[Federal Register Volume 85, Number 77 (Tuesday, April 21, 2020)]
[Rules and Regulations]
[Pages 22250-22342]
[FR Doc No: 2020-02500]

Vol. 85

Tuesday,

No. 77

April 21, 2020

Part II

Department of Defense

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Department of the Army, Corps of Engineers

Environmental Protection Agency

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33 CFR Part 328

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

The Navigable Waters Protection Rule: Definition of ``Waters of the
United States''; Final Rule

Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules
and Regulations

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 110, 112, 116, 117, 120, 122, 230, 232, 300, 302, and
401

[EPA-HQ-OW-2018-0149; FRL-10004-88-OW]
RIN 2040-AF75

The Navigable Waters Protection Rule: Definition of ``Waters of
the United States''

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

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency and the Department of the
Army are publishing a final rule defining the scope of waters federally
regulated under the Clean Water Act. The Navigable Waters Protection
Rule is the second step in a comprehensive, two-step process intended
to review and revise the definition of ``waters of the United States''
consistent with the Executive Order signed on February 28, 2017,
``Restoring the Rule of Law, Federalism, and Economic Growth by
Reviewing the `Waters of the United States' Rule.'' Once effective, it
replaces the rule published on October 22, 2019. This final rule
implements the overall objective of the Clean Water Act to restore and
maintain the integrity of the nation's waters by maintaining federal
authority over those waters that Congress determined should be
regulated by the Federal government under its Commerce Clause powers,
while adhering to Congress' policy directive to preserve States'
primary authority over land and water resources. This final definition
increases the predictability and consistency of Clean Water Act
programs by clarifying the scope of ``waters of the United States''
federally regulated under the Act.

DATES: This rule is effective on June 22, 2020.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2018-0149. All documents in the docket are
listed on the http://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through http://www.regulations.gov.

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

Table of Contents

I. General Information
    A. Where can I find information related to this rulemaking?
    B. What action are the agencies taking?
    C. What is the agencies' authority for taking this action?
II. Background
    A. The Final Rule
    B. History of This Rulemaking
    1. The Clean Water Act
    2. Regulatory History
    3. U.S. Supreme Court Decisions
    4. The 2015 Rule
    C. Executive Order 13778 and the ``Step One'' Rulemaking
    D. Summary of Stakeholder Outreach and the ``Step Two''
Rulemaking
    E. Overview of Legal Construct for the Final Rule
    1. Statutory Framework
    2. U.S. Supreme Court Precedent
    3. Principles and Considerations
    F. Summary of Final Rule as Compared to the 1986 Regulations
Recodified in the 2019 Rule and the 2015 Rule
    G. Existing Guidance
III. Definition of ``Waters of the United States''
    A. Key Terms and Concepts
    1. Typical Year
    2. Perennial, Intermittent, and Ephemeral
    3. Breaks
    B. Territorial Seas and Traditional Navigable Waters
    C. Interstate Waters
    D. Tributaries
    E. Ditches
    F. Lakes and Ponds, and Impoundments of Jurisdictional Waters
    G. Adjacent Wetlands
    H. Waters and Features That Are Not Waters of the United States
    I. Placement of the Definition of ``Waters of the United
States'' in the Code of Federal Regulations
IV. State, Tribal, and Federal Agency Datasets of Waters of the
United States
V. Overview of the Effects of the Rule and Supporting Analyses
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    L. Congressional Review Act

I. General Information

A. Where can I find information related to this rulemaking?

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

EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not all docket materials may
be available electronically, you may still access any of the publicly
available docket materials through the Docket Facility.

B. What action are the agencies taking?

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

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

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

II. Background

A. The Final Rule

    The U.S. Environmental Protection Agency (EPA) and the U.S.
Department of the Army (Army or Corps) (together, ``the agencies'') are
publishing the Navigable Waters Protection Rule defining the scope of
waters subject to federal regulation under the Clean Water Act (CWA or
the Act), in light of the U.S. Supreme Court cases in United States v.
Riverside Bayview Homes (Riverside Bayview), Solid Waste Agency of
Northern Cook County v. United States (SWANCC), and Rapanos v. United
States (Rapanos), and consistent with Executive Order 13778, signed on
February 28, 2017, entitled ``Restoring the Rule of Law, Federalism,
and Economic Growth by Reviewing the `Waters of the United States'
Rule.''
    In this final rule, the agencies interpret the term ``waters of the
United States'' to encompass: The territorial seas and traditional
navigable waters; perennial and intermittent tributaries that
contribute surface water flow to such waters; certain lakes, ponds, and
impoundments of jurisdictional waters; and wetlands adjacent to other
jurisdictional waters. Paragraph (a) of the final rule identifies four
categories of waters that are ``waters of the United States.'' These
waters are referred to as ``jurisdictional'' in this notice and in the
regulatory text. Paragraph (b) of the final rule identifies those
waters and features that are excluded from the definition of ``waters
of the United States.'' These waters are referred to as ``non-
jurisdictional'' or ``excluded'' in this notice and as ``non-
jurisdictional'' in the regulatory text. Paragraph (c) of the final
rule defines applicable terms.
    As a baseline concept, this final rule recognizes that waters of
the United States are waters within the ordinary meaning of the term,
such as oceans, rivers, streams, lakes, ponds, and wetlands, and that
not all waters are waters of the United States. The final rule includes
the agencies' longstanding category of the territorial seas and
traditional navigable waters. A ``tributary'' is defined in the final
rule as a river, stream, or similar naturally occurring surface water
channel that contributes surface water flow to a territorial sea or
traditional navigable water in a typical year either directly or
indirectly through other tributaries, jurisdictional lakes, ponds, or
impoundments, or adjacent wetlands. A tributary must be perennial or
intermittent in a typical year. The alteration or relocation of a
tributary does not modify its jurisdictional status as long as it
continues to be perennial or intermittent and contributes surface water
flow to a traditional navigable water or territorial sea in a typical
year. A tributary does not lose its jurisdictional status if it
contributes surface water flow to a downstream jurisdictional water in
a typical year through a channelized non-jurisdictional surface water
feature, through a subterranean river, through a culvert, dam, tunnel,
or other similar artificial feature, or through a debris pile, boulder
field, or similar natural feature. The term ``tributary'' includes a
ditch that either relocates a tributary, is constructed in a tributary,
or is constructed in an adjacent wetland as long as the ditch is
perennial or intermittent and contributes surface water flow to a
traditional navigable water or territorial sea in a typical year.
    The final rule defines ``lakes and ponds, and impoundments of
jurisdictional waters'' as standing bodies of open water that
contribute surface water flow in a typical year to a territorial sea or
traditional navigable water either directly or through a tributary,
another jurisdictional lake, pond, or impoundment, or an adjacent
wetland. The agencies note that to be jurisdictional, an ``impoundment
of a jurisdictional water'' must be an impoundment of a territorial sea
or traditional navigable water, tributary, jurisdictional lake or pond,
or an adjacent wetland, and must meet the conditions in paragraph
(c)(6) of the final rule. A lake, pond, or impoundment of a
jurisdictional water does not lose its jurisdictional status if it
contributes surface water flow to a downstream jurisdictional water in
a typical year through a channelized non-jurisdictional surface water
feature, through a culvert, dike, spillway, or similar artificial
feature, or through a debris pile, boulder field, or similar natural
feature. A lake, pond, or impoundment of a jurisdictional water is also
jurisdictional if, in a typical year, it is inundated by flooding from
a territorial sea or traditional navigable water, or tributary, or from
another jurisdictional lake, pond, or impoundment.
    The final rule defines ``adjacent wetlands'' as wetlands that abut
a territorial sea or traditional navigable water, a tributary, or a
lake, pond, or impoundment of a jurisdictional water; are inundated by
flooding from a territorial sea or traditional navigable water, a
tributary, or a lake, pond, or impoundment of a jurisdictional water in
a typical year; are physically separated from a territorial sea or
traditional navigable water, a tributary, or a lake, pond, or
impoundment of a jurisdictional water only by a natural berm, bank,
dune, or similar natural feature; or are physically separated from a
territorial sea or traditional navigable water, a tributary, or a lake,
pond, or impoundment of a jurisdictional water only by an artificial
dike, barrier, or similar artificial structure so long as that
structure allows for a direct hydrological surface connection to the
territorial sea or traditional navigable water, tributary, or lake,
pond, or impoundment of a jurisdictional water in a typical year, such
as through a culvert, flood or tide gate, pump, or similar artificial
feature. ``Abut'' means when a wetland touches a territorial sea,
traditional navigable water, tributary, or lake, pond, or impoundment
of a jurisdictional water at least at one point or side. An adjacent
wetland is jurisdictional in its entirety when a road or similar
artificial structure divides the wetland, as long as the structure
allows for a direct hydrologic surface connection through or over that
structure in a typical year.
    The final rule excludes from the definition of ``waters of the
United States'' all waters or features not mentioned above. In addition
to this general exclusion, the final rule specifically clarifies that
waters of the United States do not include the following:
     Groundwater, including groundwater drained through
subsurface drainage systems;
     ephemeral features that flow only in direct response to
precipitation, including ephemeral streams, swales, gullies, rills, and
pools;
     diffuse stormwater runoff and directional sheet flow over
upland;
     ditches that are not traditional navigable waters,
tributaries, or that are

not constructed in adjacent wetlands, subject to certain limitations;
     prior converted cropland;
     artificially irrigated areas that would revert to upland
if artificial irrigation ceases;
     artificial lakes and ponds that are not jurisdictional
impoundments and that are constructed or excavated in upland or non-
jurisdictional waters;
     water-filled depressions constructed or excavated in
upland or in non-jurisdictional waters incidental to mining or
construction activity, and pits excavated in upland or in non-
jurisdictional waters for the purpose of obtaining fill, sand, or
gravel;
     stormwater control features constructed or excavated in
upland or in non-jurisdictional waters to convey, treat, infiltrate, or
store stormwater run-off;
     groundwater recharge, water reuse, and wastewater
recycling structures constructed or excavated in upland or in non-
jurisdictional waters; and
     waste treatment systems.
    In addition, the agencies have defined the terms ``upland,''
``prior converted cropland,'' and ``waste treatment system'' to improve
regulatory predictability and clarity.
    To develop this revised definition of ``waters of the United
States,'' the agencies looked to the text and structure of the CWA, as
informed by its legislative history and Supreme Court guidance, and
took into account the agencies' expertise, policy choices, and
scientific principles. This final rule presents a unifying legal theory
for federal jurisdiction over those waters and wetlands that maintain a
sufficient surface water connection to traditional navigable waters or
the territorial seas. This definition strikes a reasonable and
appropriate balance between Federal and State waters and carries out
Congress' overall objective to restore and maintain the integrity of
the nation's waters in a manner that preserves the traditional
sovereignty of States over their own land and water resources. The
final rule also provides clarity and predictability for Federal
agencies, States, Tribes, the regulated community, and the public. This
final rule is intended to ensure that the agencies operate within the
scope of the Federal government's authority over navigable waters under
the CWA and the Commerce Clause of the U.S. Constitution.

