[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 [www.gpo.gov]
[FR Doc No: 2022-28595]
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Vol. 88
Wednesday,
No. 11
January 18, 2023
Part II
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Part 328
Environmental Protection Agency
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40 CFR Part 120
Revised Definition of ``Waters of the United States''; Final Rule
Federal Register / Vol. 88, No. 11 / Wednesday, January 18, 2023 /
Rules and Regulations
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 120
[EPA-HQ-OW-2021-0602; FRL-6027.4-01-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.
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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 https://www.regulations.gov/ 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 http://www.regulations.gov.
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: [email protected], 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:
[email protected].
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
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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.
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\1\ To avoid confusion between the term ``navigable waters'' as
defined in the Clean Water Act and its implementing regulations, 33
U.S.C. 1362(7); 33 CFR 328.3 (2014), and the use of the term
``navigable waters'' to describe waters that are, have been, or
could be used for interstate or foreign commerce, 33 CFR 328.3(a)(1)
(2014), this preamble will refer to the latter as ``traditional
navigable waters'' or waters that are ``navigable-in-fact.''
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As 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.
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\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.
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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\
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\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.
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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:
traditional navigable waters, the territorial seas, and
interstate waters (``paragraph (a)(1) waters'');
impoundments of ``waters of the United States''
(``paragraph (a)(2) impoundments'');
tributaries to traditional navigable waters, the
territorial seas, interstate waters, or paragraph (a)(2)
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impoundments when the tributaries meet either the relatively permanent
standard or the significant nexus standard (``jurisdictional
tributaries'');
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
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.
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\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.
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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\
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\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.
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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
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\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 https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414.
\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.
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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
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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.
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\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.
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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.
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\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, https://www.epa.gov/wotus/current-implementation-waters-united-states; U.S. Army Corps of Engineers, Navigable Waters
Protection Rule Vacatur (published January 5, 2022), https://www.usace.army.mil/Media/Announcements/Article/2888988/5-january-2022-navigable-waters-protection-rule-vacatur/.
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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
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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)).
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\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).
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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.''
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\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.
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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\
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\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).
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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.
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\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.
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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.''
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\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).
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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.
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\21\ See 33 U.S.C. 1321(b) for the full jurisdictional scope of
Clean Water Act section 311.
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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.
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\22\ See supra note 14.
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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.
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\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.
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[[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'').
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\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.
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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\
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\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).
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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.
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\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).
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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\
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\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.
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\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).
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The 1986 regulations define ``waters of the United States'' as
follows (33 CFR 328.3 (2014)): \31\
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\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.
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(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.
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\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.
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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.
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\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).
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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.
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\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).
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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\
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\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.
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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\
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\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).
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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\
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\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).
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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.
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\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.).
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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.
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\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.
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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.
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\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), https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0581 (``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), https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0600 (``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.'').
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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.
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\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.
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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 https://nap.nationalacademies.org/catalog/4766/wetlands-characteristics-and-boundaries; 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).
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[[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
https://pubs.usgs.gov/wsp/2425/report.pdf).
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 reasonable improvement as a means to transport interstate or foreign
commerce . . . including wetlands adjacent thereto).'' 33 U.S.C.
1344(g)(1) (emphasis added); see 33 U.S.C. 1377(e) (extension to
Tribes). The italicized reservation of authority to the Corps in
section 404(g) presupposed that ``wetlands adjacent'' to a subset of
traditional navigable waters were subject to the section 404 program,
since otherwise the exclusion of those wetlands from the Tribes' and
States' potential permitting authority would have been superfluous.
Other language in the 1977 legislative record confirms that
understanding. See 1977 Senate Report 10 (stating that committee wished
to ``maintain[ ]'' coverage of wetlands); H.R. Conf. Rep. No. 830, 95th
Cong., 1st Sess. 98, 104 (1977) (stating that the Corps will
``continue'' to exercise section 404 jurisdiction over ``adjacent
wetlands'').
Moreover, with respect to which wetlands are adjacent, by using the
pre-existing term ``adjacent'' wetlands from the Corps' 1977
regulations, Congress signaled its intent to incorporate the Corps'
regulatory conception of adjacency. ``When a statutory term is
`obviously transplanted from another legal source,' it `brings the old
soil with it.' '' Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019)
(citation omitted). Here, that soil includes the full breadth of the
agencies' definition of ``adjacent'': bordering, contiguous, or
neighboring, as well as wetlands behind a berm or
[[Page 3028]]
barrier. That definition accords with the term's plain meaning.
Contemporaneous dictionaries defined the term ``adjacent'' in ways that
do not require direct abutment. See Black's Law Dictionary at 62 (rev.
4th ed. 1968) (``Lying near or close to; sometimes, contiguous;
neighboring. Adjacent implies that the two objects are not widely
separated, though they may not actually touch[.]'' (capitalization
altered; citation and emphasis omitted)); The American Heritage
Dictionary of the English Language at 16 (1975) (``Close to; next to;
lying near; adjoining.''); Webster's New International Dictionary of
the English Language at 32 (2d ed. 1958) (``Lying near, close, or
contiguous; neighboring; bordering on.'' (emphasis omitted)).
Congress has on a number of additional occasions responded to
concerns about the breadth of the scope of Federal authorities not by
narrowing the scope of ``waters of the United States,'' but by
excluding particular types and sources of discharges of pollutants from
the NPDES program or from Clean Water Act jurisdiction altogether. For
example, the 1987 Water Quality Act (WQA) added section 402(l)(2) to
the Clean Water Act. This new section prohibits EPA and the states from
requiring NPDES permits for uncontaminated stormwater discharges from
oil and gas exploration, production, processing or treatment
operations, or transmission facilities. Later, section 323 of the
Energy Policy Act of 2005 added a new provision to Clean Water Act
section 502 defining the term ``oil and gas exploration, production,
processing, or treatment operations or transmission facilities.'' The
1987 WQA also enacted a new section 402(p) of the Act that established
a comprehensive new program for stormwater regulation. In that section,
Congress made clear that only some stormwater point source discharges
need NPDES permit coverage--those from industrial activity, from large
and medium municipalities, and that EPA or a State designates by
rulemaking or adjudication to protect water quality or because the
discharges contribute to violations of water quality standards or are
significant contributors of pollutants. Congress has also taken
numerous actions to amend the Clean Water Act to address discharges
from vessels. The 1972 version of the Act excluded ``sewage from
vessels'' from the definition of ``pollutant'' thus exempting it from
the permitting regime in favor of regulatory standards of performance.
See 33 U.S.C. 1322(b), 1362(6). In 1996, Congress similarly excluded
most discharges from vessels of the Armed Forces and tasked EPA and the
Department of Defense to jointly promulgate uniform national discharge
standards instead. See 33 U.S.C. 1322(n), 1362(6). In 2008, Congress
passed the Clean Boating Act, which exempted discharges incidental to
the normal operation of recreational vessels of all sizes from Clean
Water Act permitting requirements, in favor of EPA regulations. See 33
U.S.C. 1322(o)(1)(B); see also 33 U.S.C. 1342(r). And in 2018, Congress
enacted the Vessel Incidental Discharge Act which exempted from NPDES
routine discharges from many other types of vessels including small
vessels, fishing vessels, and commercial vessels larger than 79 feet.
See 33 U.S.C. 1322(p)(9)(C)(ii).
Case law also supports the agencies' construction of the Clean
Water Act to cover adjacent wetlands as defined by the agencies. In
Riverside Bayview, the Supreme Court considered the ``language,
policies, and history'' of the Clean Water Act, including the
amendments in the 1977 Act, and unanimously upheld the Corps' exercise
of Clean Water Act jurisdiction over such adjacent wetlands. 474 U.S.
at 139. The Court held that the Corps' regulation defining ``the waters
of the United States'' to include wetlands adjacent to navigable waters
``is valid as a construction'' of the Clean Water Act. Id. at 131. The
Court first observed that ``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.'' Id. at 132. To administer the statute, the Corps
therefore ``must necessarily choose some point at which water ends and
land begins.'' Id. The Court further explained that, in drawing that
jurisdictional line, the Corps may take into account ``the evident
breadth of congressional concern for protection of water quality and
aquatic ecosystems.'' Id. at 133. It quoted with apparent approval the
Corps' statement that ``Federal jurisdiction under Section 404 must
include any adjacent wetlands that form the border of or are in
reasonable proximity to other waters of the United States, as these
wetlands are part of this aquatic system.'' Id. at 134 (quoting 42 FR
37128, July 19, 1977). The Court concluded that ``the Corps' ecological
judgment about the relationship between waters and their adjacent
wetlands provides an adequate basis for a legal judgment that adjacent
wetlands may be defined as waters under the Act.'' Id.
The Court also viewed the 1977 Act as specifically approving the
Corps' assertion of jurisdiction over adjacent wetlands--as considering
those wetlands to be ``waters'' themselves. Id. at 137-139. The Court
observed that ``the scope of the Corps' asserted jurisdiction over
wetlands was specifically brought to Congress' attention, and Congress
rejected measures designed to curb the Corps' jurisdiction in large
part because of its concern that protection of wetlands would be unduly
hampered by a narrowed definition of `navigable waters.''' Id. at 137.
The Court also cited section 404(g)(1) as express textual evidence
``that the term `waters' included adjacent wetlands.'' Id. at 138.
Congress had good reason to approve the inclusion of adjacent
wetlands within the ``waters of the United States.'' In the 1986
regulations, the agencies determined that wetlands adjacent to
navigable waters generally play a key role in protecting and enhancing
water quality, explaining: ``Water moves in hydrologic cycles, and the
pollution of this part of the aquatic system, regardless of whether it
is above or below an ordinary high water mark, or mean high tide line,
will affect the water quality of the other waters within that aquatic
system. For this reason, the landward limit of Federal jurisdiction
under Section 404 must include any adjacent wetlands that form the
border of or are in reasonable proximity to other waters of the United
States, as these wetlands are part of this aquatic system.'' 42 FR
37128 (July 19, 1977); see also 38 FR 10834. See section IV.C.8.b of
this preamble for further discussion of the definition of ``adjacent.''
As discussed below and further in section III.B of the Technical
Support Document, the best available science supports the 1986
regulations' conclusion that adjacent wetlands are part of the aquatic
ecosystem, and the agencies' construction of the Clean Water Act in
this rule, that adjacent wetlands that meet the relatively permanent
standard or the significant nexus standard affect the chemical,
physical, and biological integrity of paragraph (a)(1) waters by
performing essential functions, including providing valuable flood
control and water quality functions such as interruption and delay of
the transport of water-borne contaminants over long distances,
retention of sediment, prevention and mitigation of drinking water
contamination, and assurance of drinking water supply. As Congress
understood when it rejected efforts to narrow jurisdiction over
wetlands in
[[Page 3029]]
1977 and the Supreme Court recognized in Riverside Bayview, allowing
all adjacent wetlands to be filled without any permitting requirements
would deprive interconnected aquatic systems of those benefits and
thereby threaten the integrity of traditional navigable waters, the
territorial seas, and interstate waters. Wetlands are recognized as
``among the most important ecosystems on Earth.'' \48\ Among many other
public benefits, wetlands play an ``integral role'' in maintaining the
nation's ``water supply and quality.'' 16 U.S.C. 3901(a)(1). ``Research
has demonstrated repeatedly that natural wetlands enhance water
quality.'' \49\ Through chemical and biological processes, wetlands
trap and filter sediment, nutrients, and other pollutants that would
otherwise be carried into downstream waters.\50\ For example, wetlands
conservation is a crucial feature of the New York City municipal water
system, which provides high quality drinking water to millions of
people through watershed protection. New York protects adjacent
wetlands of its source waters rather than investing in extensive and
costly treatment. Wetlands also provide ``cost-effective flood
control,'' \51\ capturing overflow from rivers and streams during times
of high precipitation or snowmelt.\52\ For example, during Hurricane
Sandy in 2012, wetlands are estimated to have helped prevent $625
million in damage by protecting properties from flooding.\53\
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\48\ William J. Mitsch & James G. Gosselink, Wetlands (5th ed.)
at 3 (2015).
\49\ National Research Council, Wetlands: Characteristics and
Boundaries (``NRC Report'') at 38 (1995).
\50\ Virginia Carter, ``Wetlands Hydrology, Water Quality, and
Associated Functions,'' in National Water Summary, supra, at 44-45;
Science Report at ES-2 to ES-4.
\51\ Carter, supra note 5050, at 44.
\52\ See, e.g., NRC Report at 35; Mitsch & Gosselink, supra, at
539-541; Science Report at ES-2 to ES-4.
\53\ Narayan, Siddharth, et al. 2017. The Value of Coastal
Wetlands for Flood Damage Reduction in the Northeastern USA.
Scientific Reports 7: 9463; Technical Support Document section II.C.
---------------------------------------------------------------------------
iii. It Is Reasonable for the Agencies To Continue To Include a
Provision To Cover Certain Waters That Do Not Fall Within Other
Jurisdictional Provisions
For more than 45 years the agencies' regulations have included a
provision to address waters that did not fall within the categories it
established, such as tributaries and adjacent wetlands, because such
waters could have effects on water quality and on interstate commerce.
42 FR 37128 (July 19, 1977). This rule substantially revises this
provision by establishing that intrastate lakes and ponds, streams, or
wetlands not identified elsewhere in the rule may be determined to be
``waters of the United States'' if they meet either the relatively
permanent standard or the significant nexus standard. Therefore, under
this rule the agencies conclude that it is not appropriate to assert
jurisdiction over non-navigable, intrastate waters based solely on
whether the use, degradation, or destruction of the water could affect
interstate or foreign commerce. See section IV.C.6 of this preamble for
further discussion of the changes related to this provision. This rule
replaces the interstate commerce test with the relatively permanent
standard and the significant nexus standard.
For more than four decades, the agencies' regulations defining
``waters of the United States'' have included provisions authorizing
case-specific determinations of jurisdiction over waters that did not
fall within the other jurisdictional provisions of the definition. The
Corps' 1975 interim final regulations addressed both ``intrastate
lakes, rivers, and streams that are used by interstate recreational
travelers, for the removal of fish sold in commerce, for interstate
industrial commercial purposes, or for the production of agricultural
commodities sold in commerce,'' and ``other waters that the District
Engineer determines necessitate regulation for protection of water
quality.'' 40 FR 31320, 31324 (July 25, 1975). As discussed above,
Congress was well-aware of the scope of the Corps' regulations when
adopting the 1977 Act.
The rule properly authorizes case-specific consideration of certain
waters not covered by the categories established in the rule. As
discussed below and further in section IV.D of the Technical Support
Document, the best available science shows that some of these waters--
such as depressional wetlands, open waters, and peatlands--can provide
important hydrologic (e.g., flood control), water quality, and habitat
functions which can have effects on larger rivers, lakes, and
estuaries, including paragraph (a)(1) waters. The functions that
intrastate lakes and ponds, streams, and wetlands not identified in
paragraphs (a)(1) through (4) of this rule (i.e., paragraph (a)(5)
waters) can provide to paragraph (a)(1) waters include storage of
floodwater, recharge of ground water that sustains river baseflow,
retention and transformation of nutrients, metals, and pesticides,
export of organisms to paragraph (a)(1) waters, and habitats needed for
aquatic and semi-aquatic species that also utilize paragraph (a)(1)
waters. In addition, the agencies have never stated that the waterbody-
specific categories alone identify every jurisdictional water under the
Clean Water Act because in an area as vast and varied as the United
States, it is not possible to create an exhaustive list of waters that
provide these critical functions to paragraph (a)(1) waters. Indeed, a
clear example of waters that do not fall within any of the categories
are some lakes and ponds near jurisdictional tributaries or paragraph
(a)(1) waters. They are not wetlands (so do not fall within the
adjacent wetlands category), and many are not tributaries, but they are
very likely to meet either the relatively permanent standard or the
significant nexus standard. A lake that is not a tributary and is not a
wetland may have a continuous surface connection to a traditional
navigable water. It would not make sense to exclude such a lake from
jurisdiction as it would have many of the same effects on the
traditional navigable water as an adjacent wetland with the same
continuous surface connection. Likewise, a lake that is not a tributary
and is not a wetland may be near a jurisdictional tributary and
significantly affect a paragraph (a)(1) water by providing similar
functions as an adjacent wetland. Absent paragraph (a)(5) of this rule,
these lakes would meet either the relatively permanent standard or the
significant nexus standard, but would not fall within any of the
categories of waters established by the definition. Thus, where waters
do not fall within one of the more specific categories identified in
paragraph (a)(1) through (4) of this rule, the rule provides for such
waters to be evaluated for jurisdiction under paragraph (a)(5) and to
be jurisdictional if they meet either standard.
c. The Best Available Science Demonstrates That This Rule Properly
Advances the Objective of the Clean Water Act
This rule is informed by the best available science on the
functions provided by waters, including wetlands, that are important
for the chemical, physical, or biological integrity of traditional
navigable waters, the territorial seas, and interstate waters. The
scientific literature extensively illustrates the effects tributaries,
adjacent wetlands, as well as intrastate lakes and ponds, streams, and
wetlands can and do have on the integrity of traditional navigable
waters, the territorial seas, and interstate waters. The relevant
science on the relationship and effects of streams, wetlands, and open
waters (such as lakes and ponds)
[[Page 3030]]
on larger downstream waters has continued to advance in recent years
and confirms the agencies' longstanding view that these waters should
be assessed for jurisdiction under the Clean Water Act. The Science
Report synthesized the peer-reviewed science regarding connectivity and
effects of streams, wetlands, and open waters to larger downstream
waters. Since the release of the Science Report, additional published
peer-reviewed scientific literature has strengthened and supplemented
the report's conclusions. The agencies have summarized and provided an
update on more recent literature and scientific support for this
section in the Technical Support Document section I.C. See also
Technical Support Document section III. This section summarizes the
best available science in support of the longstanding categories of the
1986 regulation, and in support of this rule and the agencies'
conclusion that this rule advances the objective of the Clean Water
Act. This section reflects the scientific consensus on the strength of
the effects that tributaries, adjacent wetlands, and paragraph (a)(5)
waters can and do have on traditional navigable waters, the territorial
seas, and interstate waters. Note that for purposes of this final rule,
the agencies have not made a categorical determination that all
tributaries, adjacent wetlands, and paragraph (a)(5) waters
significantly affect paragraph (a)(1) waters. See section IV.A.3.a.iii
(discussing the final rule's reliance on a case-specific approach to
assessing jurisdiction for certain types of waters) of this preamble.
As the agencies charged with construing the statute, EPA and the
Corps must develop the outer bounds of the scope of the Clean Water
Act. Congress chose to delegate this authority to the expert agency
focused on environmental protection and, for the section 404 program,
to the agency with extensive permitting experience for discharges to
water. In section 501(a) of the Clean Water Act, Congress explicitly
delegated regulatory authority to EPA: ``The Administrator is
authorized to prescribe such regulations as are necessary to carry out
his functions under this Act.'' The Supreme Court in Riverside Bayview
recognized this decision by Congress and deferred to the agencies'
scientific expertise and judgement, finding that ``[i]n 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. Science alone cannot dictate where to draw
the line defining ``waters of the United States,'' but science is
critical to understanding what scope of jurisdiction furthers
Congress's objective to restore and maintain the chemical, physical,
and biological integrity of the nation's waters: only by relying upon
scientific principles to understand the way waters affect one another
can the agencies know whether they are achieving that objective.
Because the definition of ``waters of the United States'' should
advance the objective of the Clean Water Act and that objective is
focused on restoring and maintaining water quality, the best available
science informs this rule. See section IV.A.2 of this preamble; see
also section IV.B.3 of this preamble for the agencies' conclusion that
the 2020 NWPR was inconsistent with the best available science in
important ways.
i. Tributaries Can Provide Functions That Restore and Maintain the
Chemical, Physical, and Biological Integrity of Downstream Traditional
Navigable Waters, the Territorial Seas, and Interstate Waters
Tributaries play an important role in the transport of water,
sediments, organic matter, nutrients, and organisms to downstream
paragraph (a)(1) waters. See Technical Support Document section III.A.
Tributaries slow and attenuate floodwaters; provide functions that help
maintain water quality; trap and transport sediments; transport, store,
and modify pollutants; and sustain the biological productivity of
downstream paragraph (a)(1) waters. Indeed, the Supreme Court has
recognized the importance of the physical integrity of upstream
tributaries in overcoming sedimentation hazards to navigation. United
States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899).
Tributaries can provide these functions whether they are natural,
modified, or constructed and regardless of their flow regime.
All tributary streams, including perennial, intermittent, and
ephemeral streams, are chemically, physically, and biologically
connected to larger downstream waters via channels and associated
alluvial deposits where water and other materials are concentrated,
mixed, transformed, and transported. The agencies note that while the
Science Report concluded such tributary streams were so connected, the
significant nexus standard is distinct from this scientific conclusion,
and the agencies are not in this rule concluding that all tributary
streams categorically meet the significant nexus standard. Streams,
even where seasonally dry, are the dominant source of water in most
rivers, rather than direct precipitation or groundwater input to
mainstem river segments. Within stream and river networks, headwater
streams make up most of the total channel length. The smallest streams
represent an estimated three-quarters of the total length of stream and
river channels in the United States.\54\ Because of their abundance and
location in the watershed, small streams offer the greatest opportunity
for exchange between the water and the terrestrial environment.
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\54\ The actual proportion may be much higher because this
estimate is based on the stream networks shown on the U.S.
Geological Survey (USGS) National Hydrography Dataset, which does
not show all headwater streams.
---------------------------------------------------------------------------
In addition, compared with the humid regions of the country, stream
and river networks in arid regions have a higher proportion of channels
that do not flow perennially. For example, in Arizona, most of the
stream channels--96% by length--are classified as ephemeral or
intermittent. The functions that streams provide to benefit downstream
waters occur even when streams do not flow constantly. For example,
ephemeral headwater streams shape larger downstream river channels by
accumulating and gradually or episodically releasing stored materials
such as sediment and large woody debris.\55\ Due to the episodic nature
of flow in ephemeral and intermittent channels, sediment and organic
matter can be deposited some distance downstream in the arid Southwest
in particular, and then moved farther downstream by subsequent
precipitation events. Over time, sediment and organic matter continue
to move downstream and influence larger downstream waters. These
materials help structure downstream river channels by slowing the flow
of water
[[Page 3031]]
through channels and providing substrate and habitat for aquatic
organisms.
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\55\ Videos of ephemeral streams flowing after rain events in
the Southwest highlight how effective ephemeral streams can be in
transporting woody debris (e.g., tree branches) and sediment
downstream during the rainy season. See, e.g., U.S. Department of
Agriculture, Agricultural Research Service, Multiflume Runoff Event
August 1, 1990, https://www.tucson.ars.ag.gov/unit/WGWebcam/WalnutGulchWebcam.htm; U.S. Geological Survey, Post-fire Flash Flood
in Coronado National Memorial, Arizona (August 25, 2011), https://www.youtube.com/watch?v=qJ8JxBZt6Ws; Santa Clara Pueblo Fire/Rescue/
EMS Volunteer Department, Greg Lonewolf, #4 Santa Clara Pueblo Flash
Flood Event 01 Sept 2013 (April 14, 2017), https://www.youtube.com/watch?v=nKOQzkRi4BQ; Rankin Studio, Amazing Flash Flood/Debris Flow
Southern Utah HD (July 19, 2019), https://www.youtube.com/watch?v=_yCnQuILmsM.
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Stream and wetland ecosystems also process natural and human
sources of nutrients, such as those found in leaves that fall into
streams and those that may flow into creeks from agricultural fields.
Some of this processing converts the nutrients into more biologically
useful forms. Other aspects of the processing store nutrients, thereby
allowing their slow and steady release and preventing the kind of
short-term glut of nutrients that can cause algal blooms in downstream
rivers or lakes. Small streams and their associated wetlands play a key
role in both storing and modifying potential pollutants, ranging from
chemical fertilizers to rotting salmon carcasses, in ways that maintain
downstream water quality. Inorganic nitrogen and phosphorus, the main
chemicals in agricultural fertilizers, are essential nutrients not just
for plants, but for all living organisms. However, in excess or in the
wrong proportions, these chemicals can harm natural systems and humans.
Larger rivers process excess nutrients much more slowly than smaller
streams. Loss of nutrient retention capacity in headwater streams is
known to cause higher concentrations and loads of nitrogen and
phosphorus in downstream waterbodies. In freshwater ecosystems,
eutrophication, the enriching of waters by excess nitrogen and
phosphorus, sets off a chain reaction of events that reduces water
quality in streams, lakes, estuaries, and other downstream waterbodies.
The excess nutrients lead to the overabundance of algae and aquatic
plants. Too much algae clouds previously clear streams, such as those
favored by trout. Algal blooms not only reduce water column visibility,
but the microbial decay of algal blooms reduces the amount of oxygen
dissolved in the water, and therefore the amount available to aquatic
life, sometimes to a degree that causes fish kills. Fish are not the
only organisms harmed by eutrophication: some of the algae species that
grow in eutrophic waters generate tastes and odors or are toxic--a
clear problem for stream systems, reservoirs, and lakes that supply
drinking water for municipalities or that are used for swimming and
other contact-recreational purposes. Algal blooms driven by excess
nutrients also can injure people and animals, as toxins can kill native
fish and other wildlife, and endanger human health. Algal blooms can
also lead to beach closures. The overabundance of plant growth and
alterations in water chemistry that occur in eutrophic waters also
changes the composition of natural communities of aquatic ecosystems.
Recycling organic carbon contained in dead plants and animals is
another crucial function provided by headwater streams and wetlands.
Ecological processes that transform inorganic carbon into organic
carbon and recycle organic carbon are the basis for every food web on
the planet. In freshwater ecosystems, much of the recycling happens in
small streams and wetlands, where microorganisms transform everything
from leaf litter and downed logs to dead salamanders into food for
other organisms in the aquatic food web. Like nitrogen and phosphorus,
carbon is essential to life but can be harmful to freshwater ecosystems
if it is present in excess or in the wrong chemical form. If all
organic material received by headwater streams and wetlands went
directly downstream, the glut of decomposing material could deplete
oxygen in downstream rivers, thereby damaging and even killing fish and
other aquatic life. The ability of headwater stream ecosystems to
transform organic matter into more usable forms helps maintain healthy
downstream ecosystems.
Microorganisms in headwater stream systems use leaf litter and
other decomposing matter for food and, in turn, become food for other
organisms. For example, fungi that grow on leaf litter become
nutritious food for aquatic insects that make their homes on the bottom
of streams, including mayflies, stoneflies, and caddisflies. These
animals provide food for larger animals, including birds such as
flycatchers and fish such as trout. The health and productivity of
downstream traditional navigable waters, the territorial seas, and
interstate waters depend in part on processed organic carbon delivered
by upstream headwater systems.
To be clear, the agencies recognize that SWANCC held that the use
of an abandoned sand and gravel pit by migratory birds was not by
itself a sufficient basis for the exercise of Federal regulatory
authority under the Clean Water Act. Consideration of biological
functions does not constitute an assertion of jurisdiction over a water
based solely on its use by migratory birds. Rather, the agencies
consider biological functions for purposes of significant nexus
determinations under this rule only to the extent that the functions
provided by tributaries, adjacent wetlands, and paragraph (a)(5) waters
significantly affect the biological integrity of the traditional
navigable waters, the territorial seas, or interstate waters. For
example, salmon are a critical component of the biological integrity in
certain paragraph (a)(1) waters, and they provide one of the clearest
illustrations of biological connectivity. To protect Pacific and
Atlantic salmon in traditional navigable waters (and their associated
commercial and recreational fishing industries), headwater streams must
be protected because Pacific and Atlantic salmon require both
freshwater and marine habitats over their life cycles and therefore
migrate along river networks. Many Pacific salmon species spawn in
headwater streams, where their young grow for a year or more before
migrating downstream, live their adult life stages in the ocean, and
then migrate back upstream to spawn. Even where they do not provide
direct habitat for salmon themselves, ephemeral streams may contribute
to the habitat needs of salmon by supplying sources of cold water that
these species need to survive (i.e., by providing appropriate physical
conditions for cold water upwelling to occur at downstream
confluences), transporting sediment that supports fish habitat
downstream, and providing and transporting food for juveniles and
adults downstream. These species thereby create a biological connection
along the entire length of the river network, demonstrating how the
upstream ephemeral waters can help to maintain the biological integrity
of the downstream traditional navigable water. Many other species of
anadromous fish (fish that are born in freshwater, spend most of their
lives in saltwater, and return to freshwater to spawn) like certain
lamprey, species of catadromous fish (fish that breed in the ocean but
that spend most of their lives in freshwater) like American eels, and
freshwater fish like rainbow trout and brook trout also require small
headwater streams to carry out life cycle functions. See Technical
Support Document sections III.A.iii and III.E.iv.
ii. Adjacent Wetlands Can Provide Functions That Restore and Maintain
the Chemical, Physical, and Biological Integrity of Traditional
Navigable Waters, the Territorial Seas, and Interstate Waters
Adjacent wetlands provide valuable flood control and water quality
functions that affect the chemical, physical, and biological integrity
of paragraph (a)(1) waters including interruption and delay of the
transport of water-borne contaminants over long distances; retention of
sediment; retention and slow release of flood waters; and prevention
and mitigation of drinking water contamination and assurance of
drinking water supply. See
[[Page 3032]]
Technical Support Document section III.B. The agencies note that, while
the Science Report concluded such adjacent wetlands were so connected,
the significant nexus standard is distinct from this scientific
conclusion, and the agencies are not concluding in this rule that all
adjacent wetlands categorically meet the significant nexus standard.
Because adjacent wetlands retain sediment and augment streamflow
via the gradual release of groundwater, stormwater, or water flowing
just beneath the soil surface, wetland loss correlates with increased
need for dredging and unpredictability of adequate streamflow for
navigation. Headwater wetlands are located where erosion risk is
highest and are therefore best suited to recapture and stabilize
manageable amounts of sediment that might enter traditional navigable
waters, the territorial seas, or interstate waters. Adjacent wetlands
naturally serve to recapture and stabilize sediment carried by streams
and rivers in times when flood flow distributes water across a
floodplain.
Adjacent wetlands affect the integrity of paragraph (a)(1) waters
by retaining stormwater and slowly releasing floodwaters that could
otherwise negatively affect the condition or function of those
paragraph (a)(1) waters. The filling or draining of wetlands, including
those that are close to the stream network, reduces water storage
capacity in a watershed and causes runoff from rainstorms to overwhelm
the remaining available water conveyance system. The resulting stream
erosion and channel downcutting impair water quality and quickly drain
the watershed as surface water leaves via incised (deeper) channels.
Disconnecting the incised channel from the wetlands leads to more
downstream flooding. As the adjacent wetlands remain disconnected,
riparian vegetation and wetland functions are reduced. Moreover,
because less water is available in groundwater and wetlands for slow
release to augment streamflow during dry periods, the filling or
draining of wetlands can make the timing and extent of navigability on
some waterways less predictable during dry periods. Therefore, intact
adjacent wetlands, including headwater wetlands, can contribute to
maintaining navigability on the nation's rivers and harbors and can
reduce flooding in paragraph (a)(1) waters.
Wetlands adjacent to tributaries of navigable waters, the
territorial seas, and interstate waters can also help promote
improvements in drinking water supply and quality. Over 228 million
people are served by nearly 15,000 public water systems using surface
water such as streams, rivers, lakes, tributaries, and surface-water
storage impoundments as a primary source of water.\56\ An estimated 61%
of water withdrawn for public water supply came from surface water
sources in 2015.\57\ Adjacent wetlands have an important role in
mitigating the risk of contamination to sources of drinking water, and
in water quality generally, due to their strategic location as buffers
for other waterbodies and their filtration of surface water. Retention
of water and its associated constituents by wetlands allows the
biochemical uptake and/or breakdown of contaminants and the destruction
of pathogens. The water retention capacity of adjacent wetlands also
allows for the storage and gradual release of surface waters that may
supply public water system intakes during times of drought. In either
case, this retention substantially improves both the supply and quality
of drinking water.
---------------------------------------------------------------------------
\56\ EPA data from 2022 Third Quarter Safe Drinking Water
Information System/Federal Version.
\57\ Comments submitted by Association of Metropolitan Water
Agencies at 2 (February 4, 2022) (Docket ID No. EPA-HQ-OW-2021-0602-
0252), https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0252
(citing Dieter, C.A., Maupin, M.A., Caldwell, R.R., Harris, M.A.,
Ivahnenko, T.I., Lovelace, J.K., Barber, N.L., and Linsey, K.S.,
2018, Estimated use of water in the United States in 2015: U.S.
Geological Survey Circular 1441. Retrieved from https://pubs.usgs.gov/circ/1441/circ1441.pdf).
---------------------------------------------------------------------------
Though drinking water supplied through public water supplies is
regulated by the Safe Drinking Water Act, many water suppliers also
rely on source water protection efforts under the Clean Water Act, as
the quality of the drinking water source is dependent on the protection
of its upstream waters. Conserving wetlands in source water protection
areas can help protect water quality, recharge aquifers, and maintain
surface water flow during dry periods. For example, wetlands
conservation is a crucial feature of the low-cost New York City
municipal water system, which provides high-quality drinking water to
millions of people through watershed protection, including of adjacent
wetlands, of its source waters rather than extensive treatment.
Discharge of agricultural, industrial, sanitary, or other waste
into any surface water may pose a public health risk downstream. For
example, excessive upstream discharge may overwhelm a public water
system filtration unit, allowing microbial pathogens into the drinking
water system. EPA's Science Advisory Board cited drinking water
contamination by pathogens as one of the most important environmental
risks.\58\ Moreover, drinking water treatment to address microbial
pathogens has little effect on many toxic chemicals, metals, and
pesticides discharged into streams, drainage ditches, canals, or other
surface waters.
---------------------------------------------------------------------------
\58\ U.S. Environmental Protection Agency/Science Advisory
Board. 1990. Reducing Risk: Setting Priorities and Strategies for
Environmental Protection. SAB-EC-90-021. https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=2000PNG1.TXT.
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In sum, adjacent wetlands can provide a variety of functions to
paragraph (a)(1) waters. Based on the importance of these functions to
paragraph (a)(1) waters, the agencies' interpretation of the Clean
Water Act to protect adjacent wetlands where those adjacent wetlands
meet either the relatively permanent standard or the significant nexus
standard reflects proper consideration of the objective of the Act and
the best available science.
iii. Intrastate Lakes and Ponds, Streams, or Wetlands Not Identified in
Paragraphs (a)(1) Through (4) of This Rule Can Provide Functions That
Restore and Maintain the Chemical, Physical, and Biological Integrity
of Traditional Navigable Waters, the Territorial Seas, and Interstate
Waters
Intrastate lakes and ponds, streams, or wetlands not identified in
paragraphs (a)(1) through (4) of the rule--examples of which could
include, but are not limited to, prairie potholes, playa lakes, and
vernal pools--can provide important functions that affect the chemical,
physical, and biological integrity of paragraph (a)(1) waters. See
Technical Support Document section III.D. The agencies note that while
the Science Report concluded such intrastate lakes and ponds, streams,
and wetlands can provide these functions, the significant nexus
standard is distinct from this scientific conclusion, and the agencies
are not concluding in this rule that all intrastate lakes and ponds,
streams, and wetlands categorically meet the significant nexus
standard. These functions are particularly valuable when considered
cumulatively across the landscape or across different watershed or sub-
watershed scales. They are similar to the functions that adjacent
wetlands provide, including water storage to control streamflow and
mitigate downstream flooding; interruption and delay of the transport
of water-borne pollutants (such as excess nutrients and contaminants)
over long distances; and retention of sediment. These functions can be
important to the physical integrity of paragraph (a)(1) waters. For
non-
[[Page 3033]]
floodplain wetlands and open waters lacking a channelized surface or
regular shallow subsurface connection, generalizations from the
available literature about their specific effects on downstream waters
are difficult because information on both function and connectivity is
needed. Accordingly, a case-specific analysis of their effects on
paragraph (a)(1) waters is appropriate from both a scientific and
policy perspective.
For example, oxbow lakes and other lakes and ponds that are in
close proximity to the stream network, that are located within
floodplain or riparian areas, or that are connected via surface and
shallow subsurface hydrology to the stream network or to other ``waters
of the United States'' perform critical chemical, physical, and
biological functions that affect paragraph (a)(1) waters. Like adjacent
wetlands, these waters individually and collectively affect the
integrity of paragraph (a)(1) waters by acting as sinks that retain
floodwaters, sediments, nutrients, and contaminants that could
otherwise negatively impact the condition or function of those
paragraph (a)(1) waters. They also provide important habitat for
aquatic species that utilize both the lake and pond and the nearby
paragraph (a)(1) water to forage, breed, and rest.
Intrastate lakes and ponds, streams, and wetlands not identified in
paragraphs (a)(1) through (4) of the rule span the gradient of
connectivity identified in the Science Report. They can be open waters
located in the riparian area or floodplain of traditional navigable
waters, the territorial seas, and interstate waters (e.g., oxbow lakes)
and otherwise be physically proximate to the stream network (similar to
adjacent wetlands) or they can be open waters or wetlands that are
fairly distant from the network. They can also be connected to
paragraph (a)(1) waters through biological connections, such as through
the movement of aquatic and semi-aquatic species for habitat or other
lifecycle needs and can serve as sources of food for larger aquatic and
semi-aquatic animals that live in paragraph (a)(1) waters. See section
III.D of the Technical Support Document. These waters can also provide
additional functions such as storage and mitigation of peak flows,
natural filtration by biochemical uptake and/or breakdown of
contaminants, and, in some locations, high volume aquifer recharge that
contributes to the baseflow in paragraph (a)(1) waters. The strength of
functions provided by intrastate lakes and ponds, streams, and wetlands
that are evaluated under paragraph (a)(5) on paragraph (a)(1) waters
will vary depending on the type and degree of connection (i.e., from
highly connected to highly isolated) to paragraph (a)(1) waters and
landscape features such as proximity to stream networks and to such
waters with similar characteristics that function together to influence
paragraph (a)(1) waters.
Since the publication of the Science Report in 2015, the published
literature has expanded scientific understanding and quantification of
the functions of these waters that affect the integrity of larger
waters, including traditional navigable waters, the territorial seas,
and interstate waters, particularly in the aggregate. More recent
literature (i.e., 2014-present, as some literature from 2014 and 2015
may not have been included in the Science Report) has determined that
non-floodplain wetlands can have demonstrable hydrologic and
biogeochemical downstream effects, such as decreasing peak flows,
maintaining baseflows, and performing nitrate removal, particularly
when considered cumulatively.
Some intrastate lakes and ponds, streams, and wetlands not
identified in paragraphs (a)(1) through (4) can, in certain
circumstances, have strong chemical, physical, or biological
connections to and effects on paragraph (a)(1) waters. However, some
intrastate lakes and ponds, streams, and wetlands not identified in
paragraphs (a)(1) through (4) of this rule do not have significant
effects on paragraph (a)(1) waters because of their distance from
paragraph (a)(1) waters, their landscape position, climatological
variables, or other factors. The effect of distance on a significant
nexus analysis, for example, may vary based on the characteristics of
the aquatic resources being evaluated and other factors affecting the
strength of their connectivity to paragraph (a)(1) waters. Waters are
less likely to have a significant nexus if they are located outside of
the riparian area or floodplain, lack a confined surface or shallow
subsurface hydrologic connection to jurisdictional waters, or exceed
the minimum distances necessary for aquatic species that cannot
disperse overland to utilize both the subject waters \59\ and the
waters in the broader tributary network. However, sometimes it is their
lack of a hydrologic surface connection that contributes to the
important effect that they have on paragraph (a)(1) waters; for
example, depressional non-floodplain wetlands lacking surface outlets
can function individually and cumulatively to retain and transform
nutrients, retain sediment, provide habitat, and reduce or attenuate
downstream flooding, depending on site-specific conditions such as
landscape characteristics (e.g., slope of the terrain or permeability
of the soils). Justice Kennedy's insight that ``[g]iven the role
wetlands play in pollutant filtering, flood control, and runoff
storage, it may well be the absence of hydrologic connection (in the
sense of interchange of waters) that shows the wetlands' significance
for the aquatic system'' is consistent with the science. See Rapanos,
547 U.S. at 786 (Kennedy, J., concurring in the judgment).
---------------------------------------------------------------------------
\59\ In this preamble, the agencies use ``subject waters'' to
mean the water or waters being assessed for jurisdiction. ``Subject
waters evaluated pursuant to the significant nexus standard'' means
the water either alone or in combination with similarly situated
waters in the region.
---------------------------------------------------------------------------
Based on the functions that can be provided by intrastate lakes and
ponds, streams, and wetlands not identified in paragraphs (a)(1)
through (4) to traditional navigable waters, the territorial seas, and
interstate waters, assessing these waters to determine whether they
meet either the relatively permanent standard or the significant nexus
standard reflects proper consideration of the objective of the Clean
Water Act and the best available science.
3. The Scope of This Rule Is Limited Consistent With the Law, the
Science, and Agency Expertise
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'
interpretation of the statutory limits on the scope of the ``waters of
the United States.'' This construction is supported by 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 after
more than 45 years of implementing the longstanding pre-2015
regulations defining ``waters of the United States.'' This rule's
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. The agencies have also determined
that the relatively permanent standard should be included in the rule
because, while it identifies only a subset of the ``waters of the
[[Page 3034]]
United States,'' it provides important efficiencies and additional
clarity for regulators and the public.
This section of the preamble first explains the agencies'
conclusion that utilization of both the relatively permanent standard
and the significant nexus standard gives effect to the Clean Water
Act's text, including its objective as well as its limitations. The
significant nexus standard is consistent with the text, objective, and
legislative history of the Clean Water Act, as well as relevant Supreme
Court case law and the best available science. The relatively permanent
standard is administratively useful as it more readily identifies a
subset of waters that will virtually always significantly affect
paragraph (a)(1) waters, but standing alone the standard is
insufficient to meet the objective of the Clean Water Act. This section
also explains that fact-based standards for determining Clean Water Act
jurisdiction are appropriate and not unusual under the Act. The
agencies have the discretion to consider defining waters as
jurisdictional on a categorical basis where scientifically and legally
justified (for example in this rule, paragraph (a)(1) waters and their
adjacent wetlands) or on a case-specific, fact-based approach (for
example, in this rule, tributaries and their adjacent wetlands that
meet the relatively permanent standard or significant nexus standard).
Finally, this section explains how this rule reflects full and proper
consideration of the water quality objective in section 101(a) and the
policies relating to responsibilities and rights of Tribes and States
under section 101(b) of the Clean Water Act. 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 Act.
a. The Limitations Established by This Rule Advance the Objective of
the Clean Water Act
This rule's utilization of both the relatively permanent standard
and the significant nexus standard gives effect to the Clean Water
Act's text and environmentally protective objective as well as its
limitations. See Rapanos, 547 U.S. at 767-69 (Kennedy, J., concurring
in the judgment) (observing ``the evident breadth of congressional
concern for protection of water quality and aquatic ecosystems'' and
referring to the Clean Water Act as ``a statute concerned with
downstream water quality'' (citations omitted)); Riverside Bayview, 474
U.S. at 133 (``Congress chose to define the waters covered by the Act
broadly.''). The agencies, however, have concluded that it is the
significant nexus standard that advances the objective of the Clean
Water Act because it is linked to effects on the water quality of
paragraph (a)(1) waters while also establishing an appropriate
limitation on the scope of jurisdiction by requiring that those effects
be significant. The relatively permanent standard is administratively
useful as it more readily identifies a subset of waters that will
virtually always significantly affect paragraph (a)(1) waters, but,
exclusive reliance on the standard for all determinations is
inconsistent with the text of the statute and Supreme Court precedent
and is insufficient to advance the objective of the Clean Water Act.
With this rule, the agencies conclude that if a water meets either
the relatively permanent standard or the significant nexus standard, it
falls within the protections established by the Clean Water Act. As
discussed earlier, this rule is not based on an application of the
Marks test for interpreting Supreme Court decisions; rather, with this
rule, the agencies are interpreting the scope of the definition of
``navigable waters,'' informed by relevant Supreme Court precedent, but
also based on the text of the relevant provisions of the Clean Water
Act and the statute as a whole, the scientific record, 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 section first discusses why the significant nexus standard is
consistent with the text, objective, and legislative history of the
Clean Water Act, as well as relevant Supreme Court case law and the
best available science; then explains why the relatively permanent
standard is administratively useful but on its own is insufficient;
and, finally, explains that fact-based standards for determining Clean
Water Act jurisdiction are appropriate and not unique to the definition
of ``waters of the United States.''
i. The Significant Nexus Standard Is Consistent With the Text and
Objective of the Clean Water Act, Legislative History, Case Law, and
the Best Available Science
The significant nexus standard, as the agencies have established it
in this rule, is the best interpretation of the Clean Water Act because
it is consistent with the text, including the Act's statutory objective
and statutory structure, the legislative history and case law, and is
supported by the best available science. The standard is consistent
with the plain language of the Act's objective because it is based upon
effects on the water quality of paragraph (a)(1) waters and limits the
scope of jurisdiction based on the text of that objective. Moreover,
protection of waters that significantly affect the paragraph (a)(1)
waters--i.e., traditional navigable waters, the territorial seas, and
interstate waters--is consistent with the scope of Commerce Clause
authority that the Supreme Court in SWANCC concluded that Congress was
exercising, while also fulfilling Congress's intent in exercising that
authority in enacting the Clean Water Act.
The significant nexus standard effectuates the text of Clean Water
Act section 502(7), which defines ``navigable waters'' as ``the waters
of the United States, including the territorial seas.'' The standard is
properly focused on protecting paragraph (a)(1) waters, which are the
foundation of the Clean Water Act: traditional navigable waters (which
``navigable waters'' clearly invokes but is not limited to); ``the
territorial seas'' (which are explicitly listed in section 502(7)); and
interstate waters (which are unambiguously waters ``of the United
States,'' as they are waters of the ``several States,'' U.S. Const.
section 8). Further, each of the rule's provisions identifies an
aquatic resource that meets the definition of ``water'' or ``waters''
in either the Rapanos plurality's preferred dictionary or the
dictionary most contemporaneous with the passage of the Clean Water
Act. See section IV.A.3.a.ii of this preamble for discussion of the
plurality's dictionary-based analysis. The first definition of
``water'' within Webster's Second (1.a. of the definition) is ``[t]he
liquid which descends from the clouds in rain and which forms rivers,
lakes, seas, etc.,'' Webster's New International Dictionary 2882 (2d
ed. 1954). The definition of ``waters,'' plural, in the most
contemporaneous Webster's, is: ``the water occupying or flowing in a
particular bed.'' Webster's Third New Intl. (1966). Even the Rapanos
plurality's preferred definition includes ``water as found in
`streams,' '' ``water `[a]s found in streams and bodies forming
geographical features such as oceans, rivers, [and] lakes,' or `the
flowing or moving masses, as of waves or floods, making up such streams
or bodies.' '' Rapanos, 547 U.S. at 732-33 (quoting Webster's New
International Dictionary 2882, definition 2.c). Traditional navigable
waters; interstate waters; the territorial seas; impoundments of
waters; tributaries; adjacent wetlands; and intrastate lakes and ponds,
streams, and wetlands are ``water'' or ``waters'' under these
definitions, as identified by hydrologists
[[Page 3035]]
and other scientists, and in practice. Moreover, with respect to
whether wetlands are waters, that question has already been resolved by
both science and a unanimous Supreme Court in Riverside Bayview. 474
U.S. at 137-39. The requirement that a significant nexus exist between
upstream waters, including wetlands, and ``navigable waters in the
traditional sense'' thus clearly advances Congress's stated objective
in the Act while fulfilling ``the need to give the term `navigable'
some meaning.'' Rapanos, 547 U.S. at 779 (Kennedy, J., concurring in
the judgment). See also section IV.C.2.b.iii of this preamble for
discussion of the Clean Water Act's jurisdiction over interstate
waters. Finally, the text and focus of the rule's significant nexus
standard are derived from and designed to advance the text of the first
sentence in the statute setting forth the Act's sole statutory
objective: ``to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.'' See 33 U.S.C. 1251(a).
As noted above, 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). Thus, the agencies must
consider the objective of the Clean Water Act to ``restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters'' in interpreting the scope of the statutory term ``waters of
the United States.'' See 33 U.S.C. 1251(a). This consideration is
particularly important where, as here, Congress used specific language
in the definitions in order to meet the objective of the Act and the
definition of ``waters of the United States'' is fundamental to meeting
the objective of the Act. See section IV.A.2 of this preamble. Congress
was focused on water quality when it enacted the Clean Water Act and
established the Act's objective, and the significant nexus standard is
derived from the objective of the Act to protect the water quality of
the paragraph (a)(1) waters. The significant nexus standard is
consistent with foundational scientific understanding about aquatic
ecosystems: waters can significantly affect the chemical, physical, and
biological integrity of traditional navigable waters, the territorial
seas, and interstate waters. Therefore, assessing the effects that
waters have on paragraph (a)(1) waters when considered, alone or in
combination with other similarly situated waters in a region, is the
best means of identifying those waters that must be protected in order
to advance the objective of the Clean Water Act.
The agencies have also considered the statute as a whole in
construing the scope of ``waters of the United States.'' The
comprehensive nature of the Clean Water Act and its pronounced change
in approach from precursor water protection statutes is evident
throughout the statute, and the agencies have considered the text of
those provisions in defining ``waters of the United States.'' One of
the Clean Water Act's principal tools in protecting the integrity of
the nation's waters is section 301(a), which prohibits ``the discharge
of any pollutant by any person'' without a permit or other
authorization under the Act. Other substantive provisions of the Clean
Water Act that 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 401
Tribal 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 agencies have also carefully
considered the Act's policies regarding the responsibilities and rights
of Tribes and States. See section IV.A.3.b of this preamble. The
agencies have thus construed ``waters of the United States'' to include
waters that meet the significant nexus standard based on the text of
the Clean Water Act's interlocking provisions designed to restore and
maintain the chemical, physical, and biological integrity of the
nation's waters.
A significant nexus analysis is also consistent with the framework
scientists apply to assess a river system--examining how the components
of the system (e.g., wetlands or tributaries), alone or in the
aggregate (in combination), in a region, contribute and connect to a
river (significantly affect the chemical, physical, or biological
integrity of paragraph (a)(1) waters). Indeed, the significant nexus
standard in this rule reflects the analysis in the Science Report by
describing the components of a river system and watershed; the types of
chemical, physical, and biological connections that link those
components; the factors that influence connectivity and associated
effects at various temporal and spatial scales; and methods for
assessing downstream effects. The structure and function of rivers are
highly dependent on the constituent materials stored in and transported
through them. Most of these materials originate from either the
upstream river network or other components of the river system,
including wetlands, and then are transported to the river by water
movement or other mechanisms. Further, the significant nexus standard
is supported by the Science Report's discussion of connectivity, a
foundational concept in hydrology and freshwater and marine ecology.
See also Technical Support Document sections I.A.ii and III.E.
Connectivity is the degree to which components of a system are
joined or linked by various transport mechanisms and is determined by
the characteristics of both the physical landscape and the biota of the
specific system. Connectivity serves to demonstrate the ``nexus''
between upstream waterbodies and traditional navigable waters, the
territorial seas, or interstate waters, and variations in the degree of
connectivity influence the range of functions provided by streams,
wetlands, and open waters and are critical to the integrity and
sustainability of paragraph (a)(1) waters. For example, connections
with low values of one descriptor can have important downstream effects
when considered in context of other types of connections (e.g., a
stream with low-duration flow during a flash flood can transfer large
volumes of water and woody debris downstream, affecting the integrity
of a paragraph (a)(1) water). Indeed, the seasonal or longer-term
absence of surface connections can provide numerous functions that
contribute to the chemical, physical, and biological integrity of
paragraph (a)(1) waters: these wetlands can attenuate stormflow;
increase baseflow; be a source of carbon and organic matter; and be a
sink for sediment, nitrate, and other constituents that degrade water
quality. While the scientific literature does not use the term
``significant'' in the same manner used by the Supreme Court, the
literature does provide information on the strength of upstream effects
on the chemical, physical, and biological functioning of the downstream
waterbodies. The analysis in the literature permits the agencies to
judge when an effect is significant such that a water, either alone or
in combination with similar waters, should be protected by the Clean
Water Act in order to meet the objective of the Act. The Science Report
presents evidence of connections for various categories of waters,
evaluated singly or in combination, which affect downstream waters and
the strength of those effects. The
[[Page 3036]]
connections and mechanisms discussed in the Science Report include
transport of physical materials and chemicals such as water, wood,
sediment, nutrients, pesticides, and metals (e.g., mercury); functions
that streams, wetlands, and open waters perform, such as storing and
cleansing water; and movement of organisms. Again, the significant
nexus standard, under which waters are assessed alone or in combination
for the functions they provide to paragraph (a)(1) waters, is
consistent with the foundational scientific framework and concepts of
hydrology.
The agencies' use of scientific principles to determine the scope
of ``waters of the United States'' is consistent with the Supreme
Court's approach in Maui. The Court in that case also looked to
scientific principles to inform its interpretation of the Clean Water
Act's jurisdictional scope, noting: ``[m]uch water pollution does not
come from a readily identifiable source. Rainwater, for example, can
carry pollutants (say, as might otherwise collect on a roadway); it can
pollute groundwater, and pollution collected by unchanneled rainwater
runoff is not ordinarily considered point source pollution.'' Maui, 140
S. Ct. at 1471 (citing the definition of ``water pollution'' from 3 Van
Nostrand's Scientific Encyclopedia, at 5801). The Court then enumerated
a series of factors, many of which are scientifically based, relevant
to determining whether a discharge is jurisdictional under the Clean
Water Act, including the nature of the material through which the
pollutant travels and the extent to which the pollutant is diluted or
chemically changed as it travels. Id. at 1476-77.
In carefully considering the text and objective of the Clean Water
Act and the best available science, this rule's incorporation of the
significant nexus standard is also consistent with the legislative
history of the Clean Water Act. The Supreme Court has noted that ``some
Members of this Court have consulted legislative history when
interpreting ambiguous statutory language.'' Bostock v. Clayton Cnty.,
Ga., 140 S. Ct. 1731, 1749 (2020) (emphasis in original). In Bostock,
the Court stated further that ``while legislative history can never
defeat unambiguous statutory text, historical sources can be useful for
a different purpose: Because the law's ordinary meaning at the time of
enactment usually governs, we must be sensitive to the possibility a
statutory term that means one thing today or in one context might have
meant something else at the time of its adoption or might mean
something different in another context. And we must be attuned to the
possibility that a statutory phrase ordinarily bears a different
meaning than the terms do when viewed individually or literally. To
ferret out such shifts in linguistic usage or subtle distinctions
between literal and ordinary meaning, this Court has sometimes
consulted the understandings of the law's drafters.'' Id. at 1750.
Bills introduced in 1972 in both the House of Representatives and
the Senate defined ``navigable waters'' as ``the navigable waters of
the United States.'' See 2 Environmental Policy Div., Library of
Congress, Legislative History of the Water Pollution Control Act
Amendments of 1972 at 1069, 1698 (1973). The House and Senate
Committees, however, expressed concern that the definition might be
given an unduly narrow reading. Thus, 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 or may be made for
administrative purposes.'' H.R. Rep. No. 92-911, at 131 (1972).
The Senate Report stated that ``[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). The Conference Committee deleted the
word ``navigable'' from the definition of ``navigable waters,'' broadly
defining the term to include ``the waters of the United States.'' The
Conference Report explained that the definition was intended to
repudiate earlier limits on the reach of Federal water pollution
efforts: ``The conferees fully intend that the term `navigable waters'
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. 92-1236, at 144
(1972). The significant nexus standard thus fulfills Congress's intent
that the scope of the term ``navigable waters'' be broader than the
limitations of earlier water pollution control statutes and agency
determinations under them (section 10 waters and their tributaries, for
example, under the Rivers and Harbors Act of 1899). And, because the
significant nexus standard is focused on protecting waters to meet the
objective of the Act, it also comports with congressional intent.
The significant nexus standard is also consistent with prior
Supreme Court decisions and with every circuit decision that has
gleaned a rule of law from that precedent. For example, in Riverside
Bayview, the Court deferred to the agencies' interpretation: ``In view
of the breadth of Federal regulatory authority contemplated by the Act
itself and the inherent difficulties of defining precise bounds to
regulable waters, the Corps' ecological judgment about the relationship
between waters and their adjacent wetlands provides an adequate basis
for a legal judgment that adjacent wetlands may be defined as waters
under the Act.'' 474 U.S. at 134. Indeed, the Court in Riverside
Bayview concluded that ``significant effects'' is the relevant basis
for asserting jurisdiction over adjacent wetlands: ``If 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. In
Rapanos, Justice Kennedy--referencing the Court in Riverside Bayview--
stated that ``the Court indicated that `the term ``navigable'' as used
in the Act is of limited import,' [and] it relied, in upholding
jurisdiction, on the Corps' judgment that `wetlands adjacent to lakes,
rivers, streams, and other bodies of water may function as integral
parts of the aquatic environment even when the moisture creating the
wetlands does not find its source in the adjacent bodies of water.' ''
547 U.S. at 779 (Kennedy, J., concurring in the judgment) (citing
Riverside Bayview, 474 U.S. at 133, 135). ``The implication,'' Justice
Kennedy observed, ``was that wetlands' status as `integral parts of the
aquatic environment'--that is, their significant nexus with navigable
waters--was what established the Corps' jurisdiction over them as
waters of the United States.'' Rapanos, 547 U.S. at 779 (emphasis
added); see also id. at 780 (``[W]etlands' ecological functions vis-
[aacute]-vis other covered waters are the basis for the Corps'
regulation of them.''). The Court in SWANCC also characterized its
decision in Riverside Bayview as informed by the ``significant nexus
between the wetlands and `navigable waters.' '' 531 U.S. at 167.
In Rapanos, Justice Kennedy reasoned that Riverside Bayview and
SWANCC
[[Page 3037]]
``establish the framework for'' determining whether an assertion of
regulatory jurisdiction constitutes a reasonable interpretation of
``navigable waters,'' finding that ``the connection between a
nonnavigable water or wetland and a navigable water may be so close, or
potentially so close, that the Corps may deem the water or wetland a
`navigable water' under the Act,'' and ``[a]bsent a significant nexus,
jurisdiction under the Act is lacking.'' 547 U.S. at 767. Justice
Kennedy also identified many of the same valuable wetland functions as
the Science Report: ``Important public interests are served by the
Clean Water Act in general and by the protection of wetlands in
particular. To give just one example, amici here have noted that
nutrient-rich runoff from the Mississippi River has created a hypoxic,
or oxygen-depleted, `dead zone' in the Gulf of Mexico that at times
approaches the size of Massachusetts and New Jersey. Scientific
evidence indicates that wetlands play a critical role in controlling
and filtering runoff'' Id. at 777 (citing Brief for Association of
State Wetland Managers et al. 21-23; Brief for Environmental Law
Institute 23; OTA 43, 48-52; R. Tiner, In Search of Swampland: A
Wetland Sourcebook and Field Guide 93-95 (2d ed. 2005); Whitmire &
Hamilton, Rapid Removal of Nitrate and Sulfate in Freshwater Wetland
Sediments, 34 J. Env. Quality 2062 (2005)).
The agencies are mindful of the Supreme Court's decision in SWANCC
regarding the specific Commerce Clause authority Congress was
exercising in enacting the Clean Water Act--``its traditional
jurisdiction over waters that were or had been navigable in fact or
which could reasonably be so made''--and the Court's guidance on
avoiding an administrative interpretation of a statute that invokes the
outer limits of Congress's power. 531 U.S. at 172; see also id. (``[W]e
expect a clear indication that Congress intended that result.''). With
respect to section 404 authority over an abandoned sand and gravel pit
based simply on whether it was used by migratory birds (the ``Migratory
Bird Rule''), the SWANCC Court concluded that there was not a clear
statement from Congress. Id. at 174. By placing traditional navigable
waters, the territorial seas, and interstate waters at the center of
the agencies' jurisdiction and covering additional waters only where
those waters significantly affect (a)(1) waters, this rule reflects the
Court's guidance. Further, in construing the statute in this rule, the
agencies have not only eschewed the ``Migratory Bird Rule,'' they have
deleted the provisions in the 1986 regulations that authorized
assertions of jurisdiction under broader Commerce Clause authority and
replaced them with the relatively permanent and significant nexus
standards.
Indeed, the provisions in the 1986 regulations authorized
assertions of jurisdiction far more broadly than under the relatively
permanent standard and significant nexus standard in this rule. First,
the regulatory text authorized the assertion of jurisdiction over
``[a]ll other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters: Which are or could be used
by interstate or foreign travelers for recreational or other purposes;
or From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or Which are used or could be used for
industrial purposes by industries in interstate commerce.'' 33 CFR
328.3(a)(3) (2014). This regulatory text was based on all three
categories of activity that Congress may regulate using its Commerce
Clause authority: (1) the channels of interstate commerce; (2) persons
or things in interstate commerce; and (3) activities that substantially
affect interstate commerce. See United States v. Lopez, 514 U.S. 549,
558-59 (1995). This approach thus overall was a far broader definition
of ``waters of the United States'' than this rule, which recognizes
that the Supreme Court in SWANCC held that Congress was not using all
aspects of its Commerce Clause authority. Moreover, as discussed by the
Court in SWANCC, the agencies stated in the preamble to the 1986
regulations that ``waters of the United States'' at 33 CFR 328.3(a)(3)
also included waters that ``are or would be used as habitat by birds
protected by Migratory Bird Treaties; . . . [that] are or would be used
as habitat by other migratory birds which cross state lines; . . .
[that] are or would be used as habitat for endangered species; or . . .
[waters] [u]sed to irrigate crops sold in interstate commerce.'' 51 FR
41206, 41217 (November 13, 1986). This is the 1986 preamble language
that became known as the ``Migratory Bird Rule'' and clearly
established a far greater scope of ``waters of the United States'' than
this rule, as migratory birds use waters large and small all over the
United States with no connection to a traditional navigable water, the
territorial seas, or an interstate water.
The agencies also have carefully amended other provisions of the
1986 regulations not only to add the relatively permanent standard and
the significant nexus standard as limitations on the scope of ``waters
of the United States'' but to add additional limitations where the
agencies were concerned assertions of jurisdiction could push the
limits of the congressional authority granted to the agencies or
constitutional limits. For example, in a change from the 1986
regulations, tributaries to intrastate lakes and ponds, streams, and
wetlands that do not fall within other categories of the rule
(paragraph (a)(5) waters in this rule, which are analogous to the
``other waters'' provision of the 1986 regulations) do not qualify as
tributaries under this rule, nor do wetlands adjacent to such waters.
As set forth in this rule, the relatively permanent standard and the
significant nexus standard allow the agencies to fulfill the statute
and Congress's clearly stated objective, while being carefully crafted
to fall well within the authority granted to the agencies by Congress
and to Congress by the Constitution. As noted above, the SWANCC Court
itself viewed ``significant nexus'' as the touchstone for determining
the scope of ``waters of the United States'' in its decision in
Riverside Bayview, concluding the decision was informed by the
``significant nexus between the wetlands and `navigable waters.' '' 531
U.S. at 167. The agencies agree with the analysis of Justice Kennedy,
who explicitly addressed these constitutional concerns in Rapanos,
stating: ``In SWANCC, by interpreting the Act to require a significant
nexus with navigable waters, the Court avoided applications--those
involving waters without a significant nexus--that appeared likely, as
a category, to raise constitutional difficulties and federalism
concerns.'' 547 U.S. at 776. Moreover, the rule is consistent with
decades of interpretation and implementation undisturbed by Congress.
Moreover, the SWANCC Court noted that the statement in the
Conference Report for the Clean Water Act that the conferees ``intend
that the term `navigable waters' be given the broadest possible
constitutional interpretation,'' S. Conf. Rep. No. 92-1236, at 144
(1972), signifies Congress's intent with respect to its exertion of its
commerce power over navigation. As the numerous Supreme Court decisions
discussed above have found, Congress enacted the Clean Water Act to
establish a comprehensive Federal law protecting
[[Page 3038]]
water quality. The agencies' construction of the statute must also give
effect to the clearly stated objective of the Act and all the
provisions of the Act designed to achieve that objective. See section
IV.A.2 of this preamble. Thus, while the agencies must be mindful that
Congress was utilizing an aspect of its commerce power, they must be
similarly mindful that Congress intended to fully exercise that
authority in order to comprehensively address water pollution. The
agencies have concluded that the legislative history concerning the
intent of Congress regarding the scope of the Clean Water Act's
protections under its power over navigation confirms the
appropriateness of the agencies' construction of the Clean Water Act in
this rule. This rule ensures that waters, which either alone or in
combination significantly affect the integrity of traditional navigable
waters, the territorial seas, or interstate waters, are protected by
the Clean Water Act, and thus this rule carefully balances the limits
on Congress's authority and on the agencies' authority under the Act,
with congressional intent to comprehensively protect water quality and
to delegate the authority to do so to the agencies.
Finally, the Supreme Court has long held that authority over
traditional navigable waters is not limited to either protection of
navigation or authority over only the traditional navigable water.
Rather, ``the authority of the United States is the regulation of
commerce on its waters . . . [f]lood protection, watershed development,
[and] recovery of the cost of improvements through utilization of power
are likewise parts of commerce control.'' United States v. Appalachian
Electric Power Co., 311 U.S. 377, 426 (1940); see also Oklahoma ex rel.
Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 525-526 (1941) (``[J]ust
as control over the non-navigable parts of a river may be essential or
desirable in the interests of the navigable portions, so may the key to
flood control on a navigable stream be found in whole or in part in
flood control on its tributaries. . . . [T]he exercise of the granted
power of Congress to regulate interstate commerce may be aided by
appropriate and needful control of activities and agencies which,
though intrastate, affect that commerce.''). As the United States Court
of Appeals for the Sixth Circuit observed 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). The significant nexus
standard included in this rule ensures that the definition of ``waters
of the United States'' remains within the bounds of the Clean Water Act
and addresses the concerns raised by the Court in SWANCC while also
fulfilling the directive of Congress in enacting the Clean Water Act.
ii. The Relatively Permanent Standard Is Administratively Useful, But
Exclusive Reliance on the Standard for All Determinations Is
Inconsistent With the Objective of the Act
The agencies conclude that Federal protection is appropriate where
a water meets the relatively permanent standard: waters that are
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 paragraph (a)(1)
waters. Waters that meet this standard are a subset of the ``waters of
the United States'' because they will virtually always significantly
affect traditional navigable waters, the territorial seas, or
interstate waters and therefore properly fall within the Clean Water
Act's scope. However, limiting the definition of ``waters of the United
States'' to the relatively permanent standard on its own would be
inconsistent with the Act's text and objective and runs counter to
scientific principles. As discussed further below, the agencies have
included the relatively permanent standard in this rule because it
provides efficiencies and additional clarity for regulators and the
public.
Waters that meet the relatively permanent standard are within the
scope of the Clean Water Act because scientific evidence supports the
conclusion that tributaries of paragraph (a)(1) waters with relatively
permanent, standing or continuously flowing water perform important
functions that either individually, or cumulatively with similarly
situated waters in the region, have significant effects on the
chemical, physical, or biological integrity of paragraph (a)(1) waters.
The same is true of adjacent wetlands and relatively permanent open
waters with continuous surface connections to tributaries that meet the
relatively permanent standard. See Technical Support Document sections
III.A, III.B, and III.D. Tributaries that meet the relatively permanent
standard contribute consistent flow to paragraph (a)(1) waters and,
with that flow, export nutrients, sediment, food resources,
contaminants, and other materials that can both positively (e.g., by
contributing to downstream baseflow, providing food for aquatic
species, and contributing to downstream aquatic habitat) and negatively
(e.g., by exporting too much sediment, runoff, or nutrients or
exporting pollutants) affect the integrity of those paragraph (a)(1)
waters. In addition, wetlands with a continuous surface connection to
tributaries that meet the relatively permanent standard can and do
attenuate floodwaters, trap sediment, and process and transform
nutrients that might otherwise reach traditional navigable waters, the
territorial seas, or interstate waters. If the agencies assessed waters
that meet the relatively permanent standard (e.g., tributaries that
meet the relatively permanent standard or adjacent wetlands with a
continuous surface connection to such tributaries) they would virtually
always find evidence of strong factors, particularly hydrologic factors
like flow frequency and duration, that lead to strong connections and
associated effects on paragraph (a)(1) waters. Therefore, waters that
meet the relatively permanent standard will virtually always meet the
significant nexus standard.
The relatively permanent standard is useful for the agencies and
the public because it generally requires less information gathering and
assessment than the significant nexus standard. The significant nexus
standard requires evaluating whether waters, alone or in combination,
significantly affect the chemical, physical, or biological integrity of
paragraph (a)(1) waters, i.e., traditional navigable waters, the
territorial seas, and interstate waters. Such an assessment requires
considering the presence of functions for one or more subject waters
and evaluating the strength of their effects on paragraph (a)(1)
waters. In contrast, the relatively permanent standard has a more
limited focus that requires considering the flow of a tributary or
considering the surface connection between an adjacent wetland or open
water and a relatively permanent covered water. As such, while both the
significant nexus and relatively permanent standards require case-
specific, fact-based inquiries before determining whether a water meets
the definition of ``waters of the United States,'' the relatively
permanent standard will generally require less
[[Page 3039]]
assessment and thus can result in administrative efficiencies.
Standing alone as the sole test for Clean Water Act jurisdiction,
however, the relatively permanent standard has no basis in the text of
the statute and is contrary to the statute. Rather than a careful
consideration of the Clean Water Act's specialized definitions in light
of the objective of the Act, the standard's apparent exclusion of major
categories of waters from the protections of the Clean Water Act,
specifically with respect to tributaries that are not relatively
permanent and adjacent wetlands that do not have a continuous surface
connection to such relatively permanent waters or to paragraph (a)(1)
waters, is inconsistent with the Act's text and objective. In addition,
the relatively permanent standard used alone runs counter to the
science demonstrating how other categories of waters can affect the
integrity of downstream waters, including traditional navigable waters,
the territorial seas, and interstate waters. For example, many
tributaries that flow for only a short duration in direct response to
precipitation, and thus do not meet the relatively permanent standard,
are regular and direct sources of freshwater for the sparse traditional
navigable waters in the arid Southwest, such as portions of the Gila
River. In addition, many adjacent wetlands do not have a continuous
surface connection to jurisdictional waters but provide numerous flood
protection and water quality benefits to traditional navigable waters,
such as wetlands behind the extensive levee systems along the
Mississippi River.
As discussed in section IV.A.2.c of this preamble and sections
III.A.v and III.B of the Technical Support Document, there is
overwhelming scientific information demonstrating the effects ephemeral
streams can have on downstream waters and the effects wetlands can have
on downstream waters when they do not have a continuous surface
connection. The science is clear that aggregate effects of ephemeral
streams ``can have substantial consequences on the integrity of the
downstream waters'' and that the evidence of such downstream effects is
``strong and compelling.'' Science Report at 6-10, 6-13. The SAB review
of the draft Science Report explained that ephemeral streams ``are no
less important to the integrity of the downgradient waters'' than
perennial or intermittent streams.\60\ There is thus no scientific
basis for excluding waters simply because they are not relatively
permanent.
---------------------------------------------------------------------------
\60\ Letter from SAB to Gina McCarthy, Administrator, EPA
(October 17, 2014) (``2014 SAB Review'') at 22-23, 54 fig. 3.
---------------------------------------------------------------------------
The science is also clear that wetlands may significantly affect
paragraph (a)(1) waters when they have other types of surface or
hydrologic connections, such as wetlands that overflow across uplands
via sheetflow and flood jurisdictional waters or wetlands with less
frequent surface water connections; wetlands with shallow subsurface
connections to other protected waters; wetlands behind a natural berm,
a beach dune, a manmade levee, or the like; or other wetlands proximate
to jurisdictional waters. Such wetlands provide a number of functions,
including water storage that can help reduce downstream flooding;
recharging groundwater that contributes to baseflow of paragraph (a)(1)
waters; improving water quality in paragraph (a)(1) waters through
processes that remove, store, or transform pollutants such as nitrogen,
phosphorus, and metals; and serving as unique and important habitats
including for aquatic species that also utilize paragraph (a)(1)
waters. See, e.g., Science Report at 4-20 to 4-38.
The agencies have also concluded that there is no basis in the text
of the statute to exclude waters from Clean Water Act jurisdiction
solely because they do not meet the relatively permanent standard. As
discussed in section IV.A.2.a of this preamble, the objective of the
Clean Water Act is to restore and maintain the water quality of the
nation's waters. The phrase ``waters of the United States'' is by its
terms expansive and not expressly limited to relatively permanent,
standing or continuously flowing bodies of water, or to wetlands with a
continuous surface connection. The imposition of such limitations would
disregard the science demonstrating the effects of upstream waters and
wetlands on downstream paragraph (a)(1) waters. Taking science into
account, the agencies agree with Justice Kennedy that the Clean Water
Act intends to protect waters that do not meet the relatively permanent
standard, where such waters have a significant nexus to a paragraph
(a)(1) water. Rapanos, 547 U.S. at 773-74 (Kennedy, J., concurring in
the judgment) (``Needless to say, a continuous connection is not
necessary for moisture in wetlands to result from flooding--the
connection might well exist only during floods.''); see also id. at 775
(``In many cases, moreover, filling in wetlands separated from another
water by a berm can mean that floodwater, impurities, or runoff that
would have been stored or contained in the wetlands will instead flow
out to major waterways. With these concerns in mind, the Corps'
definition of adjacency is a reasonable one, for it may be the absence
of an interchange of waters prior to the dredge and fill activity that
makes protection of the wetlands critical to the statutory scheme.'').
The agencies have concluded that there is no sound basis in the
text of the statute to exclude tributaries solely on the basis that
they are not relatively permanent, standing or continuously flowing
bodies of water from the Clean Water Act. In interpreting the Clean
Water Act to be limited in such a manner, the Rapanos plurality relied
on a strained reading of the Act that is inconsistent with the text of
the statute--including the statute's stated objective--the structure of
the statute, the statutory history, and Supreme Court precedent
interpreting the Clean Water Act.
First, the plurality stated that because one entry in a dictionary
defines ``waters'' to mean ``water `[a]s found in streams and bodies
forming geographical features such as oceans, rivers, [and] lakes,' or
`the flowing or moving masses, as of waves or floods, making up such
streams or bodies,' '' Rapanos, 547 U.S. at 732 (quoting Webster's New
International Dictionary 2882 (2d ed. 1954) (hereinafter, ``Webster's
Second'')), the phrase ``navigable waters'' permits Corps and EPA to
assert jurisdiction only over ``relatively permanent, standing or
flowing bodies of water.'' Rapanos, 547 U.S. at 732. The plurality
leans heavily on the fact that Congress defined ``navigable waters'' as
``the waters of the United States.'' 33 U.S.C. 1362(7) (emphasis
added). But the article ``the'' and plural ``waters'' cannot bear this
weight. Congress used the term ``the waters'' throughout the Clean
Water Act and in usages where it would be illogical to swap in the
plurality's preferred definition. For example, throughout the Act,
Congress frequently refers to ``the waters of the contiguous zone'' and
even ``the waters of the territorial seas, the contiguous zone, and the
oceans.'' 33 U.S.C. 1343(a), (c) (emphasis added). Congress is not
making a careful distinction between some of ``the waters'' of the
contiguous zone and other waters of the contiguous zone based on a
dictionary definition. Nor did Congress intend to single out some
waters of the Great Lakes when it instructed the Administrator to
``conduct research and technical development work, and make studies,
with respect to the quality of the waters of the Great Lakes.'' 33
U.S.C. 1254(f) (emphasis added).
[[Page 3040]]
The plurality relied on one particular dictionary definition to
limit the scope of the ``waters of the United States'' in a way that is
neither compelled by, nor consistent with, the text of the statute. The
plurality selected a dictionary, Webster's Second that was not even the
most recent edition as of passage of the Clean Water Act, and thus not
as reflective of common usage, and then selected a preferred definition
within that dictionary. See Rapanos, 547 U.S. at 732. Webster's Second
does not have a separate entry for ``waters'' (plural), so the
plurality relied on its entry for ``water'' (singular) and within that
skipped over several more apt definitions to reach its preferred one.
The first definition of ``water'' within Webster's Second (1.a. of the
definition) is ``[t]he liquid which descends from the clouds in rain
and which forms rivers, lakes, seas, etc.,'' a definition that is
substantially broader than the one chosen by the plurality. The
plurality's preferred definition, ``water as found in streams and
bodies forming geographical features such as oceans, rivers, and
lakes,'' is halfway down the column, definition 2.c. Moreover, the
definition of ``waters,'' plural, in the most contemporaneous
Webster's, was also substantially broader, providing the following
definition: ``the water occupying or flowing in a particular bed.''
Webster's Third New Intl. (1966). Even taking the plurality's preferred
definition at face value, it does not support the relatively permanent
standard. That definition includes ``water as found in streams.'' The
plurality concluded that the streams referred to in the definition must
be relatively permanent and thereby concluded that the ``waters of the
United States'' do not include intermittent and ephemeral streams
(although the plurality did not use those terms in the scientific sense
and added caveats to its stated textual reading of the statute--stating
that ``relatively permanent'' does not necessarily exclude waters
``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''). Rapanos, 547 U.S. at 732
n.5 (emphasis in original). Intermittent and ephemeral streams are, of
course, ``streams''--as they are defined in the dictionary, understood
in common parlance, and defined by scientists.
The agencies thus agree with Justice Kennedy that the limitations
the plurality imposes on the Clean Water Act ``are without support in
the language and purposes of the Act or in our cases interpreting it.''
Rapanos, 547 U.S. at 768. The agencies also agree that a permanent
standing water or continuous flow requirement ``makes little practical
sense in a statute concerned with downstream water quality.'' Id. at
769. And, as discussed above, ``a full reading of the dictionary
definition precludes the plurality's emphasis on permanence: The term
`waters' may mean `flood or inundation,' events that are impermanent by
definition;'' it follows that ``the Corps can reasonably interpret the
Act to cover the paths of such impermanent streams.'' Id. at 770
(quoting Webster's Second 2882).
The agencies also have concluded that Riverside Bayview does not
support the plurality's standard for tributaries. As Justice Kennedy
stated: ``To be sure, the Court there compared wetlands to `rivers,
streams, and other hydrographic features more conventionally
identifiable as ` ``waters.'' ' Rapanos, 547 U.S. at 771 (citing
Riverside Bayview, 474 U.S. at 131). ``It is quite a stretch to claim,
however, that this mention of hydrographic features `echoe[s]' the
dictionary's reference to ` ``geographical features such as oceans,
rivers, [and] lakes.'' ' Rapanos, 547 U.S. at 771 (citation omitted).
``In fact, the Riverside Bayview opinion does not cite the dictionary
definition on which the plurality relies, and the phrase `hydrographic
features' could just as well refer to intermittent streams carrying
substantial flow to navigable waters.'' Id. at 771 (citing Webster's
Second 1221 (defining ``hydrography'' as ``[t]he description and study
of seas, lakes, rivers, and other waters; specif[ically] . . . [t]he
measurement of flow and investigation of the behavior of streams,
esp[ecially] with reference to the control or utilization of their
waters'')).
With respect to wetlands, the agencies have also concluded there is
no sound basis in the text of the Clean Water Act or in other Supreme
Court precedent for requiring that wetlands can be jurisdictional only
if they satisfy the continuous surface connection requirement of the
relatively permanent standard. The Rapanos plurality's rationale for
adopting such a test rested largely on a misreading of Riverside
Bayview. The plurality's brief discussion did not otherwise attempt to
ground its relatively permanent standard in the text, history, or
purpose of the Clean Water Act. In concluding that only wetlands with a
continuous surface connection to other covered waters are protected by
the Clean Water Act, the Rapanos plurality relied primarily on two
related propositions that it viewed as implicit in Riverside Bayview.
First, the plurality suggested that in Riverside Bayview the Clean
Water Act term ``waters'' cannot easily be construed to cover wetlands,
and that discharges into wetlands therefore can be regulated only when
particular wetlands ``adjoined'' waters of the United States and were
thus deemed ``part of'' the waters to which they are adjacent. See 547
U.S. at 740. Second, the plurality concluded that this requirement will
be satisfied only when ``the wetland has a continuous surface
connection with [the adjacent] water.'' Id. at 742. Those propositions
are unsound and rest on a misreading of Riverside Bayview.
The Rapanos plurality quoted the Riverside Bayview Court's
statement that, ``[o]n a purely linguistic level, it may appear
unreasonable to classify `lands,' wet or otherwise, as `waters.' '' 547
U.S. at 740 (quoting Riverside Bayview, 474 U.S. at 132). In the next
sentence of its opinion, however, the Riverside Bayview Court
continues, and the Rapanos plurality omits, that ``[s]uch a simplistic
response . . . does justice neither to the problem faced by the Corps
in defining the scope of its authority under Sec. 404(a) nor to the
realities of the problem of water pollution that the Clean Water Act
was intended to combat.'' 474 U.S. at 132. The Riverside Bayview Court
concluded that ``adjacent wetlands may be defined as waters under the
Act.'' Id. at 134. And, as explained above, the Clean Water Act's text,
history, and purpose likewise confirm that adjacent wetlands are
themselves ``waters'' covered by the Act.
The Rapanos plurality read Riverside Bayview as resting on the
``inherent ambiguity in drawing the boundaries of any `waters.''' 547
U.S. at 740. The plurality also described SWANCC as having read
Riverside Bayview to be ``refer[ring] to the close connection between
waters and the wetlands that they gradually blend into.'' Rapanos, 547
U.S. at 741. The plurality concluded that ``only those wetlands with a
continuous surface connection to bodies that are `waters of the United
States' in their own right'' can be protected by the Clean Water Act,
because only in that circumstance is it ``difficult to determine where
the `water' ends and the `wetland' begins.'' Id. at 742. However, the
Rapanos plurality misconceived the nature of the line-drawing problem
in Riverside Bayview. The Riverside Bayview Court identified
``shallows, marshes, mudflats, swamps, [and] bogs'' as examples of
``areas that are not wholly aquatic but nevertheless fall far short of
being dry land,'' and it
[[Page 3041]]
observed that ``[w]here on this continuum to find the limit of `waters'
is far from obvious.'' 474 U.S. at 132. The line-drawing problem in
Riverside Bayview did not involve identifying the boundary between a
jurisdictional stream and an adjacent wetland. Rather, the line-drawing
problem involved the criteria that should be used to determine whether
particular types of hydrogeographic features should be regarded as
``waters'' under the Clean Water Act. That line-drawing problem--in
essence, determining how wet is wet enough--can arise even when a
particular swamp or marsh is separated by a barrier from a nearby lake
or stream. After discussing at some length the regulatory definition of
``wetlands'' and its application to the property at issue in that case,
see id. at 129-131, the Riverside Bayview Court upheld as reasonable
``the Corps' approach of defining adjacent wetlands as `waters' within
the meaning of'' the Clean Water Act. Id. at 132.
As further support for its relatively permanent standard, the
Rapanos plurality invoked SWANCC's holding that certain isolated ponds
were not covered by the Clean Water Act. The SWANCC Court had described
Riverside Bayview as resting on ``the significant nexus between the
wetlands and'' the waters to which they are adjacent. 531 U.S. at 167.
The Rapanos plurality in turn described SWANCC as ``reject[ing] the
notion that the ecological considerations upon which the Corps relied
in Riverside Bayview . . . provided an independent basis for including
entities like `wetlands' . . . within the phrase `the waters of the
United States.' '' 547 U.S. at 741 (citation omitted). In the
plurality's view, ``SWANCC found such ecological considerations
irrelevant to the question whether physically isolated waters come
within the Corps' jurisdiction,'' because the coverage inquiry for the
``[i]solated ponds'' at issue in that case ``presented no boundary-
drawing problem that would have justified the invocation of ecological
factors.'' Id. at 741-742. Contrary to the Rapanos plurality's
suggestion, the Court in SWANCC did not hold that the particular
``ecological considerations upon which the Corps relied in Riverside
Bayview,'' 547 U.S. at 741--i.e., the potential importance of wetlands
to the quality of adjacent waters--were irrelevant to Clean Water Act
jurisdiction. Rather, the Court held that a different ecological
concern, namely the potential use of the isolated ponds as habitat for
migratory birds, could not justify treating those ponds as ``waters of
the United States.'' See 531 U.S. at 164-165, 171-172. That ecological
concern was not cognizable because it was unrelated to ``what Congress
had in mind as its authority for enacting the CWA: its traditional
jurisdiction over waters that were or had been navigable in fact or
which could reasonably be so made.'' Id. at 172 (citation omitted).
Aside from its mistaken reliance on Riverside Bayview and SWANCC,
the Rapanos plurality did not attempt to ground the relatively
permanent standard in the Clean Water Act's text or history. See 547
U.S. at 739-742. And limiting Clean Water Act coverage to wetlands with
a continuous surface connection would affirmatively undermine the Act's
purpose by creating an illogical jurisdictional gap. It would
categorically exclude wetlands separated from covered waters by a dike
or similar barrier, even if they are closely connected by subsurface
flow or periodic floods, regardless of such wetlands' ecological
importance to covered waters nearby and downstream. The agencies have
concluded that overwhelming scientific evidence shows that such
wetlands may significantly affect paragraph (a)(1) waters. See Science
Report 4-20 to 4-38; Technical Support Document section III.B.
Additionally, the relatively permanent standard was not briefed in
Rapanos. See 547 U.S. at 800 (Stevens, J., dissenting). And the
plurality's terse discussion of the issue did not elaborate on either
aspect of that standard in any detail. The plurality stated that
``relatively permanent'' does not necessarily exclude waters ``that
might dry up in extraordinary circumstances, such as drought'' or
``seasonal rivers, which contain continuous flow during some months of
the year but no flow during dry months.'' 547 U.S. at 732 n.5 (emphasis
in original). The Rapanos plurality distinguished a ``continuous
surface connection'' from ``an intermittent, physically remote
hydrologic connection,'' but gave little further guidance on the
application of its test. Id. at 742 (plurality opinion). As long as the
relatively permanent standard is understood as a useful but not
exclusive standard for Clean Water Act coverage, it has not created
arbitrary and harmful results.
If the relatively permanent standard were the sole standard, a
small surface connection would suffice, but the presence of a levee to
protect a river and its adjacent wetlands could strip the wetlands of
Clean Water Act coverage since, under the relatively permanent
standard, a human-made barrier such as a levee means that there is not
a continuous surface connection between the river and the wetlands.
This result would be irrational and contrary to the objectives of the
statute. The Mississippi River, for example, features an extensive
levee system built to prevent flooding. The Upper Mississippi Valley
alone includes approximately 17,000 kilometers (more than 10,000 miles)
of levees. Technical Support Document section III.B.ii.2. Those levees
would preclude Clean Water Act coverage under the relatively permanent
standard even though adjacent wetlands are often a necessary part of
the flood-control project--detaining floodwaters to protect surrounding
and downstream communities--and even though the wetlands maintain a
hydrologic connection to the river system. Cf. R. Daniel Smith &
Charles V. Klimas, Eng'r Rsch. & Dev. Ctr., A Regional Guidebook for
Applying the Hydrogeomorphic Approach to Assessing Wetland Functions of
Selected Regional Wetland Subclasses, Yazoo Basin, Lower Mississippi
River Alluvial Valley 47, 48-49 (April 2002).
More broadly, the relatively permanent standard's continuous
surface connection requirement could make loss of Clean Water Act
jurisdiction a consequence of building a road, levee, or other
barrier--even if the construction had little or no effect on the
interdependent relationship between a wetland and a neighboring water.
That could create perverse incentives to build or modify such barriers
in a manner aimed either at destroying or preserving Federal
jurisdiction.
