adequate notice and that they were not a logical outgrowth of the
proposal. The agencies recognize that the U.S. District Court for the
Southern District of Texas and the U.S. District Court for the Southern
District of Georgia held that the distance-based limitations in the
final rule were not a logical outgrowth of the proposal in violation of
the APA's public notice and comment requirements. See Texas v. EPA, No.
15-cv-162, 2019 WL 2272464 (S.D. Tex. May 28, 2019); Georgia v.
Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *23 (S.D. Ga. Aug. 21,
2019). The Southern District of Texas found this error ``significant''
because the specific distance-based limitations ``alter[ed] the
jurisdictional scope of the Act.'' Texas, 2019 WL 2272464, at *5. The
agencies recognize that the Federal government, in prior briefing in
Texas, Georgia, and other cases, defended the procedural steps the
agencies took to develop and support the 2015 Rule. Having considered
all of the public comments and relevant litigation positions, and the
decisions of the Southern District of Texas and the Southern District
of Georgia on related arguments, the agencies now agree with the
reasoning of the Southern District of Texas and the Southern District
of Georgia and conclude that the proposal for the 2015 Rule did not
provide adequate notice of the specific distance-based limitations that
appeared for the first time in the final rule. The agencies should have
sought public comment on the distance-based limitations before
including them in the final rule.
b. The Distance-Based Limitations Were Not Supported by an Adequate
Record
    The agencies are aware that litigants challenging the 2015 Rule
alleged additional APA deficiencies, such as the lack of record support
for the distance-based limitations inserted into the final rule without
adequate notice. The agencies also recognize that the U.S. District
Court for the Southern District of Georgia held that several provisions
in the 2015 Rule, including certain distance-based limitations, were
arbitrary and capricious in violation of the APA. Georgia v. Wheeler,
No. 2:15-cv-079, 2019 WL 3949922, at *29 (S.D. Ga. Aug. 21, 2019).
Several commenters on the proposed repeal of the 2015 Rule raised
similar concerns, arguing that the 2015 Rule was arbitrary and
capricious because of the lack of record support for those limitations.
Having considered the public comments and relevant litigation
positions, the decisions of the Southern District of Texas and Southern
District of Georgia, and other decisions staying or enjoining the 2015
Rule, the agencies now conclude that the record for the 2015 Rule did
not contain sufficient record support for the distance-based
limitations that appeared for the first time in the final rule.
i. The 100-Year Floodplain Limitation in (a)(6) and (a)(8) Lacked
Adequate Record Support
    In the record for the 2015 Rule, the agencies included information
supporting the conclusion that certain waters within a floodplain or
riparian area have a connection to downstream waters. For example, the
agencies stated that ``[t]he body of literature documenting
connectivity and downstream effects was most abundant for perennial and
intermittent streams, and for riparian/floodplain wetlands.'' 2015 TSD
at 104; see also id. at 350. The agencies concluded that ``science is
clear that wetlands and open waters in riparian areas individually and
cumulatively can have a significant effect on the chemical, physical,
or biological integrity of downstream waters.'' 80 FR 37089. The
agencies attempted to substantiate the addition of the 100-year
floodplain interval on these general scientific conclusions and their
desire to ``add the clarity and predictability that some commenters
requested'' to the definition of ``neighboring.'' 2015 TSD at 300.
However, upon review of the record supporting the distance limitations
in the 2015 Rule, the agencies now conclude that the record did not
include adequate support for the specific floodplain interval--the 100-
year floodplain--included in the final rule, even though the agencies
understood that ``identifying the 100-year floodplain is an important
aspect of establishing jurisdiction under the rule.'' 80 FR 37081. The
agencies' conclusion is consistent with the finding of the U.S.
District Court for the Southern District of Georgia that ``the [2015]
Rule's use of the 100-year floodplain based on FEMA flood maps to
define adjacent and case-by-case waters is arbitrary and capricious.''
Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *30 (S.D. Ga.
Aug. 21, 2019).
    In the proposed rule, the agencies referenced the 100-year
floodplain in just one passage, stating:

    It should be noted that ``floodplain'' as defined in today's
proposed rule does not necessarily equate to the 100-year floodplain
as defined by the Federal Emergency Management Agency (FEMA).
However, the FEMA defined floodplain may often coincide with the
current definition proposed in this rule. Flood insurance rate maps
are based on the probability of a flood event occurring (e.g., 100-
year floods have a 1% probability of occurring in a given year or
500 year-floods have a 0.2% probability of occurring in a particular
year). Flood insurance rate maps are not based on an ecological
definition of the term ``floodplain,'' and therefore may not be
appropriate for identifying adjacent wetlands and waters for the
purposes of CWA jurisdiction.

79 FR 22236 (emphasis added). Notwithstanding these important
limitations identified in the proposal, in the final rule, the agencies
relied on the availability of FEMA flood insurance rate maps depicting
100-year floodplains to substantiate the use of that interval. 80 FR
37083 (``[T]he agencies chose the 100-year floodplain in part because
FEMA and NRCS together have generally mapped large portions of the
United States, and these maps are publicly available, well-known and
well-understood.''). While the agencies acknowledged the limited
practical import of these maps for setting a floodplain interval in the
rule, given that ``much of the United States has not been mapped by
FEMA and, in some cases, a particular map may be out of date and may
not accurately represent existing circumstances on the ground,'' they
did not grapple with these limitations. 80 FR 37081. In explaining its
finding that the agencies' use of the 100-year floodplain to define
``adjacent'' and ``case-by-case'' jurisdictional waters in the 2015
Rule was arbitrary and capricious, the U.S. District Court for the
Southern District of Georgia similarly noted the deficiencies in the
FEMA floodplain maps, stating that ``the

Agencies' justification for the 100-year floodplain interval was based
on an incomplete and in some cases inaccurate flood-map scheme.''
Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *30 (S.D. Ga.
Aug. 21, 2019).
    Moreover, the agencies did not adequately explain or provide
adequate record support for why the agencies believed that the 100-year
floodplain interval was more appropriate than another floodplain
interval--for instance, the 10-year floodplain, 50-year floodplain, or
500-year floodplain--in the definition of ``neighboring'' for (a)(6)
and in (a)(8). In the proposal, the agencies indicated that they were
considering a more-frequent flood recurrence interval than the 100-year
flood (and, in turn, a typically smaller floodplain area than the 100-
year floodplain) to implement the proposed ``floodplain'' definition.
79 FR 22209 (``When determining whether a water is located in a
floodplain, the agencies will use best professional judgment to
determine which flood interval to use (for example, 10 to 20 year flood
interval zone).'' (emphasis added)). Upon review of the record, the
agencies now acknowledge that they did not materially explain or
substantiate selection of the 100-year flood interval over, for
example, the 10- to 20-year flood interval, or any other interval.
Additionally, although the agencies' technical support document for the
2015 Rule alluded to ``the scientific literature, the agencies'
technical expertise and experience'' as supporting the inclusion of the
100-year floodplain, 2015 TSD at 301, the agencies provided no further
explanation for why the 100-year floodplain and not another floodplain
interval was appropriate. Nor did the agencies adequately describe why
such an interval was appropriate for setting the threshold for per se
jurisdictional coverage as a ``navigable water,'' rather than a case-
specific coverage. Using a 100-year floodplain interval instead of a
10-year or 50-year interval would typically subject the waters and
wetlands within a larger landmass to per se regulation. The Southern
District of Georgia similarly found that ``[w]hile the [2015] Rule
provides reasons for using floodplains generally to define
jurisdiction, it does not provide any other basis for choosing a 100-
year interval as opposed to a different interval (such as a 50-year or
200-year floodplain).'' Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL
3949922, at *30 (S.D. Ga. Aug. 21, 2019).
    The agencies' conclusion today echoes court decisions that have
reviewed the 2015 Rule on the merits and at a preliminary stage. See,
e.g., Id. at *30; In re EPA, 803 F.3d at 807 (``Even assuming, for
present purposes, as the parties do, that Justice Kennedy's opinion in
Rapanos represents the best instruction on the permissible parameters
of `waters of the United States' as used in the Clean Water Act, it is
far from clear that the new Rule's distance limitations are harmonious
with the instruction.'').
ii. The 1,500 Foot Distance Limitation From the Ordinary High Water
Mark of an (a)(1)-(a)(5) Water in (a)(6) Lacked Adequate Record Support
    In the 2015 Rule, the agencies concluded as a general matter that
physical proximity between two waters was a critical--if not the most
critical--factor to determine whether those two waters had a nexus.
``The science is clear that a water's proximity to downstream waters
influences its impact on those waters. The Science Report states,
`[s]patial proximity is one important determinant of the magnitude,
frequency and duration of connections between wetlands and streams that
will ultimately influence the fluxes of water, materials and biota
between wetlands and downstream waters.' Generally, waters that are
closer to a jurisdictional water are more likely to be connected to
that water than waters that are farther away.'' 80 FR 37089 (quoting
the Connectivity Report at ES-11). These conclusions formed the
principal record basis for the inclusion of a distance limitation in
the definition of ``neighboring.'' The agencies stated 1,500 feet from
the ordinary high water mark of an (a)(1) through (a)(5) water and
within the 100-year floodplain of such waters would be categorically
jurisdictional ``to protect vitally important waters while at the same
time providing a practical and implementable rule.'' 2015 TSD at 351.
However, the agencies now acknowledge that they did not provide
sufficient record support or an adequate explanation for selecting
1,500 feet, as compared to another distance, from the ordinary high
water mark of an (a)(1) through (a)(5) water, 1,500 feet from the high
tide line of a category (a)(1) through (a)(3) ``jurisdictional by
rule'' water, or 1,500 feet from the ordinary high water mark of the
Great Lakes as the boundary within which all wetlands and waters would
be jurisdictional categorically. Indeed, the agencies did not explain
why the 1,500-foot distance, as compared to 500 feet, 1,000 feet, or
another distance, was the appropriate demarcation between categorically
jurisdictional waters and those waters that could be jurisdictional on
a case-specific basis under the 2015 Rule. The agencies thereby
subjected waters and wetlands within a larger landmass to per se
regulation compared to other smaller distances that may have been
selected. For these reasons, the agencies conclude that this distance
limitation in the 2015 Rule lacked adequate record support. The
agencies' conclusion is consistent with the U.S. District Court for the
Southern District of Georgia's holding that ``the 1,500-foot limit for
adjacent waters is arbitrary and capricious because the Agencies did
not give reasons beyond mere conclusory statements for why this limit
was selected'' and that ``the Agencies failed to give specific reasons
grounded in science and the significant-nexus analysis under the CWA
for why this [1,500-foot] limit was chosen as opposed to any other
distance.'' Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at
*30 (S.D. Ga. Aug. 21, 2019). In concluding that the 1,500-foot
distance limitation in the 2015 Rule lacked adequate record support,
the agencies are not modifying their inherent rulemaking authority to
draw a line between jurisdictional and non-jurisdictional waters on the
``continuum'' ``between open waters and dry land.'' Riverside Bayview,
474 U.S. at 132. Rather, the agencies are simply acknowledging that
their prior rulemaking did not include sufficient record support and
justification to adequately satisfy the procedural mandates of the APA.
iii. The 4,000-Foot Distance Limitation From the High Tide Line or
Ordinary High Water Mark of Any (a)(1) Through (a)(5) Water in (a)(8)
Lacked Adequate Record Support
    For waters that were not jurisdictional categorically under the
2015 Rule, the rule required a case-specific significant nexus analysis
if those waters are within 4,000 feet of the high tide line or ordinary
high water mark of any (a)(1) through (a)(5) water. The agencies
supported their selection of the 4,000-foot outer boundary with general
statements about the science, the goals of the Act, and administrative
convenience. See 2015 TSD at 358 (``[D]ue to the many functions that
waters located within 4,000 feet of the high tide line of a traditional
navigable water or the territorial seas provide and their often close
connections to the surrounding navigable in fact waters, science
supports the agencies' determination that such waters are rightfully
evaluated on a case-specific basis for significant nexus to a
traditional navigable water or the