B. History of This Rulemaking

1. The Clean Water Act
    Congress amended the Federal Water Pollution Control Act (FWPCA),
or the CWA as it is commonly called,\1\ in 1972 to address longstanding
concerns regarding the quality of the nation's waters and the federal
government's ability to address those concerns under existing law.
Prior to 1972, the ability to control and redress water pollution in
the nation's waters largely fell to the Corps under the Rivers and
Harbors Act of 1899 (RHA). While much of that statute focused on
restricting obstructions to navigation on the nation's major waterways,
section 13 of the RHA made it unlawful to discharge refuse ``into any
navigable water of the United States, or into any tributary of any
navigable water from which the same shall float or be washed into such
navigable water.'' \2\ 33 U.S.C. 407. Congress had also enacted the
Water Pollution Control Act of 1948, Public Law 80-845, 62 Stat. 1155
(June 30, 1948), to address interstate water pollution, and
subsequently amended that statute in 1956 (giving the statute its
current formal name), 1961, and 1965. The early versions of the CWA
promoted the development of pollution abatement programs, required
States to develop water quality standards, and authorized the Federal
government to bring enforcement actions to abate water pollution.
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    \1\ The FWPCA is commonly referred to as the CWA following the
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566
(1977). For ease of reference, the agencies will generally refer to
the FWPCA in this notice as the CWA or the Act.
    \2\ The term ``navigable water of the United States'' is a term
of art used to refer to waters subject to federal jurisdiction under
the RHA. See, e.g., 33 CFR 329.1. The term is not synonymous with
the phrase ``waters of the United States'' under the CWA, see id.,
and the general term ``navigable waters'' has different meanings
depending on the context of the statute in which it is used. See,
e.g., PPL Montana, LLC v. Montana, 565 U.S. 576, 591-93 (2012).
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    These early statutory efforts, however, proved inadequate to
address the decline in the quality of the nation's waters, see City of
Milwaukee v. Illinois, 451 U.S. 304, 310 (1981), so Congress performed
a ``total restructuring'' and ``complete rewriting'' of the existing
statutory framework in 1972, id. at 317 (quoting legislative history of
1972 amendments). That restructuring resulted in the enactment of a
comprehensive scheme (including voluntary as well as regulatory
programs) designed to prevent, reduce, and eliminate pollution in the
nation's waters generally, and to regulate the discharge of pollutants
into navigable waters specifically. See, e.g., S.D. Warren Co. v. Maine
Bd. of Envtl. Prot., 547 U.S. 370, 385 (2006) (noting that ``the Act
does not stop at controlling the `addition of pollutants,' but deals
with `pollution' generally'').
    The objective of the new statutory scheme was ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' 33 U.S.C. 1251(a). In order to meet that objective,
Congress declared two national goals: (1) ``that the discharge of
pollutants into the navigable waters be eliminated by 1985''; and (2)
``that wherever attainable, an interim goal of water quality which
provides for the protection and propagation of fish, shellfish, and
wildlife and provides for recreation in and on the water be achieved by
July 1, 1983 . . . .'' Id. at 1251(a)(1)-(2).
    Congress also established several key policies that direct the work
of the agencies to effectuate those goals. For example, Congress
declared as a national policy ``that the discharge of toxic pollutants
in toxic amounts be prohibited; . . . that Federal financial assistance
be provided to construct publicly owned waste treatment works; . . .
that areawide waste treatment management planning processes be
developed and implemented to assure adequate control of sources of
pollutants in each State; . . . [and] that programs for the control of
nonpoint sources of pollution be developed and implemented in an
expeditious manner so as to enable the goals of this Act to be met
through the control of both point and nonpoint sources of pollution.''
33 U.S.C. 1251(a)(3)-(7).
    Congress provided a major role for the States in implementing the
CWA, balancing the preservation of the traditional power of States to
regulate land and water resources within their borders with the need
for a national water quality regulation. For example, the statute
highlighted ``the policy of the Congress to recognize, preserve, and
protect the primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution'' and ``to plan the development and use
. . . of land and water resources.'' 33 U.S.C. 1251(b). Congress also
declared as a national policy that States manage the major construction
grant program and implement the core permitting programs authorized by
the statute, among other responsibilities. Id. Congress added that
``[e]xcept as expressly provided in this Act, nothing in this Act shall
. . . be construed as impairing or in any manner affecting any right or
jurisdiction of the States with respect to the waters (including
boundary waters) of such States.'' Id. at 1370.\3\ Congress

pledged the Federal government to provide technical support and
financial aid to the States ``in connection with the prevention,
reduction, and elimination of pollution.'' Id. at 1251(b).
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    \3\ 33 U.S.C. 1370 also prohibits authorized States from
adopting any limitations, prohibitions, or standards that are less
stringent than required by the CWA.
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    To carry out these policies, Congress broadly defined ``pollution''
to mean ``the man-made or man-induced alteration of the chemical,
physical, biological, and radiological integrity of water,'' 33 U.S.C.
1362(19), in keeping with the objective of the Act ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Id. at 1251(a). Congress then crafted a non-
regulatory statutory framework to provide technical and financial
assistance to the States to prevent, reduce, and eliminate pollution in
the nation's waters generally. For example, section 105 of the Act,
``Grants for research and development,'' authorized the EPA ``to make
grants to any State, municipality, or intermunicipal or interstate
agency for the purpose of assisting in the development of any project
which will demonstrate a new or improved method of preventing,
reducing, and eliminating the discharge into any waters of pollutants
from sewers which carry storm water or both storm water and
pollutants.'' Id. at 1255(a)(1) (emphasis added). Section 105 also
authorized the EPA ``to make grants to any State or States or
interstate agency to demonstrate, in river basins or portions thereof,
advanced treatment and environmental enhancement techniques to control
pollution from all sources . . . including nonpoint sources, . . .
[and] . . . to carry out the purposes of section 301 of this Act . . .
for research and demonstration projects for prevention of pollution of
any waters by industry including, but not limited to, the prevention,
reduction, and elimination of the discharge of pollutants.'' Id. at
1255(b)-(c) (emphasis added); see also id. at 1256(a) (authorizing the
EPA to issue ``grants to States and to interstate agencies to assist
them in administering programs for the prevention, reduction, and
elimination of pollution'').
    Section 108, ``Pollution control in the Great Lakes,'' authorized
the EPA to enter into agreements with any State to develop plans for
the ``elimination or control of pollution, within all or any part of
the watersheds of the Great Lakes.'' 33 U.S.C. 1258(a) (emphasis
added); see also id. at 1268(a)(3)(C) (defining the ``Great Lakes
System'' as ``all the streams, rivers, lakes, and other bodies of water
within the drainage basin of the Great Lakes'') (emphasis added).
Similar broad pollution control programs were created for other major
watersheds, including, for example, the Chesapeake Bay, see id. at
1267(a)(3), Long Island Sound, see id. at 1269(c)(2)(D), and Lake
Champlain, see id. at 1270(g)(2). Some commenters noted that the Great
Lakes, Long Island Sound, Chesapeake Bay, and Lake Champlain are waters
of the United States to which regulatory programs apply, and that the
purpose of the technical assistance and grants in the cited sections is
to assist states and others in achieving the requirements of the Act.
The agencies agree that these waters are waters of the United States,
but the emphasized language in the cited provisions above makes clear
that these provisions address all bodies of water in the watersheds of
the Great Lakes, Long Island Sound, Chesapeake Bay, and Lake Champlain,
regardless of the jurisdictional status of those waters.
    In addition to the Act's non-regulatory measures to control
pollution of the nation's waters generally, Congress created a federal
regulatory permitting program designed to address the discharge of
pollutants into a subset of those waters identified as ``navigable
waters,'' defined as ``the waters of the United States,'' 33 U.S.C.
1362(7). Section 301 contains the key regulatory mechanism: ``Except as
in compliance with this section and sections 302, 306, 307, 318, 402,
and 404 of this Act, the discharge of any pollutant by any person shall
be unlawful.'' Id. at 1311(a). A ``discharge of a pollutant'' is
defined to include ``any addition of any pollutant to navigable waters
from any point source,'' defined to mean ``any discernible, confined
and discrete conveyance'' such as a pipe or ditch. Id. at 1362(12),
(14). The term ``pollutant'' means ``dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water.'' Id. at
1362(6). Thus, it is unlawful to discharge pollutants into the ``waters
of the United States'' from a point source unless the discharge is in
compliance with certain enumerated sections of the CWA, including
obtaining authorization pursuant to the section 402 National Pollutant
Discharge Elimination System (NPDES) permit program or the section 404
dredged or fill material permit program. See id. at 1342, 1344.
Congress therefore intended to achieve the Act's objective ``to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters'' by addressing pollution of all waters via non-
regulatory means and federally regulating the discharge of pollutants
to the subset of waters identified as ``navigable waters.'' \4\
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    \4\ Members of Congress were aware when they drafted the 1972
CWA amendments that different types of the Nation's waters would be
subject to different degrees of federal control. For instance, in
House debate regarding a proposed and ultimately failed amendment to
prohibit the discharge of pollutants to groundwater in addition to
navigable waters, Representative Don H. Clausen stated, ``Mr.
Chairman, in the early deliberations within the committee which
resulted in the introduction of H.R. 11896, a provision for ground
waters . . . was thoroughly reviewed and it was determined by the
committee that there was not sufficient information on ground waters
to justify the types of controls that are required for navigable
waters . . . . I refer the gentleman to the objectives of this act
as stated in section 101(a). The objective of this act is to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters. I call your attention to the fact that this does
not say the Nation's [`]navigable waters,' `interstate waters,' or
`intrastate waters.' It just says `waters.' This includes ground
waters.'' 118 Cong. Rec. at 10,667 (daily ed. March 28, 1972).
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    Many commenters on this rulemaking agreed with this summary of the
CWA, stating that it accurately characterizes the full scope of the Act
and the thoughtful, holistic approach Congress enacted to address water
pollution in this country. Many commenters stated that Congress
developed both regulatory and non-regulatory approaches for addressing
water pollution, whereby ``navigable waters'' are subject to federal
regulatory requirements under the CWA but many other classes of the
``nation's waters'' are not. Some commenters disagreed that the CWA
distinguishes between the ``nation's waters'' and a subset of those
waters known as the ``navigable waters.'' Many of these commenters
suggested that the agencies' interpretation is not supported by the
text or structure of the Act and is based instead on
mischaracterizations of the Act's provisions. Some commenters argued
that the two terms are synonymous under the Act, and others stated that
the non-regulatory provisions of the CWA were intended to complement
the regulatory requirements applicable to waters of the United States,
as opposed to addressing a separate category of waters. Fundamental
principles of statutory interpretation support the agencies'
recognition of a distinction between the ``nation's waters'' and
``navigable waters.'' As the Supreme Court has observed, ``[w]e assume
that Congress used two terms because it intended each term to have a
particular, nonsuperfluous meaning.'' Bailey v. United States, 516 U.S.
137, 146 (1995)

(recognizing the canon of statutory construction against superfluity).
Further, ``the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.'' FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal
quotation marks and citation omitted); see also United Sav. Ass'n of
Texas v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371
(``Statutory construction . . . is a holistic endeavor. A provision
that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme--because the same terminology is used
elsewhere in a context that makes its meaning clear[.]'') (citation
omitted). Here, the non-regulatory sections of the CWA reveal Congress'
intent to restore and maintain the integrity of the nation's waters
using federal assistance to support State and local partnerships to
control pollution in the nation's waters and a federal regulatory
prohibition on the discharge of pollutants to the navigable waters. If
Congress had intended the terms to be synonymous, it would have used
identical terminology. Instead, Congress chose to use separate terms,
and the agencies are instructed by the Supreme Court to presume
Congress did so intentionally.
    Under the enacted statutory scheme, the States are primarily
responsible for developing water quality standards for waters of the
United States within their borders and reporting on the condition of
those waters to the EPA every two years. 33 U.S.C. 1313, 1315. States
must develop total maximum daily loads (TMDLs) for waters that are not
meeting established water quality standards and must submit those TMDLs
to the EPA for approval. Id. at 1313(d). States also have authority to
issue water quality certifications or waive certification for every
federal permit or license issued within their borders that may result
in a discharge to navigable waters. Id. at 1341.
    These same regulatory authorities can be assumed by Indian tribes
under section 518 of the CWA, which authorizes the EPA to treat
eligible Indian tribes with reservations in a manner similar to States
for a variety of purposes, including administering each of the
principal CWA regulatory programs. 33 U.S.C. 1377(e). In addition,
States and Tribes retain authority to protect and manage the use of
those waters that are not navigable waters under the CWA. See, e.g.,
id. at 1251(b), 1251(g), 1370, 1377(a). At this time, forty-seven
States administer portions of the CWA section 402 permit program for
those waters of the United States within their boundaries,\5\ and two
States (Michigan and New Jersey) administer the section 404 permit
program for those waters that are assumable by States pursuant to
section 404(g). Several additional states are exploring the possibility
of assuming the section 404 permit program. At present, no Tribes
administer the section 402 or 404 programs, although some are exploring
the possibility. For additional information regarding State and tribal
programs, see the Resource and Programmatic Assessment for the final
rule.
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    \5\ Three States (Massachusetts, New Hampshire, and New Mexico)
do not currently administer any part of the CWA section 402 program.
---------------------------------------------------------------------------

2. Regulatory History
    In May 1973, the EPA issued its first set of regulations to
implement the new NPDES permit program established in the 1972 CWA
amendments. Those regulations defined the phrase ``navigable waters''
as:
     All navigable waters of the United States;
     Tributaries of navigable waters of the United States;
     Interstate waters;
     Intrastate lakes, rivers, and streams which are utilized
by interstate travelers for recreational or other purposes;
     Intrastate lakes, rivers, and streams from which fish or
shellfish are taken and sold in interstate commerce; and
     Intrastate lakes, rivers, and streams which are utilized
for industrial purposes by industries in interstate commerce.
38 FR 13528, 13529 (May 22, 1973) (codified at 40 CFR 125.1 (1973)).