Further, as discussed above, Congress declined to narrow the scope
of ``waters of the United States'' when it amended the Clean Water Act
in 1977. The relatively permanent standard amends the Clean Water Act
to limit its scope in ways that Congress has considered doing but has
repeatedly declined to do, including through legislation introduced
after the Rapanos decision and after promulgation of the 2020 NWPR.\61\
As Justice Kennedy stated:
[[Page 3042]]
``To be sure, Congress could draw a line to exclude irregular
waterways, but nothing in the statute suggests it has done so. Quite
the opposite.'' 547 U.S. at 770.
---------------------------------------------------------------------------
\61\ See, e.g., Navigable Waters Protection Act, S. 2567, 117th
Cong. (2021) (proposing to codify the 2020 NWPR as Federal
legislation); Define WOTUS Act, S. 2356, 116th Cong. (2019)
(proposing to revise the Clean Water Act to define ``navigable
waters'' to include the territorial seas, interstate waters used in
the transport of interstate or foreign commerce, and waters meeting
the Rapanos plurality's standard); S.J. Res. 22, 114th Cong. (2015)
(proposing to nullify the 2015 Clean Water Rule); Defense of
Environment and Property Act, H.R. 3377, 113th Cong. (2013)
(proposing to revise the Clean Water Act to limit ``waters of the
United States'' to navigable-in-fact waters and ``permanent or
continuously flowing bodies of water that form geographical features
commonly known as streams, oceans, rivers, and lakes that are
connected to waters that are navigable-in-fact''); Amendment 2177,
S. 3240, 112th Cong. (2012) (proposing to amend an appropriations
bill to limit the Clean Water Act's definition of ``waters of the
United States'' to navigable-in-fact waters and ``permanent,
standing or continuously flowing bodies of water that form
geographical features commonly known as streams, oceans, rivers, and
lakes that are connected to waters that are navigable-in-fact'').
---------------------------------------------------------------------------
Finally, the agencies have consistently construed Rapanos to mean
that a water is jurisdictional under the Clean Water Act if it meets
either the relatively permanent standard or the significant nexus
standard. The 2020 NWPR, however, interpreted the statute to primarily
find waters jurisdictional only if they met the relatively permanent
standard, as that standard was specifically interpreted in the 2020
NWPR. The 2020 NWPR argued that it reflected both the plurality and
Kennedy opinions, which it characterized as having ``sufficient
commonalities . . . to help instruct the agencies on where to draw the
line between Federal and State waters.'' 85 FR 22250, 22268 (April 21,
2020). The opinions have important differences, however. Justice
Kennedy looked to the existence of a significant nexus between waters
at issue and traditional navigable waters, whereas the plurality held
that ``waters of the United States'' is limited to ``relatively
permanent'' waters connected to traditional navigable waters, and
wetlands with a ``continuous surface connection'' with those waters.
Rapanos, 547 U.S. at 742. Justice Kennedy rejected these two
limitations in the plurality as ``without support in the language and
purposes of the Act or in our cases interpreting it.'' Id. at 768; see
also id. at 776 (``In sum the plurality's opinion is inconsistent with
the Act's text, structure, and purpose.''). Yet the plurality's
limitation of jurisdiction to ``relatively permanent'' waters and those
with a ``continuous surface connection'' to those waters pervades the
2020 NWPR. See 85 FR 22338-39; see also 2020 NWPR regulatory text at 33
CFR 328.3(a), (c)(1), (c)(6), (c)(12). The 2020 NWPR disregards the
significant nexus standard, see generally 85 FR 22270, 22338-39 (April
21, 2020); 33 CFR 328.3, and, in doing so, restricted the scope of the
statute using limitations Justice Kennedy viewed as anathema to the
purpose and text of the Clean Water Act. For the reasons articulated
throughout sections IV.A and IV.B of this preamble, the agencies reject
the 2020 NWPR's interpretation of ``waters of the United States'' as
inconsistent with the objective of the Clean Water Act, the science,
and the case law.
While the relatively permanent standard is administratively useful
and includes waters that have important effects on the water quality of
paragraph (a)(1) waters, the standard excludes waters that properly
fall within the Clean Water Act's protections. As a result, this rule's
incorporation of jurisdictional limitations based upon the relatively
permanent standard and the significant nexus standard reflects the text
of the statute as a whole. Thus, with this rule, the agencies properly
fulfill their congressionally delegated responsibility to construe
``waters of the United States'' in a manner that advances the objective
of the Act.
iii. Fact-Based Standards for Determining Clean Water Act Jurisdiction
Are Appropriate
The agencies have the discretion to consider defining waters as
jurisdictional on a categorical basis where scientifically and legally
justified (for example in this rule, paragraph (a)(1) waters and their
adjacent wetlands) or a case-specific, fact-based approach (for
example, in this rule, tributaries and their adjacent wetlands that
meet the significant nexus standard or relatively permanent standard).
While the latter does not necessarily provide the same certainty as
defining waters as jurisdictional by category, case-specific
determinations of the scope of Clean Water Act jurisdiction are not
unusual--in fact, they are the norm. In the Supreme Court's most recent
decision addressing a question about the jurisdictional scope of the
Clean Water Act, although not the scope of ``waters of the United
States,'' the Court established a standard for determining jurisdiction
that does not establish bright lines marking the bounds of Federal
jurisdiction. Instead, like the significant nexus standard, the
standard in Maui requires an inquiry focused on the specific facts at
issue and is guided by the purposes Congress sought to achieve under
the Clean Water Act. In Maui, the Supreme Court considered whether
discharges to groundwater that reach navigable waters are
jurisdictional under the Clean Water Act and thus subject to the Act's
section 402 permitting program. The Court held that ``the statute
requires a permit when there is a direct discharge from a point source
into navigable waters or when there is the functional equivalent of a
direct discharge.'' Maui, 140 S. Ct. at 1476. The Court explained that
``[w]e think this phrase best captures, in broad terms, those
circumstances in which Congress intended to require a federal permit.''
Id. The Court further explained that, in applying its broadly worded
standard, ``[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.'' Id. The Court recognized that the
difficulty with its approach was that ``it does not, on its own,
clearly explain how to deal with middle instances,'' but reasoned that
``there are too many potentially relevant factors applicable to
factually different cases for this Court now to use more specific
language.'' Id. The Court enumerated a series of factors relevant to
determining whether a discharge is the ``functional equivalent'' of
direct discharge, including the time between when the discharge occurs
and when the pollutants reach the navigable water, the distance the
pollutants travel to the navigable water, the nature of the material
through which the pollutant travels, the extent to which the pollutant
is diluted or chemically changed as it travels, the amount of pollutant
entering the navigable waters relative to the amount of the pollutant
that leaves the point source, the manner by or area in which the
pollutant enters the navigable waters, and the degree to which the
pollution (at that point) has maintained its specific identity. Id. at
1476-77.
The Supreme Court's ``functional equivalent'' standard has several
key characteristics in common with the significant nexus standard and
the agencies' approach in this rule. Both standards require an analysis
focused on the specific facts at issue in a particular instance. Under
the ``functional equivalent'' standard, factors that may be relevant,
depending on the circumstances of a particular case, include transit
time, distance traveled, the geologic substrate through which the
discharges travels, the location and nature of the receiving water, and
other factors. Similarly, the significant nexus standard requires
consideration of scientific principles of upstream functions and
effects on the integrity of paragraph (a)(1) waters and facts related
to the specific waters at issue. Indeed, this rule includes a list of
factors that would be considered when assessing whether waters
significantly affect paragraph (a)(1) waters that is similar in nature
to the factors identified by the Court that may be relevant to making a
``functional equivalent'' assessment. See section IV.C.9 of this
preamble. The relatively permanent standard also
[[Page 3043]]
requires inquiry into specific facts about particular tributaries,
wetlands, and open waters, although the inquiry generally requires less
information-gathering and assessment than the significant nexus
standard. The Court in Maui also explicitly rejected EPA's suggested
approach, which established a bright line that categorically excluded
all discharges to groundwater regardless of whether they reached
navigable waters and instead adopted the ``functional equivalent''
analysis. 140 S. Ct. at 1474-75. The Maui Court's analysis underscores
the agencies' concerns about the 2020 NWPR, which categorically
excluded all ephemeral tributaries and wetlands that did not meet its
very narrow definition in spite of their impact on the chemical,
physical, and biological integrity of paragraph (a)(1) waters. In this
rule, the agencies are rejecting that approach and resuming the use of
the significant nexus standard to determine which waters have a
sufficient impact on traditional navigable waters, the territorial
seas, or interstate waters.
Finally, both the functional equivalent standard and the
significant nexus standard should be applied while keeping in mind the
purposes of the Clean Water Act. As the Court explained in Maui,
``[t]he underlying statutory objectives also provide guidance.
Decisions should not create serious risks either of undermining state
regulation of groundwater or of creating loopholes that undermine the
statute's basic federal regulatory objectives.'' Id. at 1477. Likewise,
Justice Kennedy explained that, when assessing the existence of a
``significant nexus'' between wetlands and navigable waters, ``[t]he
required nexus must be assessed in terms of the statute's goals and
purposes.'' Rapanos, 547 U.S. at 779.
The agencies recognize that in both Rapanos and Maui, the Supreme
Court was clear that the agencies could promulgate regulations that
further refine the case-specific jurisdictional tests. With this rule,
the agencies have established limits that appropriately draw the
boundary of ``waters of the United States'' by ensuring that, where
upstream waters significantly affect the integrity of waters and the
Federal interest is indisputable--the traditional navigable waters, the
territorial seas, and interstate waters--Clean Water Act programs apply
to ensure that the downstream waters are adequately protected (by
protecting those upstream waters). This rule continues the use of case-
specific jurisdictional tests but also provides needed clarity by
establishing regulations that include definitions of key terms and
specific exclusions. Moreover, the agencies have extensive experience
making jurisdictional determinations using the relatively permanent
standard and the significant nexus standard. Field staff have gained
extensive familiarity and practical experience with the national and
regionally specific field methods, literature, datasets, models, and
tools that are required to make such determinations, resulting in
increased efficiencies over time. See section IV.C.10 of this preamble.
In addition, this rule increases clarity and implementability by
streamlining and restructuring the 1986 regulations, and this preamble
provides implementation guidance informed by sound science,
implementation tools (including modern assessment tools), and other
resources.
b. This Rule Reflects Full and Appropriate Consideration and Balancing
of the Water Quality Objective in Section 101(a) and the Policies
Relating to Responsibilities and Rights of Tribes and States Under
Section 101(b) of the Clean Water Act
This rule reflects consideration of the statute as a whole,
including the objective of the Clean Water Act and the policies of the
Act with respect to the role of Tribes and States. As discussed in
section IV.A.2.a of this preamble, the agencies must consider the
objective of the Clean Water Act in interpreting the scope of the
statutory term ``waters of the United States.'' In this rule, the
agencies also consider the entire statute, including section 101(b) of
the Clean Water Act, which provides that it is congressional policy to
preserve the primary responsibilities and rights of States ``to
prevent, reduce, and eliminate pollution, to plan the development and
use . . . of land and water resources, and to consult with the
Administrator in the exercise of [the Administrator's] authority''
under the Clean Water Act. 33 U.S.C. 1251(b). 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 a matter of judgment
assigned by Congress to the agencies.
The agencies find that this rule both advances the objective of the
Clean Water Act in section 101(a) and respects the role of Tribes and
States in section 101(b).\62\ The rule appropriately draws the boundary
of waters subject to Federal protection by limiting the scope to the
protection of upstream waters that significantly affect the integrity
of waters where the Federal interest is indisputable--the traditional
navigable waters, the territorial seas, and interstate waters. Waters
that do not implicate the Federal interest in these paragraph (a)(1)
waters are not included within the scope of Federal jurisdiction. The
scope and boundaries of the definition therefore reflect the agencies'
considered judgment of both the Clean Water Act's objective in section
101(a) and the congressional policy relating to States' rights and
responsibilities under section 101(b).
---------------------------------------------------------------------------
\62\ While Clean Water Act section 101(b) does not specifically
identify Tribes, the policy of preserving States' sovereign
authority over land and water use is equally relevant to ensuring
the primary authority of Tribes to address pollution and plan the
development and use of Tribal land and water resources.
---------------------------------------------------------------------------
The agencies have carefully considered sections 101(a) and 101(b)
as well as the agencies' analysis and application of these provisions
in promulgating the 2020 NWPR. In several key respects, the agencies'
consideration and weighing of these provisions in this rulemaking
differs from the agencies' approach in the 2020 NWPR. The agencies
explained in the preamble to the proposed rule why the agencies'
revised approach represents a fuller and more appropriate consideration
of these provisions than reflected in the 2020 NWPR, and the agencies
reaffirm those positions. 86 FR 69399 (December 7, 2021). As discussed
below, based on the text of section 101(b), the structure of section
101 and the Clean Water Act as a whole, Supreme Court precedent, and
the history of Federal water pollution laws enacted by Congress up
through the 1972 amendments, the construction of the Act in this rule
fully and appropriately considers sections 101(a) and 101(b).
The policy in section 101(b) is both important and relevant to the
agencies' defining an appropriate scope of ``waters of the United
States.'' Consistent with the text of the statute and as emphasized by
the Supreme Court, Federal jurisdiction under the Clean Water Act has
limits. As explained above, Clean Water Act jurisdiction encompasses
(and is limited to) those waters that significantly affect the
indisputable Federal interest in the protection of the paragraph (a)(1)
waters--i.e., traditional navigable waters, the territorial seas, and
interstate waters. And consistent with the section 101(b) policy, where
protection (or degradation) of waters does not implicate this Federal
interest, such waters fall exclusively within Tribal or
[[Page 3044]]
State regulatory authority should they choose to exercise it. However,
there is no indication in any text of the statute that Congress
established section 101(b) as the lynchpin of defining the scope of
``waters of the United States.'' Rather, the Clean Water Act's
objective--restoring and maintaining the chemical, physical, and
biological integrity of the nation's waters--is set forth in the first
words of the first section of the statute. And the statute is designed
to address that objective through a ``comprehensive'' Federal program
of pollution control. Indeed, the text of section 101(b) is actually a
recognition of States' authority to ``prevent, reduce, and eliminate
pollution'' and provide support for the Administrator's exercise of his
or her authority to advance the objective of the Clean Water Act.
The text of section 101(b) also expressly recognizes States' role
in administering the Federal permitting programs under section 402 of
the Clean Water Act:
It is the policy of Congress that the States manage the
construction grant program under this chapter and implement the
permit programs under sections 1342 [402] and 1344 [404] of this
title. It is further the policy of the Congress to support and aid
research relating to the prevention, reduction, and elimination of
pollution, and to provide Federal technical services and financial
aid to State and interstate agencies and municipalities in
connection with the prevention, reduction, and elimination of
pollution.
Thus, the text of section 101(b) as a whole does not reflect a
general policy of deference to State regulation to the exclusion of
Federal regulation, which would be inconsistent with Congress's
enactment of the Clean Water Act because of the failures of a statutory
scheme that relied primarily on State enforcement of State water
quality standards. S. Rep. No. 92-414, 92d Cong., 1st Sess. 7 (1971)
(observing that prior statutes had been ``inadequate in every vital
aspect''). Instead, section 101(b) sets forth a policy focused on
preserving the responsibilities and rights of States to work to achieve
the objective of the Act. Those rights and responsibilities are to
prevent, reduce, and eliminate pollution generally, including, but not
limited to, through their authority over any source of pollution
subject to State law, consulting with the Administrator in the exercise
of his or her Clean Water Act authority, and implementing the Act's
regulatory permitting programs, in partnership and with technical and
financial support from the Federal Government.
The agencies' interpretation and consideration of section 101(b) in
this rule is consistent with Supreme Court precedent. The Supreme Court
has described, on numerous occasions, section 101(b) as creating a
partnership between the Federal and State governments in which the
States administer programs under federally mandated standards and are
allowed to set even more stringent standards. See, e.g., Arkansas v.
Oklahoma, 503 U.S. 91, 101 (1992) (stating that the Act ``anticipates a
partnership between the States and the Federal government'' to meet the
``shared objective'' in section 101(a), with the Federal Government
setting pollutant discharge limitations and States implementing water
quality standards for their respective waterbodies); Int'l Paper Co. v.
Ouellette, 479 U.S. 481, 489-90 (1987) (describing section 101(b) as
allowing the Federal Government to delegate administration of point
source pollution permits to States and allowing States to establish
more stringent discharge limitations than Federal requirements); Train
v. Colo. Pub. Interest Grp., 426 U.S. 1, 16 & n.13 (1976) (describing
section 101(b) as providing States authority to develop permit programs
and establish standards more stringent than those under the Clean Water
Act); see also City of Milwaukee v. Illinois, 451 U.S. 304, 341 (1981)
(Blackmun, J., dissenting) (describing section 101(b) as creating
``shared authority between the Federal Government and the Individual
States'' that allows for the States to set more stringent standards
than necessary by Federal law). While this rule does not directly
establish or alter a Clean Water Act program, these decisions informed
the agencies' deliberations because the definition of ``waters of the
United States'' affects the scope of Clean Water Act programs.
The agencies have also carefully considered the policy in section
101(b) as it relates to the Clean Water Act's objective in section
101(a). The Clean Water Act's structure makes clear that section 101(a)
sets forth the foundational purpose of the statute that must be
achieved. First, section 101(a) is the opening section of the statute
and is labelled the ``objective'' of the Clean Water Act. The agencies
interpret its placement and its simple, declarative, and overarching
statement as a powerful expression by Congress that merits substantial
weight in defining the scope of jurisdiction for all of the Clean Water
Act's regulatory programs. In contrast, section 101(b) is one of four
congressional policies contained in section 101; the other three relate
to seeking to ensure foreign countries take action to prevent, reduce,
and eliminate pollution; reducing paperwork, duplication, and
government delays; and State authority to allocate quantities of water
within their jurisdictions. See 33 U.S.C. 1251(c), (f), (g). Just as
none of those policies plays a central role in defining the scope of
the Clean Water Act, neither should section 101(b) be given such
prominence as to undermine Congress's stated objective. The prominently
placed and single expression of the Clean Water Act's overarching
objective in section 101(a) merits greater weight in the agencies'
decision-making than any of the four congressional policies expressed
in section 101 which, while important, appear subordinate to the
objective--particularly given the statutory text and structure. To the
extent there is ambiguity, the agencies have been delegated the
authority to define ``waters of the United States'' and again conclude
based on the statutory text and structure, and confirmed by the
legislative history, that the overarching objective of the Act merits
greater weight. The agencies have also thoroughly considered the other
policies in section 101 of the Act, especially section 101(b) as
discussed in this section of the preamble.
The remainder of the Clean Water Act's text also demonstrates how
important this objective was to Congress. In the Clean Water Act
itself, Congress refers to the objective of the Act approximately a
dozen times, including in sections 104, 105, 117, 120, 217, 301, 303,
304, 305, 308, 319, 402, 516, 518, and 603. The repeated reference to
the objective highlights the importance of the Clean Water Act's
objective to the statute as a whole, supporting the agencies' giving
substantial weight to this provision. Section 101(b), in contrast, is
not referred to elsewhere in the Clean Water Act.
Congress itself defined the contours of how it expected the
agencies to both achieve its objective in section 101(a) and implement
its policy in section 101(b) through the rest of the provisions of the
Clean Water Act. Notably, a narrow definition of ``waters of the United
States'' would not uniformly boost State authority as that definition
is foundational to the scope of all of the Clean Water Act's programs,
including those in which the States are assigned authority. Indeed, in
implementing Clean Water Act regulatory requirements, States can have
more powerful and holistic tools than they would have in implementing
State-only laws and regulations. For example,
[[Page 3045]]
section 401 requires State certification for federally licensed
projects within a State's borders. A narrow definition of ``waters of
the United States'' would thus actually limit States' ability to
protect waters within their borders. Similarly, a narrow definition
would limit the ability of a State to provide input during the
permitting process for out-of-state section 402 and 404 permits that
may affect its waters. See 33 U.S.C. 1341, 1342(b), 1344(h)(1)(E).
The agencies' careful balancing of section 101(a) and 101(b) in
this rule is also informed by and consistent with the Court's decision
in SWANCC, wherein the Court stated: ``Congress chose to `recognize,
preserve, and protect the primary responsibilities and rights of States
. . . to plan the development and use . . . of land and water
resources. . . .' We thus read the statute as written to avoid the
significant constitutional and federalism questions.'' 531 U.S. at 174
(citing 33 U.S.C. 1251(b)). Justice Kennedy further explained in
Rapanos: ``In SWANCC, by interpreting the Act to require a significant
nexus with navigable waters, the Court avoided applications--those
involving waters without a significant nexus--that appeared likely, as
a category, to raise constitutional difficulties and federalism
concerns.'' 547 U.S. at 776. Likewise here, this rule--by limiting
jurisdiction only to those waters that significantly affect the
integrity of waters where the Federal interest is indisputable
(traditional navigable waters, the territorial seas, and interstate
waters)--avoids constitutional and federalism concerns.
Under the Commerce Clause, Congress can regulate: (1) the channels
of interstate commerce; (2) persons or things in interstate commerce;
and (3) activities that substantially affect interstate commerce.
United States v. Lopez, 514 U.S. 549, 558-59 (1995). Regulation of
``waters of the United States'' as interpreted by this rule is a valid
exercise of Congress's power under at least the first Lopez category.
It is a well-settled proposition that Congress's power to regulate
channels of interstate commerce also includes the power to adopt
``appropriate and needful control of activities and agencies which,
though intrastate, affect that commerce.'' Rapanos, 547 U.S. at 782-83
(citing Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508,
525-26 (1941)). Traditional navigable waters are squarely within
Congress's power to regulate under its authority over the channels of
interstate commerce. And ``[i]t has long been settled that Congress has
extensive authority over this Nation's waters under the Commerce
Clause'' as channels of interstate commerce. See Kaiser Aetna v. United
States, 444 U.S. 164, 173 (1979). Indeed, Congress has enacted
``numerous laws touching interstate waters.'' City of Milwaukee, 406
U.S. at 101. Congress has broad power to keep the channels of commerce
free from injurious uses. See, e.g., Pierce Cnty. v. Guillen, 537 U.S.
129, 146-47 (2003); Lopez, 514 U.S. at 558; Perez v. United States, 402
U.S. 146, 150 (1971); Caminetti v. United States, 242 U.S. 470, 491
(1917); The Lottery Case (Champion v. Ames), 188 U.S. 321, 346-47
(1903). Thus, courts have recognized that the power over traditional
navigable waters as channels of commerce includes ``the power to
regulate waters to limit pollution, prevent obstructions to navigation,
reduce flooding, and control watershed development.'' United States v.
Hubenka, 438 F.3d 1026, 1032 (10th Cir. 2006) (citations omitted). As
noted earlier, Congress directed that the Clean Water Act ``be given
the broadest possible constitutional interpretation,'' S. Conf. Rep.
No. 92-1236, 92d Cong., 2d Sess. 144 (1972), and the ``Commerce Clause
[is] broad enough to permit congressional regulation of activities
causing air or water pollution, or other environmental hazards that may
have effects in more than one State.'' Hodel v. Va. Surface Mining &
Reclamation Ass'n, 452 U.S. 264, 282 (1981). The Supreme Court has
stated that the term ``navigable'' must be given some meaning in
defining ``waters of the United States.'' SWANCC, 531 U.S. at 172;
Rapanos, 547 U.S. at 779 (Kennedy, J., concurring in the judgment). The
agencies' construction of the Clean Water Act does that by defining
``waters of the United States'' to include traditional navigable
waters, the territorial seas, and interstate waters, and those waters
that significantly affect those waters. But while Congress was
utilizing only one prong of its Commerce Clause authority, that prong
is nevertheless broad. Indeed, ``there is no reason to believe Congress
has less power over navigable waters than over other interstate
channels,'' such that Congress cannot regulate non-navigable waters in
order to protect water quality in traditional navigable waters. United
States v. Deaton, 332 F.3d 698, 707 (4th Cir. 2003). This rule and the
significant nexus standard are squarely within the prong of Commerce
Clause authority that Congress utilized in enacting the Clean Water Act
and within the authority Congress delegated to the agencies under the
Act. Both the rule and the standard are based on protecting traditional
navigable waters, the territorial seas, and interstate waters from the
effects of upstream pollution.
Finally, in considering sections 101(a) and 101(b) for purposes of
interpreting the scope of ``waters of the United States,'' the agencies
conclude that it is important to consider the statutory history that
gave rise to this structure. Indeed, the agencies recognize that in
passing the Federal Water Pollution Control Act Amendments of 1972,
Congress was not acting on a blank slate--it was amending existing law
that had primarily provided for States to establish water quality
standards for a subset of waters. Water Quality Act of 1965, Public Law
89-234, 79 Stat. 903 (1965). Congress found the previous statute's
focus on States' establishment and administration of water quality
standards insufficient for the task of upgrading and protecting the
quality of America's waters because States were lagging in establishing
such standards and there was ``an almost total lack of enforcement.''
S. Rep. 92-414 (1971) at 5. The Clean Water Act was enacted to address
these shortcomings after ``two of the important rivers [in the Sixth]
circuit, the Rouge River in Dearborn, Michigan, and the Cuyahoga River
in Cleveland, Ohio, reached a point of pollution by flammable materials
in the last ten years that they repeatedly caught fire.'' United
States. v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1326 (6th Cir.
1974). With the 1972 amendments, Congress adopted an entirely new
approach to water pollution control--a prohibition of discharges of
pollutants unless authorized by the Clean Water Act and a new,
comprehensive, Federal regulatory scheme grounded in technology-based
effluent standards applied uniformly across industries of the same
type. ``The Committee recommends the change to effluent limits as the
best available mechanism to control water pollution. With effluent
limits, the Administrator can require the best control technology.'' S.
Rep. 92-414 at 8. Congress also viewed the prohibition on discharges of
pollutants unless authorized under the Act as ``establish[ing] a direct
link between the Federal government and each industrial source of
discharge into the navigable waters.'' Id. Thus, Congress viewed the
Clean Water Act as a change from previous laws that centered on States
and State water quality standards to a system based on a prohibition of
discharges of pollutants to waters unless permitted in accordance with
a Federal regulatory scheme and technology standards established by
EPA. Tribes
[[Page 3046]]
and States play a vital role in the implementation and enforcement of
the Clean Water Act, and this rule does not change that framework.
Instead, this rule reinforces that framework by establishing
limitations that reflect careful consideration of how best to identify
those waters for which Federal regulation is necessary to ensure the
protection of the waters at the core of Congress's authority and
interest and those for which it is not.
In the context of the scope of ``waters of the United States,'' the
Court stated that 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. More recently, the Supreme Court in Maui also noted
that: ``Prior to the Act, Federal and State Governments regulated water
pollution in large part by setting water quality standards. The Act
restructures federal regulation by insisting that a person wishing to
discharge any pollution into navigable waters first obtain EPA's
permission to do so.'' 140 S. Ct. at 1468 (citations omitted).
With respect to States' responsibilities and rights under section
101(b), Justice Kennedy in Rapanos cited State amici briefs that
``note[d], among other things, that the Act protects downstream States
from out-of-state pollution that they cannot themselves regulate.'' 547
U.S. at 777. Indeed, the Supreme Court has recognized that this is an
important aspect of the Clean Water Act's passage. City of Milwaukee
involved alleged discharges of inadequately treated sewage from
Milwaukee, Wisconsin, sewer systems directly into Lake Michigan, which
also borders Illinois. The City of Milwaukee Court noted that prior to
passage of the Clean Water Act, these discharges would have had to be
resolved through litigation, in which the courts must apply ``often
vague and indeterminate nuisance concepts and maxims of equity
jurisprudence.'' 451 U.S. at 317. The Clean Water Act, however,
replaced this unpredictable and inefficient approach with ``a
comprehensive regulatory program supervised by an expert administrative
agency,'' id., including a ``uniform system of interstate water
pollution regulation,'' Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992).
An overly narrow definition of jurisdictional waters would threaten
a return to pre-1972 regime, would exclude from Federal protection
waters that significantly affect paragraph (a)(1) waters, and would
risk removing from the statutory scheme instances of interstate
pollution the 1972 amendments were designed in part to address.
Nationwide pollution controls are critical to protecting water quality
in downstream States because downstream States have limited ability to
control water pollution sources in upstream States. See Int'l Paper Co.
v. Ouellette, 479 U.S. at 490-91. Several commenters stated that, under
the 2020 NWPR, certain States were subject to harm from increased
pollution flowing through interstate waters from upstream States. In
addition, commenters noted that the water quality in States bordering
the Great Lakes depended on adequate protection in other Great Lakes
States, some of which removed clean water regulations following
promulgation of the 2020 NWPR. The consequences of water pollution
discharged in one State and flowing to another are also economic in
nature. Such pollution also destroys or diminishes the value of water
to ``public water supplies, propagation of fish and wildlife,
recreational purposes, and agricultural, industrial, and other
purposes'' protected by the Clean Water Act. 33 U.S.C. 1313(c)(2)(A).
Moreover, an overly narrow definition of ``waters of the United
States'' would substantially impinge upon States' responsibilities and
rights under section 401 of the Clean Water Act. It is only through
that provision of the Act that States have the authority to grant,
deny, or waive certification of proposed Federal licenses or permits
that may discharge into waters of the United States.
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. This construction respects the statutory history
that gave rise to the Clean Water Act and gives effect to the
comprehensive nature of the Act, its objective, and the many programs
and policies affected by the scope of ``waters of the United States''
designed to meet that objective. This definition also ensures that
States have sole authority over waters that do not significantly affect
the paragraph (a)(1) waters clearly protected by the Act.
As discussed elsewhere, this rule defines ``waters of the United
States'' to include tributaries, adjacent wetlands, and paragraph
(a)(5) waters that meet the relatively permanent or significant nexus
standards (see section IV.C of this preamble). This rule advances the
Clean Water Act's objective by helping restore and maintain the
chemical, physical, and biological integrity of traditional navigable
waters, the territorial seas, and interstate waters--waters of
longstanding and indisputable Federal interest--by protecting them from
degradation of upstream waters that significantly affect them. At the
same time, consistent with section 101(b), this rule recognizes,
preserves, and protects the rights and responsibilities of Tribes and
States by leaving within their purview all waters that do not
significantly affect the paragraph (a)(1) waters of paramount Federal
interest. The specific jurisdictional standards in this rule therefore
bear a relationship to the nature and extent of the Federal and Tribal
and State interests at play. This line-drawing highlights the agencies'
deliberate and due consideration of sections 101(a) and 101(b) in
developing this rule.
4. This Rule Is Both Generally Familiar and Implementable
As described above in section IV.A of this preamble, the agencies
in this rule are interpreting ``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 ``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.'' It also reflects consideration of extensive
public comment.
The agencies have extensive experience implementing the pre-2015
regulatory regime, as described further below in this section, and this
experience will assist the agencies in implementing this rule. The
agencies' approach to implementation of the relatively permanent and
significant nexus standards is broadly consistent with the pre-2015
regulatory regime, but the agencies have clarified and refined both the
regulatory text and the guidance on how the agencies intend to
implement these standards in order to promote consistent Clean Water
Act protections for waters. For additional
[[Page 3047]]
clarity, this rule includes a definition of ``significantly affect''
for purposes of applying the significant nexus standard. See section
IV.C of this preamble.
Additionally, the agencies are codifying the two familiar and
longstanding exclusions from the definition of ``waters of the United
States'' for prior converted cropland and waste treatment systems and
adding exclusions for features that were generally considered non-
jurisdictional under the pre-2015 regulatory regime (see section IV.C.7
of this preamble). The features excluded under this rule were excluded
by regulation or generally considered non-jurisdictional in practice
under the pre-2015 regulatory regime and each of the subsequent rules
defining ``waters of the United States.''
The agencies have extensive experience implementing the 1986
regulations. Moreover, the scientific and technical information
available to inform the significant nexus analysis and identify waters
that meet the relatively permanent standard has also markedly improved
over time and become more readily available since the agencies first
started implementing both standards. See section IV.G of this preamble.
Since the Court's decision in Rapanos, the agencies have gained more
than a decade of experience implementing the 1986 regulations
consistent with the relatively permanent standard and the significant
nexus standard under three different presidential Administrations,
beginning with the Rapanos Guidance issued in 2007. The agencies have
continued to implement the 1986 regulations consistent with the Rapanos
Guidance in response to court decisions.
The agencies repromulgated the 1986 regulations in the 2019 Repeal
Rule and implemented those rules nationwide until June 22, 2020, when
the 2020 NWPR became effective. The agencies explained that with the
2019 Repeal Rule, they intended to ``restore the regulatory text that
existed prior to the 2015 Rule'' and that the agencies would
``implement the pre-2015 Rule regulations informed by applicable agency
guidance documents and consistent with Supreme Court decisions and
longstanding agency practice.'' 84 FR 56626 (October 22, 2019). The
agencies concluded that this approach ``will provide greater regulatory
certainty and national consistency while the agencies consider public
comments on the proposed [2020 NPWR].'' Id. at 56660. To further
justify a return to the 1986 framework, the agencies noted that ``[t]he
agencies, their co-regulators, and the regulated community are . . .
familiar with the pre-2015 Rule regulatory regime and have amassed
significant experience operating under those pre-existing regulations.
Agency staff in particular have developed significant technical
expertise in implementing the 1986 regulations.'' Id. The 2019 Repeal
Rule would thus ``provide greater certainty by reinstating nationwide a
longstanding regulatory framework that is familiar to and well-
understood by the agencies, States, Tribes, local governments,
regulated entities, and the public.'' Id. at 56661. Indeed, in their
comments to the 2019 Repeal Rule proposal, a number of regulators and
regulated parties alike expressed support for returning to the pre-2015
regulations, as implemented following SWANCC and Rapanos, due in part
to their experience and familiarity with that regime.\63\
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\63\ See, e.g., comments submitted by American Water Works
Association (August 13, 2018) (Docket ID: EPA-HQ-OW-2017-0203-
15559); comments submitted by North Dakota's Department of
Agriculture (July 25, 2018) (Docket ID: EPA-HQ-OW-2017-0203-15541);
comments submitted by the Office of the Governor of Utah (August 9,
2018) (Docket ID: EPA-HQ-OW-2017-0203-15202) (``Recodification of
the regulations that existed prior to the 2015 Rule will provide
continuity and certainty for regulated entities, States, the
agencies' staff, and the American public.'').
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Further, in responding to comments on the 2019 Repeal Rule proposal
asserting that the agencies should not return to the pre-2015
regulatory regime because that regime would reduce regulatory certainty
due to the prior regime's reliance on case-specific significant nexus
determinations, the agencies explained that ``[f]ollowing the Supreme
Court's decisions in SWANCC and Rapanos . . . the Corps published a
guidebook to assist district staff in issuing approved jurisdictional
determinations. In particular, the guidebook outlines procedures and
documentation used to support significant nexus determinations. This
guidebook has been and continues to be publicly available and will
continue to serve as a resource in issuing jurisdictional
determinations under this final rule.'' \64\ 84 FR 56660 (October 22,
2019). Even after the 2020 NWPR's June 22, 2020, effective date, the
agencies continued to implement the 2019 Repeal Rule consistent with
the Rapanos Guidance in Colorado until April 2021 due to litigation
barring implementation of the 2020 NWPR in that State.
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\64\ For convenience, EPA decisions on jurisdiction are referred
to as jurisdictional determinations throughout this document, but
such decisions are not ``approved jurisdictional determinations'' as
defined and governed by the Corps' regulations at 33 CFR 331.2.
---------------------------------------------------------------------------
Like the past three presidential Administrations, courts have also
found that the 1986 regulations, implemented consistent with the
Rapanos standards, provide an appropriate regulatory framework to
implement the Clean Water Act. Indeed, in staying the 2015 Clean Water
Rule nationwide, the Sixth Circuit found that returning to the
``familiar, if imperfect, pre-Rule regime'' was the best path forward
pending judicial review of the 2015 Clean Water Rule. In re EPA & Dep't
of Def. Final Rule, 803 F.3d 804, 808 (6th Cir. 2015), vacated, 713
Fed. Appx. 489 (6th Cir. 2018). In doing so, the court recognized that
returning to the status quo meant returning to the pre-2015 regulatory
regime--not the 1986 regulations. See id. at 806 (finding that ``the
status quo at issue is the pre-[2015 Clean Water Rule] regime of
federal-state collaboration that has been in place for several years,
following the Supreme Court's decision in Rapanos''). Likewise, in
vacating the 2020 NWPR, the Arizona district court found that returning
to the pre-2015 regulatory regime would provide for a regime that ``is
familiar to the Agencies and industry alike.'' See Pascua Yaqui Tribe
v. EPA, 557 F. Supp. 3d 949, 956 (D. Ariz. 2021).
The agencies acknowledge that the need for case-specific analyses
will continue under this rule for certain jurisdictional
determinations, potentially raising some timeliness and consistency
issues that the agencies' rules in 2015 and 2020 were designed, in
part, to reduce. The agencies' experience suggests that the number of
these analyses will be limited. Historically, only approximately 12% of
resources assessed in approved jurisdictional determinations using the
Rapanos Guidance required a significant nexus analysis.\65\ And those
significant nexus assessments often resulted in a conclusion that the
resource, either alone or in combination with similarly situated
waters, did not meet the significant nexus standard. Moreover, the
agencies have provided more clarity in this rule by: adding limitations
to the scope of the definition to the rule text; adding a definition of
``significantly affect'' that identifies the
[[Page 3048]]
functions and factors to be evaluated as part of a significant nexus
analysis; adding exclusions to the rule; restructuring and streamlining
the 1986 regulations; and drawing on more than a decade of post-Rapanos
implementation experience to provide additional implementation guidance
and resources. These improvements, taken together, substantially reduce
any inefficiencies that may be presented by the rule's case-specific
approach. Finally, as discussed above, the nature of the Clean Water
Act's requirements in general can be a fact-based, case-specific
inquiry and is not limited to whether a water meets the definition of
``waters of the United States.'' The inquiry is an important one, for
both discharges and the environment.
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\65\ It is the agencies' expectation that the number of
significant nexus analyses will increase under this rule due to the
assessment of paragraph (a)(5) waters under the significant nexus
standard, but the agencies do not expect a corresponding increase in
positive jurisdictional determinations. See section IV.C.6 of this
preamble for discussion of the agencies' intentions for
implementation of paragraph (a)(5).
---------------------------------------------------------------------------
This rule is both consistent with the Clean Water Act's statutory
text and purposes and its framework is longstanding and familiar to
regulated parties and regulators alike. Moreover, all definitions of
``waters of the United States,'' including the 2020 NWPR, require some
level of case-specific analysis. Implementation of this rule will be
aided by improved and increased scientific and technical information
and tools that both the agencies and the public can use to determine
whether waters are ``waters of the United States'' (see section IV.G of
this preamble). Accordingly, the agencies have concluded that this rule
is consistent with the Clean Water Act and that its clarity and
familiar regulatory framework improve its implementability.
Through the various rulemakings and court decisions relating to the
definition of ``waters of the United States'' since the Rapanos
decision in 2006, the agencies have continued implementing the 1986
regulations consistent with the Rapanos standards nationwide or in
numerous States across the country for various periods of time,
learning as they did so. This experience has allowed the agencies to
further develop expertise in implementing this regime. The agencies,
most often the Corps, have made hundreds of thousands of Clean Water
Act approved jurisdictional determinations since the issuance of the
Rapanos Guidance. Of those, tens of thousands have required a case-
specific significant nexus determination. The agencies have made such
determinations in every State in the country as well as in the U.S.
territories.
With field staff located in 38 Corps District offices and 10 EPA
regional offices, the agencies have over a decade of nationwide
experience in making decisions regarding jurisdiction under the pre-
2015 regulatory regime consistent with the relatively permanent
standard and the significant nexus standard. Significant nexus
determinations have been made affirmatively for waters ranging from an
ephemeral stream that flows directly into a traditional navigable water
used extensively for recreational boating and fishing, to wetlands
adjacent to a perennial tributary and separated by a levee, to a non-
relatively permanent stream that provides flow to a drinking water
source, to a group of floodplain wetlands that provide important
protection from floodwaters to downstream communities alongside the
traditional navigable water, to headwater mountain streams that provide
high quality water that supplies baseflow and reduces the harmful
concentrations of pollutants in the main part of the river below. The
agencies have also made many findings of no jurisdiction under the 1986
regulations when they concluded the waters in question did not meet
either the relatively permanent standard or the significant nexus
standard as implemented by the Rapanos Guidance.
Through this experience, the agencies developed wide-ranging
technical expertise in assessing the hydrologic flowpaths along which
water and materials are transported and transformed and that determine
the degree of chemical, physical, or biological connectivity and
effects to paragraph (a)(1) waters. The agencies have also become
deeply familiar with the variations in climate, geology, and terrain
within and among watersheds that affect the functions (such as the
transformation or filtering of pollutants) performed by streams, open
waters, and wetlands for paragraph (a)(1) waters.
The agencies utilize many tools and many sources of information to
help support decisions on jurisdiction, including U.S. Geological
Survey (USGS) and State and local topographic maps, aerial photography,
satellite imagery, gage data, soil surveys, National Wetlands Inventory
maps, floodplain maps, watershed studies, modeling tools, scientific
literature and references, and field work. As discussed further in
section IV.G of this preamble, these tools have undergone important
technological advances and have become increasingly available since the
Rapanos decision. For example, USGS, State, and local stream maps and
datasets, aerial photography, gage data, watershed assessments,
monitoring data, and field observations are often used to help assess
the flow contributions of tributaries, including intermittent and
ephemeral streams, to downstream traditional navigable waters, the
territorial seas, or interstate waters. Similarly, floodplain and
topographic maps from Federal, State, and local agencies, modeling
tools, and field observations can be used to assess how wetlands are
storing floodwaters that might otherwise affect the integrity of
paragraph (a)(1) waters. Further, the agencies utilize the large body
of scientific literature regarding the functions of tributaries,
including tributaries with ephemeral, intermittent, and perennial flow,
and of wetlands and open waters to inform their significant nexus
analyses. In addition, the agencies have experience and expertise from
decades of making decisions on jurisdiction that considered hydrology,
ordinary high water mark (OHWM) and its associated indicators (see
section IV.C.8.d of this preamble), biota, and other technical factors
in implementing Clean Water Act programs. The agencies' immersion in
the science, along with the practical expertise developed over more
than a decade of case-specific determinations across the country, have
helped the agencies determine which waters have a significant nexus and
where to draw boundaries demarking the ``waters of the United States.''
Regulated entities and other interested parties also have
substantial experience with the 1986 regulations and the two Rapanos
standards. As the agencies have developed their expertise in
implementing this regime, so have State and Tribal co-regulators and
regulated entities, as well as interested citizens who may play an
important role in the Act's permitting process. Individuals uncertain
about the status of waters on their property may obtain a
jurisdictional determination from the Corps. The Corps does not charge
a fee for this service. See 33 CFR 325.1; Regulatory Guidance Letter
16-01 (2016).
Due in part to the familiarity of this regime, this rule will not
undermine serious reliance interests in an alternative regime,
including the 2020 NWPR, which the agencies have not implemented for
over a year following the Arizona district court's August 30, 2021
vacatur order. The Supreme Court has held that agencies' changes in
position do not require any reasons ``more substantial than those
required to adopt a policy in the first instance.'' FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 514 (2009). The Court
acknowledged that if an agency's ``prior policy has engendered serious
reliance interests,'' id. at 515, those interests cannot be ignored.
However, the Court emphasized that even in the case of ``serious
reliance interests,'' ``further
[[Page 3049]]
justification'' beyond a ``reasoned explanation . . . for disregarding
facts and circumstances that underlay or were engendered by the prior
policy'' is not needed. Id. at 515-16. This rule does not implicate
serious reliance interests because, first, the agencies are codifying a
rule similar to the definition currently being implemented nationwide.
As discussed in section V.A of this preamble, this rule will establish
a regime that is generally comparable to current practice, and this
rule is expected to generate de minimis costs and benefits as compared
to the pre-2015 regulatory regime that the agencies are currently
implementing. Second, members of the public, Tribes, and States have
been aware that the agencies might reconsider the 2020 NWPR since
January 2021 and have had many opportunities to share their views with
the agencies. President Biden indicated on his first day in office,
following the issuance of Executive Order 13990, that this
administration would be reviewing the 2020 NWPR and deciding whether to
revise or replace the rule. See section III.B.5 of this preamble. On
June 9, 2021, the agencies announced their intention to revise or
replace the rule. The agencies subsequently embarked on an extensive
stakeholder outreach process, including public meetings and federalism
and Tribal consultations. See section III.C of this preamble. The
agencies received over 32,000 recommendation letters from the public
during pre-proposal outreach and over 114,000 comments on the proposed
rule during the public comment period. The agencies also held a public
hearing and multiple listening sessions with Tribal, State, and local
governments during the public comment period to listen to feedback on
the proposed rule from co-regulators and a variety of stakeholders.
Third, the 2020 NWPR was only in effect for approximately 14 months
before it was vacated by the Arizona district court on August 30, 2021.
See Pascua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021).
Less than a month later, another district court issued an order
vacating the 2020 NWPR on September 27, 2021. Navajo Nation v. Regan,
563 F. Supp. 3d 1164 (D.N.M. 2021). And several other district courts
remanded the 2020 NWPR without vacatur or without addressing vacatur in
six additional cases, starting in July 2021.\66\ Following the vacatur
orders, the agencies clarified that the Corps will no longer rely on
approved jurisdictional determinations issued under the 2020 NWPR in
making new permit decisions--although so-called ``stand-alone''
approved jurisdictional determinations (i.e., those that are not
associated with a permit action) will not be reopened prior to their
expiration date unless one of the criteria for revision is met or if
the recipient requests that the Corps provide a new approved
jurisdictional determination. See section IV.F of this preamble for
further discussion of the status of approved jurisdictional
determinations issued under prior rules.
---------------------------------------------------------------------------
\66\ Order, Pueblo of Laguna v. Regan, No. 1:21-cv-00277, ECF
No. 40 (D.N.M. Sept. 21, 2021) (declining to reach issue of vacatur
in light of the Pascua decision); Order, California v. Wheeler, No.
3:20-cv-03005, ECF No. 271 (N.D. Cal. Sept. 16, 2021) (same); Order,
Waterkeeper All., Inc. v. Regan, No. 3:18-cv-03521, ECF No. 125
(N.D. Cal. Sept. 16, 2021) (same); Order, Conservation L. Found. v.
EPA, No. 1:20-cv-10820, ECF No. 122 (D. Mass. Sept. 1, 2021) (same);
Order, S.C. Coastal Conservation League v. Regan, No. 2:20-cv-01687,
ECF No. 147 (D.S.C. July 15, 2021) (remanding without vacating);
Order, Murray v. Wheeler, No. 1:19-cv-01498, ECF No. 46 (N.D.N.Y.
Sept. 7, 2021) (same).
---------------------------------------------------------------------------
Interested parties have thus had over a year to adapt to operating
under the pre-2015 regulatory regime in the absence of the 2020 NWPR,
including ample notice of the implications of the 2020 NWPR's vacatur
on the validity of approved jurisdictional determinations issued
thereunder. Moreover, as discussed in this section, members of the
public are familiar with this rule's regulatory framework thereby
minimizing the potential disruption of a change. Finally, even if
serious reliance interests were at issue, which they are not, this rule
provides a thorough and reasoned explanation for the changed definition
of ``waters of the United States.''
5. Public Comments Received and Agency Responses
The agencies received numerous comments on the basis for the
proposed rule, including comments about the proposal's consistency with
the statute and Supreme Court decisions and about the proposal's
approach to various categories of waters. The agencies have fully
considered these timely comments and made changes to the rule to
reflect the comments, as discussed below. This section contains
summaries of these comments and the agencies' general responses; a more
comprehensive response to these comments is in the response to comments
document available in the docket for this rule at Docket ID No. EPA-HQ-
OW-2021-0602.
a. Comments Regarding Consistency of the Proposed Rule With the Text of
the Clean Water Act
Many commenters stated that the proposed rule is consistent with
the Clean Water Act's objective in section 101(a) to restore and
maintain the chemical, physical, and biological integrity of the
nation's waters and provided multiple reasons to support that view,
including the statutory text, legislative history, and science. Some
commenters further asserted that the statute requires the agencies to
regulate waters in addition to traditional navigable waters, the
territorial seas, and interstate waters.
The agencies agree that the definition of ``waters of the United
States'' must be designed to advance the objective of the Clean Water
Act. For the reasons discussed in section IV.A.2 and IV.A.3 of this
preamble, the agencies also interpret the Act based on factors other
than the science and connectivity of waters, including the text of the
statute as a whole and relevant Supreme Court decisions. Further, while
the definition of ``waters of the United States'' is designed to
advance the objective of restoring and maintaining the chemical,
physical, and biological integrity of traditional navigable waters, the
territorial seas, and interstate waters--i.e., the paragraph (a)(1)
waters--this rule covers additional waters that must be protected to
safeguard paragraph (a)(1) waters. All ``waters of the United States''
receive the full protections of the Clean Water Act.
Commenters expressed various views on the import of the word
``navigable'' in the statutory term ``navigable waters.'' Some
commenters asserted that the proposed rule did not give enough effect
to the word ``navigable,'' while others suggested that the agencies'
jurisdiction over ``waters of the United States'' is limited to
traditional navigable waters. Further, some commenters stated that
Congress intended to exercise only its traditional commerce power over
navigation rather than the full extent of its authority under the
Commerce Clause. In contrast, other commenters asserted that
legislative history demonstrates Congress's intent to assert broad
jurisdiction under the Clean Water Act beyond navigable-in-fact waters.
The agencies agree that while the Clean Water Act applies to
``navigable waters,'' Congress also broadly defined that term to
include ``the waters of the United States.'' 33 U.S.C. 1362(7). The
breadth of that definition reflects a deliberate choice. The relevant
House bill would have defined ``navigable
[[Page 3050]]
waters'' as the ``navigable waters of the United States, including the
territorial seas.'' H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 356
(1972). 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. 92-1236, 92d Cong., 2d Sess. 144 (1972). Additionally, the agencies
disagree that Clean Water Act jurisdiction is limited to traditional
navigable waters, as this interpretation would render the Clean Water
Act narrower than the Rivers and Harbors Act of 1899. Limiting Clean
Water Act jurisdiction to traditional navigable waters is also contrary
to the views of all nine Supreme Court Justices in Rapanos and would
undo Congress's considered and deliberate choice to expand Clean Water
Act jurisdiction beyond traditional navigable waters because it found
the prior statutes limited to those waters insufficient. Indeed, the
Rapanos plurality recognized that a wetland may be treated as a covered
water if it has a continuous surface connection to a ``relatively
permanent'' tributary that ``connect[s] to'' traditional navigable
waters, without any further inquiry into the tributary's navigability
or status as a link in a channel of commerce. 547 U.S. at 742. The
plurality further observed 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,'' id. 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.
(citing SWANCC, 531 U.S. at 167; Riverside Bayview, 474 U.S. at 133).
And neither Justice Kennedy nor the dissenting Justices in Rapanos
endorsed such a jurisdictional limitation. See id. at 782-83 (Kennedy,
J., concurring in the judgment); id. at 807-08 (Stevens, J.,
dissenting).
The agencies are mindful of the Supreme Court's decision in SWANCC
regarding the specific Commerce Clause authority Congress exercised in
enacting the Clean Water Act. The SWANCC Court observed that Congress
signified its intent to exercise its commerce power over navigation
with the statement in the Conference Report for the Clean Water Act
that the conferees ``intend that the term `navigable waters' be given
the broadest possible constitutional interpretation.'' 531 U.S. at 168
n.3 (citing S. Conf. Rep. No. 92-1236, at 144 (1972)). This rule
ensures that waters that either alone or in combination significantly
affect the integrity of traditional navigable waters, the territorial
seas, or interstate waters are protected under the Clean Water Act, and
the Supreme Court has long held that authority over traditional
navigable waters is not limited to either protection of navigation or
authority over only the traditional navigable water. Rather, the Court
has found that ``the authority of the United States is the regulation
of commerce on its waters . . . [f]lood protection, watershed
development, [and] recovery of the cost of improvements through
utilization of power are likewise parts of commerce control.'' United
States v. Appalachian Elec. Power Co., 311 U.S. 377, 426 (1940); see
also Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508,
525-26 (1941) (``[J]ust as control over the non-navigable parts of a
river may be essential or desirable in the interests of the navigable
portions, so may the key to flood control on a navigable stream be
found in whole or in part in flood control on its tributaries. . . .
[T]he exercise of the granted power of Congress to regulate interstate
commerce may be aided by appropriate and needful control of activities
and agencies which, though intrastate, affect that commerce.''
(citations omitted)). The significant nexus standard included in this
final rule ensures that the definition of ``waters of the United
States'' remains well within the bounds of the Commerce Clause,
consistent with the text of the statute and the intent of Congress, and
informed by the decision in SWANCC.
Some commenters suggested that the agencies cannot rely on the
Clean Water Act's statutory objective or on science to expand Federal
jurisdiction beyond the authority granted to the agencies by Congress.
However, this final rule does not establish jurisdiction beyond the
scope of the Clean Water Act. Indeed, as discussed in section IV.A of
this preamble, the agencies conclude that the objective of the Clean
Water Act must be considered in defining ``waters of the United
States'' and that consideration of the objective of the Act for
purposes of a rule defining ``waters of the United States'' must
include substantive consideration of the effects of a revised
definition on the integrity of the nation's waters. And since the
objective of the Clean Water Act is to protect the water quality of the
nation's waters, this rule must be informed by science relevant to
water quality, as discussed in section IV.A.2.a of this preamble. At
the same time, the agencies do not interpret the objective of the Clean
Water Act to be the only factor relevant to determining the scope of
the Act; rather, the limitations established in this rule are based on
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 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 thus have established a definition of ``waters
of the United States'' within the authority granted to the agencies by
Congress.
Commenters also expressed various views about the import of Clean
Water Act section 101(b). Some commenters asserted that the agencies
must read sections 101(a) and 101(b) of the Clean Water Act together in
a manner that recognizes States' traditional authority over their water
resources and contended that the agencies did not adequately consider
section 101(b) in developing the proposed rule. In contrast, other
commenters asserted that section 101(b) is not intended to serve as a
limit on Federal jurisdiction, and some of these commenters further
suggested that the agencies improperly relied on section 101(b) to
limit the scope of ``waters of the United States'' in the proposed
rule. As discussed in section IV.A of this preamble and section V.A of
the preamble to the proposed rule, the agencies have carefully, and
appropriately, balanced consideration of sections 101(a) and 101(b) in
deciding in the rulemaking which waters are subject to Clean Water Act
jurisdiction.
Additionally, multiple commenters asserted that a water that is not
subject to Federal jurisdiction does not necessarily lack environmental
protections because such waters may be subject to Tribal, State, or
local regulations. Relatedly, some commenters suggested that improving
and maintaining water quality is best achieved through partnerships and
that the agencies should work with State and local governments in
developing a definition of ``waters of the United States.'' The
agencies recognize that waters that are not jurisdictional under the
Clean Water Act do not necessarily lack environmental protections under
potential Tribal, State, or local laws. However, Congress enacted the
Clean Water Act precisely because of the failures of a statutory scheme
that relied primarily on State water quality standards. In 1948,
Congress enacted the Federal Water Pollution Control Act, ch.
[[Page 3051]]
758, 62 Stat. 1155 (June 30, 1948), which focused on State water
quality standards rather than the conduct of individual polluters. See
EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200,
202-03 (1976). In 1972, Congress enacted the Clean Water Act after
concluding that these prior efforts had been ``inadequate in every
vital aspect.'' S. Rep. No. 414, 92d Cong., 1st Sess. 7 (1971). The
Clean Water Act was a `` `complete rewriting' '' of existing law,
designed to ``establish an all-encompassing program of water pollution
regulation.'' City of Milwaukee, 451 U.S at 317-18 (1981) (citation
omitted).
More recently, the Supreme Court in Maui identified a key dividing
line between the areas where Congress intended to create a
comprehensive floor of Federal water quality protections and those
areas generally left to the States, observing that ``the structure of
the [Clean Water Act] indicates that, as to groundwater pollution and
nonpoint source pollution, Congress intended to leave substantial
responsibility and autonomy to the States.'' 140 S. Ct. at 1471 (citing
Clean Water Act section 101(b)). The Clean Water Act thus sets a
baseline of Federal protection for waters that meet the definition of
``waters of the United States'' and authorizes States to be more
protective than the Act while also leaving substantial responsibility
and autonomy to the States over those waters that do not have a
significant nexus to the core waters covered by the Act. The agencies
also agree that partnerships with Tribes, States, and local governments
are important and can help facilitate meeting the objective of the Act
and have coordinated with these entities over the course of this
rulemaking to ensure that they had opportunities to provide input on
this rule and will continue to work with Tribes and States to implement
this rule.
b. Comments Regarding Supreme Court Case Law and the Significant Nexus
and Relatively Permanent Standards
Many commenters addressed the legal standard for determining the
controlling opinion in Rapanos. In particular, many commenters cited
Marks v. United States, 430 U.S. 188 (1977) to support assertions
around what controlling legal principles may be derived from the
opinion of five or more Supreme Court Justices when there is no
majority. Relying on Marks, some of these commenters asserted that the
Rapanos plurality opinion should control the definition of ``waters of
the United States,'' while other commenters stated that Marks allows
for use of either the plurality's relatively permanent standard or
Justice Kennedy's significant nexus standard to assess Clean Water Act
jurisdiction. As discussed above, the applicability of Marks is not the
relevant inquiry for purposes of this rule. Rather, this rule reflects
the agencies' interpretation of the statute, informed by Supreme Court
precedent, not an interpretation of the Rapanos decision.
The agencies received many comments on the proposed rule's reliance
on and approach to the significant nexus standard. As explained in
section IV.A.3.a of this preamble, the agencies have concluded 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 the
authority to define the scope of the term ``navigable waters,'' and
they are exercising that authority in this rule. A principal advantage
of the significant nexus standard is that it focuses directly and
specifically on protecting the integrity of those waters in which the
Federal interest is indisputable--traditional navigable waters, the
territorial seas, and interstate waters. Further, while the agencies
disagree that this rule's significant nexus standard is inconsistent
with Justice Kennedy's concurring opinion in Rapanos (as some
commenters had suggested), this rule represents the agencies'
interpretation of the statute, not an interpretation of Rapanos. The
agencies have concluded that the significant nexus standard as
established in this rule is the best interpretation of the statute and
that the relatively permanent standard in the rule provides important
efficiencies and additional clarity for regulators and the public.
Thus, the rule gives effect to the Clean Water Act's broad terms and
environmentally protective aim as well as its limitations.
Some commenters suggested that the significant nexus standard is
unclear or produces inconsistent results. In response to this concern,
the agencies have established a definition of ``significantly affect''
in this rule, provided additional guidance on applying the significant
nexus standard, and identified implementation tools and resources that
will work together to provide clarity and further consistency in
implementing the significant nexus standard (see section IV.C.9 and
section IV.G of this preamble). The agencies have concluded that these
actions, along with the agencies' extensive experience making
determinations under the significant nexus standard, will increase the
clarity and consistency of determinations of jurisdiction.
Several commenters discussed whether the proposed rule is
consistent with Justice Scalia's plurality opinion in Rapanos and
expressed various views about the proper interpretation of that
opinion. As discussed in section IV.A.3.a of this preamble, the
agencies have concluded that use of the plurality's approach alone has
no grounding in the Clean Water Act's text, structure, or history and
would upend an understanding of the Act's coverage that has prevailed
for decades. Similarly, no Court of Appeals has held that the
plurality's relatively permanent standard is the sole test that may be
used to establish Clean Water Act jurisdiction. Additionally, requiring
a continuous surface water connection, as suggested by some commenters,
would add a requirement and language that do not exist in the text of
the plurality opinion. The plurality opinion states that ``continuous
surface connection'' is a ``physical-connection requirement.'' Rapanos,
547 U.S. at 742, 751 n.13 (referring to ``our [the plurality's]
physical-connection requirement'' and asserting that Riverside Bayview
does not reject ``the physical-connection requirement''). The plurality
does not state that this standard is a continuous surface water
requirement. Therefore, the agencies disagree that their longstanding
implementation of the continuous surface connection requirement (see
Rapanos Guidance at 7 n.28), which does not require a continuous flow
of water between the wetland and the jurisdictional water, is
inconsistent with the plurality opinion. In addition, a continuous
surface water connection for wetlands is illogical when many wetlands
have surface water only seasonally or intermittently or meet the
wetland hydrology factor through saturated soils, a high water table,
or other indicators of hydrology, and no scientific or regulatory
definition of wetlands demands year-round surface water. See, e.g., 33
CFR 328.3(b) (2008); NRC Report 3-5; see also 85 FR 22309 (explaining
that ``not all abutting wetlands display surface water as the wetland
hydrology factor but rather may have saturated soils, a high water
table, or other indicators of hydrology''). See section IV.C.5.c.ii of
this preamble for further discussion of the basis for the agencies'
implementation of the continuous surface connection requirement in this
rule.
Additionally, multiple commenters suggested that the relatively
permanent
[[Page 3052]]
standard is easier to apply than the significant nexus standard. While
the agencies recognize that the relatively permanent standard can be
easier to apply in many instances, that is not always the case. For
example, in the case of a tributary that flows directly into a
traditional navigable water, it may be easier to demonstrate that the
tributary significantly affects the chemical, physical, or biological
integrity of that paragraph (a)(1) water due to its direct contribution
of flow, woody debris, and other materials and its close distance to
the traditional navigable water than it would be to demonstrate that
the flow in that tributary meets the relatively permanent standard.
More importantly, greater simplicity that comes at the expense of a
profound mismatch with the Clean Water Act's design is not a valid
basis for determining the jurisdictional scope of the Act. Cf. Maui,
140 S. Ct. at 1470, 1476 (rejecting similar arguments about a need for
bright-line certainty in favor of a fact-specific test). Further,
treating the relatively permanent standard as the exclusive criterion
for Clean Water Act coverage would lead to arbitrary and illogical
results. The 2020 NWPR did rely primarily on the relatively permanent
standard and, in doing so, introduced new implementation uncertainties,
including uncertainties related to the rule's case-specific typical
year analysis, which the 2020 NWPR required for most categories of
jurisdictional waters and that proved challenging to implement and
yielded arbitrary results (see section III.B.3 and IV.B.3 of this
preamble). In contrast, as discussed above, the agencies now have over
a decade of nationwide experience with the significant nexus standard,
and it has proven to be eminently administrable. Moreover, the agencies
have made changes to this rule to increase the ease of implementation
of the significant nexus standard.
Commenters also provided a variety of views on the consistency of
the proposed rule with the SWANCC Supreme Court decision. Some
commenters expressed concern that the proposed rule would expand
Federal jurisdiction over potentially all State waters, contrary to the
Supreme Court's holding in SWANCC that--absent a clear statement from
Congress--the Clean Water Act must be construed in a manner that avoids
federalism and constitutional questions. The agencies disagree that
this rule is contrary to the Supreme Court's holding in SWANCC and note
that a principal advantage of the significant nexus standard is that it
focuses directly and specifically on protecting traditional navigable
waters, the territorial seas, and interstate waters. By design, the
significant nexus standard thereby permits jurisdiction over waters
only if they significantly affect the waters over which Congress has
unquestioned authority. See, e.g., United States v. Lopez, 514 U.S.
549, 558-59 (1995); Hodel v. Va. Surface Mining & Reclamation Ass'n,
452 U.S. 264, 282 (1981). Thus, an affirmative finding under the
significant nexus standard is, by definition, a finding that Congress's
core purpose is implicated. Commenters' constitutional concerns are
therefore fully addressed by this rule.
In addition, a few commenters asserted that the Supreme Court in
SWANCC rejected the notion that a biological or ecological connection
alone is sufficient to support a finding of significant nexus. This
reading of SWANCC is not correct. The Court in SWANCC did not hold that
the particular ``ecological considerations upon which the Corps relied
in Riverside Bayview,'' Rapanos, 547 U.S. at 741--i.e., the potential
importance of wetlands to the quality of adjacent waters--were
irrelevant to Clean Water Act jurisdiction. Rather, the Court held that
a different ecological concern--namely, the potential use of the
isolated ponds as habitat for migratory birds--could not justify
treating those ponds as ``waters of the United States.'' See SWANCC,
531 U.S. at 164-65, 171-72. The Court found that this specific
ecological concern was not cognizable because it was unrelated to
``what Congress had in mind as its authority for enacting the CWA: its
traditional jurisdiction over waters that were or had been navigable in
fact or which could reasonably be so made.'' Id. at 172. In contrast,
in this rule, the agencies, through application of the significant
nexus standard, provide Federal protections for adjacent wetlands and
other categories of waters based on their importance to the chemical,
physical, or biological integrity of traditional navigable waters, the
territorial seas, and interstate waters. In addition, 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) (emphasis added). Among the means to achieve the Clean Water
Act's objective, Congress established an interim national goal to
achieve wherever possible ``water quality which provides for the
protection and propagation of fish, shellfish, and wildlife and
provides for recreation in and on the water.'' 33 U.S.C. 1251(a)(2).
Therefore, the agencies disagree that consideration of biological
effects on paragraph (a)(1) waters is inconsistent with the Clean Water
Act.
Finally, several commenters asserted that the Clean Water Act
requires broader protections than those afforded by the significant
nexus standard and relatively permanent standard. The agencies agree
that the Clean Water Act requires broader protection than the
relatively permanent standard, but have concluded, as explained in
section IV.A.3 of this preamble, that the significant nexus standard is
the best construction of the scope of the Clean Water Act.
c. Comments Regarding Categories of Waters in This Rule
Multiple commenters expressed concern that the proposed rule would
exceed the agencies' statutory authority by providing for jurisdiction
over broad categories of waters (for example, tributaries) that the
commenters asserted are not within the limits of the Clean Water Act
pursuant to Rapanos. The agencies disagree. As explained above, this
rule reflects the agencies' independent judgment on the scope of
``waters of the United States'' based on the text of the relevant
provisions of the Clean Water Act and the statute as a whole, the
objective and history of the Clean Water Act, the scientific record,
the agencies' experience and technical expertise, and other relevant
Supreme Court cases. This rule reflects carefully tailored
modifications to the 1986 regulations to incorporate both the
relatively permanent standard and the significant nexus standard such
that the waters covered by the definition are within the limits of the
Clean Water Act.
Many commenters discussed the agencies' legal authority to assert
jurisdiction over tributaries, including specific types of tributaries
(e.g., ephemeral, intermittent, and perennial). Some commenters
asserted that providing for jurisdiction over ephemeral and
intermittent streams in the definition of ``waters of the United
States'' is not supported by Rapanos. In this rule, the agencies are
neither categorically including nor categorically excluding ephemeral
and intermittent tributaries. Nor are the agencies codifying the
opinions in Rapanos. Rather, the agencies are interpreting the phrase
``waters of the United States'' to include tributaries that meet either
the significant nexus standard or the relatively permanent standard
based on their conclusions in section IV.A of this preamble. Further,
there is nothing in the text of the statute or its legislative history
that excludes some categories of
[[Page 3053]]
tributaries based on their flow regime. Indeed, as discussed further
below, the best available science demonstrates that ephemeral and
intermittent streams can significantly affect the chemical, physical,
and biological integrity of paragraph (a)(1) waters--i.e., traditional
navigable waters, the territorial seas, and interstate waters.
Multiple commenters suggested that, pursuant to Supreme Court
precedent and the Clean Water Act, jurisdiction over non-navigable
tributaries should be limited to tributaries (1) containing clearly
discernible features and contributing consistent flow into traditional
navigable waters; or (2) that carry a volume of water needed for
navigable capacity of a traditional navigable water; or (3) of a
quality needed for interstate commerce, where impairment of water
quality would have a negative effect on interstate commerce. The
agencies disagree that the case law, the statute, or the Constitution
provide these precise limitations on the scope of tributaries covered
by the Clean Water Act. The text of ``navigable waters,'' and of its
specialized definition, does not include particular flow requirements.
As discussed further below, the agencies have concluded that
tributaries that meet either the relatively permanent standard or the
significant nexus standard are ``waters of the United States,'' and
flow is a consideration under both standards. These limitations are
informed by Supreme Court case law and designed to be well within
constitutional limits.
In contrast, other commenters asserted that tributaries should be
categorically jurisdictional rather than subject to a case-specific
analysis and that the Rapanos decision supports a categorical approach.
The agencies agree that Justice Kennedy's concurring opinion in Rapanos
did not reject the agencies' then-existing regulations governing
tributaries, which were more categorical than this rule. 547 U.S. at
781; see also id. at 761. More broadly, it is a well-established
principle of administrative law that agencies may choose to proceed via
rulemaking or adjudication. NLRB v. Bell Aerospace Co. Div. of Textron,
Inc., 416 U.S. 267, 294 (1974) (``[T]he choice between rulemaking and
adjudication lies in the first instance within the [agency's]
discretion.''). With respect to the significant nexus standard in
particular, Justice Kennedy stated that the agencies could proceed to
determine tributaries and their adjacent wetlands jurisdictional
through regulations or adjudication. See Rapanos, 547 U.S. at 780-81.
As explained in section IV.A.3.a.iii of this preamble, the agencies
have concluded that adjudication of which tributaries are within Clean
Water Act protections, through case-specific application of the
significant nexus standard or the relatively permanent standard under
this rule, is appropriate. See section IV.C.10 of this preamble for
additional guidance to landowners on determinations of jurisdiction and
the appeals process for such determinations.
Many commenters also discussed the agencies' legal authority to
assert jurisdiction over adjacent wetlands. Some commenters stated that
the proposed rule's relatively permanent standard was inconsistent with
the Rapanos plurality opinion, asserting that the plurality opinion
requires a continuous surface connection for adjacent wetlands to be
jurisdictional. As stated elsewhere, the agencies disagree that the
relatively permanent standard as applied in this rule is inconsistent
with the plurality opinion. Under this rule, an adjacent wetland is
jurisdictional if there is a continuous surface connection between that
adjacent wetland and a paragraph (a)(2) impoundment or jurisdictional
tributary when the paragraph (a)(2) impoundment or jurisdictional
tributary is relatively permanent.
In addition, some commenters expressed concern that the proposed
rule's aggregation of wetlands and the relevant reach approach would be
contrary to Justice Kennedy's significant nexus standard, which the
commenters suggested requires that each wetland be judged in its own
right. The agencies disagree that aggregation of wetlands and their
tributaries is inconsistent with the significant nexus standard. First,
Justice Kennedy explicitly stated that similarly situated waters should
be assessed for a significant nexus ``alone or in combination.''
Rapanos, 547 U.S. at 780. Justice Kennedy understood that waters
provide critical functions to downstream waters in combination,
explaining: ``With respect to wetlands, the rationale for Clean Water
Act regulation is, as the Corps has recognized, that wetlands can
perform critical functions related to the integrity of other waters--
functions such as pollutant trapping, flood control, and runoff
storage. Accordingly, wetlands possess the requisite nexus, and thus
come within the statutory phrase `navigable waters,' if the wetlands,
either alone or in combination with similarly situated lands in the
region, significantly affect the chemical, physical, and biological
integrity of other covered waters more readily understood as
`navigable.' '' Id. at 779-780 (citing 33 CFR 320.4(b)(2)). And Justice
Kennedy's understanding is scientifically correct--though filling in a
single wetland might not on its own materially influence a paragraph
(a)(1) water, its impact is more likely to be significant when
evaluated in combination with other similarly situated waters. Second,
the agencies interpret ``waters of the United States'' to include
waters that meet the significant nexus standard as codified in this
rule because the agencies have determined, informed by the best
available science and the text, structure, and legislative history of
the Clean Water Act, that this standard, including the aggregation of
waters authorized by it, advances the objective of the Act. The
agencies have also established a definition of ``significantly affect''
in this rule that identifies the factors and the functions for
determining whether the significant nexus standard is met, thus
ensuring that the agencies' determinations of jurisdiction are based on
consistent application of sound scientific principles.
Further, several commenters stated that the agencies should assert
jurisdiction only over those wetlands that directly abut other ``waters
of the United States.'' These commenters asserted that doing otherwise
would exceed the constitutional limits of the agencies' Clean Water Act
jurisdiction. For the reasons discussed above, the agencies disagree
that only wetlands that directly abut other ``waters of the United
States'' should be jurisdictional. Moreover, as discussed elsewhere in
this preamble, the addition of the significant nexus standard in this
rule ensures that the definition of ``waters of the United States''
does not exceed constitutional limits.
In contrast, several commenters asserted that all adjacent
wetlands--not just those adjacent to the paragraph (a)(1) waters--
should be categorically jurisdictional. Some of these commenters
suggested that providing categorical protection for such wetlands is
necessary to achieve the Clean Water Act's statutory objective. The
agencies agree that providing categorical protection of adjacent
wetlands can be a means of achieving the Act's objective but disagree
that it is the only means. As noted by Justice Kennedy, the agencies
can reasonably proceed to determine which tributaries and their
adjacent wetlands are jurisdictional through regulations or
adjudication, see 547 U.S. at 780-81; see also NLRB v. Bell Aerospace
Co. Div. of Textron, Inc., 416 U.S. at 294. With respect to wetlands
adjacent to tributaries, the agencies are requiring case-specific
determinations
[[Page 3054]]
of whether such wetlands meet the relatively permanent standard or the
significant nexus standard to be jurisdictional under this rule.
Many commenters also addressed the agencies' legal authority to
assert jurisdiction over paragraph (a)(5) waters (the category of
waters described in paragraph (a)(3) of the proposed rule). Some
commenters suggested that, per the Supreme Court's decision in SWANCC,
the agencies lack authority to assert jurisdiction over paragraph
(a)(5) waters or that, under Rapanos, the significant nexus standard
should be applied only to tributaries or wetlands adjacent to
tributaries, not to paragraph (a)(5) waters. First, as explained
further in section IV.A.1 of this preamble, 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 SWANCC or the
multiple opinions in Rapanos, nor is it based on an application of the
Supreme Court's principles as set forth in Marks 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. Furthermore, the agencies
disagree that asserting jurisdiction over any waters that meet the
significant nexus standard, including any paragraph (a)(5) waters, is
inconsistent with SWANCC or Rapanos. Based on the law, the science, and
agency expertise, the agencies conclude that the significant nexus
standard applies to tributaries, adjacent wetlands, and intrastate
lakes and ponds, streams, or wetlands not covered by other categories
(i.e., paragraphs (a)(3), (a)(4), and (a)(5) waters under this rule).
Justice Kennedy's explication of the significant nexus standard applies
to each of these types of waters. In Rapanos, Justice Kennedy reasoned
that Riverside Bayview and SWANCC ``establish the framework for''
determining whether an assertion of regulatory jurisdiction constitutes
a reasonable interpretation of ``navigable waters''--``the connection
between a nonnavigable water or wetland and a navigable water may be so
close, or potentially so close, that the Corps may deem the water or
wetland a `navigable water' under the Act;'' and ``[a]bsent a
significant nexus, jurisdiction under the Act is lacking.'' 547 U.S. at
767. Justice Kennedy further explained that ``[t]he required nexus must
be assessed in terms of the statute's goals and purposes. Congress
enacted the law to `restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,' and it pursued that
objective by restricting dumping and filling in `navigable waters'.''
Id. at 779 (citing 33 U.S.C. 1251(a), 1311(a), 1362(12)). Justice
Kennedy then concluded that the term ``waters of the United States''
encompasses wetlands and other waters that ``possess a `significant
nexus' to waters that are or were navigable in fact or that could
reasonably be so made.'' Id. at 759 (citation omitted). While Justice
Kennedy's discussion of the application of the significant nexus
standard focused on adjacent wetlands in light of the facts of the
cases before him, his opinion is clear that he does not conclude that
the significant nexus analysis applies only to adjacent wetlands. As he
explicitly states, ``the connection between a nonnavigable water or
wetland and a navigable water may be so close, or potentially so close,
that the Corps may deem the water or wetland a `navigable water' under
the Act.'' Id. at 767 (emphasis added). Fundamentally, Justice
Kennedy's significant nexus analysis is about the fact, long
acknowledged by Supreme Court case law, that protection of waters from
pollution can be achieved only by controlling pollution of upstream
waters. In addition, the Court in SWANCC did not hold that ``other
waters'' (a category that has been modified and codified in this rule
as paragraph (a)(5) waters) could never be jurisdictional; rather it
held that the potential use of isolated ponds as habitat for migratory
birds could not be used as the sole basis to justify treating those
ponds as ``waters of the United States.'' See 531 U.S. at 164-65, 171-
72. Indeed, the SWANCC Court in describing Riverside Bayview stated
that ``it was the significant nexus between the wetlands and `navigable
waters' that informed our reading of the CWA'' in that case. Id. at
167. In this rule, the agencies are not protecting paragraph (a)(5)
waters based on their potential use as habitat for migratory birds or
based on their use broadly in interstate commerce as the 1986
regulations did. Instead, this rule includes paragraph (a)(5) waters on
a case-specific basis based on their importance to the integrity of
traditional navigable waters, the territorial seas, and interstate
waters because they meet either the relatively permanent standard or
the significant nexus standard.
Other commenters stated that the proposed rule does not go far
enough in protecting paragraph (a)(5) waters. The agencies have
concluded that this rule's reliance on the relatively permanent
standard and significant nexus standard properly balances the Clean
Water Act's broad statutory objective, while giving meaning to the word
``navigable.'' Accordingly, the agencies are not asserting jurisdiction
over waters and wetlands simply where ``the use, degradation or
destruction of [such waters] could affect interstate or foreign
commerce.'' Cf. 33 CFR 328.3(a)(3) (1999).
B. Alternatives to This Rule
In promulgating a rule to repeal existing regulations, agencies
must address and consider alternative ways of achieving the relevant
statute's objectives and must provide adequate reasons to abandon those
alternatives. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 48 (1983); see also FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009). As discussed below, the agencies have
thoroughly considered alternatives to this rule and have concluded that
this final rule best accomplishes the agencies' goals to promulgate a
rule that advances the objective of the Clean Water Act, is consistent
with Supreme Court decisions, is informed by the best available
science, and promptly and durably restores vital protections to the
nation's waters. The agencies have reconsidered the policies,
interpretations, and conclusions of the 2020 NWPR. Although the 2020
NWPR has been vacated, it is the text currently in the Code of Federal
Regulations. For the reasons articulated in this preamble, the agencies
are changing their approach from that of the 2020 NWPR to interpreting
the scope of ``waters of the United States.''
1. 2015 Clean Water Rule
The agencies are not repromulgating the 2015 Clean Water Rule.
Unlike aspects of the 2015 Clean Water Rule, this rule is not based on
categorical significant nexus determinations. Rather, this rule
generally restores the longstanding and familiar categories of the 1986
regulations and establishes jurisdictional limitations based on case-
specific application of the relatively permanent standard and the
significant nexus standard to certain categories of waters in the rule.
Many commenters expressed support for the 2015 Clean Water Rule
because they viewed it as informed by science, and because under that
rule certain types of waters were categorically jurisdictional, which
eliminated the need for extensive case-by-case
[[Page 3055]]
jurisdictional determinations. Many other commenters asserted that they
did not support the 2015 Clean Water Rule because they viewed that rule
as expanding Federal jurisdiction over waters that should not be
jurisdictional. The agencies have concluded that the 2015 Clean Water
Rule, while designed to advance the objective of the Clean Water Act,
is not the best alternative to meet the policy goals of the agencies:
to quickly promulgate a durable rule that retains the protections of
the longstanding regulatory framework and avoids harms to important
aquatic resources, informed by the best available science and
consistent with the agencies' determination of the statutory limits on
the scope of the ``waters of the United States,'' informed by relevant
Supreme Court case law. Moreover, agencies may choose to proceed via
rulemaking or adjudication. NLRB v. Bell Aerospace Co., 416 U.S. 267,
294 (1974) (``[T]he choice between rulemaking and adjudication lies in
the first instance within the [agency's] discretion.''). With respect
to the significant nexus standard in particular, Justice Kennedy also
stated that the agencies could proceed to determine tributaries and
their adjacent wetlands jurisdictional through regulations or
adjudication. See 547 U.S. at 780-81. As explained in section
IV.A.3.a.iii of this preamble, the agencies have concluded that the
approach in this rule--i.e., providing categorical jurisdiction for
paragraph (a)(1) waters and for wetlands adjacent to paragraph (a)(1)
waters, and adjudicating which waters in paragraphs (a)(2) through (5)
are ``waters of the United States'' through case-specific application
of the significant nexus standard or the relatively permanent standard
under this rule--is appropriate and fulfills the goals of the agencies
and the objective of the Clean Water Act.
2. 2019 Repeal Rule
The agencies agree with the concept in the 2019 Repeal Rule of
returning to the pre-2015 regulatory framework as a means of restoring
a longstanding and familiar regulatory regime,\67\ but find that this
rule is preferable to the 2019 Repeal Rule for several reasons. As an
initial matter, like the 2019 Repeal Rule, this rule seeks to return
generally to the longstanding regulatory framework that existed prior
to the 2015 Clean Water Rule, but this rule also restores those
regulations with necessary limitations to ensure the definition of
``waters of the United States'' reflects consideration of the agencies'
statutory authority under the Clean Water Act and relevant Supreme
Court decisions. Additionally, compared to the 2019 Repeal Rule, this
rule provides greater clarity by adding a new definition of
``significantly affect'' and by streamlining and restructuring the 1986
regulations, including by consolidating certain provisions. This rule
also codifies a number of exclusions for features that were generally
considered non-jurisdictional under the pre-2015 regulatory regime and
thus provides more clarity and certainty than the 2019 Repeal Rule.
---------------------------------------------------------------------------
\67\ 2019 Repeal Rule, Response to Comments at 9 (``The agencies
find that reinstating the longstanding and familiar pre-2015 Rule
regulatory regime will provide regulatory certainty in this interim
period . . . .''), 15 (``[T]his final rule to recodify the 1986
regulations will provide greater regulatory certainty and nationwide
consistency while the agencies consider public comments on the
proposed revised definition of ``waters of the United States.'').
---------------------------------------------------------------------------
Moreover, the agencies have substantial concerns regarding the
legal rationale underpinning the 2019 Repeal Rule. In particular, the
agencies are concerned that the interpretation of relevant Supreme
Court case law in the 2019 Repeal Rule is flawed and thereby led to an
erroneous assessment of the legality of the approach to the significant
nexus standard in the 2015 Clean Water Rule. See, e.g., 84 FR 56638-52
(October 22, 2019). The agencies' reading of the Clean Water Act in the
2019 Repeal Rule is also inconsistent with the agencies' considered
interpretation, at this time, of the Act. For these reasons, the
agencies find that the 2019 Repeal Rule is not an appropriate
alternative to this rule.
3. 2020 NWPR
The agencies have also evaluated the 2020 NWPR as an alternative to
this rule. After carefully considering the 2020 NWPR in light of the
text, objective, and legislative history of the Clean Water Act,
Supreme Court case law, the best available scientific information, and
the agencies' experience in implementing it for over a year, the
agencies do not find that the 2020 NWPR is a suitable alternative to
this rule.
a. The 2020 NWPR Failed To Advance the Objective of the Clean Water Act
The agencies do not consider the 2020 NWPR to have advanced the
statutory objective of the Clean Water Act, which the Supreme Court
recently emphasized is an important aspect of defining the
jurisdictional scope of the Act. See, e.g., Maui, 140 S. Ct. at 1468-69
(emphasizing the importance of considering the Clean Water Act's
objective when determining the scope of the Act and finding that
``[t]he Act's provisions use specific definitional language to achieve
this result,'' including the phrase ``navigable waters''). One critical
example of the 2020 NWPR's failure to advance the Clean Water Act's
objective is its removal of the significant nexus standard without
considering an alternative approach to protecting waters that
significantly affect paragraph (a)(1) waters. To be clear, while the
agencies view the significant nexus standard as the best interpretation
of section 502(7) of the Clean Water Act, the agencies do not view the
Supreme Court's interpretations of the scope of ``waters of the United
States'' as requiring adoption of that approach. Rapanos, 547 U.S. at
758 (Roberts, C.J., concurring). Yet the 2020 NWPR's rejection of the
significant nexus standard while failing to adopt any alternative
standard for jurisdiction that adequately addresses the effects of
degradation of upstream waters on paragraph (a)(1) waters, fails to
advance the Clean Water Act's objective.
The significant nexus inquiry reflects and furthers the objective
of the Clean Water Act by allowing for a scientific evaluation of the
effect of wetlands, tributaries, and other types of waters on paragraph
(a)(1) waters. For that reason, evolving forms of this inquiry are
present in Riverside Bayview, SWANCC, and Justice Kennedy's concurring
opinion in Rapanos. The 2020 NWPR rejected this scientific approach and
instead, for example, categorically excluded ephemeral features without
appropriately considering scientific information about their important
effects on the integrity of paragraph (a)(1) waters. In addition, in
limiting the scope of protected wetlands to those that touch other
jurisdictional waters or demonstrate evidence (which could include a
natural berm, bank, dune, or similar natural feature) of a regular
surface water connection to other jurisdictional waters, the 2020 NWPR
failed to appropriately consider the many effects of other categories
of wetlands on paragraph (a)(1) waters. For example, ephemeral streams
that flow directly into the Rio Grande (a traditional navigable water)
and wetlands separated from the Mississippi River (a traditional
navigable water) by artificial levees and that lack a direct hydrologic
surface connection to the river in a typical year, would be non-
jurisdictional under the 2020 NWPR, yet both can have significant
effects on these traditional navigable waters.
The 2020 NWPR contended that the drastic reduction in the scope of
Clean Water Act jurisdiction ``pursues'' the objective of the Act
because it would be
[[Page 3056]]
supplemented by the Act's non-regulatory programs as well as Tribal,
State, and local efforts. The 2020 NWPR explained: ``The CWA's
longstanding regulatory permitting programs, coupled with the controls
that States, Tribes, and local entities choose to exercise over their
land and water resources, will continue to address the discharge of
pollutants into waters of the United States, and the CWA's non-
regulatory measures will continue to address pollution of the nation's
waters generally. These programs and measures collectively pursue the
objective of restoring and maintaining the chemical, physical, and
biological integrity of the nation's waters.'' 85 FR 22269 (April 21,
2020). The agencies disagree with the 2020 NWPR's assertion that such
``collective pursuit'' of the objective of the Clean Water Act based on
these programs and measures appropriately considers the objective of
the Act and have concluded that the 2020 NWPR did not advance the
objective of the Act, the proper measure under the statute and Supreme
Court case law of a rule defining ``waters of the United States.''
The agencies agree with the 2020 NWPR's position that the Clean
Water Act's non-regulatory measures, such as grantmaking and technical
assistance authorities, advance the objective the Act. However, the
agencies do not view these authorities as limiting the scope of
``waters of the United States,'' or as relevant to determining whether
a definition of ``waters of the United States'' advances the objective
of the Clean Water Act. The non-regulatory Clean Water Act programs
cited by the 2020 NWPR complement and support the permitting programs
at the core of the Act, rather than limiting their geographic scope.
For example, the 2020 NWPR cited the Clean Water Act's provisions to
address pollution into key waters in its discussion, including the
Great Lakes, 33 U.S.C. 1258, the Chesapeake Bay, see id. at 1267(a)(3),
Long Island Sound, see id. at 1269(c)(2)(D), and Lake Champlain, see
id. at 1270(g)(2). These resources are ``waters of the United States''
to which regulatory programs apply, and the technical assistance and
grants in the cited sections assist States and others in achieving the
requirements of the Clean Water Act, but they do not limit the
regulatory programs' scope. To the extent there is ambiguity as to the
effects of these non-regulatory programs on the scope of the ``waters
of the United States,'' the agencies have concluded based on the text
and structure of the statute that they are complementary, rather than
limiting.
