[Federal Register Volume 84, Number 31 (Thursday, February 14, 2019)]
[Proposed Rules]
[Pages 4154-4220]
[FR Doc No: 2019-00791]

Vol. 84

Thursday,

No. 31

February 14, 2019

Part II

Department of Defense

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Department of the Army, Corps of Engineers

Environmental Protection Agency

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33 CFR Part 328

40 CFR Parts 110, 112, 116, et al.

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

Federal Register / Vol. 84 , No. 31 / Thursday, February 14, 2019 /
Proposed Rules

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401

[EPA-HQ-OW-2018-0149; FRL-9988-15-OW]
RIN 2040-AF75

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

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

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency and the Department of the
Army (``the agencies'') are publishing for public comment a proposed
rule defining the scope of waters federally regulated under the Clean
Water Act (CWA). This proposal is the second step in a comprehensive,
two-step process intended to review and revise the definition of
``waters of the United States'' consistent with the Executive Order
signed on February 28, 2017, ``Restoring the Rule of Law, Federalism,
and Economic Growth by Reviewing the `Waters of the United States'
Rule.'' This proposed rule is intended to increase CWA program
predictability and consistency by increasing clarity as to the scope of
``waters of the United States'' federally regulated under the Act. This
proposed definition revision is also intended to clearly implement the
overall objective of the CWA to restore and maintain the quality of the
nation's waters while respecting State and tribal authority over their
own land and water resources.

DATES: Comments must be received on or before April 15, 2019.

ADDRESSES: You may submit comments, identified by Docket ID No. EPA-HQ-
OW-2018-0149, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
     Email<EMAIL_ADDRESS>Include Docket ID No. EPA-HQ-OW-
2018-0149 in the subject line of the message.
     Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``How should I submit
comments?'' heading of the GENERAL INFORMATION section of this
document.

FOR FURTHER INFORMATION CONTACT: Michael McDavit, Oceans, Wetlands, and
Communities Division, Office of Water (4504-T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>or
Jennifer A. Moyer, Regulatory Community of Practice (CECW-CO-R), U.S.
Army Corps of Engineers, 441 G Street NW, Washington, DC 20314;
telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
    A. How can I get copies of this document and related
information?
    B. Under what legal authority is this proposed rule issued?
    C. How should I submit comments?
II. Background
    A. Executive Summary
    B. The Clean Water Act and Regulatory Definition of ``Waters of
the United States''
    1. The Clean Water Act
    2. Regulatory History
    3. Supreme Court Decisions
    4. The 2015 Rule
    C. Executive Order 13778, the ``Step One'' Notice of Proposed
Rulemaking, and the Applicability Date Rule
    D. Summary of Stakeholder Outreach
    E. Overview of Legal Construct for the Proposed Rule
    1. Statutory Framework
    2. Supreme Court Precedent
    3. Guiding Legal Principles for Proposed Rule
III. Proposed Definition of ``Waters of the United States''
    A. Traditional Navigable Waters and Territorial Seas
    B. Interstate Waters
    C. Impoundments
    D. Tributaries
    E. Ditches
    F. Lakes and Ponds
    G. Wetlands
    H. Waters and Features That Are Not Waters of the United States
    I. Summary of Proposed Rule as Compared to the 1986 and 2015
Regulations
    J. Placement of the Definition of Waters of the United States in
the Code of Federal Regulations
IV. State, Tribal and Federal Agency Datasets of ``Waters of the
United States''
V. Overview of Supporting Analyses
VI. Statutory and Executive Order Reviews
    A. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
    B. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

A. How can I get copies of this document and related information?

    1. Docket. An official public docket for this action has been
established under Docket ID No. EPA-HQ-OW-2018-0149. The official
public docket consists of the documents specifically referenced in this
action, and other information related to this action. The official
public docket is the collection of materials that is available for
public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution
Ave. NW, Washington, DC 20004. This Docket Facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
OW Docket telephone number is<PHONE_NUMBER>. A reasonable fee will be
charged for copies.
    2. Electronic Access. You may access this Federal Register document
electronically under the Federal Register listings at http://www.regulations.gov. An electronic version of the public docket is
available through EPA's electronic public docket and comment system,
EPA Dockets. You

may access EPA Dockets at http://www.regulations.gov to view public
comments as they are submitted and posted, access the index listing of
the contents of the official public docket, and access those documents
in the public docket that are available electronically. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at https://www.epa.gov/dockets. Although not all docket
materials may be available electronically, you may still access any of
the publicly available docket materials through the Docket Facility.

B. Under what legal authority is this proposed rule issued?

    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. How should I submit comments?

    Throughout this notice, the agencies solicit comment on a number of
issues related to the proposed rulemaking. Submit your comments,
identified by Docket ID No. EPA-HQ-OW-2018-0149, at https://www.regulations.gov (our preferred method), or the other methods
identified in the ADDRESSES section. Once submitted, comments cannot be
edited or removed from the docket. The EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    This rule is the outgrowth of other rulemakings and extensive
outreach efforts, including requests for recommendations and comments,
and the agencies have taken recommendations and comments received into
account in developing this proposal. In developing a final rule, the
agencies will be considering comments submitted on this proposal.
Persons who wish to provide views or recommendations on this proposal
must provide comments to the agencies as part of this comment process.
To facilitate the processing of comments, commenters are encouraged to
organize their comments in a manner that corresponds to the outline of
this proposal.

II. Background

A. Executive Summary

    The U.S. Environmental Protection Agency (EPA) and the U.S.
Department of the Army (Army) (together, the agencies) are publishing
for public comment a proposed rule defining the scope of waters subject
to federal regulation under the Clean Water Act (CWA), in light of the
U.S. Supreme Court cases in United States v. Riverside Bayview Homes
(Riverside Bayview), Solid Waste Agency of Northern Cook County v.
United States (SWANCC), and Rapanos v. United States (Rapanos), and
consistent with Executive Order 13778, signed on February 28, 2017,
entitled ``Restoring the Rule of Law, Federalism, and Economic Growth
by Reviewing the `Waters of the United States' Rule.''
    The agencies propose to interpret the term ``waters of the United
States'' to encompass: Traditional navigable waters, including the
territorial seas; tributaries that contribute perennial or intermittent
flow to such waters; certain ditches; certain lakes and ponds;
impoundments of otherwise jurisdictional waters; and wetlands adjacent
to other jurisdictional waters.
    The agencies propose as a baseline concept that ``waters of the
United States'' are waters within the ordinary meaning of the term,
such as oceans, rivers, streams, lakes, ponds, and wetlands, and that
not all waters are ``waters of the United States.'' Under this proposed
rule, a tributary is defined as a river, stream, or similar naturally
occurring surface water channel that contributes perennial or
intermittent flow to a traditional navigable water or territorial sea
in a typical year either directly or indirectly through other
tributaries, jurisdictional ditches, jurisdictional lakes and ponds,
jurisdictional impoundments, and adjacent wetlands or through water
features identified in paragraph (b) of this proposal so long as those
water features convey perennial or intermittent flow downstream. A
tributary does not lose its status if it flows through a culvert, dam,
or other similar artificial break or through a debris pile, boulder
field, or similar natural break so long as the artificial or natural
break conveys perennial or intermittent flow to a tributary or other
jurisdictional water at the downstream end of the break. Ditches are
generally proposed not to be ``waters of the United States'' unless
they meet certain criteria, such as functioning as traditional
navigable waters, if they are constructed in a tributary and also
satisfy the conditions of the proposed ``tributary'' definition, or if
they are constructed in an adjacent wetland and also satisfy the
conditions of the proposed ``tributary'' definition.
    The proposal defines ``adjacent wetlands'' as wetlands that abut or
have a direct hydrological surface connection to other ``waters of the
United States'' in a typical year. ``Abut'' is proposed to mean when a
wetland touches an otherwise jurisdictional water at either a point or
side. A ``direct hydrologic surface connection'' as proposed occurs as
a result of inundation from a jurisdictional water to a wetland or via
perennial or intermittent flow between a wetland and jurisdictional
water. Wetlands physically separated from other waters of the United
States by upland or by dikes, barriers, or similar structures and also
lacking a direct hydrologic surface connection to such waters are not
adjacent under this proposal.
    The proposal would exclude from the definition of ``waters of the
United States'' waters or water features not mentioned above. The
proposed definition specifically clarifies that ``waters of the United
States'' do not include features that flow only in response to
precipitation; groundwater, including groundwater drained through
subsurface drainage systems; certain ditches; prior converted cropland;
artificially irrigated areas that would revert to upland if artificial
irrigation ceases; certain artificial lakes and ponds constructed in
upland; water-filled depressions created in upland incidental to mining
or construction activity; stormwater control features excavated or
constructed in upland to convey, treat, infiltrate, or store stormwater
run-off; wastewater recycling structures constructed in upland; and
waste treatment systems. In addition, the agencies are proposing to
clarify and define the terms ``prior converted cropland'' and ``waste
treatment system'' to improve regulatory predictability and clarity.
    In response to the interest expressed by some States in
participating in the federal jurisdictional determination process, the
agencies are soliciting comment as to how they could establish an
approach to authorize States, Tribes, and Federal agencies to establish

geospatial datasets of ``waters of the United States,'' as well as
waters that the agencies propose to exclude, within their respective
borders for approval by the agencies. Under a separate action, the
agencies may propose creating a framework under which States, Tribes,
and Federal agencies could choose to develop datasets for approval for
all, some, or none of the ``waters of the United States'' within their
boundaries. If the agencies were to pursue such an action, they would
do so in coordination with other Federal agencies, State, tribal, and
interested stakeholders. This approach would not require State and
tribal governments to establish these datasets; it would simply make
this process available to those government agencies that would find it
useful.
    The fundamental basis used by the agencies for the revised
definition proposed today is the text and structure of the CWA, as
informed by its legislative history and Supreme Court precedent, taking
into account agency policy choices and other relevant factors. This
proposed definition revision is intended to strike a balance between
Federal and State waters and would carry out Congress' overall
objective to restore and maintain the integrity of the nation's waters
in a manner that preserves the traditional sovereignty of States over
their own land and water resources. The agencies believe the proposed
definition would also ensure clarity and predictability for Federal
agencies, States, Tribes, the regulated community, and the public. This
proposed rule is intended to ensure that the agencies are operating
within the scope of the Federal government's authority over navigable
waters under the CWA and the Commerce Clause of the U.S. Constitution.

