Revised Definition of “Waters of the United States”

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of

Engineers

33 CFR Part 328

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 110, 112, 116, 117, 122,

230, 232, 300, 302, and 401

[EPA–HQ–OW–2018–0149; FRL–9988–15–

OW]

RIN 2040–AF75

Revised Definition of ‘‘Waters of the

United States’’

AGENCY

: Department of the Army, Corps

of Engineers, Department of Defense;

and Environmental Protection Agency

(EPA).

ACTION

: Proposed rule.

SUMMARY

: The Environmental Protection

Agency and the Department of the Army

(‘‘the agencies’’) are publishing for

public comment a proposed rule

defining the scope of waters federally

regulated under the Clean Water Act

(CWA). This proposal is the second step

in a comprehensive, two-step process

intended to review and revise the

definition of ‘‘waters of the United

States’’ consistent with the Executive

Order signed on February 28, 2017,

‘‘Restoring the Rule of Law, Federalism,

and Economic Growth by Reviewing the

‘Waters of the United States’ Rule.’’ This

proposed rule is intended to increase

CWA program predictability and

consistency by increasing clarity as to

the scope of ‘‘waters of the United

States’’ federally regulated under the

Act. This proposed definition revision is

also intended to clearly implement the

overall objective of the CWA to restore

and maintain the quality of the nation’s

waters while respecting State and tribal

authority over their own land and water

resources.

DATES

: Comments must be received on

or before April 15, 2019.

ADDRESSES

: You may submit comments,

identified by Docket ID No. EPA–HQ–

OW–2018–0149, by any of the following

methods:

•Federal eRulemaking Portal: http://

www.regulations.gov/ (our preferred

method). Follow the online instructions

for submitting comments.

•Email: OW-Docket@epa.gov.

Include Docket ID No. EPA–HQ–OW–

2018–0149 in the subject line of the

message.

•Mail: U.S. Environmental

Protection Agency, EPA Docket Center,

Office of Water Docket, Mail Code

28221T, 1200 Pennsylvania Avenue

NW, Washington, DC 20460.

•Hand Delivery/Courier: EPA Docket

Center, WJC West Building, Room 3334,

1301 Constitution Avenue NW,

Washington, DC 20004. The Docket

Center’s hours of operations are 8:30

a.m.–4:30 p.m., Monday–Friday (except

Federal Holidays).

Instructions: All submissions received

must include the Docket ID No. for this

rulemaking. Comments received may be

posted without change to https://

www.regulations.gov/, including any

personal information provided. For

detailed instructions on sending

comments and additional information

on the rulemaking process, see the

‘‘How should I submit comments?’’

heading of the GENERAL

INFORMATION section of this

document.

FOR FURTHER INFORMATION CONTACT

:

Michael McDavit, Oceans, Wetlands,

and Communities Division, Office of

Water (4504–T), Environmental

Protection Agency, 1200 Pennsylvania

Avenue NW, Washington, DC 20460;

telephone number: (202) 566–2428;

email address: CWAwotus@epa.gov; or

Jennifer A. Moyer, Regulatory

Community of Practice (CECW–CO–R),

U.S. Army Corps of Engineers, 441 G

Street NW, Washington, DC 20314;

telephone number: (202) 761–5903;

email address: USACE_CWA_Rule@

usace.army.mil.

SUPPLEMENTARY INFORMATION

:

Table of Contents

I. General Information

A. How can I get copies of this document

and related information?

B. Under what legal authority is this

proposed rule issued?

C. How should I submit comments?

II. Background

A. Executive Summary

B. The Clean Water Act and Regulatory

Definition of ‘‘Waters of the United

States’’

1. The Clean Water Act

2. Regulatory History

3. Supreme Court Decisions

4. The 2015 Rule

C. Executive Order 13778, the ‘‘Step One’’

Notice of Proposed Rulemaking, and the

Applicability Date Rule

D. Summary of Stakeholder Outreach

E. Overview of Legal Construct for the

Proposed Rule

1. Statutory Framework

2. Supreme Court Precedent

3. Guiding Legal Principles for Proposed

Rule

III. Proposed Definition of ‘‘Waters of the

United States’’