As discussed in section III.A of this preamble, the Clean Water
Act's fundamental innovation in 1972 was to ``establish an all-
encompassing program of water pollution regulation,'' Int'l Paper Co.
v. Ouellette, 479 U.S. 481, 492-93 (1987). The definition of ``waters
of the United States'' establishes the scope of that program. The
agencies therefore find that it is appropriate to consider whether the
definition of the scope of waters to which the Clean Water Act's water
pollution regulations apply helps to achieve that objective. Thus, the
2020 NWPR's statement that this rule ``pursues'' the objective of the
Act if Clean Water Act and non-Clean Water Act programs are viewed in
``combination'' is not consistent with the better reading of the text
and structure of the Act, its legislative history, or Supreme Court
decisions concerning the effect of enactment of the Clean Water Act in
1972, nor does it fulfill the agencies' obligation to consider the
objective of the Clean Water Act by assessing the water quality effects
of revising the definition of ``waters of the United States.''
The preamble to the 2020 NWPR also cited the introductory policy
provision of the Clean Water Act in section 101(b), to protect the
``primary responsibilities and rights of States to prevent, reduce, and
eliminate pollution'' as a justification, in part, for its line-
drawing. For example, one of the most environmentally significant
decisions in the 2020 NWPR was its categorical exclusion of all
ephemeral features from Clean Water Act jurisdiction. The agencies
cited section 101(b) as a basis for this exclusion, because the
exclusion would ``respect[] State and Tribal land use authority over
features that are only episodically wet during and/or following
precipitation events.'' 85 FR 22319. Nothing in the agencies'
explanation, however, links the agencies' line-drawing to the text or
purpose of section 101(b). Nor do the agencies, at this time, see any
linkage between the flow regime of ephemeral features and the nature or
extent of State authorities referenced in section 101(b). Indeed, as
discussed in section IV.A.c.i of this preamble, available science
unequivocally demonstrates that ephemeral features can implicate the
important Federal interest in the protection of the integrity of
traditional navigable waters, the territorial seas, and interstate
waters. Likewise, the 2020 NWPR cited section 101(a) as support for
categorically excluding ephemeral features, but again did not explain
how this decision relates to or advances the Clean Water Act's
objective. 85 FR 22277 (April 21, 2020).
The 2020 NWPR similarly relied upon the policy provision in section
101(b) as a basis for its definition of adjacent wetlands, in
particular the decision to exclude from consideration subsurface
hydrologic connections between a wetland and an adjacent water when
determining jurisdiction. It stated, ``balancing the policy in CWA
section 101(a) with the limitations on Federal authority embodied in
CWA section 101(b), the agencies are finalizing the definition of
`adjacent wetlands' that does not include subsurface hydrologic
connectivity as a basis for determining adjacency.'' Id. at 22313.
Again, the 2020 NWPR did not explain how excluding consideration of
subsurface hydrologic connections relates to or derives from the text
of section 101(b), and the agencies do not now discern such a linkage.
And as with the definition of ``tributaries,'' the 2020 NWPR did not
explain how this choice relates to or advances the objective of the
Clean Water Act.
In sum, based on the text and structure of the statute and Supreme
Court case law, the agencies have determined that the 2020 NWPR is not
a suitable alternative to this rule because it fails to advance the
objective of the Clean Water Act. The 2020 NWPR does not establish
either the significant nexus standard or an alternative standard that
similarly advances the objective of the Clean Water Act by protecting
waters, including ephemeral features, wetlands, and paragraph (a)(5)
waters where they have a significant effect on the chemical, physical,
or biological integrity of traditional navigable waters, the
territorial seas, and interstate waters. Nor does the 2020 NWPR
appropriately value the importance of Federal programs in achieving the
objective of the Clean Water Act.
b. The 2020 NWPR Was Inconsistent With the Best Available Scientific
Information
The 2020 NWPR's exclusion of major categories of waters from the
protections of the Clean Water Act, specifically in the definitions of
``tributary'' and ``adjacent wetlands,'' runs counter to the scientific
record demonstrating how such waters can affect the integrity of
downstream waters. Specifically, as many commenters on the proposed
rule noted, its categorical exclusion of ephemeral features and large
categories of wetlands was inconsistent with the scientific record
before the agencies. In addition, the 2020 NWPR's limits on the scope
of protected wetlands to those
[[Page 3057]]
that touch or demonstrate evidence of a regular surface water
connection to other jurisdictional waters run counter to the ample
scientific information demonstrating the effects of wetlands on
downstream waters, including paragraph (a)(1) waters, when they have
other types of connections.
First, the definition of the term ``tributary'' in the 2020 NWPR
categorically excluded ephemeral features from the regulatory
protections of the Clean Water Act, contrary to scientific information
conclusively demonstrating the vital role these streams can play in
protecting the integrity of downstream waters, including paragraph
(a)(1) waters. The science is clear that aggregate effects of ephemeral
streams ``can have substantial consequences on the integrity of the
downstream waters'' and that the evidence of such downstream effects is
``strong and compelling,'' as discussed above. Science Report at 6-10,
6-13. EPA's SAB Review of the draft Science Report explains that
ephemeral streams ``are no less important to the integrity of the
downgradient waters'' than perennial or intermittent streams. 2014 SAB
Review at 22-23, 54 fig. 3. While in the arid Southwest, streams flow
into downstream waters less frequently than they do in the wetter East,
the Science Report emphasizes that short duration flows through
ephemeral streams can transport large volumes of water to downstream
rivers. Science Report at 6-9. For instance, the report notes that
ephemeral streams supplied 76% of flow to the Rio Grande following a
large rainstorm. Id. at 3-8. The 2014 SAB Review emphasizes that the
``cumulative effects'' of ephemeral flows in arid landscapes can be
``critical to the maintenance of the chemical, physical, and biological
integrity'' of downstream waters. 2014 SAB Review at 22.
Similarly, the 2020 NWPR's definition of ``adjacent wetlands''
excluded many categories of wetlands that can play a vital role in
protecting the integrity of waters to which they are connected,
including paragraph (a)(1) waters. In defining ``adjacent wetlands,''
the 2020 NWPR limited the scope of wetlands protected by the Clean
Water Act's regulatory programs to those that either abut or have
evidence of certain surface water connections to other protected waters
in a typical year. 85 FR 22340. Specifically, the rule encompassed
wetlands that (i) abut, meaning to touch, another jurisdictional water;
(ii) are flooded by a jurisdictional water in a typical year; (iii) are
separated from a jurisdictional water only by a natural feature, such
as a berm, which provides evidence of a direct hydrologic surface
connection with that water; or (iv) are separated from a jurisdictional
water only by an artificial structure so long as that structure allows
for a direct hydrologic surface connection between the wetlands and the
water in a typical year. Id. As with the tributary definition, the 2020
NWPR stated that the definition of ``adjacent wetlands'' is ``informed
by science.'' Id. at 22314. Yet the 2020 NWPR's limits on the scope of
protected wetlands to those that touch or demonstrate evidence of a
regular surface water connection to other jurisdictional waters
contradicted the ample scientific information before the agencies
conclusively demonstrating the effects of wetlands on downstream waters
when they have other types of surface connections, such as wetlands
that overflow and flood jurisdictional waters or wetlands with less
frequent surface water connections; wetlands with shallow subsurface
connections to other protected waters; or other wetlands proximate to
jurisdictional waters. See Rapanos, 547 U.S. at 786 (Kennedy, J.,
concurring in the judgment) (``Given the role wetlands play in
pollutant filtering, flood control, and runoff storage, it may well be
the absence of a hydrologic connection (in the sense of interchange of
waters) that shows the wetlands' significance for the aquatic
system.''). As commenters noted, under the 2020 NWPR's approach, if a
river were surrounded by hundreds of acres of wetland, building a road
or levee between a river and a wetland complex could potentially sever
Clean Water Act protections for the entire wetland complex.
The overwhelming scientific information before the agencies weighs
decisively against the limited definition of ``adjacent wetlands'' in
the 2020 NWPR. Available scientific information demonstrates the
significant effects of categories of wetlands excluded by the 2020 NWPR
on the chemical, physical, and biological integrity of paragraph (a)(1)
waters. For example, whereas the 2020 NWPR provided that wetlands
flooded by jurisdictional waters are only protected if the flooding
occurs in a ``typical year,'' the Science Report states that wetlands
that are ``rarely'' or ``infrequently'' flooded by streams and rivers
can be ``highly connected'' to those waters and have ``long-lasting
effects'' on them. Science Report at 4-39. The Science Report notes
that effects ``critical to maintaining the health of the river'' result
from large floods that provide ``infrequent connections'' with more
distant wetlands. Id. Reflecting these concerns, the October 16, 2019
SAB Draft Commentary on the proposed 2020 NWPR states that the narrow
definition of ``adjacent wetlands'' in the 2020 NWPR as it was proposed
``departs from established science.'' The agencies have weighed these
statements and in light of the information about the importance of
``infrequently'' flooded wetlands to downstream waters, have concluded
that excluding wetlands that lack the limited types of surface water
connections to other jurisdictional waters required by the 2020 NWPR
lacks scientific support.
The SAB's assessment of the 2020 NWPR proposal recognizes that the
proposal was not consistent with the scientific information in the
record, including the Draft Science Report that the SAB had previously
reviewed. SAB Commentary on the Proposed Rule Defining the Scope of
Waters Federally Regulated Under the Clean Water Act (February 27,
2020) (hereinafter, ``SAB Commentary''). The SAB Commentary emphasizes
that the proposal does not ``fully incorporate the body of science on
connectivity'' that the SAB had reviewed in the Draft Science Report
and offers ``no scientific justification for disregarding the
connectivity of waters accepted by current hydrological science.'' Id.
at 2.
The 2020 NWPR stated that the ``agencies' decisions in support of
this rule have been informed by science.'' 85 FR 22288 (April 21,
2020). For example, the 2020 NWPR cited the concept of a ``connectivity
gradient'' as a basis for excluding ephemeral features. Id. (citing the
SAB Commentary). The 2020 NWPR referred to the SAB Commentary's
recommendation that the agencies recognize that connectivity occurs
along a gradient allowing for variation in chemical, physical, and
biological connections. Id. (citing the SAB Commentary at 3). The 2020
NWPR asserted that there is a ``decreased'' likelihood that waters with
``less than perennial or intermittent'' flow, i.e., ephemeral streams,
will affect the chemical, physical, and biological integrity of
downstream waters. 85 FR 22288 (April 21, 2020).
Upon careful review, the agencies have concluded that the 2020
NWPR's reliance on the SAB's recommendation is out of context and is
inconsistent with the information in the SAB Commentary as a whole. The
connectivity gradient the 2020 NWPR cited was just a hypothetical
example \68\
[[Page 3058]]
meant to illustrate a single aspect of connectivity--hydrological, or
physical connectivity--and sheds no light on the many other ways that
features connect to and affect downstream waters. According to the SAB
itself, the scientific information the agencies provided in support of
categorically excluding ephemeral features does not fully represent the
discussion in the cited SAB Commentary and runs counter to key elements
of the scientific record before the agencies. SAB Commentary at 2.
---------------------------------------------------------------------------
\68\ The figure cited is captioned in part as ``Hypothetical
illustration of connectivity gradient and potential consequences to
downstream waters.'' 2014 SAB Review at 54 (emphasis added). Nowhere
in its review does the 2014 SAB Review indicate that this is the
actual or only connectivity gradient.
---------------------------------------------------------------------------
The 2020 NWPR also stated that the line it drew between regulated
and non-regulated wetlands, which excluded large categories of wetlands
covered by previous regulatory regimes is ``informed by science.'' 85
FR 22314 (April 21, 2020). The 2020 NWPR cited statements from the 2014
SAB Review to the effect that wetlands situated alongside other waters
are likely to be connected to those waters, whereas ``those connections
become less obvious'' as the distance ``increases.'' Id. (citing the
2014 SAB Review at 55); see also id. at 22314 (citing the 2014 SAB
Review at 60 (stating ``[s]patial proximity is one important
determinant [influencing the connections] between wetlands and
downstream waters'')). In addition, the 2020 NWPR cited a statement in
the Science Report that explained, ``areas that are closer to rivers
and streams have a higher probability of being connected than areas
farther away.'' Id. at 22314 (citing the Science Report at ES-4).
Despite these citations, the 2020 NWPR's definition of ``adjacent
wetlands'' was not based on proximity, but instead on a ``direct
hydrologic surface connection,'' a factor that is distinct from
proximity. See id. at 22340. The 2020 NWPR's definition of ``adjacent
wetlands'' may exclude wetlands fifteen feet away from jurisdictional
waters if they are separated by a levee that does not convey flow in a
typical year, but include wetlands much further away so long as they
are inundated by flooding from the jurisdictional water in a typical
year. Therefore, neither of the two scientific rationales the 2020 NWPR
cited for its conclusions actually support the lines drawn in that
rule.
Many commenters agreed with the agencies that the 2020 NWPR was
inconsistent with the best available science. Some commenters asserted,
however, that the definition of ``waters of the United States'' is a
policy interpretation that may be informed by science but cannot be
based on science alone. As discussed in section IV.A.2 of this
preamble, the agencies agree that science alone cannot dictate where to
draw the line defining ``waters of the United States.'' But science is
critical to determining how to attain Congress's plainly stated
objective to restore and maintain the chemical, physical, and
biological integrity of the nation's waters and properly evaluating
which waters are the subject of Federal jurisdiction due to their
effects on paragraph (a)(1) waters. Only by relying upon scientific
principles to understand the way waters affect one another can the
agencies know whether they are achieving that objective. The 2020 NWPR
is not a suitable alternative to this rule because it cannot advance
the objective of the Act given its lack of scientific support.
c. The 2020 NWPR Was Difficult To Implement and Yielded Inconsistent
Results
In addition to the above concerns, the agencies' experience
implementing the 2020 NWPR for over a year made clear that foundational
concepts underlying much of the 2020 NWPR were confusing and difficult
to implement. While any rule that draws lines between jurisdictional
waters and non-jurisdictional waters will involve some implementation
challenges, the agencies have found the challenges imposed by the 2020
NWPR to be impracticable in important respects.
Many commenters stated that the agencies should retain the 2020
NWPR because it was clear, pragmatic, and easy to implement. For
example, commenters stated that the rule provided ``bright lines,'' was
based on readily observable surface features, and categorically
excluded certain categories of waters. The agencies recognize that the
regulatory text of the 2020 NWPR contained categorical language and
referred to observable surface features. However, the ``bright lines''
and surface feature tests relied upon the concept of ``typical year,''
which, as other commenters pointed out, and as discussed further below,
was extremely challenging to implement and led to arbitrary results. As
a commenter emphasized, contrary to statements often made about the
2020 NWPR, under that rule landowners could not determine whether a
stream or wetland is jurisdictional by standing on their property.
Rather, the commenter stated that property owners would need to
determine the source and timing of flow, whether the stream flowed into
a navigable water off-property, whether wetlands abutted a
jurisdictional water, and whether a downstream segment lacked
sufficient flow or otherwise broke jurisdiction. The commenter asserted
that many of these inquiries would require the decision-maker to
trespass onto properties of others, or guess. Furthermore, the
commenter stated that in many cases, critical information that the rule
required the property owner to know--such as whether a wetland is
inundated by flooding from a jurisdictional water in a typical year--is
not normally recorded. This comment is consistent with the agencies'
experience that the 2020 NWPR did not ``provide[ ] clarity and
predictability for Federal agencies, States, Tribes, the regulated
community, and the public.'' See 85 FR 22252 (April 21, 2020). With
respect to categorical exclusions, this rule retains and codifies a
list of categorical exclusions, as did the 2020 NWPR and the 2015 Clean
Water Rule. See further discussion in section IV.C.7 of this preamble.
The challenges that the 2020 NWPR imposed to establish jurisdiction for
features that it appears to define as jurisdictional, and that
significantly affect the integrity of paragraph (a)(1) waters, further
undermine the 2020 NWPR's viability as an alternative to this rule.
i. ``Typical Year'' Metric
The ``typical year'' is a concept fundamental to many of the 2020
NWPR's definitions. 85 FR 22273 (April 21, 2020). Under the rule,
tributaries and lakes, ponds, and impoundments of jurisdictional waters
were only jurisdictional if they had certain surface water connections
with a traditional navigable water or the territorial seas at least
once in a typical year. 33 CFR 328.3(c)(6), (12). Two categories of
wetlands only met the adjacency test for jurisdiction if they had a
surface water connection with other jurisdictional waters once in a
typical year. 33 CFR 328.3(c)(1). As a scientific matter, the concept
of ``typical year conditions,'' including precipitation normalcy, may
be relevant to ensuring that certain surface water connections in
natural streams are not being observed under conditions that are
unusually wet or dry. In terms of implementation, the concept of
precipitation normalcy is valid in certain contexts, such as to inform
determinations as to the presence of a wetland. However, in many
important contexts, available tools, including the tools the 2020 NWPR
recommended, cannot reliably demonstrate the presence of surface water
connections in a typical year, which are a necessary element of most
categories of jurisdictional waters under the 2020 NWPR. For example, a
recent
[[Page 3059]]
study by the Corps found that precipitation normalcy (as calculated
based on the methodology described in the preamble to the 2020 NWPR)
was neither a reliable predictor of streamflow normalcy, nor was it a
precise predictor of streamflow percentiles, in an analysis of
watersheds across the United States.\69\ These challenges undermine the
2020 NWPR's claim that it enhanced the ``predictability and consistency
of Clean Water Act programs.'' See 85 FR 22250 (April 21, 2020).
---------------------------------------------------------------------------
\69\ Sparrow, K.H, Gutenson, J.L., Wahl, M.D. and Cotterman,
K.A. 2022. Evaluation of Climatic and Hydroclimatic Resources to
Support the US Army Corps of Engineers Regulatory Program. Engineer
Research and Development Center (U.S.) Technical Report no. ERDC/CHL
TR-22-19.
---------------------------------------------------------------------------
One of the significant implementation challenges of the typical
year metric is that it can be difficult and sometimes impossible to
identify the presence of a surface water connection in a typical year.
Such connections are often not apparent from visual field observation
alone. For example, on the day of a visit to an intermittent stream
that flows only several months or several weeks a year, it is very
unlikely that an observer would see surface water flows connecting to a
downstream jurisdictional water. Similarly, though many ponds or
wetlands may be frequently inundated by flooding from another water, in
arid areas those features may be inundated only a few times every year,
and sometimes the inundation occurs on a single day or within a matter
of hours. While these waters satisfy the 2020 NWPR's jurisdictional
test, agency staff would probably not be able to determine that they
do, given how unlikely they would be to observe these infrequent
connections. The difficulty of finding the direct hydrologic
connections required by the typical year concept during a field visit
is exacerbated by the fact that the 2020 NWPR discouraged reliance on
field indicators. See, e.g., id. at 22292 (``The agencies . . .
conclude that physical indicators of flow, absent verification of the
actual occurrence of flow, may not accurately represent the flow
classifications required for tributaries under this rule.'').
Given the insufficiency of visual field observations to assess the
presence of a surface water connection as specified in the 2020 NWPR,
under that rule agency staff often needed to expend substantial time
and resources to try to obtain ancillary data to determine flow
conditions at a particular site in a typical year. Hydrologic modeling
tools and advanced statistical analyses could be employed where
sufficient flow data are available, but often data needed to conduct
such analyses is limited or lacking altogether, especially for smaller
streams. Few streams across the country have hydrologic gages that
continuously measure flow, as most such gages are located on larger
rivers with perennial flow. Moreover, ``typical year conditions'' are
often irrelevant to the extent of flow in human-altered streams,
including effluent-dependent streams. The 2020 NWPR did not explain why
human-altered hydrology should be subject to the same typical year
requirement as natural streams.
For the same reasons that agency staff are unlikely to witness the
specific surface water connections required under the 2020 NWPR during
a site visit in dry regions or during the dry season, they are also
unlikely to capture evidence of a surface water connection between a
stream and a downstream traditional navigable water or the territorial
seas using available aerial photographs taken during typical year
conditions. Aerial photographs are often taken just once per year or
once every other year and staff have no way of ensuring that they were
taken during a typical year. High-resolution satellite imagery can
serve as a reliable source to demonstrate specific surface water
connections. But the availability and usability of such imagery varies
across the country, depending on access, update intervals, cloud cover,
and land cover (i.e., vegetation or trees that obscure aerial views of
stream channels, requiring the use of advanced tools to detect features
of interest or the presence of water), so that such tools may be
unlikely to demonstrate that specific surface water connections are
occurring in a typical year. Moreover, as the 2020 NWPR acknowledged,
``characteristics of tributaries may not be visible in aerial
photographs'' taken during periods of ``high shrub or tree cover,'' 85
FR 22299 (April 21, 2020). Commenters on the proposed rule stated that
Tribes and States lacked sufficient data, aerial photography and access
to other tools required to support the use of the typical year test in
many locations. They expressed concern that under-resourced communities
suffer a particular lack of data necessary to support this test. New
satellites are expected to surmount some of these issues in the future,
but as this information is not yet available, regulators could not use
it to inform jurisdiction based on the requirements in the 2020 NWPR.
Remote tools, such as aerial or satellite imagery, are often useful in
implementing any definition of ``waters of the United States,'' but the
2020 NWPR's typical year criteria made use of these resources
particularly challenging.
The same difficulties created challenges in detecting surface
hydrologic connections that occurred in a typical year to meet the 2020
NWPR's definition of ``adjacent wetlands'' or ``lakes and ponds, and
impoundments of jurisdictional waters.'' The 2020 NWPR's standard of
inundation by flooding in a typical year was not tied to any commonly
calculated flood interval, such as flood recurrence intervals, and the
agencies are not aware of a tool capable of collecting the type of
inundation data the 2020 NWPR required. Demonstrating that a wetland,
lake, pond, or impoundment is inundated by flooding once in a typical
year would require a field visit or a high-quality aerial photograph or
satellite image coinciding with the exact time that the flooding occurs
from a tributary to a wetland, lake, pond, or impoundment, as well as
being able to demonstrate that this flooding occurred in a typical
year. Determining that inundation by flooding occurs in a typical year
was therefore extremely difficult, and sometimes impossible.
Demonstrating that an artificial feature allows for a direct hydrologic
surface connection between a wetland and a tributary in a typical year
posed similar obstacles, requiring either auspiciously timed field
visits, aerial photography, high-resolution satellite imagery, or data
that the agencies may not be able to access, such as construction plans
or operational records for an artificial levee.
The 2020 NWPR suggested the agencies ``will generally use''
precipitation data from the National Oceanic and Atmospheric
Administration (NOAA) to help determine the presence of a surface water
connection in a typical year, see 85 FR 22274 (April 21, 2020), but the
methodology described in the 2020 NWPR preamble for determining
precipitation in a typical year made it difficult to use these data to
inform jurisdiction. NOAA precipitation totals over the three months
prior to a site observation are compared to precipitation totals
observed over the preceding 30 years to determine if conditions were
wetter than normal, drier than normal, or normal (``typical''). Using
the methodology in the preamble of the 2020 NWPR, only 40% of
observations over a rolling 30-year period of record are considered
``normal,'' while 30% of observations are considered to be ``wetter
than normal'' and 30% of observations are considered to be ``drier than
normal.'' If
[[Page 3060]]
surface water flow was observed during normal or dry conditions, the
agencies could have higher confidence that the surface water
observations represented flow in a ``typical year.'' However, if flow
was observed during the 30% of conditions that are ``wetter than
normal,'' the surface water observations did not reveal whether flow
would occur during a typical year. And if flow was not observed,
precipitation data from the previous three months did not indicate
whether flow might occur in that particular water feature under typical
year conditions at a different point in the year. Therefore, if a site
visit was conducted when surface water flow was not present, the
agencies' suggested approach for evaluating whether a feature meets the
typical year test often did not provide meaningful and relevant
information for the agencies to make accurate determinations of
jurisdiction. Indeed, a commenter on the proposed rule emphasized that
Tribes and States have found the ``typical year'' requirement to
require extensive hydrologic modeling and advanced statistical analyses
in complex conditions. Under any regulatory regime, the agencies use a
weight of evidence approach to determine jurisdiction, but the 2020
NWPR typical year requirement placed onerous and, in many instances,
arbitrary constraints on the data that can be used as evidence.
Furthermore, the typical year concept as applied to the 2020 NWPR
does not account for the increasing number of recurrent heat waves,
droughts, storms, and other extreme weather events in many parts of the
country. These events can have profound impacts on local and regional
hydrology, including streamflow. Commenters noted that determining what
is ``typical'' under the 2020 NWPR in light of increased drought and
floods was not simple for Tribal or State agencies; such determinations
required expert analysis and left much to interpretation, undermining
the assertion by the agencies that the 2020 NWPR would establish a
clear, predictable regulatory framework that can be implemented in the
field.
The concept of ``typical year'' in the 2020 NWPR sought to factor
in long-term climatic changes over time to some degree by considering a
thirty-year rolling period of data, see 33 CFR 328.3(c)(13). However,
the 2020 NWPR did not allow the agencies flexibility to consider other
time intervals when appropriate to reflect effects of a rapidly
changing climate, including positive trends in temperature, increasing
storm events, and extended droughts. In response to more rapid recent
changes in climate, NOAA has developed alternative approaches for
estimating climate normals, including seasonal averages computed using
shorter, annually updated averaging periods for temperature (10-year
seasonal average) and total precipitation (15-year seasonal average).
The rigid rolling thirty-year approach to determining typical year in
the 2020 NWPR did not allow the agencies to use these updated methods.
The 2020 NWPR noted that the agencies can look to sources of
information other than site visits, aerial photographs, and
precipitation data to assess whether a feature has surface water flow
in a typical year. It identified the Web-based Water-Budget Interactive
Modeling Program, Climate Analysis for Wetlands Tables, and the Palmer
Drought Severity Index, 85 FR 22275 (April 21, 2020). These methods,
which provide information useful in many other contexts, often only
look at climate-related conditions generally and often did not answer
the jurisdictional questions posed by the 2020 NWPR. For example, they
did not address whether surface water flow might connect a particular
stream to a downstream traditional navigable water or the territorial
seas, whether a particular wetland was inundated by or connected to a
jurisdictional water as required under the 2020 NWPR, or how
uncertainties at different locations and in different months affected
the accuracy of condition estimates. While precipitation is an
important factor, other information is also relevant to streamflow and
surface water connections in a typical year, including the
contributions of flow from wetlands, upgradient streams, and open
waters in the watershed, evapotranspiration rates, water withdrawals
including groundwater pumping, and other climatic conditions. Yet
collecting this information from a variety of sources and interpreting
it can be extremely time- and resource-intensive and may require
special expertise. While the agencies have substantial experience using
a weight of evidence approach to determine jurisdiction, for example as
part of the significant nexus analysis, the typical year requirement
makes it substantially more difficult to interpret available data and
narrows the scope of data that can be used to determine jurisdiction.
Finally, the challenges presented by determining the presence of
surface water flow in a typical year are even greater when evaluating a
tributary at a distance from the downstream traditional navigable water
or the territorial seas. Even streams that flow perennially or
intermittently often travel many miles prior to reaching the closest
traditional navigable water or the territorial seas, meaning many
downstream reaches may need to be assessed. Under the 2020 NWPR, any
ephemeral reaches along that pathway that did not carry surface water
flow once in a typical year would render all upstream waters non-
jurisdictional. 85 FR 22277 (April 21, 2020). The need to assess
lengthy tributary systems imposed an extraordinarily high burden of
proof on the agencies to evaluate surface water flow in a typical year
along the flow path from a stream of interest to a downstream
traditional navigable water or the territorial seas. The longer the
pathway, the more challenging the analysis. As a commenter noted, in
adopting the test, the 2020 NWPR inserted case-by-case analyses for
every jurisdictional determination despite the rule's claim that it
``provide[s] a predictable framework in which to establish federal
jurisdiction.'' Id. at 22273-22274. The uncertainty and implementation
challenges generated by the 2020 NWPR's foundational typical year test
are yet another basis to replace that rule.
ii. Determining Adjacency
The 2020 NWPR provided that wetlands are ``adjacent'' when they:
(1) abut a traditional navigable water or the territorial seas; a
tributary; or a lake, pond, or impoundment of a jurisdictional water;
(2) are inundated by flooding from one of these waters in a typical
year; (3) are physically separated from one of these waters only by a
natural berm, bank, dune, or similar natural feature; or (4) are
physically separated from one of these waters only by an artificial
dike, barrier, or similar artificial structure so long as that
structure allows for a direct hydrologic surface connection between the
wetlands and the water in a typical year, such as through a culvert,
flood or tide gate, pump, or similar artificial feature. 85 FR 22338;
33 CFR 328.3(c)(1). In practice, agency staff have found several of
these criteria for adjacency extremely difficult to implement in
certain circumstances.
The artificial barrier provision led to arbitrary results. For
example, under the fourth way to meet the adjacency definition, a
wetland may be jurisdictional if it is separated from a jurisdictional
water by an artificial structure, such as a levee, that allows for a
direct hydrologic surface connection in a typical year through a
culvert. However, the same wetland would not be jurisdictional if there
was no levee present, even if there was a direct
[[Page 3061]]
hydrological surface connection in a typical year through a culvert
(assuming the wetland did not meet another criterion for adjacency).
The 2020 NWPR therefore established that certain wetlands with a direct
hydrologic surface connection to a jurisdictional water are only
jurisdictional due to the presence of an artificial barrier. This
discrepancy bears no relationship to the actual connections between the
features at issue and is not supported by science or the agencies'
experience.
Moreover, the provision establishing that a wetland is ``adjacent''
if a jurisdictional water inundates it by flooding in a typical year
was extremely difficult to implement. See 33 CFR 328.3(c)(1)(ii).
Inundation by flooding in a typical year is not a metric that is
normally recorded either by implementing agencies or the regulated
community. Available models generally focus on flood recurrence
intervals, which do not necessarily correspond to the likelihood of
inundation by flooding in a given or typical year, and the agencies
would typically be unable to demonstrate that these indicators reflect
typical year conditions. Indeed, the 2020 NWPR acknowledged that
inundation by flooding in a typical year could correspond to a variety
of flood recurrence intervals depending on location, climate, season,
and other factors. 85 FR 22311. Given the absence of existing records
of inundation by flooding, determining whether inundation by flooding
has occurred in a typical year is challenging in many circumstances.
Compounding the challenge, the 2020 NWPR provided that wetlands can
be jurisdictional if they are inundated by flooding from a
jurisdictional water in a typical year--but inundation in the other
direction, from the wetlands to the jurisdictional water, is not
grounds for jurisdiction. Not only is there no scientific or legal
basis for distinguishing between inundation of the wetland as opposed
to inundation from the wetland, see Riverside Bayview, 474 U.S. at 134
(upholding the Corps' assertion of jurisdiction over ``wetlands that
are not flooded by adjacent waters [but] may still tend to drain into
those waters''), but determining whether the limited available
photographs or other evidence of inundation reflects flooding in one
direction as opposed to another adds to the difficulty in evaluating
whether this standard is met. The same challenges apply to determining
whether lakes, ponds, or impoundments of jurisdictional waters are
inundated by flooding in a typical year, one basis for demonstrating
Clean Water Act jurisdiction over these features. 85 FR 22338-39 (April
21, 2020); 33 CFR 328.3(c)(vi).
iii. Ditches
Among other requirements, the 2020 NWPR provided that a ditch \70\
is jurisdictional as a tributary if it was originally built in a
tributary or adjacent wetland, as those terms are defined in the 2020
NWPR, and emphasized that the agencies bear the burden of proof to
determine that a ditch was originally constructed in a tributary or
adjacent wetland. 33 CFR 328.3(a)(2), (c)(12); 85 FR 22299. In other
words, in order to find a ditch jurisdictional, the agencies had to
demonstrate that a ditch was (1) originally constructed in a stream (2)
that, at the time of construction, had perennial or intermittent flow
and (3) a surface water connection to a downstream traditional
navigable water or the territorial seas (4) in a ``typical year.''
Alternatively, the agencies had to show that a ditch was (1) originally
constructed in a wetland (2) that either abutted or had certain surface
hydrologic connections to a jurisdictional water at the time the ditch
was constructed (3) in a ``typical year,'' in order to demonstrate that
the ditch is jurisdictional. Americans have been building ditches,
straightening streams, and draining wetlands for hundreds of years. And
while under earlier guidance and practice, the agencies generally
assessed whether a ditch was excavated in dry land when making a
jurisdictional determination, that involved an assessment simply of
whether the ditch was excavated in a stream, a wetland, or other
aquatic resource. By contrast, to determine whether a ditch was
jurisdictional under the 2020 NWPR, the agencies had to determine if it
was originally built in a tributary or adjacent wetland that would have
been jurisdictional under the 2020 NWPR, and therefore had to address
all of the implementation challenges discussed in the preceding
sections involved in determining surface water connections and wetland
adjacency in a typical year--but often for ditches built twenty, one
hundred, or even several hundred years ago. To the extent that sparse
evidence is available to demonstrate a surface water connection in a
typical year for tributaries using tools available today, evidence is
even more difficult to find when looking so far back in time. States
approached the agencies seeking assistance in assessing the
jurisdictional status of ditches, but the agencies were often unable to
provide meaningful help given the burdens imposed by the 2020 NWPR's
ditch definition.
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\70\ Ditches perform many of the same functions as natural
tributaries. For example, like natural tributaries, ditches that are
part of the stream network convey water that carries nutrients,
pollutants, and other constituents, both good and bad, to downstream
traditional navigable waters, the territorial seas, and interstate
waters.
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The 2020 NWPR also provided that ditches are jurisdictional if they
relocate a tributary, as that term was defined in the rule, 85 FR 22341
(April 21, 2020); 33 CFR 328.3(a)(2), (c)(12), but this standard as
defined by the 2020 NWPR was also often extremely difficult to assess.
The 2020 NWPR explained that a relocated tributary is ``one in which an
entire portion of the tributary may be moved to a different location.''
85 FR 22290 (April 21, 2020) (emphasis added). In other words, the 2020
NWPR appeared to require a ditch to divert 100% of the tributary's flow
to meet the ``relocate a tributary'' test. While prior rules have
defined relocated tributaries as jurisdictional, the requirement that
the entire portion be relocated is new and has created substantial
implementation challenges. As a practical matter, when a tributary is
relocated it often reroutes just a portion of its flow to the ditch.
Assessing whether a ditch relocated 100% of a tributary's flow, as
opposed to 80% or 50% of its flow, is extremely difficult and may not
be possible in some circumstances. The scientific literature indicates
that features like ditches that convey water continue to connect to and
affect downstream waters. See section III.A.iv of the Technical Support
Document for additional information. By establishing a jurisdictional
standard that is extremely difficult to meet, the 2020 NWPR effectively
removed from the protections of the Clean Water Act large numbers of
ditches that function as tributaries and that significantly affect the
integrity of downstream traditional navigable waters, the territorial
seas, and interstate waters. As is the case with tributaries, lakes and
ponds, impoundments, and wetlands, the 2020 NWPR's impracticable
approach to ditches made it extremely difficult to implement. In the
agencies' judgment, any efficiencies the 2020 NWPR may have achieved
through categorical exclusions are outweighed by the challenges the
agencies encountered in implementing the rule, coupled with its failure
to implement the objective of the Clean Water Act by removing
protections for waters that are properly within the statute's scope.
[[Page 3062]]
d. The 2020 NWPR Substantially Reduced Clean Water Act Protections Over
Waters
The failure of the 2020 NWPR to advance the objective of the Clean
Water Act, as well as its inconsistency with science and the challenges
it presents in implementation, have had real-world consequences. The
agencies have found that substantially fewer waters were protected by
the Clean Water Act under the 2020 NWPR compared to under previous
rules and practices. It is important to note that the definition of
``waters of the United States'' affects most Clean Water Act programs
designed to restore and maintain water quality--including not only the
section 402 NPDES and section 404 dredged and fill permitting programs,
but also water quality standards under section 303, identification of
impaired waters and total maximum daily loads under section 303,
section 311 oil spill prevention, preparedness, and response programs,
and the section 401 Tribal and State water quality certification
programs--because the Clean Water Act provisions establishing such
programs use the term ``navigable waters'' or ``waters of the United
States.'' While the 2020 NWPR was promulgated with the expressed intent
to decrease the scope of Federal jurisdiction, the agencies now are
concerned that the actual decrease in water resource protections was
more pronounced than the qualitative predictions in the 2020 NWPR
preamble and supporting documents anticipated and acknowledged to the
public. These data support the agencies' conclusion that the 2020 NWPR
is not a suitable alternative to this rule.
i. Jurisdictional Determination and Permitting Data Show a Large Drop
in the Scope of Waters Protected Under the Clean Water Act
Through an evaluation of jurisdictional determinations completed by
the Corps between 2016 and 2021,\71\ EPA and the Army have identified
consistent indicators of a substantial reduction in waters protected
under the Clean Water Act by the 2020 NWPR (see Technical Support
Document section II.B.i for additional discussion on methods and
results of the agencies' analyses). These indicators include an
increase in the number and proportion of jurisdictional determinations
completed where aquatic resources were found to be non-jurisdictional,
an increase in determinations made by the Corps that no Clean Water Act
section 404 permit is required for specific projects, and an increase
in requests for the Corps to complete approved jurisdictional
determinations (AJDs), rather than preliminary jurisdictional
determinations (PJDs) which treat a feature as jurisdictional. These
trends all reflect the narrow scope of jurisdiction in the 2020 NWPR's
definitions. Additionally, the agencies find that these indicators
likely account for only a fraction of the 2020 NWPR's impacts, because
many project proponents did not seek any form of jurisdictional
determination for waters that the 2020 NWPR categorically excluded,
such as ephemeral features, and the Corps would not have knowledge of
or ability to track such projects. A closer look at each of these
indicators will help demonstrate some of the more pronounced impacts of
the 2020 NWPR on paragraph (a)(1) waters than were identified for the
public in the 2020 NWPR and its supporting documents. As explained in
detail above, when a water falls outside the scope of the Clean Water
Act, that means, among other things, that no Federal water quality
standards will be established, and no Federal permit will be required
to control the discharge of pollutants, including dredged or fill
material, into such waters unless the pollutants reach jurisdictional
waters. And since many entities did not believe that they would need to
seek a jurisdictional determination under the 2020 NWPR, it is
impossible to fully understand the scope of degradation the 2020 NWPR's
definition caused to paragraph (a)(1) waters.
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\71\ A jurisdictional determination is a written Corps
determination that a water is subject to regulatory jurisdiction
under section 404 of the Clean Water Act (33 U.S.C. 1344) or a
written determination that a water is subject to regulatory
jurisdiction under section 9 or 10 of the Rivers and Harbors Act of
1899 (33 U.S.C. 401 et seq.). Jurisdictional determinations are
identified as either preliminary or approved, and both types are
recorded in determinations through an internal regulatory management
database, called Operation and Maintenance Business Information
Link, Regulatory Module (ORM2). This database documents Department
of the Army authorizations under Clean Water Act section 404 and
Rivers and Harbors Act section 10, including permit application
processing and jurisdictional determinations. This database does not
include aquatic resources that are not associated with a
jurisdictional determination or that are not associated with
alternatives to jurisdictional determinations (such as delineation
concurrences or ``No jurisdictional determination required''
findings, where the Corps finds that a jurisdictional determination
is not needed for a project), or permit request or resource impacts
that are not associated with a Corps permit or enforcement action.
An approved jurisdictional determination (AJD) is an official 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. A preliminary
jurisdictional determination (PJD) is a non-binding written
indication that there may be ``waters of the United States'' on a
parcel; 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.
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Consistent with Executive Order 13990, EPA and Army staff have
reviewed jurisdictional determinations as recorded in the Corps'
internal regulatory management database, referred to as the ORM2
database,\72\ to identify any noticeable trends in jurisdictional
determinations under the past recent rules defining ``waters of the
United States.'' The agencies found within the AJDs completed under the
2020 NWPR, the probability of finding resources to be non-
jurisdictional increased precipitously. Of the 9,399 AJDs completed by
the Corps under the 2020 NWPR during the first 12 months in which that
rule was in effect,\73\ the agencies found approximately 75% of AJDs
completed had identified non-jurisdictional water resources and
approximately 25% of AJDs completed identified jurisdictional
waters.\74\ Conversely, when the 1986 regulations and applicable
guidance were in effect (including following the 2019 recodification of
those regulations), substantially more jurisdictional waters were
identified in AJDs on average per year than compared to the first
twelve months of the 2020 NWPR.\75\ During similar one-year calendar
intervals when the 1986 regulations and applicable guidance were in
effect, approximately 28% to 45% of AJDs completed identified non-
jurisdictional aquatic resources, and 56% to 72% of AJDs identified
jurisdictional resources.
[[Page 3063]]
The change from a range of 28% to 45% non-jurisdictional AJD findings
prior to the 2020 NWPR to 75% non-jurisdictional findings after
issuance of the 2020 NWPR indicates that substantially fewer waters
were protected by the Clean Water Act under the 2020 NWPR (see
Technical Support Document section II.B.i for additional discussion).
Again, as commenters on the proposed rule noted, these numbers do not
account for the many entities that did not seek AJDs because they
believed their features were excluded under the 2020 NWPR.
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\72\ See supra note 71.
\73\ These AJDs were completed by the Corps between the 2020
NWPR's effective date of June 22, 2020, and June 21, 2021.
\74\ This excludes dryland AJDs and waters identified as
jurisdictional only under section 10 of the Rivers and Harbors Act.
In addition, under the 2020 NWPR, a single AJD in the Corps'
database can include both affirmative and negative jurisdictional
determinations. Under prior regulatory regimes, the Corps' database
was structured such that a single AJD could be either affirmative,
or negative, but not both. To account for this change in the
structure of the database, a 2020 NWPR jurisdictional determination
that includes both affirmative and negative jurisdictional resources
was normalized and counted as two separate AJDs, one affirmative and
one negative. The total number of AJDs considered after this process
was carried out was 9,399. Prior to this normalization, the total
number of AJDs considered was 7,769. More details on the agencies'
analysis can be found in the Technical Support Document section
II.B.i.
\75\ The time periods evaluated were June 22, 2016 to June 21,
2017; June 22, 2017 to June 21, 2018; and December 23, 2019 to June
21, 2020. The date ranges here constitute periods of time when the
1986 regulations (including the 2019 Repeal Rule's recodification of
those regulations) and applicable guidance were in effect
nationally. 2015 Clean Water Rule determinations were not part of
this analysis.
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When evaluating the effect of the 2020 NWPR on the number of
individual aquatic resources (as opposed to the AJDs completed), the
agencies found a similar substantial reduction in protections provided
by the Clean Water Act. Within the first twelve months of
implementation of the 2020 NWPR, between June 22, 2020, and June 21,
2021, the Corps documented the jurisdictional status of 48,313
individual aquatic resources or water features through AJDs completed;
of these individual aquatic resources, approximately 75% were found to
be non-jurisdictional by the Corps. More specifically, 70% of streams
and wetlands evaluated were found to be non-jurisdictional, including
11,044 ephemeral features (mostly streams) and 15,675 wetlands. Ditches
were also frequently found to be non-jurisdictional (4,706 individual
exclusions), which is likely the result of the narrowed definition of
tributary under the 2020 NPWR and the requirement that a ditch was only
jurisdictional as a tributary if it was originally built in a tributary
or adjacent wetland, as those terms are defined in the 2020 NWPR. By
comparison, only 45% of aquatic resources were found to be non-
jurisdictional during similar year-long calendar intervals between 2016
and 2020 under the pre-2015 regulatory regime.\76\ This increase in
non-jurisdictional determinations, so that approximately 75% of water
bodies are non-jurisdictional under the 2020 NWPR as opposed to only
45% under the prior regulations, undermined the agencies' ability to
provide a baseline of Federal protection for the integrity of the
nation's waters.
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\76\ Based on the average annual percentage of non-
jurisdictional findings.
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Of particular concern to the agencies is the 2020 NWPR's
disproportionate effect on arid regions of the country, as the aquatic
resources in these regions predominantly consist of ephemeral features.
Under the 2020 NWPR, more permittees across the country, including in
the arid West, sought AJDs rather than PJDs, particularly for ephemeral
features. Many more streams were evaluated and determined to be non-
jurisdictional through AJDs in the arid West, while the number of
individual stream reaches considered under PJDs declined precipitously.
As mentioned previously, project proponents who request an AJD obtain
an official Corps document that states either that there are no
``waters of the United States'' present on a parcel, or a statement
that ``waters of the United States'' are present, accompanied by a map
identifying their extent. In contrast, 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. There are time savings and sometimes cost savings
associated with requesting a PJD in lieu of an AJD. A decline in the
proportion of PJDs being requested under the 2020 NWPR indicates that
fewer project proponents requested that aquatic resources on their
project site be treated as if they were jurisdictional.
In Arizona, the annual average number of individual stream reaches
considered under PJDs and similar alternatives to AJDs between 2016 to
2020 was 941, while under the 2020 NWPR in 2020-2021 it was only
45.\77\ Compared to pre-2015 regulatory practice, under the 2020 NWPR,
Arizona experienced an approximate 95% decrease in individual stream
reaches being considered via PJDs and a 9-fold increase in individual
stream reaches being considered via AJDs. Similar metrics for New
Mexico show an 84% decrease in individual streams being considered via
PJDs and a 28-fold increase in individual streams being considered via
AJDs under the 2020 NWPR.
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\77\ The AJD values associated with the 2020 NWPR fall outside
of the 95% confidence interval calculated for annual data from 2016-
2020. Note that in New Mexico and Arizona, the 2015 Clean Water Rule
was never implemented due to litigation stays. The PJD values
associated with the 2020 NWPR do not fall outside of the 95%
confidence interval calculated for annual data from 2016-2020; this
is likely a product of scale. See the Technical Support Document
section II.B.i for more analysis.
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The number of stream reaches assessed in Arizona under AJDs
compared to the number of evaluations completed nationwide was
disproportionately high under the 2020 NWPR. The number of stream
reaches assessed in Arizona constituted 9% of the total stream reaches
assessed nationally and 13% of the ephemeral reaches assessed
nationally over the first twelve months in which the 2020 NWPR was
implemented.\78\ This increase in the number of AJDs sought in Arizona
under the 2020 NWPR compared to the number of AJDs sought in Arizona
between 2016 and 2020 likely reflects the desire of landowners to
confirm that features on their property were ephemeral or otherwise
excluded under that rule, though it is possible the pace of landowners
seeking AJDs would have slowed to some extent over time. The agencies
understand the drastic decline in the number of PJDs requested compared
to AJDs in the arid West, and the simultaneous increase in the number
of AJD non-jurisdictional findings in the arid West, to have been
driven largely by the categorical exclusion of ephemeral streams from
jurisdiction. PJDs assume jurisdiction, and under the 2020 NWPR project
proponents were less likely to assume that ephemeral streams were
jurisdictional.
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\78\ There were a total of 16,787 stream reaches assessed via
AJDs nationwide between June 22, 2020 and June 21, 2021.
---------------------------------------------------------------------------
The Corps' data show that in New Mexico, of the 263 streams
assessed via AJDs in the first twelve months of implementation of the
2020 NWPR (i.e., between June 22, 2020, to June 21, 2021), 100% were
found to be non-jurisdictional ephemeral features.\79\ In Arizona, of
the 1,525 streams assessed in AJDs in the first year of implementation
of the 2020 NWPR, 1,518, or 99.5%, were found to be non-jurisdictional
ephemeral resources. Eliminating these streams from jurisdiction under
the 2020 NWPR also typically eliminated jurisdiction over wetlands
which otherwise might meet adjacency criteria.
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\79\ These non-jurisdictional ephemeral resources are
predominantly ephemeral streams, but a small portion may be swales,
gullies, or pools.
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Some commenters asserted that the low percentage of jurisdictional
AJD findings in Arizona under the 2020 NWPR does not have a
statistically significant difference from the percentages of
jurisdictional findings under the pre-2015 regulatory regime. The
agencies agree that of Corps AJDs completed between 2016 and 2020, high
percentages of streams in Arizona were found to be non-jurisdictional
between 2016 and 2020. Proportionally, the non-jurisdictional findings
via AJDs between 2016-2020 and the 2020 NWPR are similar. However,
because the volume of streams assessed under AJDs in the arid West
increased so substantially, there was a 10-fold increase in non-
jurisdictional findings for streams in Arizona and a 36-fold increase
in non-jurisdictional findings for streams in
[[Page 3064]]
New Mexico following implementation of the 2020 NWPR. The average
annual number of individual stream resources considered in AJDs in
Arizona between 2016-2020 was 147 (of which 138 were determined non-
jurisdictional), compared to 1,525 stream reaches assessed under the
2020 NWPR (of which 1,521 were determined non-jurisdictional accounting
for all exclusions). Assessed together, the statistically significant
increase in overall resources assessed via AJD combined with the shift
away from requests for PJDs, as well as the consistent proportion of
AJDs with non-jurisdictional findings indicates that many more project
proponents viewed resources on their land as no longer ``waters of the
United States'' under the 2020 NWPR. The agencies' analysis also
reflects the scope of the streams that the 2020 NWPR left unprotected,
which in many cases are vitally important to desert aquatic ecosystems
and to the hydrologic integrity of watersheds. See section IV.A.2.c.i
of this preamble.
The Corps identified at least 368 projects from June 22, 2020, to
June 21, 2021, through its ORM2 database that would have needed a Clean
Water Act section 404 permit prior to the 2020 NWPR, but no longer did
under the 2020 NWPR's definition of ``waters of the United States.''
\80\ Moreover, in comparing 2020-2021 to similar annual data from 2016-
2020 from implementation of the 1986 regulations consistent with
Supreme Court case law, there was an average increase of over 100% in
the number of projects determined to not require section 404 permits
under the Clean Water Act due to activities not occurring in ``waters
of the United States'' or activities occurring in waters that were
deemed no longer ``waters of the United States'' due to the 2020 NWPR.
The number of projects that did not require a section 404 permit under
the 2020 NWPR was likely much greater than these numbers indicate
because project proponents did not need to notify the Corps if they had
already received an AJD that concluded waters in the review area were
not ``waters of the United States,'' and because many project
proponents would not have sought a jurisdictional determination or
applied for a permit at all if they believed their aquatic resources
were non-jurisdictional under the 2020 NWPR. Many projects could have
occurred without consultation with the Corps due to the 2020 NWPR's
narrow definition of ``waters of the United States'' and expansive non-
jurisdictional categories. Therefore, while the Corps' ORM2 data shed
light on the trend and magnitude of impacts to the scope of
jurisdiction under the 2020 NWPR, it is fair to assume that these
impacts are an underestimate.\81\
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\80\ This tracking method only applies when 100% of jurisdiction
is lost under the 2020 NWPR (i.e., if even 1 aquatic resource out of
100 that is proposed to be impacted remains jurisdictional, this
method is not used). Additionally, this tracking method was a new
database feature, which was not yet implemented uniformly across the
United States, and is likely under-representative even for those
cases in which 100% of jurisdiction was lost under the 2020 NWPR.
\81\ Requests for AJDs and the jurisdictional dispositions of
the aquatic resources evaluated as part of those AJDs are imperfect
measures of activities that might affect those jurisdictional or
non-jurisdictional aquatic resources. The AJD data in the Corps ORM2
database generally contain only records for situations in which
landowners or project proponents have requested jurisdictional
determinations from the Corps or that are associated with an
enforcement action, and thus do not represent all aquatic resources
that exist within the United States. The proportion and specific
types of aquatic resources evaluated for jurisdiction via AJDs
varies both geographically and from year to year. In addition, the
ORM2 data collected from AJDs conducted under different regulatory
regimes have some metrics that are not directly comparable.
Notwithstanding these limitations, the volume of ORM2 data on AJDs
and associated aquatic resources is large and is tracked in a
reasonably accurate fashion, and thus provides a reasonable estimate
of overall trends and conditions on the ground. It represents the
best data available to the agencies at this time.
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Many commenters cited the impacts referenced above as reasons to
reject the 2020 NWPR's definition of ``waters of the United States.''
In addition, many commenters cited national-scale assessments of the
number of waterbodies that lost protection under the 2020 NWPR as
evidence of environmental harm. Some commenters noted that 51% of
wetlands and 18% of streams lost protections.\82\ Other commenters
stated that 4.8 million miles of streams and 16.3 million acres of non-
floodplain wetlands would be left without Federal level protections
under the 2020 NWPR.\83\
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\82\ Contained in the Resource and Programmatic Assessment for
the Proposed Revised Definition of ``Waters of the United States''
(Docket ID No. EPA-HQ-OW-2021-0602-0039).
\83\ Commenters cited to the following scientific paper as
support: C.R. Lane and E. D'Amico. Identification of putative
geographically isolated wetlands of the conterminous United States,
52 J Am Water Resource Association 705(2016); K. Fesenmyer et al.,
Large portion of USA streams lose protection with new interpretation
of Clean Water Act. February 2021. Freshwater Science 40(1).
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Commenters provided many potential examples of the harms caused by
the 2020 NWPR around the country. One commenter stated that in the
Northwest, an estimated 9,165 miles of ephemeral streams in Oregon's
Rogue River Basin that provide drinking water for the region, as well
as habitat and spawning grounds for Federal threatened Southern Oregon/
Northern California Coast coho salmon and steelhead, would have lost
protection under the 2020 NWPR. Another commenter stated that in the
Midwest, protection would have been lost for an estimated 500 to 1,000
miles of ephemeral and ditched streams that flow into the Niagara
River, the channel that connects Lake Erie and Lake Ontario. The
commenter also noted that following promulgation of the 2020 NWPR, two
Great Lakes states finalized legislative action to further reduce
protections under State law for waters excluded by the 2020 NWPR. One
commenter asserted that up to 202,244 acres of wetlands located behind
levees in Missouri would have been excluded from jurisdiction under the
2020 NWPR because they are separated from jurisdictional waters by
``upland or by dikes, barriers, or similar structures.'' The commenter
stated that these wetlands provide flood control, habitats, and improve
water quality. In the Mountain West, a commenter stated that over half
of Colorado's streams and 22% of that State's remaining wetlands would
have been excluded from jurisdiction under the 2020 NWPR. With respect
to the Southeast, a commenter cited analyses demonstrating that 162,149
acres of wetlands in Georgia's Chattahoochee watershed were vulnerable
to losing protection under the 2020 NWPR. The same commenter noted
that, in the Mid-Atlantic, over 100,000 acres of wetlands would have
lost protection under the 2020 NWPR in Virginia's James River and
Rappahannock River watersheds, which are vital to water quality in the
Chesapeake Bay. Finally, in the Southwest, comments from the State of
New Mexico estimated that under the 2020 NWPR, 25-45% of its Clean
Water Act stormwater general permits and 50% of its individual permits
would no longer be required. In Arizona, a commenter stated that 94% of
all wetlands and flowlines in Arizona's Upper San Pedro Watershed would
have lost protection under the 2020 NWPR.
The agencies have not conducted an independent analysis to verify
each of these comments but have carefully reviewed the concerns
identified and the underlying analyses that commenters cited and found
them generally consistent with the agencies' own findings about the
impacts of the 2020 NWPR. These examples illustrate the quality and
importance of the waters that lost protection under the 2020 NWPR. As
commenters emphasized, waters that the 2020 NWPR categorically
excluded, such as ephemeral streams and their associated wetlands and
wetlands that did not
[[Page 3065]]
meet the 2020 NWPR's adjacency criteria, provide critical ecosystem
services. The absence of Clean Water Act protections for such resources
and any subsequent unregulated and unmitigated impacts to such
resources would have caused cascading, cumulative, and substantial
downstream harm. Commenters stated that, specifically, the 2020 NWPR
would have reduced the extent to which waters filter out pollutants
before they reach traditional navigable waters; reduced flood
protections and water storage services, and increased flooding; harmed
fisheries and hunting sites; destroyed bird and wildlife habitat,
including habitats relied on by endangered species; and reduced the
quality of drinking water. Commenters also stated that the reduction in
federally protected waters under the 2020 NWPR could increase water
pollution near low-income communities and communities of color in
particular and that they could experience associated increases in
health risk.
The 2020 NWPR's removal of Federal protections from the nation's
waters, and the resulting detriment to the services they provide,
undermines the objective of the Clean Water Act, as discussed in
section IV.A.2 of this preamble.
ii. Tribes and States Did Not Fill the Regulatory Gap Left by the 2020
NWPR
Some commenters asserted that the diminished scope of ``waters of
the United States'' would not necessarily reduce protections for waters
because Tribes, States, and local entities may regulate discharges even
in the absence of Clean Water Act regulation. See section IV.A.3.b of
this preamble. This perspective is consistent with the 2020 NWPR's
emphasis that, in the face of a narrower scope of ``waters of the
United States,'' ``the controls that States, Tribes, and local entities
choose to exercise over their land and water resources'' would help to
achieve the objective of the Clean Water Act. 85 FR 22259 (April 21,
2020). Yet while some Tribes and States regulate ``waters of the
Tribe'' or ``waters of the State'' more broadly than the Federal
Government under their own laws, many newly non-jurisdictional waters
under the 2020 NWPR were on Tribal lands or in States that do not
regulate waters beyond those covered by the Clean Water Act. Under the
2020 NWPR, discharges into these waters could have occurred without any
restriction.
As discussed in the Economic Analysis for the Final Rule, many
Tribes and States do not regulate waters more broadly than the Clean
Water Act. See Economic Analysis for the Final Rule, Chapter II; 2020
NWPR Economic Analysis at 30-31. Contrary to the predictions made in
the 2020 NWPR Economic Analysis, during the year in which the 2020 NWPR
was in effect, the net change made by States was deregulatory in
nature. Two States which had previously protected State waters beyond
the scope of ``waters of the United States'' removed these expansive
protections, and no States that lacked these broader protections
established them. See 2020 NWPR Economic Analysis at 39-41 (estimating
that certain States are likely to continue their current permitting
practices for dredged and fill material) and the Economic Analysis for
the Final Rule, Chapter II (indicating that two of those States reduced
the scope of State clean water protections after the 2020 NWPR was
finalized, and none of them formally expanded protections as a direct
result of the 2020 NWPR).
The agencies understand that revising State regulations and/or laws
takes time, and the agencies do not know how some States might have
responded if the 2020 NWPR had been in place for more than a year, but
the agencies have no basis to expect that more States that currently
lack protections beyond the 2020 NWPR Federal floor would have
established them. Indeed, the External Environmental Economics Advisory
Committee has stated that the model that the 2020 NWPR used to forecast
State responses to that rule was overly optimistic with respect to the
likelihood that States would address a Federal regulatory gap, in part
based on the agencies' failure to fully consider States' responses to
past changes to the definition of ``waters of the United States''
(e.g., only three States directly increased protective regulations in
response to the decision in SWANCC that the use of ``isolated'' non-
navigable intrastate ponds by migratory birds was not by itself a
sufficient basis for the exercise of Federal authority under the Clean
Water Act, and the agencies' resulting change in implementation of the
Act).\84\ Moreover, commenters, including State entities, asserted that
the Federal Government provided no assistance or support for
overburdened State agencies trying to compensate for the sudden
suspension in Federal protections under the 2020 NWPR. Finally, States
asserted that in the absence of robust Federal protections, even if
they were to expend substantial resources addressing discharges within
their borders, they would not be able to limit pollutants flowing in
from other States that may not have established such controls.
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\84\ Prior to the 2016 Trump Administration, EPA's Science
Advisory Board (SAB) had a subcommittee on environmental economics
known as the Environmental Economics Advisory Committee (EEAC). When
this committee was disbanded under the 2016 Administration, its
members created an ad-hoc external committee. This External
Environmental Economics Advisory Committee (E-EEAC) carried out an
assessment of the economic analysis associated with the 2020 NWPR.
See Keiser, D., S. Olmstead, K. Boyle, V. Flatt, B. Keeler, D.
Phaneuf, J. Shapiro, and J. Shimshack (2020). Report on the Repeal
of the Clean Water Rule and its Replacement with the Navigable
Waters Protection Rule to Define Waters of the United States
(WOTUS). December 2020. As of today, the EPA's SAB has reinstated
the EEAC, which assessed the proposed rule's economic analysis as
part of the SAB's review of the rule.
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The agencies are also not aware of any Tribes that expanded their
clean water protections to compensate for a reduction in protections
under the 2020 NWPR. During the agencies' Tribal consultation and
coordination for this rulemaking process, Tribes overwhelmingly
indicated they lack the independent resources and expertise to protect
their waters and therefore rely on Clean Water Act protections. See
Summary of Tribal Consultation and Coordination, available in the
docket for this rule. This feedback is consistent with the concerns
expressed during the 2020 NWPR rulemaking process. See, e.g., 85 FR
22336-22337, April 21, 2020 (``[M]any Tribes may lack the capacity to
create a [T]ribal water program under [T]ribal law, to administer a
program, or to expand programs that currently exist. Other Tribes may
rely on the Federal government for enforcement of water quality
violations . . . .'').
Given the limited capacity of many Tribes and States to regulate
waters more broadly than the Federal Government and limited authority
under Tribal and State law, the narrowing of Federal jurisdiction would
mean that many discharges into the newly non-jurisdictional waters
would no longer be subject to regulation, including permitting
processes and mitigation requirements designed to protect the chemical,
physical, and biological integrity of the nation's waters. The agencies
have heard concerns from a broad array of co-regulators and
stakeholders, including Tribes, States, scientists, and non-
governmental organizations, that corroborated the agencies' data and
indicated that the 2020 NWPR's reduction in the jurisdictional scope of
the Clean Water Act would cause substantial environmental harms,
including to the quality of paragraph (a)(1) waters, that Tribes and
States lack the authority or resources to address.
[[Page 3066]]
In conclusion, the agencies do not find that the 2020 NWPR is a
suitable alternative to this rule.
C. This Rule
1. Summary of This Rule
This rule establishes the definition of ``waters of the United
States'' for purposes of the Clean Water Act. For clarity, this rule is
divided into three parts: jurisdictional waters, exclusions, and
definitions. This section of the preamble addresses each provision of
the rule and provides an explanation of the rule text, a response to
significant comments, and the agencies' interpretation and
implementation of the provisions of the rule.
The ``waters of the United States'' are defined in paragraph (a) of
this rule: (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 to 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''); 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'').
The ``relatively permanent standard'' means 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 paragraph (a)(1) waters. The
``significant nexus standard'' means waters that, either alone or in
combination with similarly situated waters in the region, significantly
affect the chemical, physical, or biological integrity of traditional
navigable waters, the territorial seas, or interstate waters.
Paragraph (b) of this rule contains the longstanding exclusions
from the pre-2015 regulations, as well as additional exclusions based
on well-established practice, from the definition of ``waters of the
United States.'' Paragraph (c) of this rule provides definitions for
terms used in this rule.
Paragraph (a): Jurisdictional Waters
Paragraph (a)(1). This rule defines ``waters of the United States''
to include traditional navigable waters, the territorial seas, and
interstate waters. The agencies are not making changes to the text or
substance of the provisions of the 1986 regulations covering
traditional navigable waters, the territorial seas, and interstate
waters. The agencies are consolidating these three categories of waters
into one paragraph at the beginning of the regulatory text. While
combined into one paragraph, each category will remain distinct in
separate subparagraphs. The agencies have concluded that this non-
substantive change streamlines the regulatory text and increases
clarity. This streamlining is not a substantive change and does not
alter the agencies' longstanding interpretation and implementation of
these provisions.
Paragraph (a)(2). This rule defines ``waters of the United States''
to include impoundments of ``waters of the United States.''
Impoundments are created by discrete structures (often human-built)
like dams or levees that typically have the effect of raising the water
surface elevation, creating or expanding the area of open water, or
both. In this rule, the paragraph (a)(2) impoundments category provides
that ``waters of the United States'' do not lose their jurisdictional
status simply because they are impounded. In a change from the 1986
regulations, waters that are jurisdictional under paragraph (a)(5) and
that are subsequently impounded do not retain their jurisdictional
status by rule under the paragraph (a)(2) impoundments provision, but
may still be determined to be jurisdictional if they meet the
requirements of a category of ``waters of the United States'' other
than paragraph (a)(2) at the time of assessment (i.e., as a traditional
navigable water, the territorial seas, interstate water, jurisdictional
tributary, jurisdictional adjacent wetland, or paragraph (a)(5) water).
Paragraph (a)(3). This rule defines ``waters of the United States''
to include tributaries of 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. As compared to the 1986 regulations, this
rule adds the territorial seas to the list of waters to which a water
may be a tributary and deletes intrastate lakes and ponds, streams, or
wetlands not identified in paragraphs (a)(1) through (4) (the (a)(3)
``other waters'' provision under the 1986 regulations) from the list.
Paragraph (a)(4). Aquatic resources that meet this rule's
definitions of ``wetlands'' and ``adjacent'' with regard to another
jurisdictional water are assessed under this provision. The rule
defines ``waters of the United States'' to include: (1) wetlands
adjacent to traditional navigable waters, the territorial seas, or
interstate waters; (2) 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; or (3) wetlands
adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries
when the wetlands meet the significant nexus standard (``jurisdictional
adjacent wetlands'').
Paragraph (a)(5). This rule defines ``waters of the United States''
to include 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. In
this paragraph, the agencies are retaining the category from the 1986
regulations sometimes referred to as ``(a)(3) waters'' or ``other
waters,'' but with changes to reflect the agencies' determination of
the statutory limits on the scope of ``waters of the United States''
informed by the law, the science, and agency expertise, in addition to
consideration of extensive public comment on the proposed rule. Of
particular importance, the agencies have replaced the 1986 regulation's
broad Commerce Clause basis for jurisdiction for waters not identified
in other provisions of the definition, with the relatively permanent
standard and the significant nexus standard. In addition, the agencies
have deleted the non-exclusive list of ``other waters'' in the 1986
regulation. Under this provision in the rule, only ``intrastate lakes
and ponds, streams, or wetlands not identified in paragraphs (a)(1)
through (4)'' can be assessed for jurisdiction under the relatively
permanent standard or significant nexus standard.
Paragraph (b): Exclusions
The agencies are promulgating a number of exclusions from the
definition of ``waters of the United States,'' including longstanding
[[Page 3067]]
exclusions for prior converted cropland and waste treatment systems,
and exclusions for features that were generally considered non-
jurisdictional under the pre-2015 regulatory regime. The agencies are
listing these exclusions in the regulatory text in a new paragraph (b),
which consolidates the exclusions together in a single regulatory
section. Under this rule, where a feature satisfies the terms of an
exclusion, it is excluded from jurisdiction even where the feature
would otherwise be jurisdictional under paragraphs (a)(2) through (5)
of this rule. Paragraph (a)(1) waters are not subject to the
exclusions. The exclusions are:
(1) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act;
(2) Prior converted cropland designated by the Secretary of
Agriculture. The exclusion would cease upon a change of use, which
means that the area is no longer available for the production of
agricultural commodities. 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;
(3) Ditches (including roadside ditches) excavated wholly in and
draining only dry land and that do not carry a relatively permanent
flow of water;
(4) Artificially irrigated areas that would revert to dry land if
the irrigation ceased;
(5) Artificial lakes or ponds created by excavating or diking dry
land to collect and retain water and which are used exclusively for
such purposes as stock watering, irrigation, settling basins, or rice
growing;
(6) Artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating or diking dry land to
retain water for primarily aesthetic reasons;
(7) Waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of water meets
the definition of waters of the United States; and
(8) Swales and erosional features (e.g., gullies, small washes)
characterized by low volume, infrequent, or short duration flow.
Paragraph (c): Definitions
Paragraph (c) of this rule provides definitions for purposes of the
rule. This rule contains several defined terms unchanged from the 1986
regulations: the definitions of ``wetlands,'' ``adjacent,'' ``high tide
line,'' ``ordinary high water mark,'' and ``tidal water.'' This rule
defines the term ``significantly affect'' for purposes of determining
whether a water meets the significant nexus standard to mean ``a
material influence on the chemical, physical, or biological integrity
of'' a paragraph (a)(1) water. Under this rule, waters, including
wetlands, are evaluated either alone, or in combination with other
similarly situated waters in the region, based on the functions the
evaluated waters perform. This rule identifies specific functions that
will be assessed and identifies specific factors that will be
considered when determining whether the functions provided by the
water, either alone or in combination, have a material influence on the
integrity of a traditional navigable water, the territorial seas, or an
interstate water. These factors include the distance from a paragraph
(a)(1) water; hydrologic factors, such as the frequency, duration,
magnitude, timing, and rate of hydrologic connections, including
shallow subsurface flow; the size, density, or number of waters that
have been determined to be similarly situated; landscape position and
geomorphology; and climatological variables such as temperature,
rainfall, and snowpack. The functions in this rule are indicators that
are tied to the chemical, physical, or biological integrity of
paragraph (a)(1) waters, including contribution of flow; trapping,
transformation, filtering, and transport of materials (including
nutrients, sediment, and other pollutants); retention and attenuation
of floodwaters and runoff; modulation of temperature in paragraph
(a)(1) waters; or provision of habitat and food resources for aquatic
species located in paragraph (a)(1) waters.
Section IV.C of this preamble also provides guidance on
implementation of each provision of this rule. In implementing this
rule, the agencies generally will consider first if a water qualifies
as a paragraph (a)(1) water (i.e., a traditional navigable water, the
territorial seas, or an interstate water). If a waterbody is determined
to be a paragraph (a)(1) water, then it is jurisdictional with no need
for further evaluation. If a water is not a paragraph (a)(1) water, the
agencies generally will consider next whether any of the exclusions in
paragraph (b) of this rule apply to the water. The exclusions in this
rule do not apply to paragraph (a)(1) waters, and therefore, a
traditional navigable water, the territorial seas, or an interstate
water cannot be excluded under this rule, even if the water would
otherwise meet the criteria for an exclusion.\85\ If a water does not
qualify as a paragraph (a)(1) water and the agencies determine that an
exclusion is applicable (e.g., waters that meet the waste treatment
system exclusion, wetlands that qualify as prior converted cropland),
the water would not be jurisdictional under this rule. If the water is
not a paragraph (a)(1) water, and an exclusion under paragraph (b) does
not apply, then the agencies generally will determine next if the water
can be assessed under paragraphs (a)(2) through (4) of this rule. If
the water does not meet the criteria for paragraphs (a)(1) through (4),
the agencies generally will assess next if the water is jurisdictional
under paragraph (a)(5) of this rule. When assessing the jurisdictional
status of waters after the effective date of the final rule, regulators
and the public should use the definition of ``waters of the United
States'' established by this rule. For example, when assessing whether
a stream is a jurisdictional tributary, regulators and the public
should consider the provisions related to tributaries in the final
rule.\86\ If a water is not jurisdictional under paragraphs (a)(1)
through (5) of this rule, then the water does not meet the definition
of ``waters of the United States.''
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\85\ See also discussion of the waste treatment system exclusion
in section IV.C.7.b of this preamble, infra.
\86\ The agencies will continue to evaluate potential
enforcement actions using the regulations in place when the alleged
violation occurred. For example, if a person excavated a ditch while
the pre-2015 regulatory regime was in effect and the person complied
with the terms of the pre-2015 regulatory regime, today's final rule
does not create new liability. See United States v. Lucero, 989 F.3d
1088 (9th Cir. 2021) (explaining that the 2020 NWPR did not apply
retroactively to the defendant's violations, which occurred before
the 2020 NWPR became effective).
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It is important to note that some aquatic resources can potentially
be assessed for jurisdiction under multiple categories of this rule.
For example, certain streams, rivers, lakes, ponds, wetlands, and
impoundments can be assessed as traditional navigable waters or
interstate waters under paragraph (a)(1)(i) or (a)(1)(iii) of this
rule. Other streams, rivers, lakes, ponds, and impoundments are
situated such that they are part of the tributary system and can be
assessed under paragraph (a)(3) of this rule. The agencies will assess
intrastate lakes and ponds, streams, and
[[Page 3068]]
wetlands under paragraph (a)(5) of this rule only if they do not fall
within paragraphs (a)(1) through (4). In any case, the agencies will
identify the provision or provisions of the rule under which a
determination of jurisdiction is made.
Section IV.C of this preamble provides increased clarity and
substantial guidance to assist in implementing the relatively permanent
standard and significant nexus standard. See sections IV.C.4, IV.C.5,
and IV.C.6 of this preamble for additional information on how the
agencies will implement these standards for tributaries, adjacent
wetlands, and waters assessed under paragraph (a)(5) (these sections
include guidance on identifying waterbodies on the landscape,
determining which waters are ``relatively permanent, standing or
continuously flowing,'' identifying waters with a ``continuous surface
connection'' under the relatively permanent standard, and identifying
which waters are ``similarly situated'' and ``in the region'' under the
significant nexus standard).
As is typical after a rule is promulgated, the agencies have
entered into a joint agency coordination memorandum to ensure the
consistency and thoroughness of the agencies' implementation of this
rule, which is available in the docket for the final rule. See Docket
ID No. EPA-HQ-OW-2021-0602. As part of these coordination procedures,
EPA and Corps field staff will coordinate on all draft approved
jurisdictional determinations based on the significant nexus standard,
and the agencies will follow a process for elevating a subset of these
determinations to EPA and Corps headquarters for review as necessary.
That coordination will be enhanced for waters assessed under paragraph
(a)(5), and headquarters at the agencies will review all draft approved
jurisdictional determinations \87\ for paragraph (a)(5) waters based on
the significant nexus standard. After nine months, the agencies will
reevaluate this requirement and assess the implementation and
coordination memorandum approach. See section IV.C.6 of this preamble
for additional discussion.
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\87\ An approved jurisdictional determination 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. See 33 CFR
331.2.
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The agencies note that Congress exempted or excluded certain
discharges from the Clean Water Act or from specific permitting
requirements. This rule will not affect any of the exemptions,
including exemptions from section 404 permitting requirements provided
by section 404(f), such as those for normal farming, ranching, and
silviculture activities. 33 U.S.C. 1344(f); 40 CFR 232.3; 33 CFR 323.4.
This rule will also not affect the existing statutory or regulatory
exemptions or exclusions from section 402 NPDES permitting
requirements, such as for agricultural stormwater discharges and return
flows from irrigated agriculture, or the status of water transfers. 33
U.S.C. 1342(l)(1), (l)(2); 33 U.S.C. 1362(14); 40 CFR 122.2, 122.3(f).
In addition, where waters are covered by the Clean Water Act, the
agencies have adopted measures to simplify compliance with the Act such
as general permits and tools for expediting the permitting process
(e.g., mitigation banks, in-lieu fee programs, and functional/
conditional assessment tools). The agencies intend to continue to
develop general permits and other simplified procedures to ensure that
projects, particularly those that offer environmental or public
benefits, can proceed with the necessary environmental safeguards while
minimizing permitting delays.
Finally, with respect to determining whether a water meets the
definition of ``waters of the United States,'' under case law and the
Corps' existing regulations ``[u]nauthorized discharges into waters of
the United States do not eliminate Clean Water Act jurisdiction, even
where such unauthorized discharges have the effect of destroying waters
of the United States.'' 33 CFR 323.2 (1987). Thus, for example, an
unpermitted discharge of fill material into a jurisdictional adjacent
wetland that destroys all wetland characteristics does not render that
water no longer jurisdictional. Nor does an authorized discharge,
filling in a part of a tributary, for example, sever jurisdiction
upstream, provided that the upstream waters meet the definition of
``waters of the United States'' absent the unauthorized discharge.
2. Traditional Navigable Waters, the Territorial Seas, and Interstate
Waters
a. This Rule
The agencies are not making changes to the text or substance of the
provisions of the 1986 regulations covering traditional navigable
waters, the territorial seas, and interstate waters. The agencies are
consolidating these three categories of waters into one paragraph at
the beginning of the regulatory text. While combined into one
paragraph, each category will remain distinct in separate
subparagraphs. The agencies have concluded that this non-substantive
change streamlines the regulatory text and increases clarity. This
consolidation requires corresponding changes to cross references and
the numbering of other provisions in the rule. These changes increase
clarity by reducing the number of cross references necessary and make
practical sense because the jurisdictional status of other categories
of waters relies on their connection to traditional navigable waters,
the territorial seas, or interstate waters. For example, the definition
of ``significantly affect'' refers simply to ``the chemical, physical,
or biological integrity of waters identified in paragraph (a)(1) of
this section'' rather than requiring multiple cross-references to three
separate paragraphs. This streamlining is not a substantive change and
does not alter the agencies' longstanding interpretation and
implementation of these provisions.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies have concluded that the non-substantive change
consolidating traditional navigable waters, the territorial seas, and
interstate waters into paragraph (a)(1) streamlines the regulatory text
and increases clarity. These changes increase clarity by reducing the
number of cross references necessary and make practical sense because
the jurisdictional status of other categories of waters relies on their
connection to traditional navigable waters, the territorial seas, or
interstate waters. The rationale for retaining each of these three
water types is provided in the relevant subsections below.
Some commenters expressed support for the categorical protection
and consolidation of traditional navigable waters, the territorial
seas, and interstate waters. One commenter stated that the
consolidation is ``consistent with the history and text of the law.''
Several commenters opposed the consolidation of the traditional
navigable waters, the territorial seas, and interstate waters
provisions into one jurisdictional category, arguing that the
categories of waters are distinct and therefore should remain separate.
The agencies agree that each of these provisions is a distinct category
but disagree that consolidating them into one paragraph has any effect
on distinguishing the types of waters which fall within each category.
Further, the agencies have kept the text of each category the same as
in the 1986 regulations and have established separate subparagraphs for
each category to ensure there is no confusion. The jurisdictional
standards for each of
[[Page 3069]]
the three categories are different, so the agencies will clearly
identify the subparagraph under which a particular water is
jurisdictional. A water which meets the test for traditional navigable
waters under the Clean Water Act, for example, will be identified as
jurisdictional under paragraph (a)(1)(i). Note that some waters may
fall into more than one category of paragraph (a)(1) waters (e.g., a
water may be both a traditional navigable water and an interstate
water, such as Lake Tahoe, or a water may be both a traditional
navigable water and part of the territorial seas, such as the Pacific
Ocean).
A commenter stated that the protection of traditional navigable
waters, the territorial seas, and interstate waters should not be
affected by any exclusions that the agencies may include in this rule.
The agencies agree and the text of this rule is clear that the
exclusions do not apply to paragraph (a)(1) waters. See also section
IV.C.7 of this preamble. The Clean Water Act fundamentally protects
these three categories of waters: traditional navigable waters are
clearly encompassed within the defined term ``navigable waters''; the
territorial seas are explicitly mentioned in the definition of
``navigable waters''; and, as discussed further below, interstate
waters, by definition, are waters of the ``several States'' and are
unambiguously ``waters of the United States.'' While the agencies have
authority to draw lines excluding some aquatic features from the
definition of ``waters of the United States,'' the Clean Water Act
provides no such authority to the agencies to exclude waters in these
three unambiguous types of ``waters of the United States'' under the
statute. Even if jurisdiction over one or all of these categories of
waters were ambiguous, the agencies have concluded that since these are
the fundamental waters that Congress intended to protect under the
Clean Water Act, and that have had longstanding and unequivocal
protection, with the exception of the 2020 NWPR, it is reasonable to
establish unequivocal jurisdiction over these waters. Further, the
agencies have concluded that there are no policy, practical, or
technical bases to apply the exclusions to these paragraph (a)(1)
waters given their crucial role in the statutory regime.
Some commenters expressed support for consolidating just
traditional navigable waters and territorial seas into a single
category of jurisdictional waters. A commenter added that this approach
is logical because these two types of waters are the only types of
waters that are explicitly referenced in the operative sections of the
Clean Water Act. The commenter asserted that combining these waters
into one category would make the rule clearer and easier to administer.
Similarly, a couple of commenters expressed concerns that the proposed
rule too broadly categorized what is considered a ``foundational''
water. The 2020 NWPR consolidated the categories of traditional
navigable waters and the territorial seas in the definition of ``waters
of the United States'' into a single paragraph in the regulatory text
in order to streamline the text but deleted the interstate waters
category. 85 FR 22280, 22338, 22340 (April 21, 2020). The agencies
agree that combining these waters into one category makes the rule
clearer and easier to administer. However, the agencies have also
combined interstate waters into the same paragraph because, as
discussed above, protecting all three categories of waters is a
fundamental aim of the Clean Water Act. See section IV.C.2.b.iii of
this preamble (discussing protection under the Clean Water Act of
interstate waters in the same manner as traditional navigable waters
and the territorial seas). Under this rule, the jurisdictional status
of the other categories of waters relies on their connection to any one
of these three categories of waters--a traditional navigable water, the
territorial seas, or an interstate water (and, where required, meeting
either the relatively permanent standard or the significant nexus
standard). Therefore, the agencies have concluded that streamlining the
rule by including all three categories of these waters in one paragraph
is reasonable and appropriate.
A commenter suggested that the agencies provide a definition of
``foundational waters.'' The commenter suggested that ``if the common
shorthand is that the waters used for commerce, the interstate
waters[,] and the territorial seas are the `foundational waters[,]'
then the additional term `foundational waters' should be defined as
such.'' The commenter asserted that this would make the rule text
easier to understand and use. The agencies are not providing a
definition for ``foundational waters'' because they are not using the
term ``foundational waters'' in the rule text. The agencies used the
phrase ``foundational waters'' in the preamble to the proposed rule
simply for convenience and readability rather than writing the phrase
``traditional navigable waters, the territorial seas, and interstate
waters'' repeatedly. As discussed above in this preamble, in light of
the new consolidated paragraph that groups those three categories of
waters together, the agencies will simply refer to those waters as
``paragraph (a)(1) waters'' in this preamble.
i. Traditional Navigable Waters
(1) This Rule
The Clean Water Act, the 1986 regulations, the 2015 Clean Water
Rule, the 2019 Repeal Rule, and the 2020 NWPR all include within the
scope of ``waters of the United States'' traditional navigable waters,
defined by regulation as ``all waters which are currently used, or were
used in the past, or may be susceptible to use in interstate or foreign
commerce, including all waters which are subject to the ebb and flow of
the tide.'' E.g., 33 CFR 328.3(a)(1) (2014). With respect to
traditional navigable waters, the text of the 1986 regulations and the
text of the 2020 NWPR are identical. The agencies did not propose to
amend the longstanding text defining ``traditional navigable waters''
and are not making changes to the text in this rule. As discussed
above, the agencies are consolidating three categories of waters into
one paragraph at the beginning of the regulatory text, and with this
consolidation, ``traditional navigable waters'' are identified in
paragraph (a)(1)(i) of this rule.
The agencies also are not making changes to their longstanding
interpretation of traditional navigable waters for purposes of Clean
Water Act jurisdiction. Thus, these paragraph (a)(1)(i) waters include
all of the ``navigable waters of the United States,'' defined in 33 CFR
part 329 and by numerous decisions of the Federal courts, plus all
other waters that are navigable-in-fact (e.g., the Great Salt Lake,
Utah and Lake Minnetonka, Minnesota). To determine whether a waterbody
constitutes a paragraph (a)(1)(i) water under the regulations, relevant
considerations include the agencies' regulations; prior determinations
by the Corps, by EPA, and by the Federal courts; and case law. The
agencies will determine whether a particular waterbody is a traditional
navigable water based on application of those considerations to the
specific facts in each case.
As noted above, the paragraph (a)(1)(i) waters include, but are not
limited to, the ``navigable waters of the United States.'' A water body
qualifies as a ``navigable water of the United States'' if it meets any
of the tests set forth in 33 CFR part 329 (e.g., the waterbody is (a)
subject to the ebb and flow of the tide, and/or (b) the waterbody is
[[Page 3070]]
presently used, or has been used in the past, or may be susceptible for
use (with or without reasonable improvements) to transport interstate
or foreign commerce).
Traditional navigable waters also include ``all waters that are
currently used, or were used in the past, or may be susceptible to use
in interstate or foreign commerce, including all waters which are
subject to the ebb and flow of the tide.'' Some examples of waters that
will be considered traditional navigable waters, and thus
jurisdictional under this provision of this rule include: waters
currently being used for commercial navigation, including commercial
waterborne recreation (for example, boat rentals, guided fishing trips,
or water ski tournaments); waters that have historically been used for
commercial navigation, including commercial waterborne recreation; or
waters that are susceptible to being used in the future for commercial
navigation, including commercial waterborne recreation. See ``Waters
that Qualify as Traditional Navigable Waters Under Section (a)(1) of
the Agencies' Regulations,'' \88\ available at https://www.epa.gov/wotus/waters-qualify-traditional-navigable-waters-under-section-a1-agencies-regulations.
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\88\ ``Waters that Qualify as Traditional Navigable Waters Under
Section (a)(1) of the Agencies' Regulations,'' began as ``Waters
that Qualify as Waters of the United States Under Section (a)(1) of
the Agencies' Regulations'' in Appendix D to the U.S. Army Corps of
Engineers Jurisdictional Determination Form Instructional Guidebook
(available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2316) that was published in 2007
concurrently with the 2007 Rapanos Guidance and thus is often simply
referred to as ``Appendix D.'' The Rapanos Guidance was updated in
2008, but Appendix D has remained unchanged since 2007. Paragraph
(a)(1)(i) of this rule was paragraph (a)(1) of the regulations in
place when the guidance was issued, but the text of that provision
has not changed through the various rulemakings defining ``waters of
the United States,'' and the agencies have continued to use the
guidance for determining whether a water is a ``traditional
navigable water.'' See 80 FR 37054, 37074 (June 29, 2015) (2015
Clean Water Rule); 85 FR 22250, 22281 (April 21, 2020) (2020 NWPR).
There have been no substantive changes to the guidance since it was
issued on May 30, 2007. In 2021, EPA and the Army established
``Waters that Qualify as Waters of the United States Under Section
(a)(1) of the Agencies' Regulations,'' as a standalone guidance
document when rescinding a memorandum on traditional navigable
waters finalized after the 2020 NWPR. However, for clarity the
agencies have updated the title to ``Waters that Qualify as
Traditional Navigable Waters Under Section (a)(1) of the Agencies'
Regulations'' and deleted references to the Rapanos Guidance. The
agencies will continue to use this guidance to determine whether a
water is a ``traditional navigable water'' for the purposes of the
Clean Water Act and the agencies' implementing regulations. This
document is available at https://www.epa.gov/wotus/waters-qualify-traditional-navigable-waters-under-section-a1-agencies-regulations.
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2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
Supreme Court decisions have not questioned the inclusion of
traditional navigable waters in the definition of ``waters of the
United States.'' See, e.g., SWANCC, 531 U.S. at 172 (``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.'').
Some commenters voiced support for the agencies' decision to
interpret the scope of traditional navigable waters consistent with the
agencies' longstanding approach in the document known as ``Waters that
Qualify as Waters of the United States Under Section (a)(1) of the
Agencies' Regulations.'' A commenter added that such an interpretation
is consistent with the agencies' longstanding guidance and is familiar
to Tribal and State co-regulators as well as the general public.
Another commenter stated that the agencies' reference to ``Waters that
Qualify as Waters of the United States Under Section (a)(1) of the
Agencies' Regulations'' would create additional confusion during the
implementation of this rule. The agencies are maintaining their
longstanding approach to traditional navigable waters for purposes of
the Clean Water Act as reflected in this well-established document. The
agencies have used this guidance since 2007 and through a number of
rulemakings. The 2020 NWPR continued use of this guidance, stating,
``because the agencies have not modified the definition of `traditional
navigable waters,' the agencies are retaining [`Waters that Qualify as
Waters of the United States Under Section (a)(1) of the Agencies'
Regulations'] to help inform implementation of that provision of this
final rule.'' 85 FR 22281 (April 21, 2020). Given the longstanding use
of the guidance, the agencies do not think it will cause confusion to
continue to use it. To provide additional clarity, however, the
agencies are maintaining this document as standalone guidance titled
``Waters that Qualify as Traditional Navigable Waters Under Section
(a)(1) of the Agencies' Regulations,'' with minor edits to the title
and to reflect that the Rapanos Guidance is no longer in effect,
simultaneously with this rule.
