining ``waters of the United States,'' but instead
presents the question of the Act's jurisdictional standard for
adjacent wetlands in the context of a challenge to an EPA
administrative compliance order for the unauthorized discharge of a
pollutant into ``waters of the United States.'' Sackett v. EPA, No.
21-454. Petitioners--who operated a commercial construction and
excavation business--dumped approximately 1,700 cubic yards of
gravel and sand to fill wetlands adjacent to ``waters of the United
States,'' and EPA issued an administrative order in light of the
unauthorized discharge. The district court and the Court of Appeals
determined that, under Ninth Circuit precedent, the Clean Water Act
covers at least those adjacent wetlands that satisfy the significant
nexus standard. The lower courts held that the administrative record
supports EPA's conclusion that the wetlands on petitioners' property
are adjacent to a jurisdictional tributary and that, together with
other similarly situated adjacent wetlands, the adjacent wetlands
have a significant nexus to Priest Lake, a traditional navigable
water.
---------------------------------------------------------------------------

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 in
district court or on appeal.\36\ While the 2015 Clean Water Rule went
into effect in some parts of the country in August 2015, it was never
implemented nationwide due to multiple injunctions and later
rulemakings. The day before the 2015 Clean Water Rule's August 28, 2015
effective date, the U.S. District Court for the District of North
Dakota preliminarily enjoined the rule in the 13 States challenging the
rule in that court at the time. North Dakota v. EPA, 127 F. Supp. 3d
1047 (D.N.D. 2015); Order, North Dakota v. EPA, No. 3:15-cv-59, Dkt.
No. 79 (D.N.D. Sept. 4, 2015) (limiting scope of preliminary injunction
to the parties before the court). Shortly thereafter, on October 9,
2015, the Sixth Circuit issued an order staying the 2015 Clean Water
Rule nationwide and directing the agencies to resume implementing the
``familiar, if imperfect'' pre-2015 regulatory regime. In re EPA &
Dep't of Def. Final Rule, 803 F.3d 804, 806, 808 (6th Cir. 2015). In
2018, two other district courts issued geographically limited
preliminary injunctions against the 2015 Clean Water Rule. Georgia v.
Pruitt, 326 F. Supp. 3d 1356 (S.D. Ga. June 6, 2018) (barring
implementation of the 2015 Clean Water Rule in 11 States); Texas v.
EPA, No. 3:15-cv-162, 2018 WL 4518230 (S.D. Tex. Sept. 12, 2018) (same
as to three States). In 2019, prior to issuance of the 2019 Repeal
Rule, two courts remanded the 2015 Clean Water Rule to the agencies,
but neither court vacated the rule. See Texas v. EPA, 389 F. Supp. 3d
497 (S.D. Tex. 2019); Georgia v. Wheeler, 418 F. Supp. 3d 1336 (S.D.
Ga. 2019). As such, the 2015 Clean Water Rule remained in effect in
some parts of the country until the effective date of the 2019 Repeal
Rule.\37\
---------------------------------------------------------------------------

\36\ See, e.g., North Dakota v. EPA, No. 15-00059 (D.N.D.); Ohio
v. EPA, No. 15-02467 (S.D. Ohio) (dismissed as moot), No. 22-3292
(6th Cir.) (appeal stayed); Southeastern Legal Found. v. EPA, No.
15-02488 (N.D. Ga.).
\37\ In February 2018, the agencies issued a rule that added an
applicability date of February 6, 2020, to the 2015 Clean Water
Rule. 83 FR 5200 (February 6, 2018) (``Applicability Date Rule'').
The Applicability Date Rule was challenged in several district court
actions, and on August 16, 2018, the rule was vacated and enjoined
nationwide. See South Carolina Coastal Conservation League v.
Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018); see also Order, Puget
Soundkeeper All. v. Wheeler, No. 15-01342 (W.D. Wash. Nov. 26, 2018)
(vacating the Applicability Date Rule nationwide).
---------------------------------------------------------------------------

The 2019 Repeal Rule went into effect on December 23, 2019, and
though it has been the subject of legal challenges, no court has issued
an adverse ruling with respect to it. The 2019 Repeal Rule was thus in
effect until the effective date of the 2020 NWPR.
Multiple parties subsequently sought judicial review of the 2020
NWPR, which went into effect on June 22, 2020, in all jurisdictions
except Colorado, where the rule was subject to a preliminary injunction
issued by the U.S. District Court for the District of Colorado.
Colorado v. EPA, 445 F. Supp. 3d 1295 (D. Colo. 2020). The Tenth
Circuit later reversed the Colorado district court's order on appeal;
as a result, the 2020 NWPR went into effect in Colorado on April 26,
2021. Colorado v. EPA, 989 F.3d 874 (6th Cir. 2021); Colorado v. EPA,
No. 20-1238, ECF No. 010110512604 (Doc. 10825032) (10th Cir. Apr. 26,
2021).
On August 30, 2021, the U.S. District Court for the District of
Arizona remanded the 2020 NWPR and vacated the rule. Pascua Yaqui Tribe
v. EPA, 557 F. Supp. 3d 949 (D. Ariz. 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 956. On September 27, 2021,
the U.S. District Court for the District of New Mexico also issued an
order vacating and remanding the 2020 NWPR. Navajo Nation v. Regan, 563
F. Supp. 3d 1164 (D.N.M. 2021). In vacating the rule, the court agreed
with the reasoning of the Pascua Yaqui court that the 2020 NWPR suffers
from ``fundamental, substantive flaws that cannot be cured without
revising or replacing the NWPR's definition of ``waters of the United
States.''' Id. at 1168. In six additional cases, courts remanded the
2020 NWPR without vacatur or without addressing vacatur.\38\
---------------------------------------------------------------------------

\38\ Order, Pueblo of Laguna v. Regan, No. 1:21-cv-277, Dkt. 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-3005, Dkt. No. 271 (N.D. Cal. Sept. 16, 2021) (same); Order,
Waterkeeper All. v. Regan, No. 3:18-cv-3521, Dkt. No. 125 (N.D. Cal.
Sept. 16, 2021) (same); Order, Conservation Law Found. v. EPA, No.
1:20-cv-10820, Dkt. No. 122 (D. Mass. Sept. 1, 2021) (same); Order,
S.C. Coastal Conservation League v. Regan, No. 2:20-cv-1687, Dkt.
No. 147 (D.S.C. July 15, 2021) (remanding without vacating); Order,
Murray v. Wheeler, No. 1:19-cv-1498, Dkt. No. 46 (N.D.N.Y. Sept. 7,
2021) (same).
---------------------------------------------------------------------------

At this time, 14 cases challenging the 2015 Clean Water Rule, 2019
Repeal Rule, and/or the 2020 NWPR remain.\39\

[[Page 3017]]

All of these cases are administratively closed, inactive, or being held
in abeyance as of the date this final rule was signed. See ``History of
the Effects of Litigation over Recent Definitions of `Waters of the
United States''' in the docket for this rule for more information on
how litigation has impacted the status of the definition of ``waters of
the United States'' in effect at different times across the country.
---------------------------------------------------------------------------

