[Federal Register Volume 84, Number 204 (Tuesday, October 22, 2019)]
[Rules and Regulations]
[Pages 56626-56671]
[FR Doc No: 2019-20550]

Vol. 84

Tuesday,

No. 204

October 22, 2019

Part IV

Department of Defense

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Department of the Army, Corps of Engineers

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33 CFR Part 328

Environmental Protection Agency

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

Definition of ``Waters of the United States''--Recodification of Pre-
Existing Rules; Final Rule

Federal Register / Vol. 84 , No. 204 / Tuesday, October 22, 2019 /
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, 122, 230, 232, 300, 302, and 401

[EPA-HQ-OW-2017-0203; FRL-10000-10-OW]
RIN 2040-AF74

Definition of ``Waters of the United States''--Recodification of
Pre-Existing Rules

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

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) and the Department
of the Army (``the agencies'') are publishing a final rule to repeal
the 2015 Clean Water Rule: Definition of ``Waters of the United
States'' (``2015 Rule''), which amended portions of the Code of Federal
Regulations (CFR), and to restore the regulatory text that existed
prior to the 2015 Rule. The agencies will implement the pre-2015 Rule
regulations informed by applicable agency guidance documents and
consistent with Supreme Court decisions and longstanding agency
practice.
    The agencies are repealing the 2015 Rule for four primary reasons.
First, the agencies conclude that the 2015 Rule did not implement the
legal limits on the scope of the agencies' authority under the Clean
Water Act (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 conclude 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 repeal 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
conclude that the 2015 Rule's distance-based limitations suffered from
certain procedural errors and a lack of adequate record support. The
agencies find that these reasons, collectively and individually,
warrant repealing the 2015 Rule.
    With this final rule, the regulations defining the scope of federal
CWA jurisdiction will be those portions of the CFR as they existed
before the amendments promulgated in the 2015 Rule.

DATES: This rule is effective on December 23, 2019.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2017-0203. 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, 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 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: The agencies are taking this final action to
repeal the Clean Water Rule: Definition of ``Waters of the United
States,'' 80 FR 37054 (June 29, 2015), and to recodify the regulatory
definitions of ``waters of the United States'' that existed prior to
the August 28, 2015 effective date of the 2015 Rule. Those pre-existing
regulatory definitions are the ones that the agencies are currently
implementing in more than half the States in light of various judicial
decisions currently enjoining the 2015 Rule. As of the effective date
of this final rule, the agencies will administer the regulations
promulgated in 1986 and 1988 in portions of 33 CFR part 328 and 40 CFR
parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401,\1\ and will
continue to interpret the statutory term ``waters of the United
States'' to mean the waters covered by those regulations consistent
with Supreme Court decisions and longstanding practice, as informed by
applicable agency guidance documents, training, and experience.
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    \1\ While the EPA administers most provisions in the CWA, the
Department of the Army, Corps of Engineers administers the
permitting program under section 404. During the 1980s, both
agencies adopted substantially similar definitions of ``waters of
the United States.'' See 51 FR 41206 (Nov. 13, 1986) (amending 33
CFR 328.3); 53 FR 20764 (June 6, 1988) (amending 40 CFR 232.2).
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    State, tribal, and local governments have well-defined and
established relationships with the Federal government in implementing
CWA programs. This final rule returns the relationship between the
Federal government, States, and Tribes to the longstanding and familiar
distribution of power and responsibilities that existed under the CWA
for many years prior to the 2015 Rule.
    In issuing the July 27, 2017 notice of proposed rulemaking (NPRM)
and the July 12, 2018 supplemental notice of proposed rulemaking
(SNPRM), the agencies gave interested parties an opportunity to comment
on important considerations and reasons for the agencies' proposal,
including whether it is desirable and appropriate to recodify the pre-
2015 regulations as an interim step pending a substantive rulemaking to
reconsider the definition of ``waters of the United States.'' See 82 FR
34899, 34903 (July 27, 2017); 83 FR 32227 (July 12, 2018). The agencies
received approximately 770,000 public comments on this rulemaking and
carefully reviewed those comments in deciding whether to finalize this
rule.
    For the reasons discussed in Section III of this notice, the
agencies conclude that the 2015 Rule exceeded the agencies' authority
under the CWA by adopting an interpretation of Justice Kennedy's
``significant nexus'' standard articulated in Rapanos v. United States
and Carabell v. United States, 547 U.S. 715 (2006) (``Rapanos'') that
was inconsistent with important aspects of that opinion (as well as the
opinion of the Court in Solid Waste Agency of Northern Cook County v.
U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (``SWANCC'')) and
which enabled federal regulation of waters outside the scope of the
Act, even though Justice Kennedy's concurring opinion was identified as
the basis for the significant nexus standard established in the 2015
Rule. The agencies also conclude that, contrary to reasons articulated
in support of the 2015 Rule, the rule

expanded the meaning of ``tributaries'' and ``adjacent'' wetlands to
include waters beyond those regulated by the agencies under the pre-
existing regulations, including certain isolated waters, as applied by
the agencies following decisions of the Supreme Court in Rapanos and
SWANCC. One of the agencies' stated goals in the 2015 Rule was to
provide greater clarity in identifying the geographic scope of the CWA,
believing that ``State, tribal, and local governments have well-defined
and longstanding relationships with the Federal government in
implementing CWA programs and these relationships are not altered by
the final rule.'' 80 FR 37054. The agencies now believe that the 2015
Rule improperly altered the balance of authorities between the Federal
and State governments, in contravention of CWA section 101(b), 33
U.S.C. 1251(b), and pushed the envelope of the agencies' constitutional
and statutory authority, despite the absence of a clear indication that
Congress intended to invoke the outer limits of its power. The agencies
also conclude that the 2015 Rule's distance-based limitations in the
(a)(6) and (a)(8) categories of waters were procedurally deficient and
lacked adequate record support.
    Additionally, since the agencies' publication of the SNPRM, the
U.S. District Courts for the Southern District of Texas and the
Southern District of Georgia have found that the rule suffered from
certain procedural (both courts) and substantive (Southern District of
Georgia) errors and issued orders remanding the 2015 Rule back to the
agencies. Texas v. EPA, No. 3:15-cv-162, 2019 WL 2272464 (S.D. Tex. May
28, 2019); Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922 (S.D.
Ga. Aug. 21, 2019). As reflected below, a number of the agencies'
conclusions regarding the validity of the 2015 Rule are consistent with
and reinforced by the findings of these courts.
    Further, for the reasons discussed in Section IV of this notice,
the agencies conclude that regulatory certainty will be best served by
repealing the 2015 Rule and recodifying the pre-2015 regulations
currently in effect in those States where the 2015 Rule is enjoined.
Though the agencies recognize that the pre-existing regulations pose
certain implementation challenges, the agencies find that restoring the
prior regulations is preferable to maintaining the 2015 Rule, including
because returning to the pre-2015 regulations will reinstate nationwide
a longstanding regulatory framework that is more familiar to and
better-understood by the agencies, States, Tribes, local governments,
regulated entities, and the public while the agencies consider public
comments on the proposed revised definition of ``waters of the United
States.'' See 84 FR 4154 (Feb. 14, 2019). In that separate rulemaking,
as referenced in Section VII, the agencies are reconsidering the proper
scope of federal CWA jurisdiction and seek to establish a clear and
implementable regulatory definition that better effectuates the
language, structure, and purposes of the CWA.

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 2015 Rule
    B. Legal Challenges to the 2015 Rule
    C. Executive Order 13778 and the ``Step One'' Notice of Proposed
Rulemaking and the Supplemental Notice of Proposed Rulemaking
    D. The Applicability Date Rule
III. Basis for Repealing the 2015 Rule
    A. Legal Authority To Repeal
    B. Legal Background
    1. The Clean Water Act
    2. U.S. Supreme Court Precedent
    3. Principles and Considerations
    C. Reasons for Repeal
IV. Basis for Restoring the Pre-Existing Regulations
V. Alternatives to the Final Rule
VI. Economic Analysis
VII. The Effect of this Rule and the Agencies' Next Steps
VIII. Statutory and Executive Order Reviews

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-2017-0203. The official
public docket consists of the documents specifically referenced in this
action, and other information related to this action. The official
public docket is the collection of materials that is available for
public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution
Ave. NW, Washington, DC 20004. This Docket Facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
OW Docket telephone number is<PHONE_NUMBER>. A reasonable fee will be
charged for copies.
    2. Electronic Access. You may access this Federal Register document
electronically under the ``Federal Register'' listings at http://www.regulations.gov. An electronic version of the public docket is
available through EPA's electronic public docket and comment system,
EPA Dockets. You may access EPA Dockets at http://www.regulations.gov
to view public comments as they are submitted and posted, access the
index listing of the contents of the official public docket, and access
those documents in the public docket that are available electronically.
For additional information about EPA's public docket, visit the EPA
Docket Center homepage at 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 repealing
the 2015 amendments to the definition of ``waters of the United
States'' in portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116,
117, 122, 230, 232, 300, 302, and 401, and are restoring the pre-
existing regulatory text.