territorial seas.''); see also id. at 357 (stating that the agencies
concluded that this limitation would ``sufficiently capture for
analysis those waters that are important to protect to achieve the
goals of the Clean Water Act''). The agencies also stated that, in
their experience, ``the vast majority of waters where a significant
nexus has been found, and which are therefore important to protect to
achieve the goals of the Act, are located within the 4,000 foot
boundary.'' 80 FR 37089; see also 2015 EA/FONSI at 22-23 (``[T]he vast
majority of wetlands with a significant nexus are located within the
4,000 foot boundary.''). Upon reconsideration of this part of the 2015
Rule, the agencies now conclude that they did not provide an adequate
record basis or adequate explanation for the selection of the 4,000-
foot distance limitation in (a)(8). Indeed, the agencies provided no
explanation for why 4,000 feet--and not another distance closer to or
farther from a category (a)(1) through (a)(5) water--is the appropriate
limitation for case-specific jurisdictional determinations. The
agencies also provided insufficient explanation for how they determined
that the vast majority of waters where a significant nexus has been
found are located within the 4,000 foot boundary, citing in subsequent
litigation only to general statements about the agencies' experience in
conducting jurisdictional determinations and an analysis of 199
jurisdictional determinations \51\ that was not made available for
public review and comment.\52\ The agencies now conclude that this
distance limitation was procedurally deficient and based on an
insufficient record.
---------------------------------------------------------------------------

    \51\ U.S. EPA. Supporting Documentation: Analysis of
Jurisdictional Determinations for Economic Analysis and Rule (Docket
ID: EPA-HQ-OW-2011-0880-20877), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20877.
    \52\ In the SNPRM, the agencies described and sought comment on
the 199 JD analysis and six case studies drawn from it that were
analyzed as part of the 2015 rulemaking. 83 FR 32244-45. The 199 JD
analysis concluded that, of the JDs analyzed, ``four sites included
wetlands or waters that are located further than 4,000 feet from a
jurisdictional tributary,'' two of which were jurisdictional under
the pre-existing regulatory regime. The agencies also concluded that
all four of these sites would ``not be jurisdictional'' under the
2015 Rule. Upon further review of the 199 JD analysis and the public
comments received, the agencies now conclude that any reliance on
the 199 JD analysis to support setting a distance limit of 4,000
feet was misplaced and provided an insufficient record basis for
this limitation. First, the analysis considered only one distance
limit: 4,000 feet. It made no attempt to determine the change in
jurisdiction that would result if a different numeric limitation had
been selected or to explain why 4,000 feet was more appropriate than
another numeric limitation (e.g., 3,000 feet) for capturing the
majority of waters likely to possess a significant nexus. Second,
the analysis did not involve performing a case-specific review of
jurisdiction under the 2015 Rule, but rather entailed applying the
2015 Rule's parameters to facts contained in existing jurisdictional
determinations conducted under the pre-existing regulatory regime.
The agencies now conclude that this approach limits the utility of
this analysis for determining appropriate distance limits under the
criteria of the 2015 Rule. Third, the agencies considered only the
change in jurisdiction of waters beyond 4,000 feet, even though the
analysis contained certain examples where the agencies concluded
that the 2015 Rule likely modified jurisdiction over waters within
4,000 feet that were deemed not jurisdictional under the pre-
existing regulatory regime. See AR-20877 at 2 (2004-001914); id.
(LRC-2015-31); id. (LRE-1998-1170040-A14); id. at 3 (MVM-2014-460);
id. at 4 (NAE-2012-1813); id. (NAO-2014-2269). The agencies did not
explain the importance, if any, of the estimated increase in
jurisdiction among these six JDs as part of using this analysis.
Lastly, while the agencies explained how this analysis was
conducted, the agencies did not fully explain how they used or
relied upon this analysis. To be sure, in its brief filed in the
U.S. Court of Appeals for the Sixth Circuit, the United States
stated that ``Based on [the 199 JD] analysis and their general
experience implementing the Act since Rapanos, the Agencies
concluded that setting a distance limit of 4,000 feet would
encompass those waters that are most likely to have a significant
nexus while also providing the certainty sought by the public.'' Br.
at 123. But the agencies did not provide an adequate explanation as
to how they used or relied upon this analysis in the 2015 Rule's
preamble, technical support document, response to comments document,
or economic analysis.
---------------------------------------------------------------------------

iv. The Agencies Conclude the Lack of Adequate Record Support for the
Distance Limitations Warrants Repeal
    The agencies conclude that the procedural errors and lack of
adequate record support associated with the distance-based limitations
described in this section are a sufficient basis, standing alone, to
warrant repeal of the 2015 Rule. The distance limitations were a
central aspect of the 2015 Rule, and necessary for the rule to
accomplish its goal of increasing consistency and predictability. The
agencies have determined that the notice and record deficiencies
associated with the distance limitations are fundamental flaws in
central provisions of the 2015 Rule, and thus the agencies have
concluded that it would not be appropriate to remediate these errors
merely by removing the unsupported limitations, as this approach would
not maintain consistency with the agencies' stated purposes and
findings in the 2015 Rule. The agencies are considering the possible
use of distance limitations in the separate rulemaking to establish a
proposed revised definition of ``waters of the United States.'' See,
e.g., 84 FR 4189 (requesting comment on potential interpretations of
adjacency, such as including a distance limit to establish the
boundaries between Federal and State waters). Pending any final action
on the separate rulemaking, the agencies conclude that this final rule
will provide greater certainty by reinstating nationwide a longstanding
regulatory framework that is familiar to and well-understood by the
agencies, States, Tribes, local governments, regulated entities, and
the public. For these reasons, and in response to the remand of the
2015 Rule from the U.S. District Court for the Southern District of
Texas, including its concern that the procedural errors altered the
scope of CWA jurisdiction, and the remand of the U.S. District Court
for the Southern District of Georgia, including its concerns with the
substantive and procedural adequacy of the distance-based limitations
in the final rule, the agencies repeal the 2015 Rule.
    In summary, the deficiencies of the 2015 Rule stem in part from the
agencies' application of an overly broad significant nexus standard and
their inadequate consideration of section 101(b) of the Act in
developing the 2015 Rule. In particular, the agencies find that the
broad interpretation of Justice Kennedy's significant nexus standard
adopted in the 2015 Rule was a foundational error that propagated
throughout the 2015 Rule, misinforming the rule's definitions of
``significant nexus,'' ``similarly situated,'' ``in the region,''
``tributary,'' ``adjacent,'' and ``neighboring.'' As a result, these
flaws pervaded the 2015 Rule's entire structure and scope and resulted
in a definition of ``waters of the United States'' that covered waters
outside the limits on federal CWA jurisdiction intended by Congress and
reflected in Supreme Court cases, in addition to raising significant
constitutional questions. The agencies have determined that the
substantial problems that are discussed throughout Section III, when
considered collectively in the context of the 2015 Rule, were both
fundamental and systemic and cannot be addressed individually. Instead,
the agencies conclude that the 2015 Rule must be repealed in its
entirety.