    In 1974, the Corps issued its first set of regulations defining
``waters of the United States'' for the purpose of implementing section
404 of the CWA as well as sections 9, 10, 11, 13, and 14 of the RHA.
These regulations reaffirmed the Corps' view that its dredged and fill
jurisdiction under section 404 was the same as its traditional
jurisdiction under the RHA. See 39 FR 12115, 12119 (Apr. 3, 1974)
(codified at 33 CFR 209.120). Specifically, the Corps defined the
``waters of the United States'' as waters that ``are subject to the ebb
and flow of the tide, and/or are presently, or have been in the past,
or may be in the future susceptible for use for purposes of interstate
or foreign commerce.'' Id.
    Environmental organizations challenged the Corps' 1974 regulation
in the U.S. District Court for the District of Columbia, arguing that
the Corps' definition of ``navigable waters'' was inadequate because it
did not include tributaries or coastal marshes above the mean high tide
mark or wetlands above the ordinary high water mark. The District Court
held that the term ``navigable waters'' is not limited to the
traditional tests of navigability and ordered the Corps to revoke its
definition and publish a new one ``clearly recognizing the full
regulatory mandate of the Water Act.'' Natural Resources Defense
Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
    In response to this decision, the Corps issued interim regulations
in 1975 that defined the term ``navigable waters'' to include
periodically inundated coastal wetlands contiguous with or adjacent to
navigable waters, periodically inundated freshwater wetlands contiguous
with or adjacent to navigable waters, and, as in the EPA's 1973
regulations, certain intrastate waters based on non-transportation
impacts on interstate commerce. The Corps revised the definition in
1977 to encompass traditional navigable waters, tributaries to
navigable waters, interstate waters, adjacent wetlands to those
categories of waters, and ``[a]ll other waters'' the ``degradation or
destruction of which could affect interstate commerce.'' 42 FR 37122,
37144 (Jul. 19, 1977).
    The EPA and the Corps have maintained separate regulations defining
the statutory term ``waters of the United States,'' but the text of the
regulations has been virtually identical starting in 1986.\6\ In 1986,
for example, the Corps consolidated and recodified its regulations to
align with clarifications that the EPA had previously promulgated. See
51 FR 41206 (Nov. 13, 1986). While the Corps stated in 1986 that the
recodified regulation neither reduced nor expanded jurisdiction, its
previous exclusion for ditches was moved from the regulatory text to
the final rule preamble. Id. at 41216-17. And the Corps added to the
preamble what later became known as the ``Migratory Bird Rule,'' which
claimed jurisdiction over any waters which are or may be used by birds
protected by migratory bird treaties, waters which may be used as
habitat for birds flying across state lines, waters which may be used
by endangered species, and waters used to

irrigate crops sold in interstate commerce. Id. at 41217.
---------------------------------------------------------------------------

    \6\ For convenience, the agencies generally refer to the Corps'
regulations throughout this notice at 33 CFR 328.3. The EPA's
codification of the definition of ``waters of the United States'' is
found at 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 230.3, 232.2,
300.5, 302.3, 401.11, and Appendix E to Part 300. This final rule
also codifies the definition of ``waters of the United States'' in a
new section 120.2.
---------------------------------------------------------------------------

    The 1986 regulatory text identified the following as waters of the
United States:
     All traditional navigable waters,\7\ interstate waters,
and the territorial seas;
---------------------------------------------------------------------------

    \7\ ``Traditional navigable waters'' (or waters that are
traditionally understood as navigable) refers to all waters which
are currently used, were used in the past, or may be susceptible to
use in interstate or foreign commerce, including all waters subject
to the ebb and flow of the tide.
---------------------------------------------------------------------------

     All impoundments of jurisdictional waters;
     All ``other waters'' such as lakes, ponds, and sloughs the
``use, degradation or destruction of which could affect interstate or
foreign commerce'';
     Tributaries of traditional navigable waters, interstate
waters, impoundments, or ``other waters''; and,
     Wetlands adjacent to traditional navigable waters,
interstate waters, the territorial seas, impoundments, tributaries, or
``other waters'' (other than waters that are themselves wetlands).

33 CFR 328.3(a)(1)-(7) (1987). The 1986 regulation also excluded
``waste treatment systems'' from the definition of ``waters of the
United States,'' consistent with the EPA's regulatory definition. Id.
at 328.3 (a)(7), (b) (1987); see also 44 FR 32854 (June 7, 1979).
    On August 25, 1993, the agencies amended the regulatory definition
of ``waters of the United States'' to categorically exclude ``prior
converted croplands.'' 58 FR 45008, 45031 (Aug. 25, 1993) (``1993
Rule'') (codified at 33 CFR 328.3(a)(8) (1994)). The stated purpose of
the amendment was to promote ``consistency among various federal
programs affecting wetlands,'' in particular the Food Security Act of
1985 (FSA) programs implemented by the U.S. Department of Agriculture
(USDA) and the CWA programs implemented by the agencies.\8\ 58 FR
45031. The agencies did not include a definition of ``prior converted
cropland'' in the text of the Code of Federal Regulations but noted in
the preamble to the 1993 Rule that the term was defined at that time by
the USDA National Food Security Act Manual (NFSAM). Id. The agencies at
that time also declined to establish regulatory text specifying when
the prior converted cropland designation is no longer applicable. In
the preamble to the 1993 Rule, the agencies stated that ``[t]he Corps
and EPA will use the [Natural Resources Conservation Service's]
provisions on `abandonment,' thereby ensuring that PC cropland that is
abandoned within the meaning of those provisions and which exhibit[s]
wetlands characteristics will be considered wetlands subject to Section
404 regulation.'' Id. at 45034. The agencies summarized these
abandonment provisions by explaining that prior converted cropland
which meets wetland criteria is considered to be abandoned unless: At
least once in every five years the area has been used for the
production of an agricultural commodity, or the area has been used and
will continue to be used for the production of an agricultural
commodity in a commonly used rotation with aquaculture, grasses,
legumes, or pasture production. Id.
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    \8\ Title XII of the Food Security Act of 1985, as amended,
encourages participants in USDA programs to adopt land management
measures by linking eligibility for USDA program benefits to farming
practices on highly erodible land and wetlands (i.e., the wetland
conservation provisions). USDA policy guidance regarding
implementation of the wetland conservation provisions is found in
the current edition of the Natural Resource Conservation Service
National Food Security Act Manual (NFSAM), including the procedures
for how to delineate wetlands and make wetland determinations in
accordance with Subpart C of 7 CFR part 12. Due to the unique
statutory provisions of the FSA, USDA wetland determinations may
identify certain areas as exempt under the 1985 Act but remain
subject to the requirements of the CWA. To avoid potential
confusion, USDA clearly informs program participants that USDA
wetland determinations are for purposes of implementing the wetland
conservation provisions only, and that participants should contact
the Corps for clarification as to whether a particular activity will
require a CWA section 404 permit.
---------------------------------------------------------------------------

    Congress amended the FSA wetland conservation provisions in 1996 to
state that USDA certifications of eligibility for program benefits
(e.g., determinations by the Natural Resources Conservation Service
(NRCS) that particular areas constitute prior converted cropland)
``shall remain valid and in effect as long as the area is devoted to an
agricultural use or until such time as the person affected by the
certification requests review of the certification by the Secretary [of
Agriculture].'' Public Law 104-127, 322(a)(4), 110 Stat. 888 (1996); 16
U.S.C. 3822(a)(4). Thus, for purposes of farm program eligibility, the
1996 amendments designate as prior converted cropland those areas that
may not have qualified for the CWA exclusion under the abandonment
principles from the 1993 preamble, so long as such areas remain in
agricultural use. The agencies did not update their prior converted
cropland regulations for purposes of the CWA following the 1996
amendments to wetland conservation provisions of the FSA, as those
regulations neither defined prior converted cropland nor specified when
a valid prior converted cropland determination might cease to be valid.
However, in 2005, the Army and USDA issued a joint Memorandum to the
Field (the 2005 Memorandum) in an effort to again align the CWA section
404 program with the FSA amendments.\9\ The 2005 Memorandum provided
that a ``certified [prior converted] determination made by [USDA]
remains valid as long as the area is devoted to an agricultural use. If
the land changes to a non-agricultural use, the [prior converted]
determination is no longer applicable and a new wetland determination
is required for CWA purposes.'' 2005 Memorandum at 4.
---------------------------------------------------------------------------

    \9\ Natural Resources Conservation Service and U.S. Army Corps
of Engineers. Memorandum to the Field on Guidance on Conducting
Wetland Determinations for the Food Security Act of 1985 and section
404 of the Clean Water Act (Feb. 25, 2005), available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2508.
---------------------------------------------------------------------------

    The 2005 Memorandum did not clearly address the abandonment
principle that the agencies had been implementing since the 1993
rulemaking. The change in use policy was also never promulgated as a
rule and was declared unlawful by one district court because it
effectively modified the 1993 preamble language without any rulemaking
process. New Hope Power Co. v. U.S. Army Corps of Eng'rs, 746 F. Supp.
2d 1272, 1282 (S.D. Fla. 2010).
3. U.S. Supreme Court Decisions
    From the earliest rulemaking efforts following adoption of the 1972
CWA amendments, to the agencies' most recent attempt to define ``waters
of the United States'' in 2015, the sparse statutory definition has
spurred substantial litigation testing the meaning of the phrase.
Hundreds of cases and dozens of courts have attempted to discern the
intent of Congress when crafting the phrase. See, e.g., Rapanos v.
United States, 547 U.S. 715, 739 (2006) (Scalia, J., plurality)
(briefly summarizing case history). The federal courts have established
different analytical frameworks to interpret the phrase, and the
applicable test may differ from State to State. See, e.g., Memorandum
from Dick Pedersen, President of the Environmental Council of the
States (ECOS) of September 11, 2014, Concerning Waters of the United
States under the Act at 2-23 (2014) (hereinafter, the ``ECOS
Memorandum''), available at http://acoel.org/file.axd?file=2014%2f9%2fWaters+of+the+U+S+Final+9_11_14.pdf
(summarizing case history following Rapanos).
    As part of this complex litigation history, three key U.S. Supreme
Court decisions have interpreted the term

``waters of the United States'' and its implementing regulations and
serve as guideposts for the agencies' interpretation of the phrase
``waters of the United States.'' In 1985, the Supreme Court deferred to
the Corps' assertion of jurisdiction over wetlands actually abutting a
traditional navigable water in Michigan, stating that adjacent wetlands
may be regulated as waters of the United States because they are
``inseparably bound up'' with navigable waters and ``in the majority of
cases'' have ``significant effects on water quality and the aquatic
ecosystem'' in those waters. United States v. Riverside Bayview Homes,
474 U.S. 121, 131-35 & n.9 (1985). The Court recognized that ``[i]n
determining the limits of its power to regulate discharges under the
Act, the Corps must necessarily choose some point at which water ends
and land begins . . . . Where on this continuum to find the limit of
`waters' is far from obvious.'' Id. at 132. The Court acknowledged the
``inherent difficulties of defining precise bounds to regulable
waters,'' and deferred to the agencies' interpretation that the close
ecological relationship between adjacent wetlands and traditional
navigable waters provided a legal justification for treating wetlands
as waters. Id. at 134. The Court also ``conclude[d] that a definition
of `waters of the United States' encompassing all wetlands adjacent to
other bodies of water over which the Corps has jurisdiction is a
permissible interpretation of the Act.'' Id. at 135.
    The Supreme Court again addressed the definition of ``waters of the
United States'' in Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). In SWANCC, the
Court rejected a claim of federal jurisdiction over nonnavigable,
isolated, intrastate ponds that lack a sufficient connection to
traditional navigable waters, noting that the term ``navigable'' must
be given meaning within the context and application of the statute. Id.
The Court held that interpreting the statute to extend to nonnavigable,
isolated, intrastate ponds that lack a sufficient connection to
traditional navigable waters would invoke the outer limits of Congress'
power under the Commerce Clause. Id. at 172. Where an administrative
interpretation of a statute presses against the outer limits of
Congress' constitutional authority, the Court explained, it expects a
clear statement from Congress that it intended that result, and even
more so when the broad interpretation authorizes federal encroachment
upon a traditional State power. Id. The CWA contains no such clear
statement. Id. at 174.
    In January 2003, the EPA and the Corps issued joint guidance
interpreting the Supreme Court decision in SWANCC.\10\ The guidance
indicated that SWANCC focused on nonnavigable, isolated, intrastate
waters, and called for field staff to coordinate with their respective
Corps or EPA Headquarters on jurisdictional determinations that
asserted jurisdiction over such waters. The agencies at that time
focused their interpretation of SWANCC to its facts, and applied the
decision narrowly as restricting the exercise of federal jurisdiction
solely based on the Migratory Bird Rule.
---------------------------------------------------------------------------