A. Traditional Navigable Waters and

Territorial Seas

B. Interstate Waters

C. Impoundments

D. Tributaries

E. Ditches

F. Lakes and Ponds

G. Wetlands

H. Waters and Features That Are Not

Waters of the United States

I. Summary of Proposed Rule as Compared

to the 1986 and 2015 Regulations

J. Placement of the Definition of Waters of

the United States in the Code of Federal

Regulations

IV. State, Tribal and Federal Agency Datasets

of ‘‘Waters of the United States’’

V. Overview of Supporting Analyses

VI. Statutory and Executive Order Reviews

A. Executive Order 13771: Reducing

Regulation and Controlling Regulatory

Costs

B. Executive Order 12866: Regulatory

Planning and Review; Executive Order

13563: Improving Regulation and

Regulatory Review

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

E. Unfunded Mandates Reform Act

F. Executive Order 13132: Federalism

G. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

H. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

I. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

J. National Technology Transfer and

Advancement Act

K. Executive Order 12898: Federal Actions

To Address Environmental Justice in

Minority Populations and Low-Income

Populations

I. General Information

A. How can I get copies of this

document and related information?

1. Docket. An official public docket

for this action has been established

under Docket ID No. EPA–HQ–OW–

2018–0149. The official public docket

consists of the documents specifically

referenced in this action, and other

information related to this action. The

official public docket is the collection of

materials that is available for public

viewing at the OW Docket, EPA West,

Room 3334, 1301 Constitution Ave. NW,

Washington, DC 20004. This Docket

Facility is open from 8:30 a.m. to 4:30

p.m., Monday through Friday, excluding

legal holidays. The OW Docket

telephone number is 202–566–2426. 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

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may access EPA Dockets at http://

www.regulations.gov to view public

comments as they are submitted and

posted, access the index listing of the

contents of the official public docket,

and access those documents in the

public docket that are available

electronically. For additional

information about EPA’s public docket,

visit the EPA Docket Center homepage

at https://www.epa.gov/dockets.

Although not all docket materials may

be available electronically, you may still

access any of the publicly available

docket materials through the Docket

Facility.

B. Under what legal authority is this

proposed rule issued?

The authority for this action is the

Federal Water Pollution Control Act, 33

U.S.C. 1251 et seq., including sections

301, 304, 311, 401, 402, 404, and 501.

C. How should I submit comments?

Throughout this notice, the agencies

solicit comment on a number of issues

related to the proposed rulemaking.

Submit your comments, identified by

Docket ID No. EPA–HQ–OW–2018–

0149, at https://www.regulations.gov

(our preferred method), or the other

methods identified in the

ADDRESSES

section. Once submitted, comments

cannot be edited or removed from the

docket. The EPA may publish any

comment received to its public docket.

Do not submit electronically any

information you consider to be

Confidential Business Information (CBI)

or other information whose disclosure is

restricted by statute. Multimedia

submissions (audio, video, etc.) must be

accompanied by a written comment.

The written comment is considered the

official comment and should include

discussion of all points you wish to

make. The EPA will generally not

consider comments or comment

contents located outside of the primary

submission (i.e., on the web, cloud, or

other file sharing system). For

additional submission methods, the full

EPA public comment policy,

information about CBI or multimedia

submissions, and general guidance on

making effective comments, please visit

https://www.epa.gov/dockets/

commenting-epa-dockets.

This rule is the outgrowth of other

rulemakings and extensive outreach

efforts, including requests for

recommendations and comments, and

the agencies have taken

recommendations and comments

received into account in developing this

proposal. In developing a final rule, the

agencies will be considering comments

submitted on this proposal. Persons

who wish to provide views or

recommendations on this proposal must

provide comments to the agencies as

part of this comment process. To

facilitate the processing of comments,

commenters are encouraged to organize

their comments in a manner that

corresponds to the outline of this

proposal.

II. Background

A. Executive Summary

The U.S. Environmental Protection

Agency (EPA) and the U.S. Department

of the Army (Army) (together, the

agencies) are publishing for public

comment a proposed rule defining the

scope of waters subject to federal

regulation under the Clean Water Act

(CWA), in light of the U.S. Supreme

Court cases in United States v. Riverside

Bayview Homes (Riverside Bayview),

Solid Waste Agency of Northern Cook

County v. United States (SWANCC), and

Rapanos v. United States (Rapanos),

and consistent with Executive Order

13778, signed on February 28, 2017,

entitled ‘‘Restoring the Rule of Law,

Federalism, and Economic Growth by

Reviewing the ‘Waters of the United

States’ Rule.’’