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 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 section
502(7) 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 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 id. at 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 and that is
characterized by the presence of the ``physical indicators'' of a bed
and banks and an ordinary high water mark. ``These 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.\2\ 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.
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    \2\ 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 id. at 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.
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    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 affected the interpretation
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. Id. at 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 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. Id. at 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 were not
sufficiently supported in the administrative record for the final 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.\3\ Id. This definition was different from the
test articulated by the agencies in their 2008 Rapanos Guidance.\4\
That guidance interpreted ``similarly situated'' to include all
wetlands (not waters) adjacent to the same tributary.
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    \3\ In this notice, a ``primary water'' is a category (1)
through (3) ``jurisdictional by rule'' water as defined in the 2015
Rule.
    \4\ 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. The agencies
acknowledge that the Rapanos Guidance does not impose legally
binding requirements, see id. at 4 n.17, but believe that this
guidance is relevant to the discussion in this notice.
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    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. It was
sufficient for determining whether a water had a significant nexus
under the 2015 Rule if any single function performed by the water,
alone or together with similarly situated waters in the region,
contributed significantly to the chemical, physical, or biological
integrity of the nearest category (1) through (3) ``jurisdictional by
rule'' water. 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 means that the vast majority of water
features in the United States may have come within the jurisdictional
purview of the Federal government.\5\
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    \5\ ``[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. Id. at 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.

B. Legal Challenges to the 2015 Rule

    Following the 2015 Rule's publication, 31 States \6\ and 53 non-
state

parties, including environmental groups and groups representing
farming, recreational, forestry, and other interests, filed complaints
and petitions for review in multiple federal district \7\ and appellate
\8\ 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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    \6\ 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.
    \7\ U.S. District Courts for the Northern and Southern District
of Georgia, District of Minnesota, District of North Dakota,
Southern District of Ohio, Northern District of Oklahoma, Southern
District of Texas, District of Arizona, Northern District of
Florida, District of the District of Columbia, Western District of
Washington, Northern District of California, and Northern District
of West Virginia. In April 2019, an additional challenge against the
2015 Rule was filed in the U.S. District Court for the District of
Oregon.
    \8\ U.S. Court of Appeals for the Second, Fifth, Sixth, Eighth,
Ninth, Tenth, Eleventh, and District of Columbia Circuits.
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    The day before the 2015 Rule's August 28, 2015 effective date, the
U.S. District Court for the District of North Dakota preliminarily
enjoined the 2015 Rule in the 13 States that challenged the rule in
that court.\9\ 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 1058. No
party sought an interlocutory appeal.
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    \9\ 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.
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    The numerous petitions for review filed in the courts of appeals
were consolidated in the U.S. Court of Appeals for the Sixth Circuit.
In that litigation, State and industry petitioners raised concerns
about whether the 2015 Rule violated the Constitution and the CWA and
whether its promulgation violated the APA and other statutes.
Environmental petitioners also challenged the 2015 Rule, claiming that
the 2015 Rule was too narrow 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).
    Since the Supreme Court's jurisdictional ruling, district court
litigation regarding the 2015 Rule has 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.\10\ 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 has since 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 preliminary
injunction against the 2015 Rule. Id. at *36.
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    \10\ As of the date this final rule was signed, it is unclear
whether the North Dakota district court's preliminary injunction
also applies to New Mexico. See supra note 10.
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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,\11\ which served as the technical basis for
the final rule. See Texas v. EPA, No.

3:15-cv-162, 2019 WL 2272464 (S.D. Tex. May 28, 2019).
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    \11\ 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).
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    Moreover, 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, at this time, the 2015 Rule is
enjoined in more than half of the States.\12\
---------------------------------------------------------------------------

    \12\ Prior to this final rule, the applicability of the 2015
Rule in New Mexico has been unclear. See supra note 10.
---------------------------------------------------------------------------

    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).
    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, also filed a motion for a preliminary
injunction against the 2015 Rule. In May 2019, the court denied the
parties' motion, finding that the parties had ``not shown that they
will suffer irreparable harm if the 2015 Rule is permitted to remain in
effect while this case is pending.'' See Oklahoma v. EPA, No. 4:15-cv-
00381, slip. op. at 11-12 (N.D. Okla. May 29, 2019). Proceedings in
this case are stayed pending the parties' appeal of the court's order
denying a preliminary injunction to the Tenth Circuit. See Order,
Oklahoma v. EPA, No. 4:15-cv-00381 (N.D. Okla. June 14, 2019).
    Finally, an additional motion for a preliminary injunction against
the 2015 Rule is pending in the U.S. District Court for the Western
District of Washington. See Motion for Preliminary Injunction, Wash.
Cattlemen's Ass'n v. EPA, No. 19-00569 (W.D. Wash. June 14, 2019).

C. Executive Order 13778 and the ``Step One'' Notice of Proposed
Rulemaking and Supplemental Notice of Proposed 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
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 Department of 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 ``Step One'' 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 invited comment on the NPRM
over a 62-day period. On July 12, 2018, the agencies published a
supplemental notice of proposed rulemaking to clarify, supplement, and
seek additional comment on the Step One notice of proposed rulemaking.
83 FR 32227. The agencies invited comment on the SNPRM over a 30-day
period.
    In developing this final 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. With the NPRM and SNPRM the agencies sought comment on the
repeal of the 2015 Rule, the recodification of the prior regulations,
the considerations and agencies' reasons for the proposal, and proposed
conclusions that the agencies exceeded their authority under the CWA.
In addition, the public could comment on all aspects of the NPRM, the
economic analysis for the NPRM, and the SNPRM. Some commenters
expressed support for the agencies' proposal to repeal the 2015 Rule,
stating, among other things, that the 2015 Rule exceeds the agencies'
statutory authority. Other commenters opposed the proposal, stating,
among other things, that repealing the 2015 Rule will increase
regulatory uncertainty and adversely impact water quality. A complete
response to comment document is available in the docket for this final
rule at Docket ID No. EPA-HQ-OW-2017-0203.

D. The Applicability Date Rule

    On November 22, 2017, the agencies published and solicited public
comment on a proposal to establish an applicability date for the 2015
Rule that would be two years from the date of any final rule. 82 FR
55542. On February 6, 2018, the agencies issued a final rule, 83 FR
5200, adding an applicability date to the 2015 Rule. The applicability
date was established as February 6, 2020. When adding an applicability
date to the 2015 Rule, the agencies clarified that they would continue
to implement nationwide the previous regulatory definition of ``waters
of the United States,'' consistent with the practice and procedures the
agencies implemented long before and immediately following the 2015
Rule pursuant to the preliminary injunction issued by the District of
North Dakota and the nationwide stay issued by the Sixth Circuit. The
agencies further explained that the final applicability date rule would
ensure regulatory certainty and consistent implementation of the CWA
nationwide while the agencies reconsider the 2015 Rule and pursue
further rulemaking to develop a new definition of ``waters of the
United States.''
    The applicability date rule was challenged in a number of district
courts by States and environmental organizations. On August 16, 2018,
the U.S. District Court for the District of South Carolina granted
summary judgment in favor of the plaintiffs and enjoined the
applicability date rule nationwide. South Carolina Coastal Conservation
League, et al., v. Pruitt, 318 F. Supp. 3d 959 (D.S.C. Aug. 16, 2018).
In addition, on November 26, 2018, the U.S. District Court for the
Western District of Washington vacated the applicability date rule
nationwide. Puget Soundkeeper Alliance, et al. v.

Andrew Wheeler, et al., No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018). As
a result, the 2015 Rule is now in effect in 22 States.\13\ The 2015
Rule continues to be subject to preliminary injunctions issued by the
U.S. District Court for the District of North Dakota, the U.S. District
Court for the District of Oregon, the U.S. District Court for the
Southern District of Georgia, and the U.S. District Court for the
Southern District of Texas in a total of 27 States.\14\
---------------------------------------------------------------------------

    \13\ To assist the public in keeping up with the changing
regulatory landscape of federal jurisdiction under the CWA, the EPA
has posted a map of current effective regulation by state online at
https://www.epa.gov/wotus-rule/definition-waters-united-states-rule-status-and-litigation-update.
    \14\ The agencies filed a motion seeking clarification of the
applicability of the North Dakota district court's preliminary
injunction to New Mexico. See supra note 10. That motion remains
pending before the court as of the time of signature of this final
rule.
---------------------------------------------------------------------------