After the 2020 NWPR was promulgated, the agencies issued a
coordination memorandum that created some confusion. ``U.S.
Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers
(Corps) Process for Elevating and Coordinating Specific Draft
Determinations under the Clean Water Act (CWA)'' (hereinafter, ``TNW
Coordination Memorandum''). The memorandum established an
implementation process by which the agencies elevate to their
headquarters certain case-specific and stand-alone Clean Water Act
traditional navigable water determinations concluding that a water is
``susceptible to use'' solely based on evidence of recreation-based
commerce. Id. The TNW Coordination Memorandum merely required enhanced
coordination for such determinations and did not state that a
``susceptible to use'' determination could not be solely based on
evidence of recreation-based commerce. On November 17, 2021, the
agencies rescinded the TNW Coordination Memorandum but kept in place
the ``Waters that Qualify as Waters of the United States Under Section
(a)(1) of the Agencies' Regulations.'' \89\ A few commenters asserted
that recreational activities are sufficient evidence to demonstrate
that a water is susceptible to being used in the future for commercial
navigation, thereby qualifying waters supporting recreational
activities as traditional navigable waters for purposes of the Clean
Water Act. Alternatively, several commenters asserted that recreational
activities are not sufficient evidence to demonstrate that a water is a
traditional navigable water. The Supreme Court has been clear that
``[e]vidence of recreational use, depending on its nature, may bear
upon susceptibility of commercial use.'' PPL Montana v. Montana, 565
U.S. 576, 600-01 (2012) (in the context of navigability at the time of
statehood); id. at 601 (``[P]ersonal or private use by boats
demonstrates the availability of the stream for the simpler types of
commercial navigation.'' (quoting United States v. Appalachian Elec.
Power Co., 311 U.S. 377, 416 (1940))); id. (noting that the ``fact that
actual use has `been more of a private nature than of a public,
commercial sort . . . cannot be regarded as controlling''' (quoting
United States v. Utah, 283 U.S. 64, 82
[[Page 3071]]
(1931))). Therefore, the agencies are maintaining their longstanding
position that commercial waterborne recreation (for example, boat
rentals, guided fishing trips, or water ski tournaments) can be
considered when determining if a water is a traditional navigable
water.
---------------------------------------------------------------------------
\89\ U.S. Environmental Protection Agency and U.S. Department of
the Army. ``Recission of June 30, 2020 Memorandum `U.S.
Environmental Protection Agency (EPA) and U.S. Army Corps of
Engineers (Corps) Process for Elevating and Coordination Specific
Draft Determinations under the Clean Water Act (CWA).'' November 17,
2021. Available at https://www.epa.gov/system/files/documents/2021-11/nwpr-tnw-coordination-rescission-memo_signed-11.17.2021.pdf.
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Some commenters stated that the agencies must ensure that
traditional navigable waters are not limited to just the waters that
the agencies have determined to be ``navigable waters of the United
States'' under section 10 of the Rivers and Harbors Act of 1899. Other
commenters stated that the agencies should limit the scope of
traditional navigable waters to the section 10 waters under the Rivers
and Harbors Act of 1899. The agencies are not changing their
longstanding position that the traditional navigable waters for
purposes of the Clean Water Act include, but are not limited to, the
section 10 waters under the Rivers and Harbors Act of 1899, and include
any of the waters that constitute traditional navigable waters under
relevant judicial decisions. See ``Waters that Qualify as Waters of the
United States Under Section (a)(1) of the Agencies' Regulations.'' \90\
The scope of the Rivers and Harbor Act of 1899 is generally narrower
than the scope of the Clean Water Act. See, e.g., 1902 Atlantic Ltd. v.
Hudson, 574 F. Supp. 1381, 1392-93 (E.D. Va. 1983) (explaining that
``[t]he term `navigable waters of the United States' as used in the
Rivers and Harbors Act of 1899 has a substantially different, and more
limited, meaning than the term as used in the Clean Water Act'' and
that ``the term has a more limited meaning, consistent with the
concepts of `navigation' and `navigability' as of 1899''). The scope of
``navigable waters of the United States'' under the Rivers and Harbors
Act of 1899 is thus more limited than the scope of traditional
navigable waters for purposes of the Clean Water Act and as established
in paragraph (a)(1)(i) of this rule. The Corps' regulations reflect the
difference and under the Corps' regulations, ``navigable waters of the
United States'' (i.e., waters that are subject to section 10 of the
Rivers and Harbors Act of 1899) are limited to ``those waters that are
subject to the ebb and flow of the tide and/or are presently used, or
have been used in the past, or may be susceptible for use to transport
interstate or foreign commerce.'' 33 CFR 329.4. Therefore, there are
numerous waters that have been determined to be traditional navigable
waters for purposes of the Clean Water Act, or navigable for other
purposes under Federal law, but which are not ``navigable waters of the
United States'' under section 10 of the Rivers and Harbors Act of 1899.
For example, the Supreme Court has found that the Great Salt Lake met
the test for navigability for purposes of the ownership of the bed of
the Lake at the time of Utah's statehood, even though it was not part
of a continuous waterborne highway of interstate commerce, but the
Court of Appeals for the Tenth Circuit found that evidence insufficient
to establish that the Lake is covered by the Rivers and Harbors Act of
1899. See Utah v. United States, 403 U.S. 9 (1971); Hardy Salt Co. v.
Southern Pacific Trans. Co., 501 F.2d 1156 (10th Cir. 1974). The Corps
has determined the lake to be a traditional navigable water for
purposes of the Clean Water Act based on the Supreme Court's finding
that the water in the past met the test for navigability. The
distinction the agencies have drawn between section 10 waters and
traditional navigable waters for purposes of the Clean Water Act is
entirely consistent with Supreme Court case law. The Supreme Court in
Kaiser Aetna rejected the notion ``that the concept of `navigable
waters of the United States' has a fixed meaning that remains unchanged
in whatever context it is being applied.'' Kaiser Aetna v. United
States, 444 U.S. 164, 170 (1979). Instead, the Court cautioned that
``any reliance upon judicial precedent must be predicated upon a
careful appraisal of the purpose for which the concept of
`navigability' was invoked in a particular case.'' Id. at 171 (internal
quotation marks omitted) (emphasis in original). The Supreme Court
further stated that the ``cases that discuss Congress' paramount
authority to regulate waters used in interstate commerce are
consequently best understood when viewed in terms of more traditional
Commerce Clause analysis than by reference to whether the stream, in
fact, is capable of supporting navigation or may be characterized as
[a] `navigable water of the United States.''' Id. at 174. More
recently, the Supreme Court has cautioned ``that the test for
navigability is not applied in the same way in [different] types of
cases[,]'' referring, for example, to cases arising under the Federal
Power Act, Clean Water Act, and title disputes. PPL Montana v. Montana,
565 U.S. 576, 592 (2012).
---------------------------------------------------------------------------
\90\ See supra note 88.
---------------------------------------------------------------------------
A number of commenters stated that the agencies' interpretation of
traditional navigable waters was inconsistent with the test for
navigability in The Daniel Ball, 77 U.S. 557 (1870), with the
discussion of navigability in SWANCC, and with the plurality and
Justice Kennedy's opinions in Rapanos. The agencies disagree. None of
the opinions in Rapanos addressed the test for traditional navigable
waters; rather, they simply cited to The Daniel Ball--the beginning of
a long line of cases addressing navigability. As the Supreme Court has
explained: ``The Daniel Ball formulation has been invoked in
considering the navigability of waters for purposes of assessing
federal regulatory authority under the Constitution, and the
application of specific federal statutes, as to the waters and their
beds.'' PPL Montana, 565 U.S. at 592 (citing The Montello, 20 Wall.
430, 439 (1874); United States v. Appalachian Elec. Power Co., 311 U.S.
377, 406 & n.21 (1940) (Federal Power Act); Rapanos, 547 U.S. at 730-31
(plurality opinion) (Clean Water Act); id. at 761 (Kennedy, J.,
concurring in judgment) (same)). In PPL Montana, the Supreme Court was
clear that the test for navigability has evolved since The Daniel Ball;
it depends upon the authority being exercised by the Federal Government
and is a case-specific inquiry. ``It should be noted, however, that the
test for navigability is not applied in the same way in these distinct
types of cases.'' 565 U.S. at 592. Of particular relevance for
traditional navigable waters for the Clean Water Act, ``federal
regulatory authority encompasses waters that only recently have become
navigable, see, e.g., Philadelphia Co. v. Stimson, 223 U.S. 605, 634-
635, 32 S.Ct. 340, 56 L.Ed. 570 (1912), were once navigable but are no
longer, see Economy Light & Power Co. v. United States, 256 U.S. 113,
123-124, 41 S.Ct. 409, 65 L.Ed. 847 (1921), or are not navigable and
never have been but may become so by reasonable improvements, see
Appalachian Elec. Power Co., supra, at 407-408, 61 S.Ct. 291. With
respect to the Federal commerce power, the inquiry regarding navigation
historically focused on interstate commerce. See The Daniel Ball,
supra, at 564. And, of course, the commerce power extends beyond
navigation. See Kaiser Aetna v. United States, 444 U.S. 164, 173-174,
100 S.Ct. 383, 62 L.Ed.2d 332 (1979). . . . Indeed, `[e]ach application
of [the Daniel Ball] test . . . is apt to uncover variations and
refinements which require further elaboration.' Appalachian Elec. Power
Co., supra, at 406, 61 S.Ct. 291.'' PPL Montana, 565 U.S. at 592-93.
Thus, the agencies' interpretation of traditional navigable waters for
purposes of the Clean Water Act is consistent with The Daniel Ball as
applied by the Supreme Court.
[[Page 3072]]
ii. Territorial Seas
(1) This Rule
The Clean Water Act defines ``navigable waters'' to include ``the
territorial seas'' in section 502(7). The Clean Water Act then defines
the ``territorial seas'' in section 502(8) as ``the belt of the seas
measured from the line of ordinary low water along that portion of the
coast which is in direct contact with the open sea and the line marking
the seaward limit of inland waters, and extending seaward a distance of
three miles.'' The territorial seas establish the seaward limit of
``waters of the United States'' and are clearly jurisdictional under
the Clean Water Act.
The Clean Water Act, the 1986 regulations, the 2015 Clean Water
Rule, the 2019 Repeal Rule, and the 2020 NWPR all included ``the
territorial seas'' as ``waters of the United States.'' This rule makes
no changes to ``the territorial seas'' provision and retains the
provision in the regulatory text, consolidated in paragraph (a)(1).
(2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
As described above, the Clean Water Act explicitly defines the
agencies' jurisdiction to include ``the territorial seas.'' This rule
confirms the agencies' jurisdiction over these waters, consistent with
Congress's direction. A commenter stated that if the agencies combine
traditional navigable waters, the territorial seas, and interstate
waters into one category of waters in this rule, the agencies should
clarify that the territorial seas represent a distinct basis for
jurisdiction and are not a type of traditional navigable water. The
agencies agree with this commenter that the territorial seas are an
independent category of jurisdictional waters. However, in the preamble
to the proposed rule, the agencies also stated that the territorial
seas are a type of traditional navigable water. While most portions of
the territorial seas are also traditional navigable waters, the
agencies are clarifying in this rule that portions of the territorial
seas that may not be navigable or capable of being used in interstate
or foreign commerce are still jurisdictional if they meet the
definition of the ``territorial seas'' in the Clean Water Act. The
agencies did not intend to exclude any portion of the territorial seas
as the term is defined in Clean Water Act section 502(8), 33 U.S.C.
1362(8). To avoid any confusion, this rule continues to list
traditional navigable waters and the territorial seas as separate
categories of jurisdictional waters.
iii. Interstate Waters
(1) This Rule
This rule retains the longstanding categorical protections for
interstate waters, regardless of their navigability, that were
established by the earliest predecessors to the 1972 Clean Water Act
and remained in place except during the time period the 2020 NWPR was
in effect. Interstate waters are, by definition, waters of the
``several States,'' U.S. Const. Article I, section 8, and are
unambiguously ``waters of the United States.'' In addition, categorical
protection of interstate waters is the construction of the Clean Water
Act that is most consistent with the text of the statute, including
section 303(a), its purpose and history, Supreme Court case law, and
the agencies' charge to implement a ``comprehensive regulatory
program'' that protects the chemical, physical, and biological
integrity of the nation's waters.
The agencies interpret interstate waters under this rule to mean
``all rivers, lakes, and other waters that flow across, or form a part
of, State boundaries'' based on precursor water protection statutes and
practice. See 33 U.S.C. 466i(e) (1952) (codifying Pub. L. 80-845
section 10(e), 62 Stat. 1161 (1948)). Interstate waters thus include
waters that cross or form a part of State boundaries with other States
and with other countries (Canada and Mexico). Examples of such waters
include portions of the Amargosa River, which flows from Nevada into a
dry playa in Death Valley, California, and the Great Dismal Swamp, a
wetland which crosses the border between Virginia and North Carolina.
The Amargosa River is not a traditional navigable water and does not
otherwise flow to a traditional navigable water or the territorial
seas, but under the agencies' pre-2015 regulations and the final rule,
the portion of the Amargosa River that crosses the California/Nevada
border is an interstate water. Tributaries to interstate waters like
the Amargosa River and wetlands adjacent to interstate waters and their
tributaries are critical sources of life in desert climates. Interstate
waters also include waters that meet the definition of a traditional
navigable water or are tributaries of traditional navigable waters or
the territorial seas, such as the portions of the Ohio River and
Mississippi River that cross or serve as State boundaries; the portions
of the Rio Grande that cross State boundaries (Colorado/New Mexico) or
that cross the border or serve as the border between the United States
and Mexico; and Lake Champlain, which crosses the New York/Vermont
border and crosses the border between the United States and Canada.
Because, as explained below, the Clean Water Act unambiguously
includes interstate waters, they are fundamental to the Act in the same
manner as traditional navigable waters and the territorial seas. Even
if the text of the Clean Water Act does not unambiguously resolve the
question of jurisdiction over interstate waters, the agencies have
concluded that it is reasonable to construe the statute to protect
interstate waters without need for further assessment based on the
history of the statute, Supreme Court case law interpreting the Act,
the legislative history, and the objective of the Act to restore and
maintain the integrity of the nation's waters. Therefore, this rule,
like the 1986 regulations, provides Clean Water Act protections for
interstate waters in the same manner as for traditional navigable
waters and the territorial seas, and the following waters that meet the
relatively permanent standard or significant nexus standard based on
their connection to interstate waters are ``waters of the United
States'': tributaries to interstate waters, wetlands adjacent to
interstate waters or to their jurisdictional tributaries, and paragraph
(a)(5) waters.
Interstate waters may be streams, lakes or ponds, or wetlands. The
longstanding definition of ``waters of the United States'' includes
interstate wetlands. As discussed in section IV.A.2.b.ii of this
preamble, the Clean Water Act's statutory text, structure, and history
establish that adjacent wetlands are ``waters of the United States''
covered by the Act. And, while the Supreme Court's focus in Riverside
Bayview was on adjacent wetlands, the Court's unanimous conclusion that
section 404(g)(1) provides express textual evidence ``that the term
`waters' included adjacent wetlands,'' 474 U.S at 138, is informative
for interstate wetlands as well. For more than 45 years the agencies
have concluded that waters, for purposes of the Clean Water Act,
include wetlands. The agencies have also, for more than 45 years,
concluded that some of those wetlands are ``waters of the United
States,'' and among those wetlands are interstate wetlands. Because the
agencies consider wetlands to be waters, the rationale for covering
interstate waters based on the history of the statute, Supreme Court
case law interpreting the Act, legislative history, and the objective
of the Act applies with full force to interstate wetlands.
[[Page 3073]]
Under this provision of the rule, consistent with the pre-2015
regulatory regime, lakes, ponds, impoundments, and similar lentic (or
still) water resources, as well as wetlands, crossing State boundaries
are jurisdictional as interstate waters through the entirety of their
delineated extent.
For streams and rivers, the agencies will determine the upstream
and downstream extent of the stream or river crossing a State boundary
or serving as a State boundary that should be considered the
``interstate water'' using stream order. Stream order is a common,
longstanding scientific concept of assigning whole numbers to indicate
the branches of a stream network. Under this method, for rivers and
streams, the ``interstate water'' extends upstream and downstream of
the State boundary for the entire length that the water is of the same
stream order. See section IV.C.4.c.ii.1 of this preamble for additional
information about stream order.
(2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
Until 1972, the predecessors of the Clean Water Act explicitly
protected interstate waters independent of their navigability. The 1948
Water Pollution Control Act declared that the ``pollution of interstate
waters'' and their tributaries is ``a public nuisance and subject to
abatement.'' 33 U.S.C. 466a(d)(1) (1952) (codifying Pub. L. 80-845
section 2(d)(1), 62 Stat. 1156 (1948)). Interstate waters were defined
without reference to navigability: ``all rivers, lakes, and other
waters that flow across, or form a part of, State boundaries.'' 33
U.S.C. 466i(e) (1952) (codifying Pub. L. 80-845 section 10(e), 62 Stat.
1161 (1948)).
In 1961, Congress broadened the 1948 statute and made the pollution
of ``interstate or navigable waters'' subject to abatement, retaining
the definition of ``interstate waters.'' 33 U.S.C. 466g(a) (1964)
(codifying Pub. L. 87-88 section 8(a), 75 Stat. 204, 208 (1961)). In
1965, Congress required States to develop water quality standards for
``interstate waters or portions thereof within such State.'' 33 U.S.C.
1160(c)(1) (1970) (codifying Pub. L. 89-234 section 5, 79 Stat. 903,
908 (1965)); see also 33 U.S.C. 1173(e) (1970) (retaining definition of
``interstate waters''). In the 1972 Clean Water Act, Congress abandoned
the ``abatement'' approach initiated in the 1948 statute in favor of a
focus on permitting for discharges of pollutants.
While the term ``navigable waters'' is ambiguous in some respects,
interstate waters are waters that are clearly covered by the plain
language of the definition of ``navigable waters.'' Congress defined
``navigable waters'' to mean ``the waters of the United States,
including the territorial seas.'' Interstate waters are, by definition,
waters of the ``several States,'' U.S. Const. section 8, and
consequently, are unambiguously ``waters of the United States.'' The
1972 Clean Water Act thus reflects Congress's recognition that the
degradation of water resources in one State may cause substantial harms
in other States. The Supreme Court has recognized that ``the power
conferred by the Commerce Clause [is] broad enough to permit
congressional regulation of activities causing air or water pollution,
or other environmental hazards that may have effects in more than one
State.'' Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.
264, 282 (1981).
In addition, the text of the 1972 Clean Water Act specifically
addresses ``interstate waters'' regardless of their navigability.
Namely, section 303(a) of the 1972 Clean Water Act uses the term
``interstate waters'' and provides that pre-existing water quality
standards for ``interstate waters'' remain in effect unless EPA
determined that they were inconsistent with any applicable requirements
of the pre-1972 version of the Act. 33 U.S.C. 1313(a)(1). That plain
language is a clear indication that Congress intended the agencies to
continue to protect the water quality of interstate waters without
reference to their navigability. Excluding ``interstate waters'' as an
independent category of Clean Water Act jurisdiction would disregard
the plain language of section 303(a).
The Supreme Court has concluded that the 1972 Clean Water Act was
``not merely another law `touching interstate waters,''' but rather
``occupied the field through the establishment of a comprehensive
regulatory program supervised by an expert administrative agency.''
City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981) (``City of
Milwaukee''). Thus, the 1972 amendments superseded the Federal common
law of nuisance as a means to protect interstate waters in favor of a
statutory ``all-encompassing program of water pollution regulation,''
id. at 318, and they did not curtail the scope of protected waters.
Even if the text and history of the statute and Supreme Court case
law interpreting the Clean Water Act do not unambiguously resolve the
issue, the situation addressed by the Supreme Court in the City of
Milwaukee case highlights the reasonableness of the agencies'
interpretation that the Act protects interstate waters. The City of
Milwaukee litigation involved alleged discharges of inadequately
treated sewage from Milwaukee, Wisconsin sewer systems directly into
Lake Michigan, which also borders Illinois. As the Supreme Court noted,
prior to passage of the Clean Water Act, these discharges would have
had to be resolved through litigation, in which the courts must apply
``often vague and indeterminate nuisance concepts and maxims of equity
jurisprudence.'' Id. at 317. However, the Clean Water Act replaced this
unpredictable and inefficient approach with ``a comprehensive
regulatory program supervised by an expert administrative agency.'' Id.
The Court reiterated that view in Arkansas v. Oklahoma, stating in the
context of an NPDES permit for a discharge of pollutants to interstate
waters that, while the Clean Water Act may place some limits on
downstream States' participation in the permitting process, those
limits ``do not in any way constrain the EPA's authority to require a
point source to comply with downstream water quality standards.'' 503
U.S. 91, 106 (1992) (emphasis in original).
The potential for interstate harm, and the consequent need for
Federal regulation, is particularly clear with respect to waterbodies
that span more than one State. The alternative interpretation would
leave interstate waters that do not fall within any other provisions in
the definition of ``waters of the United States'' without Federal
protection. Parties in different States would need to resolve concerns
about upstream discharges in non-jurisdictional waters through
litigation using ``often vague and indeterminate nuisance concepts and
maxims of equity jurisprudence.'' City of Milwaukee, 451 U.S. at 317;
see also 85 FR 22286 (April 21, 2020) (acknowledging in the 2020 NWPR
that ``remedies for pollution disputes among States that do not
implicate CWA sections 319(g), 401, or 402 would likely derive from
federal common law under the Supreme Court's original jurisdiction.
Remedies for disputes between a State and a public or private party
would likely derive from State or federal common law and be heard by
State or Federal courts'' (citations omitted)). Restoration of
longstanding protections for interstate waters, regardless of whether
they are navigable-in-fact, enables the agencies to address interstate
water quality issues efficiently and effectively. The agencies
interpret interstate waters to encompass all waters that Congress has
sought to protect since 1948: all rivers, lakes, and
[[Page 3074]]
other waters that flow across, or form a part of, State boundaries.
Public Law 80-845, sec. 10, 62 Stat. 55, at 1161 (1948). These waters
need not meet the relatively permanent standard or significant nexus
standard to be jurisdictional under the final rule.
EPA has interpreted the Clean Water Act to cover interstate waters,
with the exception of the 2020 NWPR, since 1973. 38 FR 13528 (May 22,
1973) (providing that the term ``waters of the United States'' includes
``interstate waters and their tributaries, including adjacent
wetlands''). In the final rule promulgated in 1977, the Corps adopted
EPA's definition and included ``interstate waters and their
tributaries, including adjacent wetlands'' within the definition of
``waters of the United States.'' The preamble to that rule provided an
explanation for the inclusion of interstate waters: ``The affects [sic]
of water pollution in one state can adversely affect the quality of the
waters in another, particularly if the waters involved are interstate.
Prior to the FWPCA amendments of 1972, most federal statutes pertaining
to water quality were limited to interstate waters. We have, therefore,
included this third category consistent with the Federal government's
traditional role to protect these waters from the standpoint of water
quality and the obvious effects on interstate commerce that will occur
through pollution of interstate waters and their tributaries.'' 42 FR
37122, 37127 (July 19, 1977).
Because the Clean Water Act unambiguously includes interstate
waters, they are fundamental to the Act in the same manner that
traditional navigable waters and the territorial seas are. Traditional
navigable waters, the territorial seas, and interstate waters cannot be
protected without also protecting the waters that have a significant
nexus to those waters. This rule protects interstate waters in the same
manner as it protects traditional navigable waters and the territorial
seas. Thus, the following waters that meet the relatively permanent
standard or significant nexus standard based on their connection to
interstate waters are ``waters of the United States'': tributaries to
interstate waters, wetlands adjacent to interstate waters or to their
jurisdictional tributaries, and paragraph (a)(5) waters. The agencies
received multiple comments on the proposed rule in favor of the
categorical inclusion of interstate waters as ``waters of the United
States,'' as well as multiple comments arguing that categorical
inclusion of interstate waters is inconsistent with the Clean Water
Act. Several commenters asserted that asserting categorical
jurisdiction over interstate waters is legally permissible, with some
arguing that the statutory language unambiguously demonstrates that the
Clean Water Act protects all interstate waters. One commenter stated
that the agencies' failure to protect all interstate waters in the 2020
NWPR ``was an abdication of a core premise of the Clean Water Act's
cooperative federalism.'' One commenter added that Federal jurisdiction
over interstate waters protects State sovereignty, rather than
threatening it, and quoted Justice Scalia's plurality opinion in
Rapanos that ``the Act protects downstream States from out-of-state
pollution that they cannot themselves regulate.'' 547 U.S. at 777.
Several of the commenters discussed downstream pollution to demonstrate
their general support for including interstate waters as a
jurisdictional category. Many of these commenters added that including
interstate waters in the definition of ``waters of the United States''
helps reduce the burden of increased pollutants from out-of-state,
upstream discharges.
Commenters opposed to the categorical inclusion of interstate
waters stated that such an approach unlawfully reads the notion of
navigability out of the Clean Water Act. A few commenters asserted that
pursuant to SWANCC, Riverside Bayview, and Rapanos, interstate waters
or interstate wetlands can only be jurisdictional if they are navigable
or connected to navigable waters. In support of their arguments, some
commenters cited the 2020 NWPR and the order of the U.S. District Court
for the Southern District of Georgia remanding the 2015 Clean Water
Rule. Georgia v. Wheeler, 418 F. Supp. 3d 1336, 1358-59 (S.D. Ga. 2019)
(concluding that the categorical inclusion of interstate waters exceeds
the agencies' statutory authority because it ``reads the term
navigability out of the CWA''). For the reasons articulated above, the
agencies conclude that the interpretation of the agencies' authority
over interstate waters articulated in the 2020 NWPR and in Georgia v.
Wheeler is inconsistent with both the text and the history of the Clean
Water Act, as well as Supreme Court case law.
A few commenters disagreed with the agencies' proposal to determine
jurisdiction over tributaries to interstate waters, wetlands adjacent
to interstate waters or their jurisdictional tributaries, and paragraph
(a)(5) waters, by applying the relatively permanent or significant
nexus standards to analyze their connection to the interstate water.
Alternatively, a few commenters supported interstate waters being
treated like traditional navigable waters and the territorial seas for
purposes of determining the jurisdictional status of tributaries to
interstate waters, wetlands adjacent to interstate waters or their
jurisdictional tributaries, and paragraph (a)(5) waters. The agencies
have concluded that, since interstate waters are clearly jurisdictional
under the statute, the statute requires the same protections for them
as the Clean Water Act does for traditional navigable waters and the
territorial seas. As the scientific support for protecting tributaries,
adjacent wetlands, and paragraph (a)(5) waters that satisfy the
relatively permanent or significant nexus standard is the same for
interstate waters as it is for traditional navigable waters and the
territorial seas, the agencies have reasonably defined ``waters of the
United States'' to protect such tributaries, adjacent wetlands, and
paragraph (a)(5) waters.
In the proposed rulemaking, the agencies requested comment on
approaches for implementing the interstate waters provision, including
approaches for determining the upstream and downstream extent of a
stream or river crossing a State boundary or serving as a State
boundary that should be considered the ``interstate water.'' Several
commenters stated that the entire length of a waterbody that is of the
same stream order as the point that crosses State lines should be
considered an interstate water, and therefore jurisdictional. These
commenters added that where a river or stream itself forms the
boundary, the entire length of stream forming the boundary should be
considered an interstate water, and therefore jurisdictional. These
commenters also added that any additional reach of the stream that is
the same stream order as the portion forming the boundary should also
be jurisdictional. One commenter stated that this stream order approach
is well-understood and consistent with the longstanding pre-2015
regulatory regime and stated that it is also consistent with
longstanding accepted scientific practice. Alternatively, a few
commenters voiced opposition or concern for using stream order to
determine the reach of an interstate water, with one commenter stating
that the approach is restrictive and another stating that it could be
too expansive. The agencies agree with commenters who stated that
stream order is an appropriate approach for determining the upstream
and downstream limits of an interstate water that is a stream or river.
The agencies conclude that this
[[Page 3075]]
approach is reasonable and provides a method that is transparent, well-
understood, predictable, and easy to implement. This approach is
consistent with longstanding practice under the pre-2015 regulatory
regime and thus is familiar to the agencies and the public.
Additionally, this method is consistent with the agencies' approach to
characterizing tributary reaches based on stream order for purposes of
applying the relatively permanent standard in this rule (see section
IV.C.4.c.ii of this preamble), and the agencies' approach to
characterizing tributary reaches based on stream order to delineate the
catchment for purposes of applying the significant nexus standard in
this rule (see section IV.C.4.c.iii of this preamble).
(3) Waters That Cross a State-Tribal Bundary
The agencies requested comment in the proposed rule on whether
interstate waters should encompass waters that flow across, or form a
part of, boundaries of federally recognized Tribes where these waters
simultaneously flow across, or form a part of, State boundaries. See
Public Law 80-845, sec. 10, 62 Stat. 1155, at 1161 (1948). The agencies
also sought comment on how to identify ``Tribal boundaries'' for
purposes of implementing the interstate waters provision, such as
boundaries associated with a Tribe's reservation or boundaries
associated with the term ``Indian country'' as defined at 18 U.S.C.
1151.
Multiple commenters expressed support for treating waters that
cross or serve as State/Tribal boundaries as interstate waters, with
some commenters stating that waters that cross or serve as boundaries
between the lands of different Tribes (i.e., Tribal/Tribal boundaries)
should also be deemed interstate waters under the rule. Other
commenters did not support treating waters that cross or serve as
State/Tribal boundaries as interstate waters. Some commenters provided
input on which boundary should be considered a Tribal boundary for
purposes of the interstate waters category, with many of those
commenters expressing a preference for using ``Indian country'' as
defined at 18 U.S.C. 1151 to delineate Tribal boundaries. A few
commenters suggested that a category broader than ``Indian country''
should be used to adequately reflect Tribal interests and rights.
As evidenced by the feedback the agencies have received, the issue
of how to address ``Tribal boundaries'' for purposes of implementing
the interstate waters provision is of great importance to Tribes as
well as various stakeholders. The agencies recognize the range of views
expressed on this issue to date, including support for interpreting
Tribal boundaries to include all waters that flow across, or form a
part of, Indian country boundaries; support for finding that interstate
waters include waters outside of Indian country that flow into areas
where Tribes exercise treaty or other rights; opposition to interstate
waters generally including waters that flow across, or form part of,
Tribal boundaries; and views in between. The agencies also acknowledge
commenters who raised questions regarding implementation of potential
interpretations of interstate waters as applied to Tribal boundaries.
The agencies have considered the input received during pre-proposal
Tribal consultation and the public comment period for the proposed rule
and, at this time, are continuing to evaluate the issue of interstate
waters and Tribal boundaries, including what should appropriately be
considered ``Tribal boundaries'' for purposes of identifying interstate
waters under the Clean Water Act. The agencies have weighed the
benefits of addressing this issue now, based on the record currently
before them, versus undertaking additional analysis and outreach to
Tribes to gain a better understanding of Tribal boundaries as related
to interstate waters and related implications via a separate process,
described below, to avoid delaying the entire rule.
Based on the agencies' evaluation of the comments received and the
benefits of further analysis and outreach, the agencies have decided to
conduct additional analysis and outreach to inform a future action
related to considering designating waters that cross a State/Tribal
boundary as interstate waters under the definition of ``waters of the
United States.'' The agencies recognize the importance of this issue to
Tribes and are fully committed to directly engaging with Tribal
governments as the agencies continue to evaluate this aspect of the
scope of ``waters of the United States.''
Accordingly, the agencies will address this issue in a subsequent
action after completing additional analysis and essential outreach and
engagement activities with Tribes and interested stakeholders. Although
the agencies are not taking a position on this specific issue at this
time, a water that crosses a State/Tribal boundary may be
jurisdictional if it otherwise falls within this rule's definition of
``waters of the United States.''
3. Impoundments
a. This Rule
Consistent with the proposal, this rule retains the provision in
the 1986 regulations that defines ``waters of the United States'' to
include impoundments of ``waters of the United States.'' Impoundments
are distinguishable from natural lakes and ponds because they are
created by discrete structures (often human-built) like dams or levees
that typically have the effect of raising the water surface elevation,
creating or expanding the area of open water, or both. Impoundments can
be natural (like beaver ponds) or artificial (like reservoirs).
The agencies' implementation of the paragraph (a)(2) impoundments
category \91\ is based on two primary principles. First, as a matter of
policy, law, and science, impoundments do not render ``waters of the
United States'' no longer ``waters of the United States.'' Second, as a
matter of policy and science, if an impounded water has the
characteristics of another jurisdictional water, then the impoundment
is jurisdictional. Based on these principles, in implementing this rule
the agencies consider paragraph (a)(2) impoundments to include (1)
impoundments created by impounding one of the ``waters of United
States'' that was jurisdictional under this rule's definition at the
time the impoundment was created, and (2) impoundments of waters that
at the time of assessment meet the definition of ``waters of the United
States'' under paragraph (a)(1), (a)(3), or (a)(4) of this rule,
regardless of the water's jurisdictional status at the time the
impoundment was created. Waters that are jurisdictional under paragraph
(a)(5) are the exception to these two implementing principles. The text
of this regulation states that they are not covered by paragraph
(a)(2). Therefore, waters that are jurisdictional under paragraph
(a)(5) do not categorically retain their jurisdictional status as
``waters of the United States''
[[Page 3076]]
under paragraph (a)(2).\92\ However, a subsequently impounded
jurisdictional paragraph (a)(5) water may still be determined to be
jurisdictional if it meets the requirements of a category of ``waters
of the United States'' other than paragraph (a)(2) at the time of
assessment (i.e., as a traditional navigable water, the territorial
seas, an interstate water, a jurisdictional tributary, a jurisdictional
adjacent wetland, or a paragraph (a)(5) water).\93\
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\91\ Impounded waters may be jurisdictional under provisions
other than the paragraph (a)(2) impoundments provision. For example,
they may be impoundments that are traditional navigable waters and
would be jurisdictional under paragraph (a)(1), or they may be
impounded adjacent wetlands and meet the requirements to be
jurisdictional under the paragraph (a)(4) adjacent wetlands
provision. To provide clarity in this preamble, when the agencies
are discussing the subsection of impoundments that are
jurisdictional under paragraph (a)(2) because they are impoundments
of ``waters of the United States,'' the agencies will refer to
``paragraph (a)(2) impoundments.''
\92\ When an approved jurisdictional determination does not
exist for an impounded water that the agencies conclude based on its
characteristics could only be jurisdictional under paragraph (a)(5),
the paragraph (a)(2) impoundments provision does not apply and the
water will be assessed under another jurisdictional category.
\93\ For example, if a stream that is not part of the tributary
system of a paragraph (a)(1) water, but which is assessed under
paragraph (a)(5) and is determined to meet the significant nexus
standard, is lawfully impounded subsequent to the jurisdictional
determination, the stream is not automatically jurisdictional as a
paragraph (a)(2) water under this rule. However, the impounded
stream may still meet the significant nexus standard under paragraph
(a)(5) or the impounded stream may develop the characteristics of a
traditional navigable water and become jurisdictional under
paragraph (a)(1).
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Consistent with the 1986 regulations, under this rule tributaries
may be tributaries to paragraph (a)(1) or (a)(2) waters. Tributaries to
paragraph (a)(2) impoundments, and wetlands adjacent to such
tributaries, are jurisdictional if they meet either the relatively
permanent standard or the significant nexus standard. Additionally,
wetlands adjacent to paragraph (a)(2) impoundments are jurisdictional
if they meet either the relatively permanent standard or the
significant nexus standard. In order for a tributary to a paragraph
(a)(2) impoundment to meet the relatively permanent standard, the
agencies must be able to trace evidence of a flowpath (e.g., physical
features on the landscape, such as a channel, ditch, pipe, or swale)
directly or indirectly through another water or waters, downstream from
the structure that creates the paragraph (a)(2) impoundment to a
paragraph (a)(1) water. When evaluating a wetland adjacent to a
paragraph (a)(2) impoundment under the relatively permanent standard,
field staff would assess whether the impounded water is relatively
permanent, standing or continuously flowing, and then determine whether
the wetland has a continuous surface connection to the impoundment.
When evaluating a wetland adjacent to a jurisdictional tributary to a
paragraph (a)(2) impoundment when the jurisdictional tributary meets
the relatively permanent standard, field staff would determine whether
the wetland has a continuous surface connection to the tributary. See
section IV.C.4.c and section IV.C.5.c of this preamble for additional
information on evaluations under the relatively permanent standard for
tributaries and adjacent wetlands. For a tributary to a paragraph
(a)(2) impoundment, a wetland adjacent to a paragraph (a)(2)
impoundment, or a wetland adjacent to a tributary to a paragraph (a)(2)
impoundment, that is assessed under the significant nexus standard, the
significant nexus must be to a paragraph (a)(1) water. See sections
IV.C.4.c and IV.C.5.c of this preamble for additional information on
significant nexus evaluations for tributaries and adjacent wetlands.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies have determined that as a matter of law, science, and
policy, impoundments do not de-federalize a water, and therefore
impoundments of ``waters of the United States'' remain ``waters of the
United States.'' The Supreme Court has confirmed that damming or
impounding ``waters of the United States'' does not make those waters
non-jurisdictional. See S.D. Warren Co. v. Maine Bd. of Envtl. Prot.,
547 U.S. 370, 379 n.5 (2006) (``S.D. Warren'') (``[N]or can we agree
that one can denationalize national waters by exerting private control
over them.''). While S.D. Warren addressed the meaning of the word
``discharge'' rather than the definition of ``waters of the United
States,'' the Court's conclusion regarding the jurisdictional status of
a dammed river supports the agencies' longstanding interpretation of
the Clean Water Act that ``waters of the United States'' remain
``waters of the United States'' even if impounded, as reflected in the
1986 regulations and continued in this rule. Essentially, the action of
creating an impoundment cannot on its own render ``waters of the United
States'' no longer jurisdictional.\94\ The Court of Appeals for the
Ninth Circuit has similarly found that ``it is doubtful that a mere
man-made diversion would have turned what was part of the waters of the
United States into something else and, thus, eliminated it from
national concern.'' United States v. Moses, 496 F.3d 984, 988 (9th Cir.
2007), cert. denied, 554 U.S. 918 (2008).
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\94\ Note that a Clean Water Act section 404 permit may
authorize impoundment of a water such that the water is no longer
jurisdictional, for example, to create a waste treatment system that
is excluded from the definition of ``waters of the United States.''
In such circumstances, the water is analyzed under the regulatory
exclusion where applicable, not under the impoundments provision of
the definition.
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Asserting Clean Water Act jurisdiction over impoundments also
aligns with the scientific literature, as well as the agencies'
scientific and technical expertise and experience, which confirm that
impoundments have chemical, physical, and biological effects on
downstream waters through surface or subsurface hydrologic connections.
As discussed in section III.C of the Technical Support Document,
impoundments are typically built to maintain some level of hydrologic
connection between the water that is being impounded and the downstream
tributary network. For example, water may pass from a reservoir to the
downstream side of an impoundment by passing through a main spillway or
outlet works, passing over an auxiliary spillway, or overtopping the
impoundment. Indeed, berms, dikes, and similar features used to create
impoundments typically do not block all water flow. Even dams, which
are specifically designed and constructed to impound large amounts of
water effectively and safely, generally do not prevent all water flow,
but rather allow seepage under the foundation of the dam and through
the dam itself. See, e.g., International Atomic Energy Agency, 2003,
``Investigating Leaks in Dams & Reservoirs.'' INIS-XA-616. Vienna,
Austria (``All dams are designed to lose some water through
seepage.''); U.S. Bureau of Reclamation, ``Safety of Dams.'' Provo Area
Office (last updated July 1, 2017) (``All dams seep, but the key is to
control the seepage through properly designed and constructed filters
and drains.''); Federal Energy Regulatory Commission, 2005, ``Chapter
14: Dam Safety Performance Monitoring Program.'' Engineering Guidelines
for the Evaluation of Hydropower Projects. (``Seepage through a dam or
through the foundations or abutments of dams is a normal condition.'').
Further, as an agency with expertise and responsibilities in
engineering and public works, the Corps extensively studies water
retention structures like berms, levees, and earth and rock-fill dams.
The agency has found that all water retention structures are subject to
seepage through their foundations and abutments. See section III.C of
the Technical Support Document.
Paragraph (a)(2) waters include impoundments created in waters that
were jurisdictional under this rule's definition at the time the
impoundment was created, as well as impoundments of waters that at the
time of assessment are jurisdictional under paragraph (a)(1), (a)(3),
or (a)(4) of this rule regardless of
[[Page 3077]]
the water's jurisdictional status at the time the impoundment was
created.\95\ This is generally consistent with the agencies'
longstanding approach to impoundments. See U.S. Army Corps of Engineers
Jurisdictional Determination Form Instructional Guidebook (2007) at 58,
available at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Related-Resources/CWA-Guidance/
(hereinafter, ``2007 Corps Instructional Guidebook''). The agencies
have concluded that it is appropriate based on relevant case law,
science, and as a practical matter to interpret ``waters of the United
States'' to include both impoundments of waters that qualified as
``waters of the United States'' under this rule's definition at the
time of impoundment, and impoundments of waters that at the time of
assessment meet the definition of ``waters of the United States''
(other than waters jurisdictional under paragraph (a)(5)). As discussed
above, waters that qualified as ``waters of the United States'' at the
time of impoundment (other than waters jurisdictional under paragraph
(a)(5)) remain ``waters of the United States.'' And impoundments of
waters that at the time of assessment fall within one of the other
categories of ``waters of the United States'' in this rule (other than
waters jurisdictional under paragraph (a)(5)) are jurisdictional under
paragraph (a)(2).
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\95\ See infra for a discussion of impoundments of waters that
are jurisdictional as paragraph (a)(5) waters, which are treated
differently under this rule.
---------------------------------------------------------------------------
The agencies received a variety of comments on impoundments during
the public comment period. Some commenters supported the agencies'
inclusion of impoundments of ``waters of the United States'' as a
separate category of jurisdictional waters. A few commenters stated
that the relatively permanent standard and significant nexus standard
should also apply to impoundments for the purposes of jurisdiction.
Some commenters agreed with the proposed rule's approach to not include
impounded paragraph (a)(5) waters in the impoundments category. Many
commenters requested the agencies provide greater clarity about the
definition of impoundments.
After consideration of public comments and for the reasons
described above and in section III.C of the Technical Support Document,
the agencies affirm in this rule that impoundments of ``waters of the
United States'' remain ``waters of the United States,'' except for
impoundments of paragraph (a)(5) waters, which the agencies find are
better assessed under other categories of this rule. As discussed
above, paragraph (a)(2) impoundments of ``waters of the United States''
legally remain ``waters of the United States,'' so the agencies are not
requiring an additional determination of their jurisdiction under this
rule. While the agencies are not defining ``impoundment'' in this rule,
in this preamble the agencies are providing additional clarity below
about the types of impoundments that are and that are not considered
``waters of the United States'' under paragraph (a)(2). Additionally,
section IV.C.3.c of this preamble provides implementation guidance for
identifying impoundments on the landscape.
As in the proposed rule, impoundments of waters that are determined
to be jurisdictional under paragraph (a)(5) are not included in this
rule as paragraph (a)(2) impoundments. As discussed above, impoundments
of paragraph (a)(5) waters would need to be assessed for jurisdiction
in their current state under paragraph (a)(1), (a)(3), (a)(4), or
(a)(5) of this rule. Thus, if a water is determined to be
jurisdictional under paragraph (a)(5) and is then later lawfully
impounded, it is not jurisdictional by rule under the paragraph (a)(2)
impoundments provision. Instead, the impoundment of a paragraph (a)(5)
water would itself need to be assessed in its current state to
determine whether it is jurisdictional under one of the provisions of
the rule besides paragraph (a)(2). Impounded paragraph (a)(5) waters
will most likely continue to not meet any of the other categories of
jurisdictional waters and will therefore need to be re-assessed under
paragraph (a)(5). However, if, once impounded, such a water became, for
example, a traditional navigable water, it would be jurisdictional
under paragraph (a)(1) of this rule. This approach in this rule is
consistent with the agencies' careful approach to jurisdiction over
paragraph (a)(5) waters. For example, as discussed in sections IV.C.4
and IV.C.5 of this preamble below, the ``tributaries'' category does
not include tributaries to paragraph (a)(5) waters and the adjacent
wetlands category does not include wetlands adjacent to paragraph
(a)(5) waters. This change from the 1986 regulations reflects the
agencies' consideration of the jurisdictional concerns and limitations
of the statute as informed by SWANCC and Rapanos.
c. Implementation
Under this rule, for the reasons discussed above, impounding a
water that meets the definition of ``waters of the United States''
generally does not affect such water's jurisdictional status,
consistent with pre-2015 practice. See 2007 Corps Instructional
Guidebook at 58. A water can be found to be a jurisdictional
impoundment under paragraph (a)(2) of this rule if (1) the impounded
water met the definition of ``waters of the United States'' based on
this rule's definition at the time the impoundment was created \96\
(other than an impoundment of a paragraph (a)(5) water) or (2) the
water that is being impounded, at the time of assessment, meets the
definition of ``waters of the United States'' under paragraph (a)(1),
(a)(3), or (a)(4), regardless of the water's jurisdictional status when
the impoundment was created. The agencies also note that over time an
impoundment of a water that does not initially meet the definition of
``waters of the United States'' can become jurisdictional under another
provision of the regulation; for example, an impounded water could
become navigable-in-fact and covered under paragraph (a)(1)(i) of this
rule. This approach to implementation of impoundments is generally
consistent with pre-2015 practice. This section of the preamble
provides information for determining jurisdiction for impoundments
under paragraph (a)(2) and for determining jurisdiction for tributaries
of impoundments, wetlands adjacent to impoundments, and wetlands
adjacent to tributaries of impoundments.
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\96\ Note, however, if an impoundment is a waste treatment
system constructed prior to the 1972 Clean Water Act amendments, it
is eligible for the exclusion under paragraph (b) of this rule so
long as the system is in compliance with currently applicable Clean
Water Act requirements, such as treating water such that discharges,
if any, from the system meet the Act's requirements. See section
IV.C.7.b of this preamble.
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i. Determining the Presence of a Paragraph (a)(2) Impoundment
Impoundments are distinguishable from natural lakes and ponds
because they are created by discrete structures (often human-built)
like dams or levees that typically have the effect of raising the water
surface elevation, creating or expanding the area of open water, or
both. Impoundments can vary in size, with some being very small and
others being very large, like Lake Mead, a reservoir on the Colorado
River that is created by the Hoover Dam. Paragraph (a)(2) impoundments
under this rule can include both natural impoundments (like beaver
ponds) and artificial impoundments (like reservoirs). Paragraph (a)(2)
impoundments under this rule can be located off-channel (i.e.,
[[Page 3078]]
an impoundment with no outlet or hydrologic connection to the tributary
network) or in-line with the channel (i.e., an impoundment with a
hydrologic connection to the tributary network).
An impoundment is jurisdictional under paragraph (a)(2) of this
rule if the impounded water met the definition of ``waters of the
United States'' based on this rule's definition when the impoundment
was created (other than impoundments of paragraph (a)(5) waters). To
determine if an impoundment meets this criterion, the water would be
assessed to see if the water was jurisdictional as a paragraph (a)(1)
water, tributary, or adjacent wetland based on this rule's definition
at the time it was impounded. Tools that can be used for such
assessment are discussed further in sections IV.C.4.c and IV.C.5.c of
this preamble. Historic aerial photographs, maps, and geospatial
datasets may be particularly useful in helping to determine if a water
was jurisdictional under paragraph (a)(1), (a)(3), or (a)(4) of this
rule at the time the impoundment was created, especially where such
materials depict the aquatic system before and after the impoundment
was created. Similarly, planning, engineering, and design documents, if
available, may provide useful information.
Paragraph (a)(2) waters also include impoundments of waters that at
the time of assessment are jurisdictional under paragraph (a)(1),
(a)(3), or (a)(4) of this rule regardless of the water's jurisdictional
status at the time the impoundment was created. This approach is
consistent with pre-2015 practice. See 2007 Corps Instructional
Guidebook at 58. A water that is impounded may not meet this rule's
jurisdictional criteria at the time the water was originally impounded,
but the water may meet this rule's jurisdictional criteria at the time
of the assessment (in some cases, many years later). This is because
aquatic resources generally can evolve over time as aquatic landscapes,
precipitation and other climatic patterns, and other environmental
conditions change, or due to human-caused changes (e.g., stream
modification, filling in of wetlands, water withdrawals, or effluent
discharges). Impounded waters may be particularly likely to evolve as
the surface waters are raised or expanded behind the impoundment. To
determine if an impoundment is jurisdictional based on such changes,
the impounded water would be assessed to see if it is a traditional
navigable water, the territorial seas, an interstate water, a
jurisdictional tributary, or a jurisdictional adjacent wetland. Tools
that can be used for such assessment are discussed further in sections
IV.C.4.c and IV.C.5.c of this preamble.
In assessing if an impoundment of a paragraph (a)(1) water is
jurisdictional under paragraph (a)(2), the agencies would assess
whether the water that is being impounded met the requirements to be a
paragraph (a)(1) water under this rule either at the time of
impoundment or at the time of assessment. Impoundments of paragraph
(a)(1) waters that continue to meet the requirements under paragraph
(a)(1) remain paragraph (a)(1) waters.
In assessing whether an impoundment of a tributary is
jurisdictional under paragraph (a)(2), the agencies would first assess
if the tributary either met this rule's definition of ``waters of the
United States'' at the time the impoundment was created or if the
tributary meets this rule's definition of ``waters of the United
States'' at the time of assessment. For impoundments of tributaries
that met this rule's definition of ``waters of the United States'' at
the time the impoundment was created, the agencies must be able to
demonstrate that at the time the impoundment was created, there was
evidence of a flowpath (e.g., physical features on the landscape, such
as a channel, ditch, pipe, or swale) directly or indirectly through
another water or waters, downstream from the structure that created the
impoundment to a paragraph (a)(1) water. Thus, an impoundment of a
tributary that met this rule's definition of ``waters of the United
States'' at the time the impoundment was created could currently be
located off-channel (e.g., due to changes in hydrology) or in-line with
the channel, but the flowpath would only need to be traceable at the
time the impoundment was created. For impoundments of tributaries that
meet this rule's definition of ``waters of the United States'' at the
time of assessment, the agencies must be able to at the time of
assessment trace a flowpath directly or indirectly through another
water or waters, downstream from the structure that creates the
impoundment to a paragraph (a)(1) water. Thus, impoundments of
tributaries that meet the definition of ``waters of the United States''
at the time of assessment will always be in-line with the channel due
to the flowpath requirement. This is consistent with the agencies'
approach to tributaries under the final rule. See section IV.C.4. of
this preamble. As with assessment of tributaries under this rule, while
the physical flowpath from the paragraph (a)(2) impoundment to the
paragraph (a)(1) water must be traceable, there is not a need to
demonstrate that flow from the impoundment reaches the paragraph (a)(1)
water. For an off-channel impoundment (i.e., an impoundment with no
outlet to the tributary network), such as an impoundment of a
jurisdictional adjacent wetland, such a flowpath is not required. Under
the final rule, adjacent wetlands do not require a flowpath to the
tributary network, and similarly, impoundments of such adjacent
wetlands do not require a flowpath. The agencies would only need to
determine that the impoundment was created in a water that is currently
jurisdictional under paragraphs (a)(1) through (4) or that the
impoundment was created in a water that was jurisdictional under
paragraphs (a)(1) through (4) at the time the impoundment was created.
In assessing whether an impoundment of an adjacent wetland is
jurisdictional under paragraph (a)(2), the agencies would need to
determine that the impoundment was created in an adjacent wetland that
was jurisdictional at the time the impoundment was created or that is
currently jurisdictional at the time of assessment. Such impoundments
of adjacent wetlands may be located either off-channel or in-line with
the channel, and do not require a traceable flowpath that is required
for impoundments of tributaries. This is because under the final rule,
adjacent wetlands do not require a flowpath to the tributary network,
and similarly, impoundments of such adjacent wetlands do not require a
flowpath.
Because impoundments can be jurisdictional under other categories
of ``waters of the United States'' under this rule, field staff may
document that the impoundment is jurisdictional under other categories.
For example, if an impoundment is itself a traditional navigable water,
part of the territorial seas, or an interstate water, the agencies
would typically determine that the impoundment is a paragraph (a)(1)
water, rather than asserting jurisdiction under paragraph (a)(2) of
this rule. Field staff may document any such waters as jurisdictional
under the relevant provision of the rule rather than documenting that
it is jurisdictional as a paragraph (a)(2) impoundment.
Finally, as discussed above in section IV.C.3.b of this preamble,
waters that are jurisdictional under paragraph (a)(5) and that are
subsequently impounded do not categorically retain their jurisdictional
status as ``waters of the United States'' under paragraph (a)(2). If
the impoundment of the paragraph (a)(5) water does not meet the
jurisdictional standards under one of
[[Page 3079]]
the other categories of ``waters of the United States'' in this rule
(i.e., as a paragraph (a)(1) water, jurisdictional tributary, or
jurisdictional adjacent wetland), the impoundment would be re-assessed
as a paragraph (a)(5) water. Implementation of waters assessed under
paragraph (a)(5) is discussed in section IV.C.6.c of this preamble.
ii. Determining Jurisdiction for Tributaries of Impoundments, Wetlands
Adjacent to Impoundments, and Wetlands Adjacent to Tributaries of
Impoundments
Tributaries of paragraph (a)(2) impoundments are jurisdictional, as
with all tributaries under this rule, when they meet either the
relatively permanent standard or the significant nexus standard. In
order to determine if a water is a tributary of a paragraph (a)(2)
impoundment, the same tools and methods can be used that are discussed
in section IV.C.4.c.i of this preamble to trace the flowpath to the
impoundment. Field staff would then determine if the tributary should
be evaluated under the relatively permanent standard or the significant
nexus standard. For tributaries assessed under the relatively permanent
standard, the agencies must be able to trace evidence of a flowpath
downstream from the structure that creates the impoundment to a
paragraph (a)(1) water. To meet the latter standard, the significant
nexus must be to a paragraph (a)(1) water. Implementation of the
relatively permanent standard for tributaries is discussed in more
detail in section IV.C.4.c.ii of this preamble. Implementation of the
significant nexus standard for tributaries is discussed in section
IV.C.4.c.iii of this preamble.
For tributaries of paragraph (a)(2) impoundments that are evaluated
under the relatively permanent standard, field staff would determine if
the tributary has flowing or standing water year-round or continuously
during certain times of the year, see section IV.C.4.c.ii of this
preamble, and then determine whether there is evidence of a flowpath
downstream from the structure that creates the impoundment to a
paragraph (a)(1) water. As with all tributaries under the rule, there
is no requirement under the relatively permanent standard for
relatively permanent flow for the entirety of a tributary's flowpath to
a downstream paragraph (a)(1) water. See id. Thus, under the relatively
permanent standard for tributaries of paragraph (a)(2) impoundments,
field staff would not need to determine that flow occurs over, through,
around, or underneath the structure that creates the impoundment.
Instead, the agencies will document that flow occurs from the tributary
to the impoundment, either directly or indirectly through another water
or waters, including non-jurisdictional features, as described in
section IV.C.4 of this preamble, and that there is evidence of a
flowpath downstream of the structure (e.g., physical features on the
landscape, such as a channel, non-jurisdictional ditch, pipe, or swale)
to a paragraph (a)(1) water, either directly or indirectly through
another water or waters. For example, a tributary may flow through
another stream that flows infrequently, and only in direct response to
precipitation, and the presence of that stream is sufficient to
demonstrate that the tributary flows to a paragraph (a)(1) water.
If a wetland is adjacent to a paragraph (a)(2) impoundment and that
wetland is evaluated under the relatively permanent standard, field
staff would, only for purposes of determining whether the adjacent
wetland meets the relatively permanent standard, assess whether the
impounded water is relatively permanent, standing or continuously
flowing. Next, field staff would determine whether the wetland has a
continuous surface connection to the paragraph (a)(2) impoundment,
consistent with section IV.C.5 of this preamble. If the paragraph
(a)(2) impoundment is not relatively permanent, standing or
continuously flowing, then field staff will assess the adjacent wetland
under the significant nexus standard.
If a wetland is adjacent to a tributary to a paragraph (a)(2)
impoundment, and the tributary meets the relatively permanent standard,
the wetland would be assessed for whether it has a continuous surface
connection to the tributary, consistent with section IV.C.5 of this
preamble. If the adjacent wetland does not have a continuous surface
connection, it will be assessed under the significant nexus standard.
If the tributary does not meet the relatively permanent standard, then
field staff will assess the adjacent wetland under the significant
nexus standard. To apply the significant nexus standard to tributaries
of paragraph (a)(2) impoundments, wetlands adjacent to those
tributaries, or wetlands adjacent to paragraph (a)(2) impoundments, the
agencies will assess if the waters of interest significantly affect the
chemical, physical, or biological integrity of paragraph (a)(1) waters
using the tools and approaches described in sections IV.C.4.c.iii and
IV.C.5.c.iii of this preamble. As part of that analysis, the agencies
will determine if there is a surface or subsurface hydrologic
connection downstream that is maintained over, through, around, or
underneath the structure that creates the impoundment. Such a
hydrologic connection can occur in a variety of ways, such as
overtopping of the structure or through features like dam spillways,
drainage and other galleries, sluiceways, culverts, pipes, diversion
tunnels, or conduits that are built to maintain a hydrologic connection
through the dam or levee. Subsurface hydrologic connectivity can also
occur via seepage through or underneath the dam or similar structure.
Field staff can document that surface or subsurface hydrologic
connectivity occurs using direct observation of overtopping or a
feature that is constructed to maintain a hydrologic connection,
through review of construction plans for the structure, through other
field observations (e.g., dye tests or tracer studies, or observations
of flow within the spillway such as bent over vegetation or water
staining where the spillway is concrete, soil saturation, changes in
vegetation above and below the structure), or through remote tools
(e.g., aerial photography interpretation that provides indications of
wetter signatures below the dam). As stated in section IV.C.9 of this
preamble, a hydrologic connection to a paragraph (a)(1) water is not
necessary to determine that the water being evaluated significantly
affects the integrity of paragraph (a)(1) waters, though it is one of
the factors that is considered. Where such a hydrologic connection
exists at the surface or subsurface, it can help to facilitate the
functions that the tributary of the paragraph (a)(2) impoundment
performs that impact the downstream paragraph (a)(1) water, such as
contribution of flow, pollutants, sediment, and organic material. In
the rare circumstances where such a hydrologic connection does not
exist, the lack of such a connection can facilitate other functions,
such as holding back floodwaters that could otherwise harm paragraph
(a)(1) waters. See preamble section IV.C.9 for additional information
on implementing the significant nexus standard more generally.
4. Tributaries
a. This Rule
Consistent with the proposal, this rule retains the tributary
provision of the 1986 regulations, updated to reflect consideration of
the law, the science, and agency expertise. The 1986 regulations
defined ``waters of the United States'' to include tributaries of
traditional navigable waters, interstate waters, paragraph (a)(3)
``other waters''
[[Page 3080]]
(a category that has been modified and codified in this rule as
paragraph (a)(5) waters) and impoundments. With this rule, the agencies
are adding the territorial seas to the list of waters to which
tributaries may connect to constitute a jurisdictional tributary and
removing paragraph (a)(3) waters from the list. This rule defines
``waters of the United States'' to include tributaries of traditional
navigable waters, the territorial seas, interstate waters, or paragraph
(a)(2) impoundments if the tributaries meet either the relatively
permanent standard or the significant nexus standard.
The 1986 regulations do not contain a definition of ``tributary,''
and the agencies similarly are not including a definition in this rule.
However, for more than 45 years, the agencies have recognized the need
to protect ``the many tributary streams that feed into the tidal and
commercially navigable waters . . . since the destruction and/or
degradation of the physical, chemical, and biological integrity of each
of these waters is threatened by the unregulated discharge of dredged
or fill material.'' 42 FR 37121, 37123 (July 19, 1977). Accordingly,
the agencies are maintaining their interpretation of tributary for
purposes of the definition of ``waters of the United States.'' See
Rapanos Guidance at 6 n.24. A tributary for purposes of this rule
includes rivers, streams, lakes, ponds, and impoundments, regardless of
their flow regime, that flow directly or indirectly through another
water or waters to a traditional navigable water, the territorial seas,
or an interstate water. Waters through which a tributary may flow
indirectly include, for example, impoundments, wetlands, lakes, ponds,
and streams. A tributary may flow through a number of downstream
waters, including a non-jurisdictional tributary or non-jurisdictional
features, such as a ditch excluded under paragraph (b) of this rule or
an excluded waste treatment system, and jurisdictional waters that are
not tributaries, such as an adjacent wetland. But to be jurisdictional,
the tributary must be part of a tributary system that eventually flows
to a traditional navigable water, the territorial seas, or an
interstate water. The agencies will utilize the Corps' well-established
definition of an ordinary high water mark (OHWM) to assist in
identifying tributaries for purposes of this rule. See section
IV.C.4.c.i of this preamble for information on using the OHWM to assist
in identifying a water as a tributary for purposes of this rule. To be
a jurisdictional tributary under this provision of the rule, the
tributary must meet either the relatively permanent standard or the
significant nexus standard.
Like the 1986 regulations, this rule includes tributaries of
interstate waters since interstate waters, like traditional navigable
waters and the territorial seas, are waters clearly protected by the
Clean Water Act. In this rule, the agencies are adding the territorial
seas to the list of waters to which tributaries may connect to
constitute a jurisdictional tributary because the territorial seas are
explicitly protected by the Clean Water Act. Because the territorial
seas are explicitly covered by the Clean Water Act, it is reasonable
and appropriate to protect tributaries to the territorial seas that
meet either the relatively permanent standard or the significant nexus
standard for the same reasons that tributaries to traditional navigable
waters are protected. In practice, the agencies recognize that most
tributaries will reach a traditional navigable water before they reach
the territorial seas. Finally, consistent with the 1986 regulations,
this rule includes tributaries that flow directly or indirectly through
another water or waters to paragraph (a)(2) impoundments.\97\
---------------------------------------------------------------------------
\97\ See discussion of tributaries to paragraph (a)(2)
impoundments in section IV.C.3 of this preamble.
---------------------------------------------------------------------------
The agencies' longstanding interpretation of the Clean Water Act
includes tributaries that are natural, modified, or constructed waters.
The Clean Water Act, in defining ``navigable waters,'' does not turn on
any such distinctions, which have no bearing on a tributary's capacity
to carry water (and pollutants) to paragraph (a)(1) waters. See, e.g.,
Technical Support Document section II.B.iv.3 (explaining that human-
made 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''). Given the extensive human modification
of watercourses and hydrologic systems throughout the country, it is
often difficult to distinguish, as a practical or scientific matter,
between natural watercourses and watercourses that are wholly or partly
modified or constructed. For example, tributaries that have been
channelized in concrete or otherwise have been modified would still be
tributaries for purposes of this rule so long as they contribute flow
to a traditional navigable water, the territorial seas, or an
interstate water, and so long as they are not excluded under paragraph
(b) of this rule. Thus, tributaries can include ditches and canals.
Under this rule, swales and erosional features (e.g., gullies,
small washes) characterized by low volume, infrequent, or short
duration flow are not tributaries and are not jurisdictional. See
section IV.C.7 of this preamble.
Once a water is determined to be a tributary, under this rule, the
tributary must meet either the relatively permanent or significant
nexus standard to be jurisdictional. The relatively permanent standard
encompasses tributaries that have flowing or standing water year-round
or continuously during certain times of the year. Relatively permanent
waters do not include tributaries with flowing or standing water for
only a short duration in direct response to precipitation. In
evaluating tributaries under the significant nexus standard, the
agencies will determine whether the tributaries, either alone or in
combination with similarly situated waters in the region, significantly
affect the chemical, physical, or biological integrity of paragraph
(a)(1) waters. Implementation of each of those standards for purposes
of determining jurisdiction over tributaries is discussed below in
section IV.C.4.c of this preamble.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
Commenters expressed a range of views on the agencies' proposed
treatment of tributaries. This section of the preamble provides a
summary of the major comments received on the regulatory text and the
agencies' consideration of the comments. The preamble to the proposed
rule also provided information about the agencies' longstanding
interpretation of practice for identifying tributaries for purposes of
the definition of ``waters of the United States,'' and this section
also summarizes and addresses major comments received on those topics.
i. Comments on the Tributaries Provision of This Rule
Some commenters requested that the agencies include a definition of
``tributary'' in this rule. A subset of these commenters stated that
the definition should include waters with a bed, bank, or other
evidence of flow that contribute flow directly or indirectly to
downstream paragraph (a)(1) waters. Other commenters maintained that
the lack of a formal definition makes it unclear which features are
tributaries and which are not. Some of these commenters stated that the
lack of a
[[Page 3081]]
definition left too much discretion to the agencies to identify
tributaries based on physical features, which they asserted would lead
to confusion. Some commenters supported the proposed approach for
assessing tributaries, stating that the longstanding interpretation and
practice would allow for regionalized implementation. Although the
agencies are not promulgating a new definition of ``tributary'' the
agencies have decades of experience implementing the 1986 regulations
(which also did not include a definition of ``tributary'') and have
concluded that a new regulatory definition of tributary is not
required. To provide further clarity, the agencies have been careful in
this preamble to articulate and explain the agencies' well-established
interpretation and practices for identifying tributaries. In addition,
the agencies note that while the first step under this provision of the
regulation is to identify whether a water is a tributary under
longstanding practice, that is not the end of the inquiry under this
rule, in contrast to the 1986 regulations. A water must not only be a
tributary but must also meet either the relatively permanent standard
or the significant nexus standard to be jurisdictional under this
provision. These standards provide important limitations that also help
define the scope of the tributaries that are jurisdictional under the
rule.
Commenters on the proposed rule expressed a variety of perspectives
on the appropriate scope of jurisdiction for tributaries. Some
commenters supported the proposal that tributaries are jurisdictional
if they meet either the relatively permanent or significant nexus
standard. Other commenters asserted that tributaries should meet both
standards. Some commenters stated that this rule should include
categorical protections for all tributaries (e.g., features with an
OHWM), rather than requiring case-by-case analysis, asserting that such
an interpretation is supported by the science and Supreme Court case
law. For the reasons described in section IV.A of this preamble, this
rule defines ``waters of the United States'' to include tributaries
that meet either the relatively permanent standard or the significant
nexus standard on a case-specific basis.
Some commenters criticized the definition of ``tributary'' from the
2020 NWPR, while others supported that definition, stating that it was
clear and logical. The 2020 NWPR defined ``tributary'' as a river,
stream, or similar naturally occurring surface water channel that
contributes surface water flow to the territorial seas or a 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. 85 FR 22251 (April 21, 2020). The
definition of ``tributary'' in the 2020 NWPR failed to advance the
objective of the Clean Water Act and was inconsistent with scientific
information about the important effects of many types of tributaries on
the integrity of downstream paragraph (a)(1) waters.
The key limitations that the 2020 NWPR created in its definition of
``tributary,'' which this rule does not adopt, are the categorical
exclusion of ephemeral streams and the requirement that streams
contribute flow to a traditional navigable water or territorial sea in
a ``typical year.'' With respect to ephemeral streams, commenters
provided a wide variety of perspectives on whether they should be
jurisdictional under this rule. Some commenters asserted that the
agencies' interpretation of tributary should exclude ephemeral streams.
Some commenters asserted that ephemeral streams should be categorically
jurisdictional under this rule. These commenters referenced the
importance of ephemeral streams for providing functions like nutrient
and materials transport, erosion and flood control, water quality
maintenance downstream, drinking water and irrigation provisioning,
groundwater recharge, and wildlife habitat. Other commenters asserted
that ephemeral streams are important for buffering against the impacts
of climate change, supporting Tribal communities, and providing
functions in specific regions like arid areas. Another group of
commenters stated that all ephemeral streams should be non-
jurisdictional across the country, or non-jurisdictional in certain
regions such as the arid West. These commenters asserted that ephemeral
streams do not flow frequently enough or provide sufficiently important
functions to impact the integrity of downstream paragraph (a)(1)
waters. As discussed further in section IV.A of this preamble, the
agencies are not categorically including or excluding streams as
jurisdictional based on their flow regime in this rule. The agencies
agree that ephemeral streams can provide many important functions for
paragraph (a)(1) waters.
With respect to the ``typical year requirement'' in the 2020 NWPR
definition of ``tributary,'' the agencies found it challenging and
sometimes impossible to implement, for the reasons discussed in section
IV.B.3.c of this preamble. The ``typical year'' requirement for
tributaries was also not supported by science. Scientific information
does not demonstrate that only those streams that contribute
intermittent or perennial flow to a traditional navigable water or
territorial sea in a ``typical year'' have significant effects on the
chemical, physical, and biological integrity of larger downstream
waters, including paragraph (a)(1) waters. See sections IV.B.3.a and
IV.B.3.b of this preamble. Because the limitations in the 2020 NWPR's
definition of ``tributary'' are inconsistent with science and created
substantial implementation difficulties, the agencies are not adopting
this definition. See section III.A of the Technical Support Document
for more information on the agencies' rationale for the scope of
tributaries covered by this rule. Streams that are tributaries,
regardless of their flow regime, will be assessed under the relatively
permanent or significant nexus standard per paragraph (a)(3) of this
rule, and streams that are not tributaries will be assessed under the
relatively permanent or significant nexus standard per paragraph (a)(5)
of this rule.
Some commenters opposed as arbitrary and unsupported by the law or
science the agencies' proposed approach to delete the category for
intrastate lakes and ponds, streams, or wetlands that do not meet
another jurisdictional category (the (a)(3) ``other waters'' provision
from the 1986 regulations) as a category of waters to which tributaries
may connect to be determined ``waters of the United States.'' Some of
these commenters requested clarification as to how tributaries to
intrastate lakes and ponds, streams, or wetlands that do not meet
another jurisdictional category would be assessed. One commenter
asserted that the agencies were ``excluding'' tributaries to paragraph
(a)(5) waters. Streams that flow to paragraph (a)(5) waters are not
excluded in this rule. Deleting the cross reference to the category for
intrastate lakes and ponds, streams, or wetlands that do not meet
another jurisdictional category (the (a)(3) ``other waters'' provision
from the 1986 regulations) as a category of waters to which tributaries
may connect reflects the agencies' consideration of the statute as a
whole and the jurisdictional concerns and limitations of SWANCC and
Rapanos. The agencies have concluded that a provision that authorizes
consideration of jurisdiction over tributaries that meet the relatively
permanent or significant nexus standard when assessed based simply on
connections to such waters would have
[[Page 3082]]
too tenuous a connection to paragraph (a)(1) waters. However, in this
rule any such streams that flow to jurisdictional paragraph (a)(5)
waters could be assessed themselves under the paragraph (a)(5) waters
category to determine if they meet the relatively permanent or
significant nexus standard. For example, a stream that flows to a lake
that meets the significant nexus standard under the paragraph (a)(5)
waters provision could itself be assessed under the paragraph (a)(5)
waters provision to determine whether it significantly affects the
chemical, physical, or biological integrity of a paragraph (a)(1)
water.
ii. Comments on the Interpretation and Implementation of the
Tributaries Provision of This Rule
As discussed further above, the agencies interpret tributary for
purposes of this rule to include rivers, streams, lakes, ponds, and
impoundments that flow directly or indirectly through another water or
waters to a traditional navigable water, the territorial seas, an
interstate water, or a paragraph (a)(2) impoundment. The agencies
received comments on elements of this longstanding interpretation of
tributary for purposes of the ``waters of the United States.''
Some commenters disagreed with the agencies' interpretation that
tributaries include certain lakes and ponds. Some of these commenters
stated that lakes and ponds should comprise a separate jurisdictional
category. Several commenters asserted that considering certain lakes
and ponds to be tributaries could lead to overly broad jurisdiction,
and one commenter requested clarification in this rule that not every
feature that might be considered a lake or a pond is necessarily
jurisdictional. Other commenters agreed with the agencies' longstanding
approach. Lakes, ponds, and impoundments function as part of the
tributary system where they contribute flow to downstream waters, and
therefore it is reasonable to assess them for jurisdiction as
tributaries under this rule. The agencies will continue to interpret
the regulations to address lakes, ponds, and impoundments with both an
inlet and outlet connected to the tributary network, as well as lakes,
ponds, and impoundments with an outlet connected to the tributary
network as tributaries if they contribute flow directly or indirectly
through one or more waters or features that lie along the flowpath to a
paragraph (a)(1) water. The agencies have extensive experience
implementing this approach under pre-2015 practice. The agencies
disagree that this approach will lead to overly broad jurisdiction, as
these lakes, ponds, and impoundments that are tributaries must meet
either the relatively permanent standard or significant nexus standard
to be jurisdictional. Therefore, not every lake, pond, or impoundment
is jurisdictional as a tributary or under other provisions of this
rule.
Some commenters supported the agencies' longstanding interpretation
that tributaries include waterbodies that flow ``directly or
indirectly'' to a paragraph (a)(1) water, while other commenters
asserted that tributaries must flow ``directly'' into a paragraph
(a)(1) water. There is no text in the Clean Water Act supporting this
limitation, and the agencies have never interpreted the Act to cover
only such tributaries. Even the Rapanos plurality opinion did not so
limit the scope of tributaries covered by the Act. 547 U.S. at 742.
Moreover, the science is clear that the chemical, physical, and
biological integrity of paragraph (a)(1) waters depends on the many
tributaries, including headwater streams, that feed such waters. It
would be impossible to restore and maintain the chemical, physical, and
biological integrity as required by the Clean Water Act with a
definition of ``waters of the United States'' that included solely the
last tributary that flows ``directly'' into a paragraph (a)(1) water.
Tributaries upstream provide key functions that support the chemical,
physical, and biological integrity of paragraph (a)(1) waters. If
protections for tributaries ended just above the very last one,
functions like habitat for salmon spawning, baseflow to maintain water
levels, and nutrient replenishment would all be at risk. See Technical
Support Document sections I.A and III.E.ii.
A tributary may contribute flow through a number of downstream
waters or features, including both non-jurisdictional features, such as
a ditch excluded under paragraph (b) of this rule, and jurisdictional
waters that are not tributaries, such as an adjacent wetland. However,
the tributary must be part of a system that eventually flows to a
paragraph (a)(1) water. Waters that are part of a system that never
reaches a paragraph (a)(1) water, for example, a small system of
streams that ultimately flow to a non-navigable stream in an intrastate
basin with no outlet, are not jurisdictional under this provision of
this rule.
Some commenters asserted that the agencies' approach to
interpreting ``tributary'' would potentially allow the agencies to
include wetlands as tributaries. The agencies disagree. While wetlands
may be a water through which a tributary flows directly or indirectly
to a paragraph (a)(1) water, the agencies do not consider that wetland
to be a tributary itself. This is consistent with pre-2015 practice.
Only when a wetland lies entirely below the OHWM, will it be identified
as part of the tributary consistent with current practice; even then,
the wetland is not identified as a tributary itself. Otherwise, such
wetlands are considered adjacent wetlands and will be evaluated under
paragraph (a)(4) of this final rule.
Some commenters supported the agencies' longstanding interpretation
that there is no meaningful distinction among natural, human-altered,
or human-made tributaries in terms of their functions, values, and
influence on the integrity of downstream waters. Some commenters
requested clarification as to whether both human-made and natural
tributaries would be regulated in this rule. Some commenters asserted
that the agencies' proposed approach to interpreting ``tributary'' is
overly broad and expansive because it would potentially allow the
agencies to include ditches and human-made conveyances as tributaries.
The agencies disagree with commenters who asserted that the agencies'
approach to human-made tributaries is overly broad and expansive. The
approach is consistent with the agencies' decades-long practice and the
scientific record, and such tributaries must still meet either the
relatively permanent standard or the significant nexus standard to be
jurisdictional under this rule. As noted above, given the extensive
human modification of watercourses and hydrologic systems throughout
the country, it is often difficult to distinguish between natural
watercourses and watercourses that are wholly or partly human-made or
human-altered. Because natural, human-altered, and human-made
tributaries provide many of the same functions, especially as conduits
for the movement of water and pollutants to other tributaries or
directly to paragraph (a)(1) waters, the agencies have interpreted the
1986 regulations to cover such tributaries. Ditches, for example, are
tributaries under this rule if they flow directly or indirectly to
paragraph (a)(1) waters and they are jurisdictional tributaries if they
also meet the relatively permanent standard or significant nexus
standard and are not excluded from jurisdiction under this rule. See
section IV.C.7 of this preamble for additional discussion on excluded
ditches.
[[Page 3083]]
c. Implementation
A tributary for purposes of this rule includes rivers, streams,
lakes, ponds, and impoundments that flow directly or indirectly through
another water or waters to a traditional navigable water, the
territorial seas, an interstate water, or a paragraph (a)(2)
impoundment. A tributary may flow through a number of downstream
waters, including non-jurisdictional features. This section of the
preamble provides additional information on the agencies'
interpretation and implementation of the tributary provision of this
rule. This section first explains how to determine whether a water is a
tributary for purposes of this rule. The section next explains how to
determine whether a tributary is jurisdictional under the relatively
permanent standard or under the significant nexus standard.
i. Determining Whether a Water Is a Tributary for Purposes of This Rule
This section describes how to (1) identify a tributary for purposes
of this rule and (2) determine whether the tributary is part of the
tributary system of a traditional navigable water, the territorial
seas, an interstate water, or a paragraph (a)(2) impoundment.
(1) Identifying a Water as a Tributary
In implementing this rule, the agencies are maintaining their
longstanding interpretation that tributaries for purposes of Clean
Water Act jurisdiction include rivers, streams, lakes, ponds, and
impoundments. See 2007 Corps Instructional Guidebook at 8, 9. As
discussed above, although tributaries are required to flow directly or
indirectly through another water or waters to certain downstream
waters, tributaries are not required to have a specific flow regime to
meet the agencies' interpretation of ``tributary.'' However, flow
characteristics like duration and timing of flow will be considered in
determining whether tributaries meet the relatively permanent or
significant nexus standard, as described further below in sections
IV.C.4.c.ii and IV.C.4.c.iii of this preamble. Lakes, ponds, and
impoundments may be at the headwaters of the tributary network (e.g., a
lake with only an outlet to the tributary network) or farther
downstream from the headwaters (e.g., a lake with both an inlet and
outlet connected to the tributary network). Even though such waters are
considered to be lentic or ``still'' systems, such waters still
contribute flow downstream at the point that they outlet to the
tributary network and therefore the agencies have long concluded it is
appropriate to consider such waters to be tributaries.
As discussed above in this section of the preamble, the agencies'
longstanding interpretation of ``tributary'' for purposes of the
definition of ``waters of the United States'' includes natural, human-
altered, or human-made waterbodies that flow directly or indirectly
through another water or waters to a traditional navigable water, the
territorial seas, or an interstate water. See Rapanos Guidance at 6.
The agencies will utilize the Corps' well-established definition of
an ordinary high water mark (OHWM) to assist in identifying tributaries
for purposes of this rule. See section IV.C.8 of this preamble (adding
the definition of OHWM to EPA's regulation). Tributaries typically have
at least one indicator of an OHWM and, consistent with pre-2015
practice, physical OHWM characteristics are used to identify
waterbodies including streams, lakes, ponds, and ditches that are
present on the landscape. See, e.g., ``Final Notice of Issuance and
Modification of Nationwide Permits,'' 65 FR 12818, 12823-24 (March 9,
2000); 2007 Corps Instructional Guidebook; RGL 05-05 (December 7,
2005). The OHWM, a term unchanged since 1977, defines the lateral
limits of jurisdiction in non-tidal ``waters of the United States,''
provided the limits of jurisdiction are not extended by adjacent
wetlands. See 42 FR 37144 (July 19, 1977); 33 CFR 323.3(c) (1978). The
regulations at 33 CFR 328.3(e) and 329.11(a)(1) list the factors to be
applied. RGL 05-05 further explains these regulations. Delineation of
an OHWM in tributaries relies on the identification and interpretation
of physical features, including topographic breaks in slope, changes in
vegetation characteristics (e.g., destruction of terrestrial vegetation
and change in plant community), and changes in sediment characteristics
(e.g., sediment sorting and deposition). Field indicators, remote
sensing, and mapping information can also help identify an OHWM. The
Corps continues to improve regulatory practices across the country
through ongoing research and the development of regional and national
OHWM delineation procedures, as described further in section IV.A.ii of
the Technical Support Document. For example, the Corps has developed
field indicators to help field staff identify the OHWM in common stream
types in the arid West. Consistent with longstanding practice, the
agencies will apply the regulations and use RGL 05-05 and applicable
OHWM delineation manuals, as well as take other steps as needed to
ensure that the OHWM identification factors are applied consistently
nationwide. See Rapanos Guidance at 10-11 n.36.
The agencies will assess any discontinuity in the OHWM and,
consistent with pre-2015 practice, a natural or human-made
discontinuity in the OHWM does not necessarily sever jurisdiction
upstream. A discontinuity may exist where the stream temporarily flows
underground. Tributaries may temporarily flow underground in regions
with karst geology or lava tubes, for example, maintaining similar flow
characteristics underground and at the downstream point where they
return to the surface. The agencies will also continue their familiar
practice that a discontinuity in the OHWM also does not typically sever
jurisdiction upstream where the OHWM has been removed by development,
agriculture, or other land uses. For example, tributaries can be
relocated below ground to allow reasonable development to occur. In
urban areas, surface waters are often rerouted through an artificial
tunnel system to facilitate development. See, e.g., Science Report at
3-3, and sections III.A and IV.A.ii of the Technical Support Document.
Underground streams are distinct from groundwater due to their very
direct hydrologic connection to the portions of the tributaries that
are or re-surface above ground. Typically, groundwater connections
would be much slower than connections via underground streams.
Tributaries that have been rerouted underground are contained within a
tunnel system or other similar channelized subsurface feature, while
naturally occurring subterranean streams flow within natural conduits
like karst formations or lava tubes. The agencies will look for
indicators of flow both above and below the discontinuity. For example,
a discontinuity in the OHWM may exist due to constructed breaks (e.g.,
culverts, pipes, or dams) \98\ or natural breaks (e.g., debris piles or
boulder fields). Site specific conditions will continue to determine
the distance up the tributary network that is evaluated to see if the
feature creates a temporary break or if it severs the upstream
connection and constitutes the start of the tributary system.
---------------------------------------------------------------------------
\98\ Under past practice, the agencies have sometimes
characterized bridges as artificial breaks, such as under the 2015
Clean Water Rule. See 80 FR 37106 (June 29, 2015). However, bridges
do not necessarily create discontinuity in the OHWM, and the
agencies recognize that tributaries flowing under bridges may still
show evidence of an OHWM and in such circumstances would continue to
be jurisdictional where they meet either the relatively permanent or
significant nexus standard.
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[[Page 3084]]
Under this rule, swales and erosional features (e.g., gullies,
small washes) characterized by low volume, infrequent, or short
duration flow are not tributaries and are not jurisdictional. See
section IV.C.7 of this preamble. Because swales and erosional features
were considered to be generally non-jurisdictional features under pre-
2015 practice, the agencies have extensive experience differentiating
between these features and tributaries on the landscape. See Rapanos
Guidance at 11-12. Streams are waterbodies that are typically
characterized by the presence of a channel and an OHWM, and lakes and
ponds are waterbodies that are also typically characterized by the
presence of an OHWM, in the absence of adjacent wetlands. In contrast,
erosional features like gullies and rills are typically more deeply
incised than streams and lack an OHWM. Similarly, swales do not have an
OHWM and typically lack a more defined channel that a stream exhibits.
See section IV.C.7 of this preamble and section III.A.v of the
Technical Support Document for additional discussion on how to
distinguish between tributaries, erosional features, and swales; see
section IV.A.ii of the Technical Support Document for additional
discussion on how to identify tributaries based on an OHWM.
A variety of field and remote tools can be used to determine
whether a water is a tributary.\99\ Due to limitations associated with
some remote tools, field verification for accuracy may be necessary
(e.g., due to scale or vegetation cover, not all tributaries may be
visible in satellite imagery and aerial photographs or mapped in the
NHD). Examples of field indicators will be discussed in more detail
below.
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\99\ Direct observation or various remote sensing resources such
as USGS stream gage data (available at https://waterdata.usgs.gov/nwis/rt), USGS topographic maps (available at https://www.usgs.gov/the-national-map-data-delivery/topographic-maps), high-resolution
elevation data and associated derivatives (e.g., slope or curvature
metrics), Federal Emergency Management Agency (FEMA) flood zone maps
(available at https://msc.fema.gov/portal/home), NRCS soil maps
(available at https://websoilsurvey.sc.egov.usda.gov/App/WebSoilSurvey.aspx), National Hydrography Dataset (NHD) data,
National Wetlands Inventory (NWI) data, maps and geospatial datasets
from Tribal, State, or local governments, and/or aerial or satellite
imagery can also be used. Tributaries are often observable in aerial
imagery and high-resolution satellite imagery by their topographic
expression, characteristic linear and curvilinear patterns, dark
photographic tones, or the presence of riparian vegetation. USGS
topographic maps often include different symbols to indicate mapped
hydrographic features (see ``Topographic Map Symbols,'' available at
https://pubs.usgs.gov/gip/TopographicMapSymbols/topomapsymbols.pdf).
---------------------------------------------------------------------------
(2) Identifying Whether the Water Is Part of the Tributary System of a
Paragraph (a)(1) Water
The next step in determining whether a waterbody is a tributary is
to identify whether the waterbody is part of the tributary system of a
paragraph (a)(1) water. The tributary must flow directly or indirectly
through another water or waters to a traditional navigable water, the
territorial seas, or interstate water. Waters through which a tributary
may flow indirectly include, for example, impoundments, wetlands,
lakes, ponds, and streams. A tributary may flow through a number of
downstream waters, including non-jurisdictional features, such as a
ditch excluded under paragraph (b) of this rule or an excluded waste
treatment system, and jurisdictional waters that are not tributaries,
such as an adjacent wetland. But, the tributary must be part of a
tributary system that eventually flows to a traditional navigable
water, the territorial seas, or an interstate water to be
jurisdictional. A tributary may flow through another stream that flows
infrequently, and only in direct response to precipitation, and the
presence of that stream is sufficient to demonstrate that the tributary
flows to a paragraph (a)(1) water. Tributaries are not required to have
a surface flowpath all the way down to the paragraph (a)(1) water. For
example, tributaries can contribute flow through certain natural and
artificial breaks (including certain non-jurisdictional features), some
of which may involve subsurface flow as described above in section
IV.C.4.b of this preamble.
In evaluating the flowpath from a water feature, the agencies can
use USGS maps; NWI data; Tribal, State, and local knowledge or maps;
dye tests, tracers, or other on the ground tests; field observations;
aerial photography; or other remote sensing information. The agencies
can also use available models, including models developed by Federal,
Tribal, State, and local governments, academia, and the regulated
community.\100\ These tools could be used in conjunction with field
observations, data, and other desktop tools to evaluate whether a
tributary flows directly or indirectly to a paragraph (a)(1) water. For
tributaries to paragraph (a)(2) impoundments, a flowpath to the
impoundment and to a paragraph (a)(1) water can be identified using
these same tools.
---------------------------------------------------------------------------
\100\ One such model includes the USGS StreamStats ``Flow
(Raindrop) Path'' GIS tool which allows the user to click a point on
a map, after which a flowpath is drawn to estimate where water may
flow from that point to the stream network, eventually making its
way to the ocean if the tributary network allows for it available at
https://streamstats.usgs.gov/ss/. The StreamStats tool may
potentially be used to identify the flowpath from the subject waters
to the downstream paragraph (a)(1) water using the ``Flow (Raindrop)
Path'' component of the tool.