B. The Clean Water Act and Regulatory Definition of ``Waters of the
United States''

1. The Clean Water Act
    Congress amended the Federal Water Pollution Control Act (FWPCA),
or Clean Water Act (CWA) as it is commonly called,\1\ in 1972 to
address longstanding concerns regarding the quality of the nation's
waters and the federal government's ability to address those concerns
under existing law. Prior to 1972, the ability to control and redress
water 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
(RHA). While much of that statute focused on restricting obstructions
to navigation on the nation's major waterways, section 13 of the RHA
made it unlawful to discharge refuse ``into any navigable water of the
United States,\2\ 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. Congress had also enacted the 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 (giving the statute its current formal name), 1961, and 1965. The
early versions of the CWA promoted 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.
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    \1\ The FWCPA is commonly referred to as the CWA following the
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566
(1977). For ease of reference, the agencies will generally refer to
the FWPCA in this notice as the CWA or the Act.
    \2\ The term ``navigable water of the United States'' is a term
of art used to refer to waters subject to federal jurisdiction under
the RHA. See, e.g., 33 CFR 329.1. The term is not synonymous with
the phrase ``waters of the United States'' under the CWA, see id.,
and the general term ``navigable waters'' has different meanings
depending on the context of the statute in which it is used. See,
e.g., PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1228 (2012).
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    These early statutory efforts, however, 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), so Congress performed
a ``total restructuring'' and ``complete rewriting'' of the existing
statutory framework in 1972, id. at 317 (quoting legislative history of
1972 amendments). That restructuring resulted in the enactment of a
comprehensive scheme (including voluntary as well as regulatory
programs) designed to prevent, reduce, and eliminate pollution in the
nation's waters generally, and to regulate the discharge of pollutants
into navigable waters specifically. See, e.g., S.D. Warren Co. v. Maine
Bd. of Environmental Protection, 547 U.S. 370, 385 (2006) (noting that
``the Act does not stop at controlling the `addition of pollutants,'
but deals with `pollution' generally'').
    The objective of the new statutory scheme was ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' 33 U.S.C. 1251(a). In order to meet that objective,
Congress declared two national goals: (1) ``that the discharge of
pollutants into the navigable waters be eliminated by 1985;'' and (2)
``that wherever attainable, an interim goal of water quality which
provides for the protection and propagation of fish, shellfish, and
wildlife and provides for recreation in and on the water be achieved by
July 1, 1983 . . . .'' Id. at 1251(a)(1)-(2).
    Congress also established several key policies that direct the work
of the agencies to effectuate those goals. For example, Congress
declared as a national policy ``that the discharge of toxic pollutants
in toxic amounts be prohibited; . . . . that Federal financial
assistance be provided to construct publicly owned waste treatment
works; . . . . that areawide waste treatment management planning
processes be developed and implemented to assure adequate control of
sources of pollutants in each State; . . . [and] that programs for the
control of nonpoint sources of pollution be developed and implemented
in an expeditious manner so as to enable the goals of this Act to be
met through the control of both point and nonpoint sources of
pollution.'' Id. at 1251(a)(3)-(7).
    Congress provided a major role for the States in implementing the
CWA, balancing the traditional power of States to regulate land and
water resources within their borders with the need for a national water
quality regulation. For example, the statute highlighted ``the policy
of the 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 . . . . of land and
water resources . . . . .'' Id. at 1251(b). Congress also declared as a
national policy that States manage the major construction grant program
and implement the core permitting programs authorized by the statute,
among other responsibilities. Id. Congress added that ``[e]xcept as
expressly provided in this Act, nothing in this Act shall . . . . be
construed as impairing or in any manner affecting any right or
jurisdiction of the States with respect to the waters (including
boundary waters) of such States.'' Id. at 1370.\3\ Congress pledged to
provide technical support and financial aid to the States ``in
connection with the prevention, reduction, and elimination of
pollution.'' Id. at 1251(b).
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    \3\ 33 U.S.C. 1370 also prohibits authorized States from
adopting any limitations, prohibitions, or standards that are less
stringent than required by the CWA.
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    To carry out these policies, Congress broadly defined ``pollution''
to mean ``the man-made or man-induced alteration of the chemical,
physical, biological, and radiological integrity of

water,'' id. at 1362(19), to parallel the broad objective of the Act
``to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters.'' Id. at 1251(a). Congress then
crafted a non-regulatory statutory framework to provide technical and
financial assistance to the States to prevent, reduce, and eliminate
pollution in the nation's waters generally. For example, section 105 of
the Act, ``Grants for research and development,'' authorized EPA ``to
make grants to any State, municipality, or intermunicipal or interstate
agency for the purpose of assisting in the development of any project
which will demonstrate a new or improved method of preventing,
reducing, and eliminating the discharge into any waters of pollutants
from sewers which carry storm water or both storm water and
pollutants.'' 33 U.S.C. 1255(a)(1) (emphasis added). Section 105 also
authorized EPA ``to make grants to any State or States or interstate
agency to demonstrate, in river basins or portions thereof, advanced
treatment and environmental enhancement techniques to control pollution
from all sources . . . . including nonpoint sources, . . . . [and] . .
. . to carry out the purposes of section 301 of this Act . . . . for
research and demonstration projects for prevention of pollution of any
waters by industry including, but not limited to, the prevention,
reduction, and elimination of the discharge of pollutants.'' 33 U.S.C.
1255(b)-(c) (emphasis added); see also id. at 1256(a) (authorizing EPA
to issue ``grants to States and to interstate agencies to assist them
in administering programs for the prevention, reduction, and
elimination of pollution''). Section 108, ``Pollution Control in Great
Lakes,'' authorized EPA to enter into agreements with any State to
develop plans for the ``elimination or control of pollution, within all
or any part of the watersheds of the Great Lakes.'' Id. at 1258(a)
(emphasis added); see also id. at 1268(a)(3)(C) (defining the ``Great
Lakes System'' as ``all the streams, rivers, lakes and other bodies of
water within the drainage basin of the Great Lakes'') (emphasis added).
Similar broad pollution control programs were created for other major
watersheds, including, for example, the Chesapeake Bay, see id. at
1267(a)(3), Long Island Sound, see id. at 1269(c)(2)(D), and Lake
Champlain, see id. at 1270(g)(2).
    In addition to the Act's non-regulatory measures to control
pollution of the nation's waters generally, Congress created a federal
regulatory permitting program designed to address the discharge of
pollutants into a subset of those waters identified as ``navigable
waters'' or ``the waters of the United States,'' id. at 1362(7).
Section 301 contains the key regulatory mechanism: ``Except as in
compliance with this section and sections 302, 306, 307, 318, 402, and
404 of this Act, the discharge of any pollutant by any person shall be
unlawful.'' Id. at 1311(a). A ``discharge of a pollutant'' is defined
to include ``any addition of any pollutant to navigable waters from any
point source,'' such as a pipe, ditch or other ``discernible, confined
and discrete conveyance.'' Id. at 1362(12), (14). The term
``pollutant'' means ``dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water.'' Id. at 1362(6). Thus, it is unlawful to
discharge pollutants into the waters of the United States from a point
source unless the discharge is in compliance with certain enumerated
sections of the CWA, including obtaining authorization pursuant to the
section 402 National Pollutant Discharge Elimination System (NPDES)
permit program or the section 404 dredged or fill material permit
program. See id. at 1342 and 1344. Congress therefore hoped to achieve
the Act's objective ``to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters'' by addressing
pollution of all waters via non-regulatory means and federally
regulating the discharge of pollutants to the subset of waters
identified as ``navigable waters.'' \4\
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    \4\ Members of Congress were aware when they drafted the 1972
CWA amendments that different types of the Nation's waters would be
subject to different degrees of federal control. For instance, in
House Debate regarding a proposed and ultimately failed amendment to
prohibit the discharge of pollutants to ground waters in addition to
navigable waters, Representative Don H. Clausen stated, ``Mr.
Chairman, in the early deliberations within the committee which
resulted in the introduction of H.R. 11896, a provision for ground
waters . . . . was thoroughly reviewed and it was determined by the
committee that there was not sufficient information on ground waters
to justify the types of controls that are required for navigable
waters. I refer the gentleman to the objectives of this act as
stated in section 101(a). The objective of this act is to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters. I call your attention to the fact that this does
not say the Nation's `navigable waters,' `interstate waters,' or
`intrastate waters.' It just says `waters.' This includes ground
waters.'' 118 Cong. Rec. at 10,667 (daily ed. March 28, 1972).
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    Under this statutory scheme, the States are primarily responsible
for developing water quality standards for ``waters of the United
States'' within their borders and reporting on the condition of those
waters to EPA every two years. Id. at 1313, 1315. States must develop
total maximum daily loads (TMDLs) for waters that are not meeting
established water quality standards and must submit those TMDLs to EPA
for approval. Id. at 1313(d). States also have authority to issue water
quality certifications or waive certification for every federal permit
or license issued within their borders that may result in a discharge
to navigable waters. Id. at 1341.
    These same regulatory authorities can be assumed by Indian tribes
under section 518 of the CWA, which authorizes EPA to treat eligible
Indian tribes with reservations in a manner similar to States for a
variety of purposes, including administering each of the principal CWA
regulatory programs. Id. at 1377(e). In addition, States and Tribes
retain authority to protect and manage the use of those waters that are
not navigable waters under the CWA. See, e.g., id. at 1251(b), 1251(g),
1370, 1377(a). At this time, forty-seven states administer portions of
the CWA section 402 permit program for those ``waters of the United
States'' within their boundaries,\5\ and two states (Michigan and New
Jersey) administer the section 404 permit program. At present, no
Tribes administer the section 402 or 404 programs, although some are
exploring the possibility. For additional information regarding State
and tribal programs, see the Technical Support Document.
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    \5\ Three states (Massachusetts, New Hampshire, and New Mexico)
do not currently administer any part of the CWA section 402 program.
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2. Regulatory History
    In May 1973, the EPA issued its first set of regulations to
implement the new NPDES permit program established in the 1972 CWA
amendments. Those regulations defined the phrase ``navigable waters''
as:
     All navigable waters of the United States;
     Tributaries of navigable waters of the United States;
     Interstate waters;
     Intrastate lakes, rivers, and streams which are utilized
by interstate travelers for recreational or other purposes;
     Intrastate lakes, rivers, and streams from which fish or
shellfish are taken and sold in interstate commerce; and
     Intrastate lakes, rivers, and streams which are utilized
for industrial purposes by industries in interstate commerce.

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

    In 1974, the Corps issued its first set of regulations defining
``waters of the United States'' for the purpose of implementing section
404 of the CWA, as well as sections 9, 10, 11, 13, and 14 of the RHA,
that reaffirmed the Corps' view that its dredged and fill jurisdiction
under section 404 was the same as its traditional jurisdiction under
the RHA. See 39 FR 12115, 12119 (Apr. 3, 1974) (codified at 33 CFR
209.12033). Specifically, the Corps defined ``the waters of the United
States'' as waters that ``are subject to the ebb and flow of the tide,
and/or are presently, or have been in the past, or may be in the future
susceptible for use for purposes of interstate or foreign commerce.''
39 FR 12119.
    Environmental organizations challenged the Corps' 1974 regulation
in the District Court for the District of Columbia based on the concern
that the Corps' definition of ``navigable waters'' did not include
tributaries or coastal marshes above the mean high tide mark or
wetlands above the ordinary high water mark. The District Court held
that the term ``navigable waters'' is not limited to the traditional
tests of navigability and ordered the Corps to revoke its definition
and publish a new one ``clearly recognizing the full regulatory mandate
of the Water Act.'' Natural Resources Defense Council, Inc. v.
Callaway, 392 F. Supp. 685 (D.D.C. 1975).
    In response to this decision, the Corps issued interim regulations
in 1975 that defined the term ``navigable waters'' to include
periodically inundated coastal wetlands contiguous with or adjacent to
navigable waters, periodically inundated freshwater wetlands contiguous
with or adjacent to navigable waters, and, like EPA's 1973 regulations,
certain intrastate waters based on non-transportation impacts on
interstate commerce. The Corps revised the definition in 1977 to
encompass traditional navigable waters, tributaries to navigable
waters, interstate waters, adjacent wetlands to those categories of
waters, and ``[a]ll other waters'' the ``degradation or destruction of
which could affect interstate commerce.'' 42 FR 37122, 37144 (July 19,
1977).
    The EPA and the Corps through the years have maintained separate
regulations defining the statutory term ``waters of the United
States,'' but the text of the regulations has been virtually identical
starting in 1986.\6\ In 1986, for example, the Corps consolidated and
recodified its regulations to align with clarifications EPA had
previously promulgated. See 51 FR 41206 (Nov. 13, 1986). While the
Corps stated in 1986 that the recodified regulation neither reduced nor
expanded jurisdiction, its previous exclusion for ditches was moved
from the regulatory text to the final rule preamble. Id. at 41216-17.
And the Corps added to the preamble what later became known as the
``Migratory Bird Rule,'' which claimed jurisdiction over any water
which is or may be used by birds protected by migratory bird treaties
or may be used as habitat for birds flying across state lines, and
waters which may be used by endangered species, and waters used to
irrigate crops sold in interstate commerce. Id. at 41217.
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    \6\ For convenience, the agencies generally refer to the Corps'
regulations throughout this notice. EPA codification of the
definition of ``waters of the United States'' is found at 40 CFR
110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 401.11, and
Appendix E to Part 300.
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    The 1986 regulatory text identified the following as ``waters of
the United States'':
     All traditional navigable waters,\7\ interstate waters,
and the territorial seas;
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    \7\ ``Traditional navigable waters'' (or waters that are
traditionally understood as navigable) refers to all waters which
are currently used, were used in the past, or may be susceptible to
use in interstate or foreign commerce, including all waters subject
to the ebb and flow of the tide.
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     All impoundments of jurisdictional waters;
     All ``other waters'' such as lakes, ponds, and sloughs the
``use, degradation or destruction of which could affect interstate or
foreign commerce'';
     Tributaries of traditional navigable waters, interstate
waters, the territorial seas, impoundments, or ``other waters''; and,
     Wetlands adjacent to traditional navigable waters,
interstate waters, the territorial seas, impoundments, tributaries, or
``other waters'' (other than waters that are themselves wetlands).