III. Basis for Repealing the 2015 Rule

A. Legal Authority To Repeal

    The agencies' ability to repeal an existing regulation through
notice-and-comment rulemaking is well-grounded in the law. The APA
defines ``rule making'' to mean ``agency process for formulating,
amending, or repealing a rule.'' 5 U.S.C. 551(5). The CWA complements
this authority by providing the Administrator with broad authority to
``prescribe such regulations as are necessary to carry out the
functions under this Act.'' 33 U.S.C. 1361(a). This broad authority
includes issuing regulations that repeal or revise CWA implementing
regulations promulgated by a prior administration.
    As discussed in the NPRM and SNPRM, ``agencies are free to change
their existing policies as long as they provide a reasoned explanation
for the change.'' See Encino Motorcars, LLC v. Navarro, 136 S. Ct.
2117, 2125 (2016) (citations omitted); see also 82 FR 34901; 83 FR
32231. Agencies may seek to revise or repeal regulations based on
changes in circumstance or changes in statutory interpretation or
policy judgments. See, e.g., FCC v. Fox Television Stations, Inc., 556
U.S. 502, 514-15 (2009) (``Fox''); Ctr. for Sci. in Pub. Interest v.
Dep't of Treasury, 797 F.2d 995, 998-99 & n.1 (D.C. Cir. 1986). Indeed,
the agencies' interpretation of the statutes they administer, such as
the CWA, are not ``instantly carved in stone''; quite the contrary, the
agencies ``must consider varying interpretations and the wisdom of
[their] policy on a continuing basis, . . . for example, in response to
. . . a change in administrations.'' Nat'l Cable & Telecommc'ns Ass'n
v. Brand X internet Servs., 545 U.S. 967, 981-82 (2005) (``Brand X'')
(internal quotation marks omitted) (quoting Chevron U.S.A., Inc. v.
NRDC, 467 U.S. 837, 863-64 (1984)) (citing Motor Vehicle Mfrs. Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J.,
concurring in part and dissenting in part)). As such, a revised
rulemaking based ``on a reevaluation of which policy would be better in
light of the facts'' is ``well within an agency's discretion,'' and
``[a] change in administration brought about by the people casting
their votes is a perfectly reasonable basis for an executive agency's
reappraisal'' of its regulations and programs. Nat'l Ass'n of Home
Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. Cir. 2012)
(``NAHB'').
    In providing a reasoned explanation for a change in position, ``an
agency must also be cognizant that longstanding policies may have
engendered serious reliance interests that must be taken into
account.'' Encino Motorcars, 136 S. Ct. at 2126 (internal quotation
marks and citation omitted). In Encino Motorcars, the Supreme Court
held that the Department of Labor issued a regulation without the
necessary ``reasoned explanation'' where the Department ``offered
barely any explanation'' for changing its position despite ``the
significant reliance interests involved.'' Id. The Court found that the
Department ``did not analyze or explain'' why the statute should be
interpreted in the manner reflected in the new rule and ``said almost
nothing'' to explain whether there were ``good reasons for the new
policy.'' Id. at 2127. The Court explained that while a ``summary
discussion may suffice in other circumstances,'' the Department's
explanation was particularly inadequate given the ``decades of industry
reliance on the Department's prior policy.'' Id. at 2126.
    The 2015 Rule, unlike the decades-old regulation discussed in
Encino Motorcars, has not engendered significant reliance interests. As
explained in Section II.B, the 2015 Rule has never been in effect
nationwide, and the applicability of the rule has remained in flux due
to a shifting set of preliminary injunctions barring implementation of
the rule in different States across the country. Indeed, over the past
year alone, the number of States subject to the 2015 Rule has changed
multiple times. Regardless, the agencies have provided ample
justification for their change in position. As reflected in this
preamble to the final rule, the agencies have carefully analyzed their
statutory and constitutional authority, along with relevant case law,
and have provided a detailed explanation of their reasons for deciding
to repeal the 2015 Rule and restore the pre-existing regulations.
    Some commenters found that the agencies provided a reasoned
explanation to repeal the 2015 Rule given the agencies' concerns that
the 2015 Rule was inconsistent with the agencies' statutory authority
and Supreme Court precedent. Commenters also found that the agencies
provided good reasons for the change in policy, such as the desire to
balance the objective, goals, and policies of the CWA. Other commenters
asserted that the agencies have not satisfied the legal requirements
for revising an existing regulation. Some of these commenters stated
that the agencies have failed to provide a reasoned explanation to
support this action or the agencies' change in position and noted that
a change in administrations is insufficient, in and of itself, to
support this rule.
    As referenced above, the Supreme Court and lower courts have
acknowledged that an agency may repeal regulations promulgated by a
prior administration based on changes in agency policy where ``the
agency adequately explains the reasons for a reversal of policy.''
Brand X, 545 U.S. at 981. The agencies need not demonstrate that the
reasons for a new policy are better than the reasons for the old one
because ``it suffices that the new policy is permissible under the
statute, that there are good reasons for it, and that the agency
believes it to be better, which the conscious change of course
adequately indicates.'' Fox, 556 U.S. at 515. Further, ``[w]hen an
agency changes its existing position, it need not always provide a more
detailed justification than what would suffice for a new policy created
on a blank slate.'' Encino Motorcars, 136 S. Ct. at 2125 (citations and
internal quotation marks omitted).
    Consistent with the APA and applicable case law, the agencies have
provided a reasoned explanation for repealing the 2015 Rule and
recodifying the pre-existing regulations, including that the 2015 Rule
exceeded the scope of statutory authority in certain respects. The
agencies acknowledge, as some commenters observed, that certain legal
interpretations and conclusions supporting the agencies' rationale for
this rulemaking are inconsistent with the agencies' prior
administrative findings and previous positions taken by the United
States in legal briefs. However, so long as an agency ``adequately
explains the reasons for a reversal of policy, change is not

invalidating.'' Fox, 545 U.S. at 981 (citation and internal quotation
marks omitted). Indeed, departing from a prior position is proper
where, as here, the agencies' change in position is based on a
considered evaluation of the relevant factors following a thorough
rulemaking process. Throughout this rulemaking process, the agencies
have clearly identified the issues the agencies were considering in
deciding whether to finalize this action, and the agencies solicited,
received, and considered many comments on those issues. See, e.g., 83
FR 32240-42, 32247-48. The agencies have also thoroughly explained
their rationale in this preamble to the final rule and in the
accompanying response to comments document.

B. Legal Background

1. The Clean Water Act
    Congress amended the Federal Water Pollution Control Act (FWPCA),
or Clean Water Act (CWA) as it is commonly called,\15\ in 1972 to
address longstanding concerns regarding the quality of the nation's
waters and the Federal government's ability to address those concerns
under existing law. Prior to 1972, the ability to control and redress
water pollution in the nation's waters largely fell to the U.S. Army
Corps of Engineers (``Corps'') under the Rivers and Harbors Act of 1899
(RHA). While much of that statute focused on restricting obstructions
to navigation on the nation's major waterways, section 13 of the RHA
made it unlawful to discharge refuse ``into any navigable water of the
United States, or into any tributary of any navigable water from which
the same shall float or be washed into such navigable water.'' \16\ 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.
These 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.
---------------------------------------------------------------------------

    \15\ 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.
    \16\ The term ``navigable water of the United States'' is a term
of art used to refer to waters subject to federal jurisdiction under
the RHA. See, e.g., 33 CFR 329.1. The term is not synonymous with
the phrase ``waters of the United States'' under the CWA, see id.,
and the general term ``navigable waters'' has different meanings
depending on the context of the statute in which it is used. See,
e.g., PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1228 (2012).
---------------------------------------------------------------------------

    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 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)
(``[T]he 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 established several key policies that direct the work of
the agencies to effectuate those goals. For example, Congress declared
as a national policy ``that the discharge of toxic pollutants in toxic
amounts be prohibited; . . . that Federal financial assistance be
provided to construct publicly owned waste treatment works; . . . that
areawide waste treatment management planning processes be developed and
implemented to assure adequate control of sources of pollutants in each
State; . . . [and] that programs for the control of nonpoint sources of
pollution be developed and implemented in an expeditious manner so as
to enable the goals of this Act to be met through the control of both
point and nonpoint sources of pollution.'' Id. at 1251(a)(3)-(7).
    Congress provided a major role for the States in implementing the
CWA, balancing the traditional power of States to regulate land and
water resources within their borders with the need for a national water
quality regulation. For example, the statute highlighted ``the policy
of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution'' and ``to plan the development and use . . . of land and
water resources . . . .'' Id. at 1251(b). Congress also declared as a
national policy that States manage the major construction grant program
and implement the core permitting programs authorized by the statute,
among other responsibilities. Id. Congress added that ``[e]xcept as
expressly provided in this Act, nothing in this Act shall . . . be
construed as impairing or in any manner affecting any right or
jurisdiction of the States with respect to the waters (including
boundary waters) of such States.'' Id. at 1370.\17\ Congress also
pledged to provide technical support and financial aid to the States
``in connection with the prevention, reduction, and elimination of
pollution.'' Id. at 1251(b).
---------------------------------------------------------------------------

    \17\ 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.
---------------------------------------------------------------------------

    To carry out these policies, Congress broadly defined ``pollution''
to mean ``the man-made or man-induced alteration of the chemical,
physical, biological, and radiological integrity of water,'' id. at
1362(19), to parallel the broad objective of the Act ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Id. at 1251(a). Congress then crafted a non-
regulatory statutory framework to provide technical and financial
assistance to the States to prevent, reduce, and eliminate pollution in
the nation's waters generally. For example, section 105 of the Act,
``Grants for research and development,'' authorized EPA ``to make
grants to any State, municipality, or intermunicipal or interstate
agency for the purpose of assisting in the development of any project
which will demonstrate a new or improved method of preventing,
reducing, and eliminating the discharge into any waters of pollutants
from sewers which carry storm water or both storm water and
pollutants.'' 33 U.S.C. 1255(a)(1) (emphasis added). Section 105 also
authorized EPA ``to make grants to any State or States or interstate
agency to demonstrate, in river basins or portions thereof, advanced
treatment and environmental enhancement techniques to control pollution
from all sources . . . including nonpoint sources, . . . [and] . . . to
carry out the purposes of section 301 of this Act . . . for research
and demonstration projects for prevention of pollution of any waters