The agencies propose to interpret the

term ‘‘waters of the United States’’ to

encompass: Traditional navigable

waters, including the territorial seas;

tributaries that contribute perennial or

intermittent flow to such waters; certain

ditches; certain lakes and ponds;

impoundments of otherwise

jurisdictional waters; and wetlands

adjacent to other jurisdictional waters.

The agencies propose as a baseline

concept that ‘‘waters of the United

States’’ are waters within the ordinary

meaning of the term, such as oceans,

rivers, streams, lakes, ponds, and

wetlands, and that not all waters are

‘‘waters of the United States.’’ Under

this proposed rule, a tributary is defined

as a river, stream, or similar naturally

occurring surface water channel that

contributes perennial or intermittent

flow to a traditional navigable water or

territorial sea in a typical year either

directly or indirectly through other

tributaries, jurisdictional ditches,

jurisdictional lakes and ponds,

jurisdictional impoundments, and

adjacent wetlands or through water

features identified in paragraph (b) of

this proposal so long as those water

features convey perennial or

intermittent flow downstream. A

tributary does not lose its status if it

flows through a culvert, dam, or other

similar artificial break or through a

debris pile, boulder field, or similar

natural break so long as the artificial or

natural break conveys perennial or

intermittent flow to a tributary or other

jurisdictional water at the downstream

end of the break. Ditches are generally

proposed not to be ‘‘waters of the

United States’’ unless they meet certain

criteria, such as functioning as

traditional navigable waters, if they are

constructed in a tributary and also

satisfy the conditions of the proposed

‘‘tributary’’ definition, or if they are

constructed in an adjacent wetland and

also satisfy the conditions of the

proposed ‘‘tributary’’ definition.

The proposal defines ‘‘adjacent

wetlands’’ as wetlands that abut or have

a direct hydrological surface connection

to other ‘‘waters of the United States’’ in

a typical year. ‘‘Abut’’ is proposed to

mean when a wetland touches an

otherwise jurisdictional water at either

a point or side. A ‘‘direct hydrologic

surface connection’’ as proposed occurs

as a result of inundation from a

jurisdictional water to a wetland or via

perennial or intermittent flow between

a wetland and jurisdictional water.

Wetlands physically separated from

other waters of the United States by

upland or by dikes, barriers, or similar

structures and also lacking a direct

hydrologic surface connection to such

waters are not adjacent under this

proposal.

The proposal would exclude from the

definition of ‘‘waters of the United

States’’ waters or water features not

mentioned above. The proposed

definition specifically clarifies that

‘‘waters of the United States’’ do not

include features that flow only in

response to precipitation; groundwater,

including groundwater drained through

subsurface drainage systems; certain

ditches; prior converted cropland;

artificially irrigated areas that would

revert to upland if artificial irrigation

ceases; certain artificial lakes and ponds

constructed in upland; water-filled

depressions created in upland

incidental to mining or construction

activity; stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate, or store

stormwater run-off; wastewater

recycling structures constructed in

upland; and waste treatment systems. In

addition, the agencies are proposing to

clarify and define the terms ‘‘prior

converted cropland’’ and ‘‘waste

treatment system’’ to improve regulatory

predictability and clarity.

In response to the interest expressed

by some States in participating in the

federal jurisdictional determination

process, the agencies are soliciting

comment as to how they could establish

an approach to authorize States, Tribes,

and Federal agencies to establish

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1

The FWCPA is commonly referred to as the

CWA following the 1977 amendments to the

FWPCA. Public Law 95–217, 91 Stat. 1566 (1977).

For ease of reference, the agencies will generally

refer to the FWPCA in this notice as the CWA or

the Act.

2

The term ‘‘navigable water of the United States’’

is a term of art used to refer to waters subject to

federal jurisdiction under the RHA. See, e.g., 33

CFR 329.1. The term is not synonymous with the

phrase ‘‘waters of the United States’’ under the

CWA, see id., and the general term ‘‘navigable

waters’’ has different meanings depending on the

context of the statute in which it is used. See, e.g.,

PPL Montana, LLC v. Montana, 132 S. Ct. 1215,

1228 (2012).