IV. Basis for Restoring the Pre-Existing Regulations

    In the NPRM and SNPRM, the agencies proposed to recodify the pre-
2015 regulations to provide regulatory certainty for the agencies,
their co-regulators, regulated entities, and the public. See, e.g., 82
FR 34899; 83 FR 32237. The agencies explained that this rulemaking was
``intended to ensure certainty as to the scope of CWA jurisdiction on
an interim basis as the agencies proceed to engage in . . . [a]
substantive review of the appropriate scope of `waters of the United
States.' ''

82 FR 34901. The agencies expressly sought comment on whether
recodifying the prior regulations would provide for greater regulatory
certainty, see 83 FR 32240, and also solicited comment on ``whether it
is desirable and appropriate to re-codify [the pre-existing
regulations] as an interim first step pending a substantive rulemaking
to reconsider the definition of `waters of the United States.' '' 82 FR
34903.
    The agencies received a significant number of comments discussing
the impact of this rulemaking on regulatory certainty. Many commenters
asserted that the 2015 Rule failed to increase predictability and
consistency under the CWA, instead creating confusion and uncertainty.
Some commenters stated that the 2015 Rule broadened the scope of
federal jurisdiction to include waters that were previously not covered
under the CWA, which the commenters argued further contributes to
uncertainty and confusion. Other commenters found that the 2015 Rule
increased regulatory certainty compared to the pre-existing regulatory
regime; these commenters asserted that recodifying the pre-existing
regulations would thus reduce regulatory certainty. After a thorough
review of the comments received on the NPRM and SNPRM, the agencies
conclude that this final rule will provide greater regulatory certainty
and national consistency while the agencies consider public comments on
the proposed revised definition of ``waters of the United States.'' See
84 FR 4154 (Feb. 14, 2019).
    This final rule returns implementation of the definition of
``waters of the United States'' under the CWA to the regulatory regime
that existed for many years before the agencies issued the 2015 Rule
and that still exists in more than half the States at the time of the
publication of this final rule. The agencies have maintained separate
regulations defining the statutory term ``waters of the United
States,'' but the text of the regulations have been virtually identical
since the Corps' and the EPA's 1986 and 1988 rulemakings, respectively.
See 51 FR 41206 (Nov. 13, 1986) (revising Corps regulations to align
more closely with EPA regulations defining ``waters of the United
States''); see also 53 FR 20764 (June 6, 1988) (including language from
the preamble to the Corps' 1986 regulations to provide ``clarity and
consistency'' regarding the EPA's regulatory definition of ``waters of
the United States''). Following the promulgation of the 2015 Rule, the
agencies have continued to implement those pre-existing regulations
(commonly referred to as the ``1986 regulations'') in a shifting
patchwork of States subject to federal court stays of and injunctions
against the 2015 Rule. In response to court orders regarding the
agencies' ``waters of the United States'' rulemakings, the EPA has
maintained a web page with a map reflecting which regulatory regime is
applicable in each State (https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update).
    For over 30 years, challenges to the agencies' application of the
1986 regulations have yielded a significant body of case law that has
helped to define the scope of the agencies' CWA authority and shaped
the agencies' approach to implementing the pre-2015 regulations. In
particular, the Supreme Court's decisions in SWANCC and Rapanos inform
the agencies' implementation of the 1986 regulations. After those
decisions, the agencies issued interpretive guidance in 2003 and 2008
that is now longstanding and familiar.\53\ As such, though the text of
the 1986 regulations has remained largely unchanged,\54\ the agencies
have refined their application of the 1986 regulatory text consistent
with Supreme Court decisions and informed by the agencies' guidance and
their technical experience implementing the Act pursuant to those pre-
existing regulations.
---------------------------------------------------------------------------

    \53\ Joint Memorandum, 68 FR 1991, 1995 (Jan. 15, 2003)
(providing clarifying guidance regarding the SWANCC decision); U.S.
EPA & U.S. Army Corps of Engineers, Clean Water Act Jurisdiction
Following the U.S. Supreme Court's Decision in Rapanos v. United
States & Carabell v. United States (Dec. 2, 2008), available at
https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf.
    \54\ In 1993, the agencies added an exclusion for prior
converted cropland to the definition of ``waters of the United
States.'' See 58 FR 45008 (Aug. 25, 1993).
---------------------------------------------------------------------------

    The agencies have been applying the 1986 regulations consistent
with the Supreme Court's decisions in SWANCC and Rapanos and informed
by the agencies' corresponding guidance for over a decade. The
agencies, their co-regulators, and the regulated community are thus
familiar with the pre-2015 Rule regulatory regime and have amassed
significant experience operating under those pre-existing regulations.
Agency staff in particular have developed significant technical
expertise in implementing the 1986 regulations. For example, between
June 2007 and August 2019, the Corps issued 220,169 approved
jurisdictional determinations under the pre-2015 Rule regulatory
regime.\55\
---------------------------------------------------------------------------

    \55\ Data from the U.S. Army Corps of Engineers' Operation and
Maintenance Business Information Link, Regulatory Module (ORM2)
database, May 2019.
---------------------------------------------------------------------------

    While some commenters agreed that returning to the pre-2015 Rule
regulatory regime would promote regulatory certainty, other commenters
asserted that recodifying the pre-existing regulations would reduce
regulatory certainty by reinstating the prior regulatory regime's case-
specific significant nexus analysis for certain jurisdictional
determinations, which the commenters characterized as inconsistent and
burdensome. In addition, some commenters argued that the agencies'
proposal to repeal the 2015 Rule and recodify the pre-existing
regulations disregards the substantial uncertainty, confusion, and
inconsistencies under the prior regime that the agencies had sought to
address in developing the 2015 Rule.
    The agencies acknowledge that in issuing the 2015 Rule, the
agencies intended to ``make the process of identifying waters protected
under the CWA easier to understand.'' 80 FR 37054, 37057 (June 29,
2015). Yet, as explained in Section III.C. of this notice, the agencies
find that the 2015 Rule exceeded the agencies' statutory authority and
that the agencies did not adequately consider and accord due weight to
Congress' policy directive in CWA section 101(b) in promulgating the
2015 Rule. The agencies have concluded that, as a result of those
fundamental issues, the 2015 Rule must be repealed. At the same time,
the agencies recognize that the pre-existing regulations pose certain
implementation challenges, particularly because significant nexus
analyses continue to be required for certain waters consistent with the
agencies' still-effective Rapanos Guidance. Following the Supreme
Court's decisions in SWANCC and Rapanos, which the agencies note did
not vacate or remand the 1986 regulations, the Corps published a
guidebook to assist district staff in issuing approved jurisdictional
determinations.\56\ In particular, the guidebook outlines procedures
and documentation used to support significant nexus determinations.
This guidebook has been and continues to be publicly available and will
continue to serve as a resource in issuing jurisdictional
determinations under this final rule.
---------------------------------------------------------------------------

    \56\ U.S. Army Corps of Engineers Jurisdictional Determination
(JD) Form Instructional Guidebook, available at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Related-Resources/CWA-Guidance/.
---------------------------------------------------------------------------

    In May 2019, the U.S. District Court for the Southern District of
Texas remanded the 2015 Rule to the agencies