    \10\ See U.S. EPA and U.S. Army Corps of Engineers. Legal
Memoranda Regarding Solid Waste Agency of Northern Cook County
(SWANCC) v. United States (Jan. 15, 2003), available at https://www.epa.gov/sites/production/files/2016-04/documents/swancc_guidance_jan_03.pdf.
---------------------------------------------------------------------------

    The Court most recently interpreted the term ``waters of the United
States'' in Rapanos v. United States, 547 U.S. 715 (2006). Rapanos
involved two consolidated cases in which the CWA had been applied to
wetlands located near man-made ditches that were ultimately connected
to traditional navigable waters. All members of the Court agreed that
the term ``waters of the United States'' encompasses some waters that
are not navigable in the traditional sense.
    A four-Justice plurality interpreted the term ``waters of the
United States'' to ``include[ ] only those relatively permanent,
standing or continuously flowing bodies of water `forming geographic
features' that are described in ordinary parlance as `streams[,] . . .
oceans, rivers, [and] lakes,' '' Rapanos, 547 U.S. at 739 (Scalia, J.,
plurality) (quoting Webster's New International Dictionary 2882 (2d ed.
1954)), and ``wetlands with a continuous surface connection'' to a
``relatively permanent body of water connected to traditional
interstate navigable waters.'' Id. at 742. The plurality explained that
``[w]etlands with only an intermittent, physically remote hydrologic
connection to `waters of the United States' do not implicate the
boundary-drawing problem of Riverside Bayview,'' and thus do not have
the ``necessary connection'' to covered waters that triggers CWA
jurisdiction. Id. at 742. The plurality also noted that its reference
to ``relatively permanent'' waters did ``not necessarily exclude
streams, rivers, or lakes that might dry up in extraordinary
circumstances, such as drought,'' or ``seasonal rivers, which contain
continuous flow during some months of the year but no flow during dry
months.'' Id. at 732 n.5 (emphasis in original).
    In a concurring opinion, Justice Kennedy took a different approach,
concluding that ``to constitute `navigable waters' under the Act, a
water or wetland must possess a `significant nexus' to waters that are
or were navigable in fact or that could reasonably be so made.''
Rapanos, 547 U.S. at 759 (Kennedy, J., concurring in the judgment)
(citing SWANCC, 531 U.S. at 167, 172). He stated that adjacent wetlands
possess the requisite significant nexus if the wetlands ``either alone
or in combination with similarly situated lands in the region,
significantly affect the chemical, physical, and biological integrity
of other covered waters more readily understood as `navigable.' '' Id.
at 780.
    Following Rapanos, on June 7, 2007, the agencies issued joint
guidance entitled ``Clean Water Act Jurisdiction Following the U.S.
Supreme Court's Decision in Rapanos v. United States and Carabell v.
United States'' to address the waters at issue in that decision. The
guidance did not change the codified definition of ``waters of the
United States.'' The guidance indicated that the agencies would assert
jurisdiction over traditional navigable waters and their adjacent
wetlands, relatively permanent nonnavigable tributaries of traditional
navigable waters and wetlands that abut them, nonnavigable tributaries
that are not relatively permanent if they have a significant nexus with
a traditional navigable water, and wetlands adjacent to nonnavigable
tributaries that are not relatively permanent if they have a
significant nexus with a traditional navigable water. The guidance was
reissued with minor changes on December 2, 2008 (hereinafter, the
``Rapanos Guidance'').\11\ After issuance of the Rapanos Guidance,
Members of Congress, developers, farmers, State and local governments,
environmental organizations, energy companies, and others asked the
agencies to replace the guidance with a regulation that would provide
clarity and certainty regarding the scope of the waters federally
regulated under the CWA.
---------------------------------------------------------------------------

    \11\ See U.S. EPA and U.S. Army Corps of Engineers. Clean Water
Act Jurisdiction Following the U.S. Supreme Court's Decision in
Rapanos v. United States & Carabell v. United States at 1 (Dec. 2,
2008) (``Rapanos Guidance''), available at https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf.
---------------------------------------------------------------------------

    Since Rapanos, litigation has continued to confuse the regulatory
landscape. See, e.g., ECOS Memorandum at 2-23. The Supreme

Court also has twice weighed in on topics related to the agencies'
implementation of their authorities under the CWA to help clarify
federal authority in this area. In each case, members of the Court
noted the longstanding confusion regarding the scope of federal
jurisdiction under the CWA and the importance of providing clear
guidance to the regulated community. In 2012, for example, the Supreme
Court unanimously rejected the EPA's longstanding position that
compliance orders issued under the CWA to force property owners to
restore wetlands are not judicially reviewable as final agency actions.
See Sackett v. EPA, 566 U.S. 120, 131 (2012). In a concurring opinion,
Justice Alito referred to the jurisdictional reach of the CWA as
``notoriously unclear'' and noted that the Court's decision provided
only ``a modest measure of relief.'' Id. at 133 (Alito, J., concurring)
(``For 40 years, Congress has done nothing to resolve this critical
ambiguity, and the EPA has not seen fit to promulgate a rule providing
a clear and sufficiently limited definition of the phrase [`waters of
the United States']'').
    In 2016, the Supreme Court in a unanimous opinion rejected the
Corps' longstanding position that jurisdictional determinations issued
by the Corps were not judicially reviewable as final agency actions.
Writing for the Court, the Chief Justice recognized that it ``is often
difficult to determine whether a particular piece of property contains
waters of the United States, but there are important consequences if it
does.'' U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S. Ct. 1807, 1812
(2016). Given those important consequences, the Court held that
jurisdictional determinations are subject to immediate judicial review
when made. Justice Kennedy authored a concurring opinion, ``not to
qualify what the Court says but to point out that, based on the
Government's representations in this case, the reach and systemic
consequences of the Clean Water Act remain a cause for concern.'' Id.
at 1816-17 (referring to the ``ominous reach'' of the Act). On remand,
the lower court found that the Corps' assertion of jurisdiction over a
peat farm more than 90 miles from the nearest traditional navigable
water based on the ``significant nexus'' test described in the
agencies' Rapanos Guidance was ``arbitrary and capricious.'' Hawkes Co.
v. U.S. Army Corps of Eng'rs, No. 13-107 ADM/TNL, 2017 U.S. Dist. LEXIS
10680 at *33 (D. Minn. Jan. 24, 2017).
4. The 2015 Rule
    On June 29, 2015, the agencies issued a final rule (80 FR 37054)
amending various portions of the CFR that set forth a definition of
``waters of the United States,'' a term contained in the CWA's
definition of ``navigable waters,'' 33 U.S.C. 1362(7). One of the
stated purposes of the 2015 Rule was to ``increase CWA program
predictability and consistency by clarifying the scope of `waters of
the United States' protected under the Act.'' 80 FR 37054. The 2015
Rule defined the geographic scope of the CWA by placing waters into
three categories: (A) Waters that are categorically ``jurisdictional by
rule'' in all instances (i.e., without the need for any additional
analysis); (B) waters that are subject to case-specific analysis to
determine whether they are jurisdictional; and (C) waters that are
categorically excluded from jurisdiction. Waters considered
``jurisdictional by rule'' included (1) 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) the territorial seas; (4) impoundments of waters
otherwise identified as jurisdictional; (5) tributaries of the first
three categories of ``jurisdictional by rule'' waters; and (6) waters
adjacent to a water identified in the first five categories of
``jurisdictional by rule'' waters, including ``wetlands, ponds, lakes,
oxbows, impoundments, and similar waters.'' See 80 FR 37104.
    The 2015 Rule relied on a scientific literature review--the
Connectivity Report \12\--to support exerting federal jurisdiction over
certain waters. See 80 FR 37065 (``[T]he agencies interpret the scope
of `waters of the United States' protected under the CWA based on the
information and conclusions in the [Connectivity] Report . . . .'').
Although the agencies acknowledged that science cannot dictate where to
draw the line of federal jurisdiction, see, e.g., id. at 37060,
notwithstanding that qualifier, the agencies relied on the Connectivity
Report extensively in establishing the 2015 Rule's definition of
``waters of the United States.'' See id. at 37057 (``The [Connectivity]
Report provides much of the technical basis for [the] rule.'').
---------------------------------------------------------------------------

    \12\ U.S. EPA. Connectivity of Streams and Wetlands to
Downstream Waters: A Review and Synthesis of the Scientific Evidence
(Jan. 2015) (EPA/600/R-14/475F).
---------------------------------------------------------------------------

    The 2015 Rule added new definitions of key terms such as
``tributaries'' and revised previous definitions of terms such as
``adjacent'' (by adding a new definition of ``neighboring'' that is
used in the definition of ``adjacent'') that would determine whether
waters were ``jurisdictional by rule.'' See 80 FR 37105. Specifically,
a ``tributary'' under the 2015 Rule is a water that contributes flow,
either directly or through another water, to a water identified in the
first three categories of ``jurisdictional by rule'' waters that is
characterized by the presence of the ``physical indicators'' of a bed
and banks and an ordinary high water mark. According to the 2015 Rule's
preamble, ``[t]hese physical indicators demonstrate there is volume,
frequency, and duration of flow sufficient to create a bed and banks
and an ordinary high water mark, and thus to qualify as a tributary.''
Id.\13\ Tributaries under the 2015 Rule could be natural, man-altered,
or man-made, and do not lose their status as a tributary if, for any
length, there is one or more constructed breaks (such as bridges,
culverts, pipes, or dams), or one or more natural breaks (such as
wetlands along the run of a stream, debris piles, boulder fields, or a
stream that flows underground) so long as a bed and banks and an
ordinary high water mark could be identified upstream of the break. Id.
at 37105-06.
---------------------------------------------------------------------------

    \13\ The 2015 Rule did not delineate jurisdiction specifically
based on categories with established scientific meanings such as
ephemeral, intermittent, and perennial waters that are based on the
source of the water and nature of the flow. See 80 FR 37076 (``Under
the rule, flow in the tributary may be perennial, intermittent, or
ephemeral.''). Under the 2015 Rule, tributaries also did not need to
possess any specific volume, frequency, or duration of flow, or to
contribute flow to a traditional navigable water in any given year
or specific time period.
---------------------------------------------------------------------------

    In the 2015 Rule, the agencies did not expressly amend the
longstanding definition of ``adjacent'' (defined as ``bordering,
contiguous, or neighboring''), but the agencies added, for the first
time, a definition of ``neighboring'' that changed the meaning of
``adjacent.'' The 2015 Rule defined ``neighboring'' to encompass all
waters located within 100 feet of the ordinary high water mark of a
category (1) through (5) ``jurisdictional by rule'' water; all waters
located within the 100-year floodplain of a category (1) through (5)
``jurisdictional by rule'' water and not more than 1,500 feet from the
ordinary high water mark of such water; all waters located within 1,500
feet of the high tide line of a category (1) through (3)
``jurisdictional by rule'' water; and all waters within 1,500 feet of
the ordinary high water mark of the Great Lakes. 80 FR 37105. The
entire water would be considered ``neighboring'' if any portion of it
lies

within one of these zones. See id. These quantitative measures did not
appear in the proposed rule and, as discussed in the 2019 Rule and
below, the agencies concluded that they were not sufficiently supported
in the administrative record for the final rule.
    In addition to the six categories of ``jurisdictional by rule''
waters, the 2015 Rule identified certain waters that would be subject
to a case-specific analysis to determine if they had a ``significant
nexus'' to a water that is jurisdictional. 80 FR 37104-05. The first
category consists of five specific types of waters in specific regions
of the country: Prairie potholes, Carolina and Delmarva bays, pocosins,
western vernal pools in California, and Texas coastal prairie wetlands.
Id. at 37105. The second category consists of all waters located within
the 100-year floodplain of any category (1) through (3)
``jurisdictional by rule'' water and all waters located within 4,000
feet of the high tide line or ordinary high water mark of any category
(1) through (5) ``jurisdictional by rule'' water. Id. These
quantitative measures did not appear in the proposed rule and, as
discussed in the 2019 Rule and below, the agencies concluded that they
were not sufficiently supported in the administrative record for the
final 2015 Rule.
    The 2015 Rule defined ``significant nexus'' to mean a water,
including wetlands, that either alone or in combination with other
similarly situated waters in the region, significantly affected the
chemical, physical, or biological integrity of a category (1) through
(3) ``jurisdictional by rule'' water. 80 FR 37106. ``For an effect to
be significant, it must be more than speculative or insubstantial.''
Id. The term ``in the region'' meant ``the watershed that drains to the
nearest'' primary water. Id. This definition was different from the
test articulated by the agencies in their 2008 Rapanos Guidance. That
guidance interpreted ``similarly situated'' to include all wetlands
(not waters) adjacent to the same tributary.
    Under the 2015 Rule, to determine whether a water, alone or in
combination with similarly situated waters across the watershed of the
nearest primary water, had a significant nexus, one had to consider
nine functions such as sediment trapping, runoff storage, provision of
life cycle dependent aquatic habitat, and other functions. 80 FR 37106.
A single function performed by a water, alone or together with
similarly situated waters in the region, that contributed significantly
to the chemical, physical, or biological integrity of the nearest
category (1) through (3) ``jurisdictional by rule'' water was
sufficient to establish a significant nexus. Id. Taken together, the
enumeration of the nine functions and the more expansive consideration
of ``similarly situated waters in the region'' in the 2015 Rule meant
that the vast majority of water features in the United States may have
come within the jurisdictional purview of the Federal government.\14\
---------------------------------------------------------------------------