\39\ Pascua Yaqui Tribe v. EPA, No. 4:20-cv-266 (D. Ariz.);
Colorado v. EPA, No. 1:20-cv-1461 (D. Colo.); Am. Exploration &
Mining Ass'n v. EPA, No. 1:16-cv-1279 (D.D.C.); Envtl. Integrity
Project v. Regan, No. 1:20-cv-1734 (D.D.C.); Se. Stormwater Ass'n v.
EPA, No. 4:15-cv-579 (N.D. Fla.); Se. Legal Found. v. EPA, No. 1:15-
cv-2488 (N.D. Ga.); Chesapeake Bay Found. v. Regan, Nos. 1:20-cv-
1063 & 1:20-cv-1064 (D. Md.); Navajo Nation v. Regan, No. 2:20-cv-
602 (D.N.M.); N.M. Cattle Growers' Ass'n v. EPA, No. 1:19-cv-988
(D.N.M.); North Dakota v. EPA, No. 3:15-cv-59 (D.N.D.); Ohio v. EPA,
No. 2:15-cv-2467 (S.D. Ohio) (dismissed as moot), No. 22-3292 (6th
Cir.) (appeal stayed); Or. Cattlemen's Ass'n v. EPA, No. 3:19-cv-564
(D. Or.); Puget Soundkeeper All. v. EPA, No. 2:20-cv-950 (W.D.
Wash.); Wash. Cattlemen's Ass'n v. EPA, No. 2:19-cv-569 (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.'' It
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, section 1 (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.
The order specified that ``[f]or 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. at section 2(a). 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 2020 NWPR. Id.
at section 7(a).
In conformance with Executive Order 13990, the agencies reviewed
the 2020 NWPR to determine its alignment with three principles laid out
in the Executive Order: science, climate change, and environmental
justice.
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 IV.B.3 of this preamble, the 2020 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 2020
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 and continue to be extensively impacted by climate change.
Climate change can have a variety of impacts on water resources in
particular. See section II.C of the Technical Support Document. 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). Other areas are experiencing more
extreme cycles of flood and drought (e.g., the Northern Great Plains).
Climate change can increase the intensity of precipitation events.
Runoff from more intense storms can impair water quality as pollutants
deposited on land wash into waterbodies. 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. In addition,
climate change affects streamflow characteristics, such as the
magnitude and timing of flows, in part due to changes in snowpack
magnitude and seasonality. Many historically dry areas are experiencing
less precipitation and an increased risk of drought associated with
more frequent and intense heatwaves, which cause streams and wetlands
to become drier, negatively affecting water supplies and water quality.
Heatwaves, associated drought, and the loss of surface and soil
moisture associated with longer dry seasons, lower streamflow, and
lower groundwater levels also affect the frequency, size, and duration
of wildfires, which alter water quality and impact wetlands and their
functions. A changing climate can also result in higher and more
variable temperatures in streams, killing fish and harming other
aquatic species that can live only in colder water. Finally, rising sea
levels associated with climate change are inundating low-lying streams
and wetlands and further contributing to coastal flooding and erosion.
Although water resources are vulnerable to climate change, when
their interconnectedness and extent are maintained, streams and
wetlands perform a variety of functions that contribute to climate
resiliency by mitigating negative effects on traditional navigable
waters, the territorial seas, and interstate waters. For instance,
wetlands inside and outside of floodplains store large volumes of
floodwaters, thereby reducing flood peaks and protecting downstream
watersheds. As natural filters, wetlands help purify and protect the
quality of other waterbodies, including drinking water supplies--a
function which is more important than ever as intense precipitation
events spurred on by a changing climate mobilize sediment, nutrients,
and other pollutants. Coastal wetlands help buffer storm surges, which
may increase in frequency or severity with sea-level rise and the
increasing size and intensity of coastal storms. Additionally, small
streams are particularly effective at retaining and attenuating
floodwaters. Biological communities and geomorphic processes in small
streams and wetlands break down leaves and other organic matter,
sequestering a portion of that carbon that could otherwise be released
into the atmosphere and continue to negatively affect water resources.
The 2020 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'' did not allow
the agencies flexibility to account for the effects of a rapidly
changing climate, including upward trending temperatures, increasing
storm events, and extended droughts (see section IV.B.3.c of this
preamble). The 2020 NWPR also categorically excluded ephemeral streams
and their adjacent wetlands from the definition of ``waters of the
United States.'' These exclusions, if in effect, would
disproportionately impact the arid West. Aquatic systems comprised
largely of ephemeral streams are increasingly critical to protecting

[[Page 3018]]

and maintaining the integrity of paragraph (a)(1) waters, for example
by contributing streamflow and organic matter to those larger waters.
This is especially true in the Southwestern United States, where
climate change is expanding the spatial extent of arid conditions and
increasing the risks of more extreme drought. Some portions of the arid
West are experiencing altered monsoon seasons that have fewer but more
intense storms that contribute to so-called ``flashy'' stream hydrology
(i.e., higher runoff volume, leading to more rapidly rising and falling
streamflow over shorter periods of time).
Environmental Justice: While impacts on communities with
environmental justice concerns are not a basis for determining the
scope of the definition of ``waters of the United States,'' the
agencies recognize that the burdens of environmental pollution and
climate change often fall disproportionately on communities with
environmental justice concerns (e.g., minority (Indigenous peoples and/
or people of color) and low-income populations, as specified in
Executive Order 12898). Numerous groups have raised concerns that the
2020 NWPR had disproportionate impacts on Tribes and Indigenous
communities.\40\ The 2020 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 Tribal or State law (see section IV.B.3.d of this
preamble). If the 2020 NWPR were in effect, without regulations
governing discharges of pollutants into previously jurisdictional
waters, communities with environmental justice concerns where these
waters are located could experience increased water pollution and
impacts from associated increases in health risk.
---------------------------------------------------------------------------

\40\ 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 [``waters of the United States''] 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
(stating that 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 IV.B.3.d of this
preamble and Technical Support Document section II.B.D.
---------------------------------------------------------------------------

Further, the 2020 NWPR's categorical exclusion of ephemeral streams
from jurisdiction (and any wetlands adjacent to those streams)
disproportionately impacted Tribes and communities with environmental
justice concerns in the arid West. Many Tribes lack the authority and
resources to regulate waters within their boundaries, and they may also
be affected by pollution from adjacent jurisdictions.\41\ In addition,
under the 2020 NWPR, increased water pollution due to the elimination
of Federal protection over ephemeral streams and their adjacent
wetlands could lead to health impacts and the reduction of clean water
needed for traditional agricultural, cultural, and subsistence uses for
communities with environmental justice concerns.\42\ Therefore, if in
effect, the 2020 NWPR could disproportionately expose Tribes to
increased pollution and health risks.
---------------------------------------------------------------------------

\41\ See supra note 40.
\42\ See, e.g., comments submitted by Navajo Nation at 3
(February 7, 2022) (Docket ID No. EPA-HQ-OW-2021-0602-0581), <a href="https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0581">https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0581</a> (``Nor did the
NWPR consider environmental justice concerns, including that tribes,
among other environmental justice communities, `may experience
increased water pollution and impacts from associated increases in
health risk.' '' (citation omitted)); comments submitted by Amigos
Bravos et al. at 2 (February 7, 2022) (Docket ID No. EPA-HQ-OW-2021-
0602-0600), <a href="https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0600">https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0600</a> (``Many New Mexican farmers of color depend upon clean water
flowing from the ephemeral drainages in headwater systems to water
their crops and livestock. New Mexico acequias (community irrigation
ditches) help to convey and distribute surface water to tens of
thousands of New Mexican acequia families and over 100,000 acres of
irrigable lands, primarily for traditional agricultural and cultural
uses. New Mexico's surface waters are the lifeblood of numerous
acequias, sustaining and enriching centuries-old acequias and
farming and ranching traditions which depend upon clean water.
Protecting clean water in New Mexico is intricately tied to
environmental justice.'').
---------------------------------------------------------------------------

After completing the review and reconsidering the record for the
2020 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 were the text, structure, and history
of the Clean Water Act; relevant Supreme Court case law; the current
and future harms to the chemical, physical, and biological integrity of
the nation's waters due to implementation of the 2020 NWPR; concerns
raised by co-regulators and stakeholders about the 2020 NWPR, including
implementation-related issues; the principles outlined in the Executive
Order; and issues raised in ongoing litigation challenging the 2020
NWPR. EPA and the Army concluded that the 2020 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 it threatened the loss or degradation of waters critical to the
protection of traditional navigable waters, the territorial seas, and
interstate waters, among other concerns.