on the grounds that the rule violated the APA. Specifically, the court
found that the rule violated the APA's notice and comment requirements
because: (1) The 2015 Rule's definition of ``adjacent'' waters (which
relied on distance-based limitations) was not a ``logical outgrowth''
of the proposal's definition of ``adjacent'' waters (which relied on
ecologic and hydrologic criteria); and (2) the agencies denied
interested parties an opportunity to comment on the final draft of the
Connectivity Report, which served as the technical basis for the final
rule. See Texas v. EPA, No. 3:15-cv-162, 2019 WL 2272464 (S.D. Tex. May
28, 2019). As the court noted, ``the Final Connectivity Report was the
technical basis for the Final Rule and was instrumental in determining
what changes were to be made to the definition of the phrase [`the
waters of the United States'].'' Id. at 12; see also 80 FR 37057
(explaining that the Connectivity Report ``provides much of the
technical basis for [the] [R]ule.''). The court found that, because the
Connectivity Report was an important basis for the 2015 Rule,
interested parties should have had an opportunity to comment on the
final version of the Report. Recodifying the prior regulations restores
a regulatory regime that is not based on the conclusions in the
Connectivity Report and remedies the infirmities that the Southern
District of Texas and the Southern District of Georgia identified in
the 2015 Rule, including the lack of notice for the distance-based
limitations in the definition of ``adjacent'' waters and other
procedural and substantive deficiencies in the rule.
    In the agencies' proposed revised definition of ``waters of the
United States,'' the agencies seek to establish a clear and
implementable definition that better effectuates the language,
structure, and purposes of the CWA. See 84 FR 4174. Pending any final
action on that proposed rulemaking, the agencies conclude that this
final rule will provide greater certainty by reinstating nationwide a
longstanding regulatory framework that is familiar to and well-
understood by the agencies, States, Tribes, local governments,
regulated entities, and the public.
    A number of commenters supported repealing the 2015 Rule and
recodifying the prior regulations due to the commenters' concerns that
litigation over the 2015 Rule creates significant regulatory
uncertainty. Commenters noted that the 2015 Rule litigation has led to
different regulatory regimes being in effect in different States,
thereby burdening regulated entities that operate in multiple States.
In contrast, some commenters asserted that regulatory uncertainty
associated with legal challenges to the 2015 Rule is not an adequate
basis for this rulemaking. Several of these commenters argued that the
agencies have failed to consider that this rulemaking could also
generate litigation and contribute to uncertainty.
    For periods of time over the last four years, the agencies have
applied different regulatory regimes throughout the country as the
result of preliminary injunctions against the 2015 Rule. By reinstating
the 1986 definition of ``waters of the United States'' nationwide, this
final rule will alleviate inconsistencies, confusion, and uncertainty
arising from the agencies' application of two different regulatory
regimes across the country. The agencies recognize that this final rule
may itself be subject to legal challenges, and that this gives rise to
the possibility of a return to the application of different regulatory
definitions in different States. Yet, the agencies cannot predict the
outcome of any future challenges, and the possibility of courts
enjoining this rule should not preclude the agencies from taking this
final action. At this time, due to preliminary injunctions against the
2015 Rule, it is only by finalizing this rule to codify the pre-
existing regulations that the agencies can return to implementing a
uniform definition of ``waters of the United States'' nationwide.
    Though this final rule is intended to be the first step in a
comprehensive, two-step rulemaking process, the agencies acknowledge
that they cannot prejudge the outcome of the separate rulemaking on a
proposed revised definition of ``waters of the United States.''
Regardless of whether the agencies finalize a new definition, the
agencies conclude that restoring the pre-existing regulations is
appropriate because, as implemented, those regulations adhere more
closely than the 2015 Rule to the jurisdictional limits reflected in
the statute and case law. For example, the agencies find that the prior
regulatory regime is consistent with the agencies' view that Justice
Kennedy did not intend for the significant nexus standard to be applied
in a manner that would result in assertion of jurisdiction over waters
deemed non-jurisdictional in SWANCC. Moreover, by leaving certain types
of isolated waters and certain ephemeral streams under the sole
jurisdiction of States, the pre-existing regulatory framework also
provides a more appropriate balancing of CWA sections 101(a) and
101(b). With this final rule, the regulations defining ``waters of the
United States'' will be those portions of 33 CFR part 328 and 40 CFR
parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 as they
existed immediately prior to the 2015 Rule's amendments.\57\ The
agencies will continue to implement those regulations informed by
applicable agency guidance documents and consistent with Supreme Court
decisions and longstanding agency practice. Given the longstanding
nature of the pre-2015 Rule regulatory framework, its track record of
implementation and extensive body of related case law, and thus its
familiarity to regulators, the regulated community and other
stakeholders, the agencies conclude that this final rule to recodify
the 1986 regulations will provide greater regulatory certainty and
nationwide consistency while the agencies consider public comments on
the proposed revised definition of ``waters of the United States.'' See
84 FR 4154.
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    \57\ The agencies observe that this final rule to repeal the
2015 Rule and restore the prior regulations is consistent with the
broadly accepted practice of courts to reinstate a prior rule where
the current regulation is invalid. See, e.g., Paulsen v. Daniels,
413 F. 3d 999, 1008 (9th Cir. 2005) (``The effect of invalidating an
agency rule is to reinstate the rule previously in force.''); Action
on Smoking & Health v. Civil Aeronautics Bd., 713 F.2d 795, 797 (DC
Cir. 1983) (``Thus, by vacating or rescinding the [rule], the
judgment of this court had the effect of reinstating the rules
previously in force.''). Indeed, were a court to find the 2015 Rule
unlawful, the presumptive remedy would be to reinstate the pre-
existing regulations. While the agencies recognize and fully
acknowledge that their authority differs from that of a federal
court, the agencies find that this common judicial practice further
illustrates the reasonableness of the agencies' decision to replace
the unlawful 2015 Rule with the prior regulations.
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V. Alternatives to the Final Rule

    After thoroughly considering comments received on the NPRM and
SNPRM regarding alternatives to this action, the agencies conclude that
repealing the 2015 Rule and restoring the pre-2015 Rule regulatory
regime is the most effective and efficient way to remedy the
fundamental and systemic flaws of the 2015 Rule, achieve the objectives
of the Act, and provide regulatory certainty as the agencies consider
public comments on a proposed revised definition of ``waters of the
United States.'' See 84 FR 4154.
    Under the APA, a reviewing court will ``hold unlawful and set aside
agency action, findings, and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.'' 5 U.S.C. 706(2)(A). In promulgating a rule to repeal existing
regulations, agencies must address and consider alternative ways of
achieving the relevant statute's objectives and must provide adequate
reasons for abandoning those alternatives. Motor Vehicle Mfrs. Ass'n

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983). Agencies are
not required, however, to consider ``all policy alternatives in
reaching a decision.'' Id. at 50-51. Indeed, an agency rulemaking
``cannot be found wanting simply because the agency failed to include
every alternative device and thought conceivable by the mind of man . .
. regardless of how uncommon or unknown that alternative may have
been.'' Id. (quoting Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519, 551 (1978)).
    The agencies considered alternatives to the final rule throughout
the rulemaking process. In the preamble to the NPRM, the agencies
explained that they considered alternatives to the proposed action,
including simply withdrawing or staying the 2015 Rule, but did not
identify any alternatives that would provide stability as effectively
and efficiently as the proposed action pending the conclusion of the
agencies' two-step rulemaking process. See 82 FR 34899, 34903 (July 27,
2017). Similarly, in the preamble to the SNPRM, the agencies explained
that they considered several alternatives to the proposed action,
including revising specific elements of the 2015 Rule, issuing revised
implementation guidance, and further extending the applicability date
of the 2015 Rule. See 83 FR 32227, 32249 (July 12, 2018). The agencies
then requested comments on ``whether any of these alternative
approaches would fully address and ameliorate potential deficiencies in
and litigation risk associated with the 2015 Rule.'' Id. The agencies
also requested comment on ``whether this proposal is the best and most
efficient approach to address the potential deficiencies [with the 2015
Rule] identified in this notice and to provide the predictability and
regulatory certainty that alternative approaches may not provide.'' Id.
    The agencies received comments suggesting four categories of
alternatives to the agencies' proposal to repeal the 2015 Rule and
recodify the pre-existing regulations. Commenters suggested (1)
revising the 2015 Rule; (2) repealing the 2015 Rule and then
maintaining or revising the pre-2015 Rule regulatory regime; (3)
repealing the 2015 Rule but not recodifying the pre-existing
regulations; and (4) pursuing alternative actions to rulemaking.
    The agencies find that revising select provisions in the 2015 Rule
would not resolve the fundamental flaws underlying the 2015 Rule and
would result in the 2015 Rule remaining in place beyond the effective
date of this final rule. As described earlier, the agencies conclude
that the 2015 Rule did not implement the legal limits on the scope of
the agencies' authority under the CWA as intended by Congress and
reflected in Supreme Court cases, did not adequately consider and
accord due weight to the policy of the Congress in CWA section 101(b),
pushed the envelope of the agencies' constitutional and statutory
authority absent a clear statement from Congress, and included
distance-based limitations that suffered from procedural errors and a
lack of adequate record support. Conducting rulemaking to revise
specific provisions in the 2015 Rule would not remedy these fundamental
flaws that permeate the rule. The agencies are considering specific
definitional changes in their separate rulemaking on a proposed revised
definition of ``waters of the United States.'' The agencies find that
it is preferable to repeal the 2015 Rule and recodify the pre-existing
regulations, informed by applicable agency guidance documents and
consistent with Supreme Court decisions and longstanding agency
practice, than to leave in place a rule that exceeds the agencies'
statutory authority--especially a rule of this magnitude--pending a
separate rulemaking process.
    Similarly, the agencies find that repealing the 2015 Rule,
reinstating the pre-2015 Rule regulatory regime, and either maintaining
that regime or using it as a basis for further rulemaking would provide
less regulatory certainty than the agencies' current two-step
rulemaking approach. The agencies find that reinstating the
longstanding and familiar pre-2015 Rule regulatory regime will provide
regulatory certainty in this interim period, but they also acknowledge
that the pre-existing regulations pose certain implementation
difficulties. The agencies thus find that proceeding through the
agencies' two-step rulemaking process is preferable to maintaining the
``familiar, if imperfect'' pre-existing regulations. See In re EPA, 803
F.3d at 808. If the agencies do not finalize a new definition of
``waters of the United States'' as part of their two-step rulemaking
process or if a new definition is overturned by a court in the future,
it is appropriate for the pre-2015 Rule regulatory regime to remain in
place because, as implemented, it adheres more closely than the 2015
Rule to the limits imposed by the Act and is longstanding and familiar.
The agencies conclude that it is appropriate to codify the pre-existing
regulations as an interim step pending the agencies' separate
rulemaking to establish a definition of ``waters of the United States''
that better effectuates the language, structure, and purposes of the
Act.
    The agencies also find that repealing the 2015 Rule without
restoring the pre-2015 Rule regulatory regime would not provide
regulatory certainty to the same extent as the agencies two-step
rulemaking approach. The pre-2015 Rule regulatory regime is imperfect,
but it is longstanding and familiar. As described in Section IV of this
notice, restoring the pre-2015 Rule regime provides regulatory
certainty while the agencies reconsider the proper scope of federal CWA
authority in the agencies' separate rulemaking process.
    Finally, the agencies find that relying solely on non-regulatory
actions to clarify the definition of ``waters of the United States''
would not provide sufficient regulatory certainty. The agencies
considered revising current guidance, issuing new guidance, and
developing improved technical tools to assist agency staff, States,
Tribes and the regulated community in implementing the 2015 Rule. The
agencies find, however, that adopting these non-regulatory alternatives
in lieu of regulatory action would provide less regulatory certainty
than the agencies' two-step rulemaking approach and would not remedy
the fundamental flaws that permeate the 2015 Rule. In the proposed
rulemaking to establish a revised definition of ``waters of the United
States,'' however, the agencies are considering additional ways to
improve implementation of the definition of ``waters of the United
States,'' in addition to revising the regulatory definition. See 84 FR
4198-4200.