3

33 U.S.C. 1370 also prohibits authorized States

from adopting any limitations, prohibitions, or

standards that are less stringent than required by

the CWA.

geospatial datasets of ‘‘waters of the

United States,’’ as well as waters that

the agencies propose to exclude, within

their respective borders for approval by

the agencies. Under a separate action,

the agencies may propose creating a

framework under which States, Tribes,

and Federal agencies could choose to

develop datasets for approval for all,

some, or none of the ‘‘waters of the

United States’’ within their boundaries.

If the agencies were to pursue such an

action, they would do so in

coordination with other Federal

agencies, State, tribal, and interested

stakeholders. This approach would not

require State and tribal governments to

establish these datasets; it would simply

make this process available to those

government agencies that would find it

useful.

The fundamental basis used by the

agencies for the revised definition

proposed today is the text and structure

of the CWA, as informed by its

legislative history and Supreme Court

precedent, taking into account agency

policy choices and other relevant

factors. This proposed definition

revision is intended to strike a balance

between Federal and State waters and

would carry out Congress’ overall

objective to restore and maintain the

integrity of the nation’s waters in a

manner that preserves the traditional

sovereignty of States over their own

land and water resources. The agencies

believe the proposed definition would

also ensure clarity and predictability for

Federal agencies, States, Tribes, the

regulated community, and the public.

This proposed rule is intended to ensure

that the agencies are operating within

the scope of the Federal government’s

authority over navigable waters under

the CWA and the Commerce Clause of

the U.S. Constitution.

B. The Clean Water Act and Regulatory

Definition of ‘‘Waters of the United

States’’

1. The Clean Water Act

Congress amended the Federal Water

Pollution Control Act (FWPCA), or

Clean Water Act (CWA) as it is

commonly called,

1

in 1972 to address

longstanding concerns regarding the

quality of the nation’s waters and the

federal government’s ability to address

those concerns under existing law. Prior

to 1972, the ability to control and

redress water pollution in the nation’s

waters largely fell to the U.S. Army

Corps of Engineers (Corps) under the

Rivers and Harbors Act of 1899 (RHA).

While much of that statute focused on

restricting obstructions to navigation on

the nation’s major waterways, section 13

of the RHA made it unlawful to

discharge refuse ‘‘into any navigable

water of the United States,

2

or into any

tributary of any navigable water from

which the same shall float or be washed

into such navigable water.’’ 33 U.S.C.

407. Congress had also enacted the

Water Pollution Control Act of 1948,

Public Law 80–845, 62 Stat. 1155 (June

30, 1948), to address interstate water

pollution, and subsequently amended

that statute in 1956 (giving the statute

its current formal name), 1961, and

1965. The early versions of the CWA

promoted the development of pollution

abatement programs, required States to

develop water quality standards, and

authorized the Federal government to

bring enforcement actions to abate water

pollution.

These early statutory efforts, however,

proved inadequate to address the

decline in the quality of the nation’s

waters, see City of Milwaukee v. Illinois,

451 U.S. 304, 310 (1981), so Congress

performed a ‘‘total restructuring’’ and

‘‘complete rewriting’’ of the existing

statutory framework in 1972, id. at 317

(quoting legislative history of 1972

amendments). That restructuring

resulted in the enactment of a

comprehensive scheme (including

voluntary as well as regulatory

programs) designed to prevent, reduce,

and eliminate pollution in the nation’s

waters generally, and to regulate the

discharge of pollutants into navigable

waters specifically. See, e.g., S.D.

Warren Co. v. Maine Bd. of

Environmental Protection, 547 U.S. 370,

385 (2006) (noting that ‘‘the Act does

not stop at controlling the ‘addition of

pollutants,’ but deals with ‘pollution’

generally’’).

The objective of the new statutory

scheme was ‘‘to restore and maintain

the chemical, physical, and biological

integrity of the Nation’s waters.’’ 33

U.S.C. 1251(a). In order to meet that

objective, Congress declared two

national goals: (1) ‘‘that the discharge of

pollutants into the navigable waters be

eliminated by 1985;’’ and (2) ‘‘that

wherever attainable, an interim goal of

water quality which provides for the

protection and propagation of fish,

shellfish, and wildlife and provides for

recreation in and on the water be

achieved by July 1, 1983 . . . .’’ Id. at

1251(a)(1)–(2).