C. Summary of Co-Regulator Engagement and Stakeholder Outreach

EPA and the Army held a series of stakeholder meetings during the
agencies' review of the 2020 NWPR, including specific meetings in May
2021 with industry, environmental organizations, agricultural
organizations, and State associations. On July 30, 2021, the agencies
signed a Federal Register document that announced a schedule for
initial public meetings to hear from interested stakeholders on their
perspectives on defining ``waters of the United States'' and
implementing 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 from
August 4, 2021, to 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 No. EPA-HQ-OW-2021-0328). Consistent with
the August 4, 2021, Federal Register publication, the agencies held six
public meeting webinars on August 18, August 23, August 25
(specifically for small entities), August 26, August 31, and September
2, 2021.
The agencies also engaged State and local governments over a 60-day
federalism consultation period during development of the proposed rule,
beginning with an initial federalism consultation meeting on August 5,
2021, and concluding on October 4, 2021. A total of thirty-eight
letters were submitted to the agencies as part of the federalism
consultation process from State and local government agencies,
intergovernmental associations, and State-level associations. 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. Additional
information about the federalism consultation can be found in section
V.E of this preamble and the Summary

[[Page 3019]]

Report of Federalism Consultation, available in the docket for this
rule.
The agencies initiated a Tribal consultation and coordination
process during development of the proposed rule which was conducted
over a 66-day period from July 30, 2021, until October 4, 2021,
including two consultation kick-off webinars. The agencies received
consultation comment letters from 27 Tribes and three Tribal
organizations and held three leader-to-leader consultation meetings and
four staff-level meetings with Tribes at their request. 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. Additional information about Tribal consultation
and engagement can be found in section V.F of this preamble and the
Summary of Tribal Consultation and Coordination, which is available in
the docket for this rule.
The agencies signed a proposed rule defining ``waters of the United
States'' on November 18, 2021. On December 7, 2021, the agencies
published the proposed rulemaking in the Federal Register, 86 FR 69372,
which initiated a 60-day public comment period that lasted through
February 7, 2022. EPA and Army held three virtual public hearings on
January 11, 13, and 18, 2022. The Office of Advocacy of the U.S. Small
Business Administration hosted EPA and Army staff in January 2022 to
discuss the proposed rule with small entities at its Small Business
Environmental Roundtables. The agencies met with small agricultural
interests and their representatives for a roundtable on January 7,
2022, and met with other small entities on January 10, 2022. The
agencies also engaged with State and local governments during the
public comment period, including through two virtual roundtables on
January 24 and 27, 2022. The agencies continued to engage with Tribes
during the public comment period. On January 20, 2022, the agencies
hosted a Tribal virtual roundtable.
In developing this rule, the agencies reviewed and considered
approximately 114,000 comments received on the proposed rulemaking from
a broad spectrum of interested parties. Commenters provided a wide
range of feedback on the proposal, including: the legal basis for the
proposed rule; the agencies' proposed treatment of categories of
jurisdictional waters and those features that would not be
jurisdictional; the Economic Analysis and Technical Support Document
for the proposed rule; and the need for a clear and implementable rule
that is easy for the public to understand. The agencies discuss
comments received and their responses in the applicable sections of the
preamble to this rule. A complete response to comments document is
available in the docket for this rule (Docket ID No. EPA-HQ-OW-2021-
0602).
The agencies also engaged with EPA's Science Advisory Board (SAB)
on several occasions during the development of this rule. The SAB was
established in 1978 by the Environmental Research, Development, and
Demonstration Authorization Act (ERDDAA), to provide independent
scientific and technical advice to the EPA Administrator on the
technical basis for agency positions and regulations.
On January 28, 2022, during the public comment period, the agencies
met with the SAB Work Group for Review of Science Supporting EPA
Decisions to explain the proposed rule, including its basis, and to
address the SAB Work Group's initial questions. On February 7, 2022,
the SAB Work Group signed a memorandum recommending that the Chartered
SAB should review the adequacy of the science supporting the proposed
rule. SAB Memorandum: Recommendations of the SAB Work Group for Review
of Science Supporting EPA Decisions Regarding Two Planned EPA
Regulatory Actions (February 7, 2022). On March 7, 2022, during the
public meeting of the Chartered SAB, the Chartered SAB unanimously
voted to review the scientific and technical basis of the proposed
rule. The SAB formed a Work Group of its chartered members which issued
a draft review on May 9, 2022, and the Chartered SAB held public
meetings on the matter on May 31 and June 2, 2022. The SAB issued their
final review on July 5, 2022 (EPA-SAB-22-005, hereinafter, ``2022 SAB
Review''). All materials related to the SAB's review are available in
the docket for this rule and on the SAB's website.
The SAB's review of the proposed rule was overall supportive of the
science underpinning the proposed rule, including the Technical Support
Document, and the discussion of shallow subsurface flow. The SAB made
some recommendations on the discussion of climate change. The SAB's
review was also generally favorable towards the approaches taken in the
Economic Analysis supporting the proposed rule. The SAB made
recommendations for improvement of the Economic Analysis, particularly
regarding the environmental federalism approach and the continued non-
monetization of certain benefits. The SAB indicated that the agencies'
plans for expanding the environmental justice analysis for this rule
were appropriate and provided recommendations for improving and
clarifying the analysis. A memorandum summarizing the agencies'
interactions with the SAB and the SAB's review of the proposed rule is
available in the docket for this rule.

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

A. Basis for This Rule

In this rule, the agencies are exercising their 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 the text of the relevant provisions of
the Clean Water Act and the statute as a whole, the scientific record,
relevant Supreme Court precedent, and the agencies' experience and
technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulations defining ``waters of the United
States.'' \43\ The agencies construe the term ``waters of the United
States'' to mean: (1) traditional navigable waters, the territorial
seas, and interstate waters (``paragraph (a)(1) waters''); (2)
impoundments of ``waters of the United States'' (``paragraph (a)(2)
impoundments''); (3) tributaries to traditional navigable waters, the
territorial seas, interstate waters, or paragraph (a)(2) impoundments
when the tributaries meet either the relatively permanent standard or
the significant nexus standard (``jurisdictional tributaries''); (4)
wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent to and
with a continuous surface connection to relatively permanent paragraph
(a)(2) impoundments or jurisdictional tributaries when the
jurisdictional tributaries meet the relatively permanent standard; and
wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional
tributaries when the wetlands meet the significant nexus standard
(``jurisdictional adjacent wetlands'');

[[Page 3020]]

and (5) intrastate lakes and ponds, streams, or wetlands not identified
in paragraphs (a)(1) through (4) that meet either the relatively
permanent standard or the significant nexus standard (``paragraph
(a)(5) waters''). This rule also contains, at paragraph (b), the
longstanding exclusions in the 1986 regulations, as well as additional
exclusions based on well-established practice, from the definition of
``waters of the United States'' and, at paragraph (c), definitions for
terms used in this rule.
---------------------------------------------------------------------------