33 CFR 328.3(a)(1)-(7) (1987). The 1986 regulation also excluded
``waste treatment systems'' from the definition of ``waters of the
United States.'' Id. at 328.3(a)(7), (b) (1987).
    On August 25, 1993, the agencies amended the regulatory definition
of ``waters of the United States'' to categorically exclude ``prior
converted croplands.'' 58 FR 45008, 45031 (Aug. 25, 1993) (``1993
Rule'') (codified at 33 CFR 328.3(b)(2) (1994)). The stated purpose of
the amendment was to promote ``consistency among various federal
programs affecting wetlands,'' in particular the Food Security Act
(FSA) programs implemented by the U.S. Department of Agriculture (USDA)
and the CWA programs implemented by the agencies. 58 FR 45033. The
agencies did not include a definition of ``prior converted cropland''
in the text of the Code of Federal Regulations but noted in the
preamble to the 1993 Rule that the term was defined at that time by the
USDA National Food Security Act Manual (NFSAM). The agencies at that
time also declined to establish clear rules for when the prior
converted cropland designation is no longer applicable. In the preamble
to the 1993 Rule, the agencies stated that ``[t]he Corps and EPA will
use the [Natural Resources Conservation Service's] provisions on
`abandonment,' thereby ensuring that PC cropland that is abandoned
within the meaning of those provisions and which exhibit[s] wetlands
characteristics will be considered wetlands subject to Section 404
regulation.'' Id. at 45034. The agencies summarized these abandonment
provisions by explaining that prior converted cropland which now meets
wetland criteria is considered to be abandoned unless: At least once in
every five years the area 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.
    Congress amended the wetland conservation (``Swampbuster'')
provisions of the FSA in 1996 to state that USDA certifications of
eligibility for program benefits (e.g., determinations by Natural
Resources Conservation Service (NRCS) that particular areas constitute
prior converted cropland) ``shall remain valid and in effect as long as
the area is devoted to an agricultural use or until such time as the
person affected by the certification requests review of the
certification by the Secretary [of Agriculture].'' Public Law 104-127,
322(a)(4); 16 U.S.C. 3822(a)(4). Thus, for purposes of farm program
eligibility, the 1996 amendments designate as prior converted cropland
those areas that may not have qualified for the CWA exclusion under the
abandonment principles from the 1993 preamble, so long as such areas
remain in agricultural use. The agencies did not update their prior
converted cropland regulations for purposes of the CWA following the
1996 Swampbuster amendments, as those regulations neither defined prior
converted cropland nor specified when a valid prior converted cropland
determination might cease to be valid. However, in 2005, the Army and
USDA issued a joint Memorandum to the Field (the 2005 Memorandum) in an
effort to again align the CWA 404 program with

Swampbuster.\8\ The 2005 Memorandum provided that a ``certified [prior
converted] determination made by [USDA] remains valid as long as the
area is devoted to an agricultural use. If the land changes to a non-
agricultural use, the [prior converted] determination is no longer
applicable and a new wetland determination is required for CWA
purposes.''
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    \8\ Memorandum to the Field on Guidance on Conducting Wetland
Determinations for the Food Security Act of 1985 and Section 404 of
the Clean Water Act, February 25, 2005, available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2508.
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    The 2005 Memorandum did not clearly address the abandonment
principle that the agencies had been implementing since the 1993
rulemaking. The change in use policy was also never promulgated as a
rule and was declared unlawful by one district court because it
effectively modified the 1993 preamble language without any formal
rulemaking process. New Hope Power Co. v. U.S. Army Corps of Eng'rs,
746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010).
3. Supreme Court Decisions
    From the earliest rulemaking efforts following adoption of the 1972
CWA amendments, to the agencies most recent attempt to define ``waters
of the United States'' in 2015, the sparse statutory definition has
spurred substantial litigation testing the meaning of the phrase.
Hundreds of cases and dozens of courts have attempted to discern the
intent of Congress when crafting the phrase. See, e.g., Rapanos v.
United States, 547 U.S. 715, 739 (2006) (Scalia, J., plurality)
(briefly summarizing case history). The federal courts have established
different analytical frameworks to interpret the phrase, and the
applicable test may differ from state to state. See, e.g., Memorandum
from Dick Pedersen, President of the Environmental Council of the
States (ECOS) of September 11, 2014 Concerning Waters of the United
States under the Act at 2-23 (2014) (hereinafter, the ``ECOS
Memorandum''), available at http://acoel.org/file.axd?file=2014%2f9%2fWaters+of+the+U+S+Final+9_11_14.pdf
(summarizing case history following Rapanos).
    As part of this complex litigation history, three key U.S. Supreme
Court decisions have interpreted the term ``waters of the United
States'' and its implementing regulations and serve as guideposts for
the agencies' interpretation of the phrase ``waters of the United
States.'' In 1985, for example, the Supreme Court deferred to the
Corps' assertion of jurisdiction over wetlands actually abutting a
traditional navigable water in Michigan, stating that adjacent wetlands
may be regulated as ``waters of the United States'' because they are
``inseparably bound up'' with navigable waters and ``in the majority of
cases'' have ``significant effects on water quality and the aquatic
ecosystem'' in those waters. United States v. Riverside Bayview Homes,
474 U.S. 121, 131-35 & n.9 (1985). The Court 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 . . . . . Where on this continuum to find the limit of
`waters' is far from obvious.'' Id. at 132. The Court acknowledged the
``inherent difficulties of defining precise bounds to regulable
waters,'' and deferred to the agencies' interpretation that the close
ecological relationship between adjacent wetlands and traditional
navigable waters provided a legal justification for treating wetlands
as waters. Id. at 134. The Court also ``conclude[d] 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.'' Id. at 135.
    The Supreme Court again addressed the definition of ``waters of the
United States'' in Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). In SWANCC, the
Court relied on the statute to reject a claim of federal jurisdiction
over nonnavigable, isolated, intrastate ponds that lack a sufficient
connection to traditional navigable waters, noting that the term
``navigable'' must be given meaning within the context and application
of the statute. Id. The Court held that interpreting the statute to
extend to nonnavigable, isolated, intrastate ponds that lack a
sufficient connection to traditional navigable waters would invoke the
outer limits of Congress' power under the Commerce Clause. Id. at 172.
Where an administrative interpretation of a statute presses against the
outer limits of Congress' constitutional authority, the Court
explained, it expects a clear statement from Congress that it intended
that result, and even more so when the broad interpretation authorizes
federal encroachment upon a traditional state power. Id. The CWA
contains no such clear statement. Id. at 174.
    In January 2003, EPA and the Corps issued joint guidance
interpreting the Supreme Court decision in SWANCC.\9\ The guidance
indicated that SWANCC focused on nonnavigable, isolated, intrastate
waters, and called for field staff to coordinate with their respective
Corps or EPA Headquarters on jurisdictional determinations which
asserted jurisdiction over such waters. The agencies at that time
focused the application of SWANCC to its facts, and applied the
decision as restricting the exercise of federal jurisdiction based on
the Migratory Bird Rule.
---------------------------------------------------------------------------

    \9\ See Legal Memoranda Regarding Solid Waste Agency of Northern
Cook County (SWANCC) v. United States (Jan. 15, 2003), available at
https://www.epa.gov/sites/production/files/2016-04/documents/swancc_guidance_jan_03.pdf.
---------------------------------------------------------------------------

    The Court most recently interpreted the term ``waters of the United
States'' in Rapanos v. United States, 547 U.S. 715 (2006). Rapanos
involved two consolidated cases in which the CWA had been applied to
wetlands located near man-made ditches that were ultimately connected
to traditional navigable waters. All members of the Court agreed that
the term ``waters of the United States'' encompasses some waters that
are not navigable in the traditional sense.
    A four-Justice plurality interpreted the term ``waters of the
United States'' to ``include[ ] only those relatively permanent,
standing or continuously flowing bodies of water `forming geographic
features' that are described in ordinary parlance as `streams[,] . . .
oceans, rivers, [and] lakes,' '' Rapanos, 547 U.S. at 739 (Scalia, J.,
plurality) (quoting Webster's New International Dictionary 2882 (2d ed.
1954)), and ``wetlands with a continuous surface connection'' to a
relatively permanent water. Id. at 742. The plurality explained that
``[w]etlands with only an intermittent, physically remote hydrologic
connection to `waters of the United States' do not implicate the
boundary-drawing problem of Riverside Bayview,'' and thus do not have
the ``necessary connection'' to covered waters that triggers CWA
jurisdiction. Id. at 742. The plurality also noted that its reference
to ``relatively permanent'' waters did ``not necessarily exclude
streams, rivers, or lakes that might dry up in extraordinary
circumstances, such as drought,'' or ``seasonal rivers, which contain
continuous flow during some months of the year but no flow during dry
months . . . .'' Id. at 732 n.5 (emphasis in original).
    In a concurring opinion, Justice Kennedy took a different approach,
concluding that ``to constitute `navigable waters' under the Act, a
water or wetland must possess a `significant nexus' to waters that are
or

were navigable in fact or that could reasonably be so made.'' Id. at
759 (citing SWANCC, 531 U.S. at 167, 172). He stated that adjacent
wetlands possess the requisite significant nexus if the wetlands
``either alone or in combination with similarly situated lands in the
region, significantly affect the chemical, physical, and biological
integrity of other covered waters more readily understood as
`navigable.' '' Id. at 780.
    Following Rapanos, on June 7, 2007, the agencies issued joint
guidance entitled, ``Clean Water Act Jurisdiction Following the U.S.
Supreme Court's Decision in Rapanos v. United States and Carabell v.
United States,'' to address the waters at issue in that decision but
did not change the codified definition. The guidance indicated that the
agencies would assert jurisdiction over traditional navigable waters
and their adjacent wetlands, relatively permanent nonnavigable
tributaries of traditional navigable waters and wetlands that abut
them, nonnavigable tributaries that are not relatively permanent if
they have a significant nexus with a traditional navigable water, and
wetlands adjacent to nonnavigable tributaries that are not relatively
permanent if they have a significant nexus with a traditional navigable
water. The guidance was reissued on December 2, 2008, with minor
changes (hereinafter, the ``Rapanos Guidance'').\10\ After issuance of
the Rapanos Guidance, Members of Congress, developers, farmers, state
and local governments, environmental organizations, energy companies,
and others asked the agencies to replace the guidance with a regulation
that would provide clarity and certainty regarding the scope of the
waters federally regulated under the CWA.
---------------------------------------------------------------------------

    \10\ See U.S. EPA and U.S. Army Corps of Engineers. Clean Water
Act Jurisdiction Following the U.S. Supreme Court's Decision in
Rapanos v. United States & Carabell v. United States at 1 (Dec. 2,
2008) (``Rapanos Guidance''), available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf.
---------------------------------------------------------------------------