---------------------------------------------------------------------------
ii. Determining Whether a Tributary Meets the Relatively Permanent
Standard
Under this rule, tributaries that meet the relatively permanent
standard are jurisdictional under the Clean Water Act as ``waters of
the United States.'' In implementing the relatively permanent standard,
the agencies draw key concepts from the 2020 NWPR's interpretation, but
modify that rule's approach to ensure the term can be practically
implemented. Specifically, under this rule the relatively permanent
standard encompasses surface waters that have flowing or standing water
year-round or continuously during certain times of the year. Relatively
permanent waters do not include surface waters with flowing or standing
water for only a short duration in direct response to precipitation.
The approach in this rule would encompass tributaries considered
relatively permanent under the 2020 NWPR, as well as those considered
relatively permanent under the Rapanos Guidance, providing continuity
in approach for the regulated community and other stakeholders.
Tributaries that do not meet the relatively permanent standard must be
assessed under the significant nexus standard. See section IV.C.4.c.iii
of this preamble.
The agencies' interpretation of relatively permanent tributaries to
include surface waters that have flowing or standing water year-round
or continuously during certain times of the year is consistent with the
Rapanos plurality's interpretation of ``waters of the United States.''
The Rapanos plurality interpreted ``waters of the United States'' as
encompassing ``relatively permanent, standing or continuously flowing
bodies of water,'' including streams, rivers, oceans, lakes, and other
bodies of waters that form geographical features. 547 U.S. at 739, 742.
The 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); see also 85 FR 22289 (April 21, 2020) (citing the same
language from the plurality in support of the 2020 NWPR's
interpretation of relatively permanent waters).
[[Page 3085]]
The agencies have decided to implement this approach because it is
consistent with the Rapanos plurality opinion, it reflects and
accommodates regional differences in hydrology and water management,
and it can be implemented using available, easily accessible tools. It
will therefore be a straightforward approach for the agencies and the
regulated community to implement. In addition, maintaining an
interpretation that encompasses the tributaries considered relatively
permanent under the pre-2015 regulatory regime and the 2020 NWPR
addresses the many comments from stakeholders emphasizing the need for
clarity and certainty in the scope of ``waters of the United States.''
``Flowing water'' under this rule is meant to encompass not just
streams and rivers, but also lakes, ponds, and impoundments that are
part of the tributary system, as such waters outlet to the tributary
network and contribute flow downstream at the outlet point. In
addition, ``flowing water'' under this rule is meant to encompass those
tributaries that are frozen for parts of the year. Such tributaries
typically have flowing water underneath the frozen surface.
The phrase ``certain times of the year'' is intended to include
extended periods of standing or continuously flowing water occurring in
the same geographic feature year after year, except in times of
drought. The defining characteristic of relatively permanent waters
with flowing or standing water continuously during only certain times
of the year is a temporary lack of surface flow, which may lead to
isolated pools or dry channels during certain periods of the year. The
phrase ``direct response to precipitation'' is intended to distinguish
between episodic periods of flow associated with discrete precipitation
events versus continuous flow for extended periods of time.
A number of commenters suggested that the agencies interpret
relatively permanent tributaries to include those that flow year-round
or at least seasonally (e.g., typically three months), consistent with
the approach in the Rapanos Guidance. This rule encompasses tributaries
that are ``relatively permanent'' under the Rapanos Guidance. However,
the agencies have decided not to use the term ``seasonal'' from the
Rapanos Guidance for several reasons. First, the agencies have
determined that directly describing the scenarios in which waters would
be ``relatively permanent'' is clearer than using the term
``seasonal,'' the meaning of which can vary and could be misunderstood
to establish a specific required flow duration. See section
IV.C.4.c.ii.1 of this preamble for further discussion of the challenges
of requiring a specific flow duration. Relatively permanent flow may
occur seasonally, but the phrase is also intended to encompass
tributaries in which extended periods of standing or continuously
flowing water are not linked to naturally recurring annual or seasonal
cycles. Specifically, relatively permanent waters may include
tributaries in which flow is driven more by various water management
regimes and practices, such as tributaries with extensive flow
alteration (e.g., diversions, bypass channels, water transfers) and
effluent-dependent streams. For example, in areas of the West where
water withdrawals or groundwater pumping can substantially modify flow
characteristics, onset and cessation of streamflow in some tributaries
may be more closely tied to changes in water use associated with
irrigation than with seasons of the year. In such flow-altered
tributaries, streamflow may change abruptly throughout the year due to
adjustments in facility operations or may vary from year to year due to
changes in water rights or water management regimes. In addition,
tributaries that typically flow throughout the spring may run dry in
years following a drought while storage reservoirs are being refilled.
When evaluating these types of artificially manipulated regimes, the
agencies may consider information about the regular manipulation
schedule and may potentially consider other remote resources or on-site
information to assess flow frequency.
Other commenters recommended defining relatively permanent
tributaries using the 2020 NWPR's terms ``perennial'' and
``intermittent.'' Relatively permanent tributaries under this rule
encompass tributaries that were jurisdictional under the 2020 NWPR.
However, the agencies have decided to explain directly the way that the
relatively permanent standard should be implemented, rather than
defining the phrase with these terms. As evidenced by the variety of
comments proposing definitions for ``perennial'' and ``intermittent,''
adding these terms to this rule could cause confusion and uncertainty.
Moreover, many definitions of intermittent incorporate ``seasonal''
flow, a concept that the agencies decided not to employ in this rule
for the reasons discussed above. Other definitions of ``perennial'' and
``intermittent'' that commenters suggested would require specific
sources of flow, which the agencies also decided not to establish in
this rule because such requirements cannot readily apply to
hydrologically altered waters, and for the reasons discussed in section
IV.C.4.c.ii.2 of this preamble.
While this rule implements the scope of relatively permanent
tributaries consistent with the approach in the 2020 NWPR, it does not
retain the 2020 NWPR's requirement that the tributaries contribute
surface water flow to a paragraph (a)(1) water in a ``typical year.''
See 85 FR 22251 (April 21, 2020). The 2020 NWPR defined a ``typical
year'' as when ``precipitation and other climatic variables are within
the normal periodic range (e.g., seasonally, annually) for the
geographic area of the applicable aquatic resource based on a rolling
thirty-year period.'' As discussed in section IV.B.3 of this preamble
and section II.B.iv.1 of the Technical Support Document, the typical
year analysis proved difficult to implement and yielded arbitrary and
potentially outdated results. Moreover, it is not required by the
plurality opinion in Rapanos, which simply required a ``connect[ion]''
to paragraph (a)(1) waters. See 547 U.S. at 742 (describing a
```wate[r] of the United States''' as ``i.e., a relatively permanent
body of water connected to traditional interstate navigable waters'').
This rule's requirement that jurisdictional tributaries flow directly
or indirectly to downstream paragraph (a)(1) waters or paragraph (a)(2)
impoundments implements the plurality's ``connect[ion]'' requirement.
See also section IV.C.4.b of this preamble.
(1) Duration and Timing of Flow for Relatively Permanent Tributaries
Many commenters recommended that the agencies establish a
particular flow duration for relatively permanent waters. Suggestions
ranged from a minimum of three months to 290 days. The agencies decided
not to establish a minimum duration because flow duration varies
extensively by region. Establishing a uniform number equally applicable
to the deserts in the arid West, the Great Lakes region, and New
England forests would not be scientifically sound. The agencies instead
have chosen to establish a more flexible approach to implementing this
rule that accounts for specific conditions in each region. Moreover, it
would often be infeasible for the regulated community or agency staff
to determine whether a stream ordinarily flows or whether a lake
contains standing water, for example, 12 weeks as opposed to 11 weeks
per year. Even if this determination was possible, such a bright line
cutoff would not reflect
[[Page 3086]]
hydrological diversity among different regions and alterations in flow
characteristics. The agencies' conclusion that a minimum duration is
not feasible is consistent with the pre-2015 regulatory regime, which
did not establish a bright line cutoff (though provided three months as
an example of seasonal flow) and with the approach of the 2020 NWPR.
See 85 FR 22292 (April 21, 2020) (``The agencies are not providing a
specific duration (e.g., the number of days, weeks, or months) of
surface flow that constitutes intermittent flow, as the time period
that encompasses intermittent flow can vary widely across the country
based upon climate, hydrology, topography, soils, and other
conditions.'').
Many factors, including climate, hydrology, topography, soils, and
other conditions, may affect the period in which relatively permanent
flow may occur for those relatively permanent waters that do not have
continuously flowing or standing water year-round. The factors which
affect streamflow and flow cessation are climatically and
geographically specific and therefore the periods during which a
tributary might have relatively permanent flow vary by region. Non-
relatively permanent tributaries are similarly diverse, and the
mechanisms which differentiate relatively permanent flow from non-
relatively permanent flow also vary by region.
For example, in parts of the Southeastern United States,
precipitation is distributed somewhat uniformly throughout the year,
but increased evapotranspiration during the growing season can reduce
surficial ground water levels and reduce or remove surface flows late
in the growing season (e.g., late summer or early autumn).
Consequently, certain streams in the Southeast may flow primarily in
the winter or early spring. Non-relatively permanent tributaries in the
Southeast may often be characterized by the repeated sequence of
streamflow, flow cessation, and channel drying throughout the year,
where the onset of streamflow coincides with distinct rainfall events
and is driven primarily by storm runoff. Streamflow in these systems
may persist anywhere from a few hours to days at a time, where the
cessation of flow is most often associated with termination of overland
flow, hillslope runoff recession, and the depletion of water in
saturated soils. Although streamflow in these tributaries may occur
regularly, off and on, over the duration of a season or longer, they do
not exhibit continuously flowing water for an extended period at any
point during the year. In other areas of the United States, snowpack
melt drives streamflow more than rainfall, and relatively permanent
flow may therefore coincide with warming temperatures in the spring or
early summer.
Many headwater streams in mountainous regions flow through channels
incised in bedrock with no groundwater interface with the bed of the
stream. Instead, these streams are often fed primarily by high
elevation snowpack melt. The same scenario may also exist in Northern
regions, where flows could be fed almost exclusively through melting
snowpack absent elevated groundwater tables. In these regions,
relatively permanent flows coincide with warming temperatures in the
spring or early summer and may persist well into the summer until there
are no longer enough inputs to sustain surface water, or later into
autumn when more permanent sources of meltwater (e.g., glaciers or
snowfields) begin to freeze. Non-relatively permanent flows in these
regions may occur in basins with thin layers of snow, where snow melts
rapidly at the onset of spring thaw, and the snowmelt produced is not
sufficient to sustain flows for an extended period and into the summer.
To determine the flow characteristics of a tributary for purposes
of implementing this rule, the agencies will evaluate the entire reach
of the tributary that is of the same Strahler \101\ stream order (i.e.,
from the point of confluence, where two lower order streams meet to
form the tributary, downstream to the point such tributary enters a
higher order stream; see Technical Support Document section IV.A.ii.1).
The flow characteristics of lakes, ponds, and impoundments that are
part of the tributary network will be assessed in conjunction with the
stream they connect to. Consistent with the pre-2015 regulatory regime,
the agencies will assess the flow characteristics of a particular
tributary at the farthest downstream limit of such tributary (i.e., the
point the tributary enters a higher order stream). Rapanos Guidance at
6 n.24. Where data indicate the flow characteristics at the downstream
limit are not representative of the entire reach of the tributary, the
flow characteristics that best characterize the entire tributary reach
will be used.
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\101\ Strahler, A.N. 1957. ``Quantitative analysis of watershed
geomorphology.'' American Geophysical Union Transactions 38: 913-
920.
---------------------------------------------------------------------------
(2) Source of Flow for Relatively Permanent Tributaries
Implementation of the relatively permanent standard for tributaries
in this rule does not require that relatively permanent flow come from
particular sources. This rule's approach is consistent with the
plurality opinion in Rapanos, which lays out the relatively permanent
standard and does not require that relatively permanent waters
originate from any particular source. See, e.g., 547 U.S. at 739. This
rule's approach is also science-based, as the source of a tributary's
flow does not influence its effect on downstream waters, including
paragraph (a)(1) waters. This rule's approach is similar to the
familiar approach taken in the Rapanos Guidance and the 2020 NWPR,
which also did not specify that relatively permanent flow come from
particular sources.
Sources of flow in relatively permanent tributaries may include an
elevated groundwater table that provides baseflow to a channel bed.
Relatively permanent flow could also result from upstream contributions
of flow, effluent flow, or snowpack that melts slowly over time in
certain geographic regions or at high elevations. In addition, in
certain regions relatively permanent flow could result from a
concentrated period of back-to-back precipitation events that leads to
sustained flow through a combination of runoff and upstream
contributions of flow or an elevated groundwater table that provides
baseflow to the channel bed. In contrast, non-relatively permanent
tributaries may flow only during or shortly after individual
precipitation events (including rainfall or snowfall events). Non-
relatively permanent flow may occur simply because it is raining or has
very recently rained, or because a recent snow has melted.
Streamflow that occurs during the monsoon season in certain parts
of the country (typically June through September in the arid West) may
be relatively permanent or non-relatively permanent, depending on the
conditions at the location. Many tributaries in the arid West are
dominated by coarse, alluvial sediments and exhibit high transmission
losses, resulting in streams that often dry rapidly following a storm
event (e.g., within minutes, hours, or days). These streams are not
relatively permanent under this rule. However, relatively permanent
flow may occur as a result of multiple back-to-back storm events
throughout a watershed, during which the combination of runoff and
upstream contributions of flow is high enough to exceed rates of
transmission loss for an extended period of time. Relatively permanent
flow may also follow one or more larger storm events, when
[[Page 3087]]
floodwaters locally recharge the riparian aquifer through bank
infiltration, which supplies sustained baseflow throughout the monsoon
season.
Similar to the 2020 NWPR's approach, the agencies will consider
tributaries that flow in direct response to ``snowfall'' for only a
short duration during or shortly after that snowfall event to be non-
relatively permanent waters under this rule. Streams that flow as a
result of ``snowpack melt'' will be considered relatively permanent
waters under this rule, where snowpack is defined as ``layers of snow
that accumulate over extended periods of time in certain geographic
regions or at high elevation (e.g., in northern climes or mountainous
regions).'' See 85 FR 22275 (April 21, 2020). Tributaries that receive
effluent flow that is relatively permanent will also be assessed under
the relatively permanent standard.
(3) Tools Available To Determine Whether a Tributary Meets the
Relatively Permanent Standard
Section IV.C.4.c.i of this preamble discusses how to determine if
features on the landscape are tributaries. Direct observations and
various remote tools and resources can be used to identify tributary
reaches based on stream order, and topographic characteristics can
assist in determining stream order. USGS topographic map blue line
symbology and contour line patterns can be used to interpret the
connectivity and contribution of flow within a river network, as well
as topography within an evaluation area. Elevation models, including
those based on light detection and ranging (LIDAR) derived data, may
also illustrate tributary connectivity and flow patterns, as well as
topography. In addition, aerial and satellite imagery along with maps
or geospatial mapping products (e.g., NHD, NWI, soil maps, and Tribal,
State, or local maps) can be used to help identify tributary reaches
based on stream order. In addition to remote tools and resources,
factors identified through field observations can be used to help
determine the extent of a tributary reach. For example, tributary
systems can be traversed to identify and characterize the branches of
the network that contribute flow to a particular evaluation area.
Certain geographic features (e.g., non-jurisdictional ditches, swales)
may also be found to contribute to a tributary's surface hydrology.
Many available resources and tools can assist in determining
whether tributaries are relatively permanent. For instance, the
agencies have been working to develop regionalized streamflow duration
assessment methods (SDAMs, available at https://www.epa.gov/streamflow-duration-assessment), which are rapid field-based assessment methods
that can be used to classify streamflow duration and assist in
determining whether tributaries are ``relatively permanent.'' These
methods rely on physical and/or biological field indicators, such as
the presence of hydrophytic vegetation and benthic macroinvertebrates,
that can be collected or observed in a single site visit to determine
the flow duration of a tributary in a reliable and rapid way. EPA, the
Corps, and the State of Oregon developed a regionalized SDAM that has
been validated for use throughout the Pacific Northwest (available at
http://www.epa.gov/measurements/streamflow-duration-assessment-method-pacific-northwest). EPA and the Corps have also developed a beta SDAM
for the arid West (available at https://www.epa.gov/streamflow-duration-assessment/beta-streamflow-duration-assessment-method-arid-west) and the Western Mountains (available at https://www.epa.gov/streamflow-duration-assessment/beta-streamflow-duration-assessment-method-western-mountains). EPA and the Corps are working to develop
additional regionalized SDAMs in other parts of the country. Other
agencies have developed similar tools that may be useful in
implementing this rule.\102\ The agencies, co-regulators, and
stakeholders can use the regionalized field indicators from SDAMs to
quickly and easily identify tributaries that are relatively permanent
as interpreted by the agencies under this rule.
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\102\ E.g., the Streamflow Methodology for Identification of
Intermittent and Perennial Streams and Their Origins, developed by
the North Carolina Division of Water Quality, available at https://files.nc.gov/ncdeq/Water%20Quality/Surface%20Water%20Protection/401/Policies_Guides_Manuals/StreamID_v_4point11_Final_sept_01_2010.pdf.
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Remote or desktop tools can also help the agencies and the public
better understand streamflow and whether tributaries have continuously
flowing or standing water year-round or during certain times of the
year for more than for a short duration in direct response to
precipitation.\103\ Satellite imagery and aerial photographs showing
visible water on multiple dates can provide evidence as to whether
tributaries have relatively permanent flow. Aerial photographs may show
other indicators commonly used to identify the presence of an
OHWM.\104\ These indicators may include the destruction of terrestrial
vegetation, the absence of vegetation in a channel, and stream channel
morphology with evidence of scour, material sorting, and deposition.
These indicators from aerial photographs can be correlated to the
presence of USGS stream data to support an assessment of flow
characteristics for a tributary.
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\103\ These tools include local maps, StreamStats by the USGS
(available at https://streamstats.usgs.gov/ss/), Probability of
Streamflow Permanence (PROSPER) by the USGS, which provides
streamflow permanence probabilities during the summer for stream
reaches in the Pacific Northwest (available at https://www.usgs.gov/centers/wyoming-montana-water-science-center/science/probability-streamflow-permanence-prosper), and NRCS hydrologic tools and soil
maps. Other tools include regional desktop tools that provide for
the hydrologic estimation of a discharge sufficient to generate
intermittent or perennial flow (e.g., a regional regression analysis
or hydrologic modeling), or modeling tools using drainage area,
precipitation data, climate, topography, land use, vegetation cover,
geology, and/or other publicly available information. Some models
that are developed for use at the reach scale may be localized in
their geographic scope. NOAA national snow analyses maps can
facilitate the evaluation of seasonal flow from snowmelt (available
at https://www.nohrsc.noaa.gov/nsa/), as can NRCS sources (available
at https://www.wcc.nrcs.usda.gov/snow/), and hydrographs that may
indicate a large increase in stream discharge due to the late
spring/early summer thaws of melting snow.
\104\ See definition of OHWM in section IV.C.8.d of this
preamble and https://www.erdc.usace.army.mil/Media/Fact-Sheets/Fact-Sheet-Article-View/Article/486085/ordinary-high-water-mark-ohwm-research-development-and-training/.
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In addition to satellite imagery and aerial photographs, desktop
tools, such as a regional regression analysis and the Hydrologic
Modeling System (HEC-HMS), provide for the hydrologic estimation of
stream discharge in tributaries under regional conditions. The
increasing availability of LIDAR-derived data can also be used to help
implement this rule.\105\ Potential LIDAR-indicated tributaries can be
correlated with aerial photography or high-resolution satellite imagery
interpretation and USGS stream gage data, to reasonably conclude the
presence of an OHWM and shed light on the flow characteristics.
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\105\ Where LIDAR data have been processed to create elevation
data such as a bare earth model, detailed depictions of the land
surface are available and subtle elevation changes can indicate a
tributary's bed and banks and channel morphology. Visible linear and
curvilinear incisions on a bare earth model can help identify the
flow characteristics of a water in greater detail than aerial
photography interpretation alone. Several tools (e.g., TauDEM,
Whitebox, GeoNet) can assist in developing potential stream networks
based on contributing areas, curvature, and flowpaths using GIS.
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Regional field observations can be used to verify desktop
assessments of the relative permanence of a tributary, when necessary.
Geomorphic indicators could include active/relict floodplains,
substrate sorting, clearly defined and continuous bed and banks,
depositional bars and benches, and recent alluvial deposits. Hydrologic
indicators might
[[Page 3088]]
include wrack/drift deposits, hydric soils, or water-stained leaves.
Biologic indicators could include aquatic mollusks, crayfish, benthic
macroinvertebrates, algae, and wetland or submerged aquatic plants. As
noted above, the agencies are developing SDAMs for use throughout the
country which evaluate and interpret these indicators and can show
whether tributaries have continuously flowing or standing water year-
round or during certain times of the year for more than a short
duration in direct response to precipitation. Ultimately, multiple
indicators, data points, and sources of information may be used to
determine whether a water, including a tributary, is relatively
permanent.
iii. Determining Whether a Tributary Meets the Significant Nexus
Standard
In evaluating tributaries under the significant nexus standard, the
agencies will determine whether the tributaries, either alone or in
combination with similarly situated waters in the region, significantly
affect the chemical, physical, or biological integrity of paragraph
(a)(1) waters. See section IV.C.9 of this preamble for additional
discussion on the definition of ``significantly affect'' in this rule,
including the factors that will be evaluated and the functions that
will be assessed as part of a significant nexus analysis. The agencies
consider tributaries and their adjacent wetlands to be ``similarly
situated'' waters. The agencies consider similarly situated waters to
be ``in the region'' when they lie within the catchment area of the
tributary of interest. Identifying the catchment area for purposes of
this significant nexus analysis is described below. The agencies
developed this updated evaluation method from the current pre-2015
implementation approach informed by their experience, the best
available science, Supreme Court decisions, and public comments.
Accordingly, in implementing the significant nexus standard under this
rule, all tributaries and adjacent wetlands within the catchment area
of the tributary of interest will be analyzed as part of the
significant nexus analysis.\106\
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\106\ This implementation approach to the region for purposes of
the significant nexus standard is a change from the Rapanos
Guidance. See section IV.C.9.c of this preamble for additional
discussion on implementing the significant nexus analysis.
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For purposes of a significant nexus analysis, the agencies will
identify the ``region'' as the catchment that drains to and includes
the tributary of interest. A catchment is the area of the land surface
that drains to a specific location for a specific hydrologic feature.
Catchments will be delineated from the downstream-most point of the
tributary reach of interest and include the land uphill that drains to
that point. For example, if the tributary of interest is a second order
stream, the catchment would be delineated from the point that the
second order stream enters a third order stream. See discussion of
stream order in section IV.C.4.c.ii.1 of this preamble. Topography and
landscape position influence the size and configuration of a catchment.
There are many existing spatial analysis tools that can be used to
delineate catchments quickly and reliably in most parts of the country.
USGS topographic maps can be manually interpreted to delineate
catchments based on the location of the outlet point (the downstream-
most point of the tributary of interest where the tributary enters a
higher order stream), using calculations informed by topographic
contours, the alignment of topographic high spots, and grouping of
lower, valley bottoms. Various GIS tools, web applications, and
automated modeling systems can also delineate catchments based on one
or more of the many factors that can influence drainage, including
surface topography, climate, land use, the presence of hydrologic
sinks, topology of sewer systems, and design of wastewater treatment
plant service areas.\107\
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\107\ NHDPlus provides delineated catchments for individual
stream segments by linking the mapped stream network to the
landscape. In addition, StreamStats by the USGS (available at
https://streamstats.usgs.gov/ss/) is a map-based web tool that can
delineate drainage areas for streams and estimate flow
characteristics for selected sites based on stream gage data, basin
characteristics, climate, etc. EPA's EnviroAtlas Interactive Map
(available at https://www.epa.gov/enviroatlas/enviroatlas-interactive-map) has a wide variety of tools that can help delineate
catchments, including a tool that illustrates how precipitation will
flow over the land surface, mapped elevation profiles for selected
tributaries, and designations of upstream and downstream watersheds
within a stream network.
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After identifying the catchment, the next step is to identify the
tributaries within the catchment under the agencies' longstanding
interpretation of tributary, see section IV.C.4.a of this preamble
above, and any of their adjacent wetlands within the catchment area.
See section IV.C.5 of this preamble for additional discussion on how to
identify adjacent wetlands. The agencies' longstanding practice in
conducting the significant nexus analysis is to assess a tributary in
combination with wetlands that meet the definition of ``adjacent''
under the regulations. Rapanos Guidance at 10. This approach to the
significant nexus analysis recognizes the ecological relationship
between the tributaries and their adjacent wetlands, and the role those
similarly situated waters have in influencing the chemical, physical,
or biological integrity of paragraph (a)(1) waters. See section
III.E.iii of the Technical Support Document. For purposes of this rule,
the agencies will therefore assess the tributaries and their adjacent
wetlands in a catchment. If the tributaries in the region, including
the tributary under assessment, have no adjacent wetlands, the agencies
consider only the factors and functions of the tributaries in
determining whether there is a significant effect on the chemical,
physical, or biological integrity of downstream paragraph (a)(1)
waters. If any of the tributaries in the region, including the
tributary under assessment, have adjacent wetlands, the agencies will
consider the factors and functions of the tributaries, including the
tributary under assessment, together with the functions performed by
the wetlands adjacent to the tributaries in the catchment, in
evaluating whether a significant nexus is present.
In conducting a significant nexus analysis under this rule, the
agencies will evaluate available hydrologic information (e.g., gage
data, precipitation records, flood predictions, historic records of
water flow, statistical data, personal observations/records, etc.) and
physical indicators of flow including the presence and characteristics
of a reliable OHWM. To understand the chemical, physical, and
biological functions provided by tributaries and their adjacent
wetlands, and the effects those functions have on paragraph (a)(1)
waters, it is important to use relevant geographic water quality data
in conjunction with site-specific data from field sampling and
hydrologic modeling. See section IV.C.9.c of this preamble for
additional discussion on implementing the significant nexus analysis;
see also section IV.C.10 of this preamble.
5. Adjacent Wetlands
a. This Rule
Consistent with the proposal, this rule retains the adjacent
wetlands provision of the 1986 regulations, with amendments to reflect
the agencies' interpretation of the statutory limits on the scope of
the ``waters of the United States'' informed by the law, the science,
and agency expertise. Aquatic resources that meet this rule's
definitions of ``wetlands'' and ``adjacent'' are assessed under this
provision where they are adjacent to traditional navigable waters, the
territorial seas, interstate waters,
[[Page 3089]]
impoundments of jurisdictional waters, and tributaries.
As discussed further in section IV.C.8.a of this preamble, in this
rule the agencies are retaining their longstanding definition of
``wetlands'' from the 1986 regulations: ``Wetlands means 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. Wetlands generally include
swamps, marshes, bogs, and similar areas.''
Additionally, as discussed further in section IV.C.8.b of this
preamble, in this rule the agencies are retaining their longstanding
definition of ``adjacent'' unchanged for most of the past 45 years,
which provides: ``Adjacent means bordering, contiguous, or neighboring.
Wetlands separated from other waters of the United States by man-made
dikes or barriers, natural river berms, beach dunes, and the like are
`adjacent wetlands.' '' Under this definition, adjacency is focused on
the distance between the wetland and the jurisdictional water. Whether
the distance between the wetland and the jurisdictional water qualifies
the wetland as bordering, contiguous, or neighboring (and therefore
``adjacent'') depends on the factual circumstances. The agencies have
three well-established criteria to determine adjacency; if any one of
the criteria is met, the wetland is ``adjacent,'' but may require
further analysis to determine if it is ``waters of the United States.''
See Rapanos Guidance at 5-8. First, there is an unbroken surface or
shallow subsurface connection to a jurisdictional water, which can be
established, for example, where the wetland directly abuts the
jurisdictional water or by a non-jurisdictional physical feature that
provides the direct connection between the wetland and a jurisdictional
water, such as a pipe, culvert, non-jurisdictional ditch, or flood
gate, that has at least periodic flow. Second, the wetland is
physically separated from a jurisdictional water by human-made dikes or
barriers, or natural landforms (e.g., river berms, beach dunes). Or
third, the wetland's proximity to a jurisdictional water is reasonably
close such that ``adjacent wetlands have significant effects on water
quality and the aquatic ecosystem.'' Riverside Bayview, 474 U.S. at 135
n.9. The agencies conclude that close proximity between an adjacent
wetland and a jurisdictional water means the wetland can modulate water
quantity or water quality in the jurisdictional water, and the
jurisdictional water can modulate water quantity or quality in the
wetland. See section IV.C.5.c of this preamble for further discussion
on the implementation of this provision and the three criteria. The
agencies have not established a specific distance limitation in the
rule beyond which wetlands are never adjacent because whether a wetland
is reasonably close such that the wetland can modulate water quantity
or quality in the jurisdictional water or the jurisdictional water can
modulate water quantity or quality in the wetland as part of the same
aquatic ecosystem, depends on regional variations in climate,
landscape, and geomorphology. But the agencies can state based on
nearly 45 years of implementation of this definition that in a
substantial number of cases, adjacent wetlands abut (touch) a
jurisdictional water. And, on the whole, nationwide, adjacent wetlands
are within a few hundred feet from jurisdictional waters (and in the
instances where the distance is greater than a few hundred feet,
adjacency is likely supported by a pipe, non-jurisdictional ditch,
karst geology, or some other feature that connects the wetland directly
to the jurisdictional water). Because of regional variability and its
effects on proximity for purposes of adjacency, wetlands in the arid
West--where rainfall is generally lower, evaporation rates are higher,
and riparian areas and floodplains do not extend far from the tributary
network--are likely to be much closer than a few hundred feet to be
considered adjacent under this rule. On the other hand, where the
jurisdictional water is wide, topography is flat lending to larger
floodplains and riparian areas, and rainfall is higher, wetlands are
more likely to be determined to be reasonably close where they are a
few hundred feet from that tributary because the site-specific
conditions contribute to the close relationship between the wetland and
the jurisdictional water, including any unbroken surface or shallow
subsurface hydrologic connections between the waters.
While bright-line rules (for example, wetlands that are more than a
specific number of feet from a jurisdictional water are not
``adjacent'') are easiest to understand and implement, convenience is
not the only goal the agencies must consider in administering the Clean
Water Act. Because the relationship between a wetland and a proximate
jurisdictional water can depend upon a number of site-specific factors,
like climate, geomorphology, landscapes, hydrology, and size of the
jurisdictional water (e.g., the ocean compared to a headwater stream),
and because the central purpose of the Act is to protect the integrity
of the nation's waters, a more nuanced analysis is required. While
science says that all things being equal, distance, location in a
riparian area or floodplain, or discrete hydrologic connections are
more likely to strengthen the relationship between a wetland and a
nearby water, science does not provide bright lines on appropriate
distances to determine adjacency. In implementing this provision over
the years, the agencies have worked hard to balance the desire for
clarity and predictability with the agencies' scientific understanding
of the resources Congress has charged the agencies with protecting. The
agencies have carefully considered options for nationally applicable
bright lines with respect to adjacency, such as establishing that any
wetland within a certain number of feet from a jurisdictional tributary
is per se jurisdictional, in order to facilitate implementation of the
Clean Water Act and to minimize the burden on both landowners and the
agencies to evaluate the scope of ``waters of the United States.''
However, the United States is a vast country with many different types
of waters, watersheds, landscapes, and hydrology. In fact, in the 2015
Clean Water Rule the agencies sought to establish a distance-based
bright line for determining adjacency. As discussed in section IV.B.1
of this preamble, that rule was immediately challenged, and the
distance-based limitations were a substantial factor in many of the
challenges. As the Supreme Court itself has recognized, the scope of
Clean Water Act jurisdiction does not easily lend itself to bright
lines: ``In sum, we recognize that a more absolute position . . . may
be easier to administer. But, as we have said, those positions have
consequences that are inconsistent with major congressional objectives,
as revealed by the statute's language, structure, and purposes.'' Maui,
140 S. Ct. at 1477. Ultimately, for purposes of this rule, the agencies
concluded that there was not a reasoned basis, consistent with the text
of the statute, to establish such a regulatory bright line.
The adjacent wetlands provision in the 1986 regulations defined
``waters of the United States'' to include wetlands adjacent to
traditional navigable waters, interstate waters, paragraph (a)(3)
``other waters,'' impoundments of ``waters of the United States,''
tributaries, and the territorial seas. This rule provides additional
constraints on jurisdiction relative to the 1986 regulatory text by
[[Page 3090]]
defining ``waters of the United States'' to include: (1) wetlands
adjacent to traditional navigable waters, the territorial seas, and
interstate waters; (2) 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 (3) wetlands
adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries
when the wetlands meet the significant nexus standard. In other words,
for wetlands adjacent to waters that are not paragraph (a)(1) waters,
an additional showing of a continuous surface connection to a
relatively permanent water or of a significant nexus to a paragraph
(a)(1) water is required. The determination of whether a wetland is
``adjacent'' is distinct from whether an ``adjacent'' wetland meets the
relatively permanent standard; however, wetlands that have a continuous
surface connection to a relatively permanent water meet the definition
of ``adjacent'' and thus are a subset of adjacent wetlands. See section
IV.C.5.c of this preamble for further information related to
implementing the final rule's adjacent wetlands provision.
Under this rule, the relatively permanent standard and the
significant nexus standard are independent jurisdictional standards.
Under the relatively permanent standard for adjacent wetlands, wetlands
meet the continuous surface connection requirement if they physically
abut, or touch, a relatively permanent paragraph (a)(2) impoundment or
a jurisdictional tributary when the jurisdictional tributary meets the
relatively permanent standard, or if the wetlands are connected to
these waters by a discrete feature like a non-jurisdictional ditch,
swale, pipe, or culvert. A natural berm, bank, dune, or similar natural
landform between an adjacent wetland and a relatively permanent water
does not sever a continuous surface connection to the extent it
provides evidence of a continuous surface connection. Again, the
determination of whether a wetland is ``adjacent'' under the rule is
distinct from whether an ``adjacent'' wetland has a continuous surface
connection. See section IV.C.5.c of this preamble, below, for further
discussion of implementation of the final rule's adjacent wetlands
provision.
The agencies have amended the regulatory text from the proposed
rule to be clearer that a wetland adjacent to but lacking a continuous
surface connection to a tributary that is relatively permanent must be
assessed under the significant nexus standard. For example, if a
wetland is ``neighboring'' to a tributary that is relatively permanent,
and thus ``adjacent,'' but lacks a continuous surface connection to
that tributary, the wetland would need to be assessed under the
significant nexus standard in order to determine its jurisdictional
status. This is consistent with pre-2015 practice under the Rapanos
Guidance for wetlands adjacent to relatively permanent tributaries and
was the agencies' intent under the proposed rule language. See Rapanos
Guidance at 8; 86 FR 69423 (``Wetlands adjacent to relatively permanent
tributaries but that lack a continuous surface connection to such
waters would then be assessed under the significant nexus [standard],
along with the tributary.'').
In addition, under this rule, wetlands adjacent only to paragraph
(a)(5) waters cannot be considered for jurisdiction under the paragraph
(a)(4) adjacent wetlands category, which represents a change from the
1986 regulations. Instead, such wetlands could be considered for
jurisdiction solely under paragraph (a)(5) of this rule.
Further, in this rule, the agencies are deleting the parenthetical
from the 1986 regulations that limited the scope of jurisdictional
adjacent wetlands to wetlands adjacent to waters ``(other than waters
that are themselves wetlands)'' for the reasons discussed below.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies received numerous comments on the scope and
implementation of the adjacent wetlands provision.
i. Comments on the Adjacent Wetlands Provision
The agencies received a wide range of comments on adjacent
wetlands. Some commenters stated that they agreed with the agencies'
approach in the proposed rule for adjacent wetlands, with several
adding that they believed the proposed rule's approach to adjacency was
consistent with prior practice, the relevant case law, the statute, the
Constitution, or congressional intent. Other commenters disagreed and
stated that the agencies' approach was not consistent with case law,
the statute, the Constitution, or congressional intent. Many of those
commenters stated that wetlands should only be jurisdictional if they
meet the relatively permanent standard. Other commenters requested
greater jurisdictional protections for wetlands due to the many
functions that they provide that benefit downstream waters, with some
commenters requesting that adjacent wetlands be treated as
categorically jurisdictional, similar to the 2015 Clean Water Rule.
After careful consideration of public comments and for the reasons
described in this preamble, the agencies are promulgating the adjacent
wetlands provision of this rule with minimal changes to the proposed
rule. For wetlands adjacent to paragraph (a)(1) waters, adjacency alone
supports jurisdiction. For wetlands that are adjacent to waters that
are not paragraph (a)(1) waters, like tributaries, this rule
establishes an additional limitation on jurisdiction. In that case, the
adjacent wetlands are jurisdictional only if they meet either the
relatively permanent standard or the significant nexus standard. The
agencies agree with commenters who stated that the proposed rule's
approach to adjacent wetlands was generally consistent with prior
practice and consistent with the relevant case law, the statute, the
Constitution, and congressional intent, and thus disagree with
commenters who took the contrary view. This rule defines ``waters of
the United States'' to include adjacent wetlands and reflects the
agencies' interpretation 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, relevant
Supreme Court decisions, the scientific record, the agencies'
experience and technical expertise, and consideration of public
comments on the proposed rule. The agencies disagree with commenters
who stated that only adjacent wetlands that meet the relatively
permanent standard should be considered jurisdictional. As discussed
further in section IV.A.3.a.ii of this preamble, the agencies have
concluded that the relatively permanent standard is administratively
useful but is insufficient as the sole standard for geographic
jurisdiction under the Clean Water Act because it is inconsistent with
the Act's text and objective. Protecting only waters that meet the
relatively permanent standard also runs counter to the scientific
principles underlying protection of water quality. The agencies thus
are promulgating an approach to adjacent wetlands that includes, but
that is not limited to, the relatively permanent standard. The
ecological relationship between jurisdictional waters and their
adjacent wetlands is well documented in the scientific literature and
reflects their physical proximity as well as shared hydrological and
biological characteristics. The scientific literature
[[Page 3091]]
also supports the conclusion that adjacent wetlands, either alone or in
combination with similarly situated waters, provide many important
functions that can significantly affect the chemical, physical, and
biological integrity of paragraph (a)(1) waters. See Technical Support
Document section III.B. Section IV.A of this preamble provides
additional information about the legal basis for the agencies'
conclusions in this rule and the scientific support for the rule's
provisions regarding adjacent wetlands. The agencies are not making
additional categorical determinations of jurisdiction based on the
significant nexus standard, as described further in section IV.A of
this preamble. Even under the 2020 NWPR, which purported to enhance
clarity, a landowner could not tell simply by looking at their property
whether it contained ``waters of the United States'' because, in the
case of adjacent wetlands, it was necessary to determine (1) whether
the property contained a wetland as defined in the regulations, (2)
whether there was evidence of a continuous surface connection between
the wetland and a water that was part of the tributary network of a
traditional navigable water or the territorial seas, (3) whether there
was evidence that the continuous surface connection occurred in a
``typical year,'' as the rule defined that term, and (4) in the case of
a continuous surface connection based on inundation, whether the
inundation originated in the jurisdictional water (relevant to
adjacency under that rule) or the wetland (irrelevant to adjacency
under that rule).
The challenge inherent in establishing bright lines to address the
complex and variable ways in which waters move in different regions
across the country is longstanding. As the Supreme Court itself has
recognized, the scope of Clean Water Act jurisdiction does not easily
lend itself to bright lines: ``In sum, we recognize that a more
absolute position . . . may be easier to administer. But, as we have
said, those positions have consequences that are inconsistent with
major congressional objectives, as revealed by the statute's language,
structure, and purposes.'' Maui, 140 S. Ct. at 1477. Further, as early
Supreme Court decisions recognized, the Clean Water Act replaced a
system whereby water quality protection had to be resolved through
litigation in which courts had to apply ``often vague and indeterminate
nuisance concepts and maxims of equity jurisprudence.'' City of
Milwaukee, 451 U.S. at 317. The Clean Water Act replaced this
unpredictable and inefficient approach with ``a comprehensive
regulatory program supervised by an expert administrative agency,''
id., including a ``uniform system of interstate water pollution
regulation,'' Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992). Shrinking
Federal jurisdiction, as the 2020 NWPR did, for example, would place
many waters back within the ``vague and indeterminate'' legal regime
that the Supreme Court recognized the Clean Water Act was designed to
replace. See 451 U.S. at 317.
The agencies also received a variety of comments critiquing or
supporting various past practice and rulemaking approaches to adjacency
including the pre-2015 regulatory regime, the 2015 Clean Water Rule,
and the 2020 NWPR. The agencies are retaining their longstanding
definition of adjacency and establishing an approach to adjacency that
is generally consistent with the pre-2015 regulatory regime, with some
changes to implementation discussed below. The agencies are rejecting
certain aspects of the 2020 NWPR's approach to adjacent wetlands for
the reasons discussed in this section and section IV.B.3 of this
preamble. The definition of ``adjacent wetlands'' in the 2020 NWPR
failed to advance the objective of the Clean Water Act. It also was
inconsistent with scientific information about the important effects of
wetlands that do not abut jurisdictional waters and that lack evidence
of specific surface water connections to such waters on the integrity
of paragraph (a)(1) waters. In addition, key elements of the 2020
NWPR's definition of ``adjacent wetlands'' were extremely difficult to
implement. These deficiencies are reflected in substantial losses of
Federal protections on the ground. See section IV.B.3 of this preamble.
The agencies are maintaining the approach of the pre-2015 regulatory
regime and the 2015 Clean Water Rule under which wetlands adjacent to
traditional navigable waters, the territorial seas, and interstate
waters are jurisdictional without need for further determinations, but
the agencies are not determining that any additional adjacent wetlands
are categorically jurisdictional in this rule. The agencies have
authority to determine which tributaries and their adjacent wetlands
are jurisdictional either through regulations or adjudication. See
Rapanos, 547 U.S. at 780-81 (Kennedy, J., concurring in the judgment);
see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974). With
respect to wetlands adjacent to waters other than paragraph (a)(1)
waters, the agencies have decided to proceed through case-specific
jurisdictional determinations under this rule, rather than through
categorical determinations by rule.
The agencies will continue to assert jurisdiction over wetlands
adjacent to traditional navigable waters, the territorial seas, and
interstate waters without need for further assessment, as they did
under the 1986 regulations and the Rapanos Guidance. Indeed, in
Rapanos, at least five Justices agreed that wetlands adjacent to
traditional navigable waters are ``waters of the United States.'' See
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.''), id. at 810 (Stevens, J., dissenting) (``Given that
all four Justices who have joined this opinion would uphold the Corps'
jurisdiction in both of these cases--and in all other cases in which
either the plurality's or Justice Kennedy's test is satisfied--on
remand each of the judgments should be reinstated if either of those
tests is met.''); see also Riverside Bayview, 474 U.S. at 134 (``[T]he
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.'');
Rapanos Guidance at 5. Moreover, ample scientific information makes
clear that the health and productivity of rivers and lakes, including
paragraph (a)(1) waters, depends upon the functions provided by
upstream tributaries, adjacent wetlands, and paragraph (a)(5) waters.
Under this rule, the agencies also define ``waters of the United
States'' to include wetlands adjacent to the territorial seas without
need for further assessment, as they did under the 1986 regulations, as
the territorial seas are categorically protected under the Clean Water
Act. Additionally, under this rule the agencies continue to define
``waters of the United States'' to include wetlands adjacent to
interstate waters without need for further assessment since interstate
waters, like traditional navigable waters and the territorial seas, are
waters clearly protected by the Clean Water Act. See section IV.C.2 of
this preamble for further discussion of traditional navigable waters,
the territorial seas, and interstate waters.
The agencies are retaining the 1986 regulations' coverage of
wetlands adjacent to paragraph (a)(2)
[[Page 3092]]
impoundments and wetlands adjacent to tributaries to paragraph (a)(2)
impoundments, updated to include the requirement that the wetlands also
meet either the relatively permanent or significant nexus standard. As
discussed above in section IV.C.3 of this preamble, the agencies'
longstanding interpretation of the Clean Water Act is that ``waters of
the United States'' remain ``waters of the United States'' even if
impounded. Since the impoundment does not ``denationalize'' the
``waters of the United States,'' see S.D. Warren, 547 U.S. at 379 n.5,
the agencies similarly interpret the Clean Water Act to continue to
protect wetlands adjacent to the paragraph (a)(2) impoundment and
adjacent to jurisdictional tributaries to the impoundment where those
wetlands meet the relatively permanent standard or the significant
nexus standard. See section IV.C.3 of this preamble for additional
discussion of impoundments under this rule.
The agencies are also deleting the cross reference to paragraph
(a)(5) waters as waters to which wetlands may be adjacent to be
determined ``waters of the United States'' under the adjacent wetlands
category of this rule. This change reflects the agencies' consideration
of the jurisdictional concerns and limitations of the statute, informed
by SWANCC and Rapanos. The agencies have concluded that a provision
that authorizes consideration of jurisdiction over adjacent wetlands
that meet the relatively permanent or significant nexus standard when
assessed based simply on connections to paragraph (a)(5) waters would
have too tenuous a connection to paragraph (a)(1) waters. Rather, any
such wetlands that are adjacent only to paragraph (a)(5) waters would
be assessed themselves under paragraph (a)(5) of this rule to determine
if they meet the relatively permanent or significant nexus standard.
For example, a wetland adjacent to a lake that meets the significant
nexus standard under paragraph (a)(5) would itself need to be assessed
under paragraph (a)(5) to determine whether it significantly affects
the chemical, physical, or biological integrity of a paragraph (a)(1)
water. See section IV.C.6.c of this preamble for further discussion on
implementation of paragraph (a)(5) waters.
The agencies have removed the parenthetical ``(other than waters
that are themselves wetlands)'' from the regulatory text because it has
caused confusion for the public and the regulated community and is
unnecessary. The parenthetical from the 1986 regulations limited the
scope of jurisdictional adjacent wetlands to wetlands adjacent to
waters ``(other than waters that are themselves wetlands).'' Under that
provision, a wetland was not jurisdictional simply because it was
adjacent to another adjacent wetland or to a wetland jurisdictional
under paragraph (a)(3) of the 1986 regulations. The provision has
created confusion under the pre-2015 regulatory regime, as some have
asserted that a wetland that is indeed adjacent to a jurisdictional
tributary, but that is separated from that tributary by another
adjacent wetland, should not be determined to be a jurisdictional
adjacent wetland because of that parenthetical. Several commenters
discussed the parenthetical in the 1986 regulation's ``adjacent
wetlands'' category. Most of those commenters were in favor of removing
the parenthetical, claiming that it created ``confusion'' and citing
concerns that the parenthetical could improperly limit jurisdiction of
wetlands. Other commenters voiced support for keeping the
parenthetical. Some even suggested that the parenthetical flatly
excluded all wetlands that are adjacent to other wetlands, regardless
of any other considerations. These interpretations are inconsistent
with the agencies' intent and longstanding interpretation of the
parenthetical. See Universal Welding & Fabrication, Inc. v. U.S. Army
Corps of Eng'rs, 708 Fed. Appx. 301, 303 (9th Cir. 2017) (observing
that ``[d]espite the subject wetland's adjacency to another wetland,
the Corps determined that its regulatory authority was not precluded by
the parenthetical language within [section] 328.3(a)(7), which it
interpreted as prohibiting the exercise of jurisdiction over a wetland
only if based upon that wetland's adjacency to another wetland'' and
holding that the Corps' interpretation is ``the most reasonable reading
of the regulation's text''). Therefore, to streamline the regulation
and provide additional clarity, the agencies have deleted the text of
the parenthetical in this rule. In addition, wetlands adjacent to
interstate wetlands or wetlands adjacent to tidal wetlands (which are
traditional navigable waters) are jurisdictional under this rule,
consistent with the 1986 regulations and longstanding practice.
ii. Comments on the Interpretation and Implementation of the Adjacent
Wetlands Provision
The agencies will continue to implement a number of longstanding
interpretations of ``adjacent'' based on scientific principles and
practical administration of the definition with this rule. As stated
previously, the agencies consider wetlands ``adjacent'' if one of the
following three criteria is satisfied. First, there is an unbroken
surface or shallow subsurface connection to jurisdictional waters. All
wetlands that directly abut jurisdictional waters have an unbroken
surface or shallow subsurface connection because they physically touch
the jurisdictional water. Wetlands that do not directly abut a
jurisdictional water may have an unbroken surface or shallow subsurface
connection to jurisdictional waters. Water does not need to be
continuously present in the surface or shallow subsurface connection.
Second, they are physically separated from jurisdictional waters by
human-made dikes or barriers, or natural landforms (e.g., river berms,
beach dunes). Or third, their proximity to a jurisdictional water is
reasonably close. Wetlands that meet one of these three criteria are
considered bordering, contiguous, or neighboring for purposes of this
rule.
Several commenters provided input on these three criteria. Some
commenters stated that shallow subsurface hydrologic connections are
appropriate to consider for adjacency, while others stated that such
connections should not be considered. Several commenters stated that
there are regional differences in proximity relevant to adjacency. Some
commenters stated that wetlands should be considered adjacent even if
they are separated by human-made dikes or barriers, natural river
berms, beach dunes and the like, while other commenters did not support
that view.
The agencies agree with commenters who stated that shallow
subsurface connections can be relevant to adjacency and will continue
to use the criteria from pre-2015 practice that an unbroken shallow
subsurface connection between a wetland and another water can
demonstrate adjacency.
While this rule does not explicitly identify regional factors that
influence what is ``reasonably close'' for purposes of adjacency, the
agencies recognize there may be site-specific factors (e.g.,
topography) that influence what is ``reasonably close.'' This rule does
not establish specific distance limitations for adjacency, which helps
ensure that site-specific and regional factors can be considered when a
wetland is being evaluated (see section IV.C.5.c of this preamble,
below).
The agencies agree with commenters who supported the 1986
regulation's definition of ``adjacent'' to include wetlands even if
they are separated by
[[Page 3093]]
natural landforms or human-made barriers for the reasons discussed in
sections IV.A.2.b.ii (explaining that the agencies' longstanding
definition of ``adjacent,'' which includes such wetlands, is a
reasonable foundation for this rule), and IV.C.8.b of this preamble,
and section III.B.ii of the Technical Support Document.
c. Implementation
Under this provision of the rule, wetlands adjacent to traditional
navigable waters, the territorial seas, or interstate waters are
jurisdictional and do not need further analysis to determine if they
are ``waters of the United States.'' Further, wetlands adjacent to
paragraph (a)(2) impoundments and to jurisdictional tributaries are
assessed for jurisdiction under the relatively permanent standard or
significant nexus standard. Wetlands adjacent to but lacking a
continuous surface connection with tributaries that are relatively
permanent must be assessed under the significant nexus standard.
i. Determining the Presence of an Adjacent Wetland
Before determining if a wetland is jurisdictional, the agencies
first determine if the wetland in question meets the definition of
``wetlands'' under this rule (see section IV.C.8.a of this preamble).
In identifying wetlands, the agencies will ordinarily consider all
wetlands within a wetland mosaic collectively. The agencies have long
considered wetland mosaics to be delineated as one wetland. Wetland
mosaics are landscapes where wetland and non-wetland components are too
closely associated to be easily delineated or mapped separately, and
the wetlands in the mosaic generally act as a single ecological unit.
In certain regions where wetland mosaics are common, Corps regional
wetland delineation manuals address how to delineate such wetlands.
Longstanding practice is that wetlands in the mosaic are not
individually delineated, but that the agencies consider the entire
mosaic and estimate percent wetland in the mosaic. See Technical
Support Document section IV.A.iii. These longstanding implementation
approaches for purposes of jurisdictional determinations are supported
by the science (see Technical Support Document section IV.A.iii) and
the technical expertise the agencies have developed through years of
performing these assessments.
Once a feature is identified as a wetland, if the wetland itself is
not jurisdictional under paragraph (a)(1) of this rule as a traditional
navigable water (such as a tidal wetland) or an interstate water, the
agencies assess whether it is adjacent to a traditional navigable
water, territorial sea, interstate water, paragraph (a)(2) impoundment,
or jurisdictional tributary. Wetlands are ``adjacent'' if they are
``bordering, contiguous, or neighboring.'' The agencies consider the
entire wetland to be ``adjacent'' if any part of the wetland is
``adjacent.''
Under this rule's definition and consistent with the agencies'
longstanding definition, adjacency is focused on the distance between
the wetland and the jurisdictional water. Whether the distance between
the wetland and the jurisdictional water qualifies the wetland as
bordering, contiguous, or neighboring (and therefore ``adjacent'')
depends on the factual circumstances, so the agencies will assess
adjacency using the three criteria noted above in section IV.C.5.a of
this preamble. This section of the preamble explains each of the
criteria in further detail. These criteria are consistent with the text
of the regulation, the underlying scientific rationale for defining
``waters of the United States'' to include adjacent wetlands, and pre-
2015 practice. See Rapanos Guidance at 5-6.
The longstanding definition, by its terms, does not require flow
from the wetland to the jurisdictional water or from the jurisdictional
water to the wetland (although such flow in either direction can be
relevant to the determination of adjacency). The Supreme Court in
Riverside Bayview in deferring to the Corps' ecological judgment about
the relationship between waters and their adjacent wetlands as an
``adequate basis for a legal judgment that adjacent wetlands may be
defined as waters under the Act,'' rejected an argument that such
wetlands had to be the result of flow in a particular direction to be
adjacent: ``This holds true even for wetlands that are not the result
of flooding or permeation by water having its source in adjacent bodies
of open water. The Corps has concluded that wetlands may affect the
water quality of adjacent lakes, rivers, and streams even when the
waters of those bodies do not actually inundate the wetlands. For
example, wetlands that are not flooded by adjacent waters may still
tend to drain into those waters. In such circumstances, the Corps has
concluded that wetlands may serve to filter and purify water draining
into adjacent bodies of water, and to slow the flow of surface runoff
into lakes, rivers, and streams and thus prevent flooding and erosion.
In addition, adjacent wetlands may `serve significant natural
biological functions, including food chain production, general habitat,
and nesting, spawning, rearing and resting sites for aquatic . . .
species.' '' 447 U.S at 134 (citing 33 CFR 320.4(b)(2)(iv), (v), (vii)
(1985)).
Wetlands with an unbroken surface or shallow subsurface connection
to jurisdictional waters are adjacent, including those wetlands that
directly abut a jurisdictional water (i.e., they are not separated by
uplands, a berm, dike, or similar barrier from the OHWM of the water to
which they are adjacent). All wetlands that directly abut
jurisdictional waters have an unbroken surface or shallow subsurface
connection because they physically touch the jurisdictional water. An
unbroken surface or shallow subsurface connection to jurisdictional
waters can also be established by a non-jurisdictional physical feature
or discrete conveyance that supports at least periodic flow between the
wetland and a jurisdictional water, such as a pipe, culvert, non-
jurisdictional ditch, or flood gate. Water does not have to be
continuously present in this hydrologic connection and the flow between
the wetland and the jurisdictional water may move in either or both
directions.
A shallow subsurface hydrologic connection is predominantly lateral
water flow through a shallow subsurface layer. Such flows may be found,
for example, in wetlands on slopes, where water seeps through surface
soils to downstream waters, in soils with a restrictive horizon, in the
hyporheic zone, or in karst systems. A shallow subsurface connection
also exists, for example, when the adjacent wetland and the water to
which it is adjacent are in contact with the same shallow aquifer or
with the same shallow water table which fluctuates within the soil
profile, sometimes rising to or near the ground surface. Shallow
subsurface connections can also be maintained as water moves through
karst topography, and through confined human-made subsurface conveyance
systems such as drain tiles and storm sewers. Shallow subsurface
connections may be found below the ordinary root zone (below 12
inches), where other wetland delineation factors may not be present. A
variety of factors may reflect the presence of a shallow subsurface
connection, including position of the wetland in the landscape (for
example, on a slope above the jurisdictional waters), stream
hydrographs, soil surveys (for example, exhibiting indicators of high
transmissivity over an impermeable
[[Page 3094]]
layer), and information indicating that the water table in the stream
is lower than the shallow subsurface. The agencies may also utilize
direct observations in the field or tracer studies to demonstrate
shallow subsurface flow. Shallow subsurface connections convey water
quickly through the soil and impact surface water directly within hours
or days rather than the months or years it may take long pathways to
reach surface waters. However, neither shallow subsurface connections
nor any type of groundwater, shallow or deep, are themselves ``waters
of the United States.'' Some examples of wetlands that are adjacent
under the final rule due to an unbroken surface or shallow subsurface
connection include wetlands that are connected to a tributary via karst
topography, which provide a direct subsurface hydrologic connection
between the wetlands and the tributary and that is traceable via a dye
test, even if those wetlands are more than several hundred feet from
the tributary; and wetlands within a couple of hundred feet of a
tributary, where the subsurface hydrologic connection is demonstrated
via soil maps which demonstrate continuous hydric soils with indicators
of high transmissivity over an impermeable layer between the tributary
and the proximate wetlands. See Technical Support Document section
III.B.ii for additional information on surface and shallow subsurface
hydrologic connections.
If a wetland is separated from a jurisdictional water by man-made
dikes or barriers, natural river berms, beach dunes, and the like, then
the wetlands are adjacent under this rule, consistent with the 1986
regulations. No additional identification of a hydrologic connection
between the wetland and the jurisdictional water is required for such
wetlands to be considered adjacent. For example, a wetland that is
separated from a jurisdictional tributary simply by a 40-foot road
meets the longstanding definition of adjacent. It is also important to
note that natural river berms are formed by sediment deposits
accumulating at or near stream banks during flood events. Such berms
vary in height from inches to feet, and also can be quite wide. With
respect to beach dunes and similar natural landforms, more than one
dune may exist between an adjacent wetland and jurisdictional water
(including primary and secondary dunes), because beach dunes typically
function as an interdunal system (particularly on barrier islands). For
example, interdunal wetlands which are located between dune ridges
would be adjacent.
In some cases, a wetland may be separated from a jurisdictional
water by more than one human-made dike or barrier or multiple types of
barriers and landforms (e.g., a wetland separated by a human-made
barrier and a natural river berm). The agencies will assess such
wetlands consistent with the other adjacency criteria previously
described (i.e., by identifying the presence of an unbroken surface or
shallow subsurface connection or determining that their proximity to a
jurisdictional water is reasonably close).
For purposes of determining whether a wetland is ``adjacent,''
artificial structures do not divide a wetland if a hydrologic
connection is maintained between the divided portions of the wetland.
Rather, the wetland is treated as one wetland. For example, if a
wetland is divided by a road, a culvert could maintain a hydrologic
connection. The agencies may also consider if a subsurface hydrologic
connection is maintained, using indicators such as hydric soils, the
permeability of the artificial structure, and/or the permeability of
the soils below the artificial structure.
Wetlands are also adjacent when their proximity to a jurisdictional
water is reasonably close. The Supreme Court in Riverside Bayview
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'' ``may be defined as waters under the Act.'' Riverside
Bayview, 474 U.S. at 134. Where the wetland is reasonably close to the
jurisdictional water, the agencies have concluded that ``adjacent
wetlands have significant effects on water quality and the aquatic
ecosystem.'' Id. at 135 n.9. The close proximity between an adjacent
wetland and a jurisdictional water means the wetland can modulate water
quantity and water quality in the jurisdictional water, and the
jurisdictional water can modulate water quantity and water quality in
the wetland. For example, wetlands typically help to store floodwaters,
pollutants, and sediments that could otherwise reach the jurisdictional
water to which they are adjacent. They can also provide flow
contributions to the jurisdictional waters to which they are adjacent
during high hydroperiods, where water spills from the wetland to the
nearby jurisdictional water, and such contributions of flow are
facilitated by the wetland's close proximity to the jurisdictional
water. The proximate jurisdictional waters can serve as important
sources of water for adjacent wetlands, for example, through
overtopping events where flow from the jurisdictional waters is stored
in the wetlands. While under this rule the agencies are not
establishing distance limits for adjacency, the agencies recognize that
as the distance between the wetland and jurisdictional water increases,
the reasonableness of the connection between the waters will generally
decrease, particularly in the absence of the type of surface or shallow
subsurface connections described above, and a finding of adjacency is
less likely. The distance between a jurisdictional water and its
adjacent wetlands may vary by region, as well as based on site-specific
factors within regions. In practice, under this criterion, the agencies
have found that adjacent wetlands are on the whole, nationwide, within
a few hundred feet of jurisdictional waters. This can vary from site to
site and region to region due to differences in climate, geomorphology,
landscape setting, hydrology, soils, vegetation, elevation, size of the
jurisdictional water, and other site-specific variables.
Field data, including visual observations, can assist with
determining if a wetland is adjacent. In addition, a variety of remote
tools can help to assess adjacency, including maps, high-resolution
elevation data, aerial photographs, and high-resolution satellite
imagery. For example, visual observation, NWI and USGS topographic
maps, elevation data, and NHD data may identify a physical barrier or
illustrate the location of the traditional navigable water, territorial
sea, interstate water, paragraph (a)(2) impoundment, or jurisdictional
tributary; the wetland's proximity to the jurisdictional water; and the
nature of topographic relief between the two aquatic resources. Visual
observations, aerial photographs, or high-resolution satellite imagery
may illustrate hydrophytic vegetation from the boundary (e.g., OHWM for
non-tidal waters or high tide line for tidal waters) of the traditional
navigable water, the territorial seas, the interstate water, the
paragraph (a)(2) impoundment, or the jurisdictional tributary to the
wetland boundary, or the presence of water or soil saturation. Soil
samples or NRCS soil maps may identify the presence of hydric soil
types, soil saturation, or potential surface or subsurface hydrologic
connections. Additionally, methods that overlay depressions on the
landscape with hydric soils and hydrophytic vegetation can be used to
identify likely wetlands and hydrologic connections. Field work can
help
[[Page 3095]]
confirm the presence and location of the OHWM or high tide line of the
jurisdictional water and can provide additional information about the
wetland's potential adjacency to that water.\108\
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\108\ Field work may include, e.g., traversing the landscape
from the traditional navigable water, territorial sea, interstate
water, paragraph (a)(2) impoundment, or jurisdictional tributary to
the wetland and examining topographic and geomorphic
characteristics, as well as hydrologic and biologic indicators.
---------------------------------------------------------------------------
ii. Determining Whether an Adjacent Wetland Meets the Relatively
Permanent Standard
Wetlands that are adjacent to paragraph (a)(1) waters are
jurisdictional without the need for further analysis. Wetlands adjacent
to paragraph (a)(2) impoundments and wetlands adjacent to
jurisdictional tributaries must meet a second requirement to be
jurisdictional as ``waters of the United States'' under this rule--they
must satisfy either the relatively permanent standard or the
significant nexus standard.
Under this rule, adjacent wetlands meet the relatively permanent
standard if they have a continuous surface connection to a relatively
permanent paragraph (a)(2) impoundment or a jurisdictional tributary
when the jurisdictional tributary meets the relatively permanent
standard. As discussed previously in this section of this preamble,
wetlands that have a continuous surface connection to such waters are a
subset of adjacent wetlands. Wetlands that do not have a continuous
surface connection but are adjacent to paragraph (a)(2) impoundments or
jurisdictional tributaries will be evaluated for jurisdiction under the
significant nexus standard. See also section IV.C.5.c.iii of this
preamble.
A continuous surface connection does not require a constant
hydrologic connection. Rather, the agencies will identify a continuous
surface connection consistent with the Rapanos plurality opinion, which
indicates that the continuous surface connection requirement is a
``physical-connection requirement.'' 547 U.S. at 751 n.13; see also
Rapanos Guidance at 7. Wetlands meet the continuous surface connection
requirement if they physically abut or touch a relatively permanent
paragraph (a)(2) impoundment or a jurisdictional tributary when the
jurisdictional tributary meets the relatively permanent standard.
Wetlands also meet the continuous surface connection requirement if
they are connected to relatively permanent waters by a discrete feature
like a non-jurisdictional ditch, swale, pipe, or culvert. This is
because a ditch or other such feature can serve as a physical
connection that maintains a continuous surface connection between an
adjacent wetland and a relatively permanent water. This approach to the
continuous surface connection is supported by the scientific
literature, case law, and the agencies' technical expertise and
experience. As the Court of Appeals for the Sixth Circuit has
explained, ``it does not make a difference whether the channel by which
water flows from a wetland to a navigable-in-fact waterway or its
tributary was manmade or formed naturally.'' United States v. Cundiff,
555 F.3d 200, 213 (6th Cir. 2009) (``Cundiff'') (holding wetlands were
jurisdictional under the Rapanos plurality where plaintiff created a
continuous surface connection by digging ditches to enhance the acid
mine drainage into the creeks and away from his wetlands).
Similarly, a natural berm, bank, dune, or similar natural landform
between an adjacent wetland and a relatively permanent water does not
sever a continuous surface connection to the extent it provides
evidence of a continuous surface connection. This approach is
consistent with the agencies' interpretation in the 2020 NWPR that
natural berms and similar natural landforms ``are indicators of a
direct hydrologic surface connection as they are formed through
repeated hydrologic events.'' 85 FR 22311 (April 21, 2020). As the 2020
NWPR explained, ``a natural river berm can be created by repeated
flooding and sedimentation events when a river overtops its banks and
deposits sediment between the river and a wetland.'' Id. (citing
Science Report at A-7). The 2020 NWPR noted that the adjacent wetland
could have been formed at the same time as or after the formation of
the natural river berm due to repeated flooding and the impeded return
flow created by the berm. Natural banks can also provide evidence of a
continuous surface connection because the processes that result in
their formation can also be representative of the interconnected
relationship between the wetlands and the relatively permanent water.
Adjacent wetlands may be separated by a bank from a relatively
permanent water due to an elevation difference between the bank and the
water (e.g., when the stream is incised). The surface water flow of a
tributary over time can erode a channel, which creates a bank
separating the tributary from the adjacent wetland. See 85 FR 22311
(April 21, 2020). In addition, the presence of a beaver dam between a
wetland and a relatively permanent water can be evidence of a
continuous surface connection between the two features, even if the dam
itself blocks surface hydrologic flow for periods of time. Beach dunes
may also separate adjacent wetlands and relatively permanent waters.
Beach dunes are sometimes formed through wind erosion which results in
the sand surface interacting with the water table, providing enough
hydrology to create wetlands. Beach dunes may also be formed when water
levels drop in lakes or from historic glacial retreat. Many interdunal
wetlands have seasonally variable hydroperiods where they may be dry
during periods of low rainfall. All of these processes and the
resulting natural berm, bank, dune, or similar natural landform
indicate that the wetlands are integrated and ``inseparably bound up''
with the relatively permanent waters. See 85 FR 22280 (April 21, 2020)
(citing Rapanos, 547 U.S. at 732 (Scalia, J., plurality opinion)). The
agencies recognize that not all natural berms, banks, dunes, and
similar natural landforms demonstrate evidence of a continuous surface
connection. For example, an adjacent wetland may be separated from a
relatively permanent water by a relict landform like a natural berm
that no longer interacts hydrologically with the tributary network.
Such relict barriers do not demonstrate evidence of a continuous
surface connection and may in fact sever the continuous surface
connection.
While natural barriers may at times occur within a floodplain, the
existence of a floodplain (and other land masses similar to a
floodplain, such as a riparian area or fluvial terrace) generally is
not sufficient to indicate a continuous surface connection. Wetlands
separated from jurisdictional waters by cliffs, bluffs, or canyon walls
also typically do not have a continuous surface connection, and thus
would be assessed under the significant nexus standard. However, if
these cliffs, bluffs, or canyon walls have gaps or built structures
(e.g., culverts, pipes, or waterfalls) that provide for a continuous
surface connection between the adjacent wetlands and the relatively
permanent water, this type of connection would satisfy the physical
connection requirement for a continuous surface connection. The same is
true for dikes or other artificial barriers with gaps or structural
components that allow for a continuous surface connection. For example,
an upland levee that separates an adjacent wetland from a tributary
that is relatively permanent may have gaps along the length of the
levee that
[[Page 3096]]
provide for a physical connection between the wetlands and the
tributary that satisfies the requirement for a continuous surface
connection.
Some commenters asserted that the agencies' use of the relatively
permanent standard in the proposed rule is inconsistent with the
Rapanos plurality opinion because it does not require a continuous
hydrologic connection for adjacent wetlands to be jurisdictional, with
one commenter referencing the agencies' statement in the proposed rule
that a continuous surface connection ``does not require surface water
to be continuously present between the wetland and the tributary.''
Another commenter asserted that the proposed rule's approach to
adjacent wetlands is inconsistent with the Rapanos plurality opinion
because it allows for the continuous surface connection requirement to
be satisfied by physical connections such as non-jurisdictional ditches
with an irregular flow surface connection requirement. The agencies
disagree that the approach in this rule is inconsistent with the
plurality opinion. The plurality opinion indicates that ``continuous
surface connection'' is a ``physical connection requirement.'' Rapanos,
547 U.S. at 751 n.13 (referring to ``our physical-connection
requirement'' and later stating that Riverside Bayview does not reject
``the physical-connection requirement''). This approach to the
continuous surface connection requirement is consistent with the
Rapanos Guidance. Rapanos Guidance at 7 & n.28. A continuous surface
connection is not the same as a continuous surface water connection, by
its terms and in effect. Therefore, because the plurality opinion
requires only a ``continuous surface connection,'' the relatively
permanent standard in this rule, consistent with the plurality opinion,
does not require surface water to be continuously present between the
wetland and the tributary. The agencies also disagree that it is
inconsistent with the plurality opinion for adjacent wetlands to be
considered to meet the continuous surface connection requirement if
they are connected to relatively permanent waters by a discrete feature
like a non-jurisdictional ditch, swale, pipe, or culvert. This is
because a ditch or other such feature can serve as a physical
connection that maintains a continuous surface connection between an
adjacent wetland and a relatively permanent water. This approach to the
continuous surface connection is supported by the scientific
literature, case law, and the agencies' technical expertise and
experience. See Cundiff, 555 F.3d at 213.
The agencies agree with commenters who stated that a continuous
surface connection does not require the continuous presence of surface
water between the adjacent wetland and relatively permanent paragraph
(a)(2) impoundment or jurisdictional tributary when the jurisdictional
tributary meets the relatively permanent standard, and the agencies
continue this longstanding approach in this rule. The agencies'
approach is consistent with science, as well as the longstanding
regulatory definition of ``wetlands,'' which does not require such
aquatic resources to contain surface water. See 33 CFR 328.3(b)(2014)
and 40 CFR 232.2 (2014)(defining wetlands as ``areas that are inundated
or saturated by surface or ground water at a frequency and duration
sufficient to support a prevalence of vegetation typically adapted for
life in saturated soil conditions'' (emphasis added)); see also
Technical Support Document section III.B. Since wetlands frequently do
not contain surface water, a requirement for continuous surface water
between a relatively permanent water and adjacent wetlands would be
illogical as a scientific and practical matter.
The agencies have a variety of tools for determining whether
adjacent wetlands have a continuous surface connection to relatively
permanent waters, or if they are separated from them by natural
landforms or artificial barriers, including the same tools used to
establish adjacency. Visual observations, high-resolution satellite
imagery, NRCS soil maps, USGS topographic maps, and NHD data may show
soil saturation, surface flow patterns and infrastructure crossings
(e.g., roads) that can be used to indicate possible culvert locations.
Visual observations, high-resolution satellite imagery, elevation data
such as LIDAR-based topographic models, and USGS topographic maps may
identify the presence of swales that are located between a wetland and
a relatively permanent water. Similar tools (described below) and
visual observations can be used to identify the potential presence of
natural landforms that can maintain a continuous surface connection and
the potential presence of breaks that may sever a continuous surface
connection. Distinguishing between landforms like upland breaks and
natural berms can be facilitated by assessing their linear extent and
continuity, or observations on how they hydrologically interact with an
associated relatively permanent water.
To assess whether wetlands are separated from relatively permanent
waters by natural landforms or artificial barriers, the agencies can
rely upon a variety of tools. For example, USGS topographic maps may
show topographic highs between the wetland and relatively permanent
water, or simple indices can be calculated based on topography to
indicate where these separations occur and their linear extent. FEMA
flood zone or other floodplain maps may indicate constricted
floodplains along the length of the tributary channel with physical
separation of flood waters. High-resolution elevation data can
illustrate topographic highs between a wetland and tributary channel
that extend along the length of a tributary's channel. Aerial
photographs or high-resolution satellite imagery may illustrate upland
vegetation along the tributary channel between the wetland and
tributary channel, or bright soil signatures indicative of higher
ground. NRCS soil maps may identify mapped linear, upland soil types
along the tributary channel. Field work may help to confirm the
presence and location of the OHWM of a tributary that is relatively
permanent. In addition, field work may confirm whether there is a
continuous physical connection between the wetland and the tributary,
or identify breaks that may sever the continuous surface
connection.\109\
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\109\ Field work may include, e.g., traversing the landscape
from the tributary to the wetland and examining topographic and
geomorphic characteristics, the linear extent of those features, as
well as hydrologic and biologic indicators.
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iii. Determining Whether an Adjacent Wetland Meets the Significant
Nexus Standard
The agencies note again that the determination of adjacency and the
determination of a significant nexus are different and that there are
two key differences. First, adjacency is about the relationship between
a wetland and a jurisdictional water and is based on reasonable
proximity, whereas significant nexus is about the functions provided by
an adjacent wetland to a paragraph (a)(1) water-the significant nexus
assessment is not to the jurisdictional water to which the wetland is
adjacent (if the jurisdictional water is a paragraph (a)(1) water, it
is jurisdictional without a case-specific significant nexus
assessment). Second, a wetland must meet the adjacency standard on its
own, whereas a significant nexus assessment is based on whether an
adjacent wetland alone or in combination with other similarly situated
waters significantly affects the
[[Page 3097]]
integrity of a paragraph (a)(1) water. Once a wetland has been
determined to be ``adjacent,'' if the adjacent wetland does not meet
the relatively permanent standard, the agencies will conduct a
significant nexus analysis to assess if the wetland is jurisdictional.
Under the regulations, the adjacent wetlands which do not meet the
relatively permanent standard and for which a significant nexus
analysis must be conducted are: (1) adjacent wetlands that lack a
continuous surface connection to a relatively permanent paragraph
(a)(2) impoundment or a jurisdictional tributary when the
jurisdictional tributary meets the relatively permanent standard, and
(2) wetlands adjacent to a paragraph (a)(2) impoundment or a tributary
when the paragraph (a)(2) impoundment or the tributary is not
relatively permanent. In evaluating such adjacent wetlands under the
significant nexus standard, the agencies will determine whether the
wetlands, either alone or in combination with similarly situated waters
in the region, significantly affect the chemical, physical, or
biological integrity of paragraph (a)(1) waters. See section IV.C.9 of
this preamble for additional discussion on the definition of
``significantly affect'' in this rule, including the factors that will
be evaluated and the functions that will be assessed as part of a
significant nexus analysis. The agencies consider tributaries and their
adjacent wetlands to be ``similarly situated'' waters. The agencies
consider similarly situated waters to be ``in the region'' when they
lie within the catchment area of the tributary of interest. Therefore,
in implementing the significant nexus standard under this rule, all
tributaries and adjacent wetlands within the catchment area of the
tributary of interest will be analyzed as part of the significant nexus
analysis.
For a significant nexus analysis, the region would be the catchment
that drains to and includes the tributary to which the wetland in
question is adjacent. A catchment is the area of the land surface that
drains to a specific location for a specific hydrologic feature, such
as a tributary. Catchments will be delineated from the downstream-most
point of the tributary reach to which the wetland is adjacent and
include the land uphill that drains to that point, as discussed in
further detail in section IV.C.4.c of this preamble and its
subsections.
After identifying the catchment, the next step is to identify the
tributaries within the catchment under the agencies' longstanding
interpretation of tributary, see section IV.C.4.a of this preamble, and
their adjacent wetlands within the catchment area, see section
IV.C.5.c.i of this preamble. When evaluating whether an adjacent
wetland meets the significant nexus standard, the agencies will
consider the factors in the final rule, along with the functions of the
tributaries in the catchment together with the functions performed by
the wetlands adjacent to the tributaries in the catchment, including
the subject wetland, in relation to the chemical, physical, or
biological integrity of the paragraph (a)(1) water. This approach to
the significant nexus analysis recognizes the ecological relationship
between wetlands and the tributaries to which they are adjacent, and
the role those similarly situated waters have in influencing the
chemical, physical, or biological integrity of paragraph (a)(1) waters.
See Technical Support Document section III.E.
Section IV.C.9.c of this preamble discusses a variety of tools and
sources of information that can be used to assess significant effects
on the chemical, physical, and biological integrity of paragraph (a)(1)
waters. Remote tools, field indicators and observational methods, and
datasets can all assist in determining whether adjacent wetlands meet
the significant nexus standard. In addition, a variety of modeling
approaches can be used to quantify the connectivity and cumulative
effects of wetlands, including non-floodplain wetlands, on other
waters, as discussed further in section IV.A.v of the Technical Support
Document.\110\
---------------------------------------------------------------------------
\110\ Some examples include the Soil and Water Assessment Tool
(SWAT, available at https://swat.tamu.edu/), the Hydrologic
Simulation Program in Fortran (available at https://www.epa.gov/ceam/hydrological-simulation-program-fortran-hspf), and DRAINMOD for
Watersheds (DRAINWAT, available at https://www.bae.ncsu.edu/agricultural-water-management/drainmod/). Other examples of models
applicable to identifying effects of wetlands on downstream waters
include the USGS hydrologic model MODFLOW (available at https://www.usgs.gov/mission-areas/water-resources/science/modflow-and-related-programs?qt-science_center_objects=0#qt-science_center_objects) and the USGS flow simulation model VS2DI
(available at https://www.usgs.gov/software/vs2di-version-13).
---------------------------------------------------------------------------
6. Waters Not Identified in Paragraphs (a)(1) Through (4)
a. This Rule
Paragraph (a)(5) of this rule defines ``waters of the United
States'' to include ``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. Waters
in this category in the 1986 regulations were sometimes referred to as
``(a)(3) waters'' or ``other waters.'' With this rule, the agencies
have made important changes to the 1986 regulations to reflect the
agencies' construction of the statutory limits on the scope of ``waters
of the United States'' informed by 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.'' Of
particular importance, the agencies have replaced the broad Commerce
Clause basis for jurisdiction from the 1986 regulations for waters not
identified in other provisions of the definition with the relatively
permanent standard and the significant nexus standard. Because the
relatively permanent standard and the significant nexus standard
require connections to a paragraph (a)(1) water, and the significant
nexus standard further requires that waters significantly affect
paragraph (a)(1) waters, this provision of the rule is substantially
narrower than the 1986 regulations. The 1986 regulations, for example,
authorized the assertion of jurisdiction over waters from which fish or
shellfish are or could be taken and sold in interstate or foreign
commerce.
The agencies are including a provision for intrastate lakes and
ponds, streams, or wetlands not identified in paragraphs (a)(1) through
(4) of the rule because such waters can provide functions that restore
and maintain the chemical, physical, and biological integrity of
traditional navigable waters, the territorial seas, and interstate
waters. See section IV.A.2.c.iii of this preamble. For example, a large
lake that is very close to a tributary or paragraph (a)(1) water, but
that is not part of the tributary system, would be non-jurisdictional
if the agencies did not include the category for assessing such waters
under paragraph (a)(5) in this rule, even if that lake provides many
functions that significantly affect a traditional navigable water.
The agencies have streamlined and clarified the provision for
paragraph (a)(5) waters as compared to the 1986 regulations. The
agencies have added the requirement that these waters must meet either
the relatively permanent standard or significant nexus standard to be
``waters of the United States.'' In addition, the agencies have deleted
the non-exclusive list of ``other waters'' that was featured in
paragraph (a)(3) of the 1986 regulations. Under the final rule's new
paragraph (a)(5) provision, only ``intrastate lakes and ponds, streams,
or wetlands not identified in paragraphs
[[Page 3098]]
(a)(1) through (4)'' can be assessed for jurisdiction under the
relatively permanent standard or significant nexus standard. As
discussed further below, however, the agencies have concluded that the
more specific water types previously listed in paragraph (a)(3) of the
1986 regulations nonetheless generally fall within one of the four
water types listed in paragraph (a)(5) of this rule.
Finally, the agencies have moved the provision for paragraph (a)(5)
waters to the end of the section of the regulation which defines the
categories of jurisdictional waters, since paragraph (a)(5) waters are
those that are not covered by the preceding categories. As a result,
``other waters'' are now in paragraph (a)(5) of this rule. In light of
these changes to the regulatory text, the agencies refer to these
waters as ``those not identified in paragraphs (a)(1) through (4)'' or
``paragraph (a)(5) waters'' for purposes of this rule.
Waters assessed under paragraph (a)(5) meet the relatively
permanent standard if they are relatively permanent, standing or
continuously flowing bodies of water with a continuous surface
connection to a paragraph (a)(1) water or a tributary that is
relatively permanent. The agencies will assess waters under paragraph
(a)(5) to determine if they are relatively permanent using a similar
approach to the one described for tributaries in section IV.C.4 of this
preamble, and the agencies will assess a continuous surface connection
between waters assessed under paragraph (a)(5) and a paragraph (a)(1)
water or a tributary that is relatively permanent using the approach
described for adjacent wetlands in section IV.C.5 of this preamble.
Waters assessed under paragraph (a)(5) meet the significant nexus
standard if they significantly affect the chemical, physical, or
biological integrity of a traditional navigable water, the territorial
seas, or an interstate water. See section IV.C.6.c of this preamble for
further discussion on implementation of these standards for waters
assessed under paragraph (a)(5). The agencies also note that the
characteristics of a water considered for jurisdiction under paragraph
(a)(5) can change over time such that it meets the requirements for
consideration under another category of ``waters of the United
States.'' For example, a river that does not drain to a paragraph
(a)(1) water could potentially become a traditional navigable water,
for instance, if it is impounded and becomes a navigable-in-fact
reservoir. Such water would then be assessed as a traditional navigable
water under paragraph (a)(1)(i) of the final rule. Similarly, a wetland
that historically was not adjacent can become an adjacent wetland, for
example, if a ditch is constructed that connects the wetland to a
jurisdictional tributary. Such a wetland would then be considered under
paragraph (a)(4) of the final rule due to the unbroken surface
connection to a jurisdictional water via the ditch.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies received numerous comments on whether to include a
category for waters that do not fall within one of the more specific
categories in the definition of ``waters of the United States'' and the
standard upon which to base jurisdiction over such waters, as well as
on implementation of this provision of the rule.
i. Comments on the Provision for Waters That Do Not Fall Within One of
the More Specific Categories
Some commenters expressed general support for including a category
for waters that do not fall within one of the more specific categories
in this rule, while others opposed including such a category. Many
commenters requested clarification of the category for waters that do
not fall within one of the more specific categories. Many commenters
addressed the agencies' legal authority to assert jurisdiction over
waters that do not fall within one of the more specific categories.
Some commenters asserted that following the Supreme Court's decisions
in SWANCC and Rapanos, the agencies lack authority to assert
jurisdiction over such waters. Other commenters stated that the
proposed rule's approach to such waters is legally defensible. Several
commenters further stated that the proposed rule does not go far enough
in protecting waters that do not fall within one of the more specific
categories and asserted that broader protection would be consistent
with Rapanos, SWANCC, and Maui.
The agencies disagree that the agencies lack authority to assert
jurisdiction over waters that do not fall within one of the more
specific categories. The agencies' regulations have long had provisions
for case-specific determinations of jurisdiction over waters that did
not fall within the other jurisdictional categories. See section
IV.A.2.b of this preamble. Such waters under this rule can be assessed
under paragraph (a)(5), and they are only jurisdictional if they meet
the relatively permanent standard or significant nexus standard. The
agencies have thus established limits on the scope of these waters
consistent with the law, the science, and agency expertise. See section
IV.A of this preamble. In addition, the agencies have carefully
considered the limitations on their authority under the Clean Water
Act, especially concerning paragraph (a)(5) waters. The agencies have
made a number of changes to the 1986 regulations that collectively
ensure the definition of ``waters of the United States'' remains well
within statutory and constitutional limits. Those changes include
replacing the broad Commerce Clause basis for jurisdiction over
paragraph (a)(5) waters with the narrower relatively permanent and
significant nexus standards, eliminating jurisdiction over tributaries
and adjacent wetlands based on their connection to paragraph (a)(5)
waters, and eliminating jurisdiction by rule over impoundments of
paragraph (a)(5) waters. See sections IV.A.3.a.i, IV.C.3, IV.C.4, and
IV.C.5 of this preamble. In addition, as discussed further in the
implementation section below, the agencies are intending to continue a
thoughtful, careful approach to implementation and coordination for
paragraph (a)(5) waters.
The agencies also received numerous comments on the standard to be
used for determining jurisdiction over waters that do not fall within
one of the more specific categories. Some commenters supported the
proposed rule's requirement that such waters meet either the relatively
permanent standard or the significant nexus standard. However, other
commenters did not support this approach. One commenter recommended
that the agencies not apply the relatively permanent standard to waters
that do not fall within one of the more specific categories because it
would be duplicative. Specifically, the commenter asserted that waters
that meet the relatively permanent standard as described in the
proposed rule would always meet the jurisdictional criteria for another
rule category. A few commenters disagreed with applying the significant
nexus standard to waters that do not fall within one of the more
specific categories, asserting that it goes beyond the scope of
jurisdiction contemplated by Justice Kennedy in Rapanos. Many other
commenters opposed the proposed rule's removal of the interstate and
foreign commerce jurisdictional basis for protecting waters that do not
fall within one of the more specific categories. Commenters expressed
that this basis would protect many important waterways which provide
valuable public health,
[[Page 3099]]
agricultural, recreational, drinking water, ecological, and economic
services important to local, regional, and national interests.
Under the 1986 regulations, ``other waters'' (such as intrastate
rivers, lakes, and wetlands that were not otherwise jurisdictional
under other sections of the rule) could be determined to be
jurisdictional if the use, degradation, or destruction of the water
could affect interstate or foreign commerce. This rule amends the 1986
regulations to delete all the provisions referring to authority over
activities that ``could affect interstate or foreign commerce'' and
replaces them with the relatively permanent and significant nexus
standards. Thus, this rule would provide for case-specific analysis of
waters not addressed by any other provision of the definition to
determine whether they are ``waters of the United States'' under the
relatively permanent or significant nexus standards.
The text of the 1986 regulations reflected the agencies'
interpretation at the time, based primarily on the legislative history
of the Clean Water Act, that the jurisdiction of the Act extended to
the maximum extent permissible under the Commerce Clause of the
Constitution. While SWANCC did not invalidate the 1986 regulations'
``other waters'' provision or any other parts of the 1986 regulations'
definition of ``waters of the United States,'' the Court cautioned that
that it ``assum[es] that Congress does not casually authorize
administrative agencies to interpret a statute to push the limit of
congressional authority.'' 531 U.S. at 172-73. Therefore, the agencies
conclude that asserting jurisdiction over non-navigable, intrastate
waters based solely on whether the use, degradation, or destruction of
the water could affect interstate or foreign commerce pushes the limit
of the Clean Water Act where those waters do not significantly affect
paragraph (a)(1) waters. This rule thus replaces the interstate
commerce test with the relatively permanent and significant nexus
standards. As discussed in section IV.A of this preamble, the agencies
have concluded 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 relatively permanent standard is included in the rule because 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. Thus,
this rule gives effect to the Clean Water Act's broad terms and
environmentally protective aim as well as its limitations.