Congress also established several key

policies that direct the work of the

agencies to effectuate those goals. For

example, Congress declared as a

national policy ‘‘that the discharge of

toxic pollutants in toxic amounts be

prohibited; .... that Federal financial

assistance be provided to construct

publicly owned waste treatment works;

.... that areawide waste treatment

management planning processes be

developed and implemented to assure

adequate control of sources of pollutants

in each State; . . . [and] that programs

for the control of nonpoint sources of

pollution be developed and

implemented in an expeditious manner

so as to enable the goals of this Act to

be met through the control of both point

and nonpoint sources of pollution.’’ Id.

at 1251(a)(3)–(7).

Congress provided a major role for the

States in implementing the CWA,

balancing the traditional power of States

to regulate land and water resources

within their borders with the need for

a national water quality regulation. For

example, the statute highlighted ‘‘the

policy of the Congress to recognize,

preserve, and protect the primary

responsibilities and rights of States to

prevent, reduce and eliminate

pollution’’ and ‘‘to plan the

development and use .... of land and

water resources .....’’ Id. at 1251(b).

Congress also declared as a national

policy that States manage the major

construction grant program and

implement the core permitting programs

authorized by the statute, among other

responsibilities. Id. Congress added that

‘‘[e]xcept as expressly provided in this

Act, nothing in this Act shall .... be

construed as impairing or in any

manner affecting any right or

jurisdiction of the States with respect to

the waters (including boundary waters)

of such States.’’ Id. at 1370.

3

Congress

pledged to provide technical support

and financial aid to the States ‘‘in

connection with the prevention,

reduction, and elimination of

pollution.’’ Id. at 1251(b).

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

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4

Members of Congress were aware when they

drafted the 1972 CWA amendments that different

types of the Nation’s waters would be subject to

different degrees of federal control. For instance, in

House Debate regarding a proposed and ultimately

failed amendment to prohibit the discharge of

pollutants to ground waters in addition to navigable

waters, Representative Don H. Clausen stated, ‘‘Mr.

Chairman, in the early deliberations within the

committee which resulted in the introduction of

H.R. 11896, a provision for ground waters ....

was thoroughly reviewed and it was determined by

the committee that there was not sufficient

information on ground waters to justify the types

of controls that are required for navigable waters.

I refer the gentleman to the objectives of this act as

stated in section 101(a). The objective of this act is

to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters. I call

your attention to the fact that this does not say the

Nation’s ‘navigable waters,’ ‘interstate waters,’ or

‘intrastate waters.’ It just says ‘waters.’ This

includes ground waters.’’ 118 Cong. Rec. at 10,667

(daily ed. March 28, 1972).

5

Three states (Massachusetts, New Hampshire,

and New Mexico) do not currently administer any

part of the CWA section 402 program.

water,’’ id. at 1362(19), to parallel the

broad objective of the Act ‘‘to restore

and maintain the chemical, physical,

and biological integrity of the Nation’s

waters.’’ Id. at 1251(a). Congress then

crafted a non-regulatory statutory

framework to provide technical and

financial assistance to the States to

prevent, reduce, and eliminate pollution

in the nation’s waters generally. For

example, section 105 of the Act, ‘‘Grants

for research and development,’’

authorized EPA ‘‘to make grants to any

State, municipality, or intermunicipal or

interstate agency for the purpose of

assisting in the development of any

project which will demonstrate a new or

improved method of preventing,

reducing, and eliminating the discharge

into any waters of pollutants from

sewers which carry storm water or both

storm water and pollutants.’’ 33 U.S.C.

1255(a)(1) (emphasis added). Section

105 also authorized EPA ‘‘to make

grants to any State or States or interstate

agency to demonstrate, in river basins or

portions thereof, advanced treatment

and environmental enhancement

techniques to control pollution from all

sources .... including nonpoint

sources, .... [and] .... to carry out

the purposes of section 301 of this Act

.... for research and demonstration

projects for prevention of pollution of

any waters by industry including, but

not limited to, the prevention,

reduction, and elimination of the

discharge of pollutants.’’ 33 U.S.C.