by industry including, but not limited to, the prevention, reduction,
and elimination of the discharge of pollutants.'' 33 U.S.C. 1255(b)-(c)
(emphasis added); see also id. at 1256(a) (authorizing EPA to issue
``grants to States and to interstate agencies to assist them in
administering programs for the prevention, reduction, and elimination
of pollution''). Section 108, ``Pollution control in the Great Lakes,''
authorized EPA to enter into agreements with any state to develop plans
for the ``elimination or control of pollution, within all or any part
of the watersheds of the Great Lakes.'' Id. at 1258(a) (emphasis
added); see also id. at 1268(a)(3)(C) (defining the ``Great Lakes
System'' as ``all the streams, rivers, lakes, and other bodies of water
within the drainage basin of the Great Lakes''). Similar broad
pollution control programs were created for other major watersheds,
including, for example, the Chesapeake Bay, see id. at 1267(a)(3), Long
Island Sound, see id. at 1269(c)(2)(D), and Lake Champlain. See id. at
1270(g)(2).
    In addition to the Act's non-regulatory measures to control
pollution of the nation's waters generally, Congress created a federal
regulatory permitting program designed to address the discharge of
pollutants into a subset of those waters identified as ``navigable
waters,'' defined as ``the waters of the United States.'' Id. at
1362(7). Section 301 contains the key regulatory mechanism: ``Except as
in compliance with this section and sections 302, 306, 307, 318, 402,
and 404 of this Act, the discharge of any pollutant by any person shall
be unlawful.'' Id. at 1311(a). A ``discharge of a pollutant'' is
defined to include ``any addition of any pollutant to navigable waters
from any point source,'' such as a pipe, ditch or other ``discernible,
confined and discrete conveyance.'' Id. at 1362(12), (14). The term
``pollutant'' means ``dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water.'' Id. at 1362(6). Thus, it is unlawful to
discharge pollutants into waters of the United States from a point
source unless the discharge is in compliance with certain enumerated
sections of the CWA, including obtaining authorizations pursuant to the
section 402 National Pollutant Discharge Elimination System (NPDES)
permit program or the section 404 dredged or fill material permit
program. See id. at 1342 and 1344. Congress therefore hoped to achieve
the Act's objective ``to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters'' by addressing
pollution of all waters via non-regulatory means and federally
regulating the discharge of pollutants to the subset of waters
identified as ``navigable waters.'' \18\
---------------------------------------------------------------------------

    \18\ Members of Congress were aware when they drafted the 1972
CWA amendments that different types of the Nation's waters would be
subject to different degrees of federal control. For instance, in
House Debate regarding a proposed and ultimately failed amendment to
prohibit the discharge of pollutants to ground waters in addition to
navigable waters, Representative Don H. Clausen stated, ``Mr.
Chairman, in the early deliberations within the committee which
resulted in the introduction of H.R. 11896, a provision for ground
waters . . . was thoroughly reviewed and it was determined by the
committee that there was not sufficient information on ground waters
to justify the types of controls that are required for navigable
waters. I refer the gentleman to the objectives of this act as
stated in section 101(a). The objective of this act is to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters. I call your attention to the fact that this does
not say the Nation's `navigable waters,' `interstate waters,' or
`intrastate waters.' It just says `waters.' This includes ground
waters.'' 118 Cong. Rec. at 10,667 (daily ed. March 28, 1972).
---------------------------------------------------------------------------

    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 selectively quoting from and
mischaracterizing the Act's provisions. Other commenters argued that
the two terms are synonymous under the Act.
    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 Savings Ass'n 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 in
addition to a federal regulatory prohibition on the discharge of
pollutants into the navigable waters.
    Under this statutory scheme, the States are responsible for
developing water quality standards for ``waters of the United States''
within their borders and reporting on the condition of those waters to
EPA every two years. 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 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. Id. at 1377(e). In addition, States
and Tribes retain authority to protect and manage the use of those
waters that are not navigable waters under the CWA. See, e.g., id. at
1251(b), 1251(g), 1370, 1377(a). At this time, forty-seven States
administer the CWA section 402 permit program for those ``waters of the
United States'' within their boundaries,\19\ 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). At
present, no Tribes administer the section 402 or 404 programs, although
some are exploring the possibility.
---------------------------------------------------------------------------

    \19\ Three States (Massachusetts, New Hampshire, and New Mexico)
do not currently administer any part of the CWA section 402 program.
---------------------------------------------------------------------------

    The agencies have developed 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'').\20\ The agencies therefore recognize a distinction between the
specific word choices of Congress, including the need to develop
regulatory programs that aim to accomplish the goals of the Act while
implementing the specific policy directives of Congress.\21\ To do so,
the agencies must determine what Congress had in mind when it defined
``navigable waters'' in 1972 as simply ``the waters of the United
States.''
---------------------------------------------------------------------------

    \20\ 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). In
House consideration of the Conference Report, Congressman Jones
captured the policy versus goal distinction in Section 101(a)(1) as
follows: ``The objective of this legislation is to restore and
preserve for the future the integrity of our Nation's waters. The
bill sets forth as a national goal the complete elimination of all
discharges into our navigable waters by 1985, but . . . the
conference report states clearly that achieving the 1985 target date
is a goal, not a national policy. As such, it serves as a focal
point for long-range planning, and for research and development in
water pollution control technology. . . . While it is our hope that
we can succeed in eliminating all discharge into our waters by 1985,
without unreasonable impact on the national life, we recognized in
this report that too many imponderables exist, some still beyond our
horizons, to prescribe this goal today as a legal requirement.'' 118
Cong. Rec. H. 33749 (daily ed. October 4, 1972).
    \21\ 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.''); see also Crandon v. United States, 494 U.S. 152,
158 (1990) (``In determining the meaning of the statute, we look not
only to the particular statutory language, but to the design of the
statute as a whole and to its object and policy.'') (emphasis
added).
---------------------------------------------------------------------------

    Congress' authority to regulate ``navigable waters'' derives from
its power to regulate the ``channels of interstate commerce'' under the
Commerce Clause. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); see
also United States v. Lopez, 514 U.S. 549, 558-59 (1995) (describing
the ``channels of interstate commerce'' as one of three areas of
congressional authority under the Commerce Clause). The Supreme Court
explained in SWANCC that the term ``navigable'' indicates ``what
Congress had in mind as its authority for enacting the Clean Water Act:
Its traditional jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so made.'' 531 U.S. 159,
172 (2001). The Court further explained that nothing in the legislative
history of the Act provides any indication that ``Congress intended to
exert anything more than its commerce power over navigation.'' Id. at
168 n.3. The Supreme Court, however, has recognized that Congress
intended ``to exercise its powers under the Commerce Clause to regulate
at least some waters that would not be deemed `navigable' under the
classical understanding of that term.'' Riverside Bayview, 474 U.S. at
133; see also SWANCC, 531 U.S. at 167.
    The classical understanding of the term navigable was first
articulated by the Supreme Court in The Daniel Ball:

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

77 U.S. (10 Wall.) 557, 563 (1871). Over the years, this traditional
test has been expanded to include waters that had been used in the past
for interstate commerce, see Economy Light & Power Co. v. United
States, 256 U.S. 113, 123 (1921), and waters that are susceptible for
use with reasonable improvement. See United States v. Appalachian Elec.
Power Co., 311 U.S. 377, 407-10 (1940).
    By the time the 1972 CWA amendments were enacted, the Supreme Court
had 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 also had 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).\22\ Other references suggest that
congressional committees at least contemplated applying the ``control
requirements'' of the Act ``to the navigable waters, portions thereof,
and their tributaries.'' S. Rep. No. 92-414, 92nd Cong., 1st Sess. at
77 (1971). And in 1977, when Congress authorized State assumption over
the section 404 dredged or fill material permitting program, Congress
limited the scope of assumable waters by requiring the Corps to retain
permitting authority over Rivers and Harbors Act waters (as identified
by The Daniel Ball test) plus wetlands adjacent to those waters, minus
historic use only waters. See 33 U.S.C. 1344(g)(1).\23\ 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.
---------------------------------------------------------------------------

    \22\ 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).
    \23\ For a detailed discussion of the legislative history
supporting the enactment of section 404(g), see Final Report of the
Assumable Waters Subcommittee (May 2017), App. F.
---------------------------------------------------------------------------

    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.
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 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 the limits of federal jurisdiction end,
noting that the line is somewhere between open water and dry land:

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

Id. at 132 (emphasis added). Within this statement, the Supreme Court
identifies a basic principle for adjacent wetlands: The limits of
jurisdiction lie within the ``continuum'' or ``transition'' ``between
open waters and dry land.'' Observing that Congress intended the CWA
``to regulate at least some waters that would not be deemed
`navigable,''' the Court therefore held that it is ``a permissible
interpretation of the Act'' to conclude that ``a wetland that actually
abuts on a navigable waterway'' falls within the ``definition of
`waters of the United States.''' Id. at 133, 135. Thus, a wetland that
abuts a 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 Court also noted
that the agencies can establish categories of jurisdiction for adjacent
wetlands. See id. at 135 n.9.
    The Supreme Court in Riverside Bayview declined to decide whether
wetlands that are not adjacent to navigable waters could also be
regulated by the agencies. See id. at 124 n.2 & 131 n.8. In SWANCC a
few years later, however, the Supreme Court analyzed a similar question
but in the context of an abandoned sand and gravel pit located some
distance from a traditional navigable water, with excavation trenches
that ponded--some only seasonally--and served as habitat for migratory
birds. 531 U.S. at 162-64. The Supreme Court rejected the government's
stated rationale for asserting jurisdiction over these ``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.\24\ As summarized
by the SWANCC majority:
---------------------------------------------------------------------------