\43\ For brevity, the agencies may refer to the considerations
that formed the basis of the agencies' interpretation of ``waters of
the United States'' in the final rule as ``the law, the science, and
agency expertise.'' References to the agencies' consideration of
``the law, the science, and agency expertise'' throughout this
preamble are intended to encompass the agencies' consideration of
the text of the relevant provisions of the Clean Water Act and the
statute as a whole, the scientific record, relevant Supreme Court
decisions, and the agencies' experience and technical expertise
implementing the pre-2015 regulatory regime.
---------------------------------------------------------------------------

This 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 informed by the best
available science concerning the functions provided by upstream
tributaries, adjacent wetlands, and paragraph (a)(5) waters to restore
and maintain the water quality of paragraph (a)(1) waters. In
developing the rule, the agencies also considered the text of the
relevant statutory provisions of the Clean Water Act and the statute as
a whole, relevant Supreme Court case law, and the agencies' experience
and technical expertise after more than 45 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 decisions in Riverside Bayview, SWANCC, and Rapanos
collectively.
This construction also reflects consideration of provisions of the
Clean Water Act referencing the role of the States. Section 101(b)
provides 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.'' The provisions in this rule reflect
consideration of the comprehensive nature and objective of the Clean
Water Act and also avoid assertions of jurisdiction that raise
federalism concerns. Determining where to draw the boundaries of
Federal jurisdiction to ensure that the agencies advance Congress's
objective while preserving and protecting the responsibilities and
rights of the States is assigned by Congress to the agencies. This
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,
the territorial seas, and interstate waters, Clean Water Act programs
will apply to ensure that those downstream waters have a baseline of
protection established by Federal law. Where they do not, Tribes and
States have authority. These limitations are based on the agencies'
conclusion that the significant nexus standard is consistent with the
statutory text and legislative history, advances the objective of the
Clean Water Act, is informed by the scientific record and Supreme Court
case law, and appropriately considers the policies of the Act, and
that, while the relatively permanent standard, standing alone,
identifies only a subset of the ``waters of the United States,''
including this standard in the final rule facilitates ease of
implementation. In addition, this rule reflects consideration of the
agencies' experience and expertise, as well as updates in
implementation tools and resources, and its terms are generally
familiar and implementable.
For all these reasons, this rule will achieve the agencies' goals
of effectively and durably protecting the quality of the nation's
waters. The effectiveness of this rule is based, in part, on the
familiarity of the regulatory framework to the agencies and
stakeholders, with an array of readily available tools and resources.
This rule also is durable because it is founded on the familiar
framework of the longstanding 1986 regulations, amended to reflect the
agencies' interpretation of appropriate limitations on the geographic
scope of the Clean Water Act in light of the law, the science, and
agency expertise. This rule also reflects the agencies' consideration
of the extensive public comments. This rule protects 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 Tribal and State water quality
certification programs.
1. The Agencies Are Exercising the Authority Granted by Congress To
Define ``Waters of the United States'' Under the Clean Water Act
The agencies are exercising the authority granted to them by
Congress in the Clean Water Act to construe the key term ``navigable
waters,'' which Congress broadly defined to mean ``the waters of the
United States, including the territorial seas.'' 33 U.S.C. 1362(7)
(Clean Water Act section 502(7)). As explained herein, the text of the
statute, including in particular sections 501 and 502(7), and
congressional intent provide that delegation of authority. And the
Supreme Court has affirmed the conclusion that the agencies have the
authority to define the bounds of ``waters of the United States.'' In
this rule, the agencies are using the traditional tools of statutory
construction to exercise their delegated authority. Further, the rule
is founded upon the longstanding 1986 regulations, familiar to Congress
and the Court, while incorporating important limitations based on the
text of the statute. Finally, it is well established that 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.
Congress's intent to delegate authority to the agencies to construe
the term ``navigable waters'' and its definition in section 502(7),
``the waters of the United States, including the territorial seas,'' is
clear from this text in the Clean Water Act. First, Congress
established a broad definition of a term foundational to advancing the
Act's clear objective that requires additional interpretation to
implement that term by the expert agencies charged with administering
the statute. Second, Congress explicitly delegated such authority to
EPA: ``The Administrator is authorized to prescribe such regulations as
are necessary to carry out his functions under this Act.'' 33 U.S.C.
1361 (Clean Water Act section 501). Clearly, interpreting this key term
through regulation is necessary to carry out the functions of the Act.
Congressional intent affirms this delegation. The breadth of the
definition of ``navigable waters'' reflects a deliberate choice by
Congress to both enact a statute with a broad scope of waters protected
by Federal law and to delegate the authority to interpret the
specialized term and its definition to the expert agencies. The
relevant House bill would have defined ``navigable waters'' as the
``navigable waters of the United States, including the territorial
seas.'' H.R. Rep. No. 911, 92d Cong., 2d Sess. 356 (1972) (emphasis
omitted). But the House was concerned that the definition might be
given an unduly narrow interpretation. The House Report observed: ``One
term that the Committee was reluctant to define was the term `navigable
waters.' The reluctance was based on the fear that any interpretation
would be read narrowly. However, this is not the Committee's intent.
The Committee fully intends that the term `navigable waters' be given
the broadest possible constitutional interpretation unencumbered by
agency determinations which have been made

[[Page 3021]]