Accordingly, waters that do not fall within one of the more
specific categories identified in paragraphs (a)(1) through (4) of this
rule may still be jurisdictional. This is consistent with the text of
the statute, relevant Supreme Court case law, and the science. See
section IV.A of this preamble and Technical Support Document section
III.D. The Rapanos plurality concluded, ``relatively permanent,
standing or continuously flowing bodies of water,'' 547 U.S. at 739,
that are connected to traditional navigable waters, id. at 742, and
waters with a ``continuous surface connection'' to such water bodies,
id. (Scalia, J., plurality opinion), are ``waters of the United
States'' under the relatively permanent standard. Without paragraph
(a)(5), a relatively permanent lake that is not a tributary and is not
a wetland, but which nonetheless has a continuous surface connection to
a traditional navigable water, could not be evaluated for jurisdiction.
Justice Kennedy concluded that SWANCC held 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). Many lakes and ponds that are not part of the tributary
system and that do not qualify as a paragraph (a)(1) water can only be
assessed under paragraph (a)(5) of this rule. There is no basis in the
statute or the science for excluding a lake or pond from the definition
of ``waters of the United States'' that is situated on the landscape in
a similar manner as an adjacent wetland, solely because it is a lake
and not a wetland.
Multiple commenters stated that the proposed rule's inclusion of
waters that do not fall within one of the more specific categories
would impermissibly assert jurisdiction over a wide range of features
that are far from traditional navigable waters and that have only minor
volumes of flow. A few commenters suggested that although the proposed
rule recognizes the importance of the strength of connection,
particularly the distance of such waters to navigable waters, it
suggests that the agencies may rely too much on scientific principles
when making jurisdictional determinations in a manner that improperly
expands the scope of the agencies' authority. Another commenter
asserted that the agencies should not consider water functions that
indicate isolation between water features as a basis for finding a
significant nexus for waters that do not fall within one of the more
specific categories.
The agencies disagree that this rule's category for waters that do
not fall within one of the more specific categories, paragraph (a)(5),
improperly expands the scope of their authority. The agencies have not
only narrowed this category from the 1986 regulations by replacing the
broad Commerce Clause provisions with the relatively permanent standard
and the significant nexus standard, but they have also made additional
changes from the 1986 regulations in order to ensure that they are not
pushing the outer limits of the authority granted to them by Congress
under the Clean Water Act. See section IV.A.3.a.i of this preamble.
Impoundments of waters jurisdictional under paragraph (a)(5) no longer
remain jurisdictional by rule. Tributaries to waters jurisdictional
under paragraph (a)(5) are not tributaries under paragraph (a)(3) of
this rule and must themselves be assessed under paragraph (a)(5).
Wetlands adjacent to waters jurisdictional under paragraph (a)(5) are
not adjacent wetlands under paragraph (a)(4) of this rule and must
themselves be assessed under paragraph (a)(5). In addition, as
discussed further below, the agencies have established enhanced
coordination procedures for waters assessed under the significant nexus
standard under paragraph (a)(5) in order to ensure that such
jurisdictional determinations are consistent with this rule. The
agencies have also carefully defined ``significantly affect,'' and have
drawn upon the scientific literature to identify the factors and
functions that will be used to make significant nexus determinations.
See section IV.C.9 of this preamble. In addition, the agencies will be
appropriately relying on both scientific principles and requirements of
the relatively permanent standard or the significant nexus standard
when assessing jurisdiction under this provision of the rule. As
described in section IV.A.2.c.iii of this preamble, paragraph (a)(5)
waters can provide functions that restore and maintain the chemical,
physical, and biological integrity of paragraph (a)(1) waters.
Therefore, the agencies have determined that including the category for
paragraph (a)(5) waters in this rule best advances the objective of the
Clean Water Act. The agencies disagree with the commenter that asserted
that the agencies should not consider water functions that indicate
isolation between water features as a basis for finding a significant
nexus. That
[[Page 3100]]
position is contrary to Justice Kennedy's opinion on the role the
absence of a hydrologic connection should play in a significant nexus
analysis. See Rapanos, 547 U.S. at 786 (Kennedy, J., concurring in the
judgment) (``Given the role wetlands play in pollutant filtering, flood
control, and runoff storage, it may well be the absence of hydrologic
connection (in the sense of interchange of waters) that shows the
wetlands' significance for the aquatic system.''). That argument is
also inconsistent with the science regarding the functions that waters
that do not fall within one of the more specific categories provide to
paragraph (a)(1) waters. See Technical Support Document section III.D.
Many commenters stated that certain types of wetlands should be
categorically protected in the rule category for waters that do not
fall within one of the more specific categories, such as Carolina and
Delmarva bays, pocosins, prairie potholes, vernal pools, and other non-
floodplain wetlands, because they provide functions that protect the
chemical, physical, or biological integrity of paragraph (a)(1) waters.
These commenters also stated that these waters provide valuable public
health, agricultural, recreational, drinking water, ecological, and
economic services important to local, regional, and national interests.
The agencies acknowledge commenters who discussed the functions that
these waters can provide. Agencies may choose to proceed via rulemaking
or adjudication. NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974)
(``[T]he choice between rulemaking and adjudication lies in the first
instance within the [agency's] discretion.''). With respect to the
significant nexus standard in particular, Justice Kennedy stated that
the agencies could proceed to determine waters jurisdictional through
regulations or adjudication. See 547 U.S. at 780-81. The agencies have
concluded that adjudication of which waters assessed under paragraph
(a)(5) are within Clean Water Act protections through case-specific
application of the significant nexus standard or the relatively
permanent standard under this rule, is appropriate. Therefore, the
agencies are not categorically including or excluding waters that do
not fall within one of the more specific categories as jurisdictional
under this rule. See also section III.D of the Technical Support
Document for more information on the agencies' rationale for evaluating
waters under paragraph (a)(5). Waters assessed under paragraph (a)(5)
will be evaluated using the relatively permanent standard or
significant nexus standard to determine their jurisdictional status.
Some commenters expressed that the category for waters that do not
fall within one of the more specific categories is too ambiguous or too
inclusive of waters that they believed should not be protected. The
agencies disagree with commenters who asserted that the category for
waters that do not fall within one of the more specific categories
should be removed, or that the category is too confusing or overly
broad. Waters assessed under paragraph (a)(5) in this rule are only
jurisdictional if they meet the relatively permanent standard or the
significant nexus standard. The agencies have also amended this
provision of the rule to more clearly identify the types of waters
addressed by this provision of the rule. Additionally, a category for
waters that do not fall within one of the more specific categories is a
longstanding and generally familiar category of waters included in the
definition of ``waters of the United States'' under the 1986
regulations. The agencies have extensive experience implementing the
relatively permanent standard and significant nexus standard for
wetlands, streams, lakes, and ponds, which are the types of resources
that are assessed under paragraph (a)(5) of this rule, and so will be
able to use their experience and implementation resources to ensure
consistency of jurisdictional determinations.
The 1986 regulations contained a non-exclusive list of water types
that could be jurisdictional if they were not jurisdictional under the
other provisions of the definition: ``[a]ll 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 agencies sought comment in the
proposed rule on whether it would be helpful to the public to delete
the list of water types or to otherwise provide more clarity to the
list of water types in the regulation. Commenters provided a variety of
perspectives on the specific list of waters in the 1986 regulations.
Several commenters recommended that the agencies clarify that the
example list of waters is illustrative and not exhaustive. Commenters
requested additions to the example list of waters, such as Delmarva
bays, vernal pools, and seepage lakes. Other commenters requested that
certain features be excluded from the example list of waters, such as
prairie potholes. Some commenters expressed confusion as to why the
example list from the 1986 regulations included ``intermittent
streams'' but not ``ephemeral streams.''
In this rule, the agencies have made changes to the 1986
regulations to clarify the list of water types that can be
jurisdictional under this provision, and to clarify that waters
assessed under paragraph (a)(5) include waters that do not meet the
requirements under paragraphs (a)(1) through (4) of this rule. The list
of water types in the 1986 regulations led to confusion as it was
sometimes incorrectly read as an exclusive list. There has also been
confusion about some of the listed water types. For example, the list
includes intermittent streams and was meant to allow for jurisdictional
evaluation of intermittent streams that do not fall within the other
categories (such as intermittent streams that are not tributaries to
the requisite water types but which under the 1986 regulations could
affect interstate commerce and under the proposed rule could meet the
significant nexus standard). The list was not meant to imply that
intermittent streams were not jurisdictional under the tributary
provision of the 1986 regulations. In addition, a flowing aquatic
feature that is human-made or human-altered but which is neither a
jurisdictional tributary nor an excluded ditch would be assessed as a
stream under paragraph (a)(5).
Paragraph (a)(5) of this rule identifies as ``waters of the United
States'' ``intrastate lakes and ponds, streams, or wetlands not
identified in paragraphs (a)(1) through (4)'' that meet either the
relatively permanent standard or significant nexus standard. Removing
the list of water types from the 1986 regulations is not meant to imply
that any of the water types listed in the 1986 regulations are not
potentially subject to jurisdiction; rather, the revised list of water
types is intended to more clearly inform the public of the types of
waters that can be assessed for jurisdiction under paragraph (a)(5),
and in this rule the list is intended to be exclusive. The revised list
is also streamlined for clarity. The agencies have concluded that the
more specific water types previously listed in paragraph (a)(3) of the
1986 regulations fall within one of the four water types in the rule.
For example, prairie potholes were in the list of water types in the
1986 regulations and, depending upon the characteristics of a
particular prairie pothole, they may fall within the wetlands water
type on the list (where they meet the regulatory definition of
wetlands) or they may be lakes or ponds. Other examples include
sloughs, as they typically fall within the wetlands water type or the
streams
[[Page 3101]]
water type, and playa lakes, which may fall within the lakes or ponds
water type depending upon their size. Finally, the list of water types
included in paragraph (a)(5) does not reflect a conclusion that these
waters are categorically jurisdictional; rather, these waters are only
jurisdictional if the subject waters meet either the relatively
permanent standard or the significant nexus standard.
ii. Comments on Interpretation and Implementation of Paragraph (a)(5)
Waters
The agencies received many comments supporting, opposing, or
recommending changes related to the implementation of the category for
waters that do not fall within one of the more specific categories.
Some commenters asserted that the proposed rule lacked sufficient
implementation guidance, and one commenter specifically stated that the
proposed rule lacked sufficient guidance as to how the agencies will
apply the significant nexus standard to waters that do not fall within
one of the more specific categories. A few commenters recommended an
approach for including waters that do not fall within one of the more
specific categories as jurisdictional in a manner similar to adjacent
wetlands, with some arguing that this approach would streamline the
permitting process, and others stating general support for this
approach. A number of commenters recommended that the agencies adopt
regionalized implementation approaches for certain types of waters that
do not fall within one of the more specific categories, such as prairie
potholes, Carolina Bays, and Indiana dune and swale wetland complexes.
The agencies acknowledge commenters who requested additional
implementation guidance in the final rule, and additional guidance has
been added to this rule including for the significant nexus standard.
See section IV.C.6.c of this preamble for additional discussion on
implementation of the significant nexus standard for waters assessed
under paragraph (a)(5). While the agencies' intended implementation
approach for paragraph (a)(5) waters has some differences from the
implementation approach for adjacent wetlands, as described further
below, the agencies have determined that the approach is reasonable and
implementable. This rule does not preclude the agencies from taking
into account regional considerations as part of the significant nexus
analysis, but the agencies are not explicitly including regional
criteria in the rule to ensure they have the flexibility to address
local conditions.
Under the pre-2015 regulatory regime, the agencies established
coordination procedures for paragraph (a)(3) ``other waters.'' See 68
FR 1991, 1995 (January 15, 2003) (``SWANCC Guidance'') (``[F]ield staff
should seek formal project-specific Headquarters approval prior to
asserting jurisdiction over such waters, including permitting and
enforcement actions.''). Several commenters stated that the agencies
should retain the requirement for field staff to request headquarters
review of approved jurisdictional determinations for waters that do not
fall within one of the more specific categories in this rule. These
commenters stated that review of the scientific justification for a
conclusion under the significant nexus standard must be conducted by
senior officials for accuracy and thoroughness, and agency headquarters
should provide such oversight. In contrast, several commenters stated
that the agencies should abandon the requirement for field staff to
request headquarters review of approved jurisdictional determinations
for waters that do not fall within one of the more specific categories.
These commenters stated that headquarters review should not be
necessary because agency field staff have considerable experience with
and expertise regarding the significant nexus standard. The commenters
also stated that requiring headquarters review would equate to
continued exclusion of waters that do not fall within one of the more
specific categories but should be provided Clean Water Act protection.
Finally, commenters asserted that reducing the number of approved
jurisdictional determinations needing review by agency headquarters
would streamline the permitting process.
As discussed further below, the agencies have established
coordination procedures under which the agencies' headquarters will
review all draft approved jurisdictional determinations for waters
assessed under paragraph (a)(5) based on the significant nexus
standard. This approach represents enhanced oversight by headquarters
staff over approved jurisdictional determinations for waters assessed
under paragraph (a)(5) to ensure implementation consistency and to
gather more robust data about the number and types of waters under
paragraph (a)(5) evaluated by the agencies, any regional or geographic
issues, and the information and implementation resources needed to make
approved jurisdictional determinations for this category.
c. Implementation
This rule provides for case-specific analysis of waters not
addressed by any other provision of the definition to determine whether
they are ``waters of the United States'' under the relatively permanent
or significant nexus standards. Waters assessed under paragraph (a)(5)
meet the relatively permanent standard if they are relatively
permanent, standing or continuously flowing bodies of water with a
continuous surface connection to a paragraph (a)(1) water or tributary
that is relatively permanent. Waters assessed under paragraph (a)(5)
meet the significant nexus standard if they ``significantly affect''
the chemical, physical, or biological integrity of a paragraph (a)(1)
water.
The agencies will generally assess jurisdiction over aquatic
resources based on the requirements in paragraphs (a)(1) through (4)
under this rule before assessing jurisdiction over aquatic resources
based on paragraph (a)(5). Examples of aquatic resources that could be
assessed for jurisdiction under paragraph (a)(5) include a stream that
does not meet the agencies' interpretation of a tributary because it
does not contribute flow directly or indirectly to a paragraph (a)(1)
water or a paragraph (a)(2) impoundment; a wetland that does not meet
this rule's definition of ``adjacent''; or a lake or pond that does not
meet the agencies' interpretation of a tributary because it is not
connected to the tributary network. A ditch that does not meet the
agencies' interpretation of tributary could also be assessed for
jurisdiction under paragraph (a)(5), so long as the ditch does not meet
the terms of the paragraph (b)(3) exclusion. The preamble to the
proposed rule stated that consistent with previous practice, the
agencies would not assess whether a ditch was jurisdictional under the
paragraph (a)(3) ``other waters'' provision. 86 FR 69433 (December 7,
2021). However, the agencies have reconsidered this statement and
determined that under previous practice, the agencies did in fact
assess whether ditches were jurisdictional under the paragraph (a)(3)
``other waters'' provision, and the agencies will continue to assess
ditches that are not excluded under paragraph (b)(3) under the relevant
jurisdictional categories in this final rule. The following sections of
the preamble cover how to identify waters assessed under paragraph
(a)(5) on the landscape, implementation of the relatively permanent
standard for waters assessed under paragraph (a)(5), and implementation
of the significant nexus
[[Page 3102]]
standard for waters assessed under paragraph (a)(5).
i. Identifying Waters Assessed Under Paragraph (a)(5) on the Landscape
Under this rule, waters that will be assessed for jurisdiction
under paragraph (a)(5) are: intrastate lakes and ponds, streams, and
wetlands that do not meet the requirements to be considered under
paragraphs (a)(1) through (4) of this rule. The agencies will identify
waters assessed under paragraph (a)(5) on the landscape using the
implementation tools that have previously been described for these
aquatic resources (see sections IV.C.4 and IV.C.5 of this preamble).
The agencies can draw upon a variety of remote- and field-based
methods, including a variety of mapping resources for identifying
aquatic resources.
ii. Implementing the Relatively Permanent Standard for Waters Assessed
Under Paragraph (a)(5)
Waters assessed under paragraph (a)(5) meet the relatively
permanent standard if they are relatively permanent, standing or
continuously flowing bodies of water with a continuous surface
connection to a paragraph (a)(1) water or a tributary that is
relatively permanent. The agencies have decided to implement this
approach consistent with the Rapanos plurality opinion, and it reflects
and accommodates regional differences in hydrology and water management
and can be implemented using available, easily accessible tools. See
sections IV.C.4.c and IV.C.5.c of this preamble.
The agencies intend to identify relatively permanent waters under
paragraph (a)(5) using a similar approach to the one described for
relatively permanent tributaries in section IV.C.4.c.ii of this
preamble. In summary, relatively permanent waters under paragraph
(a)(5) include surface waters that have flowing or standing water year-
round or continuously during certain times of the year. Relatively
permanent waters under paragraph (a)(5) include certain rivers and
streams that have ``flowing water.'' The phrase ``standing water'' is
intended to describe waters that are lentic or ``still'' systems, such
as lakes, ponds, and impoundments, which are characterized by standing
water and do not have a flowing outlet to the tributary system. In the
context of waters assessed under paragraph (a)(5), the phrase
``standing water'' can also describe certain wetlands that are
characterized by standing water (e.g., many swamps). Relatively
permanent waters under paragraph (a)(5) do not include features with
flowing or standing water for only a short duration in direct response
to precipitation. These features may include, for example, certain
wetlands that are not characterized by standing water (e.g., many
pocosin wetlands). See section IV.C.4.c.ii of this preamble for a
description of implementation tools that can be used to identify
relatively permanent waters under paragraph (a)(5).
The agencies intend to identify a continuous surface connection
between waters assessed under paragraph (a)(5) and a paragraph (a)(1)
water or a tributary that is relatively permanent using the approach
described for adjacent wetlands in section IV.C.5.c of this preamble
(although waters assessed under paragraph (a)(5) are not subject to the
adjacency requirement for jurisdictional adjacent wetlands). In
summary, there must be a continuous surface connection on the landscape
for waters assessed under paragraph (a)(5) to be jurisdictional under
the relatively permanent standard. However, a continuous surface
connection does not require a constant hydrologic connection. Waters
assessed under paragraph (a)(5) can meet the continuous surface
connection requirement if they are connected to a paragraph (a)(1)
water or a tributary that is relatively permanent by a discrete feature
like a non-jurisdictional ditch, swale, pipe, or culvert. Similarly, a
natural berm, bank, dune, or similar natural landform between a water
assessed under paragraph (a)(5) and a paragraph (a)(1) water or a
tributary that is relatively permanent does not sever a continuous
surface connection to the extent it provides evidence of a continuous
surface connection. See section IV.C.5.c of this preamble for a
description of implementation tools that can be used to assess a
continuous surface connection for a water assessed under paragraph
(a)(5).
Under this rule, certain aquatic resources that do not meet the
jurisdictional requirements for tributaries or adjacent wetlands could
be jurisdictional as paragraph (a)(5) waters under the relatively
permanent standard. For example, lakes and ponds that are not connected
to a tributary system but are relatively permanent waters and have a
continuous surface connection to a paragraph (a)(1) water or a
tributary that is relatively permanent, could be jurisdictional as
paragraph (a)(5) waters. To illustrate, a relatively permanent lake
that is located near a tributary that meets the relatively permanent
standard, but is separated by a natural berm, to the extent the berm
provides evidence of a continuous surface connection, is jurisdictional
as a paragraph (a)(5) water under the relatively permanent standard.
See section IV.C.4.c.ii of this preamble. Similarly, a relatively
permanent oxbow pond located near a traditional navigable water and
connected to that traditional navigable water via a swale that provides
a continuous surface connection between the pond and the traditional
navigable water is jurisdictional as a paragraph (a)(5) water under the
relatively permanent standard.
iii. Implementing the Significant Nexus Standard for Waters Assessed
Under Paragraph (a)(5)
Waters assessed under paragraph (a)(5) that do not meet the
relatively permanent standard may be found jurisdictional under the
significant nexus standard. Waters assessed under paragraph (a)(5) meet
the significant nexus standard if they significantly affect the
chemical, physical, or biological integrity of a traditional navigable
water, the territorial seas, or an interstate water. Examples of waters
assessed under paragraph (a)(5) include familiar types of waters like
lakes and ponds, streams, and wetlands that have been the subject of
significant nexus analyses under the tributaries and adjacent wetlands
provisions of the pre-2015 regulations since the Rapanos Guidance was
issued. See section IV.C.9 of this preamble for additional discussion
on the definition of ``significantly affect'' in this rule, including
the factors that will be considered and the functions that will be
assessed as part of a significant nexus analysis. Consistent with
longstanding practice, the agencies will assess these waters based on
best professional judgment informed by the best available information.
In implementing the significant nexus standard, the agencies
generally intend to analyze waters under paragraph (a)(5) individually
to determine if they significantly affect the chemical, physical, or
biological integrity of a paragraph (a)(1) water. This approach
reflects the agencies' consideration of public comments, as well as
implementation considerations for waters assessed under paragraph
(a)(5). While the agencies' regulations have long authorized the
assertion of jurisdiction on a case-specific basis over waters that do
not fall within the other jurisdictional provisions, since SWANCC and
the issuance of the SWANCC Guidance with its requirement of
headquarters approval over determinations under that
[[Page 3103]]
provision, the agencies have not in practice asserted jurisdiction over
paragraph (a)(3) ``other waters'' under the pre-2015 regulatory
regime.\111\
---------------------------------------------------------------------------
\111\ Note that when the 2015 Clean Water Rule was in effect,
the agencies did assert jurisdiction over waters that would have
been known as paragraph (a)(3) ``other waters'' by rule if they were
adjacent waters as defined by that rule and on a case-specific basis
if they fell within the provisions requiring case-specific
significant nexus determinations. The 2020 NWPR also asserted
jurisdiction over certain lakes and ponds that would have been
jurisdictional as paragraph (a)(3) ``other waters.''
---------------------------------------------------------------------------
Some commenters specifically addressed implementation of the
significant nexus standard for waters that do not fall within one of
the more specific categories, with commenters supporting and opposing
aggregation of such waters as part of a significant nexus analysis.
Commenters opposing aggregation requested that the agencies assess
water features individually to determine their significance to
chemical, physical, or biological integrity of downstream paragraph
(a)(1) waters. Commenters supporting aggregation of waters that do not
fall within one of the more specific categories stated that such an
approach was consistent with Rapanos and the science. The agencies
addressed such waters individually on a case-by-case basis under pre-
2015 practice and have concluded at this time that individual
assessments are practical and implementable for significant nexus
determinations for waters assessed under paragraph (a)(5).
iv. Joint Agency Coordination on Waters Assessed Under Paragraph (a)(5)
As is typical after a rule is promulgated, the agencies have
entered into an agreement via a joint agency coordination memorandum to
ensure the consistency and thoroughness of the agencies' implementation
of this rule. As part of these coordination procedures, EPA and Corps
field staff will coordinate on all draft approved jurisdictional
determinations \112\ based on the significant nexus standard, and the
agencies will follow a process for elevating a subset of these
determinations to headquarters for review as necessary. That
coordination will be enhanced for waters assessed under paragraph
(a)(5) to ensure this provision is carefully implemented and to gather
more robust data about the number and types of waters assessed under
paragraph (a)(5) by the agencies, any regional or geographic issues,
and the information and implementation resources needed to complete
approved jurisdictional determinations for this category. As part of
these coordination procedures, headquarters at the agencies will review
all draft approved jurisdictional determinations for waters assessed
under paragraph (a)(5) based on the significant nexus standard. The
agencies do not intend for this coordination to result in the exclusion
of paragraph (a)(5) waters that meet the significant nexus standard and
are thus jurisdictional under this rule, but rather to serve as an
additional check as to whether one of the jurisdictional standards is
met. In addition, the agencies have established timelines for the
review of certain draft approved jurisdictional determinations to
ensure that there will not be unnecessary delay. Moreover, the
coordination will enable the agencies to quickly address any potential
inconsistencies, and that will enhance the efficiency of the approved
jurisdictional determination process under this rule. Finally, after
the memorandum is in effect for nine months, the agencies will
reevaluate this requirement and assess the implementation and
coordination approach, including assessing the scope and need for the
coordination process.
---------------------------------------------------------------------------
\112\ An approved jurisdictional determination 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.
---------------------------------------------------------------------------
7. Exclusions
The agencies are including in the final rule regulatory text
several exclusions from the definition of ``waters of the United
States,'' including longstanding exclusions for prior converted
cropland and waste treatment systems, and exclusions for features that
were generally considered non-jurisdictional under the pre-2015
regulatory regime. The regulatory text for this rule excludes the
following features:
waste treatment systems, including treatment ponds or
lagoons, designed to meet the requirements of the Clean Water Act;
prior converted cropland;
ditches (including roadside ditches) excavated wholly in
and draining only dry land and that do not carry a relatively permanent
flow of water;
artificially irrigated areas that would revert to dry land
if the irrigation ceased;
artificial lakes or ponds created by excavating or diking
dry land to collect and retain water and which are used exclusively for
such purposes as stock watering, irrigation, settling basins, or rice
growing;
artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating or diking dry land to
retain water for primarily aesthetic reasons;
waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of water meets
the definition of waters of the United States; and
swales and erosional features (e.g., gullies, small
washes) characterized by low volume, infrequent, or short duration
flow.
These features were excluded by regulation or general practice
under the pre-2015 regulatory regime and each of the subsequent rules
defining ``waters of the United States.'' These exclusions from the
definition provide important clarity on which features are and are not
jurisdictional. As described in more detail below, to provide further
clarity and certainty to the public, the agencies are codifying
exclusions in the regulatory text for the features described in the
proposed rule preamble as generally non-jurisdictional. Note that the
word ``features'' when used in section IV.C.7 of this preamble refers
broadly to landscape elements that may be evaluated in a determination
of jurisdiction, e.g., streams, ponds, swales, wetlands, and
depressions.
The agencies are listing these exclusions in the regulatory text in
a new paragraph (b) which consolidates the exclusions together in a
single regulatory section. With this change, the regulatory text now
identifies jurisdictional waters in paragraph (a), exclusions in
paragraph (b), and definitions in paragraph (c). This change is
consistent with the 2015 Clean Water Rule and 2020 NWPR, which both
organized the regulatory text into these three paragraphs. This
organizational structure clearly delineates waters that are
jurisdictional from those waters and features that are excluded and
provides a familiar and clear framework for the regulations. This
reorganization does not affect the substance of the definition of
``waters of the United States.''
As explained in this rule's regulatory text, where a feature
satisfies the terms of an exclusion, it is excluded from jurisdiction
even where the feature would otherwise be jurisdictional under any of
paragraphs (a)(2) through (5) of this rule. In such an instance, the
feature is not considered ``waters of the United States.'' However,
where a feature satisfies the terms of an exclusion but would otherwise
be jurisdictional under paragraph (a)(1) of
[[Page 3104]]
this rule, the feature is not excluded.\113\ For example, where
applicable, the exclusion in this rule for ditches excludes a ditch
that is excavated wholly in dry land, drains only dry land, and does
not carry a relatively permanent flow of water. However, all tidally-
influenced ditches are jurisdictional under paragraph (a)(1)(i) of the
rule because they are ``subject to the ebb and flow of the tide,'' and
therefore the exclusion is not applicable to those ditches. In
addition, if a ditch was excavated in dry land very close to a
territorial sea and, over time due to erosion, sea level rise, or other
factors, the ditch develops a hydrologic connection to the territorial
sea and becomes tidally-influenced, the ditch would then be considered
jurisdictional under paragraph (a)(1) of this rule and would no longer
be excluded. This is consistent with the agencies' longstanding
position that a feature is not excluded where it would otherwise be
jurisdictional as a traditional navigable water, territorial sea, or
interstate water. See 51 FR 41217 (November 13, 1986) (explaining that
``[n]on-tidal drainage and irrigation ditches excavated on dry land''
are generally not considered ``waters of the United States'' under the
1986 regulations but not including similar language for tidally-
influenced ditches). The Clean Water Act fundamentally protects these
three categories of waters: traditional navigable waters are clearly
encompassed within the defined term ``navigable waters''; the
territorial seas are explicitly mentioned in the statutory definition
of ``navigable waters''; and, as discussed further in section
IV.C.2.b.iii of this preamble, interstate waters are, by definition,
waters of the ``several States'' and are unambiguously ``waters of the
United States.'' While the agencies have authority to draw lines
excluding some aquatic features from the definition of ``waters of the
United States,'' the Clean Water Act provides no such authority to the
agencies to exclude waters in these three unambiguous types of ``waters
of the United States'' under the statute. Even if jurisdiction over one
or all of these categories of waters were ambiguous, the agencies have
concluded that since these are the fundamental waters that Congress
intended to protect under the Clean Water Act, and that have had
longstanding and unequivocal protection, with the exception of the 2020
NWPR, it is reasonable to establish unequivocal jurisdiction over these
waters. Further, the agencies have concluded that there are not policy,
practical, or technical bases to apply the exclusions to these
paragraph (a)(1) waters given their crucial role in the statutory
regime. The agencies recognize that the 2020 NWPR allowed certain
traditional navigable waters and the territorial seas to be excluded
from jurisdiction if they satisfied the terms of certain exclusions.
The 2020 NWPR did not provide a rationale for this aspect of the final
rule. The agencies are restoring historic practice and, consistent with
the Clean Water Act and as discussed above, are ensuring the protection
of all paragraph (a)(1) waters in this rule.
---------------------------------------------------------------------------
\113\ See also discussion of the waste treatment system
exclusion in section IV.C.7.b of this preamble, infra.
---------------------------------------------------------------------------
The exclusions reflect the agencies' longstanding practice and
technical judgment that certain waters and features are not subject to
the Clean Water Act. The exclusions are also guided by Supreme Court
precedent. The plurality opinion in Rapanos noted that there were
certain features that were not primarily the focus of the Clean Water
Act. See 547 U.S. at 734. In this section of the rule, the agencies are
promoting regulatory certainty by expressly stating that certain waters
and features are not subject to jurisdiction under the Clean Water Act.
Based on decades of implementation experience, the agencies have
determined that waters that satisfy the terms of an exclusion are not
``waters of the United States.'' Clearly identifying these exclusions
in this rule is an important aspect of the agencies' policy goal of
providing clarity and certainty. The categorical exclusions in this
rule will simplify the process of determining jurisdiction, and they
reflect the agencies' determinations of the lines of jurisdiction based
on case law, policy determinations, and the agencies' experience and
expertise.
In addition, even when the features described below are not
``waters of the United States'' because they are excluded (e.g.,
certain ditches, swales, gullies, erosional features), these and other
non-jurisdictional features may be relevant to the analysis of whether
another water meets the final rule's definition of ``waters of the
United States.'' For example, consistent with longstanding practice,
excluded surface features may still contribute to a hydrologic
connection relevant for asserting jurisdiction (e.g., between an
adjacent wetland and a jurisdictional water). See section IV.C.5 of
this preamble; Rapanos Guidance at 12. Discharges to these non-
jurisdictional features may also be subject to certain Clean Water Act
regulations. For example, a discharge from a point source to a non-
jurisdictional ditch that connects to a jurisdictional water may
require a Clean Water Act section 402 permit. See Rapanos Guidance at
12. In addition, non-jurisdictional ditches may themselves function as
point sources (i.e., ``discernible, confined, and discrete
conveyances''), such that discharges of pollutants from these features
could require a Clean Water Act permit. See also Rapanos, 547 U.S. at
743-44. While not the focus of this section, subsurface features that
are non-jurisdictional may also be relevant to assessing jurisdiction
of water features. See sections IV.C.4 and IV.C.5 of this preamble.
Several commenters requested that the agencies exclude features
from the definition of ``waters of the United States'' beyond those
longstanding exclusions and historically non-jurisdictional features
identified in the proposed rule. For example, several commenters
requested that the agencies exclude stormwater control features,
wastewater and drinking water treatment systems, and water recycling
structures from the definition of ``waters of the United States.'' The
agencies are not excluding these or other additional features in this
rule. The proposed additional exclusions would not achieve the
agencies' goal of maintaining consistency with the pre-2015 regulatory
regime while continuing to advance the objective of the Clean Water
Act. This approach is consistent with the agencies' intent in this rule
to interpret ``waters of the United States'' to mean the waters defined
by the longstanding 1986 regulations, with amendments to reflect the
agencies' interpretation of the statutory limits on the scope of the
``waters of the United States,'' informed by 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, in addition to consideration of
extensive public comment on the proposed rule. However, even for
features that are not explicitly excluded, the agencies will continue
to assess jurisdiction under this rule on a case-specific basis. As
part of this case-specific assessment, the agencies will continue to
consider whether the feature in question is excavated or created in dry
land, the flow of water in the feature, and other factors. In addition,
some of the features that commenters asked the agencies to exclude may
already be covered by one or more of the exclusions the agencies are
including in this rule. For example, certain features that convey
stormwater may be excluded as ditches under this
[[Page 3105]]
rule. Similarly, some of the features that commenters mentioned, like
sheetflow, are not waters at all and would not be considered ``waters
of the United States.'' Even though certain features may not be
explicitly excluded, the agencies will not assert Clean Water Act
jurisdiction over features that do not satisfy the definition of
``waters of the United States'' articulated in paragraph (a) of this
rule.
Several commenters requested that the agencies explicitly exclude
groundwater in this rule's regulatory text while other commenters
requested that the agencies not exclude groundwater from jurisdiction
under this rule. In this rule, the agencies are not adding an exclusion
for groundwater to the regulatory text because groundwater is not
surface water and therefore does not fall within the possible scope of
``navigable waters.'' There is thus no need for a regulatory exclusion.
This position is longstanding and consistent with Supreme Court case
law. The agencies have never taken the position that groundwater falls
within the scope of ``navigable waters'' under the Clean Water Act.
See, e.g., 80 FR 37099-37100 (June 29, 2015) (explaining that the
agencies have never interpreted ``waters of the United States'' to
include groundwater); 85 FR 22278 (April 21, 2020) (explaining that the
agencies have never interpreted ``waters of the United States'' to
include groundwater). This position was recently confirmed by the U.S.
Supreme Court. Maui, 140 S. Ct. at 1472 (``The upshot is that Congress
was fully aware of the need to address groundwater pollution, but it
satisfied that need through a variety of state-specific controls.
Congress left general groundwater regulatory authority to the States;
its failure to include groundwater in the general EPA permitting
provision was deliberate.''). While groundwater itself is not
jurisdictional as ``waters of the United States,'' discharges of
pollutants to groundwater that reach a jurisdictional surface water
require a NPDES permit where the discharge through groundwater is the
``functional equivalent'' of a direct discharge from the point source
into navigable waters. Maui, 140 S. Ct. at 1468. Groundwater that is
not jurisdictional includes both shallow and deep groundwater, even
where such shallow subsurface water serves as a hydrologic connection
that is assessed in determining if another water is jurisdictional.
Groundwater drained through subsurface drainage systems also is not
jurisdictional. When groundwater emerges on the surface, for example
when it becomes baseflow in streams or joins spring fed ponds, it is no
longer considered to be groundwater under this rule.
While groundwater is not jurisdictional under the statute or this
rule, many States include groundwater in their definitions of ``waters
of the State'' and therefore may subject groundwater to State
regulation. Indeed, the Clean Water Act incentivizes State protection
of groundwater. For example, grants to States under Clean Water Act
section 319 may support management programs that include groundwater
quality protection activities as part of a comprehensive nonpoint
source pollution control program. 33 U.S.C. 1329(h)(5)(D). In addition,
groundwater quality is regulated and protected through several other
legal mechanisms, including the Safe Drinking Water Act, the Resource
Conservation and Recovery Act, and various Tribal, State, and local
laws.
Several commenters suggested that wetlands that develop entirely
within the confines of a non-jurisdictional feature should be
considered part of the excluded feature and not be considered ``waters
of the United States.'' The agencies agree with these commenters and
find that wetlands that develop entirely within the confines of an
excluded feature are not jurisdictional. This interpretation is
consistent with the agencies' longstanding approach to this issue and
with the agencies' rationale for excluding these features. This
approach also provides environmental benefits because it removes the
incentive for parties to clear vegetation from an excluded feature to
prevent that vegetation from developing into a wetland and becoming
jurisdictional, thus allowing vegetation within the confines of an
excluded feature to provide water quality benefits for the duration of
its existence.
However, a wetland may be located both within and outside the
boundaries of a non-jurisdictional feature or entirely outside the
boundaries of non-jurisdictional feature. In these circumstances, the
wetland will be evaluated under this rule's provisions for ``adjacent
wetlands'' and paragraph (a)(5) ``intrastate lakes and ponds, streams,
or wetlands'' and not considered as part of the non-jurisdictional
feature. It is important to note, however, that although some low
gradient depressional areas are colloquially referred to as ``swales,''
these areas do not meet the regulatory exclusion's criteria for swales
that are discrete topographic features ``characterized by low volume,
infrequent, or short duration flow.'' As such, the agencies would not
consider wetlands forming within low gradient depressional areas to be
``within the confines of a non-jurisdictional feature,'' and such
wetlands would be assessed to determine if they meet any of the
provisions of this rule.
While the agencies evaluate whether any exclusions apply when
making approved jurisdictional determinations for purposes of
efficiency, the person asserting that the water at issue is excluded
under the Clean Water Act or that the person's activities at issue in
the case are exempt under the Act, may have information that is
material to proving that the exclusion or exemption applies. There are
circumstances where, absent this information from the requestor, the
agency will be unable to determine that an exclusion applies. While the
requestor is not required to provide information regarding
applicability of the exclusions to the agencies during the
jurisdictional determination process, it is to their benefit to do so
because the person asserting that a water is excluded or that a
person's activities are exempt under the Clean Water Act bears the
burden of proving that the exclusion or exemption applies. See, e.g.,
United States v. Akers, 785 F.2d 814, 819 (9th Cir. 1986) (``Akers must
establish that his activities are exempt.''). Where the agencies, based
on the information that they have in the record, are unable to conclude
that an exclusion applies, the agencies will assess the water to see if
it meets the jurisdictional criteria of this rule under paragraphs
(a)(1) through (5).
a. Prior Converted Cropland
i. This Rule
This rule repromulgates the regulatory exclusion for prior
converted cropland first codified in 1993, which provided that prior
converted cropland is ``not `waters of the United States.''' This rule
restores longstanding and familiar practice under the pre-2015
regulatory regime. The rule maintains consistency and compatibility
between the agencies' implementation of the Clean Water Act and the
U.S. Department of Agriculture's (USDA) implementation of the Food
Security Act by providing that prior converted cropland under the Clean
Water Act encompasses areas designated by USDA as prior converted
cropland. Areas USDA has not so designated are not eligible for this
Clean Water Act exclusion. The Clean Water Act exclusion for prior
converted cropland only covers wetlands and does not exclude other
types of non-wetland aquatic resources (e.g., tributaries,
[[Page 3106]]
ponds, ditches) that are located within the prior converted cropland
area.
The exclusion would cease upon a change in use that renders the
area no longer available for the production of agricultural
commodities. For example, areas used for any agricultural purposes,
including agroforestry, as well as areas left idle, generally remain
available for the production of agricultural commodities. In response
to requests from commenters to increase the clarity of the exclusions
through the regulatory text, the agencies are noting in the regulations
that this exclusion encompasses areas that USDA has designated as prior
converted cropland, and that the exclusion will cease when the area has
changed use so that it is no longer available for the production of
agricultural commodities, such as when it has been filled for
development.
The agencies are also retaining the longstanding provision that
``for purposes of the Clean Water Act, the final authority regarding
Clean Water Act jurisdiction remains with EPA.'' This categorical
exclusion for prior converted cropland will simplify the process of
determining jurisdiction while providing certainty to farmers seeking
to conserve and protect land and waters pursuant to Federal law. It
reflects the agencies' determinations of the lines of jurisdiction
based on the case law, policy determinations, and the agencies'
experience and expertise.
ii. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The concept of prior converted cropland originates in the wetland
conservation provisions of the Food Security Act of 1985, 16 U.S.C.
3801 et seq. These provisions were intended to disincentivize the
conversion of wetlands to croplands. Under the Food Security Act
wetland conservation provisions, farmers who convert wetlands to make
possible the production of an agricultural commodity crop may lose
eligibility for certain USDA program benefits, unless an exemption
applies. If a farmer had converted wetlands to cropland prior to
December 23, 1985, however, then the land is considered prior converted
cropland and the farmer does not lose eligibility for benefits if the
area is further manipulated.\114\ USDA defines a prior converted
cropland for Food Security Act purposes in its regulations as
``converted wetland where the conversion occurred prior to December 23,
1985, an agricultural commodity had been produced at least once before
December 23, 1985, and as of December 23, 1985, the converted wetland
did not support woody vegetation and did not meet the hydrologic
criteria for farmed wetland.'' 7 CFR 12.2. USDA defines an agricultural
commodity, in turn, as ``any crop planted and produced by annual
tilling of the soil, including tilling by one-trip planters, or
sugarcane.'' Id. at 12.2; see also 16 U.S.C. 3801(a)(1).
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\114\ A farmer that ``commenced conversion'' of a wetland prior
to December 23, 1985, could also be eligible for a prior converted
cropland designation, subject to certain limitations. 7 CFR 12.2,
12.5(b)(2).
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In 1993, EPA and the Corps codified an exclusion for prior
converted cropland from the definition of ``waters of the United
States'' regulated pursuant to the Clean Water Act. The exclusion
stated, ``[w]aters 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.'' 58 FR 45008, 45036 (August 25, 1993);
33 CFR 328.3(a)(8) (1994); 40 CFR 230.3(s) (1994). The 1993 preamble
stated that EPA and the Corps would interpret the prior converted
cropland exclusion consistent with the definition in the National Food
Security Act Manual (NFSAM) published by the USDA Soil Conservation
Service, now known as USDA's Natural Resource Conservation Service
(NRCS). 58 FR 45031 (August 25, 1993). It cited the NFSAM definition of
prior converted cropland as ``areas that, prior to December 23, 1985,
were drained or otherwise manipulated for the purpose, or having the
effect, of making production of a commodity crop possible. [Prior
converted] cropland is inundated for no more than 14 consecutive days
during the growing season and excludes pothole or playa wetlands.'' Id.
The agencies chose not to codify USDA's definition of prior converted
cropland, ensuring that they would retain flexibility to accommodate
changes USDA might make. Id. at 45033.
The purpose of the exclusion, as EPA and the Corps explained in the
1993 preamble, was to ``codify existing policy,'' as the agencies had
not been implementing the Clean Water Act to regulate prior converted
cropland, and to ``help achieve consistency among various federal
programs affecting wetlands.'' Id. The 1993 preamble further stated
that excluding prior converted cropland from ``waters of the United
States'' was consistent with protecting aquatic resources because
``[prior converted cropland] has been significantly modified so that it
no longer exhibits its natural hydrology or vegetation. . . . [Prior
converted] cropland has therefore been significantly degraded through
human activity and, for this reason, such areas are not treated as
wetlands under the Food Security Act.'' Id. at 45032. The agencies
explained that ``in light of the degraded nature of these areas, we do
not believe that they should be treated as wetlands for the purposes of
the CWA.'' Id.
The 1993 preamble stated that, consistent with the NFSAM, an area
would lose its status as prior converted cropland if the cropland is
``abandoned,'' meaning that crop production ceases and the area reverts
to a wetland state. Id. at 45034. Specifically, the 1993 preamble
stated that prior converted cropland that now meets wetland criteria
will be considered abandoned unless ``once in every five years it has
been used for the production of an agricultural commodity, or the area
has been used and will continue to be used for the production of an
agricultural commodity in a commonly used rotation with aquaculture,
grasses, legumes, or pasture production.'' Id. at 45034.
Three years later, the Federal Agriculture Improvement and Reform
Act of 1996 amended the Food Security Act and clarified that this
``abandonment'' principle did not apply to prior converted cropland.
See Public Law 104-127, 110 Stat. 988-89 (1996). Additional amendments
clarified that any certification by the Secretary, including those of
prior converted cropland, remain valid and in effect as long as it
continues to be available for agricultural purposes, a new approach
referred to as ``change in use.'' H.R. Conf. Rep. No. 104-494, at 380
(1996). EPA and the Corps did not address the 1996 amendments in
rulemaking. In 2005, the Corps and NRCS issued a joint Memorandum to
the Field in an effort to again align the Clean Water Act section 404
program with the Food Security Act by adopting the principle that a
wetland can lose prior converted cropland status following a ``change
in use.'' The Memorandum stated, ``[a] certified [prior converted]
determination made by NRCS remains valid as long as the area is devoted
to an agricultural use. If the land changes to a non-agricultural use,
the [prior converted] determination is no longer applicable and a new
wetland determination is required for CWA purposes.'' It defined
``agricultural use'' as ``open land planted to an agricultural crop,
used for the production of food or fiber, used for haying or grazing,
left idle per USDA
[[Page 3107]]
programs, or diverted from crop production to an approved cultural
practice that prevents erosion or other degradation.'' The agencies
rescinded the 2005 Memorandum on January 28, 2021, following
publication of the 2020 NWPR.
One district court set aside the Corps' adoption of ``change in
use'' on the grounds that it was a substantive change in Clean Water
Act implementation that the agencies had not issued through notice and
comment rulemaking. New Hope Power Co. v. U.S. Army Corps of Eng'rs,
746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010). Following New Hope Power,
the agencies did not implement ``change in use'' in areas subject to
the court's jurisdiction.
The 2015 Clean Water Rule repromulgated the exclusion for prior
converted cropland without any changes from the 1993 regulations, as
did the 2019 Repeal Rule. The 2020 NWPR also repromulgated the
exclusion but defined prior converted cropland for purposes of the
Clean Water Act for the first time since 1993. The 2020 NWPR provided
that an area is prior converted cropland if ``prior to December 23,
1985, [it] was drained or otherwise manipulated for the purpose, or
having the effect, of making production of an agricultural product
possible.'' 85 FR 22339 (April 21, 2020); 33 CFR 328.3(c)(9). The 2020
NWPR's term ``agricultural product'' potentially extended prior
converted cropland status far beyond those areas USDA considers prior
converted cropland for purposes of the Food Security Act. Specifically,
USDA's regulation defining prior converted cropland refers to
conversion that makes possible production of an ``agricultural
commodity,'' a defined term, while the 2020 NWPR defined prior
converted cropland to encompass any area used to produce an
``agricultural product,'' a term not used in the regulations that
introduced ambiguity and further distinguished the Clean Water Act's
prior converted cropland exclusion from USDA's approach. Compare 7 CFR
12.2 with 33 CFR 328.3(c)(9). The absence of a definition in the 2020
NWPR for the term ``agricultural product'' or any explanation as to how
it may differ from an ``agricultural commodity'' was unclear and
undermined the original purpose of the exclusion, which was to help
achieve consistency among Federal programs affecting wetlands. See 58
FR 45031 (August 25, 1993).
Furthermore, the 2020 NWPR's approach to prior converted cropland
substantially reduced the likelihood that prior converted cropland
would lose its excluded status because it provided that an area would
remain prior converted cropland for purposes of the Clean Water Act
unless the area is abandoned and reverts to wetlands, and defined
abandonment to occur when prior converted cropland ``is not used for,
or in support of, agricultural purposes at least once in the
immediately preceding five years.'' 85 FR 22320 (April 21, 2020). The
2020 NWPR then presented a broad interpretation of ``agricultural
purposes,'' including but not limited to crop production, haying,
grazing, idling land for conservation uses (such as habitat; pollinator
and wildlife management; and water storage, supply, and flood
management); irrigation tailwater storage; crawfish farming; cranberry
bogs; nutrient retention; and idling land for soil recovery following
natural disasters such as hurricanes and drought. Id. at 22321. Under
the 2020 NWPR, prior converted cropland maintained its excluded status
if it was used at least once in the five years preceding a
jurisdictional determination for any of these agricultural purposes.
These wetlands could then have been filled and paved over during that
five-year term without triggering any Clean Water Act regulatory
protection.
This rule restores the exclusion's original purpose of maintaining
consistency among Federal programs addressing wetlands while furthering
the objective of the Clean Water Act. 58 FR 45031-32 (August 25, 1993).
Some commenters asserted that prior converted cropland should not be
categorically excluded because there is no legal or scientific basis to
exclude areas from the protections of the Clean Water Act that maintain
some wetland characteristics or could be restored to be wetlands. The
agencies disagree. As the agencies explained in 1993, ``effective
implementation of the wetlands provisions of the Act without unduly
confusing the public and regulated community is vital to the
environmental protection goals of the Clean Water Act.'' Id. at 45031.
The 1993 preamble emphasized that statutes other than the Clean Water
Act have become essential to the Federal Government's effort to protect
wetlands. The wetlands protection effort will be most effective if the
agencies administering these other statutes have, to the extent
possible, ``consistent and compatible approaches to insuring wetlands
protection.'' Id. at 45031-32. This rule's return to implementing
USDA's approach to prior converted cropland will help enhance the
consistency and compatibility of the Federal Government's multi-pronged
wetlands protection efforts, thereby enhancing their effectiveness.
Some commenters asked that the agencies codify a particular
definition of prior converted cropland; some recommended codifying
USDA's definition and others advocated codifying the definition in the
2020 NWPR. The agencies instead decided to clarify that the exclusion
encompasses prior converted cropland designated by USDA, and no
additional areas. This clarification provides certainty and
transparency as well as flexibility. The agencies chose not to codify
the 2020 NWPR's definition because that interpretation does not carry
out the original purpose of the exclusion, which is to ensure
consistency among Federal wetland protection programs while protecting
the integrity of the nation's waters.
iii. Implementation
This rule will implement the prior converted cropland exclusion so
that it encompasses all areas designated by USDA, and no additional
areas. USDA interprets prior converted cropland to be a ``converted
wetland where the conversion occurred prior to December 23, 1985, an
agricultural commodity had been produced at least once before December
23, 1985, and as of December 23, 1985, the converted wetland did not
support woody vegetation and did not meet the hydrologic criteria for
farmed wetland.'' 7 CFR 12.2. The 2020 NWPR introduced ambiguity by
saying that prior converted cropland applies to certain areas used for
``agricultural products,'' as opposed to ``agricultural commodities.''
In addition, the 2020 NWPR was unclear regarding the extent to which
the agencies should designate areas not subject to a USDA designation
as prior converted cropland under the Clean Water Act. The agencies are
restoring clarity and consistency with USDA's approach by implementing
the exclusion as only applying to areas USDA has designated, which
include areas where commodity crops were produced prior to December 23,
1985, and that meet the other applicable criteria. This is consistent
with the agencies' longstanding approach to the exclusion. See 58 FR
45033 (August 25, 1993) (``[R]ecognizing [NRCS]'s expertise in making
these [prior converted] cropland determinations, we will continue to
rely generally on determinations made by [NRCS].''). USDA defines
agricultural commodity crops to mean ``any crop planted and produced by
annual tilling of the soil, including tilling by one-trip planters, or
sugarcane.'' 7 CFR 12.2.
The agencies have also decided to enhance consistency between prior
converted cropland under the Food
[[Page 3108]]
Security Act and under the Clean Water Act, without undermining the
goals of the Clean Water Act, by implementing the exclusion as ceasing
upon the area's ``change in use.'' The agencies view a ``change in
use'' as an action that would make the prior converted cropland no
longer available for the production of an agricultural commodity. In
response to requests from commenters to clarify the scope of exclusions
in the regulatory text, the regulation specifies that the exclusion
will cease upon change in use, and that a change in use means that the
prior converted cropland is no longer available for the production of
an agricultural commodity.
Consistent with USDA's interpretation, a ``change in use'' would
not occur ``[a]s long as the area is devoted to the use and management
of the land for production of food, fiber, or horticultural crops.'' 7
CFR 12.30(c)(6). The agencies do not interpret changes in use to
include discharges associated with agricultural uses identified in the
Corps' and NRCS's 2005 Memorandum to the Field, such as planting of
agricultural crops, production of food or fiber, haying or grazing,
idling consistent with USDA programs, or diversion from crop production
for purposes of preventing erosion or other degradation, as these uses
keep the land available for future production of agricultural
commodities. Similarly, an area may retain its prior converted cropland
status if it is used for any of the agricultural purposes identified in
the 2020 NWPR preamble, which ``includ[e] but [are] not limited to
idling land for conservation uses (e.g., habitat; pollinator and
wildlife management; and water storage, supply, and flood management);
irrigation tailwater storage; crawfish farming; cranberry bogs;
nutrient retention; and idling land for soil recovery following natural
disasters like hurricanes and drought,'' as well as ``crop production,
haying, and grazing,'' so long as the area remains available for the
production of agricultural commodities. See 85 FR 22321 (April 21,
2020). Consistent with USDA practice, an area has not experienced a
change in use if, for example, it transitions into a long-term rotation
to agroforestry or perennial crops, such as vineyards or orchards, or
if it lies idle and the landowner passively preserves the area for
wildlife use. Generally speaking, idling the land retains its
availability for the production of an agricultural commodity.
Implementing ``change in use'' consistent with USDA's implementation of
the Food Security Act fulfills the exclusion's purpose of promoting
consistency among Federal programs affecting wetlands. See 58 FR 45031
(August 25, 1993). Under the Food Security Act, a wetland certification
made by the Secretary is only valid so long as the area is devoted to
an agricultural use. 16 U.S.C. 3822(a)(4). Because the wetland
conservation provisions of the Food Security Act only apply to the
production of agricultural commodities, a prior converted cropland
designation becomes moot for USDA purposes once land is removed from
agricultural use.
A ``change in use'' is a proposed or planned modification of prior
converted cropland for filling and development, so that the area would
no longer be available for commodity crop production after development.
For example, if prior converted cropland is left idle for several years
and reverts to wetland, and the property is then sold for conversion to
a residential development, the discharge of dredged or fill material
from development would require prior authorization under Clean Water
Act section 404. Plans or proposals for development may include
applications for Clean Water Act section 404 permits or other Federal,
State, or local permits for residential, commercial, or industrial
development; energy infrastructure; mining; or other non-agricultural
uses. On the one hand, the agencies recognize that plans and proposals
do not themselves change the characteristics of a wetland, and that
some do not come to fruition. On the other hand, the agencies would
like to provide certainty and fair notice to landowners and other
persons about the status of the areas under their control while they
are in the planning stage. Interpreting a change in use as only
occurring when heavy machinery begins actually dredging and filling a
wetland, and potentially violating the Clean Water Act, would not
provide the certainty and fair notice necessary to appropriately plan
development. To address these considerations, the agencies will
interpret the prior converted cropland designation to continue to apply
to a farmer's use of prior converted cropland for agricultural purposes
even after development plans or proposals have been developed, and even
after land has been sold. However, the prior converted cropland
designation would not be available to the developer for the same parcel
once proposals or plans for development have begun, even prior to a
discharge occurring in the wetland.
Some commenters stated that, for example, building houses in an
area should not constitute a ``change in use,'' because the houses
could potentially be removed and the area returned to commodity crop
production. The agencies disagree. A ``change in use'' includes areas
that have undergone soil disturbance such that substantial effort, such
as the removal of concrete or other permanent structures, would be
required to enable the production of agricultural commodities. The
agencies interpret availability for commodity crop production to mean
that it is reasonably conceivable that the area in its current
condition could be returned to crop production. Areas that will be
developed for residential, commercial, or industrial use; energy
infrastructure; mining; or other non-farming related activities will
not meet this standard of availability for commodity crop production.
The agencies will not implement the exclusion using the
``abandonment'' approach, which the 2020 NWPR implemented instead of
``change in use,'' as ``abandonment'' is not consistent with USDA's
approach or with the purposes of the Clean Water Act. Generally
speaking, under the 2020 NWPR's approach to abandonment, an area would
only regain jurisdictional status if the area has not been used for
agricultural purposes at least once in every five years and the area
reverts to a wetland that meets the definition of ``waters of the
United States.'' For example, under abandonment, if prior converted
cropland is used for an agricultural purpose, such as grazing, two
years prior to being sold for conversion to a residential development,
discharges of dredged or fill material from the construction of the
residential development into the wetlands during the three years
remaining in the five-year abandonment time frame would not require
authorization under Clean Water Act section 404, even though those
discharges have nothing to do with farming. In contrast, under the
``change in use'' approach that the agencies will implement under this
rule, the reverted wetland area would regain jurisdictional status if
it meets the definition of ``waters of the United States'' and is
subject to a ``change in use,'' meaning that it is no longer available
for production of an agricultural commodity.
The abandonment approach implemented in the 2020 NWPR presents
three key concerns. First, it incentivizes disturbance of the area by a
farmer once every five years to retain the exclusion. Second, it
creates a substantial loophole in Clean Water Act section 404
protections by allowing any form of development of otherwise
jurisdictional wetlands without
[[Page 3109]]
authorization, so long as it occurs within five years of use of the
area for agricultural purposes. Third, it undermines governmental
coordination and efficiency because it is not consistent with USDA's
approach to prior converted cropland.
A number of commenters urged the agencies to maintain the 2020
NWPR's approach to implementing prior converted cropland, emphasizing
that on a national scale, developing wetlands, such as for purposes of
mining or other industrial uses, could provide billions of dollars to
farmers. The agencies have concluded that this potential financial
benefit to farmers does not effectuate the original purpose of the
exclusion, which was to promote consistency among Federal clean water
protection programs in order to help restore and maintain the nation's
waters. Moreover, the exclusion was originally intended to allow
farmers to farm their land. The financial benefit the commenters cite
comes from selling farmland to be developed. Further facilitating these
sales does nothing to support farmers who seek to continue to farm and
could even undermine their incentives to do so. By contrast, the
agencies' approach in this rule strikes an appropriate balance between
effectuating the goals of the Clean Water Act and the purposes of the
exclusion. It aligns implementation of the Food Security Act and the
Clean Water Act as much as possible while providing farmers with
clarity that routine farming and related activity conducted in prior
converted croplands will not require Clean Water Act authorization.
The agencies' approach to prior converted cropland under this rule
also imposes less of a burden on farmers than the approach under the
2020 NWPR. Under the 2020 NWPR, an area was not considered abandoned so
long as it is used for or in support of agricultural purposes at least
once in the immediately preceding five years. The 2020 NWPR's preamble
explained that prior converted cropland would not be considered
abandoned if it were idled or lay fallow ``for conservation or
agricultural purposes.'' 85 FR 22320 (April 21, 2020). By contrast,
under ``change in use,'' the land will not lose its prior converted
cropland status so long as it remains available for crop production,
regardless of whether the purpose for idling the land was related to
conservation or agricultural purposes. In other words, under this rule,
a farmer could maintain prior converted cropland status without needing
to demonstrate that the area was used for in support of agricultural
purposes at least once in the immediately preceding five years or had
been idled for conservation or agricultural purposes.
The exclusion for prior converted cropland does not apply to areas
designated by USDA as meeting other Food Security Act exemptions,
including exemptions for farmed wetlands, or areas that meet the USDA
definition of wetlands and do not have a valid prior converted cropland
designation. This rule would maintain the provision promulgated in 1993
that EPA retains final authority to determine whether an area is
subject to the requirements of the Clean Water Act. The presence of a
jurisdictional wetland, or any jurisdictional water in an agricultural
setting, in no way affects the availability of exemptions for
discharges associated with many farming activities pursuant to Clean
Water Act section 404(f).
b. Waste Treatment System
i. This Rule
This rule in paragraph (b)(1) retains the agencies' longstanding
waste treatment system exclusion, with no changes from the proposed
rule. Specifically, this rule provides that ``[w]aste treatment
systems, including treatment ponds or lagoons, designed to meet the
requirements of the Clean Water Act'' are not ``waters of the United
States.'' This language is the same as the agencies' 1986 regulation's
waste treatment system exclusion,\115\ with a ministerial change to
delete the exclusion's cross-reference to a definition of ``cooling
ponds'' that no longer exists in the Code of Federal Regulations, and
the addition of a comma that clarifies the agencies' longstanding
implementation of the exclusion as applying only to systems that are
designed to meet the requirements of the Act.
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\115\ 51 FR 41250 (November 13, 1986); 53 FR 20764 (June 6,
1988).
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ii. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
EPA first promulgated the waste treatment system exclusion in a
1979 notice-and-comment rulemaking revising the definition of ``waters
of the United States'' in the agency's NPDES regulations. 44 FR 32854
(June 7, 1979). A ``frequently encountered comment'' was that ``waste
treatment lagoons or other waste treatment systems should not be
considered waters of the United States.'' Id. at 32858. EPA agreed,
except as to cooling ponds that otherwise meet the criteria for
``waters of the United States.'' Id. The 1979 revised definition of
``waters of the United States'' thus provided that ``waste treatment
systems (other than cooling ponds meeting the criteria of this
paragraph) are not waters of the United States.'' Id. at 32901 (40 CFR
122.3(t) (1979)).
The following year, EPA revised the exclusion, but again only in
its NPDES regulations, to clarify its application to treatment ponds
and lagoons and to specify the type of cooling ponds that fall outside
the scope of the exclusion. 45 FR 33290, 33298 (May 19, 1980). EPA also
decided to revise this version of the exclusion to clarify that
``treatment systems created in [waters of the United States] or from
their impoundment remain waters of the United States,'' while
``[m]anmade waste treatment systems are not waters of the United
States.'' Id. The revised exclusion read: ``[w]aste treatment systems,
including treatment ponds or lagoons designed to meet the requirements
of CWA (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.'' The provision further provided that the exclusion ``applies
only to manmade bodies of water which neither were originally created
in waters of the United States (such as a disposal area in wetlands)
nor resulted from the impoundment of waters of the United States.'' 45
FR 33424 (May 19, 1980) (40 CFR 122.3).
Two months following this revision, EPA took action to ``suspend[ ]
a portion'' of the waste treatment system exclusion in its NPDES
regulations in response to concerns raised in petitions for review of
the revised definition of ``waters of the United States.'' 45 FR 48620
(July 21, 1980). EPA explained that industry petitioners objected to
limiting the waste treatment system exclusion to manmade features,
arguing that the revised exclusion ``would require them to obtain
permits for discharges into existing waste treatment systems, such as
power plant ash ponds, which had been in existence for many years.''
Id. at 48620. The petitioners argued that ``[i]n many cases, . . . EPA
had issued permits for discharges from, not into, these systems.'' Id.
Agreeing that the regulation ``may be overly broad'' and ``should be
carefully reexamined,'' EPA announced that it was ``suspending [the]
effectiveness'' of the sentence limiting the waste treatment system
exclusion to manmade bodies of water. Id. EPA then stated that it
``intend[ed] promptly to develop a revised definition and to publish it
as a proposed rule for public comment,'' after which the agency would
decide whether to ``amend the rule, or terminate the suspension.'' Id.
[[Page 3110]]
In 1983, EPA republished the waste treatment system exclusion in
its NPDES regulations with a note explaining that the agency's July
1980 action had ``suspended until further notice'' the sentence
limiting the exclusion to manmade bodies of water, and that the 1983
action ``continue[d] that suspension.'' 48 FR 14146, 14157 (April 1,
1983) (40 CFR 122.2) (1984). EPA subsequently omitted the exclusion's
suspended sentence altogether in revising the definition of ``waters of
the United States'' in other parts of the Code of Federal Regulations.
See, e.g., 53 FR 20764, 20774 (June 6, 1988) (revising EPA's section
404 program definitions at 40 CFR 232.2). Separately, the Corps
published an updated definition of ``waters of the United States'' in
1986. This definition contained the waste treatment system exclusion
but likewise did not include the exclusion's suspended sentence:
``Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of CWA (other than cooling ponds as
defined in 40 CFR 123.11(m) which also meet the criteria of this
definition) are not waters of the United States.'' 51 FR 41250
(November 13, 1986); 33 CFR 328.3 (1987).
Later revisions to the definition of cooling ponds rendered the
exclusion's cross-reference to 40 CFR 123.11(m) outdated. See 47 FR
52290, 52291, 52305 (November 19, 1982) (revising regulations related
to cooling waste streams and deleting definition of cooling ponds). In
this rule, the agencies have deleted this obsolete cross-reference,
consistent with other recent rulemakings addressing the definition of
``waters of the United States.'' \116\
---------------------------------------------------------------------------
\116\ 85 FR 22250, 22325 (April 21, 2020) (``One ministerial
change [to the waste treatment system exclusion] is the deletion of
a cross-reference to a definition of `cooling ponds' that no longer
exists in the Code of Federal Regulations.''); 80 FR 37054, 37097
(June 29, 2015) (``One ministerial change [to the waste treatment
system exclusion] is the deletion of a cross-reference in the
current language to an EPA regulation that no longer exists.'').
---------------------------------------------------------------------------
This rule also deletes the suspended sentence in EPA's NPDES
regulations limiting application of the waste treatment system
exclusion to manmade bodies of water. The suspended sentence, which
since 1980 has only ever appeared in the version of the waste treatment
system exclusion contained in EPA's NPDES regulations (40 CFR 122.2),
provides: ``This exclusion applies only to manmade bodies of water
which neither were originally created in waters of the United States
(such as disposal area in wetlands) nor resulted from the impoundment
of waters of the United States.'' Because EPA suspended this sentence
limiting application of the exclusion in 1980, EPA has not limited
application of the waste treatment system exclusion to manmade bodies
of water for over four decades. Removing the suspended sentence in this
rule thus aligns with EPA's decades-long practice implementing the
exclusion--in addition to ensuring consistency with the text of other
versions of the exclusion found in the agencies' regulations (both past
and present)--and maintains the 2020 NWPR's deletion of the suspended
sentence as well.
Some commenters expressed support for deleting the suspended
sentence, stating that doing so in this rule would be consistent with
the agencies' longstanding approach to implementing the waste treatment
system exclusion. Other commenters asserted that the agencies should
limit application of the exclusion to human-made features, with some
expressing concern that the agencies have not provided a meaningful
opportunity to comment on this aspect of the rulemaking. The agencies
agree that removing the suspended sentence--which has not been in
effect for over 40 years--ensures that this rule will continue the
agencies' longstanding approach to excluding waste treatment systems,
while providing additional clarity. Indeed, for decades, both agencies
have not limited application of the exclusion to manmade bodies of
water. The agencies disagree that they did not satisfy notice-and-
comment requirements with respect to this aspect of the rulemaking. The
preamble to the proposed rule explained that the agencies were
considering deleting the suspended sentence and explicitly solicited
comment on that approach. See 86 FR 69427.
Multiple commenters expressed concern over the agencies' proposed
addition of a comma after the word ``lagoons'' in the text of the
exclusion, which provides: ``Waste treatment systems, including
treatment ponds or lagoons, designed to meet the requirements of the
Clean Water Act are not waters of the United States.'' In particular,
many of these commenters asserted that the new comma would narrow the
exclusion such that a system constructed prior to the enactment of the
Clean Water Act could not qualify for the exclusion because it was not
``designed'' to meet the requirements of the Act. As explained in the
preamble to the proposed rule, the purpose of adding a comma after
``lagoons'' is to clarify that the exclusion is available only to
systems meeting the requirements of the Clean Water Act, thereby
continuing the agencies' longstanding approach to implementing the
exclusion. Under this approach, a waste treatment system constructed
prior to the 1972 Clean Water Act amendments is eligible for the
exclusion so long as the system is in compliance with currently
applicable Clean Water Act requirements, such as treating water such
that discharges, if any, from the system meet the Act's requirements. A
waste treatment system constructed after passage of the 1972 Clean
Water Act amendments is similarly eligible for the exclusion if it was
constructed and is operating in a manner that is consistent with the
Act, such as by treating water so that discharges, if any, from the
system meet the Act's requirements, and it was constructed in
compliance with the Act's requirements (e.g., where the system was
lawfully created pursuant to a section 404 permit). A waste treatment
system that was created after the 1972 amendments but was constructed
in violation of the Clean Water Act--for example, a system constructed
without a section 404 permit when one was necessary--is not eligible
for the exclusion, regardless of whether the system is currently
treating discharges to meet the Act's requirements.
Finally, several commenters asserted that the waste treatment
system exclusion violates the Clean Water Act. The agencies disagree
that the waste treatment system exclusion is contrary to the Clean
Water Act. Waste treatment systems have been excluded from the
definition of ``waters of the United States'' since 1979, and the waste
treatment system exclusion is a reasonable and lawful exercise of the
agencies' authority to determine the scope of ``waters of the United
States.'' See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d
177, 212 (4th Cir. 2009) (upholding the waste treatment system
exclusion as a lawful exercise of the agencies' ``authority to
determine which waters are covered by the CWA'').
iii. Implementation
Consistent with the 1986 regulations, this rule provides that a
waste treatment system must be ``designed to meet the requirements of
the Clean Water Act.'' A waste treatment system may be ``designed to
meet the requirements of the Clean Water Act'' where, for example, it
is constructed pursuant to a Clean Water Act section 404 permit, Ohio
Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177, 214-15 (4th
Cir. 2009), or where it is ``incorporated in an NPDES permit as part of
a treatment system,'' N. Cal. River Watch v. City of
[[Page 3111]]
Healdsburg, 496 F.3d 993, 1001 (9th Cir. 2007).
To be clear, the exclusion does not free a discharger from the need
to comply with the Clean Water Act, including any effluent limitations
guidelines and new source performance standards requirements applicable
to the waste treatment system, and requirements applicable to the
pollutants discharged from a waste treatment system to ``waters of the
United States''; only discharges into the waste treatment system are
excluded from the Act's requirements. As such, any entity would need to
comply with the Clean Water Act by obtaining a section 404 permit for a
new waste treatment system that will be constructed in ``waters of the
United States,'' and a section 402 permit if there are discharges of
pollutants from a waste treatment system into ``waters of the United
States.'' Under the section 402 permit, discharges from the waste
treatment system would need to meet the requirements of applicable
effluent limitations guidelines and new source performance standards,
as well as any required water quality-based effluent limitations.
Further, consistent with the agencies' general practice implementing
the exclusion, under this rule, a waste treatment system that ceases to
serve the treatment function for which it was designed would not
continue to qualify for the exclusion and could be deemed
jurisdictional if it otherwise meets this rule's definition of ``waters
of the United States.''
Moreover, as explained in section IV.C.7 of this preamble, the
exclusions in this rule--including the waste treatment system
exclusion--do not apply to features that, at the time they are
assessed, are jurisdictional under paragraph (a)(1). Note, however,
that an excluded waste treatment system--such as a cooling pond--may
over time take on the characteristics of a jurisdictional water, such
as a paragraph (a)(1) traditional navigable water.\117\ In this
scenario, the exclusion continues to apply and the waste treatment
system does not become a jurisdictional water under paragraph (a)(1) or
any other provision of the rule, unless or until the system ceases to
serve the treatment function for which it was designed (as discussed in
the immediately preceding paragraph).
---------------------------------------------------------------------------
\117\ This situation may arise where, for example, a manmade
cooling pond constructed in uplands takes on the characteristics of
a traditional navigable water.
---------------------------------------------------------------------------
With respect to the scope of the waste treatment system exclusion
in this rule, the agencies do not interpret the exclusion to allow any
party to dispose of waste or discharge pollutants into the excluded
feature without authorization. Rather, for waters that would otherwise
meet this rule's definition of ``waters of the United States,'' the
agencies' intent, consistent with prior application of the NPDES
program, is that the waste treatment system exclusion is generally
available only for discharges associated with the treatment function
for which the system was designed. Relatedly, consistent with the
agencies' longstanding practice, a waste treatment system does not
itself sever upstream waters from Clean Water Act jurisdiction.\118\ In
other words, if those upstream waters were ``waters of the United
States,'' they remain ``waters of the United States'' and discharges to
them thus may require a section 402 or 404 permit.
---------------------------------------------------------------------------
\118\ See, e.g., Memorandum of Non-Concurrence with
Jurisdictional Determinations POA-1992-574 & POA-1992-574-Z (October
25, 2007), available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll5/id/1454 (``EPA and the Corps agree
that the agencies' designation of a portion of waters of the U.S. as
part of a waste treatment system does not itself alter CWA
jurisdiction over any waters remaining upstream of such system.'').
---------------------------------------------------------------------------
c. Other Exclusions
In this rule, the agencies are codifying exclusions for several
features that they generally considered non-jurisdictional under the
pre-2015 regulatory regime and the 2019 Repeal Rule and expressly
excluded by regulation in the 2015 Clean Water Rule and 2020 NWPR.
These features are: ditches (including roadside ditches) excavated
wholly in and draining only dry land and that do not carry a relatively
permanent flow of water; artificially irrigated areas that would revert
to dry land if the irrigation ceased; artificial lakes or ponds created
by excavating or diking dry land to collect and retain water and which
are used exclusively for such purposes as stock watering, irrigation,
settling basins, or rice growing; artificial reflecting or swimming
pools or other small ornamental bodies of water created by excavating
or diking dry land to retain water for primarily aesthetic reasons;
waterfilled depressions created in dry land incidental to construction
activity and pits excavated in dry land for the purpose of obtaining
fill, sand, or gravel unless and until the construction or excavation
operation is abandoned and the resulting body of water meets the
definition of waters of the United States; and swales and erosional
features (e.g., gullies, small washes) characterized by low volume,
infrequent, or short duration flow.
Under the pre-2015 regulatory regime, the features listed above
were generally not considered ``waters of the United States'' even
though they were not explicitly excluded by regulation. The preamble to
the 1986 regulations explained that the agencies ``generally do not
consider [these] waters to be `Waters of the United States.' '' 51 FR
41217 (November 13, 1986). The preamble further stated that ``the Corps
reserves the right on a case-by-case basis to determine that a
particular waterbody within these categories of waters is a water of
the United States. EPA also has the right to determine on a case-by-
case basis if any of these waters are `waters of the United States.'''
Id. The Rapanos Guidance expanded on the list of features that were
generally considered non-jurisdictional. Rapanos Guidance at 11-12. In
practice, the agencies did not generally assert jurisdiction over such
waters. To provide clarity on which waters are jurisdictional and which
are not, and to enhance certainty for the public, the agencies are
codifying exclusions for these features in the regulatory text and
removing the possibility that these waters could be found
jurisdictional on a case-by-case basis. Because the agencies did not
generally assert jurisdiction over these features in practice,
codifying exclusions for these features is not a substantial change
from the pre-2015 regulatory regime or the 2019 Repeal Rule. Many
commenters supported codifying exclusions for these features. This
approach is generally consistent with the 2015 Clean Water Rule and
2020 NWPR and will be familiar to the public.
In the final regulatory text for these exclusions, the agencies are
consistently using the term ``dry land,'' rather than ``upland.'' The
proposed rule and the pre-2015 regulatory regime used the phrases ``dry
land'' and ``upland'' interchangeably in their description of features
that the agencies considered to be generally non-jurisdictional. To
provide additional clarity, the agencies are consistently using the
term ``dry land'' throughout the regulatory text.\119\ The term ``dry
land'' refers to areas of the geographic landscape that do not include
waters such as streams, rivers, wetlands, lakes, ponds, tidal waters,
ditches, and the like. It is important to note that jurisdictional and
non-jurisdictional waters are not considered ``dry land'' just because
they lack water
[[Page 3112]]
at a given time. Similarly, an area may remain ``dry land'' even if it
is wet after a precipitation event.
---------------------------------------------------------------------------
\119\ While the agencies consistently use the phrase ``dry
land'' in the regulatory text to provide clarity to the public, this
preamble and documents supporting this rule use the phrases ``dry
land'' and ``upland'' interchangeably.
---------------------------------------------------------------------------
The agencies recognize that for certain longstanding exclusions,
the 2020 NWPR replaced the word ``upland'' in the regulatory text with
the word ``upland'' and a reference to non-jurisdictional features. For
example, the 2020 NWPR regulatory text excluded ``[w]ater-filled
depressions constructed or excavated in upland or in non-jurisdictional
waters.'' 85 FR 22338 (April 21, 2020) (emphasis added). This approach
was a deviation from longstanding practice as both the pre-2015
regulatory regime and the 2015 Clean Water Rule limited the exclusions
to features constructed in upland. The distinction between ``upland''
or ``dry land'' and ``non-jurisdictional features'' is important
because ``non-jurisdictional features'' can include features like
certain ephemeral streams and wetlands that are not jurisdictional but
are not ``dry.'' This change in the 2020 NWPR resulted in an expansion
of the exclusion as compared to the pre-2015 regulatory regime. The
agencies disagree with the approach in the 2020 NWPR. It deviated from
the longstanding concept of limiting certain exclusions to instances
where features are constructed in dry land. Limiting the exclusions in
this rule to features constructed in dry land more appropriately
captures the agencies' intent to exclude features associated with areas
that are commonly understood as ``dry.'' Limiting the exclusions in
this way also puts reasonable bounds on these categorical exclusions
and ensures that features constructed in land that is not dry are
examined more closely to determine whether they are jurisdictional.
i. Ditches
(1) This Rule
In this rule, the agencies are codifying an exclusion for ditches
(including roadside ditches) excavated wholly in and draining only dry
lands and that do not carry a relatively permanent flow of water.
Excluding these ditches from jurisdiction is consistent with the scope
of ditches that were generally non-jurisdictional under the pre-2015
regulatory regime and the 2019 Repeal Rule. The preamble to the 1986
regulations explains that ``[n]on-tidal drainage and irrigation ditches
excavated on dry land'' are generally not considered ``waters of the
United States.'' 51 FR 41217 (November 13, 1986). The agencies shifted
this approach slightly in the Rapanos Guidance and explained that
``ditches (including roadside ditches) excavated wholly in and draining
only uplands and that do not carry a relatively permanent flow of water
are generally not waters of the United States.'' Rapanos Guidance at
11-12. Excluding certain ditches from jurisdiction is also consistent
with the 2015 Clean Water Rule and the 2020 NWPR. While these rules
took different approaches to determining which ditches should be
excluded, due in part to different overall constructs for the
definition of ``waters of the United States'' under those rules, both
rules excluded some ditches. The agencies, in this rule, are continuing
the approach described in the Rapanos Guidance and are codifying that
approach in the regulatory text to provide clarity and certainty. As
discussed above, the agencies are also maintaining their longstanding
position that paragraph (a)(1) waters are not subject to the exclusions
and, most relevant to the exclusion for ditches and consistent with the
1986 preamble, tidal ditches will continue to be jurisdictional under
paragraph (a)(1). Continuing the approach described in the Rapanos
Guidance is consistent with the agencies' intent with this rule to
interpret ``waters of the United States'' to mean the waters defined by
the longstanding 1986 regulations, with amendments to reflect the
agencies' interpretation of the statutory limits on the scope of the
``waters of the United States,'' informed by 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, 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.''
(2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
Consistent with the Rapanos Guidance, this rule excludes ``ditches
(including roadside ditches) that are excavated wholly in and draining
only dry land and that do not carry a relatively permanent flow of
water.'' Rapanos Guidance at 8. The scope of the ditch exclusion is
consistent with the agencies' longstanding practice and technical
judgment that certain waters and features are not subject to regulation
under the Clean Water Act. The exclusion is also informed by Rapanos.
The agencies have concluded that the relatively permanent standard in
Rapanos on its own is insufficient to achieve the objective of the Act.
See section IV.A of this preamble. However, the relatively permanent
standard is generally consistent with the agencies' longstanding
practice of finding certain ditches that lack important hydrogeomorphic
features to be non-jurisdictional. The ditches excluded under this rule
and longstanding practice are often part of Tribal, State, and local
land use planning and can also be subject to Tribal or State
jurisdiction, as the Clean Water Act recognizes that Tribes and States
can regulate more broadly than the Federal Government. Excluding
certain ditches from jurisdiction under this rule also improves
administrative efficiency and provides certainty and clarity to the
public. This exclusion simplifies the approved jurisdictional
determination process and makes it more straightforward for agency
staff to implement the rule and for the public to determine whether
certain features are subject to Federal jurisdiction.
Several commenters requested that the agencies exclude a broader
set of ditches from the definition of ``waters of the United States.''
The agencies find that it would not be appropriate to exclude a broader
set of ditches from the definition of ``waters of the United States''
in this rule. Congress clearly intended that some ditches are
jurisdictional under the Clean Water Act. The Clean Water Act states
that, with some exceptions, the discharge of dredge or fill material
``for the purpose of construction or maintenance of farm or stock ponds
or irrigation ditches, or the maintenance of drainage ditches'' is not
prohibited by or otherwise subject to regulation under the Clean Water
Act. 33 U.S.C. 1344(f)(1)(C). Because this exemption only applies to
discharges of dredged or fill material into ``waters of the United
States,'' there would be no need for such a permitting exemption if all
ditches were considered non-jurisdictional under the Clean Water Act.
The agencies in the 2020 NWPR similarly interpreted section 404(f) as
an indication that Congress intended that ditches could in some
instances be jurisdictional under the Clean Water Act. 85 FR 22297
(April 21, 2020). The agencies' approach in this rule--which finds that
some ditches are jurisdictional while others are not--reflects full and
appropriate consideration of section 404(f), the water quality
objective in Clean Water Act section 101(a), and the policies relating
to responsibilities and rights of Tribes and States under section
101(b). The approach of finding certain ditches jurisdictional while
excluding others from jurisdiction is also consistent with the 2015
Clean Water Rule and the 2020 NWPR, as well as the pre-2015
[[Page 3113]]
regulatory regime and the 2019 Repeal Rule. Human-made tributaries like
ditches can provide functions that restore and maintain the chemical,
physical, and biological integrity of downstream paragraph (a)(1)
waters. The scientific literature indicates that structures like
ditches that convey water continue to connect to and effect downstream
waters, though the connectivity and effects can be different than that
of natural streams. Indeed, ditches can enhance the extent of
connectivity by more effectively conveying the water downstream. See
section III.A of the Technical Support Document for additional
information; see also section IV.A.2.b.i of this preamble for further
discussion of these issues.
Several commenters asked for additional explanation of terms and
phrases used in the exclusion for certain ditches. The phrase
``excavated wholly in and draining only dry land'' means that at the
time the ditch was constructed, it was excavated in dry land as that
term is described above. It further means that at the time of
construction, the ditch was excavated entirely, or wholly, in dry land.
Finally, it means that the ditch is not situated close enough to a
water feature, including wetlands, to drain that water feature. For
example, a ditch that is constructed in dry land and receives water
from runoff and other ditches constructed in dry land and draining only
dry land, or from groundwater intercepted as the ditch was dug, would
be considered a ditch ``excavated wholly in and draining only dry
land.'' In contrast, a ditch that is constructed in dry land but also
drains a wetland would not be considered a ditch that drains only dry
land, and a ditch constructed in both a wetland and in dry land would
not be considered to be excavated wholly in dry land. The
jurisdictional status of a ditch is assessed on a case-by-case basis by
considering the specific characteristics of the site at issue.
The phrase ``do not carry a relatively permanent flow of water''
means that the ditch is not a relatively permanent water as that term
is explained in this rule. Relatively permanent flow, as discussed in
section IV.C.4.c.ii of this preamble, means the ditch contains flowing
or standing water year-round or continuously during certain times of
the year for more than a short duration in direct response to
precipitation. The language ``do not carry a relatively permanent flow
of water'' is consistent with the language in the Rapanos Guidance.
The use of the word ``and'' in the exclusion for ditches indicates
that all three criteria (excavated wholly in dry land, draining only
dry land, and not carrying a relatively permanent flow of water) must
be satisfied for the ditch to be excluded. However, even where a ditch
is not excluded, it is only jurisdictional if it satisfies the terms of
the categories of waters that are considered jurisdictional under this
rule. For example, a ditch that is not excluded, but does not satisfy
either the relatively permanent or significant nexus standard would not
be jurisdictional under this rule.
In addition, the agencies' longstanding interpretation of the Clean
Water Act is that it is not relevant whether a water has been
constructed or altered by humans for purposes of determining whether a
water is jurisdictional under the Clean Water Act. In S.D. Warren v.
Maine Board of Envt'l Protection, Justice Stevens, writing for a
unanimous Court, stated: ``nor can we agree that one can denationalize
national waters by exerting private control over them.'' 547 U.S. 370,
379 n.5 (2006). In Rapanos, all members of the Court generally agreed
that ``highly artificial, manufactured, enclosed conveyance systems--
such as `sewage treatment plants,' . . . and the `mains, pipes,
hydrants, machinery, buildings, and other appurtenances and incidents'
. . . likely do not qualify as `waters of the United States,' despite
the fact that they may contain continuous flows of water.'' 547 U.S. at
737 (Scalia, J., plurality opinion). But there was also agreement that
certain waters that are human-made or man-altered, such as canals with
relatively permanent flow, are ``waters of the United States.'' Id. at
736 n.7. Justice Kennedy and the dissent rejected the conclusion that
because the word ``ditch'' was in the definition of ``point source'' a
ditch could never be ``waters of the United States'': ``certain water
bodies could conceivably constitute both a point source and a water.''
Id. at 772 (Kennedy, J., concurring in the judgment); see also id. at
802 (Stevens, J., dissenting) (``The first provision relied on by the
plurality--the definition of `point source' in 33 U.S.C. 1362(14)--has
no conceivable bearing on whether permanent tributaries should be
treated differently from intermittent ones, since `pipe[s], ditch[es],
channel[s], tunnel[s], conduit[s], [and] well[s]' can all hold water
permanently as well as intermittently.''). While the plurality, Justice
Kennedy, and the dissent formulated different standards for determining
what are ``waters of the United States,'' none of the standards
qualified jurisdiction on a distinction between ``natural'' versus
``human-made'' or ``human-altered'' waters or excluded ditches in their
entirety. Further, no Federal Court of Appeals has interpreted Rapanos
to exclude ditches from the Clean Water Act. This case law demonstrates
that certain ditches have long been subject to regulation as ``waters
of the United States.''
Several commenters suggested that certain types of ditches,
including roadside ditches, ditches associated with railroad
operations, and agricultural ditches, should be excluded in this rule.
This rule does not explicitly exclude these types of ditches, but the
exclusions included in this rule address many ditches of these types.
Moreover, since the exclusion for ditches in this rule focuses on the
physical (e.g., constructed in dry land) and flow characteristics of
ditches, the exclusion addresses all ditches that the agencies have
concluded should not be subject to jurisdiction, including certain
ditches on agricultural lands and ditches associated with modes of
transportation, such as roadways, airports, and rail lines.
(3) Implementation
When assessing the jurisdictional status of a ditch, the agencies
will evaluate the entire reach of the ditch to determine if it has
relatively permanent flow, consistent with the reach approach for
tributaries described in section IV.C.4.c of this preamble. As
described for tributaries, the agencies will assess the flow
characteristics of a particular ditch reach at the farthest downstream
limit of the ditch reach (i.e., the point the ditch enters a higher
order in the network). Where data indicate the flow characteristics at
the downstream limit is not representative of the entire reach of the
ditch, the flow characteristics that best characterizes the entire
ditch reach will be used. For example, if the majority of the ditch
reach lacks relatively permanent flow but some portions of the reach
contain isolated pools of standing water, that reach of the ditch
likely would not be considered to have relatively permanent flow. As a
result, such a ditch could be excluded from jurisdiction if it
satisfies the other requirements of the ditch exclusion. Additionally,
a situation could arise where there is one reach of a ditch with
relatively permanent flow that is jurisdictional and is connected to
downstream waters via a separate reach of the ditch that is non-
jurisdictional. This approach to evaluating jurisdiction of each reach
of a ditch separately is
[[Page 3114]]
consistent with the agencies' approach for evaluating jurisdiction over
tributaries, which evaluates each reach of a tributary separately. See
section IV.C.4.c.ii of this preamble for further discussion of applying
the relatively permanent standard to tributary reaches.
Questions have sometimes arisen regarding the distinctions between
ditches and human-altered natural streams and rivers. Alteration or
modification of a natural stream or river for flood control, erosion
control, development, agriculture, and other reasons does not convert
the stream or river to an excluded ditch. A stream or river that has
been channelized or straightened because its natural sinuosity has been
altered, cutting off the meanders, is not a ditch. A stream that has
banks stabilized through use of concrete or rip-rap (e.g., rocks or
stones) is not a ditch. In these instances, the altered or modified
streams and rivers are not ditches and would also not satisfy the
exclusion for ditches because they are not ``excavated wholly in and
draining only dry land.'' See section IV.A.2.b.i of this preamble for
further discussion of this rule's coverage of human-made or human-
altered tributaries.