    \14\ ``[T]he vast majority of the nation's water features are
located within 4,000 feet of a covered tributary, traditional
navigable water, interstate water, or territorial sea.'' U.S. EPA
and Department of the Army, Economic Analysis of the EPA-Army Clean
Water Rule at 11 (May 20, 2015) (``2015 Rule Economic Analysis'')
(Docket ID: EPA-HQ-OW-2011-0880-20866), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20866.
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    The 2015 Rule also retained exclusions from the definition of
``waters of the United States'' for prior converted cropland and waste
treatment systems. 80 FR 37105. In addition, the agencies codified
several exclusions that, in part, reflected longstanding agency
practice and added others such as ``puddles'' and ``swimming pools'' in
response to concerns raised by stakeholders during the public comment
period on the proposed 2015 Rule. Id. at 37096-98, 37105.
    Following the 2015 Rule's publication, 31 States \15\ and numerous
non-state parties, including environmental groups and groups
representing farming, recreational, forestry, and other interests,
filed complaints and petitions for review in multiple federal district
\16\ and appellate \17\ courts challenging the 2015 Rule. In those
cases, the challengers alleged numerous procedural deficiencies in the
development and promulgation of the 2015 Rule and substantive
deficiencies in the 2015 Rule itself. Some challengers argued that the
2015 Rule was too expansive, while others argued that it excluded too
many waters from federal jurisdiction.
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    \15\ Alabama, Alaska, Arizona, Arkansas, Colorado, Florida,
Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico
(Environment Department and State Engineer), North Carolina
(Department of Environment and Natural Resources), North Dakota,
Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas,
Utah, West Virginia, Wisconsin, and Wyoming. Iowa joined the legal
challenge later in the process, bringing the total to 32 States.
Colorado, New Mexico, and Wisconsin have since withdrawn from
litigation against the 2015 Rule.
    \16\ U.S. District Courts for the Northern and Southern
Districts of Georgia, District of Minnesota, District of North
Dakota, Southern District of Ohio, Northern District of Oklahoma,
Southern District of Texas, District of Arizona, Northern District
of Florida, District of the District of Columbia, Western District
of Washington, Northern District of California, and Northern
District of West Virginia. In April 2019, an additional challenge
against the 2015 Rule was filed in the U.S. District Court for the
District of Oregon.
    \17\ U.S. Courts of Appeals for the Second, Fifth, Sixth,
Eighth, Ninth, Tenth, Eleventh, and District of Columbia Circuits.
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    The day before the 2015 Rule's August 28, 2015 effective date, the
U.S. District Court for the District of North Dakota preliminarily
enjoined the 2015 Rule in the 13 States that challenged the rule in
that court.\18\ The district court found those States were ``likely to
succeed'' on the merits of their challenge to the 2015 Rule because,
among other reasons, ``it appears likely that the EPA has violated its
Congressional grant of authority in its promulgation of the Rule.''
North Dakota v. EPA, 127 F. Supp. 3d 1047, 1051 (D.N.D. 2015). In
particular, the court noted concern that the 2015 Rule's definition of
``tributary'' ``includes vast numbers of waters that are unlikely to
have a nexus to navigable waters.'' Id. at 1056. Further, the court
found that ``it appears likely the EPA failed to comply with
[Administrative Procedure Act (APA)] requirements when promulgating the
Rule,'' suggesting that certain distance-based measures were not a
logical outgrowth of the proposal to the 2015 Rule. Id. at 1051, 1058.
No party sought an interlocutory appeal.
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    \18\ Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri,
Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota,
and Wyoming. Iowa's motion to intervene in the case was granted
after issuance of the preliminary injunction. In May 2019, the court
granted motions from Colorado and New Mexico to withdraw from the
litigation and lifted the preliminary injunction as to Colorado and
New Mexico. Order, North Dakota v. EPA, No. 3:15-cv-00059 (D.N.D.
May 14, 2019). At the same time, the court stated that the
preliminary injunction would remain in effect as to a plaintiff-
intervenor that represents ten counties in New Mexico. The agencies
filed a motion seeking clarification of the applicability of the
court's preliminary injunction to those ten counties in New Mexico.
Defendants' Motion for Clarification Regarding the Scope of the
Court's Preliminary Injunction, North Dakota v. EPA, No. 3:15-cv-
00059 (D.N.D. May 24, 2019). As of the time of signature of this
final rule, that motion is pending before the court.
---------------------------------------------------------------------------

    The numerous petitions for review filed in the courts of appeals
were consolidated in the U.S. Court of Appeals for the Sixth Circuit.
In that litigation, State and industry petitioners raised concerns
about whether the 2015 Rule violated the Constitution and the CWA and
whether its promulgation violated the APA and other statutes.
Environmental petitioners also challenged the 2015 Rule, claiming in
part that the 2015 Rule was too narrow because of the distance
limitations and other issues. On October 9, 2015, approximately six
weeks after the 2015 Rule took effect in the 37 States, the District of
Columbia, and U.S.

Territories that were not subject to the preliminary injunction issued
by the District of North Dakota, the Sixth Circuit stayed the 2015 Rule
nationwide after concluding, among other things, that State petitioners
had demonstrated ``a substantial possibility of success on the merits
of their claims.'' In re EPA & Dep't of Def. Final Rule, 803 F.3d 804,
807 (6th Cir. 2015) (``In re EPA'').
    On January 13, 2017, the U.S. Supreme Court granted certiorari on
the question of whether the courts of appeals have original
jurisdiction to review challenges to the 2015 Rule. See Nat'l Ass'n of
Mfrs. v. Dep't of Def., 137 S. Ct. 811 (2017). The Sixth Circuit
granted petitioners' motion to hold in abeyance the briefing schedule
in the litigation challenging the 2015 Rule pending a Supreme Court
decision on the question of the court of appeals' jurisdiction. On
January 22, 2018, the Supreme Court, in a unanimous opinion, held that
the 2015 Rule is subject to direct review in the district courts. Nat'l
Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617, 624 (2018). Throughout
the pendency of the Supreme Court litigation (and for a short time
thereafter), the Sixth Circuit's nationwide stay remained in effect. In
response to the Supreme Court's decision, on February 28, 2018, the
Sixth Circuit lifted the stay and dismissed the corresponding petitions
for review. See In re Dep't of Def. & EPA Final Rule, 713 Fed. Appx.
489 (6th Cir. 2018).
    Following the Supreme Court's jurisdictional ruling, district court
litigation regarding the 2015 Rule resumed. At this time, the 2015 Rule
continues to be subject to a preliminary injunction issued by the
District of North Dakota as to 12 States: Alaska, Arizona, Arkansas,
Idaho, Iowa, Missouri, Montana, Nebraska, Nevada, North Dakota, South
Dakota, and Wyoming.\19\ The 2015 Rule also is subject to a preliminary
injunction issued by the U.S. District Court for the Southern District
of Georgia as to 11 more States: Georgia, Alabama, Florida, Indiana,
Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia,
and Wisconsin. Georgia v. Pruitt, 326 F. Supp. 3d 1356, 1364 (S.D. Ga.
2018). The Southern District of Georgia subsequently issued an order
remanding the 2015 Rule to the agencies, finding that the 2015 Rule
exceeded the agencies' statutory authority under the CWA and was
promulgated in violation of the APA. Georgia v. Wheeler, No. 2:15-cv-
079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019). ``[I]n light of the
serious defects identified,'' the court retained its injunction against
the 2015 Rule. Id. at *36.\20\
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    \19\ As of the date this final rule was signed, the
applicability and scope of the North Dakota district court's
preliminary injunction in New Mexico is unclear. See supra note 18.
    \20\ The Southern District of Georgia later denied as moot
plaintiffs' motions for reconsideration asking the court to vacate,
rather than remand, the 2015 Rule. Order, Georgia v. Wheeler, No.
2:15-cv-079 (S.D. Ga. Jan. 3, 2020).
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    In September 2018, the U.S. District Court for the Southern
District of Texas issued a preliminary injunction against the 2015 Rule
in response to motions filed by the States of Texas, Louisiana, and
Mississippi and several business associations, finding that enjoining
the rule would provide ``much needed governmental, administrative, and
economic stability'' while the rule undergoes judicial review. See
Texas v. EPA, No. 3:15-cv-162, 2018 WL 4518230, at *1 (S.D. Tex. Sept.
12, 2018). The court observed that if it did not temporarily enjoin the
rule, ``it risks asking the states, their governmental subdivisions,
and their citizens to expend valuable resources and time
operationalizing a rule that may not survive judicial review.'' Id. In
May 2019, the court 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 version of
the Connectivity Report, which served as the technical basis for the
final rule. See Texas v. EPA, 389 F. Supp. 3d 497 (S.D. Tex. 2019).\21\
---------------------------------------------------------------------------

    \21\ The Southern District of Texas later denied plaintiffs'
motions for reconsideration urging the court to vacate, rather than
remand, the 2015 Rule. Order, Texas v. EPA, No. 3:15-cv-00162 (S.D.
Tex. Nov. 6, 2019).
---------------------------------------------------------------------------

    In July 2019, the U.S. District Court for the District of Oregon
issued a preliminary injunction against the 2015 Rule in the State of
Oregon. Order, Or. Cattlemen's Ass'n v. EPA, No. 19-00564 (D. Or. July
26, 2019). As a result, the 2015 Rule was enjoined in more than half of
the States.
    Three additional States (Ohio, Michigan, and Tennessee) sought a
preliminary injunction against the 2015 Rule in the U.S. District Court
for the Southern District of Ohio. In March 2019, the court denied the
States' motion, finding that the States had ``failed to demonstrate
that they will suffer imminent and irreparable harm absent an
injunction.'' See Ohio v. EPA, No. 2:15-cv-02467, 2019 WL 1368850 (S.D.
Ohio Mar. 26, 2019). The court subsequently denied the States' motion
for reconsideration of its order denying the preliminary injunction
motion, and the States have since filed an appeal of the court's order
in the Sixth Circuit. See Ohio v. EPA, No. 2:15-cv-02467, 2019 WL
1958650 (S.D. Ohio May 2, 2019); Plaintiffs' Notice of Appeal, Ohio v.
EPA, No. 2:15-cv-02467 (S.D. Ohio May 28, 2019).\22\
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    \22\ Parties challenging the 2015 Rule in the U.S. District
Court for the Northern District of Oklahoma, including the State of
Oklahoma and the U.S. Chamber of Commerce, unsuccessfully sought a
motion for a preliminary injunction against the 2015 Rule and later
stipulated to a voluntary dismissal of the case. See Opinion &
Order, Oklahoma v. EPA, No. 4:15-cv-00381 (N.D. Okla. May 29, 2019);
Stipulation of Voluntary Dismissal, Oklahoma v. EPA, No. 4:15-cv-
00381 (N.D. Okla. Jan. 7, 2019). Following the effective date of the
2019 Rule, an additional motion for a preliminary injunction against
the 2015 Rule was denied as moot in the U.S. District Court for the
Western District of Washington. Order, Wash. Cattlemen's Ass'n v.
EPA, No. 19-00569 (W.D. Wash. Dec. 30, 2019).
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C. Executive Order 13778 and the ``Step One'' Rulemaking