1255(b)–(c) (emphasis added); see also

id. at 1256(a) (authorizing EPA to issue

‘‘grants to States and to interstate

agencies to assist them in administering

programs for the prevention, reduction,

and elimination of pollution’’). Section

108, ‘‘Pollution Control in Great Lakes,’’

authorized EPA to enter into agreements

with any State to develop plans for the

‘‘elimination or control of pollution,

within all or any part of the watersheds

of the Great Lakes.’’ Id. at 1258(a)

(emphasis added); see also id. at

1268(a)(3)(C) (defining the ‘‘Great Lakes

System’’ as ‘‘all the streams, rivers, lakes

and other bodies of water within the

drainage basin of the Great Lakes’’)

(emphasis added). Similar broad

pollution control programs were created

for other major watersheds, including,

for example, the Chesapeake Bay, see id.

at 1267(a)(3), Long Island Sound, see id.

at 1269(c)(2)(D), and Lake Champlain,

see id. at 1270(g)(2).

In addition to the Act’s non-regulatory

measures to control pollution of the

nation’s waters generally, Congress

created a federal regulatory permitting

program designed to address the

discharge of pollutants into a subset of

those waters identified as ‘‘navigable

waters’’ or ‘‘the waters of the United

States,’’ id. at 1362(7). Section 301

contains the key regulatory mechanism:

‘‘Except as in compliance with this

section and sections 302, 306, 307, 318,

402, and 404 of this Act, the discharge

of any pollutant by any person shall be

unlawful.’’ Id. at 1311(a). A ‘‘discharge

of a pollutant’’ is defined to include

‘‘any addition of any pollutant to

navigable waters from any point

source,’’ such as a pipe, ditch or other

‘‘discernible, confined and discrete

conveyance.’’ Id. at 1362(12), (14). The

term ‘‘pollutant’’ means ‘‘dredged spoil,

solid waste, incinerator residue, sewage,

garbage, sewage sludge, munitions,

chemical wastes, biological materials,

radioactive materials, heat, wrecked or

discarded equipment, rock, sand, cellar

dirt and industrial, municipal, and

agricultural waste discharged into

water.’’ Id. at 1362(6). Thus, it is

unlawful to discharge pollutants into

the waters of the United States from a

point source unless the discharge is in

compliance with certain enumerated

sections of the CWA, including

obtaining authorization pursuant to the

section 402 National Pollutant

Discharge Elimination System (NPDES)

permit program or the section 404

dredged or fill material permit program.

See id. at 1342 and 1344. Congress

therefore hoped to achieve the Act’s

objective ‘‘to restore and maintain the

chemical, physical, and biological

integrity of the Nation’s waters’’ by

addressing pollution of all waters via

non-regulatory means and federally

regulating the discharge of pollutants to

the subset of waters identified as

‘‘navigable waters.’’

4

Under this statutory scheme, the

States are primarily responsible for

developing water quality standards for

‘‘waters of the United States’’ within

their borders and reporting on the

condition of those waters to EPA every

two years. Id. at 1313, 1315. States must

develop total maximum daily loads

(TMDLs) for waters that are not meeting

established water quality standards and

must submit those TMDLs to EPA for

approval. Id. at 1313(d). States also have

authority to issue water quality

certifications or waive certification for

every federal permit or license issued

within their borders that may result in

a discharge to navigable waters. Id. at

1341.

These same regulatory authorities can

be assumed by Indian tribes under

section 518 of the CWA, which

authorizes EPA to treat eligible Indian

tribes with reservations in a manner

similar to States for a variety of

purposes, including administering each

of the principal CWA regulatory

programs. Id. at 1377(e). In addition,

States and Tribes retain authority to

protect and manage the use of those

waters that are not navigable waters

under the CWA. See, e.g., id. at 1251(b),

1251(g), 1370, 1377(a). At this time,

forty-seven states administer portions of

the CWA section 402 permit program for

those ‘‘waters of the United States’’

within their boundaries,

5

and two states

(Michigan and New Jersey) administer

the section 404 permit program. At

present, no Tribes administer the

section 402 or 404 programs, although

some are exploring the possibility. For

additional information regarding State

and tribal programs, see the Technical

Support Document.

2. Regulatory History

In May 1973, the EPA issued its first

set of regulations to implement the new

NPDES permit program established in

the 1972 CWA amendments. Those

regulations defined the phrase

‘‘navigable waters’’ as:

•All navigable waters of the United

States;

•Tributaries of navigable waters of

the United States;

•Interstate waters;

•Intrastate lakes, rivers, and streams

which are utilized by interstate travelers

for recreational or other purposes;

•Intrastate lakes, rivers, and streams

from which fish or shellfish are taken

and sold in interstate commerce; and

•Intrastate lakes, rivers, and streams

which are utilized for industrial

purposes by industries in interstate

commerce.