VI. Economic Analysis

    The agencies conducted an economic analysis (EA) for the proposed
rule in 2017 to provide information on the potential changes to the
costs and benefits of various CWA programs that could result from a
change in the number of positive jurisdictional determinations when
repealing the 2015 Rule and recodifying the pre-existing regulations.
The agencies have since updated their analysis for both the proposed
rule to revise the definition of ``waters of the United States'' and
for this final rule. The agencies note that the final decision to
repeal the 2015 Rule and recodify the pre-existing regulations in this
rulemaking is not based on the information in the agencies' economic
analysis. See, e.g., NAHB, 682 F.3d at 1039-40.
    Filings in litigation against the 2015 Rule and comments submitted
in response to the 2017 proposed repeal of that rule have critiqued the
methods

used to estimate the costs and benefits of these actions. After
assessing the input provided, the agencies have concluded that
significant flaws in the economic analyses supporting the 2015 Rule and
the 2017 proposed repeal led to likely overstatements of costs and
benefits. The agencies have therefore made changes to their
methodologies in support of this final rule. As a result of these
changes, the economic analysis for this final rule explores in greater
depth the role the States play in regulating their water resources,
corrects and updates the wetland valuation methodology, and more
clearly acknowledges the uncertainties in the agencies' calculations.
    The most significant reason that costs and benefits of the economic
analyses accompanying the 2015 Rule and the 2017 proposed repeal may
have been overestimated is that they did not consider the different
ways in which State governments could react to a change in CWA
jurisdiction. Both analyses assumed that States always adjust
regulatory regimes to match the federal jurisdictional level in
response to a change in federal jurisdiction. The analysis for this
final rule responds to the concerns raised by commenters by
incorporating a more balanced and robust characterization of possible
State responses to a change in jurisdiction and evaluates a series of
scenarios that quantify the sensitivity of the costs and benefits to
varying assumptions about State responses. These changes in analytic
approach build on the agencies' detailed review of State programs and
the literature on environmental federalism.
    As described in the EA for this final rule and in the EA for the
``Proposed Revised Definition of `Waters of the United States,'''
December 14, 2018, the agencies' revised analysis indicates that
potential State responses to a change in the definition of a ``water of
the United States'' fall along a continuum and depend on legal and
other constraints. Some States cannot currently regulate a more
expansive set of waters than those subject to the federal CWA
definition of ``waters of the United States.'' In contrast, States that
regulate surface waters and wetlands as broadly or more broadly than
the 2015 Rule, independently of the scope of the federal CWA, may not
be affected by this action. Complete State ``gap-filling'' could result
in no change in compliance costs to the regulated community and no
change in environmental benefits (that is, neither avoided costs nor
forgone benefits would occur), suggesting a zero-net impact in the
long-run, and therefore the costs and benefits presented in the
analyses of the 2015 Rule and its proposed repeal may have been
overstated for those States. States that fall between these extremes
are evaluated by either including or excluding them from the estimates
of cost savings and forgone benefits. In reality some States may
regulate only a subset of affected waters, but the agencies did not
have sufficient information to incorporate that level of detail into
the analysis.
    Another potential outcome of a change in CWA jurisdiction is that
State governments may be able to find more efficient ways of managing
local resources than the Federal government, consistent with the theory
of ``fiscal federalism'' as described in the EA for the final rule.
Depending on the value of a newly characterized non-jurisdictional
water, States may or may not choose to regulate that water and the
compliance costs and environmental benefits of its regulation could
increase or decrease, respectively. In either case, however, net
benefits would increase, assuming a State can more efficiently allocate
resources towards environmental protection due to local knowledge of
amenities and constituent preferences. As effective regulation requires
political capital and fiscal resources, however, the likely best
indication of the way in which States will exercise their authority as
the Federal government changes the scope of CWA jurisdiction is the way
in which they have exercised authority in the past and whether the
infrastructure to manage the regulatory programs already exists. In
considering a number of scenarios in which States may retain regulatory
oversight no longer required by the federal regulations implementing
the CWA, the revised analysis lowers the estimated cost savings and
forgone benefits of final rule.
    Litigants and commenters on the 2015 Rule and 2017 proposed repeal,
respectively, also identified concerns with the methods the agencies
used for the 2015 Rule to value wetlands which the agencies described
qualitatively in the 2017 proposal. Application of the agencies'
wetlands valuation studies on a national level led to potentially
inflated willingness to pay (WTP) estimates and thus an overestimate of
the expected benefits from the 2015 Rule. The 2015 analysis relied on
estimates of WTP for wetland preservation or expansion from ten
studies, but as discussed in the EA for this final rule, the agencies
have concluded that only five of the ten studies relied upon satisfy
standard benefit transfer selection criteria established in the EPA's
own guidelines.
    To correct for the prior use of inappropriate studies and concerns
with benefit transfer methods used for the 2015 Rule, the agencies
developed more appropriate methodologies to estimate the value of
forgone wetland benefits that could arise as a result of this final
rule. For example, the agencies applied a meta-analysis of wetland
valuation studies, which combined and synthesized the results from
multiple valuation studies to estimate a new transfer function. Meta-
analyses control for the confounding attributes of underlying studies,
so this analysis was able to make use of a larger number of studies
than the agencies could use for the unit value benefit transfer in the
analysis supporting the 2015 Rule.
    Even after correcting the approaches taken to estimate State
responses and value wetlands, the agencies identified a number of
sources of uncertainty in the economic analyses of the 2015 Rule and
2017 proposed repeal. For example, in assessing categories of waters
that the 2015 Rule made newly jurisdictional, the agencies did not
remove waters subject to that rule's expanded set of exclusions. See
2015 Rule Economic Analysis at 8. The economic analysis in support of
the 2015 Rule and its proposed repeal therefore likely considered the
costs and benefits of regulating waters that would have been subject to
exclusions and consequently likely overestimated the costs and benefits
of the rule.
    Similarly, the estimated benefits and costs from the 2015 Rule and
the 2017 proposed repeal may have incorrectly assumed that the
percentage increase in costs and benefits of increased positive
jurisdictional determinations was equal to the percentage increase in
regulated activities. The analyses assumed that the rule would affect
entities regulated under the CWA in direct proportion to the percent
change in positive jurisdictional determinations. This proportional
assumption could have yielded overestimates.
    While the agencies have striven to make the economic analysis
supporting this final rule as transparent and accurate as possible,
their goal in doing so is solely for informational purposes. The
agencies are repealing the 2015 Rule to ensure that they do not exceed
their statutory authority, not based on analyses of the economic
impacts of the 2015 Rule. The economic analyses do, however, provide
some helpful information about the 2015 Rule and its repeal. The
agencies developed several scenarios using different assumptions about
potential State regulation of

waters to provide a range of costs and benefits. Under the scenario
that assumes the fewest number of States regulating newly non-
jurisdictional waters, the agencies estimate the final rule would
produce annual avoided costs ranging between $116 and $174 million and
annual forgone benefits ranging between $69 to $79 million. When
assuming the greatest number of States are already regulating newly
non-jurisdictional waters, the agencies estimate there would be avoided
annual costs ranging from $61 to $104 million and annual forgone
benefits are estimated to be approximately $37 to $39 million. Under
the scenario that assumes no States will regulate newly non-
jurisdictional waters, an outcome the agencies believe would be
unlikely, the agencies estimate the final rule would produce annual
avoided costs ranging from $164 to $345 million and annual forgone
benefits ranging from $138 to $149 million.