    On February 28, 2017, the President issued Executive Order 13778
entitled ``Restoring the Rule of Law, Federalism, and Economic Growth
by Reviewing the `Waters of the United States' Rule.'' Section 1 of the
Executive Order states, ``[i]t is in the national interest to ensure
that the Nation's navigable waters are kept free from pollution, while
at the same time promoting economic growth, minimizing regulatory
uncertainty, and showing due regard for the roles of the Congress and
the States under the Constitution.'' The Executive Order directs the
EPA and the Army to review the 2015 Rule for consistency with the
policy outlined in Section 1 of the Order and to issue a proposed rule
rescinding or revising the 2015 Rule as appropriate and consistent with
law (Section 2). The Executive Order also directs the agencies to
``consider interpreting the term `navigable waters' . . . in a manner
consistent with'' Justice Scalia's plurality opinion in Rapanos v.
United States, 547 U.S. 715 (2006) (Section 3).
    On March 6, 2017, the agencies published a notice of intent to
review the 2015 Rule and provide notice of a forthcoming proposed
rulemaking consistent with the Executive Order. 82 FR 12532. Shortly
thereafter, the agencies announced that they would implement the
Executive Order in a two-step approach. On July 27, 2017,

the agencies published the ``Definition of `Waters of the United
States'--Recodification of Pre-Existing Rules'' notice of proposed
rulemaking (NPRM) (82 FR 34899) that proposed to repeal the 2015 Rule
and recodify the regulatory text that governed prior to the
promulgation of the 2015 Rule, consistent with Supreme Court decisions
and informed by applicable guidance documents and longstanding agency
practice. The agencies refer to this as the ``Step One'' rule. The
agencies invited comment on the NPRM over a 62-day period. On July 12,
2018, the agencies published a supplemental notice of proposed
rulemaking (SNPRM) to clarify, supplement, and seek additional comment
on the proposed repeal and recodification. 83 FR 32227. The agencies
invited comment on the SNPRM over a 30-day period.
    On October 22, 2019, the agencies published a final rule repealing
the 2015 Rule and recodifying the pre-existing regulations as an
interim matter until this final rule becomes effective. 84 FR 56626. In
developing the final Step One rule (referred to as the ``2019 Rule''),
the agencies reviewed approximately 690,000 public comments received on
the NPRM and approximately 80,000 comments received on the SNPRM from a
broad spectrum of interested parties. In the NPRM and SNPRM the
agencies sought comment on all aspects of the NPRM, the economic
analysis for the NPRM, and the SNPRM, including the repeal of the 2015
Rule, the recodification of the prior regulations, the considerations
underlying the proposal and agencies' reasons for the proposal, and the
agencies' proposed conclusions that the 2015 Rule exceeded the
agencies' authority under the CWA.
    The agencies finalized the 2019 Rule, which became effective
December 23, 2019, and repealed the 2015 Rule for four primary reasons.
First, the agencies concluded 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, including
Justice Kennedy's articulation of the significant nexus test in
Rapanos. Second, the agencies concluded that in promulgating the 2015
Rule the agencies failed to adequately consider and accord due weight
to the policy of the Congress in CWA section 101(b) to ``recognize,
preserve, and protect the primary responsibilities and rights of States
to prevent, reduce, and eliminate pollution'' and ``to plan the
development and use . . . of land and water resources.'' 33 U.S.C.
1251(b). Third, the agencies repealed the 2015 Rule to avoid
interpretations of the CWA that push the envelope of their
constitutional and statutory authority absent a clear statement from
Congress authorizing the encroachment of federal jurisdiction over
traditional State land-use planning authority. Lastly, the agencies
concluded that the 2015 Rule's distance-based limitations suffered from
certain procedural errors and a lack of adequate record support. The
agencies found that these reasons, collectively and individually,
warranted repealing the 2015 Rule.
    At this time, the regulations defining the scope of federal CWA
jurisdiction are those portions of the CFR as they existed before the
amendments promulgated in the 2015 Rule. The agencies concluded that it
was appropriate as an interim matter to restore the pre-existing
regulations to provide regulatory certainty as the agencies considered
the proposed revised definition of ``waters of the United States'' and
because, as implemented, those prior regulations adhere more closely
than the 2015 Rule to the jurisdictional limits reflected in the
statute and case law. As anticipated in the 2019 Rule, this final rule
replaces the recodified pre-2015 regulations, upon its effective date.
    As of the time of signature of this final rule, challenges to the
agencies' 2019 Rule are pending in six district courts, wherein both
environmental and industry groups have either filed new complaints or
sought to supplement existing complaints to challenge the rule in whole
or in part. See New York v. Wheeler, No. 19-11673 (S.D.N.Y., complaint
filed Dec. 20, 2019); Wash. Cattlemen's Ass'n v. EPA, No. 2:19-cv-00569
(W.D. Wash., supplemental amended complaint filed Dec. 20, 2019);
Murray v. Wheeler, No. 1:19-cv-01498 (N.D.N.Y., complaint filed Dec. 4,
2019); S.C. Coastal Conservation League v. Wheeler, No. 2:19-cv-3006
(D.S.C., complaint filed Oct. 23, 2019); N.M. Cattle Growers' Ass'n v.
EPA, No. 1:19-cv-988 (D.N.M., complaint filed Oct. 22, 2019); Pierce v.
EPA, No. 0:19-cv-2193 (D. Minn., supplemental complaint filed Oct. 22,
2019).

D. Summary of Stakeholder Outreach and the ``Step Two'' Rulemaking

    Following the March 6, 2017 Federal Register notice announcing the
agencies' intent to review and rescind or revise the 2015 Rule, the
agencies initiated an effort to engage the public to hear perspectives
as to how the agencies could define ``waters of the United States,''
including creating a new website to provide information on the
rulemaking. See www.epa.gov/wotus-rule. On April 19, 2017, the agencies
held an initial Federalism consultation meeting with State and local
government officials as well as national organizations representing
such officials. The agencies also convened several additional meetings
with intergovernmental associations and their members to solicit input
on the future rule. The EPA, with participation from the Army,
initiated Tribal consultation on April 20, 2017, under the EPA Policy
on Consultation and Coordination with Indian Tribes. See Section VI for
further details on the agencies' consultations. The agencies considered
comments received from federalism and tribal consultations as they
developed this final rule.
    In addition to engaging State, tribal, and local officials through
federalism and tribal consultations, the agencies sought feedback on
the definition of ``waters of the United States'' from a broad audience
of stakeholders, including small entities (small businesses, small
organizations, and small government jurisdictions), through a series of
outreach webinars that were held September 9, 2017, through November
21, 2017, and through an in-person meeting for small entities on
October 23, 2017. A summary of these public listening sessions is
available in the docket (Docket Id. No. EPA-HQ-OW-2018-0149-0091) for
this rule. The webinars were tailored to specific sectors, including
agriculture (row crop, livestock, silviculture); conservation (hunters
and anglers); small entities (small businesses, small organizations,
small government jurisdictions); construction and transportation;
environment and public advocacy (including health and environmental
justice); mining; energy and chemical industry; scientific
organizations and academia; stormwater, wastewater management, and
drinking water agencies; and the general public.
    At the pre-proposal webinars and meetings with stakeholders, the
agencies provided a presentation and sought input on specific issues,
such as potential approaches to defining the phrases ``relatively
permanent'' waters and ``continuous surface connections'' as
articulated by the plurality opinion in Rapanos, as well as other
considerations addressing specific geomorphological features,
exclusions and exemptions, costs and benefits, and aquatic resource
data that the agencies might consider in the technical analyses for a
future rule. As part of this outreach effort, the agencies established
a public recommendations docket (Docket ID No. EPA-HQ-OW-2017-0480)
that opened

August 28, 2017, and closed November 28, 2017. Participant comments and
letters submitted represent a diverse range of interests, positions,
suggestions, and recommendations provided to the agencies. The agencies
received over 6,300 recommendations (available on Regulations.gov at
https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0480) that were
considered as the agencies developed the proposed revised definition of
``waters of the United States.'' The agencies also considered
recommendations as to how the agencies should define ``waters of the
United States'' that were submitted in public comments on the agencies'
proposed ``Step One'' rule (82 FR 34899, July 27, 2017) and the July
2018 SNPRM (83 FR 32227, July 12, 2018).
    The agencies continued their pre-proposal engagement with States
and Tribes via additional webinars and in-person meetings. On March 8
and 9, 2018, the agencies held an in-person State Co-Regulators
Workshop with representatives from nine States (Arizona, Arkansas,
Florida, Iowa, Maryland, Minnesota, Oregon, Pennsylvania, and Wyoming)
and convened a subsequent in-person meeting on March 22, 2018, with
representatives from all States at the spring meeting of the
Environmental Council of the States. The agencies also held an in-
person Tribal Co-Regulators Workshop on March 6 and 7, 2018, with
representatives from 20 tribes. These meetings were intended to seek
technical input as the agencies developed the proposed rule. The
agencies also sought pre-proposal input from Tribes through national
and regional tribal meetings, including through listening sessions at
the Tribal Land and Environment Forum (August 16, 2017 and August 15,
2018) and the National Congress of American Indians Annual Convention
(October 24, 2018).
    On December 12, 2018, the agencies signed the proposed rule to
revise the definition of ``waters of the United States,'' as the second
step of the comprehensive two-step process consistent with Executive
Order 13778. The proposal was published on February 14, 2019. 84 FR
4154. 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 60-day public comment
period for the proposed revised definition of ``waters of the United
States'' (``Step Two'' Rule) closed on April 15, 2019.\23\
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    \23\ The pre-publication of the proposed rule was published on
EPA's website on December 12, 2018, approximately 60 days prior to
its publication in the Federal Register and the date the formal
public comment period began.
---------------------------------------------------------------------------

    The agencies conducted a variety of stakeholder outreach on the
proposed rule upon its publication in the Federal Register. On February
14, 2019, the agencies held a public webcast to present key elements of
the proposed rule (see https://www.youtube.com/watch?v=ZZ6kFJasDhg&feature=youtu.be), and held a public hearing in
Kansas City, Kansas, on February 27 and 28, 2019, to hear feedback from
individuals from regulated industry sectors, environmental and
conservation organizations, State agencies, tribal governments, and
private citizens. The agencies also continued engagement with States
and Tribes through a series of in-person meetings with State and tribal
representatives in Kansas City, Kansas; Atlanta, Georgia; Albuquerque,
New Mexico; and Seattle, Washington during the public comment period
for the proposed rule. During these meetings, the agencies provided an
overview of the proposed rule, responded to clarifying questions from
participants, discussed implementation considerations, and heard
feedback on the agencies' interest in developing geospatial datasets of
jurisdictional waters. A transcript of the public hearing and related
materials and summaries of the State and tribal meetings can be found
in the docket for the final rule. At the request of individual Tribes,
the agencies also continued to hold staff-level and leader-to-leader
meetings with individual Tribes.
    In developing this final rule, the agencies reviewed and considered
approximately 620,000 comments received on the proposed rule from a
broad spectrum of interested parties. Commenters provided a wide range
of feedback on the various aspects of the proposal, including the legal
basis for the proposed rule, the agencies' proposed treatment of
categories of jurisdictional waters and those features that would not
be jurisdictional, the economic analysis and resource and programmatic
assessment for the proposed rule, and the agencies' considerations for
developing geospatial datasets of jurisdictional waters in partnership
with other federal agencies, States, and Tribes. The agencies discuss
comments received and their responses in the applicable sections of
this final rule. A complete response to comments document is available
in the docket for this final rule at Docket ID No. EPA-HQ-OW-2018-0149.
    The agencies also engaged with the EPA's Science Advisory Board
(SAB) during the development of the rule on several occasions. The
agencies met with the SAB prior to the proposed rule and following
publication of the proposed rule to explain the basis for the rule and
to address the SAB's questions and initial observations. The SAB issued
a draft commentary on the proposed rule on December 31, 2019, and held
a public meeting on the matter on January 17, 2020. The SAB's draft
commentary asserted that the proposed rule did not fully incorporate
the Connectivity Report and offers no comparable body of peer reviewed
evidence to support this departure. As the agencies made clear in the
proposed rule preamble and explain in greater detail in this notice,
the agencies used the Connectivity Report to inform certain aspects of
the definition of ``waters of the United States,'' but recognize that
science cannot dictate where to draw the line between Federal and State
waters, as this is a legal question that must be answered based on the
overall framework and construct of the CWA. The SAB's draft also
addresses the absence of ``ground water protection;'' the exclusion of
``irrigation canals'' from regulatory jurisdiction; the exclusion of
``adjacent wetlands that do not abut or have a direct hydrologic
surface connection to otherwise jurisdictional waters;'' and the
absence of ``long term clarity'' as a result of the asserted lack of
scientific basis for the proposed rule.
    The relevant comments raised by the SAB were also raised by public
commenters throughout the rulemaking process, and as a result, have
been addressed by the agencies in the final rule, supporting documents,
and throughout this notice. In brief, however, the agencies note that
the final rule is consistent with the agencies' longstanding position
that ``waters of the United States'' do not include groundwater; that
the agencies do not use the term ``irrigation canals'' in the final
rule; that ``irrigation ditches'' constructed in uplands and
``irrigation return flows'' generally have been not been subject to CWA
regulatory requirements; and that the agencies have expanded
jurisdiction over certain ``adjacent wetlands'' compared to the
proposal to better incorporate common principles from the Rapanos
plurality and concurring opinions, that the final rule strikes a better
balance between the objective and policy in CWA sections 101(a) and
101(b), respectively; and that

the final rule is consistent with the text, structure, legislative
history, and applicable Supreme Court guidance. A memorandum
summarizing the agencies' interactions with the SAB and the SAB's draft
commentary are available in the docket for this final rule.