    Since Rapanos, litigation has continued to confuse the regulatory
landscape. See, e.g., the ECOS Memorandum at 2-23. The Supreme Court
also has twice weighed in on topics related to the agencies'
implementation of their authorities under the CWA to help clarify
federal authority in this area. In each case, members of the Court
noted the longstanding confusion regarding the scope of federal
jurisdiction under the CWA and the importance of providing clear
guidance to the regulated community. In 2012, for example, the Supreme
Court unanimously rejected EPA's long-standing position that compliance
orders issued under the CWA to force property owners to restore
wetlands are not judicially reviewable as final agency actions. See
Sackett v. EPA, 132 S. Ct. 1367, 1374 (2012). In a concurring opinion,
Justice Alito referred to the jurisdictional reach of the CWA as
``notoriously unclear'' and noted that the Court's decision provided
only ``a modest measure of relief.'' Id. at 1375 (``For 40 years,
Congress has done nothing to resolve this critical ambiguity, and the
EPA has not seen fit to promulgate a rule providing a clear and
sufficiently limited definition of the phrase'' waters of the United
States.).
    In 2016, the Supreme Court in a unanimous opinion rejected the
Corps' longstanding position that jurisdictional determinations issued
by the Corps were not judicially reviewable as final agency actions.
Writing for the Court, the Chief Justice recognized that it ``is often
difficult to determine whether a particular piece of property contains
waters of the United States, but there are important consequences if it
does.'' U.S. Army Corps of Engineers v. Hawkes, 136 S. Ct. 1807, 1812
(2016). Given those important consequences, the Court held that
jurisdictional determinations are subject to immediate judicial review
when made. Justice Kennedy authored a concurring opinion, ``not to
qualify what the Court says but to point out, that based on the
Government's representations in this case, the reach and systemic
consequences of the Clean Water Act remain a cause for concern.'' Id.
at 1816 (referring to the ``ominous reach'' of the Act). On remand, the
lower court found that the Corps' assertion of jurisdiction over a peat
farm more than 90 miles from the nearest traditional navigable water
based on the ``significant nexus'' test described in the agencies'
Rapanos Guidance was ``arbitrary and capricious.'' Hawkes Co. v. United
States Army Corps of Eng'rs, No. 13-107 ADM/TNL, 2017 U.S. Dist. LEXIS
10680 at *33 (D. Minn. Jan. 24, 2017).
4. The 2015 Rule
    On June 29, 2015, the agencies issued a final rule amending various
portions of the Code of Federal Regulations that set forth a new
definition of ``waters of the United States.'' 80 FR 37054 (June 29,
2015). The 2015 Rule revised the definition of ``waters of the United
States'' by grouping waters and features in three categories: (1)
Waters that are jurisdictional by rule; (2) waters that will be found
jurisdictional only upon a case-specific showing of a significant nexus
with a primary water; \11\ and (3) waters and aquatic features that are
expressly excluded from jurisdiction. Id. at 37057. The 2015 Rule did
not modify the regulatory text from the 1986 regulation for traditional
navigable waters, interstate waters, the territorial seas, or
impoundments of jurisdictional waters. Id. at 37058.
---------------------------------------------------------------------------

    \11\ In this notice, a ``primary'' water is a category (1)
through (3) ``jurisdictional by rule'' water according to the 2015
Rule.
---------------------------------------------------------------------------

    As in the 1986 regulation and its predecessors, the 2015 Rule
identified tributaries as jurisdictional. Unlike the 1986 regulation,
the 2015 Rule defined ``tributary'' as a water that ``contributes flow,
either directly or through another water,'' to a traditional navigable
water, interstate water, or the territorial seas, and that has the
``physical indicators of a bed and banks and an ordinary high water
mark.'' Id. at 37104, 37105-6. The 2015 Rule also defined ``waters of
the United States'' to include ``wetlands, ponds, lakes, oxbows,
impoundments, and similar waters'' that are ``adjacent to'' a primary
water, impoundment, or tributary. Id. at 37104. The term ``adjacent''
continued to be defined as in the 1986 regulation to mean ``bordering,
contiguous, or neighboring.'' Id. at 37105. The 2015 Rule, however,
promulgated a new definition for ``neighboring,'' interpreting that
term to encompass all waters located within 100 feet of the ordinary
high water mark of a category (1) through (5) ``jurisdictional by
rule'' water; all waters located within the 100-year floodplain of a
category (1) through (5) ``jurisdictional by rule'' water and not more
than 1,500 feet from the ordinary high water mark of such water; all
waters located within 1,500 feet of the high tide line of a primary
water; and all waters within 1,500 feet of the ordinary high water mark
of the Great Lakes. Id. at 37105. Under the 2015 Rule, the entire water
is considered neighboring if any portion of it lies within one of these
zones. See id.
    In addition to the six categories of ``jurisdictional by rule''
waters, the 2015 Rule identifies two other categories of waters that
are subject to a case-specific analysis to determine if they have a
``significant nexus'' to a primary water. Id. at 37104-5. The first
category of these waters consists of five specific types of waters in
specific regions of the country considered similarly situated: Prairie
potholes, Carolina and Delmarva bays, pocosins, western vernal pools in
California, and Texas coastal prairie wetlands. Id. at 37105. The
second category consists of all waters located within the 100-year
floodplain of any primary water and all waters located

within 4,000 feet of the high tide line or ordinary high water mark of
any category (1) through (5) ``jurisdictional by rule'' water. Id.
    The 2015 Rule also changed the implementation of ``significant
nexus'' previously adopted by the agencies in the Rapanos Guidance. The
2015 Rule defines ``significant nexus'' to mean a water, including
wetlands, that either alone or in combination with other similarly
situated waters in the region, significantly affects the chemical,
physical, or biological integrity of a primary water. 80 FR 37106.
``For an effect to be significant, it must be more than speculative or
insubstantial.'' Id. The term ``in the region'' means ``the watershed
that drains to the nearest'' primary water, and waters are ``similarly
situated'' when they function alike and are sufficiently close to
function together in affecting downstream primary waters. Id. This
definition is different than the test articulated by the agencies in
their Rapanos Guidance. That guidance interpreted ``similarly
situated'' to include all wetlands (not waters) adjacent to the same
tributary, a less expansive treatment of similarly situated waters than
in the 2015 Rule.
    Under the 2015 Rule, to determine whether a water, alone or in
combination with similarly situated waters, has a significant nexus,
one must look at nine functions, including sediment trapping, runoff
storage, provision of life cycle dependent aquatic habitat, and others.
It is sufficient for determining whether a water has a significant
nexus if any single function performed by the water, alone or together
with similarly situated waters in the watershed, contributes
significantly to the chemical, physical, or biological integrity of the
nearest primary water. Id. Taken together, the enumeration of the nine
functions and the more expansive consideration of ``similarly
situated'' in the 2015 Rule relative to the Rapanos Guidance could mean
that the vast majority of water features in the United States not
otherwise excluded from the 2015 Rule's definition of ``waters of the
United States'' may come within the jurisdictional purview of the
federal government.\12\
---------------------------------------------------------------------------

    \12\ ``[T]he vast majority of the nation's water features are
located within 4,000 feet of a covered tributary, traditional
navigable water, interstate water, or territorial sea.'' U.S. EPA
and Department of the Army. Economic Analysis of the EPA-Army Clean
Water Rule at 11 (May 20, 2015) (``2015 Rule Economic Analysis'')
(Docket ID: EPA-HQ-OW-2011-0880-20866), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20866.
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    The agencies retained exclusions from the definition of ``waters of
the United States'' for prior converted cropland and waste treatment
systems. Id. In addition, the agencies codified several exclusions that
reflected longstanding agency practice. Id. For instance, certain
ditches and artificial, constructed lakes and ponds (including small
ornamental waters created in dry land) are excluded from jurisdiction
under the 2015 Rule, as are groundwater and a number of other specified
features. See 80 FR 37109. The agencies also added specific exclusions
for ``puddles'' and ``swimming pools'' in response to concerns raised
by many stakeholders during the public comment period on the proposed
2015 Rule.
    Following publication of the 2015 Rule, 31 States \13\ and 53 non-
state parties, including environmental groups and groups representing
farming, recreational, forestry, and other interests, filed complaints
and petitions for review in multiple federal district \14\ and
appellate \15\ courts challenging the 2015 Rule. In those cases, the
challengers alleged numerous procedural deficiencies in the development
and promulgation of the 2015 Rule and significant substantive
deficiencies in the 2015 Rule itself.
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    \13\ Alabama, Alaska, Arizona, Arkansas, Colorado, Florida,
Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico
(Environment Department and State Engineer), North Carolina
(Department of Environment and Natural Resources), North Dakota,
Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas,
Utah, West Virginia, Wisconsin, and Wyoming. Iowa joined the
challenge later in the process, bringing the total to 32 States.
    \14\ U.S. District Courts for the Northern and Southern District
of Georgia, District of Minnesota, District of North Dakota,
Southern District of Ohio, Northern District of Oklahoma, Southern
District of Texas, District of Arizona, Northern District of
Florida, District of the District of Columbia, Western District of
Washington, Northern District of California, and Northern District
of West Virginia.
    \15\ U.S. Court of Appeals for the Second, Fifth, Sixth, Eighth,
Ninth, Tenth, Eleventh, and District of Columbia Circuits.
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    The day before the 2015 Rule's August 28, 2015 effective date, the
U.S. District Court for the District of North Dakota preliminarily
enjoined the 2015 Rule in the 13 States that challenged the rule in
that court.\16\ The district court found those States were ``likely to
succeed'' on the merits of their challenge to the 2015 Rule because,
among other reasons, ``it appears likely that the EPA has violated its
Congressional grant of authority in its promulgation of the Rule.''
North Dakota v. EPA, 127 F. Supp. 3d 1047, 1051 (D.N.D. 2015). In
particular, the court noted concern that the 2015 Rule's definition of
tributary ``includes vast numbers of waters that are unlikely to have a
nexus to navigable waters.'' Id. at 1056. Further, the court found that
``it appears likely that the EPA failed to comply with [Administrative
Procedure Act (APA)] requirements when promulgating the Rule,''
suggesting that certain distance-based measures were not a logical
outgrowth of the proposal to the 2015 Rule. Id. at 1058. No party
sought an interlocutory appeal.
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    \16\ Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri,
Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota,
and Wyoming. The agencies note that Iowa is now also subject to the
preliminary injunction issued by the District of North Dakota. See
Order, North Dakota v. EPA, No. 3:15-cv-59 (D.N.D. Sept. 18, 2018).
---------------------------------------------------------------------------

    The numerous petitions for review filed in the courts of appeals
were consolidated in the U.S. Court of Appeals for the Sixth Circuit.
In that litigation, state and industry petitioners raised concerns
about whether the 2015 Rule violated the Constitution and the CWA, and
whether its promulgation violated the APA and other statutes.
Environmental petitioners also challenged the 2015 Rule, claiming that
the 2015 Rule was too narrow. On October 9, 2015, approximately six
weeks after the 2015 Rule took effect in the 37 States, the District of
Columbia, and U.S. Territories that were not subject to the preliminary
injunction issued by the District of North Dakota, the Sixth Circuit
stayed the 2015 Rule nationwide after finding, among other things, that
State petitioners had demonstrated ``a substantial possibility of
success on the merits of their claims.'' In re EPA & Dep't of Def.
Final Rule, 803 F.3d 804 (6th Cir. 2015) (``In re EPA'').
    On January 13, 2017, the U.S. Supreme Court granted certiorari on
the question of whether the courts of appeals have original
jurisdiction to review challenges to the 2015 Rule. See Nat'l Ass'n of
Mfrs. v. Dep't of Defense, 137 S. Ct. 811 (2017). The Sixth Circuit
granted petitioners' motion to hold in abeyance the briefing schedule
in the litigation challenging the 2015 Rule pending a Supreme Court
decision on the question of the court of appeals' jurisdiction. On
January 22, 2018, the Supreme Court, in a unanimous opinion, held that
the 2015 Rule is subject to direct review in the district courts. Nat'l
Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 624 (Jan. 22, 2018).
Throughout the pendency of the Supreme Court litigation (and for a
short time thereafter), the Sixth Circuit's nationwide stay remained in
effect. In response to the Supreme Court's decision, on February 28,
2018, the Sixth Circuit lifted the stay and dismissed the corresponding
petitions for review. See In re Dep't of Def. & EPA Final Rule, 713
Fed. Appx. 489 (6th Cir. 2018).