Questions have also arisen regarding relocated streams and rivers.
A stream or river that has been relocated is not a ditch and would also
not satisfy the exclusion for ditches because it is not ``excavated
wholly in and draining only dry land.'' A stream or river that is
relocated should be evaluated as a tributary when it contributes flow
directly or indirectly to a paragraph (a)(1) water. A stream or river
is considered relocated either when at least a portion of its original
channel has been physically moved, or when the majority of its flow has
been redirected. Even where the stream or river has been relocated
(i.e., the majority of its flow has been redirected), the remnant
portions of the former stream may still be jurisdictional where it
satisfies the terms of paragraph (a) of this rule.
The agencies note that an excluded ditch that connects downstream
to a jurisdictional tributary would not be jurisdictional merely
because of its downstream connection to the jurisdictional tributary.
Furthermore, wetlands that develop entirely within the confines of an
excluded ditch are not jurisdictional, as discussed further in section
IV.C.5.b of this preamble.
Certain excluded ditches (such as roadside and agricultural ditches
that satisfy the requirements of the ditch exclusion) may receive
backflow from a jurisdictional water, such as a perennial river that
overflows into the ditch and extends the OHWM of the contributing water
into the ditch. In these circumstances, the agencies will continue the
practice of extending the OHWM of the jurisdictional contributing water
up to the location of its OHWM within the otherwise non-jurisdictional
ditch, as required by Corps regulations. See 33 CFR 328.4(c). In these
instances, the ditch is not necessarily jurisdictional; the feature
extending into the ditch is jurisdictional. For example, an excluded
ditch may connect with a relatively permanent river, and at times, high
flows from the river may extend into the excluded ditch such that the
OHWM of the jurisdictional river also extends into the ditch. The
agencies will continue to treat the portion of the relatively permanent
river that extends into the excluded ditch, up to the OHWM of the
river, as part of the jurisdictional river. The ditch remains excluded,
but the flow in the ditch that is from the relatively permanent river
will be jurisdictional as part of the river.
The agencies will use the most accurate and reliable resources to
support their decisions regarding whether a feature is an excluded
ditch. This will typically involve the use of multiple sources of
information and those sources may differ depending on the resource in
question or the region in which the resource is located. Along with
field data and other current information on the subject waters,
historic tools and resources may be used to determine whether a feature
is an excluded ditch. Several sources of information may be required to
make such determination. Information sources may include historic and
current topographic maps, historic and recent aerial photographs,
Tribal, State, and local records and surface water management plans
(such as county ditch or drainage maps and datasets), NHD or NWI data,
agricultural records, street maintenance data, precipitation records,
historic permitting and jurisdictional determination records, certain
hydrogeomorphological or soil indicators, wetlands and conservation
programs and plans, and functional assessments and monitoring efforts.
For example, when a USGS topographic map displays a tributary located
upstream and downstream of a potential ditch, this may indicate that
the potential ditch was constructed in or relocated a tributary. As
another example, an NRCS soil survey displaying the presence of
specific soil series which are linear in nature and generally parallel
to a potential ditch may be indicative of alluvial deposits formed by a
tributary in which the potential ditch was constructed. Additionally,
the presence of a pond in a historic aerial photograph that lies along
the flowpath of the potential ditch, for example, may provide an
indication that the potential ditch was not constructed wholly in and
drained only dry land.
This rule does not affect the permitting exemptions for certain
activities described in Clean Water Act section 404(f), including the
exemption in section 404(f)(1)(C) for the construction and maintenance
of irrigation ditches and the maintenance of drainage ditches. The
agencies have historically taken the position that a ditch can be both
``waters of the United States'' and a point source. The 2020 NWPR,
however, changed the agencies' longstanding position and stated that a
ditch is either ``waters of the United States'' or a point source. 85
FR 22297 (April 21, 2020). The 2020 NWPR justified this position by
noting that the Clean Water Act defines ``point sources'' to include
ditches and that the plurality opinion in Rapanos stated that ``[t]he
definitions thus conceive of `point sources' and `navigable waters' as
separate and distinct categories. The definition of `discharge' would
make little sense if the two categories were significantly
overlapping.'' See 547 U.S. at 735-36 (Scalia, J., plurality opinion);
NWPR Response to Comments, Section 6 at 12-13.
The agencies have further evaluated this question and concluded
that the better reading of the statute is the agencies' historic
position that a ditch can be both a point source and ``waters of the
United States.'' That position dates back to 1975 in an opinion of the
General Counsel of EPA interpreting the Clean Water Act. That opinion
stated: ``it should be noted that what is prohibited by section 301 is
`any addition of any pollutant to navigable waters from any point
source.' It is therefore my opinion that, even should the finder of
fact determine that any given irrigation ditch is a navigable water, it
would still be permittable as a point source where it discharges into
another navigable water body, provided that the other point source
criteria are also present.'' In re Riverside Irrigation District, 1975
WL 23864, at *4 (June 27, 1975) (emphasis in original). The opinion
stated that ``to define the waters here at issue as navigable waters
and use that as a basis for exempting them from the permit requirement
appears to fly directly in the face of clear legislative intent to the
contrary.'' Id.
In addition, in Rapanos, Justice Kennedy and the dissent rejected
the
[[Page 3115]]
conclusion that because the word ``ditch'' was in the definition of
``point source'' a ditch could never be ``waters of the United
States'': ``certain water bodies could conceivably constitute both a
point source and a water.'' 547 U.S. at 772 (Kennedy, J., concurring in
the judgment); see also id. at 802 (Stevens, J., dissenting) (``The
first provision relied on by the plurality--the definition of ``point
source'' in 33 U.S.C. [section] 1362(14)--has no conceivable bearing on
whether permanent tributaries should be treated differently from
intermittent ones, since `pipe[s], ditch[es], channel[s], tunnel[s],
conduit[s], [and] well[s]' can all hold water permanently as well as
intermittently.'').\120\ Even the plurality opinion in Rapanos, which
was relied upon by the agencies in the 2020 NWPR for its change in
position, left room for some ditches to both point sources and ``waters
of the United States,'' finding that the two categories should not be
``significantly'' overlapping. 547 U.S. at 735-36 (Scalia, J.,
plurality opinion).
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\120\ The agencies considered that a district court has reached
a contrary conclusion, but the agencies decline to adopt the
decision's reasoning in this rule, including because it relies on
the change in interpretation articulated for the first time in the
2020 NWPR and which the agencies reject in this rule, and is
inconsistent with the position of five Justices in Rapanos. See
Toxics Action Center, Inc. & Conservation Law Found. v. Casella
Waste Systems, Inc., 2021 WL 3549938, *8 (D.N.H. Aug. 11, 2021)
(``If a waterway can simultaneously be a navigable water (that is, a
water of the United States) and a point source, the distinction the
statute draws between the two categories using the prepositions
`from' and `to' would be rendered meaningless.'').
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There is simply no indication in the text of the Clean Water Act
that ditches that meet the definition of a point source cannot also be
``waters of the United States.'' To the contrary, the fact that
Congress provided an exemption for discharges of dredged or fill
material for construction or maintenance of certain types of ditches
from permitting in Clean Water Act section 404(f) is further evidence
that under the plain language of the statute ditches can, at least in
some cases, be both point sources and ``waters of the United States.''
The agencies therefore find that their longstanding, historic view that
a ditch can be both a point source and ``waters of the United States''
is the better interpretation.
ii. Other Features
(1) This Rule
In this rule, the agencies are codifying exclusions for certain
other features that were not generally considered jurisdictional under
the pre-2015 regulatory regime. Consistent with the features listed in
the preamble to the 1986 regulations, the agencies are codifying
exclusions for: artificially irrigated areas that would revert to dry
land if the irrigation ceased; artificial lakes or ponds created by
excavating and/or diking dry land to collect and retain water and which
are used exclusively for such purposes as stock watering, irrigation,
settling basins, or rice growing; artificial reflecting or swimming
pools or other small ornamental bodies of water created by excavating
and/or diking dry land to retain water for primarily aesthetic reasons;
and waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of water meets
the definition of ``waters of the United States.'' See 51 FR 41217
(November 13, 1986). In addition, consistent with the Rapanos Guidance,
the agencies are excluding swales and erosional features (e.g.,
gullies, small washes) characterized by low volume, infrequent, or
short duration flow. See Rapanos Guidance at 11-12. Excluding these
features from jurisdiction is consistent with the 2015 Clean Water Rule
and the 2020 NWPR, as well as the pre-2015 regulatory regime and the
2019 Repeal Rule, which considered these features to be generally non-
jurisdictional. The agencies are codifying exclusions for these
features in the regulatory text to provide clarity and certainty.
The agencies are finalizing two minor changes to the exclusion for
swales and erosional features in this rule as compared to the language
in the Rapanos Guidance. The Guidance explained that the agencies
generally found ``[s]wales or erosional features (e.g., gullies, small
washes characterized by low volume, infrequent, or short duration
flow)'' to be non-jurisdictional. Rapanos Guidance at 11-12. First,
this rule's regulatory text excludes ``swales and erosional features''
rather than ``swales or erosional features.'' The agencies find that
the use of ``or'' in this phrase in the Rapanos Guidance was confusing
because swales are substantively different from erosional features and
thus should not be referred to in the alternative. To provide
additional clarity, the agencies are using the connector ``and'' in
this rule's regulatory text for this exclusion. Second, the agencies
are moving the parentheses in this provision so that only the phrase
``e.g., gullies, small washes'' is included in parentheses. This change
clarifies that the rest of the language in this exclusion,
``characterized by low volume, infrequent, or short duration flow''
applies to both swales and erosional features. This change ensures that
the exclusion more accurately describes those swales and erosional
features which are discrete topographic features on the landscape,
rather than low gradient depressional areas that convey only overland
sheetflow and which are not included within this exclusion. The
agencies are making these two ministerial changes from the Rapanos
Guidance to provide additional clarity in this rule, but the agencies'
application of the exclusion for these features as compared to the pre-
2015 regulatory regime remains substantively and operationally
unchanged.
(2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
As described at the beginning of this section, codifying exclusions
for these features is consistent with the agencies' longstanding
practice that certain waters and features are not subject to the Clean
Water Act. The exclusions are also guided by Supreme Court cases that
recognized that there are certain features that were not primarily the
focus of the Clean Water Act. See, e.g., Rapanos 547 U.S. at 734. The
exclusions are an important aspect of the agencies' policy goal of
providing clarity, certainty, and predictability for the regulated
public and regulators. The categorical exclusions will simplify the
process of determining jurisdiction, and they reflect the agencies'
determinations of the lines of jurisdiction based on the case law,
policy determinations, and the agencies' experience and expertise.
Many commenters generally supported adding the exclusions in the
regulatory text. Several of these commenters stated that adding the
exclusions to the regulatory text would provide clarity and certainty
and avoid time and cost burdens. The agencies agree with these
commenters and have added these exclusions, along with the exclusion
for ditches, to the regulatory text. Other commenters stated that
exclusions of certain waterbodies were not based on science or the
significant nexus standard. Determinations about the scope of ``waters
of the United States'' are informed by science but also informed by the
agencies' decades of implementation experience. This rule reflects the
judgment of the agencies in balancing the science, the agencies'
expertise, and the regulatory goals of providing clarity to the public
while
[[Page 3116]]
protecting the integrity of paragraph (a)(1) waters, consistent with
the law.
(3) Implementation
This section addresses implementation of the exclusions for certain
other features that were not generally considered jurisdictional under
the pre-2015 regulatory regime in the order in which the relevant
provision appears in the regulatory text.
In this rule, the agencies clarify their longstanding view that the
exclusion for certain artificially irrigated areas applies only to the
specific land being directly irrigated that would reasonably revert to
dry land should irrigation cease. The exclusion does not apply to all
waters within watersheds where irrigation occurs.
Questions have arisen in the past regarding whether a feature that
initially satisfied the terms of an exclusion but no longer satisfies
those terms continues to be excluded from jurisdiction. For example, if
an artificial pond created by excavating land to collect and retain
water is initially used exclusively for stock watering, irrigation,
settling basins, or rice growing but is subsequently used for a
different purpose, the question has arisen whether that pond is still
excluded from jurisdiction. Consistent with the agencies' longstanding
practice, if a previously excluded feature no longer meets the terms of
the exclusion, it is no longer excluded. If it no longer satisfies the
terms of an exclusion, it would be jurisdictional if it otherwise meets
the definition of ``waters of the United States'' under this rule.
The agencies recognize that artificial lakes and ponds are often
used for more than one purpose and can have other beneficial purposes,
such as animal habitat, water retention, or recreation. For example,
artificial lakes and ponds that are created by excavating dry land to
collect and retain water for stock watering are often extensively used
by waterfowl and other wildlife. The agencies' historic practice, which
the agencies intend to continue under this rule, is to consider these
features as excluded even when there is another incidental beneficial
use of the feature.
The artificial lakes and ponds exclusion applies only to those
lakes and ponds that satisfy the terms of the exclusion. Paragraph
(a)(2) impoundments are not covered under this exclusion. This
exclusion only applies to features that were excavated in dry land or
were diked in dry land. Paragraph (a)(2) impoundments are not excavated
in dry land or diked in dry land. However, consistent with the
agencies' longstanding practice, when an applicant receives a permit to
impound ``waters of the United States'' to construct a waste treatment
system, the resulting waste treatment system is subject to that
exclusion as long as it is used for this permitted purpose. See the
discussion above regarding waste treatment systems.
Artificial lakes and ponds that satisfy the terms of the exclusion
would not be jurisdictional under this rule even if they have a
hydrologic surface connection to ``waters of the United States.'' Non-
jurisdictional conveyances created in dry land that are physically
connected to and are a part of the excluded feature remain excluded.
Swales and erosional features are excluded when characterized by
low volume, infrequent, or short duration flow. Swales are generally
shallow features in the landscape that may convey water across dry land
areas during and following storm events and typically have grass or
other low-lying vegetation throughout the swale. While a swale is a
discrete topographic feature, it does not have a defined channel, nor
an OHWM. This distinguishes a swale from an ephemeral stream because
ephemeral streams typically have a channel and at least one indicator
of an OHWM. See section IV.A.ii of the Technical Support Document for
additional discussion of swales. Erosional features can typically be
distinguished from swales because erosional features are generally
deeper than swales and have an absence of vegetation. Erosional
features can be distinguished from tributaries by the absence of a
channel and an OHWM. Concentrated surface runoff can occur within
erosional features without creating the permanent physical
characteristics associated with a channel and OHWM. Some ephemeral
streams are colloquially called ``gullies'' or the like even when they
exhibit a channel and an OHWM. Regardless of the name they are given
locally, waters that are tributaries under this rule are not excluded
erosional features. See Technical Support Document section IV.A.ii for
additional discussion on how to distinguish between tributaries,
swales, and erosional features.
Erosional features like rills and gullies also typically lack a
defined channel and an OHWM. Rills are very small incisions formed by
overland water flows eroding the soil surface during rainstorms. Rills
are less permanent on the landscape than streams. Gullies tend to be
much smaller than streams, and are often deeper than they are wide,
with very steep banks. Gullies are commonly found in areas without much
vegetation or with soils that are prone to erosion.
8. Other Definitions
The final rule regulatory text defines the terms ``wetlands,''
``high tide line,'' ``ordinary high water mark,'' and ``tidal water.''
The definitions of these four terms in the final rule are identical to
the definitions of these terms in the 1986 regulations, 2019 Repeal
Rule, and 2020 NWPR. While the 1986 regulations included these
definitions only in the Corps' regulations, not EPA's regulations, the
2015 Clean Water Rule and 2020 NWPR included these definitions in both
agencies' regulations. To provide additional clarity and consistency in
comparison to the 1986 regulations, the final rule includes these
definitions in both agencies' regulations. The agencies are not
amending the definitions of these terms from the 1986 regulations.
The regulatory text in the final rule also defines the term
``adjacent.'' The agencies amended the definition of ``adjacent'' in
the 2020 NWPR but are returning to the longstanding definition of that
term in the 1986 regulations. Returning to the definition of
``adjacent'' from the 1986 regulations is consistent with the agencies'
intent to return to the pre-2015 regulatory regime's approach to
``waters of the United State.'' This section briefly describes these
five definitions and their history and implementation. See section IV.G
of this preamble and previous sections of IV.C of this preamble above
for further discussion on implementation.
Many commenters suggested that the agencies include additional
definitions in this rule, including definitions for ``navigable'';
``similarly situated''; ``tributary''; and ``physical integrity,''
``chemical integrity,'' and ``biological integrity.'' The agencies find
that the regulatory text in this rule and the preamble's explanation of
the regulatory text clearly present the agencies' definition of
``waters of the United States'' and that additional definitions are not
needed. Moreover, the agencies seek to avoid regulatory language that
is overly detailed or prescriptive, as interpretations of some of these
terms could vary depending on the region or evolve over time with
scientific advances.
a. Wetlands
This rule makes no changes to the definition of ``wetlands''
contained in the 1986 regulations (and in the 2020 NWPR, which made no
changes to the 1986 regulation). ``Wetlands'' are defined as ``those
areas that are inundated or saturated by surface or
[[Page 3117]]
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. Wetlands
generally include swamps, marshes, bogs, and similar areas.'' Wetlands
have been defined in the Corps' regulations since 1975 and in EPA's
regulations since 1979, with only minor differences from the 1986
regulations. The agencies are not amending this longstanding definition
in this rule.
Wetlands, including ``the classic swamplands in the Southeast, such
as the great Okefenokee, the Great Swamp of New Jersey, . . . the
majestic, sweeping marshes of the Everglades, the remote Alakai in
Hawaii, and the tiny bogs of New England,'' Senate Debate, August 4,
1977, Comments of Mr. Chafee at 13560, are ``transitional areas between
terrestrial and aquatic ecosystems.'' Science Report at 2-5. Scientific
systems for classifying areas as wetlands vary but typically include
three components: ``the presence of water, either at the surface or
within the root zone,'' ``unique soil conditions,'' and the presence of
vegetation ``adapted to the wet conditions.'' \121\ The agencies'
longstanding definition of wetlands, unchanged in this rule, requires
these three factors of hydrology, hydric soils, and hydrophytic
vegetation under normal circumstances.
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\121\ See William J. Mitsch & James G. Gosselink, Wetlands at 29
(5th ed. 2015).
---------------------------------------------------------------------------
Due to the many important functions that wetlands perform that
impact the integrity of paragraph (a)(1) waters, wetlands have long
been considered waters that can be subject to Clean Water Act
jurisdiction. The Corps first added wetlands explicitly in the
definition of ``waters of the United States'' in 1975 and EPA did the
same in 1979. 40 FR 31320, 31324-5 (July 25, 1975); 44 FR 32854, 32901
(June 7, 1979). In contrast, as discussed in section IV.C.7 of this
preamble, dry lands are areas that do not meet all three wetland
factors and that are not other waterbody types (such as lakes, ponds,
streams, ditches, and impoundments). For example, an area that under
normal circumstances contains only hydrophytic vegetation without the
presence of wetland hydrology and hydric soils and that lacks an OHWM
would typically be considered dry land. Only those wetlands that meet
the provisions to be a paragraph (a)(1) water, jurisdictional adjacent
wetland, paragraph (a)(2) impoundment, or paragraph (a)(5) water would
be considered ``waters of the United States'' under this rule.
As under prior regimes, wetlands are identified in the field in
accordance with the 1987 U.S. Army Corps of Engineers Wetland
Delineation Manual and applicable regional delineation manuals. Field
work is often necessary to confirm the presence of a wetland and to
accurately delineate its boundaries. However, in addition to field
observations on hydrology, vegetation, and soils, remote tools and
resources can be used to support the identification of a wetland.\122\
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\122\ Examples include USGS topographic maps (available at
https://www.usgs.gov/the-national-map-data-delivery/topographic-maps), NRCS soil maps and properties of soils including flood
frequency and duration, ponding frequency and duration, hydric
soils, and drainage class (available at https://websoilsurvey.sc.egov.usda.gov/App/WebSoilSurvey.aspx or via the
NRCS Soil Survey Geographic Database (SSURGO) available at https://catalog.data.gov/dataset/soil-survey-geographic-database-ssurgo),
aerial or high-resolution satellite imagery, high-resolution
elevation data (e.g., https://apps.nationalmap.gov/downloader/#/),
and NWI maps (available at https://www.fws.gov/program/national-wetlands-inventory/wetlands-mapper).
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b. Adjacent
This rule defines the term ``adjacent'' with no changes from the
45-year-old definition. ``Adjacent'' is defined as ``bordering,
contiguous, or neighboring. Wetlands separated from other `waters of
the United States' by man-made dikes or barriers, natural river berms,
beach dunes and the like are `adjacent wetlands.' '' This is a
longstanding and familiar definition that is supported by the text of
the statute, Supreme Court case law, and science. See, e.g., Riverside
Bayview, 474 U.S. at 134 (``[T]he 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.''). Thus, the longstanding definition
of ``adjacent'' reasonably advances the objective of the Clean Water
Act. To be jurisdictional under this rule, however, wetlands must meet
this definition of adjacent and either be adjacent to a traditional
navigable water, the territorial seas, or an interstate water, or
otherwise fall within the adjacent wetlands provision and meet either
the relatively permanent standard or the significant nexus standard.
The determination of whether a wetland is ``adjacent'' is distinct from
whether an ``adjacent'' wetland meets the relatively permanent
standard; however, wetlands that have a continuous surface connection
to a relatively permanent water meet the definition of ``adjacent'' and
are, therefore, a subset of adjacent wetlands. See section IV.C.5 of
this preamble for further discussion of the adjacent wetlands provision
of this rule.
The longstanding definition, by its terms, does not require flow
from the wetland to the jurisdictional water or from the jurisdictional
water to the wetland (although such flow in either direction can be
relevant to the determination of adjacency). The Supreme Court in
Riverside Bayview, in deferring to the Corps' ecological judgment about
the relationship between waters and their adjacent wetlands as an
``adequate basis for a legal judgment that adjacent wetlands may be
defined as waters under the Act,'' rejected an argument that such
wetlands had to be the result of flow in a particular direction to be
adjacent: ``This holds true even for wetlands that are not the result
of flooding or permeation by water having its source in adjacent bodies
of open water. The Corps has concluded that wetlands may affect the
water quality of adjacent lakes, rivers, and streams even when the
waters of those bodies do not actually inundate the wetlands. For
example, wetlands that are not flooded by adjacent waters may still
tend to drain into those waters. In such circumstances, the Corps has
concluded that wetlands may serve to filter and purify water draining
into adjacent bodies of water, see 33 CFR 320.4(b)(2)(vii) (1985), and
to slow the flow of surface runoff into lakes, rivers, and streams, and
thus prevent flooding and erosion, see Sec. Sec. 320.4(b)(2)(iv) and
(v). In addition, adjacent wetlands may `serve significant natural
biological functions, including food chain production, general habitat,
and nesting, spawning, rearing and resting sites for aquatic . . .
species.' '' 447 U.S at 134-35.
The agencies will continue their longstanding practice under this
definition and consider wetlands adjacent if one of the following three
criteria is satisfied. First, there is an unbroken surface or shallow
subsurface connection to jurisdictional waters. All wetlands that
directly abut jurisdictional waters have an unbroken surface or shallow
subsurface connection because they physically touch the jurisdictional
water. Wetlands that do not directly abut a jurisdictional water may
have an unbroken surface or shallow subsurface connection to
jurisdictional waters. Water does not need to be continuously present
in the surface or shallow subsurface connection. Second, they are
physically separated from jurisdictional waters by ``man-made dikes or
barriers, natural
[[Page 3118]]
river berms, beach dunes, and the like.'' Or third, their proximity to
a jurisdictional water is reasonably close, such that ``adjacent
wetlands have significant effects on water quality and the aquatic
ecosystem.'' Riverside Bayview, 474 U.S. at 135 n.9. See section IV.C.5
of this preamble.
``Adjacent'' under the well-established definition the agencies are
maintaining in this rule includes wetlands separated from other
``waters of the United States'' by ``man-made dikes or barriers,
natural river berms, beach dunes, and the like.'' Such adjacent
wetlands continue to have a hydrologic connection to the water to which
they are adjacent because constructed dikes or barriers, natural river
berms, beach dunes, and the like typically do not block all water flow.
This hydrologic connection can occur via seepage or over-topping, where
water from the nearby traditional navigable water, interstate water,
the territorial seas, impoundment, or tributary periodically overtops
the berm or other similar feature. Water can also overtop a natural
berm or artificial dike and flow from the wetland to the water to which
it is adjacent. As noted above, the Supreme Court has concluded that
adjacent wetlands under this definition are not limited to only those
that exist as a result of ``flooding or permeation by water having its
source in adjacent bodies of open water,'' and that wetlands may affect
the water quality in adjacent waters even when those waters do not
actually inundate the wetlands. Riverside Bayview, 474 U.S. at 134-35.
In addition, river berms, natural levees, and beach dunes are all
examples of landforms that are formed by natural processes and do not
isolate adjacent wetlands from the streams, lakes, or tidal waters that
form them. River berms, natural levees, and the wetlands and waters
behind them are part of the floodplain. Natural levees are
discontinuous, and the openings in these levees allow for a hydrologic
connection to the stream or river and thus the periodic mixing of river
water and backwater. Beach dunes are formed by tidal or wave action,
and the wetlands that establish behind them experience a fluctuating
water table seasonally and yearly in synchrony with sea or lake level
changes. The terms ``earthen dam,'' ``dike,'' ``berm,'' and ``levee''
are used to describe similar constructed structures whose primary
purpose is to help control flood waters. Such levees and similar
structures also do not isolate adjacent wetlands.
In addition, adjacent wetlands separated from a jurisdictional
water by a natural or man-made \123\ berm serve many of the same
functions as other adjacent wetlands. There are also other important
considerations, such as chemical and biological functions provided by
the wetland. For instance, adjacent waters behind berms can still serve
important water quality functions, including filtering pollutants and
sediment before they reach other jurisdictional waters and ultimately a
paragraph (a)(1) water. Wetlands behind berms, where the system is
extensive, can help reduce the impacts of storm surges caused by
hurricanes. Adjacent wetlands separated from jurisdictional waters by
berms and the like also maintain ecological connection with those
waters. For example, wetlands behind natural and artificial berms can
provide important habitat for aquatic and semi-aquatic species that use
both the wetlands and the nearby water for basic food, shelter, and
reproductive requirements. Though a berm may reduce habitat functional
value and may prevent some species from moving back and forth from the
wetland to the nearby jurisdictional water, many species remain able to
use both habitats despite the presence of such a berm. In some cases,
the natural landform or artificial barrier can provide extra refuge
from predators, for rearing young, or other life cycle needs.
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\123\ While the agencies use the phrase ``human-made'' in place
of ``man-made'' in many instances throughout this preamble, they are
retaining the phrase ``man-made'' in the regulatory text's
definition of ``adjacent'' to maintain consistency with the 1986
regulatory text.
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The agencies received a number of comments on the definition of
``adjacent.'' Many commenters supported the continued use of the well-
established definition, while several commenters suggested that the
agencies should use only the relatively permanent standard or continue
the approach to adjacent wetlands that was included in the 2020 NWPR.
Some commenters critiqued the proposed definition of ``adjacent,'' with
some stating that the definition was ``overly-broad and ambiguous.'' A
commenter asserted that the word ``adjacent'' should be given its plain
meaning for the sake of regulatory certainty, adding that the term
``neighboring'' within the definition of ``adjacent'' goes ``beyond the
ordinary understanding'' of adjacency. The agencies disagree with these
commenters and are finalizing the longstanding definition of
``adjacent.'' In section IV.A.3.b.ii of this preamble, the agencies
concluded that the relatively permanent standard is insufficient as the
sole standard for geographic jurisdiction under the Clean Water Act.
The 2020 NWPR's limits on the scope of jurisdictional adjacent wetlands
were based on an interpretation of the relatively permanent standard.
Therefore, the agencies have concluded that the 2020 NWPR's approach to
adjacent wetlands is inconsistent with the statute for the same reasons
the relatively permanent standard is when used as the sole standard.
The record demonstrates the effects of wetlands on the integrity of
paragraph (a)(1) waters when they have other types of surface
connections, such as wetlands that overflow and flood jurisdictional
waters or wetlands with less frequent surface water connections;
wetlands with shallow subsurface connections to other protected waters;
wetlands separated from other protected waters by artificial barriers
but that lack a direct hydrologic surface connection to those waters in
a typical year; or other wetlands proximate to jurisdictional waters.
As discussed in section IV.B.3 of this preamble, within the first year
of implementation of the 2020 NWPR, 70% of streams and wetlands
evaluated were found to be non-jurisdictional, including 15,675
wetlands that did not meet the 2020 NWPR's revised adjacency criteria.
The substantial increase in waters lacking Federal protection
compromises the agencies' ability to fulfill the objective of the Clean
Water Act to protect the integrity of a large swath of the nation's
waters (see section IV.B.3 of this preamble). Neither Tribal nor State
regulations have been passed to fill this gap.
Retaining the longstanding definition of ``adjacent'' is also
consistent with Riverside Bayview and Justice Kennedy's opinion in
Rapanos, as well as with scientific information indicating that
wetlands meeting this definition provide important functions that
contribute to the integrity of traditional navigable waters, the
territorial seas, and interstate waters. See section IV.A of this
preamble.
The agencies agree with commenters who stated that it is
appropriate to include wetlands behind natural and artificial berms and
the like as adjacent wetlands for the reasons discussed in section IV.A
of this preamble. As noted above, adjacent wetlands behind natural and
artificial berms can serve important water quality functions, such as
filtering pollutants and sediment before they reach other
jurisdictional waters and ultimately paragraph (a)(1) waters, and can
help reduce the impacts of storm surges caused by hurricanes; see also
section III.B of the Technical Support Document. The Supreme Court in
Riverside Bayview deferred to the agencies' interpretation of the Clean
[[Page 3119]]
Water Act to include adjacent wetlands. Riverside Bayview, 474 U.S. at
135 (``[T]he Corps has concluded that wetlands adjacent to lakes,
rivers, streams, and other bodies of water may function as integral
parts of the aquatic environment even when the moisture creating the
wetlands does not find its source in the adjacent bodies of water. . .
. [W]e therefore conclude that a definition of `waters of the United
States' encompassing all wetlands adjacent to other bodies of water
over which the Corps has jurisdiction is a permissible interpretation
of the Act.''). Justice Kennedy stated: ``In many cases, moreover,
filling in wetlands separated from another water by a berm can mean
that floodwater, impurities, or runoff that would have been stored or
contained in the wetlands will instead flow out to major waterways.
With these concerns in mind, the Corps' definition of adjacency is a
reasonable one, for it may be the absence of an interchange of waters
prior to the dredge and fill activity that makes protection of the
wetlands critical to the statutory scheme.'' Rapanos, 547 U.S. at 775.
The agencies also disagree that regulatory certainty requires
revision of the definition of adjacent, including deleting the term
``neighboring.'' Regulatory certainty is provided by the fact that the
agencies are retaining the definition that has been in place for
decades and will continue to interpret and implement it as they have
for decades. In addition, the longstanding regulation properly defines
the term ``adjacent'' for purposes of the Clean Water Act because it is
based on the concept of both reasonable proximity and scientific
connections.
c. High Tide Line
This rule makes no changes to the definition of ``high tide line''
contained in the 1986 regulations (and in the 2020 NWPR, which made no
changes to the 1986 regulation). The term ``high tide line'' is defined
as ``the line of intersection of the land with the water's surface at
the maximum height reached by a rising tide. The high tide line may be
determined, in the absence of actual data, by a line of oil or scum
along shore objects, a more or less continuous deposit of fine shell or
debris on the foreshore or berm, other physical markings or
characteristics, vegetation lines, tidal gages, or other suitable means
that delineate the general height reached by a rising tide. The line
encompasses spring high tides and other high tides that occur with
periodic frequency but does not include storm surges in which there is
a departure from the normal or predicted reach of the tide due to the
piling up of water against a coast by strong winds such as those
accompanying a hurricane or other intense storm.'' The agencies are not
amending this definition. This definition has been in place since 1977
(see 42 FR 37144 (July 19, 1977); 33 CFR 323.3(c) (1978)), and like the
definitions discussed above, is a well-established definition that is
familiar to regulators, environmental consultants, and the scientific
community. This term defines the landward limits of jurisdiction in
tidal waters when there are no adjacent non-tidal ``waters of the
United States.'' 51 FR 41206, 41251 (November 13, 1986).
d. Ordinary High Water Mark
This rule makes no changes to the definition of ``ordinary high
water mark'' (``OHWM'') contained in the 1986 regulations (and in the
2020 NWPR, which made no changes to the 1986 regulation). OHWM is
defined as ``that line on the shore established by the fluctuations of
water and indicated by physical characteristics such as clear, natural
line impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.'' 33 CFR 328.3(e) (2014). This term, unchanged
since 1977, see 41 FR 37144 (July 19, 1977), defines the lateral limits
of jurisdiction in non-tidal waters, provided the limits of
jurisdiction are not extended by adjacent wetlands. When adjacent
wetlands are present, Clean Water Act jurisdiction extends beyond the
OHWM to the limits of the adjacent wetlands. 33 CFR 328.4; RGL 05-05 at
1 (December 7, 2005).
e. Tidal Water
This rule makes no changes to the definition of ``tidal water''
contained in the 1986 regulations (and in the 2020 NWPR, which made no
changes to the 1986 regulation). The term ``tidal water'' is defined as
``those waters that rise and fall in a predictable and measurable
rhythm or cycle due to the gravitational pulls of the moon and sun.
Tidal waters end where the rise and fall of the water surface can no
longer be practically measured in a predictable rhythm due to masking
by hydrologic, wind, or other effects.'' Although the term ``tidal
waters'' was referenced throughout the Corps' 1977 regulations,
including the preamble (see, e.g., 42 FR 37123, 37128, 37132, 37144,
37161 (July 19, 1977)), it was not defined in regulations until 1986.
As explained in the preamble to the 1986 regulations, this definition
is consistent with the way the Corps has traditionally interpreted the
term. 51 FR 41217, 41218 (November 13, 1986). The agencies are not
amending this definition in this rule.
9. Significantly Affect
a. This Rule
As discussed above, waters are protected by the Clean Water Act
under this rule if they meet the significant nexus standard; that is,
they alone, or in combination with other similarly situated waters in
the region, significantly affect the chemical, physical, or biological
integrity of the waters identified in paragraph (a)(1) of this rule.
This rule defines the term ``significantly affect'' for these purposes
to mean ``a material influence on the chemical, physical, or biological
integrity of '' a paragraph (a)(1) water. Under this rule, waters,
including wetlands, are evaluated either alone or in combination with
other similarly situated waters in the region based on the functions
the evaluated waters perform. This rule identifies specific functions
that will be assessed \124\ and identifies specific factors that will
be considered when determining whether the functions provided by the
water, alone or in combination, have a material influence on the
integrity of a traditional navigable water, the territorial seas, or an
interstate water. Thus, the significant nexus standard concerns the
effects of waters on paragraph (a)(1) waters; it is not an assessment
of whether a particular discharge of a pollutant will have an effect on
a paragraph (a)(1) water, although, of course, contribution of flow and
the associated transport of pollutants are important functions of
upstream waters and are identified in the rule. Essentially, this
provision of the rule provides regulators and the public with a clear
framework for the significant nexus analysis that will be done on a
case-specific basis under the rule: (1) the functions that will be
assessed are clearly identified and constitute the ``nexus'' between
the waters being assessed and the paragraph (a)(1) water, and (2) the
logical and practical factors that will be considered to figure out the
strength, or ``significance,'' of those functions for the integrity of
the paragraph (a)(1) water are explicitly established.
---------------------------------------------------------------------------
\124\ The agencies are not requiring the use of ``functional
assessments'' for significant nexus analyses under this rule; see
section IV.C.9.c of this preamble for further discussion.
---------------------------------------------------------------------------
The functions identified in the rule are based on the well-known
benefits that lakes and ponds, streams, and
[[Page 3120]]
wetlands can provide to paragraph (a)(1) waters. See section IV.A.2.c
of this preamble. Wetlands, for example, function like natural tubs or
sponges, storing water and slowly releasing it. This process slows the
water's momentum and erosive potential, reduces flood heights, and
allows for groundwater recharge, which contributes baseflow to surface
water systems during dry periods. An acre of wetland can store 1-1.5
million gallons of floodwater. After being slowed by a wetland, water
moves around plants, allowing the suspended sediment to drop out and
settle to the wetland floor. Nutrients that are dissolved in the water
are often absorbed by plant roots and microorganisms in the soil. Other
pollutants stick to soil particles. In many cases, this filtration
process removes much of the water's nutrient and pollutant load by the
time it leaves a wetland. Wetlands are also some of the most
biologically productive natural ecosystems in the world, comparable to
tropical rain forests and coral reefs in their productivity and the
diversity of species they support. Abundant vegetation and shallow
water provide diverse habitats for fish and wildlife. Seventy-five
percent of commercially harvested fish are wetland-dependent. Add
shellfish species and that number jumps to 95 percent. Streams are the
dominant source of water in most rivers, and they also convey water
into local storage compartments, such as ponds, shallow aquifers, or
stream banks, that are important sources of water for maintaining
baseflow in rivers. Discharging pollutants or filling in some lakes and
ponds, streams, and wetlands reduces the amount of rainwater, runoff,
and snowmelt the stream network can absorb before flooding. The
increased volume of water in small streams scours stream channels,
changing them in a way that promotes further flooding. Such altered
channels have bigger and more frequent floods. The altered channels are
also less effective at recharging groundwater, trapping sediment, and
recycling nutrients. As a result, downstream lakes and rivers have
poorer water quality, less reliable water flows, and less diverse
aquatic life. Algal blooms and fish kills can become more common,
causing problems for commercial and sport fisheries. Recreational uses
may be compromised. In addition, the excess sediment can be costly,
requiring additional dredging to clear navigational channels and
harbors and increasing water filtration costs for municipalities and
industry. See, e.g., sections I and III of the Technical Support
Document. So the significant nexus standard is focused on identifying
those lakes and ponds, streams, and wetlands that provide these well-
understood functions such that they need baseline Federal protections
under the Clean Water Act in order to protect the integrity of
traditional navigable waters, the territorial seas, and interstate
waters. As discussed elsewhere, a determination that a water falls
within the definition of ``waters of the United States'' does not mean
that discharges or activities cannot occur in that water. See section
IV.C.10 of this preamble.
The functions assessed in this rule are well-known indicators that
are tied to the chemical, physical, or biological integrity of
paragraph (a)(1) waters. The functions assessed are: contribution of
flow; trapping, transformation, filtering, and transport of materials
(including nutrients, sediment, and other pollutants); retention and
attenuation of floodwaters and runoff; modulation of temperature in
paragraph (a)(1) waters; or provision of habitat and food resources for
aquatic species located in paragraph (a)(1) waters.
The factors considered in this rule are readily understood criteria
that influence the types and strength of chemical, physical, or
biological connections and associated effects on paragraph (a)(1)
waters. In other words, the factors are site-specific conditions that
influence the strength of the functions that lakes and ponds, streams,
and wetlands provide to paragraph (a)(1) waters. These factors include
the distance from a paragraph (a)(1) water; hydrologic factors, such as
the frequency, duration, magnitude, timing, and rate of hydrologic
connections, including shallow subsurface flow; the size, density, or
number of waters that have been determined to be similarly situated;
landscape position and geomorphology; and climatological variables such
as temperature, rainfall, and snowpack. The first two factors
identified in the regulatory definition are key to a significant nexus
determination: distance and hydrology. The definition of
``significantly affect'' is derived from the objective of the Clean
Water Act and is informed by and consistent with Supreme Court case
law. It is also informed by the agencies' technical and scientific
judgment and supported by the best available science regarding the
functions provided by upstream waters to paragraph (a)(1) waters
relevant to achieving the Clean Water Act's objective. The significant
nexus standard in this rule is carefully constructed to fall within the
bounds of the Clean Water Act. Not all waters subject to evaluation
under the significant nexus standard will have the requisite connection
to paragraph (a)(1) waters sufficient to be determined jurisdictional.
In conducting a significant nexus evaluation, the agencies will
consider each factor in the rule to evaluate the likely strength of any
effect of functions on a paragraph (a)(1) water. For example, in
evaluating a stream, under the first factor, the agencies will consider
the distance of the stream from the paragraph (a)(1) water. Under the
second factor, the agencies will consider hydrologic factors, such as
the amount of water from the stream that reaches the paragraph (a)(1)
water. Under the third factor, the agencies will consider the size,
density, or number of similarly situated waters, such as, for example,
the length, width, and depth of the stream. Under the fourth factor,
the agencies will evaluate landscape position and geomorphology, such
as the soil type and slope between the stream and the paragraph (a)(1)
water. Finally, under the fifth factor, the agencies will evaluate the
climate in the area of the stream, such as whether high temperatures
lead to high evaporation rates. After noting the relevant factors,
agencies will then apply them to the list of functions to determine the
strength of the functions that the stream provides to the paragraph
(a)(1) water. As noted above, the first two factors, distance from the
paragraph (a)(1) water and hydrology, will generally be given the
greatest weight in the assessment of functions provided.
The agencies regularly determine that waters do not have the
requisite significant nexus. First, the standard is limited to
consideration of effects on traditional navigable waters, the
territorial seas, and interstate waters. Second, the standard is
limited to effects only on the three statutorily identified aspects of
those fundamental waters: chemical, physical, or biological integrity.
Third, the standard cannot be met by merely speculative or
insubstantial effects on those aspects of those paragraph (a)(1)
waters, but rather requires the demonstration of a ``material
influence.'' In this rule, the agencies have specified that a
``material influence'' is required for the significant nexus standard
to be met. The phrase ``material influence'' establishes that the
agencies will be assessing the influence of the waters either alone or
in combination on the chemical, physical, or biological integrity of a
paragraph (a)(1) water and will provide qualitative and/or quantitative
information and articulate a reasoned basis for determining that the
waters being
[[Page 3121]]
assessed significantly affect a paragraph (a)(1) water.
This section of the preamble addresses public comment on the
definition of ``significantly affect'' and on the agencies'
interpretation and implementation of the definition. This section then
provides the agencies' general approach to implementation of the
definition, including elements of the definition such as ``similarly
situated'' and ``in the region'' for purposes of a significant nexus
analysis. Discussion of the agencies' approach to implementation of the
significant nexus standard for particular categories of waters can be
found in the sections of this preamble addressing tributaries, adjacent
wetlands, and paragraph (a)(5) waters. See sections IV.C.4.c, IV.C.5.c,
and IV.C.6.c of this preamble.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
i. Comments on the Definition of ``Significantly Affect''
The agencies received numerous comments on the definition of
``significantly affect,'' including the standard established by the
definition, and the factors and functions.
Some commenters asserted that the phrase ``more than speculative or
insubstantial'' in the proposed rule is open-ended, subjective, broad,
and could increase the number of jurisdictional waters as compared to
the pre-2015 regulatory regime. Commenters were concerned that while
waters that have speculative or insubstantial effects on paragraph
(a)(1) waters do not meet the significant nexus standard, the proposed
language was unclear and implied that no additional findings were
required. In response to public comment, this rule replaces the phrase
``more than speculative or insubstantial'' effects in the definition of
``significantly affect.'' Commenters were concerned that while waters
that have speculative or insubstantial effects on paragraph (a)(1)
waters do not meet the significant nexus standard, the proposed
language was unclear and implied that no additional findings were
required. This rule requires that waters have a ``material influence,''
and the agencies have concluded that this term will increase the
clarity and transparency of this rule.
The agencies have concluded that this term will increase the
clarity of this rule. In assessing whether a water meets the
significant nexus standard, the agencies will continue to examine the
``influence'' of the subject waters on the paragraph (a)(1) water. And
the ``influence'' must be ``material''--the agencies must explain why
the subject waters, either alone or in combination with similarly
situated waters, matters to the integrity of the paragraph (a)(1)
water. The word ``material'' also reflects not only that the influence
is, of course, more than speculative or insubstantial, but that the
agencies will provide qualitative and/or quantitative information and
articulate a reasoned basis for determining that a significant nexus
exists, consistent with longstanding practice. The phrase ``material
influence'' thus reflects the agencies' longstanding position that
significant nexus determinations should be supported by the factual
record, relevant scientific data and information, and available tools.
And that record, data and information, and tools must show, either
quantitively or qualitatively based on the five factors, that the
subject waterbody provides functions that materially influence the
chemical, physical, or biological integrity of a paragraph (a)(1)
water. The agencies have provided a number of examples in this section
of waters that do not have a ``material influence,'' and therefore do
not meet the significant nexus standard. The agencies will continue to
document the required findings as part of the administrative record.
See, for example, direction to field staff under the Rapanos Guidance
at 11 (``Accordingly, Corps districts and EPA regions shall document in
the administrative record the available information regarding whether a
tributary and its adjacent wetlands have a significant nexus with a
traditional navigable water, including the physical indicators of flow
in a particular case and available information regarding the functions
of the tributary and any adjacent wetlands.'').
Some commenters supported the proposed definition of
``significantly affect'' as ``more than speculative or insubstantial''
effects on paragraph (a)(1) waters. Other commenters asserted that
``more than speculative or insubstantial'' does not mean an effect is
significant, and some of these commenters requested that the agencies
use quantitative or statistical thresholds to determine significance.
Commenters generally requested clarification on how to determine if
effects are significant or not. One commenter recommended that waters
should be considered to ``significantly affect'' downstream
jurisdictional waters unless a science-based determination shows that
the effects are so speculative or insubstantial as to not affect the
integrity of downstream waters. Another commenter recommended that an
effect should only be significant if it would cause the paragraph
(a)(1) water to exceed applicable water quality standards.
The agencies disagree that a quantitative or statistical threshold
should be required to determine significance for several reasons.
First, the statute contains no text suggesting that the scope of the
``waters of the United States'' must be identified based on a
quantitative or statistical threshold, nor is a quantitative or
statistical assessment necessary to meet the statutory objective the
definition is designed to achieve: ``to restore and maintain the
chemical, physical and biological integrity of the Nation's waters.''
33 U.S.C. 1251(a). Second, such an approach would be unworkable given
the extensive regional differences in water systems and the variability
of individual waterbodies across the nation. For this reason, the
agencies have long established the practice of site-specific
assessment. Third, the appellate courts have not held that the term
``significant'' for purposes of Clean Water Act jurisdiction requires
statistical significance or quantitative measurement. See, e.g., Precon
Dev. Corp., Inc. v. U.S. Army Corps of Eng'rs, 603 Fed. Appx. 149, 151-
52 (4th Cir. 2015) (``Precon II'') (unpublished opinion); Cundiff, 555
F.3d at 211 (``Though no doubt a district court could find such
evidence persuasive, the Cundiffs point to nothing--no expert opinion,
no research report or article, and nothing in any of the various
Rapanos opinions--to indicate that [laboratory analysis] is the sole
method by which a significant nexus may be proved . . . .''). The Court
of Appeals for the Fourth Circuit has noted that the standard ``is a
`flexibly ecological inquiry,' '' and that ``[q]uantitative or
qualitative evidence may support [applicability of the CWA].'' Precon
II, 603 Fed. Appx. at 151-52 (citation omitted). The same court also
has clarified that the burden of establishing applicability of the
Clean Water Act should not be ``unreasonable.'' Precon Dev. Corp., Inc.
v. U.S. Army Corps of Eng'rs, 633 F.3d 278, 297 (4th Cir. 2011)
(``Precon I''). While the appellate courts have accepted laboratory
analysis or quantitative or empirical data, see, e.g., United States v.
Donovan, 661 F.3d 174, 186 (3d Cir. 2011); Northern California River
Watch v. City of Healdsburg, 496 F.3d 993, 1000-1001 (9th Cir. 2007),
such quantitative evidence is not required. Precon I, 633 F.3d at 294
(``We agree that the significant nexus test does
[[Page 3122]]
not require laboratory tests or any particular quantitative
measurements in order to establish significance.''). The appellate
courts have accepted a variety of evidence, including but not limited
to, photographs, visual observation of stream condition, flow and
morphology, studies, dye tests, scientific literature, maps, aerial
photographs, and remote sensing data. United States v. Lucas, 516 F.3d
316, 326-27 (5th Cir. 2008); see also Deerfield Plantation Phase II-B
Property Owners Ass'n v. U.S. Army Corps of Eng'rs, 501 Fed. Appx. 268,
270 (4th Cir. 2012) (unpublished opinion) (noting that in addition to
conducting two site visits, the Corps relied upon infrared aerial
photography, agency records, a county soil survey, a topographic map,
and a wetland inventory); Donovan, 661 F.3d at 185-86. As under the
pre-2015 regulatory regime, the agencies will continue to reasonably
determine, based on the record before them, if a water, either alone or
in combination with similarly situated waters in the region,
significantly affects a paragraph (a)(1) water.
Some commenters agreed with the agencies that a water may
constitute ``waters of the United States'' when it significantly
affects any one form of chemical, physical, or biological integrity of
a paragraph (a)(1) water. However, other commenters disagreed and
stated that a water should significantly affect all three forms of
integrity--chemical, physical, and biological--to be considered
``waters of the United States.'' Some of these commenters asserted that
the use of ``or'' has the potential to greatly expand the scope of
jurisdiction. The agencies disagree that this approach would expand the
scope of jurisdiction because it is consistent with the pre-2015
regulatory regime and longstanding practice. The agencies acknowledge
that Justice Kennedy used the conjunction ``and'' when concluding 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.' '' Rapanos, 547 U.S. at 780. However, the agencies
disagree that the use of the word ``and'' in this context represents a
holding by Justice Kennedy that only a water that alone or combination
significantly affects every single aspect of integrity is
jurisdictional. It is simply not reasonable to read Justice Kennedy's
opinion to stand for the proposition that a wetland that provides
important pollutant retention and trapping functions that protect the
chemical integrity of a paragraph (a)(1) water and also provides
important benefits for the salmon population of that river is not
jurisdictional because it does not also significantly affect the
physical structure of that water. In any case, the agencies are not
implementing a Supreme Court opinion, but rather are construing the
Clean Water Act, as informed by relevant Supreme Court opinions.
Congress intended the Clean Water Act to ``restore and maintain'' all
three forms of ``integrity,'' section 101(a), so if any one of them is
compromised, then the statute's stated objective would be contravened.
It would be contrary to the plain language of the statute and subvert
the law's objective if the Clean Water Act only protected paragraph
(a)(1) waters upon a showing that there were effects on every attribute
of their integrity. This interpretation is consistent with the
agencies' longstanding position. As the agencies stated in the Rapanos
Guidance: ``Consistent with Justice Kennedy's instruction, EPA and the
Corps will apply the significant nexus standard in a manner that
restores and maintains any of these three attributes of traditional
navigable waters.'' Rapanos Guidance at 10 & n.35.
Some commenters stated that the proposed definition of
``significantly affect'' was too expansive and would allow the agencies
to assert jurisdiction over any body of water, no matter the size, even
if connections are remote or scientifically questionable. Some
commenters asserted that overall, the proposed definition of
``significantly affect'' was unclear, difficult to understand, and
provides the agencies with too much discretion to make jurisdictional
decisions. A couple of these commenters stated that the definition
would require case-by-case assessments and as a result, the approach
does not give fair notice to stakeholders of when the Clean Water Act
applies. The agencies disagree for the reasons outlined below,
including that this rule's definition of ``significantly affect'' is
consistent with case law and the science and places appropriate
limitations on the significant nexus standard.
The agencies' definition of the term ``significantly affect'' in
this rule is linked directly to the objective of the Act and to the
effects upstream waters have on the water quality of paragraph (a)(1)
waters. The definition is also informed by and consistent with Supreme
Court case law addressing the scope of ``waters of the United States.''
Beginning with Riverside Bayview, the Supreme Court stated that the
``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 is [are]
maintained.' H.R. Rep. No. 92-911, p. 76 (1972).'' 474 U.S. at 132. The
definition of ``significantly affect'' finds further support in the
Court's conclusion that: ``If 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 138 n.9. The majority opinion in SWANCC
introduced the phrase ``significant nexus'' as the concept that
informed the Court's reading of Clean Water Act jurisdiction over
waters that are not navigable in fact. 531 U.S. at 167, 172. Based on
SWANCC, Justice Kennedy's concurrence in Rapanos stated that to
constitute ``waters of the United States'' covered by the Clean Water
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.'' 547 U.S. at 759 (Kennedy, J., concurring in the judgment)
(citing SWANCC, 531 U.S. at 167, 172). And five Justices support
jurisdiction under Justice Kennedy's conclusion 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.' '' 547
U.S. at 780.
Justice Kennedy's assessment of the facts and the evidence in the
cases before the justices further inform the scope of this rule's
definition of ``significantly affect.'' In Rapanos, Justice Kennedy
stated that in both the consolidated cases before the Court the record
contained evidence suggesting the possible existence of a significant
nexus according to the principles he identified. See id. at 783.
Justice Kennedy concluded that ``the end result in these cases and many
others to be considered by the Corps may be the same as that suggested
by the dissent, namely, that the Corps' assertion of jurisdiction is
valid.'' Id. Justice Kennedy remanded the cases because neither the
agency nor the reviewing courts applied the proper legal standard. See
id. Justice Kennedy was clear however, that ``[m]uch the same
[[Page 3123]]
evidence should permit the establishment of a significant nexus with
navigable-in-fact waters, particularly if supplemented by further
evidence about the significance of the tributaries to which the
wetlands are connected.'' Id. at 784.
With respect to one of the wetlands at issue in the consolidated
Rapanos cases, Justice Kennedy stated: ``In Carabell, No. 04-1384, the
record also contains evidence bearing on the jurisdictional inquiry.
The Corps noted in deciding the administrative appeal that `[b]esides
the effects on wildlife habitat and water quality, the [district
office] also noted that the project would have a major, long-term
detrimental effect on wetlands, flood retention, recreation and
conservation and overall ecology.' . . . The Corps' evaluation further
noted that by `eliminat[ing] the potential ability of the wetland to
act as a sediment catch basin,' the proposed project `would contribute
to increased runoff and . . . accretion along the drain and further
downstream in Auvase Creek.' And it observed that increased runoff from
the site would likely cause downstream areas to `see an increase in
possible flooding magnitude and frequency.' '' Id. at 785-86 (citations
omitted). Justice Kennedy also expressed concern that ``[t]he
conditional language in these assessments--`potential ability,'
`possible flooding'--could suggest an undue degree of speculation.''
Id. at 786. Justice Kennedy's observations regarding the underlying
case inform this rule's definition of ``significant nexus'': the
functions and factors established by the definition are consistent with
those identified as relevant by Justice Kennedy, and the requirement
that waters have a ``material influence'' on paragraph (a)(1) waters
ensures that the assessment under the significant nexus standard is
well-documented and reasonable based on that record.
This rule's definition of ``significantly affect'' is also
consistent with the best available information, as summarized in the
Science Report and the Technical Support Document. See section III.E of
the Technical Support Document. The Science Report concluded that
watersheds are integrated at multiple spatial and temporal scales by
flows of surface water and ground water, transport and transformation
of physical and chemical materials, and movements of organisms.
Further, the Science Report stated, although all parts of a watershed
are connected to some degree--by the hydrologic cycle or dispersal of
organisms, for example--the degree and downstream effects of those
connections vary spatially and temporally, and are determined by
characteristics of the chemical, physical, and biological environments
and by human activities. Those spatial and temporal variations are
reflected in the agencies' final rule defining ``significantly affect''
to mean ``a material influence,'' in the functions the agencies assess,
and in the factors they use to consider the strength of those
functions.
The agencies have more than a decade of experience implementing the
significant nexus standard by making determinations of whether a water
alone or in combination with similarly situated waters in the region
significantly affects the chemical, physical, or biological integrity
of a paragraph (a)(1) water. The agencies under the pre-2015 regulatory
regime routinely conducted case-specific significant nexus analyses and
in many cases concluded that there was no significant nexus. Based on
the agencies' experience, many waters under this rule will not have a
significant nexus to paragraph (a)(1) waters, and thus will not be
jurisdictional under the Clean Water Act. The agencies also note that
the vast majority of resources assessed in approved jurisdictional
determinations under the Rapanos Guidance were not assessed under the
significant nexus standard. Historically, roughly 12% of resources
assessed in approved jurisdictional determinations under the Rapanos
Guidance required a significant nexus analysis. It is the agencies'
expectation that the number of significant nexus analyses will increase
under this rule due to the assessment of waters under paragraph (a)(5)
pursuant to the significant nexus standard, but it is correspondingly
expected that the percent of resources found to be jurisdictional under
significant nexus analyses will decrease because generally waters will
be assessed individually under paragraph (a)(5) to determine if they
meet the significant nexus standard (see section I.B.3.6 of the
Economic Analysis for the final rule).
The agencies disagree that the definition of ``significantly
affect'' and the associated case-by-case assessments do not give fair
notice to stakeholders of when the Clean Water Act applies. Because of
the factual nature of the jurisdictional inquiry, any standard will
require some case-specific factual determinations. The 2020 NWPR
acknowledged that ``[a]s to simplicity and clarity, the agencies
acknowledge that field work may frequently be necessary to verify
whether a feature is a water of the United States.'' 85 FR 22270 (April
21, 2020). As the Supreme Court has recently recognized in Maui, the
scope of Clean Water Act jurisdiction does not easily lend itself to
bright lines: ``In sum, we recognize that a more absolute position . .
. may be easier to administer. But, as we have said, those positions
have consequences that are inconsistent with major congressional
objectives, as revealed by the statute's language, structure, and
purposes.'' Maui, 140 S. Ct. at 1477. Like the Court in Maui, the
agencies have established factors to be used in considering the
strength of the effects on paragraph (a)(1) waters and have identified
the functions they will assess in making significant nexus
determinations under the proposed rule. This definition increases the
implementability of this rule and is consistent with major
congressional objectives, as revealed by the statute's language,
structure, and purposes. This rule also clearly identifies the
categories of waters subject to assessment under the relatively
permanent standard and significant nexus standard and those features
that are excluded from the definition of ``waters of the United
States.'' See section IV.C.10 of this preamble for additional guidance
to landowners on jurisdictional determinations.
Some commenters supported the specific list of factors in the
proposed rule. Other commenters asserted that the list was broad and
unclear, and some of these commenters stated that the factors would
lead to subjective, unpredictable outcomes and lengthy project delays.
Some commenters addressed specific aspects of the proposed factors. For
example, some commenters stated that the proposed factor ``distance
from a paragraph (a)(1) water'' and the proposed factor ``distance from
a water of the United States'' were redundant. Other commenters
requested that the agencies add factors on soil and watershed
characteristics. Some commenters requested specific examples of how the
factors would be implemented and considered together in a significant
nexus determination.
The agencies disagree that the factors listed in the proposed rule
were broad, subjective, and unclear. However, the agencies have
modified the factors in response to public comments and to increase
clarity in this rule. The agencies agree with commenters who asserted
that distance from ``waters of the United States'' is not necessary to
include in light of the other factors, such as distance from a
paragraph (a)(1) water and landscape position and geomorphology, and
have not included the factor in this rule. In response to
[[Page 3124]]
public comments requesting additional detail on how the factors will be
applied, the agencies have modified the proposed language on
``hydrologic factors, including subsurface flow'' in this rule to
provide additional specificity by referring to ``hydrologic factors,
such as the frequency, duration, magnitude, timing, and rate of
hydrologic connections, including shallow subsurface flow.'' The
agencies added a new factor on ``landscape position and geomorphology''
in response to public comments requesting that the agencies consider
watershed and soil characteristics. Landscape position and
geomorphology capture characteristics like topography, slope, and soil
porosity which may, for example, affect the strength of the hydrologic
or biological connections between the subject waters and a paragraph
(a)(1) water.
Some commenters asserted that the proposed factors were only
related to physical integrity, and requested that the agencies add
factors that they asserted are related to chemical and biological
integrity (e.g., water quality parameters, pH, or biological
indicators). The agencies disagree that the factors are only related to
physical integrity. The factors in this rule influence the types and
strength of chemical, physical, or biological connections and
associated effects that streams, wetlands, and open waters have on
paragraph (a)(1) waters. As described further in section IV.C.9.c of
this preamble, in general, identified functions coupled with stronger
factors increase the likelihood of demonstrating a significant nexus.
For example, similarly situated waters that have the capacity to trap
or transform pollutants are more likely to affect the chemical
integrity of a paragraph (a)(1) water if the similarly situated waters
are closer to the paragraph (a)(1) water, or if there is a larger
number or higher density of those similarly situated waters.
Many commenters on the proposal requested that the agencies add a
specific list of functions that upstream wetlands and waters can
provide to paragraph (a)(1) waters to the definition of ``significantly
affect.'' The commenters differed in whether they thought the list
should be exhaustive or non-exhaustive, and whether all functions need
to be demonstrated or just one function needs to be demonstrated to
support a significant nexus determination. Some commenters supported
the use of functions listed in the proposed rule from the Rapanos
Guidance in significant nexus determinations. Some commenters requested
that the agencies consider additional functions that are based on the
best available science. Some commenters asserted that when functions
such as flood storage and pollutant retention result from a lack of
hydrologic connection, those functions should not be considered in a
significant nexus analysis.
The agencies agree that including a list of functions in this rule
would promote clarity and implementation consistency. The agencies
selected a list of functions based on the functions identified in the
Rapanos Guidance discussed in the preamble to the proposed rule, the
agencies' experience implementing the significant nexus standard,
public comments on that list of functions, and consideration of the
best available science. The functions in this rule that can be provided
by tributaries, wetlands, and open waters are keyed to the chemical,
physical, and biological integrity of traditional navigable waters, the
territorial seas, and interstate waters. Additionally, assessment of
the functions in this rule is consistent with the agencies'
implementation of the pre-2015 regulatory regime. See Rapanos Guidance
at 8, 9. The agencies disagree with commenters who asserted that when
functions such as flood storage and pollutant retention result from a
lack of hydrologic connection, those functions should not be assessed
in a significant nexus analysis. Such a rigid, categorical test would
ignore that, even in the absence of a hydrologic connection, an
upstream water could still have an important functional relationship to
a downstream traditional navigable water, the territorial seas, or an
interstate water, most notably where the upstream water retains
floodwaters or pollutants that would otherwise flow downstream to the
traditional navigable water, the territorial seas, or interstate water.
See Technical Support Document section III.D.1; see also 547 U.S. at
775 (Kennedy, J., concurring in the judgment) (``[I]t may be the
absence of an interchange of waters prior to the dredge and fill
activity that makes protection of the wetlands critical to the
statutory scheme.'').
The identification of each of the functions in this rule is
supported by the best available science. The contribution of flow
downstream is an important function, as upstream waters can be a
cumulative source of the majority of the total mean annual flow to
bigger downstream rivers and waters, including via the recharge of
baseflow. Streams, wetlands, and open waters contribute surface and
subsurface water downstream, and are the dominant sources of water in
most rivers. Contribution of flow can significantly affect the
integrity of downstream paragraph (a)(1) waters, helping to sustain the
volume of water in larger waters which also influences the
concentrations of chemicals within those waters.
Trapping, transformation, filtering, and transporting materials
(including nutrients, sediment, and other pollutants) are important
functions influencing the integrity of paragraph (a)(1) waters.
Sediment storage and export via streams to downstream waters is
important for maintaining the physical river network, including the
formation of channel features. Nutrient recycling in upstream waters
results in the uptake and transformation of large quantities of
nitrogen and other nutrients that otherwise would be transported
directly downstream, thereby decreasing impairments of paragraph (a)(1)
waters. Streams, wetlands, and open waters also improve water quality
through the assimilation and sequestration of pollutants, including
chemical contaminants such as pesticides and metals that can degrade
the integrity of paragraph (a)(1) waters. Streams can also transport
excess nutrients, excess sediment, and other pollutants downstream,
such as the case of the tributaries in the Ohio River and Missouri
River Basins that transport excess nitrogen downstream that contributes
to ``dead zones'' in the Gulf of Mexico, or tributaries to the
Guadalupe, San Joaquin, and Sacramento Rivers contributing contaminated
mercury sediments from mine operations to San Francisco Bay.
Contaminants are commonly transported from streams to larger downstream
rivers bound to sediments.
Wetlands and small streams are particularly effective at retaining
and attenuating floodwaters. Streams, wetlands, and open waters affect
the physical integrity of paragraph (a)(1) waters by retaining large
volumes of stormwater that could otherwise negatively affect the
condition or function of those paragraph (a)(1) waters. This retention
and subsequent slowed release of floodwaters can reduce flood peaks in
paragraph (a)(1) waters and can also maintain river baseflows in
paragraph (a)(1) waters by recharging alluvial aquifers.
Water temperature is critical to the distribution and growth of
aquatic life in downstream waters, both directly (through its effects
on organisms) and indirectly (through its effects on other
physiochemical properties, such as dissolved oxygen and suspended
solids). For example, water temperature controls metabolism and level
of
[[Page 3125]]
activity in cold-blooded species like fish, amphibians, and aquatic
invertebrates. Temperature can also control the amount of dissolved
oxygen in streams, as colder water holds more dissolved oxygen, which
fish and other fauna need to breathe. Tributaries provide both cold and
warm water refuge habitats that are critical for protecting aquatic
life in downstream paragraph (a)(1) waters. Floodplain wetlands and
open waters also exert substantial controls on water temperature in the
downgradient tributary network and ultimately in the paragraph (a)(1)
water.
Streams, wetlands, and open waters supply habitat and food
resources for paragraph (a)(1) waters, such as dissolved and
particulate organic matter (e.g., leaves, wood), which support
biological activity throughout the river network. In addition to
organic matter, streams, wetlands, and open waters can also export
other food resources downstream, such as aquatic insects that are the
food source for fish in paragraph (a)(1) waters. The export of organic
matter and food resources downstream is important to maintaining the
food webs and thus the biological integrity of paragraph (a)(1) waters.
Streams, wetlands, and open waters provide life-cycle dependent aquatic
habitat (such as foraging, feeding, nesting, breeding, spawning, and
use as a nursery area) for species located in paragraph (a)(1) waters.
Many species require different habitats for different needs (e.g.,
food, spawning habitat, overwintering habitat), and thus move
throughout a river network over their life-cycles. For example, to
protect Pacific and Atlantic salmon in traditional navigable waters
(and their associated commercial and recreational fishing industries),
protections must be provided from the headwater streams where the fish
are born and spawn to the marine waters where they spend most of their
lives. Additionally, headwater streams can provide refuge habitat when
adverse conditions exist in the larger waterbodies downstream, enabling
fish to persist and recolonize downstream areas once conditions have
improved. These upstream systems form integral components of downstream
food webs, providing nursery habitat for breeding fish and amphibians,
colonization opportunities for stream invertebrates, and maturation
habitat for stream insects, including for species that are critical to
downstream ecosystem function. The provision of life-cycle dependent
aquatic habitat for species located in paragraph (a)(1) waters can
significantly affect the biological integrity of those downstream
waters.
It is also important to note that the agencies' significant nexus
standard in this rule is carefully tailored so that only particular
types of functions provided by upstream waters can be assessed.
Wetlands, streams, and open waters are well-known to provide a wide
variety of functions that translate into ecosystem services. A
significant nexus analysis, however, is limited to an assessment of
only those functions identified in this rule that have a nexus to the
chemical, physical, or biological integrity of paragraph (a)(1) waters.
Thus, there are some important functions provided by wetlands,
tributaries, and waters evaluated under paragraph (a)(5) that will not
be assessed by the agencies when making jurisdictional decisions under
this rule. For example, for purposes of a jurisdictional analysis under
the significant nexus standard, the agencies will not be taking into
account the carbon sequestration benefits that aquatic resources like
wetlands provide. Provision of habitat for non-aquatic species, such as
migratory birds, and endemic aquatic species would not be considered as
part of a significant nexus analysis under this rule.\125\ Furthermore,
the agencies would not assess soil fertility in terrestrial systems,
which is enhanced by processes in stream and wetland soils and non-
floodplain wetlands that accumulate sediments, prevent or reduce soil
erosion, and retain water on the landscape, benefiting soil quality and
productivity in dry lands. There are also a wide variety of functions
that streams, wetlands, and open waters provide that translate into
ecosystem services that benefit society that would not be assessed in a
significant nexus analysis under this rule. These include provision of
areas for personal enjoyment (e.g., fishing, hunting, boating, and
birdwatching areas), ceremonial or religious uses, production of fuel,
forage, and fibers, extraction of materials (e.g., biofuels, food, such
as shellfish, vegetables, seeds, nuts, rice), plants for clothes and
other materials, and medical compounds from wetland and aquatic plants
or animals. While these types of ecosystem services can contribute to
the economy, they are not relevant to the chemical, physical, or
biological integrity of paragraph (a)(1) waters and would not be
considered in a significant nexus analysis under this rule.
---------------------------------------------------------------------------
\125\ As this preamble has stated, consideration of biological
functions such as provision of habitat is relevant for purposes of
significant nexus determinations under this rule only to the extent
that the functions provided by tributaries, adjacent wetlands, and
waters assessed under paragraph (a)(5) significantly affect the
biological integrity of a paragraph (a)(1) water. For example, to
protect Pacific and Atlantic salmon in traditional navigable waters
(and their associated commercial and recreational fishing
industries), protections must be provided from the headwater streams
where the fish are born and spawn to the marine waters where they
spend most of their lives.
---------------------------------------------------------------------------
ii. Comments on Interpretation and Implementation of ``Significantly
Affect''
The agencies proposed that waters can significantly affect
paragraph (a)(1) waters either alone or in combination with similarly
situated waters in the region. The agencies solicited comment on
approaches for implementing this rule, including regarding which waters
are ``similarly situated,'' and thus should be analyzed in combination,
in the scope of the ``region,'' for purposes of a significant nexus
analysis. Some commenters asserted that the agencies need to consider
cumulative impacts of water features and their collective influence on
downstream waters. These commenters supported aggregating waters as
part of a significant nexus analysis and provided various suggestions
for interpreting ``similarly situated'' and ``in the region.'' Some
commenters stated that the agencies should not aggregate waters as part
of a significant nexus analysis, asserting that aggregation would lead
to subjectivity, lack of clarity, implementation challenges, and
arbitrary outcomes. Some of these commenters did not believe it would
be appropriate to aggregate features far from a project site with
features on the project site in assessing impacts on downstream waters.
Some commenters asserted that the proposed rule would presume that
virtually the entire tributary system, along with isolated waters and
wetlands, perform functions in the aggregate that benefit downstream
waters. Other commenters asserted that aggregation should not be
expanded beyond the Rapanos Guidance approach, and they expressed
concern that the proposed rule would aggregate waters more broadly than
the guidance. Some commenters expressed concern that with an
aggregation approach to significant nexus, all waters assessed within a
given region could be determined to be jurisdictional, including waters
outside the project area. Some of these commenters suggested that the
agencies would eventually assert jurisdiction across most of the
country, one watershed at a time.
The agencies disagree that aggregating waters as part of a
significant nexus
[[Page 3126]]
analysis is inappropriate. The agencies have retained the language in
this rule that waters will be assessed either alone or in combination
with similarly situated waters in the region. See sections IV.C.9.c,
IV.C.4.c, IV.C.5.c, and IV.C.6.c of this preamble for a discussion on
the agencies' approach to implementing the significant nexus standard
for tributaries, adjacent wetlands, and paragraph (a)(5) waters. The
agencies have also added language to the definition of ``significantly
affect'' to further clarify that waters will be assessed either alone
or in combination with similarly situated waters in the region.
Assessing the functions of identified waters in combination is
consistent not only with the significant nexus standard, as described
in section IV.A of this preamble, but with the science demonstrating
how upstream waters affect downstream waters. Scientists routinely
analyze the combined effects of groups of waters, aggregating the known
effect of one water with those of ecologically similar waters in a
specific geographic area, or to a certain scale. This is because the
chemical, physical, and biological integrity of downstream waters is
directly related to the aggregate contribution of upstream waters that
flow to them, including any tributaries and connected wetlands. As a
result, the scientific literature and the Science Report consistently
document that the health of larger downstream waters is directly
related to the aggregate health of waters located upstream, including
waters such as wetlands that may not be hydrologically connected but
function together to mitigate the potential impacts of flooding and
pollutant contamination on downstream waters. See Technical Support
Document section III.E.ii.
The agencies also disagree that the agencies would assert
jurisdiction too broadly based on the definition of ``significantly
affect.'' As discussed in section IV.A of this preamble, the agencies
have carefully crafted a rule that falls within the limitations of the
statute while achieving the Clean Water Act's objective. Historically,
only roughly 12% of resources assessed in approved jurisdictional
determinations under the Rapanos Guidance required a significant nexus
analysis, and the agencies routinely concluded that waters do not meet
the significant nexus standard. Based on the agencies' experience, many
waters assessed under this rule will not have a significant nexus to
paragraph (a)(1) waters, and thus will not be jurisdictional under the
Clean Water Act under this rule.
The following are examples of waters that would likely not be
jurisdictional under this rule, although the agencies recognize that
each significant nexus determination is case-specific. Examples of
waters that would not likely have a significant nexus to paragraph
(a)(1) waters based on an assessment under this rule of the regulatory
factors and functions include: a headwater non-relatively permanent
tributary located within a catchment with no other tributaries and few
adjacent wetlands in the Eastern United States, which is many miles
from the paragraph (a)(1) water and contributes low duration, low
magnitude, and low volume flows downstream; a group of non-relatively
permanent tributaries and adjacent wetlands located within a closed
basin in the arid West that does not connect to any paragraph (a)(1)
water; a non-relatively permanent tributary located within a small
catchment with another non-relatively permanent tributary and few
adjacent wetlands in the arid West, which exhibits losing stream
conditions and capacity to provide only infrequent and very low volume
flows to the paragraph (a)(1) water; a ditched and straightened non-
relatively permanent tributary with no adjacent wetlands in the
Southeastern United States that exhibits minimal in-stream or riparian
habitat value, carries only limited amounts of stormwater from a small
catchment, and is located miles upstream from the paragraph (a)(1)
water; a non-adjacent wetland in the Northwestern United States that
would likely provide only minimal functions to a paragraph (a)(1) water
given its landscape position in relation to the tributary network and
the paragraph (a)(1) water; and a non-tributary pond that is
hydrologically connected to the nearest jurisdictional water only
during infrequent flooding events but which is miles from the paragraph
(a)(1) water and would be unlikely to have a material influence on that
paragraph (a)(1) water. While in most of these examples, the tributary,
wetland, lake, or pond may well have had some effect on a paragraph
(a)(1) water, under the hypothetical circumstances described, the
water(s) would not have a material influence on the chemical, physical,
or biological integrity of the identified paragraph (a)(1) water, i.e.,
does not significantly affect that water, and therefore the water(s)
would not be jurisdictional under the Clean Water Act.
Conversely, the following are examples of waters that would likely
be jurisdictional under this rule, although again, each significant
nexus determination is case-specific. Examples include: a second-order
headwater non-relatively permanent tributary located within a catchment
with several other tributaries and several adjacent wetlands in the
Southwestern United States, which are a moderate distance from the
paragraph (a)(1) water but contribute high magnitude and high volume
flows downstream during seasonal precipitation events that lead to
strong effects of the functions on the paragraph (a)(1) water,
including the transport of large volumes of sediment and woody debris
that help shape and structure the channel of the paragraph (a)(1) water
by slowing the flow of water through channels and providing habitat and
food sources for the fish that live in the paragraph (a)(1) water; a
non-relatively permanent tributary with several adjacent wetlands in
the Midwestern United States that provides breeding grounds for fish
that live in paragraph (a)(1) waters, contributes flows of moderate
magnitude and moderate volume downstream during frequent precipitation
events, and is located within a short distance of a paragraph (a)(1)
water; and an adjacent wetland in the Mountain West that is similarly
situated with dozens of other adjacent wetlands and several
tributaries, has the capacity to store high volumes of floodwaters and
to store and process nutrients that would otherwise reach a downstream
paragraph (a)(1) water, thereby reducing flooding and the potential for
algal blooms in the paragraph (a)(1) water, and that provides strong
functions to a paragraph (a)(1) water given its landscape position in
relation to the tributary network and the paragraph (a)(1) water. Under
the hypothetical circumstances described, the water(s) would have a
material influence on the chemical, physical, or biological integrity
of the identified paragraph (a)(1) water, i.e., significantly affects
that water, and therefore the water(s) would be jurisdictional under
the Clean Water Act.
The agencies also disagree that any aggregation approach would be
subjective, unclear, or difficult to implement. The proposed rule
included alternative options for aggregation (i.e., how to interpret
``similarly situated'' and ``in the region'') for the public to comment
upon. After considering public comments, the agencies are providing
additional information in this preamble to provide clarity regarding
implementation of ``similarly situated'' and ``in the region'' for
purposes of aggregating waters as part of a significant nexus analysis.
Furthermore, the agencies have extensive experience
[[Page 3127]]
aggregating waters under prior regulatory regimes. This preamble
discusses a variety of tools that are available for identifying waters
that are similarly situated in the region as part of a significant
nexus analysis (see, e.g., section IV.C.4.c of this preamble).
This rule's provision for waters to be assessed either alone, or in
combination with other similarly situated waters in the region, is
consistent with the Science Report. An example from the Science Report
is illustrative. The amount of water or biomass contributed by a
specific ephemeral stream in a given year might be small, but the
aggregate contribution of that stream over multiple years, or by all
ephemeral streams draining that watershed in a given year or over
multiple years, can have important consequences on the chemical,
physical, or biological integrity of the downstream waters. Science
Report at 6-10; see also sections III.A.v and III.E.ii of the Technical
Support Document. Similarly, the downstream effect of a single event,
such as pollutant discharge into a single stream or wetland, might be
negligible but the cumulative effect of multiple discharges could
degrade the integrity of downstream waters. The Science Report finds,
``[t]he amount of nutrients removed by any one stream over multiple
years or by all headwater streams in a watershed in a given year can
have substantial consequences for downstream waters.'' Science Report
at 1-11. The cumulative effects of nutrient export from the many small
headwater streams of the Mississippi River have resulted in large-scale
ecological and economically harmful impacts hundreds of miles
downstream, thereby impacting commercial and recreational fisheries in
the northern Gulf of Mexico.
Many commenters asserted that the proposed rule was unclear as to
how the agencies would interpret the ``region'' for purposes of a
significant nexus analysis. Some of these commenters expressed concern
that the region would be determined on a case-specific basis, leading
to regulatory uncertainty. Some commenters asserted that the ``region''
should be interpreted narrowly, and many of these commenters opposed
any expansion of the scope of analysis as compared to the Rapanos
Guidance. Several commenters stated that a watershed or ecoregion
approach to interpreting the ``region'' would be too expansive. Many
commenters supported a watershed approach to interpreting the
``region,'' with some commenters supporting a large single point of
entry watershed and other commenters supporting smaller watersheds
(e.g., hydrologic unit code (HUC) 10 or HUC 12). These commenters
asserted that a watershed-based approach is consistent with the science
and would ultimately protect the traditional navigable waters, the
territorial seas, and interstate waters that are the focus of Clean
Water Act protections. Some commenters criticized the Rapanos Guidance
approach for determining the ``region,'' asserting that it was too
narrow and not based on scientific evidence. Some commenters supported
an interpretation of ``region'' based on hydrological characteristics
or geomorphic characteristics, and some of these commenters stated that
such approaches would allow for the consideration of site-specific
field data. Other commenters supported an ecoregion-based approach,
although these commenters differed in the ``level'' of ecoregion sizes
that they recommended using. As discussed in the implementation section
below, the agencies have determined that the catchment of the tributary
is a reasonable and technically appropriate scale for identifying ``in
the region'' for purposes of the significant nexus standard. The
catchment is an easily identified and scientifically defensible unit
for identifying the scope of waters that together may have an effect on
the chemical, physical, or biological integrity of a particular
traditional navigable water, the territorial seas, or an interstate
water.
c. Implementation
This rule provides increased clarity and substantial guidance to
assist in implementing the significant nexus standard. The agencies
have more than a decade of experience implementing the significant
nexus standard by making determinations of whether a water alone or in
combination with similarly situated waters in the region significantly
affects a paragraph (a)(1) water. This section of the preamble provides
the agencies' general approach to implementing the definition of
``significantly affect'' for purposes of the significant nexus
standard. See sections IV.C.4, IV.C.5, and IV.C.6 of this preamble for
additional information on how the agencies will implement the
significant nexus standard, including identifying waterbodies on the
landscape and determining which waters are ``similarly situated'' and
``in the region.''
i. General Scope of the Significant Nexus Analysis
Under the significant nexus standard in this rule, the agencies
must identify the waters that are ``similarly situated'' and the
``region'' for purposes of determining whether waters ``significantly
affect'' paragraph (a)(1) waters. The agencies will interpret these
terms for purposes of this rule in a similar, but not identical, manner
to the approach to these terms in the Rapanos Guidance. The agencies'
approach in this rule is based on longstanding practice, the scientific
support for this rule, and practical implementation considerations.
The focus of the significant nexus standard is on restoring and
maintaining the chemical, physical, and biological integrity of
paragraph (a)(1) waters. Therefore, the agencies have interpreted the
phrase ``similarly situated'' under pre-2015 practice and will continue
to interpret that phrase in this rule, in terms of whether waters are
providing common, or similar, functions for paragraph (a)(1) waters
such that it is reasonable to consider their effects together. In
implementing this rule, the agencies will continue their practice under
the Rapanos Guidance of assessing the flow characteristics and
functions of tributaries, together with the functions performed by any
wetlands adjacent to those tributaries, to determine whether
collectively they have a significant nexus with paragraph (a)(1)
waters. See Rapanos Guidance at 8. The agencies continue to conclude
that implementation of ``similarly situated'' to include tributaries
and their adjacent wetlands in this way is reasonable because of its
strong scientific foundation--that is, the integral ecological
relationship between a tributary and its adjacent wetlands. See Rapanos
Guidance at 10. In considering how to apply the significant nexus
standard, the agencies have long focused on the integral relationship
between the ecological characteristics of tributaries and those of
their adjacent wetlands, which determines in part their contribution to
restoring and maintaining the chemical, physical, or biological
integrity of paragraph (a)(1) waters. The ecological relationship
between tributaries and their adjacent wetlands is well documented in
the scientific literature and reflects their physical proximity as well
as shared hydrological and biological characteristics. Id. at 9.
This approach to implementing similarly situated is also consistent
with the scientific support for this rule. Stream and wetland
connectivity to downstream waters, and the resulting effects on the
integrity of downstream paragraph (a)(1) waters, is best understood and
assessed when considered cumulatively. One of the main conclusions of
the Science Report is that the incremental contributions of
[[Page 3128]]
individual streams and wetlands are cumulative across entire
watersheds, and their effects on downstream waters should be evaluated
within the context of other streams and wetlands in that watershed. See
Technical Support Document section III.E.ii and section IV.A of this
preamble for additional discussion. Furthermore, this approach is clear
and implementable, and this preamble discusses a variety of tools that
are available for determining which waters are similarly situated as
part of a significant nexus analysis. See, e.g., section IV.C.4.c of
this preamble. See section IV.C.6.c of this preamble for discussion on
how the agencies intend to implement the significant nexus standard for
waters assessed under paragraph (a)(5).
The agencies have identified ``in the region'' for purposes of the
significant nexus standard in this rule as the catchment of the
tributary. The catchment is the area of the land surface that drains to
a specific location for a specific hydrologic feature, in this case the
tributary. Catchments will be delineated from the downstream-most point
of the tributary reach of interest and include the area uphill that
drains to that point. Topography and landscape position influence the
size and configuration of a catchment. For example, if the tributary of
interest is East Fork Clear Creek--a second order stream that is a
tributary that flows indirectly to a traditional navigable water--the
catchment would be delineated from the point that East Fork Clear Creek
enters Clear Creek, a third order stream, and include the area uphill
that drains to that point. The catchment for East Fork Clear Creek
would include not just East Fork Clear Creek, but also any first order
streams that flow into East Fork Clear Creek, and these streams would
be aggregated together along with any wetlands adjacent to the streams
as part of a significant nexus analysis. As another example, if the
tributary of interest is Willow Creek--a first order stream that is a
tributary that flows indirectly to a traditional navigable water--the
catchment would be delineated from the point that Willow Creek enters a
second order stream and include the area uphill that drains to that
point. The catchment would then only include Willow Creek, and Willow
Creek would be aggregated together along with any adjacent wetlands as
part of a significant nexus analysis. See discussion of stream order in
section IV.C.4.c.i of this preamble. The catchment of the tributary of
interest may contain not just the tributary of interest, but also lower
order tributaries that are aggregated together along with any adjacent
wetlands as part of a significant nexus analysis.
This region (i.e., the catchment of the tributary) for the vast
majority of tributaries is smaller, and usually substantially smaller,
than the region identified by the watershed that drains to the nearest
point of entry of a paragraph (a)(1) water, which was the ``region''
used to implement the 2015 Clean Water Rule. While this region is
generally larger than the region assessed in the Rapanos Guidance under
which the agencies assessed the relevant reach of a tributary in
combination with its adjacent wetlands, the catchment is an easily
identified and scientifically defensible unit for identifying the scope
of waters that together may have an effect on the chemical, physical,
or biological integrity of a particular traditional navigable water,
the territorial seas, or an interstate water. Moreover, the catchment
is often considered an appropriate spatial unit for water resource
management. Anthropogenic actions and natural events can have
widespread effects within the catchment that collectively impact the
integrity and quality of the relevant paragraph (a)(1) water. The
functions of the contributing waters are inextricably linked and have a
cumulative effect on the integrity of the paragraph (a)(1) water. For
these reasons, it is more appropriate to conduct a significant nexus
analysis at the catchment scale than to focus on a specific site, such
as an individual stream segment. In light of the scientific literature,
the longstanding approach of the agencies' implementation of the Clean
Water Act, and the statutory goals underpinning Justice Kennedy's
significant nexus framework, the agencies consider the catchment of the
tributary to be the appropriate ``region'' for a significant nexus
analysis. Therefore, all tributaries in a catchment and their adjacent
wetlands, if any, will be assessed in combination to determine whether
the significant nexus standard is met.
For practical administrative purposes, this rule does not require
evaluation of all similarly situated waters when concluding that those
waters have a significant nexus to a paragraph (a)(1) water. When an
identified subset of similarly situated waters provides a sufficient
science-based justification to conclude presence of a significant
nexus, for efficiency purposes a significant nexus analysis need not
require time and resources to locate and analyze all similarly situated
waters in the entire catchment. For example, if a single waterbody or a
group of similarly situated waterbodies in a portion of the catchment
is determined to significantly affect the chemical, physical, or
biological integrity of a paragraph (a)(1) water, the analysis does not
have to document all of the similarly situated waterbodies in the
catchment in order to complete the significant nexus analysis for the
water(s) subject to the jurisdictional determination. A conclusion that
a significant nexus is lacking may not, however, be based on
consideration of some subset of similarly situated waters because under
the significant nexus standard, the inquiry is how the similarly
situated waters in combination affect the integrity of the paragraph
(a)(1) water. Individuals uncertain about the status of waters on their
property may obtain a jurisdictional determination from the Corps. The
Corps does not charge a fee for this service. See 33 CFR 325.1; RGL 16-
01 (2016).
ii. Assessing the Functions and Considering the Factors
In determining whether a water alone or in combination with
similarly situated waters in the region has a material influence on the
chemical, physical, or biological integrity of a paragraph (a)(1)
water, the agencies will assess the functions in paragraph (c)(6)(i) of
this rule and consider the factors in paragraph (c)(6)(ii) this rule in
order to reasonably determine jurisdiction based on the record before
them.\126\ The agencies will consider the factors in this rule to
analyze the strength of the influence of the functions on paragraph
(a)(1) waters. In general, functions associated with stronger factors
increase the likelihood of demonstrating a material influence on
paragraph (a)(1) waters. For example, when assessing the functions
provided by the subject waters (and any similarly situated waters) to
paragraph (a)(1) waters, the agencies would consider whether the
factors are likely to increase the strength of the influence on the
paragraph (a)(1) water. Distance from a paragraph (a)(1) water; high
frequency, magnitude, or duration of hydrologic connections; high
density of similarly situated waters; landscape position and
geomorphology translating to a high likelihood of effects on paragraph
(a)(1) waters; and/or certain climatological variables like rainfall
patterns leading to more frequent hydrologic connections
[[Page 3129]]
all translate to a higher likelihood of effects on paragraph (a)(1)
waters. Functions associated with weaker factors decrease the
likelihood of demonstrating a material influence on paragraph (a)(1)
waters. For example, when assessing the functions provided by the
subject waters (and any similarly situated waters) to paragraph (a)(1)
waters, the agencies would consider whether the factors are likely to
decrease the strength of the influence on the paragraph (a)(1) water.