VII. The Effect of This Rule and the Agencies' Next Steps

    In defining the term ``waters of the United States'' under the CWA,
Congress gave the agencies broad discretion to articulate reasonable
limits on the meaning of that term, consistent with the Act's text and
its policies as set forth in CWA section 101. See, e.g., Rapanos, 547
U.S. at 758 (Roberts, C.J., concurring) (``Given the broad, somewhat
ambiguous, but nonetheless clearly limiting terms Congress employed in
the Clean Water Act, the Corps and the EPA would have enjoyed plenty of
room to operate in developing some notion of an outer bound to the
reach of their authority.'') (emphasis in original). In light of the
substantial litigation regarding the 2015 Rule and based on the
agencies' experience and expertise in administering the definition of
``waters of the United States'' under the CWA under the prior
regulations, the agencies proposed to repeal the 2015 Rule and put in
place the pre-existing regulations. This proposal was based on the
concerns articulated in the NPRM and SNPRM, and the agencies' concern
that there may be significant disruption to the implementation of the
Act and to the public, including regulated entities, if the 2015 Rule
were vacated in part. With this final rule, the agencies exercise their
discretion and policy judgment and repeal the 2015 Rule permanently and
in its entirety because the agencies believe that this approach is the
most appropriate means to remedy the deficiencies of the 2015 Rule
identified above, address the extensive litigation surrounding the 2015
Rule, and restore a regulatory process that has been in place for
years.
    The 2015 Rule amended longstanding regulations contained in
portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122,
230, 232, 300, 302, and 401 by revising, removing, and re-designating
certain paragraphs and definitions in those regulations. With this
final rule, the agencies repeal the 2015 Rule and restore the
regulations in existence immediately prior to the 2015 Rule. As such,
the regulatory definitions of ``waters of the United States'' in effect
beginning on the effective date of this final rule are those portions
of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232,
300, 302, and 401 as they existed immediately prior to the 2015 Rule's
amendments. See, e.g., API v. EPA, 883 F.3d 918, 923 (D.C. Cir. 2018)
(regulatory criterion in effect immediately before enactment of
criterion that was vacated by the court ``replaces the now-vacated''
criterion); see also supra at note 58.
    With this final rule, the agencies recodify the prior regulations
in the CFR, which avoids creating a regulatory vacuum with the repeal
of the 2015 Rule, and the agencies need not consider the potential
consequences of such a regulatory vacuum in light of this. The agencies
will apply the prior definition consistent with Supreme Court decisions
and longstanding practice, as informed by applicable guidance
documents, training, and experience, while the agencies consider public
comments on the proposed revised definition of ``waters of the United
States.'' See 84 FR 4154.
    The current regulatory scheme for determining CWA jurisdiction is
``familiar, if imperfect,'' In re EPA, 803 F.3d at 808, and the
agencies and regulated public have significant experience operating
under the longstanding regulations that were replaced by the 2015 Rule.
Apart from a roughly six-week period when the 2015 Rule was in effect
in 37 States and the period since the August 16, 2018 U.S. District
Court for the District of South Carolina decision enjoining the
applicability date rule nationwide, which placed the 2015 Rule into
effect in 26 States (at that time), the District of Columbia, and U.S.
Territories, the agencies have continued to implement the pre-existing
regulatory definitions in more than half of the States.
    The agencies acknowledge that the pre-existing regulations have
been criticized and their application has been narrowed by various
legal decisions, including SWANCC and Rapanos; however, the
longstanding nature of the regulatory framework and its track record of
implementation makes it preferable at this time. The agencies believe
that, until a new definition is completed, it is important to retain
the regulations that have been implemented for many years rather than
the 2015 Rule, which has been and continues to be mired in litigation
and recently was remanded back to the agencies for extending the
agencies' delegated authority beyond the limits of the CWA and
violating the APA when promulgating it.
    Restoration of the prior regulatory text in the CFR, interpreted in
a manner consistent with Supreme Court decisions, and informed by
applicable agency guidance documents and longstanding practice, will
ensure that the scope of CWA jurisdiction will be administered in the
same manner as it has been in those States where the 2015 Rule has been
enjoined and as it was for many years prior to the promulgation of the
2015 Rule. To be clear, the agencies are not finalizing a revised
definition of ``waters of the United States'' in this specific
rulemaking different from the definition that existed immediately prior
to the 2015 Rule. The agencies also are not finalizing this rule in
order to fill a regulatory gap because no such gap exists today. See 83
FR 5200, 5204. Rather, the agencies solely repeal the 2015 amendments
to the above-referenced portions of the CFR and recodify the pre-
existing regulatory text as it existed immediately prior to the 2015
Rule's amendments.
    The agencies recognize that approved jurisdictional determinations
(AJDs) issued under the 2015 Rule could potentially be affected by this
final rule. An AJD is a document issued by the Corps stating the
presence or absence of ``waters of the United States'' on a parcel. See
33 CFR 331.2. As a matter of policy, AJDs are valid for a period of
five years from the date of issuance unless new information warrants
revision before the expiration date or a District Engineer identifies
specific geographic areas with rapidly changing environmental
conditions that merit re-verification on a more frequent basis. See
U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05-02,
Sec.  1(a), p. 1 (June 2005) (RGL 05-02). Additionally, the possessor
of a valid AJD may request the Corps reassess a parcel and grant a new
AJD before the five-year expiration date. An AJD constitutes final
agency action pursuant to the agencies' definition of ``waters of the
United States'' at the time of its issuance, see Hawkes, 136 S. Ct. at
1814, and therefore, this final rule does not invalidate an AJD that
was issued under the 2015 Rule. As such, an AJD issued

under the 2015 Rule will remain valid until its expiration date unless
one of the criteria for revision is met under RGL 05-02, or the
recipient of such an AJD requests a new AJD be issued under the pre-
2015 regulations and guidance pursuant to this final rule. Preliminary
jurisdictional determinations (PJDs), however, are merely advisory in
nature, make no legally binding determination of jurisdiction, and have
no expiration date. See 33 CFR 331.2; see also U.S. Army Corps of
Engineers, Regulatory Guidance Letter No. 16-01 (October 2005). As
such, PJDs are unaffected by this final rule because they do not
definitively state whether there are ``waters of the United States'' on
a parcel. See Hawkes, 136 S. Ct. at 1812. However, as with AJDs, a
recipient of a PJD issued under the 2015 Rule may request a new PJD be
issued under the pre-2015 regulations and guidance.
    The agencies note that repealing the 2015 Rule and restoring the
pre-existing regulatory definition of ``waters of the United States''
does not affect the scope of waters that the Corps retains in States
that have assumed the CWA section 404 dredged or fill material permit
program, or the waters the Corps would retain should States and Tribes
assume the program in the future. When States or Tribes assume
administration of the section 404 program, the Corps retains
administration of permits in certain waters. 33 U.S.C. 1344(g). The
scope of CWA jurisdiction as defined by ``waters of the United States''
is entirely distinct from the scope of waters over which the Corps
retains authority following State or tribal assumption of the section
404 program. The retained waters are identified during approval of a
State or tribal section 404 program and any modifications are approved
through a formal EPA process. 40 CFR 233.36. The way in which the Corps
identifies waters to be retained was most recently addressed on July
30, 2018, in a memorandum from R.D. James, Assistant Secretary of the
Army (Civil Works).\58\ The EPA also intends to clarify the issue in a
separate ongoing rulemaking process designed to facilitate State and
tribal assumption of the section 404 program.
---------------------------------------------------------------------------

    \58\ The memorandum is available at https://www.army.mil/e2/c/downloads/525981.pdf.
---------------------------------------------------------------------------

    The agencies proposed a revised definition of ``waters of the
United States'' on February 14, 2019, see 84 FR 4154, as the second
step of the comprehensive two-step process 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.' '' The agencies proposed 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 public comment
period for the proposed revised definition of ``waters of the United
States'' closed on April 15, 2019, and the agencies are reviewing and
considering approximately 620,000 comments they received. If finalized,
the revised definition of ``waters of the United States'' will replace
the regulations that the agencies are finalizing in this notice.

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is an economically significant regulatory action that
was submitted to the Office of Management and Budget (OMB) for review.
Any changes made in response to OMB recommendations have been
documented in the docket.
    While the economic analysis is informative in the rulemaking
context, the agencies are not relying on the economic analysis
performed pursuant to Executive Orders 12866 and 13563 and related
procedural requirements as a basis for this final rule. See, e.g.,
NAHB, 682 F.3d at 1039-40 (noting that the quality of an agency's
economic analysis can be tested under the APA if the ``agency decides
to rely on a cost-benefit analysis as part of its rulemaking'').

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Cost

    This rule is an Executive Order 13771 deregulatory action. Details
on the estimated cost savings of this rule can be found in the economic
analysis in the docket for this rule.

C. Paperwork Reduction Act

    This rule does not impose any new information collection burdens
under the Paperwork Reduction Act.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
    The repeal of the 2015 Rule and recodification of the prior
regulations is a deregulatory action because the 2015 Rule exceeded the
agencies' statutory authority. This action avoids the imposition of
potentially significant adverse economic impacts on small entities in
the future. Details on the estimated cost savings of this rule can be
found in the economic analysis published with this rule. Accordingly,
after considering the potential economic impacts of the final rule on
small entities, we certify that this action will not have a significant
economic impact on a substantial number of small entities.

E. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), signed into law on March 22, 1995, an agency must prepare a
budgetary impact statement to accompany any proposed or final rule that
includes a federal mandate that may result in estimated cost to State,
local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more. Under section 205 of the UMRA, the
agency must select the most cost-effective and least burdensome
alternative that achieves the objectives of the rule and is consistent
with statutory requirements. Section 203 requires the agency to
establish a plan for informing and advising any small governments that
may be significantly or uniquely impacted by the rule. This action does
not contain any unfunded mandate as described in the UMRA and does not
significantly or uniquely affect small governments. The definition of
``waters of the United States'' applies broadly to CWA programs. The
action imposes no enforceable duty on any State, local, or tribal
governments, or the private sector, and does not contain regulatory
requirements that significantly or uniquely affect small governments.

F. Executive Order 13132: Federalism

    Executive Order 13132 requires the agencies to develop an
accountable process to ensure ``meaningful and timely input by state
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct

effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, the agencies may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local government, or the agencies consult
with State and local officials early in the process of developing the
proposed regulation. The agencies also may not issue a regulation that
has federalism implications and that preempts state law unless the
agencies consult with State and local officials early in the process of
developing the proposed regulation.
    This final rule will not have substantial direct effects on the
States, on the relationship between the national government and States,
or on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
returns the relationship between the Federal government and the States
to the longstanding and familiar distribution of power and
responsibilities established in the CWA for many years prior to the
2015 Rule. Thus, the requirements of section 6 of the Executive Order
do not apply to this final rule.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000), requires
the agencies to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. This final
rule will not have substantial direct effects on tribal governments, on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes, because it returns the relationship
between the Federal government and the Tribes to the longstanding and
familiar distribution of power and responsibilities that existed under
the CWA for many years prior to the 2015 Rule. Thus, Executive Order
13175 does not apply to this final rule. Consistent with Executive
Order 13175, however, the agencies have consulted with tribal
officials, as appropriate, as part of the separate rulemaking on a
proposed revised definition of ``waters of the United States.'' As part
of the tribal consultation process for the proposed revised definition,
some Tribes commented on this rulemaking to repeal the 2015 Rule and
restore the pre-existing regulations, including in letters to the
agencies and during outreach and consultations meetings.

H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, Apr. 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that an agency has reason to
believe may have a disproportionate effect on children. If the
regulatory action meets both criteria, the agency must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the agency. This rule is not subject to Executive Order 13045
because it does not involve decisions intended to mitigate
environmental health or safety risks.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy.

J. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act
of 1995 requires federal agencies to evaluate existing technical
standards when developing a new regulation. This rule does not involve
technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    This final rule repealing the 2015 Rule and recodifying the pre-
2015 regulations currently in effect in those States where the 2015
Rule is enjoined will maintain the longstanding regulatory framework
that was in place nationwide for many years prior to the promulgation
of the 2015 Rule. The agencies therefore believe that this action does
not have disproportionately high and adverse human health or
environmental effects on minority, low-income populations, and/or
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629,
Feb. 16, 1994).

L. Congressional Review Act (``CRA'')

    This action is subject to the CRA, and the agencies will submit a
rule report to each House of the Congress and to the Comptroller
General of the United States. OMB has concluded that it is a ``major
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects

33 CFR Part 328

    Environmental protection, Administrative practice and procedure,
Navigation (water), Water pollution control, Waterways.

40 CFR Part 110

    Environmental protection, Oil pollution, Reporting and
recordkeeping requirements.

40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Reporting and
recordkeeping requirements.

40 CFR Part 116

    Environmental protection, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.

40 CFR Part 117

    Environmental protection, Hazardous substances, Penalties,
Reporting and recordkeeping requirements, Water pollution control.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.

40 CFR Part 230

    Environmental protection, Water pollution control.

40 CFR Part 232

    Environmental protection, Intergovernmental relations, Water
pollution control.

40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Occupational safety and health, Oil pollution,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.

40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Reporting and recordkeeping requirements, Superfund,
Water pollution control, Water supply.

40 CFR Part 401

    Environmental protection, Waste treatment and disposal, Water
pollution control.

    Dated: September 12, 2019.
Andrew R. Wheeler,
Administrator, Environmental Protection Agency.
    Dated: September 5, 2019.
R.D. James,
Assistant Secretary of the Army (Civil Works).

Title 33--Navigation and Navigable Waters

    For the reasons set out in the preamble, title 33, chapter II of
the Code of Federal Regulations is amended as follows:

PART 328--DEFINITION OF WATERS OF THE UNITED STATES

0
1. The authority citation for part 328 is revised to read as follows:

    Authority: 33 U.S.C. 1344.

0
2. Section 328.3 is amended by revising paragraphs (a) through (e) and
adding paragraph (f) to read as follows:

Sec.  328.3   Definitions.

* * * * *
    (a) The term waters of the United States means
    (1) All waters which are currently used, or were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the tide;
    (2) All interstate waters including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters:
    (i) Which are or could be used by interstate or foreign travelers
for recreational or other purposes; or
    (ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
    (iii) Which are used or could be used for industrial purpose by
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as waters of the
United States under the definition;
    (5) Tributaries of waters identified in paragraphs (a)(1) through
(4) of this section;
    (6) The territorial seas;
    (7) Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a)(1) through (6) of
this section.
    (8) Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other Federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
    Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of CWA (other than cooling ponds as
defined in 40 CFR 423.11(m) which also meet the criteria of this
definition) are not waters of the United States.
    (b) The term wetlands means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas.
    (c) The term adjacent means bordering, contiguous, or neighboring.
Wetlands separated from other waters of the United States by man-made
dikes or barriers, natural river berms, beach dunes and the like are
``adjacent wetlands.''
    (d) The term high tide line means the line of intersection of the
land with the water's surface at the maximum height reached by a rising
tide. The high tide line may be determined, in the absence of actual
data, by a line of oil or scum along shore objects, a more or less
continuous deposit of fine shell or debris on the foreshore or berm,
other physical markings or characteristics, vegetation lines, tidal
gages, or other suitable means that delineate the general height
reached by a rising tide. The line encompasses spring high tides and
other high tides that occur with periodic frequency but does not
include storm surges in which there is a departure from the normal or
predicted reach of the tide due to the piling up of water against a
coast by strong winds such as those accompanying a hurricane or other
intense storm.
    (e) The term ordinary high water mark means that line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.
    (f) The term tidal waters means those waters that rise and fall in
a predictable and measurable rhythm or cycle due to the gravitational
pulls of the moon and sun. Tidal waters end where the rise and fall of
the water surface can no longer be practically measured in a
predictable rhythm due to masking by hydrologic, wind, or other
effects.

Title 40--Protection of Environment

    For reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 110--DISCHARGE OF OIL

0
3. The authority citation for part 110 is revised to read as follows:

    Authority: 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O.
11735, 38 FR 21243, 3 CFR Parts 1971-1975 Comp., p. 793.

0
4. Section 110.1 is amended by revising the definition of ``Navigable
waters'' and adding the definition of ``Wetlands'' in alphabetical
order to read as follows:

Sec.  110.1  Definitions.

* * * * *
    Navigable waters means the waters of the United States, including
the territorial seas. The term includes:
    (a) All waters that are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters that are subject to the ebb and flow of the tide;
    (b) Interstate waters, including interstate wetlands;
    (c) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, and wetlands,
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters:

    (1) That are or could be used by interstate or foreign travelers
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce;
    (3) That are used or could be used for industrial purposes by
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as navigable
waters under this section;
    (e) Tributaries of waters identified in paragraphs (a) through (d)
of this section, including adjacent wetlands; and
    (f) Wetlands adjacent to waters identified in paragraphs (a)
through (e) of this section: Provided, That waste treatment systems
(other than cooling ponds meeting the criteria of this paragraph) are
not waters of the United States;

Navigable waters do not include prior converted cropland.
Notwithstanding the determination of an area's status as prior
converted cropland by any other federal agency, for the purposes of the
Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
* * * * *
    Wetlands means those areas that are inundated or saturated by
surface or ground water at a frequency or duration sufficient to
support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include playa lakes, swamps, marshes, bogs and
similar areas such as sloughs, prairie potholes, wet meadows, prairie
river overflows, mudflats, and natural ponds.

PART 112 --OIL POLLUTION PREVENTION

0
5. The authority citation for part 112 is revised to read as follows:

    Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.

0
6. Section 112.2 is amended by revising the definition of ``Navigable
waters'' and adding the definition of ``Wetlands'' in alphabetical
order to read as follows:

Sec.  112.2  Definitions.

* * * * *
    Navigable waters of the United States means ``navigable waters'' as
defined in section 502(7) of the FWPCA, and includes:
    (1) All navigable waters of the United States, as defined in
judicial decisions prior to passage of the 1972 Amendments to the FWPCA
(Pub. L. 92-500), and tributaries of such waters;
    (2) Interstate waters;
    (3) Intrastate lakes, rivers, and streams which are utilized by
interstate travelers for recreational or other purposes; and
    (4) Intrastate lakes, rivers, and streams from which fish or
shellfish are taken and sold in interstate commerce.
* * * * *
    Wetlands means those areas that are inundated or saturated by
surface or groundwater at a frequency or duration sufficient to
support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include playa lakes, swamps, marshes, bogs, and
similar areas such as sloughs, prairie potholes, wet meadows, prairie
river overflows, mudflats, and natural ponds.
* * * * *

PART 116--DESIGNATION OF HAZARDOUS SUBSTANCES

0
7. The authority citation for part 116 is revised to read as follows:

    Authority: Secs. 311(b)(2)(A) and 501(a), Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.).

0
8. Section 116.3 is amended by revising the definition of ``Navigable
waters'' to read as follows:

Sec.  116.3  Definitions.

* * * * *
    Navigable waters is defined in section 502(7) of the Act to mean
``waters of the United States, including the territorial seas,'' and
includes, but is not limited to:
    (1) All waters which are presently used, or were used in the past,
or may be susceptible to use as a means to transport interstate or
foreign commerce, including all waters which are subject to the ebb and
flow of the tide, and including adjacent wetlands; the term wetlands as
used in this regulation shall include those areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevelance of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs and
similar areas; the term adjacent means bordering, contiguous or
neighboring;
    (2) Tributaries of navigable waters of the United States, including
adjacent wetlands;
    (3) Interstate waters, including wetlands; and
    (4) All other waters of the United States such as intrastate lakes,
rivers, streams, mudflats, sandflats and wetlands, the use, degradation
or destruction of which affect interstate commerce including, but not
limited to:
    (i) Intrastate lakes, rivers, streams, and wetlands which are
utilized by interstate travelers for recreational or other purposes;
and
    (ii) Intrastate lakes, rivers, streams, and wetlands from which
fish or shellfish are or could be taken and sold in interstate
commerce; and
    (iii) Intrastate lakes, rivers, streams, and wetlands which are
utilized for industrial purposes by industries in interstate commerce.

Navigable waters do not include prior converted cropland.
Notwithstanding the determination of an area's status as prior
converted cropland by any other federal agency, for the purposes of the
Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
* * * * *

PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS
SUBSTANCES

0
9. The authority citation for part 117 is revised to read as follows:

    Authority: Secs. 311 and 501(a), Federal Water Pollution Control
Act (33 U.S.C. 1251 et seq.), (``the Act'') and Executive Order
11735, superseded by Executive Order 12777, 56 FR 54757.

0
10. Section 117.1 is amended by revising paragraph (i) to read as
follows:

Sec.  117.1  Definitions.