    Since the Supreme Court's jurisdictional ruling, district court
litigation regarding the 2015 Rule has resumed. The 2015 Rule continues
to be subject to a preliminary injunction issued by the District of
North Dakota as to 14 States: Alaska, Arizona, Arkansas, Colorado,
Idaho, Iowa, Missouri, Montana, Nebraska, Nevada, North Dakota, South
Dakota, Wyoming, and New Mexico. The 2015 Rule also is subject to a
preliminary injunction recently issued by the United States District
Court for the Southern District of Georgia as to 11 more States:
Georgia, Alabama, Florida, Indiana, Kansas, Kentucky, North Carolina,
South Carolina, Utah, West Virginia, and Wisconsin. See Georgia v.
Pruitt, No. 15-cv-79 (S.D. Ga.). When issuing the preliminary
injunction, the Southern District of Georgia court held that the State
plaintiffs had demonstrated ``a likelihood of success on their claims
that the [2015] WOTUS Rule was promulgated in violation of the CWA and
the APA.'' Georgia v. Pruitt, No. 15-cv-79, slip op. at 10 (S.D. Ga.
June 8, 2018) (Order Granting Preliminary Injunction) (``Georgia''). In
support of the preliminary injunction, the court stated that the 2015
Rule failed to meet the standard expounded in SWANCC and Rapanos, and
that the rule was fatally defective because it ``allows the Agencies to
regulate waters that do not bear any effect on the `chemical, physical,
and biological integrity' of any navigable-in-fact water.'' Id. at 12.
The court also held that the plaintiffs ``have demonstrated a
likelihood of success on both of their claims under the APA'' that the
2015 Rule ``is arbitrary and capricious'' and ``that the final rule is
not a logical outgrowth of the proposed rule.'' Id. at 13.
    In September 2018, the United States District Court for the
Southern District of Texas issued a preliminary injunction against the
2015 Rule in response to motions filed by the States of Texas,
Louisiana, and Mississippi and several business associations, finding
that enjoining the rule would provide ``much needed governmental,
administrative, and economic stability'' while the rule undergoes
judicial review. See Texas v. EPA, No. 3:15-cv-162, 2018 U.S. Dist.
LEXIS 160443, at *4 (S.D. Tex. Sept. 12, 2018). The court observed that
if it did not temporarily enjoin the rule, ``it risks asking the
states, their governmental subdivisions, and their citizens to expend
valuable resources and time operationalizing a rule that may not
survive judicial review.'' Id. At this time, the 2015 Rule is enjoined
in 28 States and remains in effect following the lift of the Sixth
Circuit stay in 22 States, the District of Columbia, and U.S.
Territories.

C. Executive Order 13778, the ``Step One'' Notice of Proposed
Rulemaking, and the Applicability Date Rule

    On February 28, 2017, the President issued Executive Order 13778
entitled ``Restoring the Rule of Law, Federalism, and Economic Growth
by Reviewing the `Waters of the United States' Rule.'' Section 1 of the
Executive Order states, ``[i]t is in the national interest to ensure
the Nation's navigable waters are kept free from pollution, while at
the same time promoting economic growth, minimizing regulatory
uncertainty, and showing due regard for the roles of the Congress and
the States under the Constitution.'' The Executive Order directs the
EPA and the Army to review the 2015 Rule for consistency with the
policy outlined in section 1 of the Order and to issue a proposed rule
rescinding or revising the 2015 Rule as appropriate and consistent with
law (Section 2). The Executive Order also directs the agencies to
``consider interpreting the term `navigable waters' . . . in a manner
consistent with'' Justice Scalia's plurality opinion in Rapanos v.
United States, 547 U.S. 715 (2006) (Section 3).
    On March 6, 2017, the agencies published a notice of intent to
review the 2015 Rule and provide notice of a forthcoming proposed
rulemaking consistent with the Executive Order. 82 FR 12532. Shortly
thereafter, the agencies announced that they would implement the
Executive Order in a two-step approach. On July 27, 2017, the agencies
issued the ``Step One'' notice of proposed rulemaking (82 FR 34899)
that proposed to repeal the 2015 Rule and recodify the regulatory text
that governed prior to the promulgation of the 2015 Rule, consistent
with Supreme Court decisions and informed by applicable guidance
documents and agency practice, and which the agencies have been
implementing since the judicial stay of the 2015 Rule. 82 FR 34899. The
agencies invited comment on the notice of proposed rulemaking over a
62-day period. On July 12, 2018, the agencies published a supplemental
notice of proposed rulemaking to clarify, supplement, and seek
additional comment on the Step One notice of proposed rulemaking. 83 FR
32227.
    On November 22, 2017, the agencies published and solicited public
comment on a proposal to establish an applicability date for the 2015
Rule that would be two years from the date of any final rule (82 FR
55542). On February 6, 2018, the agencies issued a final rule, 83 FR
5200 (Feb. 6, 2018), adding an applicability date to the 2015 Rule. The
applicability date was established as February 6, 2020. When adding an
applicability date to the 2015 Rule, the agencies clarified that they
will continue to implement nationwide the previous regulatory
definition of ``waters of the United States,'' consistent with the
practice and procedures the agencies implemented long before and
immediately following the 2015 Rule pursuant to the preliminary
injunction issued by the District of North Dakota and the nationwide
stay issued by the Sixth Circuit. The agencies further explained that
the final applicability date rule would ensure regulatory certainty and
consistent implementation of the CWA nationwide while the agencies
reconsider the 2015 Rule and pursue further rulemaking to develop a new
definition of ``waters of the United States.''
    The applicability date rule was challenged in a number of district
courts by States and environmental organizations. On August 16, 2018,
the U.S. District Court for the District of South Carolina granted
summary judgment in favor of the plaintiffs and enjoined the
Applicability Date Rule nationwide. South Carolina Coastal Conservation
League, et al., v. Pruitt, No. 2-18-cv-330-DCN, 2018 U.S. Dist. LEXIS
138595 (D.S.C. Aug. 16, 2018). In addition, on November 26, 2018, the
U.S. District Court for the Western District of Washington vacated the
Applicability Date Rule nationwide. Puget Soundkeeper Alliance, et al.
v. Andrew Wheeler, et al., No. C15-1342-JCC (W.D. Wash. November 26,
2018). As a result, the 2015 Rule is now in effect in 22 States.\17\
The 2015 Rule continues to be subject to preliminary injunctions issued
by the U.S. District Court for the District of North Dakota, the U.S.
District Court for the Southern District of Georgia, and the U.S.
District Court for the Southern District of Texas in a total of 28
States.
---------------------------------------------------------------------------

    \17\ To assist the public in keeping up with the changing
regulatory landscape of federal jurisdiction under the CWA, the EPA
has posted a map of current effective regulation by state online at
https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update.
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D. Summary of Stakeholder Outreach

    Following the March 6, 2017 Federal Register notice announcing the
agencies' intent to review and rescind or revise the 2015 Rule, the
agencies initiated an effort to engage the public to hear perspectives
as to how the agencies could define ``waters of the United States,''
including creating a new website to provide information on the

rulemaking. See www.epa.gov/wotus-rule. On April 19, 2017, the agencies
held an initial Federalism consultation with State and local government
officials as well as national organizations representing such
officials. The agencies also convened several additional meetings with
intergovernmental associations and their members to solicit input on
the future rule. The EPA, with participation from the Army, initiated
Tribal consultation on April 20, 2017, under the EPA Policy on
Consultation and Coordination with Indian Tribes. See Section VI for
further details on the agencies' Federalism and Tribal consultations.
    In addition to engaging key State, tribal and local officials
through Federalism and Tribal consultations, the agencies sought
feedback on the definition of ``waters of the United States'' from a
broad audience of stakeholders, including small entities (small
businesses, small organizations and small government jurisdictions),
through a series of outreach webinars that were held September 9, 2017,
through November 21, 2017, as well as an in-person meeting for small
entities on October 23, 2017. A summary of these public meetings is
available in the docket (Docket Id. No. EPA-HQ-OW-2018-0149) for this
proposed rule. The webinars were tailored to specific sectors,
including agriculture (row crop, livestock, silviculture); conservation
(hunters and anglers); small entities (small businesses, small
organizations, small jurisdictions); construction and transportation;
environment and public advocacy (including health and environmental
justice); mining; energy and chemical industry; scientific
organizations and academia; stormwater, wastewater management, and
drinking water agencies; and the general public.
    At the webinars and meetings, the agencies provided a presentation
and sought input on specific issues, such as potential approaches to
defining ``relatively permanent'' waters and ``continuous surface
connections'' after the plurality opinion in Rapanos. The agencies did
not provide participants with specific rule text or alternatives for
consideration, but requested feedback on other considerations
addressing specific geomorphological features, exclusions and
exemptions, costs and benefits, and aquatic resource data that the
agencies might consider in the technical analyses for a future rule.
Participant comments and letters submitted represent a diverse range of
interests, positions, suggestions, and recommendations provided to the
agencies. Several themes emerged throughout this process, including
support for ongoing State and tribal engagement; clarity and
predictability of the regulation; specific suggestions for rule
language; suggested exclusions and exemptions; regionalization of the
definition; and, procedural concerns.
    As part of this outreach effort, the agencies established a public
recommendations docket (Docket ID No. EPA-HQ-OW-2017-0480) that opened
August 28, 2017, and closed November 28, 2017. The agencies received
over 6,300 recommendations that have been considered as the agencies
developed this proposed rule, which are available on Regulations.gov at
https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0480. Another
source of recommendations as to how the agencies should define ``waters
of the United States'' came from public comments on the agencies'
proposed ``Step One'' rule (82 FR 34899) and the July 2018 supplemental
notice of proposed rulemaking (83 FR 32227). These comments also have
been considered.
    In addition, on March 8 and 9, 2018, the agencies held an in-person
meeting with a group of nine states (Arizona, Arkansas, Florida, Iowa,
Maryland, Minnesota, Oregon, Pennsylvania, and Wyoming), and convened a
subsequent in-person meeting on March 22, 2018, with representatives
from all states at the spring meeting of the Environmental Council of
the States. The agencies also held an in-person Tribal Co-Regulators
Workshop on March 6 and 7, 2018. These meetings were intended to seek
technical input on the proposed rule. A summary of these meetings is
available in the docket (Docket Id. No. EPA-HQ-OW-2018-0149) for this
proposed rule.

E. Overview of Legal Construct for the Proposed Rule

    As the preceding summary of the statutory and regulatory history
makes clear, the central term delineating the federal geographic scope
of authority under the CWA--``waters of the United States''--has been
the subject of debate and litigation for many years. The agencies today
are proposing to establish a regulation that would define ``waters of
the United States'' in simple, understandable, and implementable terms
to reflect the ordinary meaning of the statutory term, as well as to
adhere to Constitutional and statutory limitations, the policies of the
CWA, and case law, and to meet the needs of regulatory agencies and the
regulated community. This subsection summarizes the legal principles
that inform the agencies' proposal, and the following section (Section
III) describes how the agencies are applying those legal principles to
support the proposed ``waters of the United States'' definition.
1. Statutory Framework
    To determine the scope of executive branch authority under the CWA,
the agencies begin with the text of the statute. The objective of the
CWA, as established by Congress, is ``to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.''
33 U.S.C. 1251(a). As discussed in Section II.B above, in order to meet
that objective, Congress declared two national water quality goals and
established several key policies that direct the work of the agencies.
Congress also envisioned a major role for the States in implementing
the CWA, carefully balancing the traditional power of States to
regulate land and water resources within their borders with the need
for national water quality regulation.
    The agencies have developed programs designed to ensure that the
full statute is implemented as Congress intended. See, e.g., Hibbs v.
Winn, 542 U.S. 88, 101 (2004) (``A statute should be construed so that
effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.''). This includes
pursuing the overall ``objective'' of the CWA while implementing the
specific ``policy'' directives from Congress to, among other things,
``recognize, preserve, and protect the primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution'' and ``to
plan the development and use . . . of land and water resources,'' 33
U.S.C. 1251(b). See Webster's II, New Riverside University Dictionary
(1994) (defining ``policy'' as a ``plan or course of action, as of a
government[,] designed to influence and determine decisions and
actions;'' an ``objective'' is ``something worked toward or aspired to:
Goal'').\18\ The

agencies therefore recognize a distinction between the specific word
choices of Congress, including the need to develop regulatory programs
that aim to accomplish the goals of the Act while implementing the
specific policy directives of Congress.\19\ To do so, the agencies must
determine what Congress had in mind when it defined ``navigable
waters'' in 1972 as simply ``the waters of the United States.''
---------------------------------------------------------------------------

    \18\ As Congress drafted the 1972 CWA amendments, the Senate
bill set the ``no-discharge of pollutants into the navigable water
by 1985'' provision as a policy whereas the House bill set it as a
goal. The Act was ultimately passed with the ``no-discharge by
1985'' provision established as a goal. See 33 U.S.C 1251(a)(1). In
House consideration of the Conference Report, Congressman Jones
captured the policy versus goal distinction in Section 101(a)(1) as
follows: ``The objective of this legislation is to restore and
preserve for the future the integrity of our Nation's waters. The
bill sets forth as a national goal the complete elimination of all
discharges into our navigable waters by 1985, but . . . the
conference report states clearly that achieving the 1985 target date
is a goal, not a national policy. As such, it serves as a focal
point for long-range planning, and for research and development in
water pollution control technology . . . . While it is our hope that
we can succeed in eliminating all discharge into our waters by 1985,
without unreasonable impact on the national life, we recognized in
this report that too many imponderables exist, some still beyond our
horizons, to prescribe this goal today as a legal requirement.'' 118
Cong. Rec. H. 33749 (daily ed. October 4, 1972).
    \19\ See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S.
519, 544, (2012) (``Where Congress uses certain language in one part
of a statute and different language in another, it is generally
presumed that Congress acts intentionally''); Russello v. United
States, 464 U.S. 16, 23 (1983) (``[Where] Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion
or exclusion.'').
---------------------------------------------------------------------------