or may be made for administrative purposes.'' H.R. Rep. No. 92-911, at
131 (1972). The Senate Report also expressed disapproval of the narrow
construction by the Corps of the scope of waters protected under prior
water protection statutes, stating ``[t]hrough a narrow interpretation
of the definition of interstate waters the implementation [of the] 1965
Act was severely limited. Water moves in hydrologic cycles and it is
essential that discharge of pollutants be controlled at the source.''
S. Rep. No. 92-414, at 77 (1971). Thus, in conference the word
``navigable'' was deleted from that definition, and the conference
report again urged that the term ``be given the broadest possible
constitutional interpretation unencumbered by agency determinations
which have been made or may be made for administrative purposes.'' S.
Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972). Congress thus
intended the agencies to which it granted authority to implement the
Clean Water Act to interpret the scope of the definition of ``navigable
waters'' consistent with Congress's intent and objective in enacting
the Act.
The Supreme Court has also affirmed the conclusion that it is the
agencies' role to interpret the term ``waters of the United States.''
As the 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.
In addition, any ambiguity in Congress's terms in Clean Water Act
section 502(7) further underscores the role of the agencies in
interpreting the statutory language. The Riverside Bayview Court
deferred to and upheld the agencies' interpretation of the Clean Water
Act to protect wetlands adjacent to navigable-in-fact bodies of water,
stating ``[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
(citations omitted). All nine Justices in Rapanos again recognized that
there was ambiguity in the terms of the Clean Water Act. 547 U.S. at
752, 758, 780, 796, 811-12. In concurring with the Rapanos plurality
opinion, the Chief Justice explained that, given the ``broad, somewhat
ambiguous, but nonetheless clearly limiting terms Congress employed in
the Clean Water Act, the Corps and the EPA would have enjoyed plenty of
room to operate'' if they had addressed the relevant interpretive
questions through rulemaking. 547 U.S. at 758 (Roberts, C.J.,
concurring). The Chief Justice emphasized the breadth of the agencies'
discretion in defining ``waters of the United States'' through
rulemaking; indeed, the agencies' interpretations under the Clean Water
Act, Chief Justice Roberts emphasized, are ``afforded generous leeway
by the courts.'' Id. at 758.
In exercising their authority to interpret the statute in this
rule, the agencies are ``employing the traditional tools of statutory
interpretation,'' American Hospital Association v. Becerra, 142 S. Ct.
1896, 1906 (2022) (per curiam), beginning with ``the text and structure
of the statute,'' id. at 1904, as well as ``with reference to the
statutory context, `structure, history, and purpose,' '' Abramski v.
United States, 573 U.S. 169, 179 (2014) (citation omitted). As
discussed further in this section IV.A of the preamble, the agencies
have used additional tools of statutory construction, including the
statutory history, the statute as a whole, the objective of the Clean
Water Act, and the legislative history, which clears up ambiguity, in
construing the Act. See Bostock v. Clayton County, Georgia, 140 S. Ct.
1731, 1749 (2020) (discussing use of legislative history by the Supreme
Court ``when interpreting ambiguous statutory language'' (emphasis in
original) and noting that ``[l]egislative history, for those who take
it into account, is meant to clear up ambiguity, not create it''
(citing Milner v. Department of Navy, 562 U.S. 562, 574 (2011))).
The agencies have also properly brought to bear their expertise and
experience in construing the Clean Water Act. As the Supreme Court
concluded in Riverside Bayview, ``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. In addition, the agencies have more than 45 years of experience
implementing the longstanding pre-2015 regulations defining ``waters of
the United States,'' including more than a decade of implementing those
regulations consistent with the Supreme Court's decisions in Riverside
Bayview, SWANCC, and Rapanos, and have concluded this rule is also
consistent with the ``longstanding practice of [the agencies] in
implementing the relevant statutory authorities.'' Biden v. Missouri,
142 S. Ct. 647, 652 (2022). Finally, Congress is aware of the agencies'
longstanding interpretation of ``waters of the United States'' and has
not acted to limit the agencies' interpretation, but rather has
incorporated aspects of the agencies' regulatory definition into the
statute. See section IV.A.2.b of this preamble.
Further, 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 IV.B.3 of this preamble, the agencies have reviewed
the 2020 NWPR and determined that the rule should be replaced. This
rule properly considers the objective of the Clean Water Act, is
consistent with the text and structure of the Act, informed by relevant
Supreme Court precedent, and reflects the record before the agencies,
including consideration of the best available science, as well as the
agencies' expertise and experience implementing the pre-2015 regulatory
regime.
To be clear, in this rule the agencies are exercising the authority
granted to them by Congress to construe and implement the Clean Water
Act and to interpret an ambiguous term and its statutory definition.
Therefore, while the agencies' interpretation of the statute is
informed by Supreme Court decisions, including Rapanos, it is not an
interpretation of the multiple opinions in Rapanos, nor is it based on
an application of the Supreme Court's principles to derive a governing
rule of law from a decision of the Court in a case such as Rapanos
where ``no opinion commands a majority.'' Rapanos, 547 U.S. at 758
(Roberts, C.J., concurring) (citing Marks v. United States, 430 U.S.
188, 193 (1977) (``Marks'')). Rather, this rule codifies the agencies'
interpretation of ``navigable waters'' informed by the text of the
relevant provisions of the Clean Water

[[Page 3022]]

Act and the statute as a whole, as well as the scientific record,
relevant Supreme Court case law, input from public comment, and the
agencies' experience and technical expertise after more than 45 years
of implementing the longstanding pre-2015 regulations defining ``waters
of the United States,'' including more than a decade of implementing
the regulations after Rapanos. Based on these considerations, the
agencies have concluded that the significant nexus standard in this
rule is the best interpretation of section 502(7) of the Clean Water
Act.
2. This Rule Advances the Objective of the Clean Water Act
This rule is grounded in the Clean Water Act's objective ``to
restore and maintain the chemical, physical, and biological integrity
of the Nation's waters,'' 33 U.S.C. 1251(a). This rule advances the
Clean Water 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, the territorial
seas, and interstate waters; and waters that meet the relatively
permanent standard. The limitations in the definition ensure that the
agencies will not assert jurisdiction where the effect on traditional
navigable waters, the territorial seas, and interstate waters--i.e.,
the paragraph (a)(1) waters--is not significant. This rule is informed
by the best available science on the functions provided by upstream
waters, including wetlands, to restore and maintain the integrity of
paragraph (a)(1) waters because the rule recognizes that upstream
waters can have significant effects on such waters and enables the
agencies to make science-informed decisions about such effects. This
rule thus defines ``waters of the United States'' to include the
familiar types of waters in the 1986 regulations--traditional navigable
waters, interstate waters, impoundments, tributaries, the territorial
seas, adjacent wetlands, and waters that do not fall within the other
categories--while adding, 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., Gen. Dynamics Land Sys., Inc. v. Cline,
540 U.S. 581 (2004). When considering the scope of the Clean Water Act,
the Supreme Court often begins with the objective of the Act and
examines the relevant question through that lens. 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.'' Here,
Congress made its purpose crystal clear by stating its objective in the
first section of the statute. 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 adequately
consider the Clean Water 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 Clean Water Act, supported by
legislative history and Supreme Court decisions, make clear--protecting
the chemical, physical, and biological integrity of the nation's waters
means protecting their water quality.
The Clean Water 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. Section 102 of the Clean
Water Act requires the Administrator to, after consultation, develop
comprehensive programs for preventing, reducing, or eliminating the
pollution of the navigable waters.
One of the Clean Water Act's principal tools in protecting 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. Other substantive
provisions of the Clean Water Act that use the term ``navigable
waters'' and are designed to meet the statutory objective include the
section 402 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 401Tribal and State water quality
certification process. Each of these programs is designed to protect
water quality and, therefore, further the objective of the Clean Water
Act. The question of Federal jurisdiction is foundational to most
programs administered under the Clean Water Act. See section III.A.1 of
this preamble.\44\
---------------------------------------------------------------------------

\44\ Additional provisions are also designed to achieve the
Clean Water 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 Clean Water
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 (quoting 33 U.S.C. 1251(a)).\45\ Thus, in accordance with Maui, in
interpreting the ``specific definitional language'' of the Clean Water
Act, the agencies must ensure that they are advancing the statutory
purposes Congress sought to achieve.
---------------------------------------------------------------------------

\45\ 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 plain language of the objective of the
Clean Water Act when interpreting the

[[Page 3023]]

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 Clean Water Act's principal tools for
achieving the objective and then identified the definition of ``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 Clean Water 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 Clean
Water 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 Clean Water 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 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, 101 (1992) (reviewing the scope of EPA's authority to issue a
permit affecting a downstream State and finding that the Clean Water
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., on the quality of those waters.
The Supreme Court in Riverside Bayview explained the inherent link
between the Clean Water 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).
The statutory structure further confirms that ``waters of the
United States'' must be interpreted to account for the Clean Water
Act's broader objective of promoting water quality. The Act is replete
with 90 references to water quality--from the goals set forth to meet
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 at 47 (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 objective of the Clean Water Act is not the only
factor relevant to determining the scope of the Act. Rather, in light
of the precise language of the definitions in the Act, the importance
of water quality to the statute as a whole, and Supreme Court decisions
affirming that consideration of the objective of the Act is of primary
importance in defining its scope, the agencies conclude that a rule
defining ``waters of the United States'' must substantively consider
the effects of a revised definition on the integrity of the nation's
waters and advance the protection of the quality of those waters. As
discussed further below, this rule