    \24\ For additional context, at oral argument during Riverside
Bayview, the government attorney characterized the wetland at issue
as ``in fact an adjacent wetland, adjacent--by adjacent, I mean it
is immediately next to, abuts, adjoins, borders, whatever other
adjective you might want to use, navigable waters of the United
States.'' Transcript of Oral Argument at 16, United States v.
Riverside Bayview Homes, Inc., 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 (citations omitted).
    The Court also rejected the argument that the use of the abandoned
ponds by migratory birds fell within the power of Congress to regulate
activities that in the aggregate have a substantial effect on
interstate commerce, or that the CWA regulated the use of the ponds as
a municipal landfill because such use was commercial in nature. 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 Atascadero State Hospital v. Scanlon, 473 U.S. 234,
242-43 (1985) (``If Congress intends to alter the `usual constitutional
balance between the States and the Federal Government,' it must make
its intention to do so `unmistakably clear in the language of the
statute[.]'''); Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (``the
plain statement rule . . . acknowledg[es] that the States retain
substantial sovereign powers under our constitutional scheme, powers
with which Congress does not readily interfere''). ``Rather than
expressing a desire to readjust the federal-state balance in this
manner, Congress chose [in the CWA] to `recognize, preserve, and
protect the primary responsibilities and rights of States . . . to plan
the development and use . . . of land and water resources . . . .''
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.\25\
---------------------------------------------------------------------------

    \25\ 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.'' (emphasis added). 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). And several years
later, in oral argument in Rapanos, after U.S. Solicitor General
Clement stated, ``[W]hat Congress recognized in 1972 is that they
had to regulate beyond traditional navigable waters,'' Justice
Kennedy immediately replied, ``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).
---------------------------------------------------------------------------

    Several years after SWANCC, the Supreme Court considered the
concept

of adjacency in consolidated cases arising out of the Sixth Circuit.
See Rapanos v. United States, 547 U.S. 715 (2006). In one case, the
Corps had determined that wetlands on three separate sites were subject
to CWA jurisdiction because they were adjacent to ditches or man-made
drains that eventually connected to traditional navigable waters
several miles away through other ditches, drains, creeks, and/or
rivers. Id. at 719-20, 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, 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 alternate grounds. Id. at 757 (plurality), 787
(Kennedy, J., concurring).
    The plurality determined that CWA jurisdiction only extended to
adjacent ``wetlands with a continuous surface connection to bodies that
are `waters of the United States' in their own right, so that there is
no clear demarcation between `waters' and wetlands.'' Id. at 742. The
plurality then concluded that ``establishing . . . wetlands . . .
covered by the Act requires two findings: First, that the adjacent
channel contains a `wate[r] of the United States,' (i.e., a relatively
permanent body of water connected to traditional interstate navigable
waters); and second, that the wetland has a continuous surface
connection with that water, making it difficult to determine where the
`water' ends and the `wetland' begins.'' Id. (alteration in original).
    In reaching the adjacency component of the two-part analysis, the
plurality interpreted Riverside Bayview, and its subsequent SWANCC
decision characterizing Riverside Bayview, as authorizing jurisdiction
over wetlands that physically abutted traditional navigable waters. Id.
at 740-42. The plurality focused on the ``inherent ambiguity''
described in Riverside Bayview in determining where on the continuum
between open waters and dry land the scope of federal jurisdiction
should end. Id. at 740. It was ``the inherent difficulties of defining
precise bounds to regulable waters,'' id. at 741 n.10, according to the
plurality, that prompted the Court in Riverside Bayview to defer to the
Corps' inclusion of adjacent wetlands as ``waters'' subject to CWA
jurisdiction based on proximity. Id. at 741 (``When we characterized
the holding of Riverside Bayview in SWANCC, we referred to the close
connection between waters and the wetlands they gradually blend into:
`It was the significant nexus between the wetlands and `navigable
waters' that informed our reading of the CWA in Riverside Bayview
Homes.'''); see also Riverside Bayview, 474 U.S. 134, quoting 42 FR
37128 (July 19, 1977) (``For this reason, the landward limit of Federal
jurisdiction under Section 404 must include any adjacent wetlands that
form the border of or are in reasonable proximity to other waters of
the United States, as these wetlands are part of this aquatic
system.''). The plurality also noted that ``SWANCC rejected the notion
that the ecological considerations upon which the Corps relied in
Riverside Bayview . . . provided an independent basis for including
entities like `wetlands' (or `ephemeral streams') within the phrase
`the waters of the United States.' SWANCC found such ecological
considerations irrelevant to the question whether physically isolated
waters come within the Corps' jurisdiction.'' Id. at 741-42 (original
emphasis).
    Justice Kennedy disagreed with the plurality's conclusion that
adjacency requires a ``continuous surface connection'' to covered
waters. Id. at 772. In reading the phrase ``continuous surface
connection'' to mean a continuous ``surface-water connection,'' id. at
776, and interpreting the plurality's standard to include a ``surface-
water-connection requirement,'' id. at 774, Justice Kennedy stated that
``when a surface-water connection is lacking, the plurality forecloses
jurisdiction over wetlands that abut navigable-in-fact waters--even
though such navigable waters were traditionally subject to federal
authority.'' Id. at 776. He noted that the Riverside Bayview Court
``deemed it irrelevant whether `the moisture creating the wetlands . .
. find[s] its source in the adjacent bodies of water.'' Id. at 772
(citations omitted).
    The plurality did not directly address the precise distinction
raised by Justice Kennedy. It did note in response that the ``Riverside
Bayview opinion required'' a ``continuous physical connection,'' id. at
751 n.13 (emphasis added), and focused on evaluating adjacency between
a ``water'' and a wetland ``in the sense of possessing a continuous
surface connection that creates the boundary-drawing problem we
addressed in Riverside Bayview.'' Id. at 757. The plurality also
explained that its standard includes a ``physical-connection
requirement'' between wetlands and covered waters. Id. at 751 n.13. In
other words, the plurality appeared to be more focused on the abutting
nature rather than the source of water creating the wetlands at issue
in Riverside Bayview to describe the legal constructs applicable to
adjacent wetlands. See id. at 747; see also Webster's II, New Riverside
University Dictionary (1994) (defining ``abut'' to mean ``to border
on'' or ``to touch at one end or side of something''). The plurality
agreed with Justice Kennedy and the Riverside Bayview Court that ``[a]s
long as the wetland is `adjacent' to covered waters . . . its creation
vel non by inundation is irrelevant.'' Id. at 751 n.13.\26\
---------------------------------------------------------------------------

    \26\ The agencies' 2008 Rapanos Guidance recognizes that the
plurality's ``continuous surface connection'' does not refer to a
continuous surface water connection. See, e.g., Rapanos Guidance at
7 n.28 (``A continuous surface connection does not require surface
water to be continuously present between the wetland and the
tributary.'').
---------------------------------------------------------------------------

    Because wetlands with a physically remote hydrologic connection do
not raise the same boundary-drawing concerns presented by actually
abutting wetlands, the plurality determined that ``inherent ambiguity
in defining where water ends and abutting (`adjacent') wetlands begin''
upon which Riverside Bayview rests does not apply to such features. Id.
at 742 (``Wetlands with only an intermittent, physically remote
hydrologic connection to `waters of the United States' do not implicate
the boundary-drawing problem of Riverside Bayview, and thus lack the
necessary connection to covered waters that we described as a
`significant nexus' in SWANCC[.]''). The plurality supported this
position by referring to the Court's treatment of certain isolated
waters in SWANCC as non-jurisdictional. Id. 741-42 (``We held that
`nonnavigable, isolated, intrastate waters--which, unlike the wetlands
at issue in Riverside Bayview, did not `actually abu[t] on a navigable
waterway,'--were not included as `waters of the United States.'''). It
interpreted the reasoning of SWANCC to exclude those waters. The
plurality found ``no support for the inclusion of physically
unconnected wetlands as covered `waters''' based on Riverside Bayview's
treatment of the Corps' definition of adjacent. Id. at 747; see also
id. at 746 (``the Corps' definition of `adjacent' . . . has been
extended beyond reason.'').

    Although ultimately concurring in judgment, Justice Kennedy focused
on the ``significant nexus'' between adjacent wetlands and traditional
navigable waters as the basis for determining whether a wetland is
subject to CWA jurisdiction. He quotes the SWANCC decision, which
explains, ``[i]t was the significant nexus between wetlands and
navigable waters . . . that informed our reading of the [Act] in
Riverside Bayview Homes.'' 531 U.S. at 167. Justice Kennedy also
interpreted the reasoning of SWANCC to exclude certain isolated waters.
His opinion notes that: ``Because such a nexus was lacking with respect
to isolated ponds, the Court held that the plain text of the statute
did not permit the Corps' action.'' 547 U.S. at 767 (internal
quotations and citations omitted). Justice Kennedy notes that the
wetlands at issue in Riverside Bayview were ``adjacent to [a]
navigable-in-fact waterway[],'' while the ``ponds and mudflats''
considered in SWANCC ``were isolated in the sense of being unconnected
to other waters covered by the Act.'' Id. at 765-66. ``Taken together,
these cases establish that in some instances, as exemplified by
Riverside Bayview, the connection between a nonnavigable water or
wetland and a navigable water may be so close, or potentially so close,
that the Corps may deem the water or wetland a `navigable water' under
the Act. In other instances, as exemplified by SWANCC, there may be
little or no connection. Absent a significant nexus, jurisdiction under
the Act is lacking.'' Id. at 767.
    According to Justice Kennedy, whereas the isolated ponds and
mudflats in SWANCC lack a ``significant nexus'' to navigable waters, it
is the ``conclusive standard for jurisdiction'' based on ``a reasonable
inference of ecological interconnection'' between adjacent wetlands and
navigable-in-fact waters that allows for their categorical inclusion as
``waters of the United States.'' Id. at 780 (``[T]he assertion of
jurisdiction for those wetlands [adjacent to navigable-in-fact waters]
is sustainable under the act by showing adjacency alone.''). Justice
Kennedy surmised that it may be that the same rationale ``without any
inquiry beyond adjacency . . . could apply equally to wetlands adjacent
to certain major tributaries.'' Id. He noted that the Corps could
establish by regulation categories of tributaries based on volume of
flow, proximity to navigable waters, or other relevant factors that
``are significant enough that wetlands adjacent to them are likely, in
the majority of cases, to perform important functions for an aquatic
system incorporating navigable waters.'' Id. at 780-81. However,
``[t]he Corps' existing standard for tributaries'' provided Justice
Kennedy ``no such assurance'' to infer the categorical existence of a
requisite nexus between waters traditionally understood as navigable
and wetlands adjacent to nonnavigable tributaries. Id. at 781. That is
because:

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

Id. at 781-82.
    To avoid this outcome, Justice Kennedy stated that, absent
development of a more specific regulation and categorical inclusion of
wetlands adjacent to ``certain major'' or even ``minor'' tributaries as
was established in Riverside Bayview, id. at 780-81, the Corps ``must
establish a significant nexus on a case-by-case basis when it seeks to
regulate wetlands based on adjacency to nonnavigable tributaries. Given
the potential overbreadth of the Corps' regulations, this showing is
necessary to avoid unreasonable applications of the statute.'' Id. at
782. Justice Kennedy stated that adjacent ``wetlands possess the
requisite nexus, and thus come within the statutory phrase `navigable
waters,' if the wetlands, either alone or in combination with similarly
situated lands in the region, significantly affect the chemical,
physical, and biological integrity of other covered waters more readily
understood as `navigable.''' Id. at 780. ``Where an adequate nexus is
established for a particular wetland, it may be permissible, as a
matter of administrative convenience or necessity, to presume covered
status for other comparable wetlands in the region.'' Id. at 782.
    In establishing this significant nexus test, Justice Kennedy
relied, in part, on the overall objective of the CWA to ``restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Id. at 779 (quoting 33 U.S.C. 1251(a)). However,
Justice Kennedy also acknowledged that ``environmental concerns provide
no reason to disregard limits in the statutory text.'' Id. at 778. With
respect to wetlands adjacent to nonnavigable tributaries, Justice
Kennedy therefore determined that ``mere adjacency . . . is
insufficient. A more specific inquiry, based on the significant-nexus
standard, is . . . necessary.'' Id. at 786. By not requiring adjacent
wetlands to possess a significant nexus with navigable waters, Justice
Kennedy noted that under the Corps' interpretation, federal regulation
would be permitted ``whenever wetlands lie alongside a ditch or drain,
however remote or insubstantial, that eventually may flow into
traditional navigable waters. The deference owed the Corps'
interpretation of the statute does not extend so far.'' Id. at 778-79.
    In summary, although the standards that the plurality and Justice
Kennedy established are not identical, and each standard excludes some
waters that the other standard does not, the standards contain
substantial similarities. The plurality and Justice Kennedy agree in
principle that the determination must be made using a basic two-step
approach that considers: (1) The connection of the wetland to the
tributary; and (2) the status of the tributary with respect to
downstream traditional navigable waters. The plurality and Justice
Kennedy also agree that the connection between the wetland and the
tributary must be close. The plurality refers to that connection as a
``continuous surface connection'' or ``continuous physical
connection,'' as demonstrated in Riverside Bayview. Id. at 742, 751
n.13. Justice Kennedy recognizes that ``the connection between a
nonnavigable water or wetland and a navigable water may be so close, or
potentially so close, that the Corps may deem the water or wetland a
`navigable water' under the Act.'' Id. at 767. The second part of their
common analytical framework is addressed in the next section.
b. Tributaries
    The definition of ``tributary'' was not addressed in either
Riverside Bayview or SWANCC. And while the focus of Rapanos was on
whether the Corps could regulate wetlands adjacent to nonnavigable
tributaries far removed from navigable-in-fact waters, the plurality
and concurring opinions do provide guidance as to the scope of CWA
coverage of tributaries to navigable-in-fact waters.
    The plurality and Justice Kennedy both recognize that the
jurisdictional scope of the CWA is not restricted to traditional
navigable waters. Rapanos, 547 U.S. at 731 (Scalia, J., plurality)
(``the Act's term `navigable waters' includes something more than

traditional navigable waters''); id. at 767 (Kennedy, J., concurring)
(``Congress intended to regulate at least some waters that are not
navigable in the traditional sense.''). Both also agree that federal
authority under the Act does have limits. See id. at 731-32
(plurality).
    With respect to tributaries specifically, both the plurality and
Justice Kennedy focus in part on a tributary's contribution of flow to
and connection with traditional navigable waters. The plurality would
include as ``waters of the United States'' ``only relatively permanent,
standing or flowing bodies of water'' and would define such ``waters''
as including streams, rivers, oceans, lakes and other bodies of waters
that form geographical features, noting that all such ``terms connote
continuously present, fixed bodies of water . . . .'' Id. at 732-33,
739. The plurality would also require relatively permanent waters to be
connected to traditional navigable waters in order to be
jurisdictional. See id. at 742 (describing a ```wate[r] of the United
States''' as ``i.e., a relatively permanent body of water connected to
traditional interstate navigable waters'') (emphasis added). The
plurality would exclude ephemeral flows and related features, stating
``[n]one of these terms encompasses transitory puddles or ephemeral
flows of water.'' Id. at 733; see also id. at 734 (``In applying the
definition to `ephemeral streams,' . . . the Corps has stretched the
term `waters of the United States' beyond parody. The plain language of
the statute simply does not authorize this `Land Is Waters' approach to
federal jurisdiction.''). Justice Kennedy would appear to exclude some
streams considered jurisdictional under the plurality's test, but he
may include some that would be excluded by the plurality. See id. at
769 (noting that under the plurality's test, ``[t]he merest trickle, if
continuous, would count as a `water' subject to federal regulation,
while torrents thundering at irregular intervals through otherwise dry
channels would not'').
    Both the plurality and Justice Kennedy would include some seasonal
or intermittent streams as ``waters of the United States.'' Id. at 733
& n.5, 769. The plurality noted, for example, that its reference to
``relatively permanent'' waters did ``not necessarily exclude streams,
rivers, or lakes that might dry up in extraordinary circumstances, such
as drought,'' or ``seasonal rivers, which contain continuous flow
during some months of the year but no flow during dry months . . . .''
Id. at 732 n.5 (emphasis in original). Neither the plurality nor
Justice Kennedy, however, defined with precision where to draw the
line. The plurality provides that ``navigable waters'' must have ``at a
bare minimum, the ordinary presence of water,'' id. at 734, and Justice
Kennedy notes that the Corps can identify by regulation categories of
tributaries based on ``their volume of flow (either annually or on
average), their proximity to navigable waters, or other relevant
considerations'' that ``are significant enough that wetlands adjacent
to them are likely, in the majority of cases, to perform important
functions for an aquatic system incorporating navigable waters.'' Id.
at 780-81.
    Both the plurality and Justice Kennedy also agreed that the Corps'
existing treatment of tributaries raised significant jurisdictional
concerns. For example, the plurality was concerned about the Corps'
broad interpretation of tributaries themselves. See id. at 738
(plurality) (``Even if the term `the waters of the United States' were
ambiguous as applied to channels that sometimes host ephemeral flows of
water (which it is not), we would expect a clearer statement from
Congress to authorize an agency theory of jurisdiction that presses the
envelope of constitutional validity.''). And Justice Kennedy objected
to the categorical assertion of jurisdiction over wetlands adjacent to
the Corps' existing standard for tributaries ``which seems to leave
wide room for regulation of drains, ditches, and streams remote from
any navigable-in-fact water and carrying only minor water volumes
towards it . . . .'' Id. at 781 (Kennedy, J. concurring), see also id.
at 781-82 (``[I]n many cases wetlands adjacent to tributaries covered
by this standard might appear little more related to navigable-in-fact
waters than were the isolated ponds held to fall beyond the Act's scope
in SWANCC.'').
    Though some commenters agreed that aspects of the plurality's and
Justice Kennedy's opinions align regarding the limits of federal
jurisdiction under the CWA, other commenters disagreed that the
opinions share important commonalities. These commenters asserted that
the opinions have disparate rationales that cannot be reconciled. While
the agencies acknowledge that the plurality and Justice Kennedy viewed
the question of federal CWA jurisdiction differently, the agencies find
that there are sufficient commonalities between these opinions to help
instruct the agencies on where to draw the line between Federal and
State waters.
3. Principles and Considerations
    As discussed in the previous section, a few important principles
emerge that can serve as the basis for the agencies' conclusion that
the agencies exceeded their authority when defining the scope of CWA
jurisdiction under the 2015 Rule. As a threshold matter, the power
conferred on the agencies under the CWA to regulate the ``waters of the
United States'' is grounded in Congress' commerce power over
navigation. The agencies can choose to regulate beyond waters more
traditionally understood as navigable, including some tributaries to
those traditional navigable waters, but must provide a reasonable basis
grounded in the language and structure of the Act for determining the
extent of jurisdiction. The agencies can also choose to regulate
wetlands adjacent to the traditional navigable waters and some
tributaries, if the wetlands are closely connected to the tributaries,
such as in the transitional zone between open waters and dry land. The
Supreme Court's opinion in SWANCC, however, calls into question the
agencies' authority to regulate certain nonnavigable, isolated,
intrastate waters that lack a sufficient connection to traditional
navigable waters. This counsels that the agencies should avoid
regulatory interpretations of the CWA that raise constitutional
questions regarding the scope of their statutory authority. Finally,
the agencies can regulate certain waters by category, which could
improve regulatory predictability and certainty and ease administrative
burden while still effectuating the purposes of the Act.
    The agencies also recognize and respect the primary
responsibilities and rights of States to regulate their land and water
resources. See 33 U.S.C. 1251(b), 1370. The oft-quoted objective of the
CWA to ``restore and maintain the chemical, physical, and biological
integrity of the Nation's waters,'' id. at 1251(a), must be implemented
in a manner consistent with Congress' policy directives to the
agencies. The Supreme Court long ago recognized the distinction between
federal waters traditionally understood as navigable and waters
``subject to the control of the States.'' The Daniel Ball, 77 U.S. (10
Wall.) 557, 564-65 (1870). Over a century later, the Supreme Court in
SWANCC reaffirmed the State's ``traditional and primary power over land
and water use.'' 531 U.S. at 174; accord Rapanos, 547 U.S. at 738
(Scalia, J., plurality opinion).
    Ensuring that States retain authority over their land and water
resources pursuant to section 101(b) and section 510 helps carry out
the overall objective of the CWA and ensures that the agencies are
giving full effect and consideration to the entire structure and
function of the Act. See, e.g., id. at 755-