    Congress' authority to regulate navigable waters derives from its
power to regulate the ``channels of interstate commerce'' under the
Commerce Clause. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); see
also United States v. Lopez, 514 U.S. 549, 558-59 (1995) (describing
the ``channels of interstate commerce'' as one of three areas of
congressional authority under the Commerce Clause). The Supreme Court
explained in SWANCC that the term ``navigable'' indicates ``what
Congress had in mind as its authority for 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.'' 531 U.S. 159,
172 (2001). The Court further explained that nothing in the legislative
history of the Act provides any indication that ``Congress intended to
exert anything more than its commerce power over navigation.'' Id. at
168 n.3. The Supreme Court, however, has recognized that Congress
intended ``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 SWANCC, 531 U.S. at 167.
    The classical understanding of the term navigable was first
articulated by the Supreme Court in The Daniel Ball:

    Those rivers must be regarded as public navigable rivers in law
which are navigable in fact. And they are navigable in fact when
they are used, or are susceptible of being used, in their ordinary
condition, as highways of commerce, over which trade and travel are
or may be conducted in the customary modes of trade and travel on
water. And they constitute navigable waters of the United States
within the meaning of the Acts of Congress, in contradistinction
from the navigable waters of the States, when they form in their
ordinary condition by themselves, or by uniting with other waters, a
continued highway over which commerce is or may be carried on with
other States or foreign countries in the customary modes in which
such commerce is conducted by water.

77 U.S. (10 Wall.) 557, 563 (1871). Over the years, this traditional
test has been expanded to include waters that had been used in the past
for interstate commerce, see Economy Light & Power Co. v. United
States, 256 U.S. 113, 123 (1921), and waters that are susceptible for
use with reasonable improvement, see United States v. Appalachian Elec.
Power Co., 311 U.S. 377, 407-10 (1940).
    By the time the 1972 CWA amendments were enacted, the Supreme Court
had also made clear that Congress' authority over the channels of
interstate commerce was not limited to regulation of the channels
themselves, but could extend to non-navigable tributaries as necessary
to protect the channels. See Oklahoma ex rel. Phillips v. Guy F.
Atkinson Co., 313 U.S. 508, 523 (1941) (``Congress may exercise its
control over the non-navigable stretches of a river in order to
preserve or promote commerce on the navigable portions.''). The Supreme
Court had also clarified that Congress could regulate waterways that
formed a part of a channel of interstate commerce, even if they are not
themselves navigable or do not cross state boundaries. See Utah v.
United States, 403 U.S. 9, 11 (1971).
    These developments were discussed during the legislative process
leading up to the passage of the 1972 CWA amendments, and certain
members referred to the scope of the amendments as encompassing
waterways that serve as ``links in the chain'' of interstate commerce
as it flows through various channels of transportation, such as
railroads and highways. See, e.g., 118 Cong. Rec. 33756-57 (1972)
(statement of Rep. Dingell); 118 Cong. Rec. 33699 (Oct. 4, 1972)
(statement of Sen. Muskie).\20\ Other references suggest that
congressional committees at least contemplated applying the ``control
requirements'' of the Act ``to the navigable waters, portions thereof,
and their tributaries.'' S. Rep. No. 92-414, 92nd Cong. 1st Sess. at 77
(1971). And in 1977, when Congress authorized State assumption over the
section 404 dredged or fill material permitting program, Congress
limited the scope of assumable waters by requiring the Corps to retain
permitting authority over Rivers and Harbors Act waters (as identified
by the Daniel Ball test) plus wetlands adjacent to those waters, minus
historic use only waters. See 33 U.S.C. 1344(g)(1).\21\ This suggests
that Congress had in mind a broader scope of waters subject to CWA
jurisdiction than waters traditionally understood as navigable. See
SWANCC, 531 U.S. at 171; Riverside Bayview, 474 U.S. at 138 n.11.
---------------------------------------------------------------------------

    \20\ The agencies recognize that individual member statements
are not a substitute for full congressional intent, but they do help
provide context for issues that were discussed during the
legislative debates. For a detailed discussion of the legislative
history of the 1972 CWA amendments, see, e.g., Albrecht &
Nickelsburg, Could SWANCC Be Right? A New Look at the Legislative
History of the Clean Water Act, 32 ELR 11042 (Sept. 2002).
    \21\ For a detailed discussion of the legislative history
supporting the enactment of CWA section 404(g), see Final Report of
the Assumable Waters Subcommittee (May 2017), App. F., available at
https://www.epa.gov/sites/production/files/2017-05/documents/awsubnaceptpresent5-final.pdf.
---------------------------------------------------------------------------

    Thus, Congress intended to assert federal authority over more than
just waters traditionally understood as navigable, and Congress rooted
that authority in ``its commerce power over navigation.'' SWANCC, 531
U.S. at 168 n.3. However, there must necessarily be a limit to that
authority and to what water is subject to federal jurisdiction. How the
agencies should exercise that authority has been the subject of dispute
for decades, but the Supreme Court on three occasions has analyzed the
issue and provided some instructional guidance.
2. Supreme Court Precedent
a. Adjacent Wetlands
    In Riverside Bayview, the Supreme Court considered the Corps'
assertion of jurisdiction over ``low-lying, marshy land'' immediately
abutting a water traditionally understood as navigable on the grounds
that it was an ``adjacent wetland'' within the meaning of the Corps'
then existing regulations. 474 U.S. at 124. The Court addressed the
question of whether non-navigable wetlands may be regulated as ``waters
of the United States'' on the basis that they are ``adjacent to''
navigable-in-fact waters and ``inseparably bound up with'' them because
of their ``significant effects on water quality and the aquatic
ecosystem.'' Id. at 131-135 & n.9.
    In determining whether to give deference to the Corps' assertion of
jurisdiction over adjacent wetlands, the Court acknowledged the
difficulty in determining where the limits of federal jurisdiction end,
noting that the line is somewhere between open water and dry land:

    In 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 (emphasis added). Within this statement, the Supreme Court
identifies a basic principle for adjacent wetlands: The limits of
jurisdiction lie within the ``continuum'' or ``transition'' ``between
open waters and dry land.'' Observing that Congress intended the CWA
``to regulate at least some waters that would not be deemed
`navigable,' '' the Court therefore held that it is ``a permissible
interpretation of the Act'' to conclude that ``a wetland that actually
abuts on a navigable waterway'' falls within the ``definition of
`waters of the United States.' '' Id. at 133, 135. Thus, a wetland that
abuts a navigable water traditionally understood as navigable is
subject to CWA permitting because it is ``inseparably bound up with the
`waters' of the United States.'' Id. at 134. ``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.'' Id. The Court
also noted that the agencies can establish categories of jurisdiction
for adjacent wetlands. See id. at 135 n.9.
    The Supreme Court in Riverside Bayview declined to decide whether
wetlands that are not adjacent to navigable waters could also be
regulated by the agencies. See id. at 124 n.2 and 131 n.8. In SWANCC a
few years later, however, the Supreme Court analyzed a similar question
but in the context of an abandoned sand and gravel pit located some
distance from a traditional navigable water, with excavation trenches
that ponded--some only seasonally--and served as habitat for migratory
birds. 531 U.S. at 162-64. The Supreme Court rejected the government's
stated rationale for asserting jurisdiction over such ``nonnavigable,
isolated, intrastate waters'' as outside the scope of CWA jurisdiction.
Id. at 171-72. In doing so, the Supreme Court noted that Riverside
Bayview upheld ``jurisdiction over wetlands that actually abutted on a
navigable waterway'' because the wetlands were ``inseparably bound up
with the `waters' of the United States.'' Id. at 167.\22\ As summarized
by the SWANCC majority:
---------------------------------------------------------------------------

    \22\ For additional context, at oral argument during Riverside
Bayview, the government attorney characterized the wetland at issue
as ``in fact an adjacent wetland, adjacent--by adjacent, I mean it
is immediately next to, abuts, adjoins, borders, whatever other
adjective you might want to use, navigable waters of the United
States.'' Official Tr. at 5-6, quoted in Edgar B. Washburn, Current
Status of the 404 Regulatory Programs, ALI Wetlands L. & Reg. (May/
June 2001).

    It was the significant nexus between the wetlands and
``navigable waters'' that informed our reading of the CWA in
Riverside Bayview Homes. Indeed, we did not ``express any opinion''
on the ``question of authority of the Corps to regulate discharges
of fill material into wetlands that are not adjacent to bodies of
open water. . . . In order to rule for [the Corps] here, we would
have to hold that the jurisdiction of the Corps extends to ponds
that are not adjacent to open water. But we conclude that the text
---------------------------------------------------------------------------
of the statute will not allow this.

Id. at 167-68 (internal citations omitted).
    The Court also rejected the argument that the use of the abandoned
ponds by migratory birds fell within the power of Congress to regulate
activities that in the aggregate have a substantial effect on
interstate commerce, or that the CWA regulated the use of the ponds as
a municipal landfill because such use was commercial in nature. Such
arguments, the Court noted, raised ``significant constitutional
questions.'' Id. at 173. ``Where an administrative interpretation of a
statute invokes the outer limits of Congress' power, we expect a clear
indication that Congress intended that result.'' Id. 172-73 (``Congress
does not casually authorize administrative agencies to interpret a
statute to push the limit of congressional authority''). 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; see also Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (``If Congress intends to
alter the `usual constitutional balance between the States and the
Federal Government,' it must make its intention to do so `unmistakably
clear in the language of the statute,' ''); Gregory v. Ashcroft, 501
U.S. 452, 460-61 (1991) (``the plain statement rule . . .
acknowledg[es] that the States retain substantial sovereign powers
under our constitutional scheme, powers with which Congress does not
readily interfere.''). ``Rather than expressing a desire to readjust
the federal-state balance in this manner, Congress chose [in the CWA]
to `recognize, preserve, and protect the primary responsibilities and
rights of States . . . to plan the development and use . . . of land
and water resources . . . .'' Id. at 174 (quoting 33 U.S.C. 1251(b)).
The Court found no clear statement from Congress that it had intended
to permit federal encroachment on traditional State power, and
construed the CWA to avoid the significant constitutional questions
related to the scope of Federal authority authorized therein. Id.
    Historically, the Federal government has interpreted and applied
the SWANCC decision narrowly, focusing on the specific holding in the
case as rejecting federal jurisdiction over the isolated ponds and
mudflats at issue in that case based on their use by migratory birds.
By contrast, members of the regulated community, certain states and
other interested stakeholders have argued that the case stands for a
broader proposition based on key federalism and separation of powers
principles. They argue that the case should be read as restricting
federal jurisdiction over all ``nonnavigable, isolated, intrastate
waters'' and argue for a broader interpretation and application of the
rationale articulated in the decision.\23\ As the agencies revisit the
definition of ``waters of the United States'' in this rulemaking, the
agencies solicit comment on the proper reading of SWANCC. In addition,
the agencies solicit comment on whether to revoke their 2003 guidance
on the subject should the agencies finalize this proposal because
existence of the final rule may mean that guidance on SWANCC may no be
longer needed.
---------------------------------------------------------------------------

    \23\ See, e.g., American Farm Bureau Federation et al. to Hon.
Andrew Wheeler and Hon. R.D. James. August 13, 2018. Docket ID: EPA-
HQ-OW-2017-0203-15275), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15275.
---------------------------------------------------------------------------