38 FR 13528, 13529 (May 22, 1973)

(codified at 40 CFR 125.1 (1973)).

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For convenience, the agencies generally refer to

the Corps’ regulations throughout this notice. EPA

codification of the definition of ‘‘waters of the

United States’’ is found at 40 CFR 110.1, 112.2,

116.3, 117.1, 122.2, 230.3, 232.2, 300.5, 401.11, and

Appendix E to Part 300.

7

‘‘Traditional navigable waters’’ (or waters that

are traditionally understood as navigable) refers to

all waters which are currently used, were used in

the past, or may be susceptible to use in interstate

or foreign commerce, including all waters subject to

the ebb and flow of the tide.

In 1974, the Corps issued its first set

of regulations defining ‘‘waters of the

United States’’ for the purpose of

implementing section 404 of the CWA,

as well as sections 9, 10, 11, 13, and 14

of the RHA, that reaffirmed the Corps’

view that its dredged and fill

jurisdiction under section 404 was the

same as its traditional jurisdiction under

the RHA. See 39 FR 12115, 12119 (Apr.

3, 1974) (codified at 33 CFR 209.12033).

Specifically, the Corps defined ‘‘the

waters of the United States’’ as waters

that ‘‘are subject to the ebb and flow of

the tide, and/or are presently, or have

been in the past, or may be in the future

susceptible for use for purposes of

interstate or foreign commerce.’’ 39 FR

12119.

Environmental organizations

challenged the Corps’ 1974 regulation in

the District Court for the District of

Columbia based on the concern that the

Corps’ definition of ‘‘navigable waters’’

did not include tributaries or coastal

marshes above the mean high tide mark

or wetlands above the ordinary high

water mark. The District Court held that

the term ‘‘navigable waters’’ is not

limited to the traditional tests of

navigability and ordered the Corps to

revoke its definition and publish a new

one ‘‘clearly recognizing the full

regulatory mandate of the Water Act.’’

Natural Resources Defense Council, Inc.

v. Callaway, 392 F. Supp. 685 (D.D.C.

1975).

In response to this decision, the Corps

issued interim regulations in 1975 that

defined the term ‘‘navigable waters’’ to

include periodically inundated coastal

wetlands contiguous with or adjacent to

navigable waters, periodically

inundated freshwater wetlands

contiguous with or adjacent to navigable

waters, and, like EPA’s 1973

regulations, certain intrastate waters

based on non-transportation impacts on

interstate commerce. The Corps revised

the definition in 1977 to encompass

traditional navigable waters, tributaries

to navigable waters, interstate waters,

adjacent wetlands to those categories of

waters, and ‘‘[a]ll other waters’’ the

‘‘degradation or destruction of which

could affect interstate commerce.’’ 42

FR 37122, 37144 (July 19, 1977).

The EPA and the Corps through the

years have maintained separate

regulations defining the statutory term

‘‘waters of the United States,’’ but the

text of the regulations has been virtually

identical starting in 1986.

6

In 1986, for

example, the Corps consolidated and

recodified its regulations to align with

clarifications EPA had previously

promulgated. See 51 FR 41206 (Nov. 13,

1986). While the Corps stated in 1986

that the recodified regulation neither

reduced nor expanded jurisdiction, its

previous exclusion for ditches was

moved from the regulatory text to the

final rule preamble. Id. at 41216–17.

And the Corps added to the preamble

what later became known as the

‘‘Migratory Bird Rule,’’ which claimed

jurisdiction over any water which is or

may be used by birds protected by

migratory bird treaties or may be used

as habitat for birds flying across state

lines, and waters which may be used by

endangered species, and waters used to

irrigate crops sold in interstate

commerce. Id. at 41217.

The 1986 regulatory text identified

the following as ‘‘waters of the United

States’’:

•All traditional navigable waters,

7

interstate waters, and the territorial seas;

•All impoundments of jurisdictional

waters;

•All ‘‘other waters’’ such as lakes,

ponds, and sloughs the ‘‘use,

degradation or destruction of which

could affect interstate or foreign

commerce’’;

•Tributaries of traditional navigable

waters, interstate waters, the territorial

seas, impoundments, or ‘‘other waters’’;

and,

•Wetlands adjacent to traditional

navigable waters, interstate waters, the

territorial seas, impoundments,

tributaries, or ‘‘other waters’’ (other than

waters that are themselves wetlands).