[[Page 3024]]

properly considers and advances the objective of the Clean Water Act
because the science conclusively demonstrates that upstream waters,
including wetlands, can affect the quality of downstream waters and
ensures application of Clean Water Act water quality programs to
upstream waters when their effect on downstream traditional navigable
waters, territorial seas, and interstate waters is significant.
b. This Rule Is Founded on the 1986 Regulations, Which Advance the
Objective of the Clean Water 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. In this rule, the agencies are exercising
their authority to construe ``waters of the United States'' to mean the
waters defined by the familiar 1986 regulations, with amendments to
reflect the agencies' construction of limitations on the scope of
``waters of the United States,'' based on the law, the science, and
agency expertise. Of particular import, the agencies are limiting the
scope of the longstanding regulatory categories by adding a requirement
that tributaries, adjacent wetlands (that are adjacent to waters other
than paragraph (a)(1) waters), and lakes and ponds, streams, and
wetlands that are not identified in paragraphs (a)(1) through (4) meet
either the relatively permanent standard or the significant nexus
standard as established in this rule. The agencies also considered the
extensive public comment on the proposed rule in developing this final
rule.
The best available science 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 of the preamble
describes the agencies' historic rationale for the 1986 regulation and
its regulatory categories and describes the latest science that
supports the conclusion that the categories of waters identified in the
1986 regulations provide functions that restore and maintain the
chemical, physical, and biological integrity of traditional navigable
waters, the territorial seas, and interstate waters.
The agencies' historic regulations, eventually promulgated and
referred to as the 1986 regulations, were based on the agencies'
construction of the scope of the Clean Water Act and their 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, the territorial seas, and interstate
waters (i.e., the paragraph (a)(1) waters). For more than 45 years, the
agencies 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.'' See, e.g., 42 FR
37122, 37123 (July 19, 1977). The agencies have also long 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 Clean Water
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.
And, 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 (July 19, 1977).
Thus, this rule includes the categories long identified by the
agencies as affecting the water quality of paragraph (a)(1) waters,
including tributaries, adjacent wetlands, impoundments, and waters that
do not fall within any of the more specific categories of the
definition (a category that has been modified and codified in this rule
as paragraph (a)(5) waters).
As discussed below, however, while these longstanding categories
continue to provide a reasonable foundation for this rule, this rule
codifies limitations on these categories based on the agencies'
interpretation of the Clean Water Act. To be clear, this rule does not
automatically include all tributaries, adjacent wetlands, and waters
assessed under paragraph (a)(5) as jurisdictional waters. Rather, the
agencies conclude that utilizing these longstanding, familiar
categories of waters, subject to the relatively permanent or
significant nexus jurisdictional standards, is consistent with the best
available science because the significant nexus standard established in
this rule is based on an assessment of the effects of waters in these
categories on the water quality of paragraph (a)(1) waters. In
addition, the agencies believe that waters that meet the relatively
permanent standard individually and cumulatively provide many functions
that benefit the integrity of paragraph (a)(1) waters. See section
IV.A.3.a.ii of this preamble. This rule does categorically include
wetlands adjacent to paragraph (a)(1) waters. Riverside Bayview, 474
U.S. at 135; see also Rapanos, 547 U.S. at 780 (Kennedy, J., concurring
in the judgment) (``As applied to wetlands adjacent to navigable-in-
fact waters, the Corps' conclusive standard for jurisdiction rests upon
a reasonable inference of ecologic interconnection, and the assertion
of jurisdiction for those wetlands is sustainable under the Act by
showing adjacency alone. That is the holding of Riverside Bayview.'').
This rule enables the agencies to make science-informed determinations
of whether or not a water that falls within these categories meets
either jurisdictional standard and therefore satisfies the definition
of ``waters of the United States'' on a case-specific basis. For a
detailed discussion of implementation of adjacent wetlands under this
rule, see section IV.A.4 of this preamble; for additional guidance to
landowners on jurisdictional determinations, see section IV.C.10 of
this preamble.
i. The Agencies' Longstanding Interpretation That Tributaries Can Be
``Waters of the United States'' Is a Reasonable Foundation for This
Rule
The agencies have long construed the Clean Water Act to include
tributaries as ``waters of the United States.'' In 1973, EPA's General
Counsel issued an opinion upon which the agency's subsequent rulemaking
was based that tributaries were included within the term ``navigable
waters,'' finding that ``this broad interpretation is well grounded in
the language of the statute and in the legislative history, and
comports with the expressed intent of Congress to `restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters.' '' Envtl.

[[Page 3025]]

Prot. Agency, Off. Gen. Counsel, Meaning of the Term ``Navigable
Waters'' (February 13, 1973), 1973 WL 21937. 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.'' 42 FR 37123 (July
19, 1977).
The conclusion that the Clean Water Act includes tributaries is
consistent with the structure and history of the statute. The Clean
Water Act was not ``merely another law `touching interstate waters,' ''
but rather ``a `total restructuring' and `complete rewriting' of [then]
existing water pollution legislation.'' City of Milwaukee v. Illinois,
451 U.S. 304, 317 (1981) (citations omitted). Congress concluded that
prior measures had been ``inadequate in every vital aspect,'' and it
enacted a wholly new scheme of point-source-based pollution controls.
EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200,
203 (1976) (citation omitted). The Clean Water Act thus reflected
Congress's fundamental dissatisfaction with prior law.
Even before it enacted the 1972 Clean Water Act amendments,
Congress had recognized, and had acted to address, the danger that
pollution of tributaries may impair the quality of traditional
navigable waters downstream. Prior to those amendments, the Federal
Water Pollution Control Act established procedures for abatement of
``(t)he pollution of interstate or navigable waters in or adjacent to
any State or States (whether the matter causing or contributing to such
pollution is discharged directly into such waters or reaches such
waters after discharge into a tributary of such waters).'' 33 U.S.C.
1160(a) (1970) (emphasis added). Under specified circumstances, the
Attorney General was authorized to bring suit on behalf of the United
States ``to secure abatement of the pollution.'' 33 U.S.C. 1160(g)
(1970). Indeed, the regulation of tributaries as part and parcel of a
Federal effort to protect traditional navigable waters has been a
feature of Federal law for over 100 years. Since its enactment as
section 13 of the Rivers and Harbors Appropriation Act of 1899 (RHA),
Ch. 425, section 13, 30 stat. 1152, the Refuse Act of 1899 has
prohibited the discharge of refuse material into any ``navigable water
of the United States or into any tributary of any navigable water of
the United States,'' as well as depositing refuse material ``on the
bank of any navigable water, or on the bank of any tributary of any
navigable water.'' 33 U.S.C. 407. That provision does not limit the
covered ``tributar[ies]'' to those that are themselves used or
susceptible to use for navigation.
Thus, well over a hundred years ago, Congress understood the
necessity of protecting tributaries in order to protect traditional
navigable waters and recognized its authority over those tributaries,
and in the Clean Water Act Congress sought to expand protection of the
nation's waters. It would therefore be unreasonable for the agencies to
construe the Clean Water Act, with its comprehensive focus on limiting
discharges of pollutants to ``waters of the United States'' and
restoring and maintaining the chemical, physical, and biological
integrity of the nation's waters, to exclude tributaries to traditional
navigable waters, the territorial seas, and interstate waters.
Section 404(g) of the Clean Water Act further supports the
agencies' interpretation that the Act covers such tributaries. Section
404(g) authorizes States to administer their own permit programs over
certain waters. Section 404(g)(1) provides, in relevant part, that any
State ``desiring to administer its own individual and general permit
program for the discharge of dredged or fill material into the
navigable waters (other than those waters which are presently used, or
are susceptible to use in their natural condition or by reasonable
improvement as a means to transport interstate or foreign commerce . .
. including wetlands adjacent thereto)'' may submit a description of
this proposed program to EPA. 33 U.S.C. 1344(g)(1).\46\ Section
404(g)(1)'s reference to navigable waters ``other than those waters
used or susceptible to use'' for transporting commerce and their
adjacent wetlands plainly indicates that the Clean Water Act covers
more than the waters in this parenthetical.
---------------------------------------------------------------------------