E. Overview of Legal Construct for the Final Rule

    As the preceding summary of the statutory and regulatory history
makes clear, the central term delineating the federal geographic scope
of authority under the CWA--``waters of the United States''--has been
the subject of debate and litigation for many years. The agencies are
promulgating a regulation to define ``waters of the United States''
adhering to Constitutional and statutory limitations, the policies and
objective of the CWA, and case law. The revised definition will allow
the regulatory agencies and the regulated community to protect
navigable waters from pollution while providing an implementable
approach to determining regulatory jurisdiction under the CWA. This
subsection summarizes the legal principles that inform the agencies'
final rule, and the following section (Section III) describes how the
agencies are applying those legal principles to support the final
revised definition of ``waters of the United States.''
1. Statutory Framework
    To determine the scope of executive branch authority under the CWA,
the agencies begin with the text of the statute. The objective of the
CWA, as established by Congress, is ``to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters.''
33 U.S.C. 1251(a). As discussed in Section II.B, in order to meet that
objective, Congress declared two national water quality goals and
established several key policies that direct the work of the agencies.
Congress also envisioned a major role for the States in implementing
the CWA, carefully balancing the traditional power of States to
regulate land and water resources within their borders with the need
for national water quality regulation.
    The agencies have developed regulatory and non-regulatory programs
designed to ensure that the full statute is implemented as Congress
intended. See, e.g., Hibbs v. Winn, 542 U.S. 88, 101 (2004) (``A
statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or
insignificant.''). This includes pursuing the overall ``objective'' of
the CWA to ``restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,'' 33 U.S.C. 1251(a), while
implementing the specific ``policy'' directives from Congress to, among
other things, ``recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution'' and ``to plan the development and use . . . of land and
water resources.'' Id. at 1251(b); see also Webster's II, New Riverside
University Dictionary (1994) (defining ``policy'' as a ``plan or course
of action, as of a government[,] designed to influence and determine
decisions and actions;'' an ``objective'' is ``something worked toward
or aspired to: Goal'').\24\ The agencies therefore recognize a
distinction between the specific word choices of Congress, including
the need to develop regulatory and non-regulatory programs that aim to
accomplish the goals of the Act while implementing the specific policy
directives of Congress.\25\ To do so, the agencies must determine what
Congress had in mind when it defined ``navigable waters'' in 1972 as
``the waters of the United States.''
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    \24\ The legislative history of the CWA further illuminates the
distinction between the terms ``policy'' and ``objective,'' or
``goal.'' As Congress drafted the 1972 CWA amendments, the Senate
bill set the ``no-discharge of pollutants into the navigable water
by 1985'' provision as a policy whereas the House bill set it as a
goal. The Act was ultimately passed with the ``no-discharge by
1985'' provision established as a goal. See 33 U.S.C 1251(a)(1).
During the House's consideration of the Conference Report,
Representative Robert E. Jones, Jr. captured the policy versus goal
distinction in section 101(a)(1) as follows: ``The objective of this
legislation is to restore and preserve for the future the integrity
of our Nation's waters. The bill sets forth as a national goal the
complete elimination of all discharges into our navigable waters by
1985, but . . . the conference report states clearly that achieving
the 1985 target date is a goal, not a national policy. As such, it
serves as a focal point for long-range planning, and for research
and development in water pollution control technology . . . . While
it is our hope that we can succeed in eliminating all discharge into
our waters by 1985, without unreasonable impact on the national
life, we recognized in this report that too many imponderables
exist, some still beyond our horizons, to prescribe this goal today
as a legal requirement.'' 118 Cong. Rec. H. 33749 (daily ed. October
4, 1972).
    \25\ See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S.
519, 544 (2012) (``Where Congress uses certain language in one part
of a statute and different language in another, it is generally
presumed that Congress acts intentionally.''); Russello v. United
States, 464 U.S. 16, 23 (1983) (``[Where] Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion
or exclusion.'')
---------------------------------------------------------------------------

    Congress' authority to regulate navigable waters under the CWA
derives from its power to regulate the ``channels of interstate
commerce'' under the Commerce Clause. Gibbons v. Ogden, 22 U.S. (9
Wheat.) 1 (1824). In United States v. Lopez, the Supreme Court
explained that the Commerce Clause gives Congress the authority to
regulate in three areas: The ``channels of interstate commerce,'' the
``instrumentalities of interstate commerce,'' and those additional
activities having ``a substantial relation to interstate commerce.''
514 U.S. 549, 558-59 (1995). Some commenters stated that Congress'
authority over ``waters of the United States'' is not tethered to
navigable channels of interstate commerce, but is also derived from its
authority over the ``instrumentalities of interstate commerce'' and
activities that ``substantially affect'' interstate commerce. See id.
The agencies disagree with these comments. The Supreme Court made clear
in SWANCC that the term ``navigable'' indicates ``what Congress had in
mind as its authority for enacting the CWA: Its traditional
jurisdiction over waters that were or had been navigable in fact or
which could reasonably be so made.'' 531 U.S. 159, 172 (2001). The
Court further explained that nothing in the legislative history of the
Act provides any indication that ``Congress intended to exert anything
more than its commerce power over navigation.'' Id. at 168 n.3. The
Supreme Court, however, has recognized that Congress intended ``to
exercise its powers under the Commerce clause to regulate at least some
waters that would not be deemed `navigable' under the classical
understanding of that term.'' Riverside Bayview, 474 U.S. at 133; see
also SWANCC, 531 U.S. at 167.
    The classical understanding of the term ``navigable'' was first
articulated by the Supreme Court in The Daniel Ball:

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

77 U.S. (10 Wall.) 557, 563 (1871). Subsequently, this traditional test
was expanded to include waters that had been used in the past for
interstate commerce, see Economy Light & Power Co. v. United States,
256 U.S. 113, 123 (1921), and waters that are susceptible

for use with reasonable improvement, see United States v. Appalachian
Elec. Power Co., 311 U.S. 377, 407-10 (1940).
    By the time the 1972 CWA amendments were enacted, the Supreme Court
had held that Congress' authority over the channels of interstate
commerce was not limited to regulation of the channels themselves but
could extend to activities necessary to protect the channels. See
Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 523
(1941) (``Congress may exercise its control over the non-navigable
stretches of a river in order to preserve or promote commerce on the
navigable portions.''). The Supreme Court had also clarified that
Congress could regulate waterways that formed a part of a channel of
interstate commerce, even if they are not themselves navigable or do
not cross state boundaries. See Utah v. United States, 403 U.S. 9, 11
(1971).
    These developments were discussed during the legislative process
leading up to the passage of the 1972 CWA amendments, and certain
members referred to the scope of the amendments as encompassing
waterways that serve as a ``link in the chain'' of interstate commerce
as it flows through various channels of transportation, such as
railroads and highways. See, e.g., 118 Cong. Rec. 33756-57 (1972)
(statement of Rep. Dingell); 118 Cong. Rec. 33699 (Oct. 4, 1972)
(statement of Sen. Muskie).\26\ Other references suggest that
congressional committees at least contemplated applying the ``control
requirements'' of the Act ``to the navigable waters, portions thereof,
and their tributaries.'' S. Rep. No. 92-414, at 77 (1971). Some
commenters on this rulemaking stated that Congress' authority under the
CWA is limited to waters that actually transport commerce, not their
tributaries or adjacent wetlands, and that this limitation on CWA
jurisdiction would fully preserve the authority of States to address
pollution. The agencies disagree with these commenters based on the
Supreme Court's holdings and the legislative history of the 1972
amendments discussed above, as well as the text of the 1977 amendments
to the CWA. Specifically, in 1977, when Congress authorized State
assumption over the section 404 dredged or fill material permitting
program, Congress limited the scope of waters that could be assumed by
a State or Tribe by requiring the Corps to retain permitting authority
over RHA waters (as identified by the test outlined in The Daniel Ball)
plus wetlands adjacent to those waters, minus historic-use-only waters.
See 33 U.S.C. 1344(g)(1).\27\ This suggests that Congress had in mind a
broader scope of waters subject to CWA jurisdiction than waters
traditionally understood as navigable. See SWANCC, 531 U.S. at 171;
Riverside Bayview, 474 U.S. at 138 n.11. Thus, Congress intended to
assert federal authority over more than just waters traditionally
understood as navigable, and Congress rooted that authority in ``its
commerce power over navigation.'' SWANCC, 531 U.S. at 168 n.3. However,
there must be a limit to that authority and to what water is subject to
federal jurisdiction. How the agencies should exercise that authority
has been the subject of dispute for decades, but the Supreme Court on
three occasions has analyzed the issue and provided some instructional
guidance for the agencies to consider in developing this final rule.
---------------------------------------------------------------------------

    \26\ The agencies recognize that individual member statements
are not a substitute for full congressional intent, but they do help
provide context for issues that were discussed during the
legislative debates. For a detailed discussion of the legislative
history of the 1972 CWA amendments, see Albrecht & Nickelsburg,
Could SWANCC Be Right? A New Look at the Legislative History of the
Clean Water Act, 32 ELR 11042 (Sept. 2002).
    \27\ For a detailed discussion of the legislative history
supporting the enactment of CWA section 404(g), see Final Report of
the Assumable Waters Subcommittee (May 2017), App. F., available at
https://www.epa.gov/sites/production/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf <
Caution-https://www.epa.gov/sites/production/files/2017-06/documents/awsubcommitteefinalreprort_05-2017_tag508_05312017_508.pdf.
---------------------------------------------------------------------------

2. U.S. Supreme Court Precedent
a. Adjacent Wetlands
    In Riverside Bayview, the Supreme Court considered the Corps'
assertion of jurisdiction over ``low-lying, marshy land'' immediately
abutting a water traditionally understood as navigable on the grounds
that it was an ``adjacent wetland'' within the meaning of the Corps'
then-existing regulations. 474 U.S. at 124. The Court addressed the
question of whether non-navigable wetlands may be regulated as waters
of the United States on the basis that they are ``adjacent to''
navigable-in-fact waters and ``inseparably bound up with'' them because
of their ``significant effects on water quality and the aquatic
ecosystem.'' See id. at 131-35 & n.9.
    In determining whether to give deference to the Corps' assertion of
jurisdiction over adjacent wetlands, the Court acknowledged the
difficulty in determining where federal jurisdiction ends, noting that
the line is somewhere between open water and dry land:

    In determining the limits of its power to regulate discharges
under the Act, the Corps must necessarily choose some point at which
water ends and land begins. Our common experience tells us that this
is often no easy task: The transition from water to solid ground is
not necessarily or even typically an abrupt one. Rather, between
open waters and dry land may lie shallows, marshes, mudflats,
swamps, bogs--in short, a huge array of areas that are not wholly
aquatic but nevertheless fall far short of being dry land. Where on
this continuum to find the limit of ``waters'' is far from obvious.