* * * * *
    (i) Navigable waters means ``waters of the United States, including
the territorial seas.'' This term includes:
    (1) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (2) Interstate waters, including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams,
(including intermittent streams), mudflats, sandflats, and wetlands,
the use, degradation or destruction of which would affect or could
affect interstate or foreign commerce including any such waters:
    (i) Which are or could be used by interstate or foreign travelers
for recreational or other purposes;
    (ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce;

    (iii) Which are used or could be used for industrial purposes by
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as navigable
waters under this paragraph;
    (5) Tributaries of waters identified in paragraphs (i)(1) through
(4) of this section, including adjacent wetlands; and
    (6) Wetlands adjacent to waters identified in paragraphs (i)(1)
through (5) of this section (``Wetlands'' means those areas that are
inundated or saturated by surface or ground water at a frequency and
duration sufficient to support, and that under normal circumstances do
support, a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally included playa lakes,
swamps, marshes, bogs, and similar areas such as sloughs, prairie
potholes, wet meadows, prairie river overflows, mudflats, and natural
ponds): Provided, That waste treatment systems (other than cooling
ponds meeting the criteria of this paragraph) are not waters of the
United States.
    Navigable waters do not include prior converted cropland.
Notwithstanding the determination of an area's status as prior
converted cropland by any other federal agency, for the purposes of the
Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
* * * * *

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM

0
11. The authority citation for part 122 continues to read as follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

0
12. Section 122.2 is amended by:
0
a. Lifting the suspension of the last sentence of the definition of
``Waters of the United States'' published July 21, 1980 (45 FR 48620).
0
b. Revising the definition of ``Waters of the United States''.
0
c. Suspending the last sentence of the definition of ``Waters of the
United States'' published July 21, 1980 (45 FR 48620).
0
d. Adding the definition of ``Wetlands''.
    The revision and addition read as follows:

Sec.  122.2   Definitions.

* * * * *
    Waters of the United States or waters of the U.S. means:
    (a) All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
    (b) All interstate waters, including interstate ``wetlands;''
    (c) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, ``wetlands,''
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters:
    (1) Which are or could be used by interstate or foreign travelers
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
    (3) Which are used or could be used for industrial purposes by
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as waters of the
United States under this definition;
    (e) Tributaries of waters identified in paragraphs (a) through (d)
of this definition;
    (f) The territorial sea; and
    (g) ``Wetlands'' adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a) through (f) of this
definition.

Waste treatment systems, including treatment ponds or lagoons designed
to meet the requirements of CWA (other than cooling ponds as defined in
40 CFR 423.11(m) which also meet the criteria of this definition) are
not waters of the United States. This exclusion applies only to manmade
bodies of water which neither were originally created in waters of the
United States (such as disposal area in wetlands) nor resulted from the
impoundment of waters of the United States. [See Note 1 of this
section.] Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
    Wetlands means those areas that are inundated or saturated by
surface or groundwater at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.
* * * * *

PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR FILL MATERIAL

0
13. The authority citation for part 230 is revised to read as follows:

    Authority:  Secs. 404(b) and 501(a) of the Clean Water Act of
1977 (33 U.S.C. 1344(b) and 1361(a)).

0
14. Section 230.3 is amended by:
0
a. Redesignating paragraph (o) as paragraph (s).
0
b. Revising newly redesignated paragraph (s).
0
c. Redesignating paragraph (n) as paragraph (r).
0
d. Redesignating paragraph (m) as paragraph (q-1).
0
e. Redesignating paragraphs (h) through (l) as paragraphs (m) through
(q).
0
f. Redesignating paragraphs (e) and (f) as paragraphs (h) and (i).
0
g. Redesignating paragraph (g) as paragraph (k).
0
h. Redesignating paragraphs (b) through (d) as paragraphs (c) through
(e).
0
i. Adding reserved paragraphs (f), (g), (j), and (l).
0
j. Adding paragraphs (b) and (t).
    The revision and additions read as follows:

Sec.  230.3  Definitions.

* * * * *
    (b) The term adjacent means bordering, contiguous, or neighboring.
Wetlands separated from other waters of the United States by man-made
dikes or barriers, natural river berms, beach dunes, and the like are
``adjacent wetlands.''
* * * * *
    (s) The term waters of the United States means:
    (1) All waters which are currently used, or were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the tide;
    (2) All interstate waters including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters:

    (i) Which are or could be used by interstate or foreign travelers
for recreational or other purposes; or
    (ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
    (iii) Which are used or could be used for industrial purposes by
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as waters of the
United States under this definition;
    (5) Tributaries of waters identified in paragraphs (s)(1) through
(4) of this section;
    (6) The territorial sea;
    (7) Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (s)(1) through (6) of
this section; waste treatment systems, including treatment ponds or
lagoons designed to meet the requirements of CWA (other than cooling
ponds as defined in 40 CFR 423.11(m) which also meet the criteria of
this definition) are not waters of the United States.
    Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
    (t) The term wetlands means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in saturated soil
conditions. Wetlands generally include swamps, marshes, bogs and
similar areas.

PART 232--404 PROGRAMS DEFINITIONS; EXEMPT ACTIVITIES NOT REQUIRING
404 PERMITS

0
15. The authority citation for part 232 is revised to read as follows:

    Authority: 33 U.S.C. 1344.

0
16. Section 232.2 is amended by revising the definition of ``Waters of
the United States'' and adding the definition of ``Wetlands'' to read
as follows:

Sec.  232.2  Definitions.

* * * * *
    Waters of the United States means:
    All waters which are currently used, were used in the past, or may
be susceptible to us in interstate or foreign commerce, including all
waters which are subject to the ebb and flow of the tide.
    All interstate waters including interstate wetlands.
    All other waters, such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation, or destruction of which would or could affect
interstate or foreign commerce including any such waters:
    Which are or could be used by interstate or foreign travelers for
recreational or other purposes; or
    From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
    Which are used or could be used for industrial purposes by
industries in interstate commerce.
    All impoundments of waters otherwise defined as waters of the
United States under this definition;
    Tributaries of waters identified in paragraphs (g)(1)-(4) of this
section;
    The territorial sea; and
    Wetlands adjacent to waters (other than waters that are themselves
wetlands) identified in paragraphs (q)(1)-(6) of this section.
    Waste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of the Act (other than cooling ponds
as defined in 40 CFR 123.11(m) which also meet the criteria of this
definition) are not waters of the United States.
    Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
    Wetlands means those areas that are inundated or saturated by
surface or ground water at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.

PART 300--NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION
CONTINGENCY PLAN

0
17. The authority citation for part 300 is revised to read as follows:

    Authority:  33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
13626, 77 FR 56749, 3 CFR, 2013 Comp., p.306; E.O. 12777, 56 FR
54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987
Comp., p.193.

0
18. Section 300.5 is amended by revising the definition of ``Navigable
waters'' to read as follows:

Sec.  300.5  Definitions.

* * * * *
    Navigable waters as defined by 40 CFR 110.1, means the waters of
the United States, including the territorial seas. The term includes:
    (1) All waters that are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters that are subject to the ebb and flow of the tide;
    (2) Interstate waters, including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, and wetlands,
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters;
    (i) That are or could be used by interstate or foreign travelers
for recreational or other purposes;
    (ii) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce;
    (iii) That are used or could be used for industrial purposes by
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as navigable
waters under this section;
    (5) Tributaries of waters identified in paragraphs (a) through (d)
of this definition, including adjacent wetlands; and
    (6) Wetlands adjacent to waters identified in paragraphs (a)
through (e) of this definition: Provided, that waste treatment systems
(other than cooling ponds meeting the criteria of this paragraph) are
not waters of the United States.
    (7) Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
* * * * *

0
19. In appendix E to part 300, section 1.5 is amended by revising the
definition of ``Navigable waters'' to read as follows:

Appendix E to Part 300--Oil Spill Response

* * * * *

1.5 Definitions. * * *

    Navigable waters as defined by 40 CFR 110.1 means the waters of the
United States, including the territorial seas. The term includes:
    (a) All waters that are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters that are subject to the ebb and flow of the tide;
    (b) Interstate waters, including interstate wetlands;
    (c) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, and wetlands,
the use, degradation, or destruction of which would affect or could
affect interstate or foreign commerce including any such waters:
    (1) That are or could be used by interstate or foreign travelers
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; and
    (3) That are used or could be used for industrial purposes by
industries in interstate commerce.
    (d) All impoundments of waters otherwise defined as navigable
waters under this section;
    (e) Tributaries of waters identified in paragraphs (a) through (d)
of this definition, including adjacent wetlands; and
    (f) Wetlands adjacent to waters identified in paragraphs (a)
through (e) of this definition: Provided, that waste treatment systems
(other than cooling ponds meeting the criteria of this paragraph) are
not waters of the United States.
    (g) Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
* * * * *

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

0
20. The authority citation for part 302 continues to read as follows:

    Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and
1361.

0
21. Section 302.3 is amended by revising the definition of ``Navigable
waters'' to read as follows:

Sec.  302.3  Definitions.

* * * * *
    Navigable waters or navigable waters of the United States means
waters of the United States, including the territorial seas;
* * * * *

PART 401--GENERAL PROVISIONS

0
22. The authority citation for part 401 is revised to read as follows:

    Authority: Secs. 301, 304 (b) and (c), 306 (b) and (c), 307 (b)
and (c) and 316(b) of the Federal Water Pollution Control Act, as
amended (the ``Act''), 33 U.S.C. 1251, 1311, 1314 (b) and (c), 1316
(b) and (c), 1317 (b) and (c) and 1326(c); 86 Stat. 816 et seq.;
Pub. L. 92-500.

0
23. Section 401.11 is amended by revising paragraph (l) to read as
follows:

Sec.  401.11   General definitions.

* * * * *
    (l) The term navigable waters includes: 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. Navigable waters do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
* * * * *
[FR Doc. 2019-20550 Filed 10-21-19; 8:45 am]
 BILLING CODE 6560-50-P