56 (Scalia, J., plurality opinion) (``[C]lean water is not the only
purpose of the statute. So is the preservation of primary state
responsibility for ordinary land-use decisions. 33 U.S.C. 1251(b).'')
(original emphasis). That includes the dozens of non-regulatory grant,
research, nonpoint source, groundwater, and watershed planning programs
that were intended by Congress to assist the States in controlling
pollution in all of the nation's waters, not just its navigable waters.
Controlling all waters using the Act's federal regulatory mechanisms
would significantly reduce the need for the more holistic planning
provisions of the Act and the State partnerships they entail.
Therefore, by recognizing the distinctions between the nation's waters
and the navigable waters and between the overall objective and goals of
the CWA and the specific policy directives from Congress, the agencies
can fully implement the entire structure of the Act while respecting
the specific word choices of Congress. See, e.g., Bailey v. United
States, 516 U.S. at 146; Nat'l Fed'n of Indep. Bus. v. Sebelius, 567
U.S. at 544.
    Further, the agencies are cognizant that the ``Clean Water Act
imposes substantial criminal and civil penalties for discharging any
pollutant into waters covered by the Act without a permit . . . .''
U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807, 1812
(2016). As Justice Kennedy observed in 2016, ``the reach and systemic
consequences of the Clean Water Act remain a cause for concern'' and
``continues to raise troubling questions regarding the Government's
power to cast doubt on the full use and enjoyment of private property
throughout the Nation . . . .''). Id. at 1816-17 (Kennedy, J.,
concurring). The agencies recognize that the 2015 Rule and subsequent
litigation challenging the legality of core components of that rule
have added to the questions regarding the appropriate scope of the
Federal government's regulatory power and power over private property,
and that currently the scope of those powers varies based on State
line.

C. Reasons for Repeal

    The agencies are repealing the 2015 Rule for four primary reasons.
First, the agencies have concluded that the 2015 Rule misapplied
Justice Kennedy's significant nexus standard despite identifying that
standard as its touchstone. The 2015 Rule adopted an interpretation of
the significant nexus standard that impermissibly expanded the scope of
federal jurisdiction, resulting in the regulation of waters beyond what
Congress intended. The rule did so by misapplying Justice Kennedy's
standard to broaden the meaning and application of the terms
``tributary,'' ``adjacent,'' and ``significant nexus'' while
reinterpreting the phrase ``similarly situated lands in the region'' to
support the potential assertion of federal regulation over nearly all
waters within large watersheds. The agencies are repealing the 2015
Rule because the agencies have now concluded that the 2015 Rule
exceeded the legal limits on the scope of the agencies' jurisdiction
under the CWA as intended by Congress and as reflected in Supreme Court
cases, including Justice Kennedy's articulation of the significant
nexus standard in Rapanos.\27\
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    \27\ The agencies are not taking a position in this rulemaking
regarding whether Justice Kennedy's concurring opinion in Rapanos is
or should be the controlling authority regarding the scope of
federal jurisdiction under the CWA. See, e.g., Rapanos, 547 U.S. at
758 (Roberts, C.J., concurring). The agencies used Justice Kennedy's
significant nexus standard as the touchstone for the 2015 Rule, and
for the reasons described herein, the agencies are repealing the
2015 Rule because it exceeded the scope of authority described in
that standard. The agencies requested comment regarding whether
Justice Kennedy's concurring opinion ``must be a mandatory component
of any future definition of `waters of the United States' '' as part
of the rulemaking on a proposed revised definition. See 84 FR 4154,
4167, 4177 (Feb. 14, 2019).
---------------------------------------------------------------------------

    Second, the agencies have concluded that the 2015 Rule did not
adequately consider and accord due weight to the express congressional
policy 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). The CWA balances
preservation of the traditional power of States to regulate land and
water resources within their borders with federal water quality
regulation and oversight to protect the ``waters of the United
States.'' The agencies now conclude that in promulgating the 2015 Rule,
they did not accord due weight to that balance. The 2015 Rule expanded
jurisdiction over the pre-existing regulatory regime in a manner that
encroached on traditional State land-use regulation and the authority
of States to regulate State waters, and it altered Federal, State,
tribal, and local government relationships in implementing CWA programs
without a clear statement from Congress. By repealing the 2015 Rule,
the agencies are reversing that encroachment on State authority and
restoring those pre-existing relationships.
    Third, given the errors in applying Justice Kennedy's significant
nexus standard to assert an expanded theory of federal jurisdiction and
the failure to adequately consider and accord due weight to the policy
direction from Congress to respect the roles and responsibilities of
the Federal government and States in implementing the full suite of
regulatory and non-regulatory programs in the CWA, the agencies have
concluded that the 2015 Rule, like the application of the Corps'
regulations in SWANCC, ``raise[s] significant questions of Commerce
Clause authority and encroach[es] on traditional state land-use
regulation.'' Rapanos, 547 U.S. at 776 (Kennedy, J., concurring); see
also Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at *23 (S.D.
Ga. Aug. 21, 2019) (finding the 2015 Rule ``unlawful'' given its
``significant intrusion on traditional state authority'' without ``any
clear or manifest statement to authorize intrusion into that
traditional state power''). Given the absence of a ``clear indication''
that Congress intended to invoke the outer limits of its power, see 531
U.S. at 172-73, the agencies are repealing the 2015 Rule to avoid
interpretations of the CWA that push the envelope of their
constitutional and statutory authority, consistent with principles of
constitutional avoidance.
    Lastly, the agencies also recognize that the 2015 Rule has been
remanded by the U.S. District Court for the Southern District of Texas
for failing to comply with the APA. That court found that the distance-
based limitations in the final rule were not a logical outgrowth of the
proposal in violation of the APA's public notice and comment
requirements. See Texas v. EPA, No. 3:15-cv-162, 2019 WL 2272464 (S.D.
Tex. May 28, 2019). The court found this error ``significant'' because
the specific distance-based limitations ``alter[ed] the jurisdictional
scope of the Act.'' Id. at *5. The agencies are also aware that
litigants challenging the 2015 Rule alleged other APA deficiencies,
including the lack of record support for the distance-based limitations
inserted into the final rule without adequate notice. Several
commenters on the proposed repeal of the 2015 Rule raised similar
concerns, arguing that the 2015 Rule was arbitrary and capricious
because of the lack of record support for those limitations. The
agencies recognize that the Federal government, in prior briefing, has
defended the procedural steps the agencies took to develop and support
the 2015 Rule. Having considered the public comments and relevant
litigation positions, and the decision of the Southern District of
Texas on related arguments, the agencies now conclude that the