    Several years after SWANCC, the Supreme Court considered the
concept of adjacency in consolidated cases arising out of the Sixth
Circuit. See Rapanos v. United States, 547 U.S. 715 (2006). In one
case, the Corps had determined that wetlands on three separate sites
were subject to CWA jurisdiction because they were adjacent to ditches
or man-made drains that eventually connected to traditional navigable
waters several miles away through other ditches, drains, creeks, and/or
rivers. Id. at 719, 729. In another case, the Corps had asserted
jurisdiction over a wetland separated from a man-made drainage ditch by
a four-foot-wide man-made berm. Id. at 730. The ditch emptied into
another ditch, which then connected to a creek, and eventually
connected to Lake St. Clair approximately a mile from the parcel at
issue. The berm was largely or entirely

impermeable, but may have permitted occasional overflow from the
wetland to the ditch. Id. The Court, in a fractured opinion, vacated
and remanded the Sixth Circuit's decision upholding the Corps' asserted
jurisdiction over the four wetlands at issue, with Justice Scalia
writing for the plurality and Justice Kennedy concurring in the
judgment but on alternate grounds. Id. at 757 (plurality), 787
(Kennedy, J., concurring).
    The plurality determined that CWA jurisdiction only extended to
adjacent ``wetlands with a continuous surface connection to bodies that
are `waters of the United States' in their own right, so that there is
no clear demarcation between `waters' and wetlands.'' Id. at 742. The
plurality then concluded that ``establishing . . . wetlands . . .
covered by the Act requires two findings: First that the adjacent
channel contains a `wate[r] of the United States,' (i.e., a relatively
permanent body of water connected to traditional interstate navigable
waters); and second, that the wetland has a continuous surface
connection with that water, making it difficult to determine where the
`water' ends and the `wetland' begins.'' Id. (alteration in original).
    In reaching the adjacency component of the two-part analysis, the
plurality interpreted the Riverside Bayview decision, and subsequent
SWANCC decision characterizing Riverside Bayview, as authorizing
jurisdiction over wetlands that physically abutted traditional
navigable waters. Id. at 740-42. The plurality focused on the
``inherent ambiguity'' described in Riverside Bayview in determining
where on the continuum between open waters and dry land the scope of
federal jurisdiction should end. Id. at 740. It was ``the inherent
difficulties of defining precise bounds to regulable waters,'' id. at
741 n.10, according to the plurality, that prompted the Court in
Riverside Bayview to defer to the Corps' inclusion of adjacent wetlands
as ``waters'' subject to CWA jurisdiction based on proximity. Id. at
741 (``When we characterized the holding of Riverside Bayview in
SWANCC, we referred to the close connection between waters and the
wetlands they gradually blend into: `It was the significant nexus
between the wetlands and `navigable waters' that informed our reading
of the CWA in Riverside Bayview Homes.' ''); see also Riverside
Bayview, 474 U.S. 134, quoting 42 FR 37128 (July 19, 1977) (``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.''). The plurality also noted
that ``SWANCC rejected the notion that the ecological considerations
upon which the Corps relied in Riverside Bayview . . . provided an
independent basis for including entities like `wetlands' (or `ephemeral
streams') within the phrase `the waters of the United States.' SWANCC
found such ecological considerations irrelevant to the question whether
physically isolated waters come within the Corps' jurisdiction.'' Id.
at 741-42 (original emphasis).
    Justice Kennedy disagreed with the plurality's determination that
adjacency requires a ``continuous surface connection'' to covered
waters. Id. at 772. In reading the phrase ``continuous surface
connection'' to mean a continuous ``surface-water connection,'' id. at
776, and interpreting the plurality's standard to include a ``surface-
water-connection requirement,'' id. at 774, Justice Kennedy stated that
``when a surface-water connection is lacking, the plurality forecloses
jurisdiction over wetlands that abut navigable-in-fact waters--even
though such navigable waters were traditionally subject to federal
authority,'' id. at 776, despite the fact that the Riverside Bayview
Court ``deemed it irrelevant whether `the moisture creating the
wetlands . . . find[s] its source in the adjacent bodies of water.''
Id. at 772 (internal citations omitted).
    The plurality did not directly address the precise distinction
raised by Justice Kennedy, but did note in response that the
``Riverside Bayview opinion required'' a ``continuous physical
connection,'' id. at 751 n.13 (emphasis added), and focused on
evaluating adjacency between a ``water'' and a wetland ``in the sense
of possessing a continuous surface connection that creates the
boundary-drawing problem we addressed in Riverside Bayview.'' Id. at
757. The plurality also noted that its standard includes a ``physical-
connection requirement'' between wetlands and covered waters. Id. at
751 n.13. In other words, the plurality appeared to be more focused on
the abutting nature rather than the source of water creating the
wetlands at issue in Riverside Bayview to describe the legal constructs
applicable to adjacent wetlands, see id. at 747; see also Webster's II,
New Riverside University Dictionary (1994) (defining ``abut'' to mean
``to border on'' or ``to touch at one end or side of something''), and
indeed agreed with Justice Kennedy and the Riverside Bayview Court that
``[a]s long as the wetland is `adjacent' to covered waters . . . its
creation vel non by inundation is irrelevant.'' Id. at 751 n.13.\24\
---------------------------------------------------------------------------

    \24\ The agencies' Rapanos Guidance recognizes that the
plurality's ``continuous surface connection'' does not refer to a
continuous surface water connection. See, e.g., Rapanos Guidance at
n.28 (``A continuous surface connection does not require surface
water to be continuously present between the wetland and the
tributary.'')
---------------------------------------------------------------------------

    Because wetlands with a physically remote hydrologic connection do
not raise the same boundary-drawing problem presented by actually
abutting wetlands, the plurality determined that the ``inherent
ambiguity in defining where water ends and abutting (`adjacent')
wetlands begin'' upon which Riverside Bayview rests does not apply to
such features. Id. at 742 (``Wetlands with only an intermittent,
physically remote hydrologic connection to `waters of the United
States' do not implicate the boundary-drawing problem of Riverside
Bayview, and thus lack the necessary connection to covered waters that
we described as a `significant nexus' in SWANCC[.]''). The plurality
supported this position by referring to the Court's treatment of
certain isolated waters in SWANCC as non-jurisdictional. Id. 741-42
(``We held that `nonnavigable, isolated, intrastate waters--which,
unlike the wetlands at issue in Riverside Bayview, did not `actually
abu[t] on a navigable waterway,'--were not included as `waters of the
United States.' ''). The plurality found ``no support for the inclusion
of physically unconnected wetlands as covered `waters' '' based on
Riverside Bayview's treatment of the Corps' definition of adjacent. Id.
at 747; see also id. at 746 (``the Corps' definition of `adjacent' . .
. has been extended beyond reason.'').
    Although ultimately concurring in judgment, Justice Kennedy focused
on the ``significant nexus'' between adjacent wetlands and traditional
navigable waters as the basis for determining whether a wetland is a
water subject to CWA jurisdiction. He quotes the SWANCC decision, which
explains, ``[i]t was the significant nexus between wetlands and
navigable waters . . . that informed our reading of the [Act] in
Riverside Bayview Homes.'' 531 U.S. at 167.
    Justice Kennedy then notes that: ``Because such a nexus [in that
case] was lacking with respect to isolated ponds, the Court held that
the plain text of the statute did not permit the Corps' action.'' 547
U.S. at 767. Justice Kennedy notes that the wetlands at issue in
Riverside Bayview were ``adjacent to [a] navigable-in-fact waterway[
]'' while the ``ponds and

mudflats'' considered in SWANCC ``were isolated in the sense of being
unconnected to other waters covered by the Act.'' Id. at 765-66.
``Taken together, these cases establish that in some instances, as
exemplified by Riverside Bayview, 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. In other instances, as exemplified by SWANCC,
there may be little or no connection. Absent a significant nexus,
jurisdiction under the Act is lacking.'' Id. at 767.
    According to Justice Kennedy, whereas the isolated ponds and
mudflats in SWANCC lacked a ``significant nexus'' to navigable waters,
it is the ``conclusive standard for jurisdiction'' based on ``a
reasonable inference of ecological interconnection'' between adjacent
wetlands and navigable-in-fact waters that allows for their categorical
inclusion as ``waters of the United States.'' Id. at 780 (``[T]he
assertion of jurisdiction for those wetlands [adjacent to navigable-in-
fact waters] is sustainable under the act by showing adjacency
alone.''). Justice Kennedy surmised that it may be that the same
rationale ``without any inquiry beyond adjacency . . . could apply
equally to wetlands adjacent to certain major tributaries,'' noting
that the Corps could establish by regulation categories of tributaries
based on volume of flow, proximity to navigable waters, or other
factors that ``are significant enough that wetlands adjacent to them
are likely, in the majority of cases, to perform important functions
for an aquatic system incorporating navigable waters.'' Id. at 780-81.
However, ``[t]he Corps' existing standard for tributaries'' provided
Justice Kennedy ``no such assurance'' to infer the categorical
existence of a requisite nexus between waters traditionally understood
as navigable and wetlands adjacent to nonnavigable tributaries. Id. at
781. That is because

the breadth of the [tributary] standard--which seems to leave wide
room for regulation of drains, ditches, and streams remote from any
navigable-in-fact water and carrying only minor water volumes
towards it--precludes its adoption as the determinative measure of
whether adjacent wetlands are likely to play an important role in
the integrity of an aquatic system comprising navigable waters as
traditionally understood. Indeed, in many cases, wetlands adjacent
to tributaries covered by this standard might appear little more
related to navigable-in-fact waters than were the isolated ponds
held to fall beyond the Act's scope in SWANCC.

Id. at 781-82.
    To avoid this outcome, Justice Kennedy stated that, absent
development of a more specific regulation and categorical inclusion of
wetlands adjacent to ``certain major'' or even ``minor'' tributaries as
was established in Riverside Bayview, id. at 780-81, the Corps ``must
establish a significant nexus on a case-by-case basis when it seeks to
regulate wetlands based on adjacency to nonnavigable tributaries. Given
the potential overbreadth of the Corps' regulations, this showing is
necessary to avoid unreasonable applications of the statute.'' Id. at
782. Justice Kennedy stated that adjacent ``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 780. ``Where an adequate nexus is
established for a particular wetland, it may be permissible, as a
matter of administrative convenience or necessity, to presume covered
status for other comparable wetlands in the region.'' Id. at 782.
    In establishing this significant nexus test, Justice Kennedy
relied, in part, on the overall objective of the CWA to ``restore and
maintain the chemical, physical and biological integrity of the
Nation's waters.'' Id. at 779 (quoting 33 U.S.C. 1251(a)). However,
Justice Kennedy also acknowledged that ``environmental concerns provide
no reason to disregard limits in the statutory text.'' Id. at 778. With
respect to wetlands adjacent to nonnavigable tributaries, Justice
Kennedy therefore determined that ``mere adjacency . . . is
insufficient. A more specific inquiry, based on the significant-nexus
standard, is . . . necessary.'' Id. at 786. By not requiring adjacent
wetlands to possess a significant nexus with navigable waters, Justice
Kennedy noted that under the Corps' interpretation, federal regulation
would be permitted ``whenever wetlands lie alongside a ditch or drain,
however remote or insubstantial, that eventually may flow into
traditional navigable waters. The deference owed the Corps'
interpretation of the statute does not extend so far.'' Id at 778-79.
    Since the Rapanos decision, the Federal government has adopted a
broad interpretation of Justice Kennedy's concurring opinion, arguing
that his ``significant nexus'' test provides an independent basis for
establishing jurisdiction over certain waters of the United States. And
rather than limiting the application of Justice Kennedy's opinion to
the specific facts and wetlands at issue in that case, the agencies
have applied the rationale more broadly to include, for example, the
application of the significant nexus test to determining jurisdiction
over tributaries, not just wetlands. Many courts have agreed with this
position and rely exclusively on Justice Kennedy's significant nexus
test, or have held that jurisdiction can be established under either
the plurality or concurring opinions. The agencies note that their
historically broad interpretation and application of Justice Kennedy's
opinion stands in contrast to their more narrow reading and application
of the majority opinion in SWANCC, where the agencies have historically
limited the decision's application to isolated ponds and mudflats used
by migratory birds. The agencies therefore invite comment on their
reliance on Justice Kennedy's opinion, particularly as compared to
their treatment of the SWANCC decision. The agencies also solicit
comment on whether they should revoke their 2008 Rapanos Guidance
should the agencies finalize this proposal because existence of the
final rule may mean that guidance on Rapanos may no longer be needed.
    In summary, although the standards that the plurality and Justice
Kennedy established are not identical, and each standard excludes some
waters that the other standard does not, the standards contain
substantial similarities. The plurality and Justice Kennedy agree in
principle that the determination must be made using a basic two-step
approach that considers: (1) The connection of the wetland to the
tributary; and (2) the status of the tributary with respect to
downstream traditional navigable waters. The plurality and Justice
Kennedy also agree that the connection between the wetland and the
tributary must be close. The plurality refers to that connection as a
``continuous surface connection'' or ``continuous physical
connection,'' as demonstrated in Riverside Bayview. Id. at 742, 751
n.13. Justice Kennedy recognizes 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.'' Id. at 767. The second part of their
common analytical framework is addressed in the next section.
b. Tributaries
    The definition of tributary was not addressed in either Riverside
Bayview or