Id. at 132 (emphasis added). Within this statement, the Supreme Court
identifies a basic principle for adjacent wetlands: The limits of
jurisdiction lie within the ``continuum'' or ``transition'' ``between
open waters and dry land.'' Observing that Congress intended the CWA
``to regulate at least some waters that would not be deemed
`navigable,' '' the Court held that it is ``a permissible
interpretation of the Act'' to conclude that ``a wetland that actually
abuts on a navigable waterway'' falls within the ``definition of
`waters of the United States.' '' Id. at 133, 135. Thus, a wetland that
abuts a water traditionally understood as navigable is subject to CWA
jurisdiction because it is ``inseparably bound up with the `waters' of
the United States.'' Id. at 134. ``This holds true even for wetlands
that are not the result of flooding or permeation by water having its
source in adjacent bodies of open water.'' Id.
    The Supreme Court also noted that the agencies can establish
categories of jurisdiction for adjacent wetlands. See id. at 135 n.9.
It made clear that these categories could be reasonable if the Corps
concludes that ``in the majority of cases, adjacent wetlands have
significant effects on water quality and the aquatic ecosystem.'' Id. A
definition of ``waters of the United States'' ``can stand'' even if it
potentially sweeps in individual wetlands that are not sufficiently
``intertwined with the ecosystem of adjacent waterways'' to warrant
protection. Id. In such cases, if the regulating entity determines that
a particular wetland lacks importance to the aquatic environment, or
its importance is outweighed by other factors, that wetland could be
developed through the permit issuance process. Id.
    Some commenters noted that the definition of ``adjacent wetlands''
that the Supreme Court unanimously upheld in Riverside Bayview included
categories of wetlands that would not be per se ``adjacent'' under the
proposed rule, including all ``[w]etlands separated from other waters
of the United States by man-made dikes or barriers, natural river
berms, beach dunes and the like.'' 51 FR 41251 (Nov. 13, 1986). These
commenters stated that the Court deferred to the Corps' judgment that

wetlands may affect the water quality of jurisdictional waterbodies
even if the waterbodies do not inundate the wetlands. See Riverside
Bayview, 474 U.S. at 133-35. The proposed rule included wetlands as
jurisdictional absent inundation by another water. See e.g., 84 FR 4187
(``The proposed definition of `adjacent wetlands' would not require
surface water exchange between wetlands and the jurisdictional waters
they abut to create the jurisdictional link[.]''). As explained in
Section III.G., the agencies have considered public comments in light
of the statutory text and other relevant considerations and are
finalizing a definition of ``adjacent wetlands'' that is more
encompassing than the proposal. In any event, the agencies note that a
Court's deference to an agency's particular interpretation of a statute
does not foreclose alternative interpretations. The Supreme Court has
held that ``a court's choice of one reasonable reading of an ambiguous
statute does not preclude an implementing agency from later adopting a
different reasonable interpretation.'' United States v. Eurodif S.A.,
555 U.S. 305, 315 (2009). This principle follows from Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
which ``established a `presumption that Congress, when it left
ambiguity in a statute meant for implementation by an agency,
understood that the ambiguity would be resolved, first and foremost, by
the agency, and desired the agency (rather than the courts) to possess
whatever degree of discretion the ambiguity allows.' '' Nat'l Cable &
Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982
(2005) (quoting Smiley v. Citibank, 517 U.S. 735, 740-41 (1996)).
Moreover, an ``initial agency interpretation is not instantly carved in
stone.'' Chevron, 467 U.S. at 863; see also Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2125 (2016) (``[A]gencies are free to change
their existing policies as long as they provide a reasoned explanation
for the change.'') (citations omitted). Consistent with the APA and
applicable case law, in this final rule the agencies have provided
ample justification for a change in interpretation of the CWA
concerning the scope of jurisdiction over waters and wetlands,
including any changes from their prior interpretations.
    The Supreme Court in Riverside Bayview declined to decide whether
wetlands that are not adjacent to navigable waters could also be
regulated by the agencies. See 474 U.S. at 124 n.2 and 131 n.8. In
SWANCC a few years later, however, the Supreme Court analyzed a similar
question in the context of an abandoned sand and gravel pit located
some distance from a traditional navigable water, with excavation
trenches that ponded--some only seasonally--and served as habitat for
migratory birds. 531 U.S. at 162-63. The Supreme Court rejected the
government's stated rationale for asserting jurisdiction over such
``nonnavigable, isolated, intrastate waters'' as outside the scope of
CWA jurisdiction. Id. at 171-72. In doing so, the Supreme Court noted
that Riverside Bayview upheld ``jurisdiction over wetlands that
actually abutted on a navigable waterway'' because the wetlands were
``inseparably bound up with the `waters' of the United States.'' Id. at
167.\28\ As summarized by the SWANCC majority:
---------------------------------------------------------------------------

    \28\ At oral argument during Riverside Bayview, the attorney
representing the United States characterized the wetland at issue as
``in fact an adjacent wetland, adjacent--by adjacent, I mean it is
immediately next to, abuts, adjoins, borders, whatever other
adjective you might want to use, navigable waters of the United
States.'' Transcript of Oral Argument at 16, United States v.
Riverside Bayview Homes, 474 U.S. 121 (1985) (No. 84-701).

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

Id. at 167-68 (internal citations and emphasis omitted).
    The Court also rejected the argument that the use of the abandoned
ponds by migratory birds fell within the power of Congress to regulate
activities that in the aggregate have a substantial effect on
interstate commerce, or that the CWA regulated the use of the ponds as
a municipal landfill because such use was commercial in nature. Id. at
173. Such arguments, the Court noted, raised ``significant
constitutional questions.'' Id. ``Where an administrative
interpretation of a statute invokes the outer limits of Congress'
power, we expect a clear indication that Congress intended that
result.'' Id. at 172-73 (``Congress does not casually authorize
administrative agencies to interpret a statute to push the limit of
congressional authority.''). This is particularly true ``where the
administrative interpretation alters the federal-state framework by
permitting federal encroachment upon a traditional state power.'' Id.
at 173; see also Will v. Michigan Dep't of State Police, 491 U.S. 58,
65 (1989) (``[I]f Congress intends to alter the `usual constitutional
balance between the States and the Federal Government,' it must make
its intention to do so `unmistakably clear in the language of the
statute.' '' (quoting Atascadero State Hospital v. Scanlon, 473 U.S.
234, 242 (1985))); Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991)
(``[The] plain statement rule . . . acknowledg[es] that the States
retain substantial sovereign powers under our constitutional scheme,
powers with which Congress does not readily interfere.''). ``Rather
than expressing a desire to readjust the federal-state balance in this
manner, Congress chose [in the CWA] to `recognize, preserve, and
protect the primary responsibilities and rights of States . . . to plan
the development and use . . . of land and water resources . . . .''
SWANCC, 531 U.S. at 174 (quoting 33 U.S.C. 1251(b)). The Court found no
clear statement from Congress that it had intended to permit federal
encroachment on traditional State power and construed the CWA to avoid
the significant constitutional questions related to the scope of
federal authority authorized therein. Id.\29\
---------------------------------------------------------------------------

    \29\ The agencies note that during oral argument in SWANCC,
Justice Kennedy stated, ``[T]his case, it seems to me, does point up
the problem that petitioner's counsel raised quoting from page 1 of
the blue brief, `it is the primary responsibility of the states to
eliminate pollution and to plan development and use of land' . . . .
It seems to me that this illustrates that the way in which the Corps
has promulgated its regulation departs from the design of the
statute.'' Transcript of Oral Argument at 40, Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159
(2001) (No. 99-1178) (emphasis added). And several years later,
during oral argument in Rapanos, after the U.S. Solicitor General
stated, ``[W]hat Congress recognized in 1972 is that they had to
regulate beyond traditional navigable waters,'' Justice Kennedy
stated, ``But the Congress in 1972 also . . . said it's a statement
of policy to reserve to the States the power and the responsibility
to plan land use and water resources. And under your definition, I
just see that we're giving no scope at all to that clear statement
of the congressional policy.'' Transcript of Oral Argument at 58,
Rapanos v. United States and Carabell v. United States, 547 U.S. 715
(2006) (Nos. 04-1034, 04-1384). Although the agencies do not give
independent weight to these statements at oral argument, the
statements are consistent with the agencies' interpretation of the
CWA and applicable Supreme Court decisions.
---------------------------------------------------------------------------

    Historically, the Federal government has interpreted and applied
the SWANCC decision more narrowly, focusing on the specific holding in
the case as rejecting federal jurisdiction over the isolated ponds and
mudflats at issue in that case based on their use by migratory birds.
By contrast, members of the regulated community, certain States and
other interested stakeholders have

argued that SWANCC stands for a broader proposition based on key
federalism and separation of powers principles.\30\ In the preamble to
the proposed rule, the agencies solicited comment as to the proper
scope and interpretation of SWANCC. 84 FR 4165. Some commenters argued
that the SWANCC decision should be interpreted narrowly to apply only
to the facts presented in that case; other commenters argued that the
agencies should apply the reasoning of the SWANCC decision broadly, in
a manner similar to how the agencies had previously interpreted the
reasoning of Justice Kennedy's concurring opinion in Rapanos to extend
beyond wetlands to tributaries and other waters, for example. The
agencies agree with commenters that the interpretation and
implementation of these Supreme Court decisions within agency
regulatory programs should be consistent, and that the reasoning in the
SWANCC decision stands for key principles related to federalism and the
balancing of the traditional power of States to regulate land and water
resources within their borders with the need for national water quality
regulation.
---------------------------------------------------------------------------

    \30\ The agencies also recognize that Justice Stevens, writing
for himself and three other Justices in dissent in SWANCC,
interpreted the SWANCC majority opinion to apply beyond the
Migratory Bird Rule and the specific ponds at issue in SWANCC. His
dissent stated that the decision ``invalidates the 1986 migratory
bird regulation as well as the Corps' assertion of jurisdiction over
all waters except for actually navigable waters, their tributaries,
and wetlands adjacent to each.'' 531 U.S. at 176-77 (Stevens, J.,
dissenting) (emphasis added).
---------------------------------------------------------------------------

    The agencies recently repealed the 2015 Rule and explained in the
preamble of that action that the 2015 Rule had improperly allowed for
the application of the significant nexus standard in a manner that
would result in the assertion of jurisdiction over waters that the
Court deemed non-jurisdictional in SWANCC. 84 FR 56626-27. By allowing
federal jurisdiction to reach certain isolated ponds, such as those at
issue in SWANCC, and certain physically remote wetlands that ``do not
implicate the boundary-drawing problem of Riverside Bayview,'' the
agencies concluded that the 2015 Rule asserted federal control over
some features that ``lack the necessary connection to covered waters .
. . described as a `significant nexus' in SWANCC[.]'' Rapanos, 547 U.S.
at 742 (Scalia, J., plurality); see also Hawkes, 136 S. Ct. at 1817
(Kennedy, J., concurring in the judgment) (``[T]he reach and systemic
consequences of the Clean Water Act remain a cause for concern.''
(emphasis added)). This final rule, in contrast to the 2015 Rule,
avoids pressing against the outer limits of the agencies' authority
under the Commerce Clause and Supreme Court case law and recognizes the
limiting principles articulated by the SWANCC decision. This final rule
would not allow for the exercise of jurisdiction over waters similar to
those at issue in SWANCC.
    Several years after SWANCC, the Supreme Court considered the
concept of adjacency in consolidated cases arising out of the Sixth
Circuit. See Rapanos v. United States, 547 U.S. 715 (2006). In one
case, the Corps had determined that wetlands on three separate sites
were subject to CWA jurisdiction because they were adjacent to ditches
or man-made drains that eventually connected to traditional navigable
waters several miles away through other ditches, drains, creeks, and
rivers. Id. at 719-20, 729. In another case, the Corps had asserted
jurisdiction over a wetland separated from a man-made drainage ditch by
a four-foot-wide man-made berm. Id. at 730. The ditch emptied into
another ditch, which then connected to a creek, and eventually
connected to Lake St. Clair,\31\ a traditional navigable water,
approximately a mile from the parcel at issue. The berm was largely or
entirely impermeable but may have permitted occasional overflow from
the wetland to the ditch. Id. The Court, in a fractured opinion,
vacated and remanded the Sixth Circuit's decision upholding the Corps'
asserted jurisdiction over the four wetlands at issue, with Justice
Scalia writing for the plurality and Justice Kennedy concurring in the
judgment but on alternative grounds. Id. at 757 (Scalia, J.,