\46\ The Corps retains permitting authority over the ``waters of
the United States'' that States cannot or do not assume.
---------------------------------------------------------------------------

The Supreme Court has also recognized the relevance of section
404(g) to interpreting the scope of Clean Water Act jurisdiction. In
Riverside Bayview, while the Supreme Court stated that section 404(g)
``does not conclusively determine the construction to be placed on the
use of the term `waters' elsewhere in the Act,'' the Court went on to
say with respect to the significance of section 404(g) that ``the
various provisions of the Act should be read in pari materia [i.e.,
construed together],'' ultimately concluding that section 404(g)
``suggest[s] strongly that the term `waters' as used in the Act''
supports the Corps' interpretation of ``waters of the United States''
to include wetlands. 474 U.S. at 138 n.11 (emphasis added). While the
Court in SWANCC did not read section 404(g) to definitively answer the
question of the scope of ``waters of the United States,'' the Court
offered a hypothesis that ``Congress simply wanted to include all
waters adjacent to `navigable waters,' such as non-navigable
tributaries and streams.'' 531 U.S. at 171. And all members of the
Supreme Court agreed with the observation of the Rapanos plurality that
the 1977 Clean Water Act's authorization for States to administer the
section 404 program for ``navigable waters . . . other than'' those
used or suitable for use ``to transport interstate or foreign
commerce,'' 547 U.S. at 731 (quoting 33 U.S.C. 1344(g)(1)), ``shows
that the Act's term `navigable waters' includes something more than
traditional navigable waters.'' Id. In light of the history of the Act
as well as Congress's clear understanding of the relationship between
tributaries and traditional navigable waters, tributaries--whether or
not they themselves are traditional navigable waters--are an obvious
candidate for the Clean Water Act's broader coverage. As noted above,
even long before 1972, Congress had addressed the danger that pollution
of tributaries may impair the quality of traditional navigable waters
downstream, and it is implausible to suppose that Congress's landmark
1972 legislation actually reduced the scope of the prior statutes.
Construing ``waters of the United States'' to include tributaries
of traditional navigable waters, the territorial seas, interstate
waters, or impoundments of ``waters of the United States'' is also
consistent with the discussion of tributaries in the Clean Water 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. 92-414, at 77
(1971), as reprinted in 1972 U.S.C.C.A.N. 3668, 3742 (emphasis added).
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).
In addition, this rule and the 1986 regulations construe the
statute not to

[[Page 3026]]

distinguish between human-made or human-altered tributaries and natural
tributaries. This construction is consistent with the text of the
statute and science. Most obviously, such a distinction would render
superfluous section 404's exception for ``the discharge of dredged or
fill material . . . for the . . . maintenance of drainage ditches,''
section 404(f)(1)(C), because if human-made or human-altered
tributaries were not included, drainage ditches would not be covered in
the first place. More broadly, many of the nation's urban waterways are
channelized, and the Clean Water Act has long been understood to
encompass ``natural, modified, or constructed'' tributaries of other
covered waters. 80 FR 37078 (June 29, 2015). For example, many of the
streams in Houston, Texas, have been channelized, culverted, or
otherwise altered over time, in part for flood control purposes, and
the Clean Water Act protects many of these human-modified streams.
Removing the Clean Water Act's protections for these tributaries could
increase contributions of nutrients, sediment, and other pollutants
downstream to paragraph (a)(1) waters, such as the Trinity River. Such
an approach would also affect millions of miles of other such
tributaries, undermining the integrity of paragraph (a)(1) waters
throughout the country.
Moreover, the Clean Water Act's specialized definition of
``navigable waters'' does not turn on any such distinctions between
natural and human-made or -altered tributaries, which have no bearing
on a tributary's capacity to carry water (and pollutants) to
traditional navigable waters, the territorial seas, or interstate
waters. See, e.g., Technical Support Document section III.A.iv
(explaining that manmade ditches ``perform many of the same functions
as natural tributaries,'' including ``convey[ing] water that carries
nutrients, pollutants, and other constituents, both good and bad, to
downstream traditional navigable waters, the territorial seas, and
interstate waters''). Such a distinction would also be inconsistent
with Rapanos. That decision addressed consolidated cases involving
wetlands connected to traditional navigable waters by ``ditches or man-
made drains.'' Rapanos, 547 U.S. at 729 (plurality opinion). The
Rapanos plurality concluded that the cases should be remanded for the
lower courts to determine whether the channels at issue satisfied the
plurality's jurisdictional standard, and those further lower-court
proceedings would have been superfluous if the manmade character of the
ditches and drains had precluded their coverage as ``waters of the
United States.''
As discussed below and further in section III.A of the Technical
Support Document, the best available science supports the 1986
regulations' conclusions, and the agencies' construction of the Clean
Water Act in this rule, about the importance of tributaries to the
water quality of downstream paragraph (a)(1) waters: tributaries
provide natural flood control, help sustain flow downstream, recharge
groundwater, trap sediment, store and transform pollutants, decrease
high levels of chemical contaminants, recycle nutrients, create and
maintain biological diversity, and sustain the biological productivity
of downstream rivers, lakes, and estuaries.
ii. The Agencies' Longstanding Interpretation of Adjacent Wetlands as
``Waters of the United States'' Is a Reasonable Foundation for This
Rule
For more than four decades, the agencies have construed the
``waters of the United States'' to include wetlands adjacent to other
jurisdictional waters. Wetlands, such as swamps, bogs, marshes, and
fens, are ``transitional areas between terrestrial and aquatic
ecosystems'' characterized by sustained inundation or saturation with
water. Science Report at 2-5. Wetlands play a critical role in
regulating water quality. Among other things, they provide flood
control and trap and filter sediment and other pollutants that would
otherwise be carried to downstream waters. See National Research
Council, Wetlands: Characteristics and Boundaries 35, 38 (1995) (NRC
Report, available at <a href="https://nap.nationalacademies.org/catalog/4766/wetlands-characteristics-and-boundaries">https://nap.nationalacademies.org/catalog/4766/wetlands-characteristics-and-boundaries</a>; Technical Support Document
section III.B.
The Corps published regulations to implement the section 404
permitting program in 1974. 39 FR 12115 (April 3, 1974). At that time,
the Corps took the view that for purposes of section 404 ``navigable
waters'' was an established term of art for waters that are subject to
Congress's power to regulate interstate channels of commerce, and that
the term should be given that meaning in the Clean Water Act--
notwithstanding the specialized definition of ``navigable waters'' in
the Act. Id. The Corps therefore asserted jurisdiction under section
404 only over the waters subject to section 10 of the Rivers and
Harbors Act of 1899. Id. at 12119.
Reviewing courts, members of Congress, and EPA disagreed with the
Corps' initial approach. See, e.g., United States v. Ashland Oil &
Transp. Co., 504 F.2d 1317, 1325 (6th Cir. 1974); H.R. Rep. No. 1396,
93d Cong., 2d Sess. 23-27 (1974). In fact, EPA had previously
promulgated a rule defining ``waters of the United States'' far more
broadly than the Corps' regulations. 38 FR 13528 (May 22, 1973).
Ultimately, the Corps was ordered to adopt new regulations recognizing
the agency's ``full regulatory mandate.'' NRDC, Inc. v. Callaway, 392
F. Supp. 685, 686 (D.D.C. 1975).
The Corps responded by broadening its definition of ``navigable
waters'' in a phased approach under which all of the waters in the
final regulation were ``waters of the United States,'' but the Corps
would begin regulating activities within each type of ``waters of the
United States'' in phases: Phase I, which was effective immediately,
covered ``coastal waters and coastal wetlands contiguous or adjacent
thereto or into inland navigable waters of the United States [a term
for waters protected under the Rivers and Harbors Act] and freshwater
wetlands contiguous or adjacent thereto''; Phase II, effective after
July 1, 1976, covered ``primary tributaries, freshwater wetlands
contiguous or adjacent to primary tributaries, and lakes''; and Phase
III, effective after July 1, 1977, covered ``discharges . . . into any
navigable water'' including intrastate lakes and rivers and their
adjacent wetlands. 40 FR 31320, 31324, 31326 (July 25, 1975). The Corps
defined ``adjacent'' to mean ``bordering, contiguous, or neighboring,''
and specified that ``[w]etlands 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.' '' 42 FR 37122, 37144 (July
19, 1977). The regulations also defined ``wetlands'' to mean ``those
areas that are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted
for life in saturated soil conditions.'' Id. The agencies have thus
interpreted the term ``waters of the United States'' to include
wetlands since at least 1975.\47\
---------------------------------------------------------------------------