SWANCC. And while the focus of Rapanos was on whether the Corps could
regulate wetlands far removed from navigable-in-fact waters, the
plurality and concurring opinions do provide some guidance as to the
potential regulatory status of tributaries to navigable-in-fact waters.
    The plurality and Justice Kennedy both recognize the jurisdictional
scope of the CWA is not restricted to traditional navigable waters.
Rapanos, 547 U.S. at 731 (Scalia, J., plurality) (``the Act's term
`navigable waters' includes something more than traditional navigable
waters''); id. at 767 (Kennedy, J., concurring) (``Congress intended to
regulate at least some waters that are not navigable in the traditional
sense.''). Both also agree that federal authority under the Act is not
without limit. See id. at 731-32 (plurality) (``the waters of the
United States . . . cannot bear the expansive meaning that the Corps
would give it''); id. at 778-79 (Kennedy, J., concurring) (``The
deference owed to the Corps' interpretation of the statute does not
extend'' to ``wetlands'' which ``lie alongside a ditch or drain,
however remote or insubstantial, that eventually may flow into
traditional navigable waters.'').
    With respect to tributaries specifically, both the plurality and
Justice Kennedy focus in part on a tributary's contribution of flow to
and connection with traditional navigable waters. The plurality would
include as ``waters of the United States'' ``only relatively permanent,
standing or flowing bodies of water'' and would define such ``waters''
as including streams, rivers, oceans, lakes and other bodies of waters
that form geographical features, noting that all such ``terms connote
continuously present, fixed bodies of water . . . .'' Id. at 732-33,
739. The plurality would also require relatively permanent waters to be
connected to traditional navigable waters in order to be
jurisdictional. See id. 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'') (emphasis added). The
plurality would exclude ephemeral flows and related features, stating
``[n]one of these terms encompasses transitory puddles or ephemeral
flows of water.'' Id. at 733; see also id. at 734 (``In applying the
definition to `ephemeral streams,' . . . the Corps has stretched the
term `waters of the United States' beyond parody. The plain language of
the statute simply does not authorize this `Land Is Waters' approach to
federal jurisdiction.''). Justice Kennedy would likely exclude some
streams considered jurisdictional under the plurality's test, but he
may include some that would be excluded by the plurality. See id. at
769 (noting that under the plurality's test, ``[t]he merest trickle, if
continuous, would count as a `water' subject to federal regulation,
while torrents thundering at irregular intervals through otherwise dry
channels would not'').
    Both the plurality and Justice Kennedy would include some seasonal
or intermittent streams as ``waters of the United States.'' Id. at 733
& n.5, 769. The plurality noted, for example, 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). Neither the plurality nor
Justice Kennedy, however, defined with precision where to draw the
line. The plurality provides that ``navigable waters'' must have ``at a
bare minimum, the ordinary presence of water,'' id. at 734, and Justice
Kennedy notes that the Corps can identify by regulation categories of
tributaries based on volume of flow, proximity to navigable waters, or
other factors that ``are significant enough that wetlands adjacent to
them are likely, in the majority of cases, to perform important
functions for an aquatic system incorporating navigable waters.'' Id.
at 780-81.
    Both the plurality and Justice Kennedy also agreed that the Corps'
existing treatment of tributaries raised significant jurisdictional
concerns. For example, the plurality was concerned about the Corps'
broad interpretation of tributaries themselves. See id. at 738
(plurality) (``Even if the term `the waters of the United States' were
ambiguous as applied to channels that sometimes host ephemeral flows of
water (which it is not), we would expect a clearer statement from
Congress to authorize an agency theory of jurisdiction that presses the
envelope of constitutional validity.''). And Justice Kennedy objected
to the categorical assertion of jurisdiction over wetlands adjacent to
the Corps' existing standard for tributaries ``which seems to leave
wide room for regulation of drains, ditches, and streams remote from
any navigable-in-fact water and carrying only minor water volumes
towards it'' Id. at 781 (Kennedy, J. concurring), see also id. at 781-
82 (``[I]n many cases wetlands adjacent to tributaries covered by this
standard might appear little more related to navigable-in-fact waters
than were the isolated ponds held to fall beyond the Act's scope in
SWANCC.''). Thus, while the plurality and Justice Kennedy viewed the
question of federal CWA jurisdiction differently, there are sufficient
commonalities between these opinions to help instruct the agencies on
where to draw the line between Federal and State waters.
3. Principles and Considerations
    As discussed in the previous section, a few important principles
emerge that can serve as the basis for the agencies' proposed
regulatory definitions. As a threshold matter, the power conferred on
the agencies under the CWA to regulate the ``waters of the United
States'' is grounded in Congress' commerce power over navigation. The
agencies can choose to regulate beyond waters more traditionally
understood as navigable, including some tributaries to those
traditional navigable waters, but must provide a reasonable basis
grounded in the language and structure of the Act for determining the
extent of jurisdiction. The agencies can also choose to regulate
wetlands adjacent to the traditional navigable waters and some
tributaries, if the wetlands are closely connected to the tributaries,
such as in the transitional zone between open waters and dry land. The
Supreme Court's opinion in SWANCC, however, calls into question the
agencies' authority to regulate nonnavigable, isolated, intrastate
waters that lack a sufficient connection to traditional navigable
waters, and suggests that the agencies should avoid regulatory
interpretations of the CWA that raise constitutional questions
regarding the scope of their statutory authority. Finally, the agencies
can regulate certain waters by category, which could improve regulatory
predictability and certainty and ease administrative burden while still
effectuating the purposes of the Act.
    In developing a clear and predictable regulatory framework to
support this proposed rule, the agencies also recognize and respect the
primary responsibilities and rights of States and Tribes to regulate
their land and water resources. See 33 U.S.C. 1251(b), 1370. The oft-
quoted objective of the CWA to ``restore and maintain the chemical,
physical, and biological integrity of the Nation's waters,'' id. at
1251(a), must be implemented in a manner consistent with Congress'
policy directives to the agencies. The Supreme Court long ago
recognized the distinction between federal waters traditionally
understood as navigable and waters ``subject to the control of the
States.'' The Daniel Ball, 77 U.S. (10 Wall.) 557, 564-65 (1870).

Over a century later, the Supreme Court in SWANCC reaffirmed the
State's ``traditional and primary power over land and water use.'' 531
U.S. at 174; accord Rapanos, 547 U.S. at 738 (Scalia, J., plurality
opinion).
    Ensuring that States retain authority over their land and water
resources pursuant to section 101(b) and section 510 helps carry out
the overall objective of the CWA and ensures that the agencies are
giving full effect and consideration to the entire structure and
function of the Act. See, e.g., id. at 755-56 (Scalia, J., plurality
opinion) (``[C]lean water is not the only purpose of the statute. So is
the preservation of primary state responsibility for ordinary land-use
decisions. 33 U.S.C. 1251(b).'') (original emphasis). That includes the
dozens of non-regulatory grant, research, nonpoint source, groundwater,
and watershed planning programs that were intended by Congress to
assist the States in controlling pollution in the nation's waters, not
just its navigable waters. These non-regulatory sections of the CWA
reveal Congress' intent to restore and maintain the integrity of the
nation's waters using federal assistance to support State and local
partnerships to control pollution of in the nation's waters in addition
to a federal regulatory prohibition on the discharge of pollutants into
its navigable waters. Controlling all waters using the Act's federal
regulatory mechanisms would significantly reduce the need for the more
holistic planning provisions of the Act and the state partnerships they
entail. Therefore, by recognizing the distinctions between the nation's
waters and its navigable waters and between the overall objective and
goals of the CWA and the specific policy directives from Congress, the
agencies can fully implement the entire structure of the Act while
respecting the specific word choices of Congress. See, e.g., Nat'l
Fed'n of Indep. Bus. v. Sebelius, 567 U.S. at 544.
    Further, the agencies are cognizant that the ``Clean Water Act
imposes substantial criminal and civil penalties for discharging any
pollutant into waters covered by the Act without a permit . . . .''
U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1812
(2016); see also Sackett v. EPA, 132 S. Ct. 1367, 1374-75 (2012)
(Alito, J., concurring) (``[T]he combination of the uncertain reach of
the Clean Water Act and the draconian penalties imposed for the sort of
violations alleged in this case still leaves most property owners with
little practical alternative but to dance to the EPA's tune.''). As the
Chief Justice observed in Hawkes, ``[i]t is often difficult to
determine whether a particular piece of property contains waters of the
United States, but there are important consequences if it does.'' Id.;
see also id. at 1816-17 (Kennedy, J., concurring) (``the reach and
systemic consequences of the Clean Water Act remain a cause for
concern'' and ``continues to raise troubling questions regarding the
Government's power to cast doubt on the full use and enjoyment of
private property throughout the Nation''). Given the significant civil
and criminal penalties associated with the CWA, the agencies seek to
promote regulatory certainty while providing fair and predictable
notice of the limits of federal jurisdiction. See, e.g., Sessions v.
Dimaya, No. 15-1498, 2018 U.S. LEXIS 2497, at *39, 42-43 (Apr. 17,
2018) (Gorsuch, J., concurring in part and concurring in judgment)
(characterizing fair notice as possibly the most fundamental of the
protections provided by the Constitution's guarantee of due process,
and stating that vague laws are an exercise of ``arbitrary power . . .
leaving the people in the dark about what the law demands and allowing
prosecutors and courts to make it up'').
    Under this proposed rule, the agencies would not view the
definition of ``waters of the United States'' as conclusively
determining which of the nation's waters warrant environmental
protection; rather, the agencies interpret the definition as drawing
the boundary between those waters subject to federal requirements under
the CWA and those waters that States and Tribes are free to manage
under their independent authorities. The agencies are proposing this
line-drawing based primarily on their interpretation of the language,
structure, and legislative history of the statute and the policy
choices of the executive branch agencies.
    The agencies interpret their authority to include promulgation of a
new regulatory definition of ``waters of the United States,''
consistent with the guidance in Executive Order 13778, so long as the
new definition is authorized under the law and based on a reasoned
explanation. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009) (``Fox''). A revised rulemaking based on a desired change in
policy is well within an agency's discretion and ``[a] change in
administration brought about by the people casting their votes is a
perfectly reasonable basis for an executive agency's reappraisal'' of
its regulations and programs. 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
(Rehnquist, J., concurring in part and dissenting in part)). In
developing this proposed rule, the agencies have re-evaluated their
legal authority and those policies that they deem most important in
shaping the jurisdiction of the CWA: Prioritizing the text of the
statute, adherence to constitutional limitations, including the
autonomy of States, and providing clarity for the regulated community.
    The agencies consider these proposed priorities to be reasonable,
especially in light of the long history of controversy and confusion
over this definition. In concurring with the Rapanos plurality
decision, Chief Justice Roberts stated that ``[g]iven the broad,
somewhat ambiguous, but clearly limiting terms Congress employed in the
Clean Water Act, the [agencies] would have enjoyed plenty of room to
operate in developing some notion of an outer bound to the reach of
their authority'' under the CWA, and that the agencies' interpretations
under the Act are ``afforded generous leeway by the courts.'' Rapanos,
547 U.S. at 758 (Roberts, C.J., concurring) (emphasis in original)
(``Rather than refining its view of its authority in light of our
decisions in SWANCC, . . . the Corps chose to adhere to its essentially
boundless view of the scope of its power. The upshot today is another
defeat for the agency.''). In this proposed rule, as described in
detail in Section III below, the agencies are proposing outer bounds
for their authority under the Act that they consider objective and
reasonable, and that are consistent with its text, structure,
legislative history and applicable Supreme Court precedent. The
agencies solicit comment on all aspects of the proposed definition and
whether it would strike the proper balance between the regulatory