administrative record for the 2015 Rule did not contain sufficient
record support for the distance-based limitations that appeared for the
first time in the final rule. This conclusion is further supported by
similar findings of the U.S. District Court for the Southern District
of Georgia, which remanded the 2015 Rule to the agencies in August 2019
after identifying substantive and procedural errors with respect to
numerous provisions, including the rule's distance limitations. Georgia
v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019).
By repealing the 2015 Rule for the reasons stated herein, the agencies
are remedying the procedural defects underlying the 2015 Rule and
responding to these court orders remanding the 2015 Rule.
    In reaching this decision, the agencies considered the public
comments received in response to the NPRM and SNPRM. The agencies also
carefully reviewed their statutory and constitutional authority, as
well as court rulings interpreting the CWA and others arising from
litigation challenging the 2015 Rule. Some courts issuing preliminary
injunctions to stay implementation of the 2015 Rule have suggested that
the agencies' interpretation of the ``significant nexus'' standard, as
applied in the 2015 Rule, may not have implemented the limits of
federal CWA jurisdiction reflected in decisions of the Supreme Court.
See, e.g., North Dakota v. EPA, 127 F. Supp. 3d 1047, 1055-56 (D.N.D.
2015). The agencies now agree with the rationale of those decisions as
they appropriately recognize the limits of the agencies' authority
under the CWA. Moreover, the agencies find that the court rulings
issued thus far against the 2015 Rule corroborate the agencies'
concerns regarding the scope and legal basis of the rule.
1. The 2015 Rule Misapplied and Inappropriately Expanded the
Significant Nexus Standard
    When promulgating the 2015 Rule, the agencies did not properly
apply Justice Kennedy's significant nexus standard as a limiting test
in a manner that would avoid unreasonable applications of the CWA.
Having reconsidered the relevant Supreme Court opinions, the agencies
now conclude that the significant nexus standard is indeed a limiting
test necessarily constraining overly broad applications of the statute.
In Rapanos, Justice Kennedy concluded that the CWA covers only ``waters
that are or were navigable in fact or that could reasonably be so
made'' as well as waters with a ``significant nexus'' to navigable
waters in the traditional sense. 547 U.S. at 779 (Kennedy, J.,
concurring). Specifically, Justice Kennedy found that ``wetlands
possess the requisite nexus'' if they ``either alone or in combination
with similarly situated lands in the region, significantly affect the
chemical, physical, and biological integrity of'' navigable-in-fact
waters. Id. at 780. In contrast, according to Justice Kennedy, the CWA
does not regulate wetlands with ``speculative or insubstantial''
effects on the integrity of navigable waters. Id.
    In promulgating the 2015 Rule, the agencies sought to interpret
``the scope of the `waters of the United States' for the CWA using the
goals, objectives, and policies of the statute, the Supreme Court case
law, the relevant and available science, and the agencies' technical
expertise and experience as support.'' 80 FR 37056. In particular, the
agencies focused on the significant nexus standard in defining the
scope of CWA jurisdiction. Id. at 37060 (``The key to the agencies'
interpretation of the CWA is the significant nexus standard, as
established and refined in Supreme Court opinions.'').
    After careful review of the 2015 Rule and the public comments
received in response to the notices proposing to repeal the 2015 Rule,
the agencies now conclude that the rule misconstrued the significant
nexus standard described by Justice Kennedy in Rapanos. Key provisions
of the rule were at odds with Justice Kennedy's understanding of the
phrase ``significant nexus'' because they permitted ``applications . .
. that appeared likely . . . to raise constitutional difficulties and
federalism concerns,'' 547 U.S. at 776 (Kennedy, J., concurring),\28\
including the categorical assertion of jurisdiction over certain
wetlands and waters that ``lie alongside a ditch or drain, however
remote and insubstantial.'' See id. at 778-79. The agencies'
misapplication of the significant nexus standard also ran counter to
principles articulated by the Supreme Court in SWANCC, as the 2015 Rule
permitted federal jurisdiction over certain nonnavigable, isolated,
intrastate waters similar to the ponds and mudflats that ``raise[d]
significant constitutional questions'' in that case. 531 U.S. at 173-
74; see also Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922, at
*23 (S.D. Ga. Aug. 21, 2019). The agencies' misapplication of the
significant nexus standard in the 2015 Rule also resulted in a
definition of ``waters of the United States'' that did not give
sufficient effect to the word ``navigable'' within the phrase
``navigable waters'' in a manner consistent with Supreme Court
precedent. Ultimately, the fundamental and systemic broad
interpretation and misapplication of the significant nexus standard in
the 2015 Rule resulted in a ``close-to-the-edge expansion of [the
agencies'] own powers'' with a ``theory of jurisdiction that presse[d]
the envelope of constitutional validity.'' 547 U.S. at 738, 756
(Scalia, J., plurality). For these reasons, described in detail below,
the agencies misconstrued the limits of the CWA and are repealing the
2015 Rule.
---------------------------------------------------------------------------

    \28\ Although not central to the agencies' decision to repeal
the 2015 Rule, the agencies also conclude that the 2015 Rule's
regulatory definition of ``significant nexus'' was incompatible with
the Rapanos plurality's interpretation of ``significant nexus.'' See
547 U.S. at 755 (Scalia, J., plurality) (``Our interpretation of the
phrase [`significant nexus'] is both consistent with [Riverside
Bayview and SWANCC] and compatible with what the Act does establish
as the jurisdictional criterion: `waters of the United States.'
Wetlands are `waters of the United States' if they bear the
`significant nexus' of physical connection, which makes them as a
practical matter indistinguishable from waters of the United States.
What other nexus could conceivably cause them to be `waters of the
United States'?'' (original emphasis)).
---------------------------------------------------------------------------

a. The 2015 Rule Failed to Properly Consider and Adopt the Limits of
the ``Significant Nexus'' Standard as First Established in SWANCC
    The phrase ``significant nexus'' first appeared in SWANCC wherein
Chief Justice Rehnquist, joined by Justice Kennedy and other Justices,
described the holding of the Court in Riverside Bayview: ``It was the
significant nexus between the wetlands and `navigable waters' that
informed our reading of the CWA in Riverside Bayview Homes.'' 531 U.S.
at 167. While the Riverside Bayview Court did not ``express any
opinion'' on the ``question of the authority of the Corps to regulate
discharges of fill material into wetlands that are not adjacent to
bodies of open water,'' 474 U.S. at 131-32 n.8, the SWANCC Court
``conclude[d] that the text of the statute will not allow''
jurisdiction of the Corps to ``extend[ ] to ponds that are not adjacent
to open water.'' 531 U.S. at 168.
    In describing the significant nexus standard in Rapanos, Justice
Kennedy recognized that ``in some instances, as exemplified by
Riverside Bayview, the connection between a nonnavigable water or
wetland and a navigable water may be so close, or potentially so close,
that the Corps may deem the water or wetland a `navigable water' under
the Act. In other instances, as exemplified by SWANCC, there may be
little or no connection.'' 547 U.S. at 767 (Kennedy, J., concurring).
Justice Kennedy

explained his interpretation of the meaning and import of SWANCC:
``Because such a [significant] nexus was lacking with respect to
isolated ponds, the Court held that the plain text of the statute did
not permit'' the Corps to assert jurisdiction over the isolated ponds
and mudflats at issue in SWANCC. Id.; see also id. at 774 (describing
``SWANCC's holding'' to mean that ```nonnavigable, isolated, intrastate
waters,' are not `navigable waters.' '' (quoting SWANCC, 531 U.S. at
171)); id. at 781-82 (``[I]n many cases wetlands adjacent to
tributaries covered by [the Corps' existing tributary] standard might
appear little more related to navigable-in-fact waters than were the
isolated ponds held to fall beyond the Act's scope in SWANCC.''). The
Rapanos plurality recognized the same jurisdictional limits articulated
in SWANCC. See 547 U.S. at 726 (``Observing that `[i]t was the
significant nexus between the wetlands and `navigable waters' that
informed our reading of the CWA in Riverside Bayview,' we held that
Riverside Bayview did not establish `that the jurisdiction of the Corps
extends to ponds that are not adjacent to open water.' '' (citations
and emphasis omitted)). And Justice Stevens, writing for four Justices
in dissent in Rapanos, also recognized this principle. See id. at 795
(Stevens, J., dissenting) (``The Court [in SWANCC] rejected [the Corps'
exercise of jurisdiction] since these isolated pools, unlike the
wetlands at issue in Riverside Bayview, had no `significant nexus' to
traditionally navigable waters.''); id. at 796 (Stevens, J.,
dissenting) (``[T]he Corps has reasonably interpreted its jurisdiction
to cover nonisolated wetlands.'' (emphasis added)).
    In the SNPRM, the agencies specifically requested comment and
additional information on ``whether the water features at issue in
SWANCC or other similar water features could be deemed jurisdictional
under the 2015 Rule,'' and whether such a determination would be
``consistent with or otherwise well-within the agencies' statutory
authority.'' 83 FR 32249. The agencies now conclude that in formulating
the significant nexus test in the 2015 Rule, the agencies failed to
properly consider or adopt the limits of the significant nexus standard
established in SWANCC--the very case in which the phrase ``significant
nexus'' originated--and Justice Kennedy's opinion in Rapanos. The
preamble to the 2015 Rule stated that ``[t]he agencies utilize[d] the
significant nexus standard, as articulated by Justice Kennedy's opinion
[in Rapanos] and informed by the unanimous opinion in Riverside Bayview
and the plurality opinion in Rapanos.'' 80 FR 37061. But the rule did
not properly consider the limits of the significant nexus standard as
first described in SWANCC and subsequently relied upon by Justice
Kennedy in Rapanos, nor was it adequately informed by the unanimous
opinion in Riverside Bayview.
    For example, applying the 2015 Rule to the waters at issue in
SWANCC demonstrates that the 2015 Rule did not comport with the limits
of the CWA as interpreted in that decision. The ``seasonally ponded,
abandoned gravel mining depressions'' at issue in SWANCC were within
4,000 feet of Poplar Creek--a ``tributary'' under the 2015 Rule which
leads to the Fox River and in turn flows into the Illinois and
Mississippi Rivers. Based on this information, the SWANCC ponds and
mudflats would have been subject to a case-specific significant nexus
analysis under the 2015 Rule's (a)(8) provision. See 80 FR 37105.\29\
Considering the nine functions relevant to a significant nexus
evaluation as defined in the 2015 Rule, including ``runoff storage''
and ``sediment trapping,'' id. at 37067, as well as the descriptions of
the site available to the agencies, the SWANCC ponds and mudflats would
almost certainly have a ``significant nexus'' under the 2015 Rule
because they could be found to retain ``stormwater volumes and
associated sediment coming off the landfill'' that would otherwise