\47\ The agencies' interpretation of ``waters of the United
States'' as including wetlands is consistent not only with the
history and text of Clean Water Act section 404(g), but also with
other parts of the statute and of the United States Code. For
example, in the Lake Champlain Basin Program, Congress referred to
``streams, rivers, lakes, and other bodies of water, including
wetlands.'' 33 U.S.C. 1270(g)(2) (emphasis added). Congress has also
referred to ``streams, rivers, wetlands, other waterbodies, and
riparian areas,'' 33 U.S.C. 2336(b)(2) (emphasis added), and defined
``coastal waters'' to mean the waters of the Great Lakes
``including'' portions of other ``bodies of water'' with certain
features, ``including wetlands,'' id. at 2802(5).

---------------------------------------------------------------------------

[[Page 3027]]

Reacting to the Corps' broadened definition, leading up to the 1977
Amendments, Congress considered proposals to limit the geographic reach
of section 404. ``In both Chambers, debate on the proposals to narrow
the definition of navigable waters centered largely on the issue of
wetlands preservation.'' SWANCC, 531 U.S. at 170. A version of that
legislation, passed by the House, would have redefined ``navigable
waters'' for purposes of section 404 to mean a limited set of
traditional navigable waters and their adjacent wetlands. H.R. 3199,
95th Cong. section 16 (1977). But many legislators objected to the
proposed changes. When Congress rejected the attempt to limit the
geographic reach of section 404, it was well aware of the
jurisdictional scope of EPA and the Corps' definition of ``waters of
---------------------------------------------------------------------------
the United States.'' For example, Senator Baker stated:

Interim final regulations were promulgated by the [C]orps [on]
July 25, 1975. . . . Together the regulations and [EPA] guidelines
established a management program that focused the decision-making
process on significant threats to aquatic areas while avoiding
unnecessary regulation of minor activities. On July 19, 1977, the
[C]orps revised its regulations to further streamline the program
and correct several misunderstandings. . . .
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.
Earlier jurisdictional approaches under the [Rivers and Harbors
Act] established artificial and often arbitrary boundaries . . . .

123 Cong. Rec. 26,725 (1977). Legislators were concerned the proposed
changes were an ``open invitation'' to pollute waters. Id. (remarks of
Sen. Hart); see also, e.g., id. at 26,714-26,716. The proposal was
ultimately voted down on the Senate floor. Id. at 26,728; cf. S. Rep.
No. 370, 95th Cong., 1st Sess. 10 (1977) (hereinafter, ``1977 Senate
Report''); Riverside Bayview, 474 U.S. at 136-137 (noting that
``efforts to narrow the definition of `waters' were abandoned; the
legislation as ultimately passed, in the words of Senator Baker,
`[retained] the comprehensive jurisdiction over the Nation's waters''
(citation omitted)). Federal preservation of wetlands was at the heart
of the debate over passage of the 1977 Act, with good reason. See 1977
Senate Report at 10 (``There is no question that the systematic
destruction of the Nation's wetlands is causing serious, permanent
ecological damage. The wetlands and bays, estuaries and deltas are the
Nation's most biologically active areas. They represent a principal
source of food supply. They are the spawning grounds for much of the
fish and shellfish which populate the oceans, and they are passages for
numerous [ ] game fish. They also provide nesting areas for a myriad of
species of bird and wildlife. The unregulated destruction of these
areas is a matter which needs to be corrected and which implementation
of section 404 has attempted to achieve.''). Earlier Federal and State
policy that encouraged filling wetlands had led to destruction of
roughly 117 million acres of wetlands in the contiguous United States,
or more than half the original total. See T.E. Dahl & Gregory J.
Allord, ``History of Wetlands in the Conterminous United States,'' in
National Water Summary on Wetland Resources at 19 (1996, available at
<a href="https://pubs.usgs.gov/wsp/2425/report.pdf">https://pubs.usgs.gov/wsp/2425/report.pdf</a>).
Congress instead modified the Clean Water Act in other ways to
respond to concerns about the scope of Federal authorities. Congress
exempted certain agricultural and silvicultural activities from the
section 404 permitting program. See 1977 Act section 67(b), 91 Stat.
1600 (33 U.S.C. 1344(f)(1)(A)). In addition, Congress authorized the
Corps to issue general permits to streamline the permitting process.
Id. (33 U.S.C. 1344(e)(1)). And importantly for understanding the scope
of ``waters of the United States,'' Congress modified section 404 in a
way that incorporated into the statutory text an explicit endorsement
of the Corps' regulation defining ``waters of the United States,''
including its inclusion of adjacent wetlands. Specifically, the 1977
Act section 67(b), 91 Stat. 1601, establishing section 404(g), allowed
Tribes and States to assume responsibility for the issuance of section
404 permits. As Congress explained in the legislative history, under
section 404(g) States could administer a permitting program for the
discharge of dredged or fill material into ``phase II and III waters''
following EPA approval, but the Corps would retain jurisdiction over
``those waters defined as the phase I waters in the Corps . . . 1975
regulations, with the exception of waters considered navigable solely
because of historical use.'' 123 Cong. Rec. 38,969 (December 15, 1977);
H.R. Conf. Rep. No. 830, 95th Cong., 1st Sess. 101 (1977), reprinted in
3 Legis. History 1977, at 185, 285. Accordingly, through section
404(g), Congress demonstrated its understanding of the Corps'
regulations and endorsed the scope of their coverage--allowing States
to assume authority to administer the Clean Water Act as it pertained
to the waters contained in phase II and III of the Corps' regulations
(Phase II, effective after July 1, 1976, covered ``primary tributaries,
freshwater wetlands contiguous or adjacent to primary tributaries, and
lakes'' and Phase III, effective after July 1, 1977, covered
``discharges . . . into any navigable water'' including intrastate
lakes and rivers and their adjacent wetlands. 40 FR 31320, 31324, 31326
(July 25, 1975)), and reserving for the Corps alone authority over the
waters contained in phase I of the Corps' regulations.
With respect specifically to the inclusion of adjacent wetlands,
Congress was explicit in the text of the Clean Water Act. The text of
section 404(g) authorizes States and Tribes to administer the section
404 permitting program covering ``the discharge of dredged or fill
material into the navigable waters (other than those waters which are
presently used, or are susceptible to use in their natural condition or
by reasonab

[…truncated; see source link]

View on FederalRegister.gov →Plain-text source

Indexed from Federal Register on January 18, 2023.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.