These factors can include a far distance from a paragraph (a)(1) water;
low frequency, magnitude, or duration of hydrologic connections; low
density of similarly situated waters; landscape position and
geomorphology translating to a low likelihood of effects on paragraph
(a)(1) waters; and/or climatological variables like rainfall patterns
translating to a low likelihood of effects on paragraph (a)(1) waters.
Thus, analyses of waters that provide the listed functions to paragraph
(a)(1) waters, but where only weak factors are present, may not be
sufficient to demonstrate a material influence. In assessing the
functions under this rule, if a water, either alone or in combination
with similarly situated waters in the region, performs one function
that has a material influence on the integrity of a paragraph (a)(1)
water, that water would have a significant nexus. The agencies will
consider all of the factors together when assessing the functions and
the strength of the influence in the context of each case-specific
determination of jurisdiction. Consistent with longstanding practice,
the agencies will make decisions based on best professional judgment
and on the best available information.
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\126\ The agencies are not requiring the use of ``functional
assessment'' methods for significant nexus analyses under this rule.
``Functional assessment'' methods are used in other regulatory
contexts, such as for mitigation planning, to explicitly measure the
strength of functions at the impact site and potential mitigation
site(s).
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When assessing the functions and considering the factors in the
final rule to analyze the influence of subject waters on the integrity
of paragraph (a)(1) waters, the likelihood of a material influence is
generally greater with increases in the number or size of the aquatic
resource or resources being considered, decreasing distance from the
identified paragraph (a)(1) water, as well as with increased density of
the waters considered in combination as similarly situated waters.
However, the agencies also recognize that in watersheds with fewer
aquatic resources, a smaller number and/or lower density of similarly
situated waters can provide functions that have disproportionate
effects on paragraph (a)(1) waters. Hydrologic factors include the
frequency, duration, magnitude, timing, and rate of hydrologic
connections, as well as surface and shallow subsurface hydrologic
connections. The presence of a surface or shallow subsurface hydrologic
connection, as well as increased frequency, magnitude, or duration of
such connections, can increase the strength of the functions that the
subject waters provide to paragraph (a)(1) waters, and the
corresponding chemical, physical (i.e., hydrologic), or biological
influence that a water has on paragraph (a)(1) waters. In some
situations, streams with low duration but a high volume of flow can
provide strong functions to paragraph (a)(1) waters by transporting
large volumes of water, sediment, and woody debris that help maintain
the integrity of those larger waters. A lack of hydrologic connections
can also in some cases contribute to the strength of effects for
certain functions such as floodwater attenuation or the retention and
transformation of nutrients and other pollutants. Landscape position
and geomorphology provide critical information about the relative
location of the subject waters being considered within the watershed
and their spatial relationship to the paragraph (a)(1) water. The
slope, soil composition and transmissivity, and waterbody substrate
composition and other physical characteristics (e.g., channel shape)
can all impact the strength of the functions identified in this rule
and the associated influence on paragraph (a)(1) waters. Climatological
factors like temperature, rainfall, and snowpack in a given region can
influence the strength of the functions provided by the subject waters
to paragraph (a)(1) waters by affecting the frequency, duration,
magnitude, timing, and rate of hydrological connections.
There are ways the agencies can consider a changing climate under
the significant nexus standard, but only to the extent it is relevant
to the evaluation of whether the subject waters significantly affect
the chemical, physical, or biological integrity of paragraph (a)(1)
waters. For example, a lake that dries up from warming temperatures due
to climate change and no longer has a surface hydrologic connection to
downstream waters at the time of assessment might become non-
jurisdictional, whereas another lake that previously had limited
surface hydrologic connectivity might have increased hydrologic
connectivity with higher precipitation conditions under a changing
climate.
In addition, under the significant nexus standard the agencies can
consider the functions of streams, wetlands, and open waters that
support the resilience of the chemical, physical, or biological
integrity of paragraph (a)(1) waters to climate change. For example,
more intense and frequent storms and other shifts in precipitation
cause floods to increase in frequency and volume in some areas of the
United States. A significant nexus determination can evaluate the
strength of the effect of runoff storage in wetlands, open waters, and
headwater tributaries in mitigating increased flood risk associated
with climate change in paragraph (a)(1) waters. In other areas of the
country, drought is leading to decreased baseflows in paragraph (a)(1)
waters. A significant nexus analysis can assess whether the
transmission of flows into alluvial or regional aquifer storage through
tributaries and wetlands can mitigate for these climate change-related
conditions, and assess those benefits to paragraph (a)(1) waters.
Changes in flow in tributaries caused by climate change will also be
relevant to the relatively permanent standard, but that standard does
not allow the agencies to take into account the contribution of
upstream waters to the resilience of the integrity of downstream
waters. However, considering on a case-specific basis the strength and
importance of the functions provided by aquatic resources that
contribute to the resilience of the integrity of paragraph (a)(1)
waters to climate change is consistent with the policy and goals of the
Clean Water Act, case law, and the policy goals of this administration
as articulated in Executive Order 13990.
The agencies recognize that there are climate benefits that
streams, wetlands, and open waters provide that are not related to
restoring or maintaining the integrity of paragraph (a)(1) waters, such
as carbon sequestration. Those functions are not considered under this
rule, because they are not directly related to the chemical, physical,
or biological integrity of paragraph (a)(1) waters and therefore are
not relevant to Clean Water Act jurisdiction.
The record for determinations of jurisdiction (e.g., approved
jurisdictional determinations for section 404 permits) for waters
evaluated under the significant nexus standard will include available
information supporting the determination. In addition to location and
other descriptive information regarding the water at issue, the record
will include an explanation of the rationale for the jurisdictional
conclusion and a description of the information used. Relevant
information can come from many sources and may in some cases include
studies of the same type of water or similarly situated waters that
apply to the water being evaluated. The determination of jurisdiction
applies
[[Page 3130]]
only to the subject waters located in the area of interest and is a
case-specific determination based on current conditions (except in the
case of a potential enforcement action). Any similarly situated waters
that are part of the significant nexus analysis but that are not in the
area of interest are not subject to the jurisdictional decision (and so
would not automatically be deemed jurisdictional or non-
jurisdictional). For example, where the subject water is a portion of a
tributary reach, the significant nexus analysis would encompass the
entire tributary reach of the same order, any tributaries within the
catchment of that reach, and any wetlands adjacent to those
tributaries. However, the jurisdictional determination would only apply
to the portion of the tributary reach that is subject to the
determination.
iii. Tools for a Significant Nexus Analysis
The agencies have used many tools and sources of information to
assess significant effects on the chemical, physical, and biological
integrity of paragraph (a)(1) waters. Some tools and resources that the
agencies have used to provide and evaluate evidence of a significant
effect on the physical integrity of paragraph (a)(1) waters include
USGS stream gage data, floodplain maps, statistical analyses,
hydrologic models and modeling tools such as USGS's StreamStats or the
Corps' Hydrologic Engineering Centers River System Analysis System
(HEC-RAS), physical indicators of flow such as the presence and
characteristics of a reliable OHWM with a channel defined by bed and
banks, or other physical indicators of flow including such
characteristics as shelving, wracking, water staining, sediment
sorting, and scour, information from NRCS soil surveys, precipitation
and rainfall data, and NRCS snow telemetry (SNOTEL) data or NOAA
national snow analyses maps.
To evaluate the evidence of a significant effect on the biological
integrity of paragraph (a)(1) waters, the agencies and practitioners
have used tools and resources such as: population survey data and
reports from Federal, Tribal, and State resource agencies, natural
history museum collections databases, bioassessment program databases,
fish passage inventories, U.S. Fish and Wildlife Service (FWS) Critical
Habitat layers, species distribution models, and scientific literature
and references from studies pertinent to the distribution and natural
history of the species under consideration.
Tools and resources that can provide and evaluate evidence of a
significant effect on the chemical integrity of paragraph (a)(1) waters
include data from USGS water quality monitoring stations; Tribal,
State, and local water quality reports; water quality monitoring and
assessment databases; EPA's How's My Waterway (available at https://www.epa.gov/waterdata/hows-my-waterway), which identifies Clean Water
Act section 303(d) listed waters, water quality impairments, and total
maximum daily loads; watershed studies; stormwater runoff data or
models; EPA's NEPAssist (available at https://www.epa.gov/nepa/nepassist), which provides locations and information on wastewater
discharge facilities and hazardous-waste sites; the National Land Cover
Database (NLCD); and scientific literature and references from studies
pertinent to the parameters being reviewed. EPA has developed a web-
based interactive water quality and quantity modeling system
(Hydrologic and Water Quality System, HAWQS, available at https://www.epa.gov/waterdata/hawqs-hydrologic-and-water-quality-system) that
is being used to assess the cumulative effects of wetlands on the
larger waters to which they drain. Additional approaches to quantifying
the hydrologic storage capacity of wetlands include statistical models,
such as pairing LIDAR-based topography with precipitation totals. Both
statistical and process-based models have been used to quantify the
nutrient removal capacities of non-floodplain wetlands, and in some
cases to assess the effects of non-floodplain wetland nutrient removal,
retention, or transformation on downstream water quality. Evaluations
of a significant effect on the chemical integrity of a paragraph (a)(1)
water may include qualitative reviews of available information or
incorporate quantitative analysis components including predictive
transport modeling.
10. Guidance for Landowners on How To Know When Clean Water Act Permits
are Required
The agencies understand that landowners would like to be able to
easily discern whether their property contains any ``waters of the
United States'' such that they may need to apply for a relevant Clean
Water Act permit. With this rule, the agencies strive to provide
additional clarity for the public. To that end, the rule clearly
excludes some waters from Clean Water Act jurisdiction, thereby
narrowing the category of waters that require additional jurisdictional
analysis. The rule also clearly identifies some categories of waters as
jurisdictional by rule without the need for further analysis. For the
small percentage of waters that are not categorically excluded from, or
included in, Clean Water Act jurisdiction, and which do not meet the
relatively permanent standard, the agencies have established a new
regulatory provision defining the meaning of ``significantly affect''
to guide implementation of the significant nexus standard. This
provision provides the public with a clearer picture of the functions
the agencies will assess and the factors the agencies will consider in
determining whether waters being analyzed ``significantly affect''
(i.e., have a material influence on) the integrity of traditional
navigable waters, the territorial seas, or interstate waters and
therefore meet the rule's definition of ``waters of the United
States.''
Recognizing the concerns of landowners, the discussion below is
designed to bring together information from the statute, the final
rule's text, and this preamble--including the many useful tools
identified in this preamble--to provide individual landowners with the
step-by-step information needed to make informed decisions.\127\ In
addition, as discussed further below, the Corps has established a
process for landowners to request an official determination of whether
or not there are ``waters of the United States'' on their property. The
Corps does not charge a fee for this service.\128\ In cases where a
landowner seeks to undertake an activity that involves discharges of
dredged or fill material into areas that are ``waters of the United
States'' that is not exempt from the permit requirements of the Clean
Water Act, this section provides information about some of the general
permits the Corps \129\ has established that allow certain activities
to proceed with little or no delay if the general conditions and any
special conditions for the permit are met. Lastly, this section
provides information for those rare occasions when a landowner needs an
individual section 404 permit for an activity regulated under that
section of the Clean Water Act.
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\127\ See also https://www.epa.gov/wotus for the latest
information on implementation of the definition of ``waters of the
United States.''
\128\ To obtain a speedier determination, some landowners choose
to incur some expense in providing site information supporting the
jurisdictional determination request, such as a delineation of the
lake or pond, stream, or wetland.
\129\ The agencies note that New Jersey, Michigan, and Florida
have assumed administration of section 404 programs for certain
waters in those States under section 404(g) of the Act.
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[[Page 3131]]
Step 1: Is the activity I want to take on my property exempt from
needing a Clean Water Act permit?
Not all activities in or discharges to ``waters of the United
States'' require authorization under the Clean Water Act. Generally,
section 402 or section 404 permits are required if a person is
discharging, or adding, a ``pollutant'' from a ``point source'' to the
``waters of the United States.'' The terms ``discharge of a
pollutant,'' ``pollutant,'' and ``point source'' all have specific
definitions in the Clean Water Act that must be met for the Act's
requirements to apply. Even if a landowner is discharging a
``pollutant'' from a ``point source,'' those discharges still may not
require a Clean Water Act permit because the statute and the agencies'
regulations exempt some types of discharges from permitting under
section 404 (for dredged and fill material) and section 402 (for other
pollutants).
If a landowner wants to dredge or fill ``waters of the United
States,'' many activities are exempt from the Clean Water Act's section
404 permitting requirements,\130\ including:
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\130\ Note, however, that Clean Water Act section 404(f)
establishes circumstances (based on certain effects on ``waters of
the United States'') under which an activity listed as exempt is no
longer exempt. For more detail, see section 404(f) and the
regulations on ``discharges not requiring a permit'' at 33 CFR
323.4.
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Established (ongoing) farming, ranching, and silviculture
activities such as plowing, seeding, cultivating, minor drainage,
harvesting for the production of food, fiber, and forest products, or
upland soil and water conservation practices;
Maintenance (but not construction) of drainage ditches;
Construction and maintenance of irrigation ditches;
Construction and maintenance of farm or stock ponds;
Construction and maintenance of farm and forest roads, in
accordance with best management practices; and
Maintenance of structures such as dams, dikes, and levees.
Additionally, many discharges of pollutants other than dredged or
fill material do not require section 402 permits: \131\
---------------------------------------------------------------------------
\131\ See 40 CFR 122.3 for the regulatory provisions.
---------------------------------------------------------------------------
Any discharge of sewage from vessels, effluent from
properly functioning marine engines, laundry, shower, and galley sink
wastes, or any other discharge incidental to the normal operation of a
vessel;
Any introduction of pollutants from nonpoint-source
agricultural and silvicultural activities, including storm water runoff
from orchards, cultivated crops, pastures, range lands, and forest
lands;
Return flows from irrigated agriculture; and
Discharges from a water transfer.
Step 2: Is water on my property covered by this rule?
The Clean Water Act does not cover every geographic feature with
water in it; nor does it subject all activities in waters meeting the
definition of ``waters of the United States'' to regulation (as
discussed in Step 1). Puddles may periodically contain water, but they
are not lakes, ponds, streams, or wetlands and they are not ``waters of
the United States.'' The rule also has a well-established, very
specific, three-factor definition of wetlands. That definition requires
the presence of particular wetland hydrology, soils, and vegetation.
Therefore, a homeowner's backyard that is soggy only immediately after
a rainstorm is not ``waters of the United States'' under the rule.
Some waters are always jurisdictional under the rule: traditional
navigable waters, the territorial seas, and interstate waters. Lakes
and ponds, streams (including certain ditches), and wetlands that are
not always jurisdictional under paragraph (a)(1) of the rule require
additional assessment to determine whether they are ``waters of the
United States'' under other categories of the rule. This additional
assessment follows longstanding principles.
If a landowner's property does not contain the types of waters,
including wetlands, covered by this rule, it is not jurisdictional.
Step 3: Is the water on my property excluded from the definition of
``waters of the United States''?
In evaluating whether a water, including a wetland, on a
landowner's property is covered by the Clean Water Act, first determine
whether it fits into one of this rule's categorical exclusions. The
rule excludes certain features that commonly contain water but are not
``waters of the United States'' (so long as the features are not the
types of waters that are always jurisdictional--traditional navigable
waters, the territorial seas, and interstate waters):
prior converted cropland;
ditches (including roadside ditches) excavated wholly in
and draining only dry land and that do not carry a relatively permanent
flow of water;
artificially irrigated areas that would revert to dry land
if the irrigation ceased;
artificial lakes or ponds created by excavating or diking
dry land to collect and retain water and which are used exclusively for
such purposes as stock watering, irrigation, settling basins, or rice
growing;
artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating or diking dry land to
retain water for primarily aesthetic reasons;
waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of water meets
the definition of ``waters of the United States'';
swales and erosional features (e.g., gullies, small
washes) characterized by low volume, infrequent, or short duration
flow; and
waste treatment systems, including treatment ponds or
lagoons, designed to meet the requirements of the Clean Water Act.
These exclusions are discussed in more detail in section IV.C.7 of
this preamble.
Where a feature located on a landowner's property satisfies the
terms of an exclusion, it is not jurisdictional under the Clean Water
Act. That is the case even where the feature would otherwise be
jurisdictional as an impoundment; tributary; adjacent wetland; or
intrastate lake or pond, stream, or wetland under this rule.
Step 4: If the activity I want to undertake on my property is not
exempt from permitting requirements, and the feature on my property is
likely a water for purposes of the rule (and is not covered by one of
the exclusions), what do I do next?
If the feature on a landowner's property is likely a geographic
feature considered to be a water, including a wetland, for purposes of
the rule and is not covered by one of the exclusions, the next step is
to determine if the water is a ``water of the United States'' under one
of the longstanding categories in the rule: (1) traditional navigable
waters, the territorial seas, and interstate waters; (2) jurisdictional
impoundments of ``waters of the United States''; (3) jurisdictional
tributaries; (4) jurisdictional adjacent wetlands; and (5) intrastate
lakes and ponds, streams, or wetlands not identified in paragraphs
(a)(1) through (4) of the rule that meet either the relatively
permanent standard or the significant nexus standard.
This preamble identifies publicly available tools and resources to
assist landowners in understanding the jurisdictional status of waters,
including tributaries and wetlands, that may be
[[Page 3132]]
present on their lands. At the same time, the agencies recognize there
are circumstances under which it may be difficult for an individual
landowner to determine on their own whether a water on their land is
jurisdictional. This section can help landowners to conclude whether a
water on their land is likely to be jurisdictional; if landowners want
certainty, they can ask the Corps for an approved jurisdictional
determination. The Corps does not charge a fee for this service.
Alternatively, as discussed below, some of these activities are readily
authorized under a nationwide or regional general permit issued by the
Corps. A landowner does not need an approved jurisdictional
determination for an activity authorized by a general permit.
(1) Traditional Navigable Waters, the Territorial Seas, and Interstate
Waters
Traditional navigable waters, the territorial seas, and interstate
waters are always jurisdictional. Section IV.C.2. of this preamble
explains how the agencies will identify these waters.
(2) Jurisdictional Impoundments of ``Waters of the United States''
Impoundments are distinguishable from natural lakes and ponds
because they are created by discrete structures (often human-built)
like dams or levees that typically have the effect of raising the water
surface elevation, creating or expanding the area of open water, or
both. Impoundments can be natural (like beaver ponds) or artificial
(like reservoirs). Under the rule, jurisdictional impoundments include
(1) impoundments created by impounding one of the ``waters of United
States'' that was jurisdictional under this rule's definition at the
time the impoundment was created, and (2) impoundments of waters that
at the time of assessment meet the definition of ``waters of the United
States'' under the rule as a traditional navigable water, the
territorial seas, interstate water, jurisdictional tributary, or
jurisdictional adjacent wetland, regardless of the water's
jurisdictional status at the time the impoundment was created. Section
IV.C.3 of this preamble explains how the agencies will identify
jurisdictional impoundments.
(3) Jurisdictional Tributaries
The agencies understand that it can be confusing to determine if
certain waters and features are tributaries, and whether those
tributaries are ``waters of the United States.'' It can be especially
confusing if waters or features on a landowner's property are
periodically dry--some examples include washes, swales, and ephemeral
streams. So how can a landowner determine whether features like this
are jurisdictional?
The first question is whether the water or feature on a landowner's
property is excluded as an erosional feature or is potentially
jurisdictional as a stream. Section IV.C.7.c.ii.3 of this preamble
discusses the distinctions between excluded erosional features like
swales, washes, and gullies and potentially jurisdictional streams. So,
for example, a water would be a stream, not an excluded erosional
feature, if the water has a defined channel and an indicator of an
ordinary high water mark such as a natural line impressed on the
bank.\132\
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\132\ The Corps has useful guidance on how to identify an
ordinary high water mark, including Regulatory Guidance Letter 05-
05, ``Ordinary High Water Mark'' (available at https://www.nap.usace.army.mil/Portals/39/docs/regulatory/rgls/rgl05-05.pdf).
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If the water is determined to be a stream, the next question is
whether that stream is part of the tributary system of a traditional
navigable water, the territorial seas, or an interstate water. For
tools that can help a landowner make this determination, see Step 5,
below. If it is part of such a tributary system, the final question is
whether it satisfies either the relatively permanent standard or the
significant nexus standard under this rule. See section IV.C.4.c of
this preamble for additional information on how to apply these
standards. Also, the landowner can ask the Corps to determine whether
the feature on their property is jurisdictional as discussed further
below.
The agencies recognize that it can be confusing that streams with
less than relatively permanent flow, which often look dry, can be
``waters of the United States.'' But such streams, where they meet the
significant nexus standard, are important parts of the ecological
system that sustains traditional navigable waters, the territorial
seas, and interstate waters. For example, while almost all the streams
in Arizona regularly do not have water in them, they are essential to
the flow in downstream waters, like the Colorado River. Similarly,
headwater ephemeral streams in the forests of the Northeastern United
States are essential to flow in downstream rivers. Filling ephemeral
streams could cause significant harm to the downstream rivers. The
importance of ephemeral streams is evident from videos of these streams
flowing after rain events in the Southwest. This video \133\ also
highlights the difference between dry land and ephemeral tributaries
and demonstrates why landowners would not want to construct a building
in an ephemeral stream.
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\133\ U.S. Department of Agriculture, Agricultural Research
Service, Multiflume Runoff Event August 1, 1990, https://www.tucson.ars.ag.gov/unit/WGWebcam/WalnutGulchWebcam.htm.
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(4) Jurisdictional Adjacent Wetlands
The rule uses the same definition of ``adjacent'' that has been
used by the agencies for the past 45 years: \134\ adjacent means
bordering, contiguous, or neighboring. The agencies have long used
three criteria to identify wetlands that are adjacent. These criteria
are: (1) the wetland has an unbroken surface or shallow subsurface
connection to a jurisdictional water; (2) the wetland is separated from
a jurisdictional water by an artificial dike, natural berm, or the
like; or (3) the wetland is reasonably close to a jurisdictional water.
There is an extensive discussion of how the agencies will implement
these criteria in section IV.C.5.c of this preamble. The agencies have
not established a specific distance limitation in the rule beyond which
wetlands are never adjacent, but nearly 45 years of implementation of
this definition shows in a substantial number of cases, adjacent
wetlands abut (touch) a jurisdictional water. And, on the whole,
nationwide, adjacent wetlands are within a few hundred feet from
jurisdictional waters (and in the instances where the distance is
greater than a few hundred feet, adjacency is likely supported by a
pipe, non-jurisdictional ditch, karst geology, or some other feature
that connects the wetland directly to the jurisdictional water).
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\134\ The 2020 NWPR had a different definition and was in effect
from June 22, 2020 (in all jurisdictions except Colorado, where the
rule did not go into effect until April 26, 2021) to August 30,
2021, when the rule was vacated by the Arizona district court. The
2015 Clean Water Rule had the same definition of ``adjacent'' but
added a definition of ``neighboring.''
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Examples of ``adjacent'' wetlands include wetlands that touch
jurisdictional tributaries. If the wetland is only separated from the
jurisdictional tributary by a levee, it is adjacent. If there is a
barrier, like a river berm or a dike, between the wetland and a
jurisdictional tributary, for example, the wetland still meets the
definition of ``adjacent.'' If the wetland is connected to a
jurisdictional tributary by a ditch that is not jurisdictional, the
wetland is adjacent.
If your property contains a ``wetland'' and it is ``adjacent'' it
must also meet one of the rule's jurisdictional tests. Wetlands that
are themselves traditional navigable waters, interstate waters, or are
``adjacent'' to such waters are ``waters of the United States'' by
rule.
[[Page 3133]]
This includes, for example, tidal marshes along the Atlantic Coast that
are subject to the ebb and flow of the tide and therefore are
traditional navigable waters, wetlands that are separated from the
Mississippi River from levees, and the Great Dismal Swamp, a wetland
which crosses the border between Virginia and North Carolina. Other
``adjacent'' wetlands are only ``waters of the United States'' if they
satisfy either the relatively permanent standard or the significant
nexus standard.
(5) Jurisdictional Intrastate Lakes and Ponds, Streams, or Wetlands Not
Identified in Paragraphs (a)(1) Through (4) of the Rule
The rule defines ``waters of the United States'' to include
``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. The agencies
intend to identify relatively permanent waters under this provision
using a similar approach to the one described for relatively permanent
tributaries in section IV.C.4.c.ii of this preamble. In implementing
the significant nexus standard, the agencies generally intend to
analyze these waters individually to determine if they significantly
affect the chemical, physical, or biological integrity of a paragraph
(a)(1) water. One example of the kind of water that is likely to be
assessed under this provision is a lake that is close to a
jurisdictional tributary or traditional navigable water, the
territorial seas, or an interstate water, but that is not part of the
tributary system; this is because the adjacency provision in the rule
(and in the longstanding regulations) applies only to wetlands, not to
lakes and ponds.
Step 5: Are there resources and sources of help from the agencies
to aid me in this process?
Yes, in addition to the rule and preamble, the agencies have
identified several other types of resources to help landowners in the
jurisdictional and permitting process. First, the agencies have
identified a number of publicly available, user-friendly tools and
resources for landowners seeking more information about whether their
property contains ``waters of the United States.'' Next, the Corps has
established a process for landowners to request an official
determination of whether or not there are ``waters of the United
States'' on their property. Finally, in cases where a landowner is
undertaking an activity that is not exempt from the permit requirements
of the Clean Water Act and their land contains waters that are likely
to be or that the Corps has determined to be ``waters of the United
States,'' this section provides information about some of the general
permits the Corps has established that allow certain activities to
proceed with little or no delay if the general and any special
conditions for the permit are met. In addition, EPA and authorized
states have established general permits for a wide variety of
discharges subject to permitting under section 402 that have minimal
impacts to waters. Finally, this section also provides information on
those rare occasions when a landowner needs an individual Clean Water
Act section 404 permit.
(1) Are there any publicly available tools and resources to help me get
more information about waters on my land?
This preamble includes an extensive discussion of the many tools
and resources the agencies can use when making jurisdictional
determinations. It also discusses publicly available resources that
provide jurisdictional and permit information. See sections IV.G and H
of this preamble. Some of these publicly available tools and resources
may be particularly useful for landowners seeking more information
about whether their property might contain ``waters of the United
States.'' For example, EPA's Clean Water Act Approved Jurisdictional
Determination website (available at https://watersgeo.epa.gov/cwa/CWA-JDs/) includes a map viewer that shows where waters have been
determined to be jurisdictional or non-jurisdictional based on approved
jurisdictional determinations. Users can quickly and easily input a
location (e.g., a city and State, or a latitude and longitude) to view
approved jurisdictional determinations that have been finalized in a
specific geographic area. Additionally, publicly available map viewers
integrate datasets, allowing users to consolidate and evaluate relevant
data from multiple sources in one visual platform. EPA's EnviroAtlas
(available at https://www.epa.gov/enviroatlas/enviroatlas-interactive-map) is a map viewer that provides information and interpretative tools
to help facilitate surface water assessments using multiple data layers
such as land cover, stream hydrography, soils, and topography. Users
can quickly and easily input a location (e.g., a city and State, or a
latitude and longitude) and select relevant map layers from a list of
individual datasets and indices. The EPA Watershed Assessment,
Tracking, and Environmental Results System (WATERS) Geoviewer
(available at https://www.epa.gov/waterdata/waters-geoviewer) provides
many map layers, including water map layers like NHDPlus, and watershed
reports for analysis and interpretation. Similarly, in the USGS
National Map Viewer (available at https://apps.nationalmap.gov/viewer/)
users can view different map layers, including aerial imagery, water
map layers like the NHD and NHDPlus High Resolution, wetlands map
layers like NWI, and land cover, elevation data, and topographic maps.
EPA's How's My Waterway mapper (available at https://mywaterway.epa.gov/) provides users with information about the water
quality of their local waterways, including information about water
quality impairments and section 402 permitted dischargers.
(2) How can I obtain a jurisdictional determination for a water on my
property?
The Corps has long provided jurisdictional determinations as a
public service. The Corps does not charge a fee for this service. There
are two types of jurisdictional determinations provided by the Corps:
approved jurisdictional determinations and preliminary jurisdictional
determinations. An approved jurisdictional determination 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. A preliminary jurisdictional
determination is a document indicating 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. The Corps recognizes the
value of jurisdictional determinations to the public and reaffirms the
Corps' commitment to continue its practice of providing jurisdictional
determinations, for which it does not charge a fee, upon request. A
landowner who would like to know whether areas on their property meet
the definition of ``waters of the United States'' may contact their
local Corps district regulatory office at any time. The list of local
district regulatory offices is available at the following link: https://www.usace.army.mil/Missions/Locations/. Contact information is
available at the link for each local office.
When a local district regulatory office is contacted, district
personnel will ensure that the landowner understands the different
types of jurisdictional determinations so the landowner can make an
informed decision about which type of jurisdictional determination is
most appropriate for the landowner's circumstances. See section
III.A.1.b of this preamble for a discussion of the
[[Page 3134]]
types of jurisdictional determinations the Corps issues. Once the
landowner determines the best option for their particular circumstance,
it is the Corps' policy to honor the request unless it is
impracticable.
The Corps may need to conduct one or more site visits to collect
information when a landowner requests an approved or preliminary
jurisdictional determination. In addition to information collected
during the site visit(s), the Corps will use data from other resources
(such as those described in this preamble) as well as any information
the landowner wishes to provide to inform the jurisdictional
determination. A landowner may choose to hire an environmental
consultant who can assist by providing site evaluation information and
data collection, thereby supporting a more efficient process. Once the
Corps has completed the jurisdictional determination, they will provide
it to the landowner in a letter.
If the jurisdictional determination is an approved jurisdictional
determination, the letter from the Corps will typically include one or
more approved jurisdictional determination forms that explain the basis
for the determination that the aquatic resources on the landowner's
property are or are not ``waters of the United States.'' The landowner
will also receive a form to request an appeal of the approved
jurisdictional determination. Consistent with Regulatory Guidance
Letter 05-02, ``Expiration of Geographic Jurisdictional Determinations
of `Waters of the United States,''' the landowner can rely upon the
approved jurisdictional determination until it expires unless new
information warrants revision of the approved jurisdictional
determination prior to its expiration.
If the landowner disagrees with the Corps' approved jurisdictional
determination, the landowner can request that it be reconsidered and
submit any available new information or data to the district. If, after
such reconsideration, or in the absence of any new information, the
landowner disagrees with the approved jurisdictional determination, the
landowner may administratively appeal the decision by sending a
completed Request for Administrative Appeal form to the appropriate
Corps' division office. The Corps' regulations at 33 CFR part 331
describe the administrative appeal process. The Corps' division may
determine that none of the reasons for appeal have merit, in which case
the approved jurisdictional determination remains in effect until it
expires or it is revised by the Corps district. Alternatively, the
Corps' division may determine that one or more of the reasons for
appeal have merit in which case the approved jurisdictional
determination is remanded to the district for reconsideration. The
landowner may also challenge the approved jurisdictional determination
in Federal district court.\135\
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\135\ In U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct.
1807 (2016), the Supreme Court held that approved jurisdictional
determinations are subject to judicial review.
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(3) Are there general permits under section 404 of the Clean Water Act
for individual landowners? How do I obtain coverage under a nationwide
permit?
Landowners that wish to pursue activities that are or may be
subject to the permit requirements of the Clean Water Act and that will
impact ``waters of the United States'' on their property may be able to
obtain coverage under a general permit. General permits are issued on a
nationwide, regional, or statewide basis for particular categories of
activities that result in no more than minimal individual or cumulative
adverse environmental effects. While some general permits require the
applicant to submit a pre-construction notification to the Corps or a
State, others allow the project proponent to proceed with the
authorized activity with no formal notification. The general permit
process allows certain activities to proceed with little or no delay if
the conditions of the general permit are met. For example, minor road
construction activities, utility line backfill, and minor discharges
for maintenance can be authorized by a general permit, where the
activity meets the acreage limits and other limits specified in the
general permit.
As of the date of this rule, the Corps has issued 57 nationwide
permits (NWPs), a number of which may be of particular use to
individual property owners. Authorization to discharge dredged or fill
material is provided under the following NWPs: NWP 3 authorizes
discharges associated with maintenance of previously authorized and
serviceable structures and fill; NWP 18 authorizes minor discharges of
less than 25 cubic yards that result in the loss of no more than \1/
10\-acre of ``waters of the United States,'' which can include
activities undertaken by a landowner; NWP 29 authorizes discharges that
result in the loss of no more than \1/2\-acre of non-tidal ``waters of
the United States'' to support the construction or expansion of a
single residence or a residential development; NWP 33 authorizes
temporary discharges associated with construction activities and access
to construction sites, including for the construction or expansion of a
home or residential development if the area is restored to pre-
construction conditions; NWP 57 authorizes discharges associated with
electric utility and telecommunication line activities that result in
the loss of no more than \1/2\-acre of ``waters of the United States,''
including connecting these services to a home or residential
development; NWP 58 authorizes discharges associated utility line
activities for water and other substances that result in the loss of no
more than \1/2\-acre of ``waters of the United States,'' including
connecting water and sewer lines to a home or residential development.
These are general descriptions of the selected NWPs. The requirements
and conditions that apply to the NWPs are set forth in the rules
promulgating the NWPs. Corps personnel in the local district office can
help explain the requirements of each NWP, including any conditions
that have been added to the NWPs on a regional basis. Corps districts
may add conditions to activity-specific NWP authorizations to ensure
that those activities result in no more than minimal individual and
cumulative adverse environmental effects. Corps districts across the
country have issued approximately 450 regional general permits, and
information on these permits is provided on each district's website.
All general permits, including NWPs, are valid for a maximum of five
years and are subject to change, so this overview is for illustrative
purposes only. Property owners should always consult the most recently
promulgated general permit information.
Additional information on NWPs is available at the following link:
https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/.
(4) If I need an individual section 404 permit, how do I obtain
coverage?
The vast majority of activities subject to Clean Water Act section
404 permits are authorized under general permits; however, some
activities do require authorization under an individual permit
(generally because of a high level of impact on ``waters of the United
States'' or because the project proponent cannot comply with all
applicable conditions of a general permit). While the process of
applying for and evaluating an individual permit is more involved than
for a general permit, the time and complexity involved is commensurate
with the level of impact and can still be efficient. The Corps
[[Page 3135]]
Regulatory Program personnel will work with an applicant to ensure
potential adverse impacts associated with the proposed action have been
to the extent practicable avoided or minimized. This effort focuses not
only on lessening adverse impacts to waters, including wetlands, but
also other important aspects of the human environment including
endangered species and historic properties. Focused consideration of
these and other environmental factors during the project planning stage
could help avoid more complex and time-consuming evaluations and
consultations. As a result of this process of avoidance, minimization,
and with the implementation of certain compensatory mitigation, the
Corps ends up denying less than 1% of individual permit requests \136\
while still ensuring compliance with important Federal laws such as the
Endangered Species Act and the National Historic Preservation Act. The
Corps estimates that the typical cost associated with the individual
permit process for a project affecting up to three acres of
jurisdictional waters is between $15,500 and $37,300. The typical
homeowner's project is far more likely to fall within the terms of a
general permit (e.g., NWP 29, which authorizes discharges that result
in the loss of no more than \1/2\-acre of non-tidal ``waters of the
United States'' to support the construction or expansion of a single
residence or a residential development) than to require filling
multiple acres of jurisdictional waters.\137\
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\136\ Based on data from the Corps' ORM2 database.
\137\ According to recent U.S. Census data, even in the State
with the largest lot size, California, the average lot size is
substantially smaller than three acres, see https://www.census.gov/construction/chars/, meaning the acreage of jurisdictional waters
would be smaller still.
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D. Placement of the Definition of ``Waters of the United States'' in
the Code of Federal Regulations
1. This Rule
Prior to the 2020 NWPR, the definition of ``waters of the United
States'' was historically placed in eleven locations in the Code of
Federal Regulations (CFR). For the sake of simplicity, in this rule, as
in the 2020 NWPR, the agencies are codifying the definition of ``waters
of the United States'' in only two places in the CFR--in Title 33,
which generally implements the Corps' statutory authority, at 33 CFR
328.3, and in Title 40, which generally implements EPA's statutory
authority, at 40 CFR 120.2. Additionally, the agencies' final rule
makes several ministerial changes to EPA's regulations at part 120: (1)
this rule deletes the definition of ``navigable waters'' at 40 CFR
120.2 and adds the definition to the section ``purpose and scope'' at
40 CFR 120.1 and (2) this rule adds clarifying text to the section
``purpose and scope'' at 40 CFR 120.1.
2. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies proposed to maintain the definition of ``waters of the
United States'' at 33 CFR part 328 and in one location at 40 CFR 120.2.
The agencies also proposed to delete the definition of ``navigable
waters'' at 40 CFR 120.2 and to add the definition to the section
``purpose and scope'' of part 120 at 40 CFR 120.1. Additionally, the
agencies proposed to add additional clarifying text to the section
``purpose and scope'' at 40 CFR 120.1.
The agencies solicited comment on their deletion of the definition
of ``navigable waters'' at 40 CFR 120.2 and adding it instead to the
section ``purpose and scope'' at 40 CFR 120.1. One commenter supported
the proposed changes to placement of the definition of ``waters of the
United States.'' As the agencies stated in the preamble to the 2020
NWPR, the placement of the definition in two locations, at 33 CFR 328.3
and 40 CFR 120.2, increases convenience for the reader and provides
clarity to the public that there is a single definition of ``waters of
the United States'' applicable to the Clean Water Act and its
implementing regulations. The placement has no substantive implications
for the scope of Clean Water Act jurisdiction. 85 FR 22328 (April 21,
2020). In the sections of the CFR where EPA's definition previously
existed, 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5,
302.3, 401.11, and Appendix E to 40 CFR part 300, the 2020 NWPR cross-
references the then-newly created section of the regulations containing
the definition of ``waters of the United States.'' The cross-references
to 40 CFR 120.2 are maintained by this rule.
As discussed in the preamble of the proposed rule, the agencies
intend for the other revisions to 40 CFR 120--deleting the definition
of ``navigable waters'' at 40 CFR 120.2, adding the definition into the
section ``purpose and scope'' at 40 CFR 120.1, and adding clarifying
text to the section ``purpose and scope'' at 40 CFR 120.1--to be
editorial and clarifying changes and not substantive changes from EPA's
regulations. The agencies have concluded that these minor revisions add
consistency between EPA's regulations at 40 CFR 120 and the Corps'
regulations defining ``waters of the United States'' at 33 CFR 328.3.
As a result of this non-substantive revision, the agencies' definitions
will have parallel numerical and alphabetical subsections, providing
clarity for the public. The changes have no implications for Clean
Water Act program implementation. They are made for the sole purpose of
enhancing the clarity of EPA's regulation and providing consistency
across the implementing agencies' regulations.
E. Severability
The purpose of this section is to clarify the agencies' intent with
respect to the severability of provisions of this rule. Each category
and subcategory of jurisdictional waters in this rule is capable of
operating independently. If any provision or jurisdictional category or
subcategory of this rule is determined by judicial review or operation
of law to be invalid, that partial invalidation will not render the
remainder of this rule invalid. Likewise, if the application of any
portion of this rule to a particular circumstance is determined to be
invalid, the agencies intend that the rule remain applicable to all
other circumstances.
For example, in the absence of jurisdiction over a subcategory of
jurisdictional tributaries, adjacent wetlands, or paragraph (a)(5)
waters, references to those subcategories of waters could be removed,
and the agencies would continue to exercise jurisdiction under the
remainder of this rule (including unaffected subcategories). Each
exclusion in paragraph (b) and each definitional provision of paragraph
(c) also operates independently of the other provisions in this rule
and is intended to be severable. Moreover, as noted, the agencies
intend applications of this rule to be severable from other
applications, such that if the application of this rule to a given
circumstance is held invalid, the rule remains enforceable in all other
applications. For example, if a court were to determine that a wetland
cannot be treated as adjacent if it is separated from a jurisdictional
water by road or other barrier, the agencies intend that other
categories of wetlands within the rule's definition of ``adjacent''
would remain subject to jurisdiction.
F. Jurisdictional Determinations Issued Under Previous Rules
The agencies recognize that promulgation of this rule could lead to
questions regarding AJDs issued under prior rules defining ``waters of
the United States'' and the utility of such AJDs to support actions,
such as
[[Page 3136]]
requests for permits, following the effective date of this rule. In
this section, the agencies seek to provide clarity on the effect of
this rule on previously issued AJDs and the extent to which AJDs issued
under prior rules may be relied upon. To be clear, this discussion
merely explains pre-existing legal principles and does not create new
requirements.
An 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. See 33 CFR 331.2. As a matter of policy, AJDs are valid for a
period of five years from the date of issuance, unless new information
warrants revision of the determination before the expiration date, or a
District Engineer identifies specific geographic areas with rapidly
changing environmental conditions that merit reverification on a more
frequent basis. See U.S. Army Corps of Engineers, RGL No. 05-02,
section 1(a), p. 1 (June 2005). Additionally, the possessor of a valid
AJD may ask the Corps to reassess a parcel and issue a new AJD before
the five-year expiration date.\138\
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\138\ In contrast to AJDs, preliminary jurisdictional
determinations (PJDs) are advisory in nature and have no expiration
date. See 33 CFR 331.2; see also U.S. Army Corps of Engineers, RGL
No. 16-01 (October 2005) (RGL 16-01). This rule has no impact on
existing PJDs.
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This rule does not invalidate AJDs issued under prior definitions
of ``waters of the United States.'' As such, any existing AJD--except
AJDs issued under the vacated 2020 NWPR, which are discussed below--
will remain valid to support regulatory actions, such as permitting,
until its expiration date, unless one of the criteria for revision is
met under RGL 05-02 or the recipient of such an AJD asks the Corps to
issue a new AJD. Because agency actions are governed by the rule in
effect at the time an AJD is issued and not when the request was made,
all approved jurisdictional determinations issued on or after the
effective date of this rule will be made consistent with this rule.
Because two district courts vacated the 2020 NWPR, the agencies
have received many questions regarding the validity of AJDs issued
under the 2020 NWPR (hereinafter, ``NWPR AJDs''). In response to such
inquiries, the agencies have explained through previous public
statements that NWPR AJDs, unlike AJDs issued under other rules that
were changed pursuant to notice-and-comment rulemaking rather than
vacatur, may not reliably state the presence, absence, or limits of
``waters of the United States'' on a parcel and will not be relied upon
by the Corps in making new permit decisions following the Arizona
district court's August 30, 2021 order vacating the 2020 NWPR.\139\
Therefore, for any currently pending or future permit action that
intends to rely on a NWPR AJD, the Corps will discuss with the
applicant, as detailed in RGL 16-01,\140\ whether the applicant would
like to receive a new AJD completed under the regulatory regime in
effect at that time (i.e., the pre-2015 regulatory regime until this
rule is effective or this rule after it becomes effective) to continue
their permit processing or whether the applicant would like to proceed
in reliance on a preliminary jurisdictional determination or ``no JD
whatsoever.'' \141\
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\139\ U.S. Army Corps of Engineers, Navigable Waters Protection
Rule Vacatur (published January 5, 2022), available at https://www.usace.army.mil/Media/Announcements/Article/2888988/5-january-2022-navigable-waters-protection-rule-vacatur/; U.S. Environmental
Protection Agency, Current Implementation of Waters of the United
States (published January 5, 2022), available at https://www.epa.gov/wotus/current-implementation-waters-united-states.
\140\ U.S. Army Corps of Engineers, RGL No. 16-01 (October
2016).
\141\ See RGL 16-01 (explaining the ``no JD whatsoever''
option).
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NWPR AJDs issued prior to the Arizona district court's vacatur
decision and that are not associated with a permit action (also known
as ``stand-alone'' AJDs under RGL 16-01) will remain valid stand-alone
AJDs until their expiration date unless one of the criteria for
revision is met under RGL 05-02 or if the recipient of such an AJD
requests that a new AJD be provided. A recipient of a stand-alone NWPR
AJD should nonetheless be aware of the reliability considerations noted
above. Moreover, a recipient of a stand-alone NWPR AJD that intends to
discharge into waters identified as non-jurisdictional under the
vacated 2020 NWPR but that may be jurisdictional under the pre-2015
regulatory regime or this rule may want to discuss their options with
the Corps due to the unreliability of those jurisdictional findings.
G. Implementation Tools
This rule provides implementation guidance informed by sound
science, implementation tools, and other resources, drawing on more
than a decade of post-Rapanos implementation experience. Section IV.C
of this preamble addressing specific categories of waters provides
guidance on implementation of each provision of this rule. This section
addresses advancements in the implementation data, tools, and methods
that are relevant to jurisdictional determinations under this rule.
Although the agencies may also rely on site-specific information from
landowners or field visits, the agencies generally use publicly
available data, tools, and methods to inform determinations of
jurisdiction. These same resources can also be used by the public and
practitioners to assess aquatic resources to better understand whether
a particular resource may be jurisdictional. Some of these resources
are freely available, and others may charge a fee for use. Note that
members of the public are not required to conduct or provide any of the
analyses described in this section as part of a JD request. JD
requesters need only provide the agencies with a minimal amount of
information, including identification of the boundaries of the area of
interest, to request a JD. See RGL 16-01, Appendix 1. The following
discussion is provided to clarify how available data, tools, and
methods inform the agencies' determinations and confirm that interested
parties may use these same resources to inform their own siting
decisions, if so desired.
Since the Rapanos decision, there have been dramatic advancements
in the data, tools, and methods used to make jurisdictional
determinations, including in the digital availability of information
and data. In 2006, when the agencies began to implement the Rapanos and
Carabell decisions, there were fewer implementation tools and support
resources to guide staff in jurisdictional decision-making under the
relatively permanent and significant nexus standards. Agency staff were
forced to rely heavily on information provided in applicant submittals
and available aerial imagery to make jurisdictional decisions or to
schedule an in-person site visit to review the property themselves. The
2007 Corps Instructional Guidebook encouraged practitioners to utilize
maps, aerial photography, soil surveys, watershed studies, scientific
literature, previous jurisdictional determinations for the review area,
and local development plans to complete accurate jurisdictional
decisions or analysis. For more complicated situations or decisions
involving significant nexus evaluations, the Guidebook encouraged
practitioners to identify and evaluate the functions relevant to the
significant nexus by incorporating literature citations and/or
references from studies pertinent to the parameters being reviewed. For
significant nexus decisions specifically, the Guidebook instructed
practitioners to consider all
[[Page 3137]]
available hydrologic information (e.g., gage data, precipitation
records, flood predictions, historic records of water flow, statistical
data, personal observations/records, etc.) and physical indicators of
flow including the presence and characteristics of a reliable OHWM.
The Corps also issued RGL No. 07-01 \142\ in 2007. RGL No. 07-01
laid out principal considerations for evaluating the significant nexus
of a tributary and its adjacent wetlands which included the volume,
duration, and frequency of flow of water in the tributary, proximity of
the tributary to a traditional navigable water, and functions performed
by the tributary and its adjacent wetlands. This RGL highlighted
wetland delineation data sheets, delineation maps, and aerial
photographs as important for adequate information to support all
jurisdictional decision-making. Gathering the data necessary to support
preliminary or approved jurisdictional decisions was often time
consuming for staff and the regulated public. There were not many
nationally available repositories for much of the information that the
agency staff utilized in decision-making, particularly during the first
years of implementing the guidance. Despite these challenges, the
agencies and others in the practitioner community gained substantial
collective experience implementing the relatively permanent and
significant nexus standards from 2006 to 2015.
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\142\ RGL No. 07-01 was later superseded by RGL 08-02, which was
superseded by RGL 16-01, neither of which addressed significant
nexus evaluations.
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Since 2015, there have been dramatic improvements to the quantity
and quality of water resource information available on the internet,
including information and tools that are freely available to the
public. The agencies and other practitioners can use online mapping
tools to determine whether waters are connected or sufficiently close
to ``waters of the United States,'' and new user interfaces have been
developed that make it easier and quicker to access information from a
wide variety of sources. Furthermore, some information used to only be
available in hard-copy paper files, including water resource
inventories and habitat assessments, and many of these resources have
been made available online or updated with new information.
The following overview of several tools and data that have been
developed or improved since 2015 is intended to demonstrate how case-
specific evaluations can be made more quickly and consistently than
ever before. Advancements in geographic information systems (GIS)
technology and cloud-hosting services have led to an evolution in user
interfaces for publicly available datasets frequently used in
jurisdictional decision-making such as the NWI, USGS NHD, soil surveys,
aerial imagery, and other geospatial analysis tools like USGS
StreamStats. Not only are the individual datasets more easily
accessible to users, but it has also become much easier for users to
quickly integrate these various datasets using desktop or online tools
like map viewers to consolidate and evaluate the relevant data in one
visual platform. Such map viewers can assist, for example, with
considering the factors and assessing the functions in paragraph
(c)(6). The EPA Watershed Assessment, Tracking, and Environmental
Results System (WATERS) GeoViewer is an example of a web mapping
application that provides accessibility to many spatial dataset layers
like NHDPlus and watershed reports for analysis and interpretation.
Another web mapping application is the EPA's EnviroAtlas, which
provides information and interpretative tools to help facilitate
surface water assessments using multiple data layers such as land
cover, stream hydrography, soils, and topography. Several States also
have State-specific interactive online mapping tools called Water
Resource Registries (WRRs). WRRs host publicly available GIS data
layers providing various information such as the presence of wetlands,
land use/cover, impaired waters, and waters of special concern. Other
websites like the Corps' Jurisdictional Determinations and Permits
Decision site and webservices like EPA's Enforcement and Compliance
History Online (ECHO) Map Services allow users to find geospatial and
technical information about Clean Water Act section 404 and NPDES
permitted discharges. Information on approved jurisdictional
determinations finalized by the Corps is also available on the Corps'
Jurisdictional Determinations and Permit Decisions site and EPA's Clean
Water Act Approved Jurisdictional Determinations website.
The data that are available online have increased in quality as
well as quantity. The NHD has undergone extensive improvements in data
availability, reliability, and resolution since 2015, including the
release of NHDPlus High Resolution datasets for the conterminous U.S.
and Hawaii, with Alaska under development. One notable improvement in
NHD data quality is that the flow-direction network data are much more
accurate than in the past. Improvements have also been made to the NWI
website and geospatial database, which has served as the primary source
of wetland information in the United States for many years. In 2016,
NWI developed a more comprehensive dataset (NWI Version 2) that is
inclusive of all surface water features in addition to wetlands. This
NWI Version 2 dataset provides more complete geospatial data on surface
waters and wetlands than has been available in the past and provides a
more efficient means to make determinations of flow and water movement
in surface water basins and channels, as well as in wetlands. The
agencies and other practitioners can use this dataset to help assess
potential hydrologic connectivity between waterways and wetlands. For
example, it can be used in part to help the agencies identify wetlands
that do not meet the definition of adjacent (waters assessed under
paragraph (a)(5)).
The availability of aerial and satellite imagery has improved
dramatically since 2015. This imagery is used to observe the presence
or absence of flow and identify relatively permanent flow in tributary
streams and hydrologic connections to waters. The agencies often use a
series of aerial and satellite images, spanning multiple years and
taken under normal climatic conditions, to determine the flow
characteristics of a tributary, as a first step to determine if
additional field-based information is needed to determine the flow
characteristics. Other practitioners may also use aerial and satellite
images to identify aquatic resources and inform assessments of those
aquatic resources. The growth of the satellite imagery industry has
reduced the need to perform as many field investigations to verify
Clean Water Act jurisdiction.\143\ Some of these services charge a fee
for use, but others are freely available.
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\143\ For example, satellite imagery services are available
through services such as DigitalGlobe, available at https://discover.maxar.com/, and aerial photography and imagery are
available through services such as USGS EarthExplorer, available at
https://earthexplorer.usgs.gov/, and National Aeronautics and Space
Administration (NASA) Earth Data, available at https://earthdata.nasa.gov/ gov/. The USGS Landsat Level-3 Dynamic Surface Water
Extent (DSWE) product, available at https://www.usgs.gov/landsat-missions/landsat-dynamic-surface-water-extent-science-products?qt-science_support_page_related_con=0#qt-science_support_page_related_con, is a specific example of a tool
that may be useful for identifying surface water inundation on the
landscape in certain geographic areas.
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Similarly, the availability of LIDAR data has increased in
availability and utility for informing decisions on Clean
[[Page 3138]]
Water Act jurisdiction. LIDAR produces high-resolution elevation data
(<1-3 meter) which can be used to create maps of local topography. The
high-resolution maps can highlight the potential hydrologic connections
and flowpaths at a site. Where LIDAR data have been processed to create
a bare earth model, detailed depictions of the land surface reveal
subtle elevation changes and characteristics of the land surface,
including the identification of tributaries. Hydrologists, for example,
have long used digital elevation models of the earth's surface to model
watershed dynamics, and the agencies have used such information where
available to help inform jurisdictional decisions. LIDAR-derived
digital elevation models tend to be high resolution (<1-3 meter), so
they are particularly helpful for identifying fine-scale surface
features. For example, LIDAR-indicated tributaries can be correlated
with aerial photography or other tools to help identify channels and to
help determine flow permanence (e.g., relatively permanent flow) in the
absence of a field visit. The agencies have been using such remote
sensing and desktop tools to assist with identifying jurisdictional
tributaries for many years, and such tools are particularly critical
where data from the field are unavailable, or a field visit is not
possible. High-resolution LIDAR data are becoming more widespread for
engineering and land use planning purposes. The USGS is in the process
of collecting LIDAR data for the entire United States.\144\ LIDAR data
are available for download via the National Map Download Client
(available at https://apps.nationalmap.gov/downloader/#/) and LIDAR-
derived digital elevation models are available via the 3DEP
LidarExplorer (available at https://apps.nationalmap.gov/lidar-explorer/#/). However, LIDAR-derived elevation maps are not always
available, so the agencies use other elevation data, including digital
elevation models derived from other sources (e.g., 10-meter digital
elevation models) and topographic maps to help determine the elevation
on a site and to assess the potential location of tributaries.
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\144\ See U.S. Geological Survey. ``What is Lidar data and where
can I download it? '' Available at https://www.usgs.gov/faqs/what-lidar-data-and-where-can-i-download-it.
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Since 2015, tools have been developed that automate some of the
standard practices the agencies rely on to assist in jurisdictional
determinations. One example of this automation is the Antecedent
Precipitation Tool (APT), which was released to the public in 2020 and
had been used internally by the agencies prior to its public release.
The APT is a desktop tool developed by the Corps and is commonly used
by the agencies to help determine whether field data collection and
other site-specific observations occurred under normal climatic
conditions. In addition to providing a standardized methodology to
evaluate normal precipitation conditions (``precipitation normalcy''),
the APT can also be used to assess the presence of drought conditions,
as well as the approximate dates of the wet and dry seasons for a given
location. As discussed in section IV.B.3 of this preamble, above,
precipitation data are often not useful in providing evidence as to
whether a surface water connection exists in a typical year, as
required by the 2020 NWPR. However, the agencies have long used the
methods employed in the APT to provide evidence that wetland
delineations are made under normal circumstances or to account for
abnormalities during interpretation of data. The development and public
release of the APT has accelerated the speed at which these analyses
are completed; has standardized methods, which reduces errors; and has
enabled more people to perform these analyses themselves, including
members of the public. Automated tools like the APT will continue to be
important for supporting jurisdictional decision-making. The agencies
will consider opportunities to develop and improve tools that should be
helpful for further automating and streamlining the JD process in the
future.
Site visits are still sometimes needed to perform on-site
observations of surface hydrology or collect regionally-specific field-
based indicators of relatively permanent flow (e.g., the presence of
riparian vegetation or certain aquatic macroinvertebrates). The methods
and instruments used to collect field data have also improved since
2015, such as the development of rapid, field-based SDAMs that use
physical and biological indicators to determine the flow duration class
of a stream reach. The agencies have previously used existing SDAMs
developed by Federal and State agencies to identify perennial,
intermittent, or ephemeral streams. The agencies will continue to use
these tools whenever they are determined to be a reliable source of
information for the specific water feature of interest. The agencies
are currently working to develop region-specific SDAMs for nationwide
coverage, which will promote consistent implementation across the
United States in a manner that accounts for differences between each
ecoregion. The region-specific SDAMs will be publicly available, with
user manuals that will guide not only the agencies, but also other
practitioners, in applying the methods to assess aquatic resources.
Additional information on the agencies' efforts to develop SDAMs is
available on the Regional Streamflow Duration Assessment Methods web
page, available at https://www.epa.gov/streamflow-duration-assessment.
Consistent with longstanding practice, the agencies will make decisions
based on the best available information.
EPA and the Army have also been working with other Federal agencies
on improving aquatic resource mapping and modeling, including working
with the Department of Interior (DOI). EPA, USGS, and FWS have a long
history of working together to map the nation's aquatic resources. The
agencies will continue to collaborate with DOI to enhance the NHD, NWI,
and other products to better map the nation's water resources while
enhancing the utility and availability of such geospatial products for
implementation of Clean Water Act programs.
H. Publicly Available Jurisdictional Information and Permit Data
The agencies have provided information on jurisdictional
determinations that is readily available to the public. The Corps
maintains a website, available at https://permits.ops.usace.army.mil/orm-public, that presents information on the Corps' approved
jurisdictional determinations and Clean Water Act section 404 permit
decisions. The website allows users to search and view basic
information on approved jurisdictional determinations and permit
decisions (including latitude and longitude) and to filter the
determinations using different parameters like Corps District and year.
The website also contains a link to an associated approved
jurisdictional determination form. Similarly, EPA maintains a website,
available at https://watersgeo.epa.gov/cwa/CWA-JDs/, that presents
information on approved jurisdictional determinations made by the Corps
under the Clean Water Act since August 28, 2015. EPA's website also
allows users to search, sort, map, view, filter, and download
information on approved jurisdictional determinations using different
search parameters (e.g., by year, location, State, watershed,
regulatory regime). The website includes a map viewer that shows where
waters have been determined to be jurisdictional or non-
[[Page 3139]]
jurisdictional based on the approved jurisdictional determinations
available on the site.\145\ These websites will incorporate information
on approved jurisdictional determinations made under the revised
definition of ``waters of the United States.'' EPA also maintains on
its website information on certain dischargers permitted under Clean
Water Act section 402, including the Permit Compliance System and
Integrated Compliance Information System database, available at https://www.epa.gov/enviro/pcs-icis-overview, as well as the EnviroMapper,
available at https://enviro.epa.gov/enviro/em4ef.home, and How's My
Waterway, available at https://www.epa.gov/waterdata/hows-my-waterway.
The agencies also intend to provide links to the public to any
guidance, forms, or memoranda of agreement relevant to the definition
of ``waters of the United States'' on EPA's website at https://www.epa.gov/wotus.
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\145\ With respect to the waters determined to be non-
jurisdictional, section IV.C.7 of this preamble describes the
regulatory exclusions in this rule, which reflect the agencies'
longstanding practice and technical judgment that certain waters and
features are not subject to the Clean Water Act. Additionally, based
on the agencies' experience, many waters assessed under this rule
will not have a significant nexus to paragraph (a)(1) waters, and
thus will not be jurisdictional under the Clean Water Act under this
rule. See section IV.C.9.b of this preamble for examples of waters
that would not likely have a significant nexus under this rule.
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V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket for this action. The agencies prepared an economic analysis of
the potential costs and benefits associated with this action. This
analysis, the Economic Analysis for the Final ``Revised Definition of
`Waters of the United States''' Rule, is available in the docket for
this 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)
that are not otherwise modified by this rule. Entities currently are,
and will continue to be, regulated under these programs that protect
``waters of the United States'' from pollution and destruction. Each of
these programs may subsequently impose costs as a result of
implementation of their specific regulations.
The agencies prepared the economic analysis pursuant to the
requirements of Executive Orders 12866 and 13563 to provide information
to the public. The economic analysis was done for informational
purposes and the final decisions on the scope of ``waters of the United
States'' in the rulemaking are not based on consideration of the
potential benefits and costs in the economic analysis. Within the
Economic Analysis for the Final Rule, the agencies have analyzed the
potential benefits and costs associated with various Clean Water Act
programs that could result from this rule relative to two baselines.
The primary baseline analyzes costs and benefits associated with moving
from the pre-2015 regulatory regime that is currently being implemented
to the definition in this rule. This rule imposes de minimis costs and
generates de minimis benefits under the primary baseline.
Though two courts have vacated the 2020 NWPR and the pre-2015
regulatory regime is currently being implemented, the agencies have
chosen to provide additional information to the public with the 2020
NWPR as a secondary baseline in the Economic Analysis for the Final
Rule. This rule will replace the 2020 NWPR in the Code of Federal
Regulations as the definition of ``waters of the United States'' in the
agencies' regulations. The agencies project that compared to the 2020
NWPR, this rule would define more waters as within the scope of the
Clean Water Act. The analysis of estimated costs and benefits of this
rule is contained in the Economic Analysis for the Final Rule and is
available in the docket for this action.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities. However, this action may change terms and concepts used by
EPA and Army to implement certain programs. The agencies thus may need
to revise some of their collections of information to be consistent
with this action and will do so consistent with the PRA process.
C. Regulatory Flexibility Act (RFA)
The agencies certify that this rule will not have a significant
economic impact on a substantial number of small entities under the RFA
for several reasons. First, as demonstrated in Chapter I of the
Economic Analysis for the Final Rule, this rule would codify a
regulatory regime with de minimis differences from the one currently
being implemented nationwide due to the vacatur of the 2020 NWPR.
This rule will also not have a significant economic impact on a
substantial number of small entities under the RFA because under the
RFA, the impact of concern is any significant adverse economic impact
on small entities, because the primary purpose of the initial
regulatory flexibility analysis is to identify and address regulatory
alternatives ``which minimize any significant economic impact of the
proposed rule on small entities.'' 5 U.S.C. 603(a). This rule does not
directly apply to specific entities and therefore it does not
``subject'' any entities of any size to any specific regulatory burden.
Rather, it is designed to clarify the statutory term ``navigable
waters,'' defined as ``waters of the United States,'' which defines the
scope of Clean Water Act jurisdiction. 33 U.S.C. 1362(7). The scope of
Clean Water Act jurisdiction is informed by the text, structure, and
history of the Clean Water Act and relevant Supreme Court case law, as
well as the best available science and the agencies' experience and
technical expertise. None of these factors are readily informed by an
RFA analysis. See, e.g., Cement Kiln Recycling Coal. v. EPA, 255 F.3d
856, 869 (D.C. Cir. 2001) (``[T]o require an agency to assess the
impact on all of the nation's small businesses possibly affected by a
rule would be to convert every rulemaking process into a massive
exercise in economic modeling, an approach we have already
rejected.''); Michigan v. EPA, 213 F.3d 663, 688-89 (D.C. Cir. 2000)
(holding that the RFA imposes ``no obligation to conduct a small entity
impact analysis of effects'' on entities which it regulates only
``indirectly''); Am. Trucking Ass'n v. EPA, 175 F.3d 1027, 1045 (D.C.
Cir. 1999) (``[A]n agency may justify its certification under the RFA
upon the ``factual basis'' that the rule does not directly regulate any
small entities.''); Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327,
343 (D.C. Cir. 1985) (``Congress did not intend to require that every
agency consider every indirect effect that any regulation might have on
small businesses in any stratum of the national economy.'').
[[Page 3140]]
Finally, the agencies conclude that this rule will not
significantly impact small entities because it narrows the scope of
jurisdiction from the text of the 1986 regulations. Because fewer
waters will be subject to the Clean Water Act under this rule than fall
within the scope of the text of the regulations in effect, this action
will not affect small entities to a greater degree than the existing
regulations currently in effect. A key change is the deletion of the
provision in the 1986 regulations that defines ``waters of the United
States'' as all paragraph (a)(3) ``other waters'' such as intrastate
lakes, rivers, streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds, the use, degradation or destruction of which
could affect interstate or foreign commerce including any such waters:
which are or could be used by interstate or foreign travelers for
recreational or other purposes; from which fish or shellfish are or
could be taken and sold in interstate or foreign commerce; or which are
used or could be used for industrial purposes by industries in
interstate commerce. Under this rule, a broad interstate commerce
connection is not sufficient to meet the definition of ``waters of the
United States.'' Instead, waters must meet either the relatively
permanent standard or the significant nexus standard. Further, the
final rule eliminates jurisdiction over tributaries and adjacent
wetlands based on their connection to paragraph (a)(5) waters. In
addition, this rule would explicitly exclude some features and waters
over which the agencies have not generally asserted jurisdiction, but
which are not excluded in the text of the 1986 regulations, and in so
doing eliminates the authority of the agencies to determine in case-
specific circumstances that some such waters are jurisdictional
``waters of the United States.'' This rule also provides new
limitations on the scope of jurisdictional tributaries and most
adjacent wetlands by establishing a requirement that they meet either
the relatively permanent standard or the significant nexus standard.
Together, these changes serve to narrow the scope of this rule in
comparison to the text of the regulation in effect. Because the rule
narrows the scope of jurisdiction from the text of the 1986
regulations, this action will not have a significant adverse economic
impact on a substantial number of small entities, and therefore no
regulatory flexibility analysis is required.
Nevertheless, the agencies recognize that the scope of the term
``waters of the United States'' is of great national interest,
including within the small business community. Given this interest, the
agencies sought early input from representatives of small entities
while formulating a proposed definition of this term, including holding
a public meeting dedicated to hearing feedback from small entities on
August 25, 2021 (see Environmental Protection Agency, 2021 ``Waters of
the United States'' Public Meeting Materials, available at https://www.epa.gov/wotus/2021-waters-united-states-public-meeting-materials).
The agencies also met with small entities during the public comment
period to hear their thoughts on the proposed rule. 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 have addressed this feedback in the preamble
relating to these topics and in the discussion above.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The final definition of ``waters of the United
States'' applies broadly to Clean Water Act programs. The action
imposes no enforceable duty on any Tribal, State, or local governments,
or the private sector.
E. Executive Order 13132: Federalism
Consulting with State and local government officials, or their
representative national organizations, is an important step in the
process prior to proposing regulations that may have federalism
implications under the terms of Executive Order 13132. The agencies
engaged State and local governments over a 60-day federalism
consultation period during development of this rule, beginning with the
initial federalism consultation meeting on August 5, 2021, and
concluding on October 4, 2021. Twenty intergovernmental organizations,
including eight of the ten organizations identified in EPA's 2008
Executive Order 13132 Guidance, attended the initial Federalism
consultation meeting, as well as 12 associations representing State and
local governments. Organizations in attendance included the following:
National Governors Association, National Conference of State
Legislatures, United States Conference of Mayors, National League of
Cities, National Association of Counties, National Association of Towns
and Townships, County Executives of America, Environmental Council of
the States, Association of State Wetland Managers, Association of State
Drinking Water Administrators, National Association of State
Departments of Agriculture, Western States Water Council, National
Association of Clean Water Agencies, National Rural Water Association,
National Association of Attorneys General, National Water Resources
Association, National Municipal Stormwater Alliance, Western Governors'
Association, American Water Works Association, and Association of
Metropolitan Water Agencies. In addition, the agencies received letters
from State and local governments, as well as government associations,
as part of this initial federalism consultation process. A total of 37
letters were submitted from twelve State government agencies, five
local government agencies, seventeen intergovernmental associations,
and three State-level associations of local governments. All letters
received by the agencies during this consultation may be found in the
docket (Docket ID No. EPA-HQ-OW-2021-0602) for this rule.
A Summary Report of Federalism Consultation for the proposed rule
was published in December 2021. The agencies continued to engage with
State and local governments during the public comment period. The
agencies hosted two roundtable sessions for State and local officials
on January 24 and January 27, 2022. These State and local government
roundtables provided an overview of the proposed rule and discussions
of a variety of topics including significant nexus, specific waters,
exclusions, and State regulatory programs. Each roundtable meeting
included breakout groups for officials by region so they could discuss
and provide feedback to the agencies. Organizations in attendance
included a wide variety of State and local government agencies, as well
as intergovernmental associations and State-level associations of local
governments. These meetings and the letters provided represent a wide
and diverse range of interests, positions, comments, and
recommendations to the agencies. Common themes from the feedback
included the importance of promoting State-Federal partnerships; the
need for the agencies to take a regional approach to determinations of
jurisdiction; and support for further
[[Page 3141]]
clarity and consistency with significant nexus and relatively permanent
determinations. The agencies have prepared a report summarizing their
consultation and additional outreach to State and local governments and
the results of this outreach. A copy of the final report is available
in the docket (Docket ID. No. EPA-HQ-OW-2021-0602) for this rule.
Under the technical requirements of Executive Order 13132, agencies
must conduct a federalism consultation as outlined in the Executive
Order for regulations that (1) have federalism implications, that
impose substantial direct compliance costs on State and local
governments, and that are not required by statute; or (2) that have
federalism implications and that preempt State law. The agencies
conducted a 60-day federalism consultation due to strong interest on
the part of State and local governments on this issue over the years
and potential effects associated with a change in the definition of
``waters of the United States.'' However, the agencies have concluded
that compared to the status quo, this rule does not impose any new
costs or other requirements on States, preempt State law, or limit
States' policy discretion; rather, it defines the scope of ``waters of
the United States'' to which Clean Water Act programs apply. Executive
Order paras. (6)(b) and (6)(c). This final rule draws a boundary
between waters subject to Clean Water Act protections and those that
Tribes and States may manage under their independent authorities. As
compared to the status quo, this action will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Documentation
for this decision is contained in the Economic Analysis for the Final
Rule, which can be found in the docket for this action.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action may have Tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
Tribal governments, nor preempt Tribal law.
EPA and the Army consulted with Tribal officials under the EPA
Policy on Consultation and Coordination with Indian Tribes and the
Department of the Army American Indian and Alaska Native Policy early
in the process of developing this regulation to permit them to have
meaningful and timely input into its development.
The agencies initiated a Tribal consultation and coordination
process before proposing this rule by sending a ``Notification of
Consultation and Coordination'' letter on July 30, 2021, to all 574
Tribes federally recognized at that time. The letter invited Tribal
leaders and designated consultation representatives to participate in
the Tribal consultation and coordination process. The agencies engaged
Tribes over a 66-day Tribal consultation period during development of
the proposed rule. The consultation included two webinars on August 19
and August 24, 2021, in which the agencies answered questions directly
from Tribal representatives and heard their initial feedback on the
agencies' rulemaking effort. The agencies responded to all requests for
one-on-one consultation and met with four Tribes at a staff-level and
with four Tribes at a leader-to-leader level. All letters received by
the agencies as part of Tribal consultation may be found in the docket
(Docket ID No. EPA-HQ-OW-2021-0602) for this rule.
The agencies also continued to engage with Tribes post-proposal,
including via regional Tribal meetings and through a virtual Tribal
roundtable on January 20, 2022. The topics addressed during this
roundtable included options for describing and implementing the
relatively permanent and significant nexus standards, the definitions
of specific waters such as interstate waters and paragraph (a)(5)
waters, and the implementation of exclusions. The most common themes
from the feedback were: the importance of streams and wetlands to
Tribal cultural resources; the need for the agencies to consider
regional differences; the need for the agencies to respect the Federal
trust responsibility and Tribal treaty rights; and the importance of
restoring a broad definition of ``waters of the United States.'' Some
Tribes commented on the importance of protecting ephemeral streams,
which were eliminated from jurisdiction under the 2020 NWPR, as well as
protecting wetlands that were excluded under the 2020 NWPR. Several
Tribes spoke about the need to include ``waters of the tribe'' in the
definition of ``waters of the United States.'' Additionally, several
Tribes stated support for furthering environmental justice with the
proposed rulemaking. Some Tribes also expressed support for accounting
for climate change in some manner in the definition of ``waters of the
United States.'' The agencies have prepared a report summarizing the
consultation and further engagement with Tribal Nations. This report
(Docket ID. No. EPA-HQ-OW-2021-0602) is available in the docket for
this rule.
As required by Executive Order 13175 section 7(a), the EPA's Tribal
Consultation Official has certified that the requirements have been met
in a meaningful and timely manner. A copy of the certification is
included in the docket for this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA and the Army interpret Executive Order 13045 as applying only
to those regulatory actions that concern environmental health or safety
risks that the agencies have reason to believe may disproportionately
affect children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because the environmental health or safety risks
addressed by this action do not present a disproportionate risk to
children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
I. National Technology Transfer and Advancement Act
This rule does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (Indigenous peoples and/or people of
color) and low-income populations.
EPA and the Army believe that this action does not have
disproportionately high and adverse human health or environmental
effects on Indigenous peoples, people of color, and/or low-income
populations. The documentation for this decision is contained in the
Economic Analysis for
[[Page 3142]]
the Final Rule, which can be found in the docket for this action.
The agencies recognize that the burdens of environmental pollution
and climate change often fall disproportionately on communities with
environmental justice concerns (e.g., Indigenous peoples, people of
color, and low-income populations), and have qualitatively assessed
impacts to these groups in the Economic Analysis for the Final Rule.
Climate change will exacerbate the existing risks faced by communities
with environmental justice concerns.
For this rule, consistent with Executive Order 12898 and Executive
Order 14008 on ``Tackling the Climate Crisis at Home and Abroad'' (86
FR 7619; January 27, 2021), the agencies examined whether the change in
benefits due to this rule may be differentially distributed among
communities with environmental justice concerns in the affected areas
when compared to both baselines. Regardless of baseline, for most of
the wetlands and affected waters impacted by this rule at a hydrologic
unit code (HUC) 12 watershed level,\146\ there was no evidence of
potential environmental justice impacts warranting further analysis. It
is expected that where there were environmental justice impacts at the
HUC 12 scale as compared to the secondary baseline of the 2020 NWPR,
those impacts would be beneficial to communities with environmental
justice concerns because this rule will result in more waters being
jurisdictional than would be under the 2020 NWPR. For example,
communities with environmental justice concerns in the arid West may
have experienced increased water pollution and associated health
impacts under the 2020 NWPR due to that rule's lack of Federal
protection for ephemeral streams and their adjacent wetlands.
---------------------------------------------------------------------------
\146\ HUC boundaries are established by USGS and NRCS. These
boundaries are numbered using nested codes to represent the scale of
the watershed size. For example, HUC 12 watersheds are smaller than
HUC 4 watersheds.
---------------------------------------------------------------------------
K. Congressional Review Act
This action is subject to the Congressional Review Act, and the
agencies will submit a rule report to each House of the Congress and to
the Comptroller General of the United States. This action is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects
33 CFR Part 328
Administrative practice and procedure, Environmental protection,
Navigation (water), Water pollution control, Waterways.
40 CFR Part 120
Environmental protection, Water pollution control, Waterways.
Michael L. Connor,
Assistant Secretary of the Army (Civil Works), Department of the Army.
Michael S. Regan,
Administrator, Environmental Protection Agency.
Title 33--Navigation and Navigable Waters
For the reasons set out in the preamble, 33 CFR part 328 is amended
as follows:
PART 328--DEFINITION OF WATERS OF THE UNITED STATES
0
1. The authority citation for part 328 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
2. Revise Sec. 328.3 to read as follows:
Sec. 328.3 Definitions.
For the purpose of this regulation these terms are defined as
follows:
(a) Waters of the United States means:
(1) Waters which are:
(i) Currently used, or were used in the past, or may be susceptible
to use in interstate or foreign commerce, including all waters which
are subject to the ebb and flow of the tide;
(ii) The territorial seas; or
(iii) Interstate waters, including interstate wetlands;
(2) Impoundments of waters otherwise defined as waters of the
United States under this definition, other than impoundments of waters
identified under paragraph (a)(5) of this section;
(3) Tributaries of waters identified in paragraph (a)(1) or (2) of
this section:
(i) That are relatively permanent, standing or continuously flowing
bodies of water; or
(ii) That either alone or in combination with similarly situated
waters in the region, significantly affect the chemical, physical, or
biological integrity of waters identified in paragraph (a)(1) of this
section;
(4) Wetlands adjacent to the following waters:
(i) Waters identified in paragraph (a)(1) of this section; or
(ii) Relatively permanent, standing or continuously flowing bodies
of water identified in paragraph (a)(2) or (a)(3)(i) of this section
and with a continuous surface connection to those waters; or
(iii) Waters identified in paragraph (a)(2) or (3) of this section
when the wetlands either alone or in combination with similarly
situated waters in the region, significantly affect the chemical,
physical, or biological integrity of waters identified in paragraph
(a)(1) of this section;
(5) Intrastate lakes and ponds, streams, or wetlands not identified
in paragraphs (a)(1) through (4) of this section:
(i) That are relatively permanent, standing or continuously flowing
bodies of water with a continuous surface connection to the waters
identified in paragraph (a)(1) or (a)(3)(i) of this section; or
(ii) That either alone or in combination with similarly situated
waters in the region, significantly affect the chemical, physical, or
biological integrity of waters identified in paragraph (a)(1) of this
section.
(b) The following are not ``waters of the United States'' even
where they otherwise meet the terms of paragraphs (a)(2) through (5) of
this section:
(1) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act;
(2) Prior converted cropland designated by the Secretary of
Agriculture. The exclusion would cease upon a change of use, which
means that the area is no longer available for the production of
agricultural commodities. 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;
(3) Ditches (including roadside ditches) excavated wholly in and
draining only dry land and that do not carry a relatively permanent
flow of water;
(4) Artificially irrigated areas that would revert to dry land if
the irrigation ceased;
(5) Artificial lakes or ponds created by excavating or diking dry
land to collect and retain water and which are used exclusively for
such purposes as stock watering, irrigation, settling basins, or rice
growing;
(6) Artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating or diking dry land to
retain water for primarily aesthetic reasons;
(7) Waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of
[[Page 3143]]
water meets the definition of waters of the United States; and
(8) Swales and erosional features (e.g., gullies, small washes)
characterized by low volume, infrequent, or short duration flow.
(c) In this section, the following definitions apply:
(1) Wetlands means 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.
Wetlands generally include swamps, marshes, bogs, and similar areas.
(2) Adjacent means bordering, contiguous, or neighboring. Wetlands
separated from other waters of the United States by man-made dikes or
barriers, natural river berms, beach dunes, and the like are ``adjacent
wetlands.''
(3) High tide line means the line of intersection of the land with
the water's surface at the maximum height reached by a rising tide. The
high tide line may be determined, in the absence of actual data, by a
line of oil or scum along shore objects, a more or less continuous
deposit of fine shell or debris on the foreshore or berm, other
physical markings or characteristics, vegetation lines, tidal gages, or
other suitable means that delineate the general height reached by a
rising tide. The line encompasses spring high tides and other high
tides that occur with periodic frequency but does not include storm
surges in which there is a departure from the normal or predicted reach
of the tide due to the piling up of water against a coast by strong
winds such as those accompanying a hurricane or other intense storm.
(4) Ordinary high water mark means that line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.
(5) Tidal waters means those waters that rise and fall in a
predictable and measurable rhythm or cycle due to the gravitational
pulls of the moon and sun. Tidal waters end where the rise and fall of
the water surface can no longer be practically measured in a
predictable rhythm due to masking by hydrologic, wind, or other
effects.
(6) Significantly affect means a material influence on the
chemical, physical, or biological integrity of waters identified in
paragraph (a)(1) of this section. To determine whether waters, either
alone or in combination with similarly situated waters in the region,
have a material influence on the chemical, physical, or biological
integrity of waters identified in paragraph (a)(1) of this section, the
functions identified in paragraph (c)(6)(i) of this section will be
assessed and the factors identified in paragraph (c)(6)(ii) of this
section will be considered:
(i) Functions to be assessed:
(A) Contribution of flow;
(B) Trapping, transformation, filtering, and transport of materials
(including nutrients, sediment, and other pollutants);
(C) Retention and attenuation of floodwaters and runoff;
(D) Modulation of temperature in waters identified in paragraph
(a)(1) of this section; or
(E) Provision of habitat and food resources for aquatic species
located in waters identified in paragraph (a)(1) of this section;
(ii) Factors to be considered:
(A) The distance from a water identified in paragraph (a)(1) of
this section;
(B) Hydrologic factors, such as the frequency, duration, magnitude,
timing, and rate of hydrologic connections, including shallow
subsurface flow;
(C) The size, density, or number of waters that have been
determined to be similarly situated;
(D) Landscape position and geomorphology; and
(E) Climatological variables such as temperature, rainfall, and
snowpack.
Title 40--Protection of Environment
For reasons set out in the preamble, 40 CFR part 120 is amended as
follows:
PART 120--DEFINITION OF WATERS OF THE UNITED STATES
0
3. The authority citation for part 120 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
4. Revise Sec. 120.1 to read as follows:
Sec. 120.1 Purpose and scope.
This part contains the definition of ``waters of the United
States'' for purposes of the Clean Water Act, 33 U.S.C. 1251 et seq.
and its implementing regulations. EPA regulations implementing the
Clean Water Act use the term ``navigable waters,'' which is defined at
section 502(7) of the Clean Water Act as ``the waters of the United
States, including the territorial seas,'' or the term ``waters of the
United States.'' In light of the statutory definition, the definition
in this section establishes the scope of the terms ``waters of the
United States'' and ``navigable waters'' in EPA's regulations.
0
5. Revise Sec. 120.2 to read as follows:
Sec. 120.2 Definitions.
For the purpose of this regulation these terms are defined as
follows:
(a) Waters of the United States means:
(1) Waters which are:
(i) Currently used, or were used in the past, or may be susceptible
to use in interstate or foreign commerce, including all waters which
are subject to the ebb and flow of the tide;
(ii) The territorial seas; or
(iii) Interstate waters, including interstate wetlands;
(2) Impoundments of waters otherwise defined as waters of the
United States under this definition, other than impoundments of waters
identified under paragraph (a)(5) of this section;
(3) Tributaries of waters identified in paragraph (a)(1) or (2) of
this section:
(i) That are relatively permanent, standing or continuously flowing
bodies of water; or
(ii) That either alone or in combination with similarly situated
waters in the region, significantly affect the chemical, physical, or
biological integrity of waters identified in paragraph (a)(1) of this
section;
(4) Wetlands adjacent to the following waters:
(i) Waters identified in paragraph (a)(1) of this section; or
(ii) Relatively permanent, standing or continuously flowing bodies
of water identified in paragraph (a)(2) or (a)(3)(i) of this section
and with a continuous surface connection to those waters; or
(iii) Waters identified in paragraph (a)(2) or (3) of this section
when the wetlands either alone or in combination with similarly
situated waters in the region, significantly affect the chemical,
physical, or biological integrity of waters identified in paragraph
(a)(1) of this section;
(5) Intrastate lakes and ponds, streams, or wetlands not identified
in paragraphs (a)(1) through (4) of this section:
(i) That are relatively permanent, standing or continuously flowing
bodies of water with a continuous surface connection to the waters
identified in paragraph (a)(1) or (a)(3)(i) of this section; or
(ii) That either alone or in combination with similarly situated
waters in the region, significantly affect the chemical, physical, or
biological integrity of waters identified in paragraph (a)(1) of this
section.
[[Page 3144]]
(b) The following are not ``waters of the United States'' even
where they otherwise meet the terms of paragraphs (a)(2) through (5) of
this section:
(1) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act;
(2) Prior converted cropland designated by the Secretary of
Agriculture. The exclusion would cease upon a change of use, which
means that the area is no longer available for the production of
agricultural commodities. 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;
(3) Ditches (including roadside ditches) excavated wholly in and
draining only dry land and that do not carry a relatively permanent
flow of water;
(4) Artificially irrigated areas that would revert to dry land if
the irrigation ceased;
(5) Artificial lakes or ponds created by excavating or diking dry
land to collect and retain water and which are used exclusively for
such purposes as stock watering, irrigation, settling basins, or rice
growing;
(6) Artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating or diking dry land to
retain water for primarily aesthetic reasons;
(7) Waterfilled depressions created in dry land incidental to
construction activity and pits excavated in dry land for the purpose of
obtaining fill, sand, or gravel unless and until the construction or
excavation operation is abandoned and the resulting body of water meets
the definition of waters of the United States; and
(8) Swales and erosional features (e.g., gullies, small washes)
characterized by low volume, infrequent, or short duration flow.
(c) In this section, the following definitions apply:
(1) Wetlands means 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.
Wetlands generally include swamps, marshes, bogs, and similar areas.
(2) Adjacent means bordering, contiguous, or neighboring. Wetlands
separated from other waters of the United States by man-made dikes or
barriers, natural river berms, beach dunes, and the like are ``adjacent
wetlands.''
(3) High tide line means the line of intersection of the land with
the water's surface at the maximum height reached by a rising tide. The
high tide line may be determined, in the absence of actual data, by a
line of oil or scum along shore objects, a more or less continuous
deposit of fine shell or debris on the foreshore or berm, other
physical markings or characteristics, vegetation lines, tidal gages, or
other suitable means that delineate the general height reached by a
rising tide. The line encompasses spring high tides and other high
tides that occur with periodic frequency but does not include storm
surges in which there is a departure from the normal or predicted reach
of the tide due to the piling up of water against a coast by strong
winds such as those accompanying a hurricane or other intense storm.
(4) Ordinary high water mark means that line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.
(5) Tidal waters means those waters that rise and fall in a
predictable and measurable rhythm or cycle due to the gravitational
pulls of the moon and sun. Tidal waters end where the rise and fall of
the water surface can no longer be practically measured in a
predictable rhythm due to masking by hydrologic, wind, or other
effects.
(6) Significantly affect means a material influence on the
chemical, physical, or biological integrity of waters identified in
paragraph (a)(1) of this section. To determine whether waters, either
alone or in combination with similarly situated waters in the region,
have a material influence on the chemical, physical, or biological
integrity of waters identified in paragraph (a)(1) of this section, the
functions identified in paragraph (c)(6)(i) of this section will be
assessed and the factors identified in paragraph (c)(6)(ii) of this
section will be considered:
(i) Functions to be assessed:
(A) Contribution of flow;
(B) Trapping, transformation, filtering, and transport of materials
(including nutrients, sediment, and other pollutants);
(C) Retention and attenuation of floodwaters and runoff;
(D) Modulation of temperature in waters identified in paragraph
(a)(1) of this section; or
(E) Provision of habitat and food resources for aquatic species
located in waters identified in paragraph (a)(1) of this section;
(ii) Factors to be considered:
(A) The distance from a water identified in paragraph (a)(1) of
this section;
(B) Hydrologic factors, such as the frequency, duration, magnitude,
timing, and rate of hydrologic connections, including shallow
subsurface flow;
(C) The size, density, or number of waters that have been
determined to be similarly situated;
(D) Landscape position and geomorphology; and
(E) Climatological variables such as temperature, rainfall, and
snowpack.
[FR Doc. 2022-28595 Filed 1-17-23; 8:45 am]
BILLING CODE 6560-50-P