33 CFR 328.3(a)(1)–(7) (1987). The 1986

regulation also excluded ‘‘waste

treatment systems’’ from the definition

of ‘‘waters of the United States.’’ Id. at

328.3(a)(7), (b) (1987).

On August 25, 1993, the agencies

amended the regulatory definition of

‘‘waters of the United States’’ to

categorically exclude ‘‘prior converted

croplands.’’ 58 FR 45008, 45031 (Aug.

25, 1993) (‘‘1993 Rule’’) (codified at 33

CFR 328.3(b)(2) (1994)). The stated

purpose of the amendment was to

promote ‘‘consistency among various

federal programs affecting wetlands,’’ in

particular the Food Security Act (FSA)

programs implemented by the U.S.

Department of Agriculture (USDA) and

the CWA programs implemented by the

agencies. 58 FR 45033. The agencies did

not include a definition of ‘‘prior

converted cropland’’ in the text of the

Code of Federal Regulations but noted

in the preamble to the 1993 Rule that

the term was defined at that time by the

USDA National Food Security Act

Manual (NFSAM). The agencies at that

time also declined to establish clear

rules for when the prior converted

cropland designation is no longer

applicable. In the preamble to the 1993

Rule, the agencies stated that ‘‘[t]he

Corps and EPA will use the [Natural

Resources Conservation Service’s]

provisions on ‘abandonment,’ thereby

ensuring that PC cropland that is

abandoned within the meaning of those

provisions and which exhibit[s]

wetlands characteristics will be

considered wetlands subject to Section

404 regulation.’’ Id. at 45034. The

agencies summarized these

abandonment provisions by explaining

that prior converted cropland which

now meets wetland criteria is

considered to be abandoned unless: At

least once in every five years the area

has been used for the production of an

agricultural commodity, or the area has

been used and will continue to be used

for the production of an agricultural

commodity in a commonly used

rotation with aquaculture, grasses,

legumes or pasture production. Id.

Congress amended the wetland

conservation (‘‘Swampbuster’’)

provisions of the FSA in 1996 to state

that USDA certifications of eligibility for

program benefits (e.g., determinations

by Natural Resources Conservation

Service (NRCS) that particular areas

constitute prior converted cropland)

‘‘shall remain valid and in effect as long

as the area is devoted to an agricultural

use or until such time as the person

affected by the certification requests

review of the certification by the

Secretary [of Agriculture].’’ Public Law

104–127, 322(a)(4); 16 U.S.C. 3822(a)(4).

Thus, for purposes of farm program

eligibility, the 1996 amendments

designate as prior converted cropland

those areas that may not have qualified

for the CWA exclusion under the

abandonment principles from the 1993

preamble, so long as such areas remain

in agricultural use. The agencies did not

update their prior converted cropland

regulations for purposes of the CWA

following the 1996 Swampbuster

amendments, as those regulations

neither defined prior converted

cropland nor specified when a valid

prior converted cropland determination

might cease to be valid. However, in

2005, the Army and USDA issued a joint

Memorandum to the Field (the 2005

Memorandum) in an effort to again align

the CWA 404 program with

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Memorandum to the Field on Guidance on

Conducting Wetland Determinations for the Food

Security Act of 1985 and Section 404 of the Clean

Water Act, February 25, 2005, available at https://

usace.contentdm.oclc.org/utils/getfile/collection/

p16021coll11/id/2508.

9

See Legal Memoranda Regarding Solid Waste

Agency of Northern Cook County (SWANCC) v.

United States (Jan. 15, 2003), available at https://

www.epa.gov/sites/production/files/2016-04/

documents/swancc_guidance_jan_03.pdf.

Swampbuster.

8

The 2005 Memorandum

provided that a ‘‘certified [prior

converted] determination made by

[USDA] remains valid as long as the

area is devoted to an agricultural use. If

the land changes to a non-agricultural

use, the [prior converted] determination

is no longer applicable and a new

wetland determination is required for

CWA purposes.’’

The 2005 Memorandum did not

clearly address the abandonment

principle that the agencies had been

implementing since the 1993

rulemaking. The change in use policy

was also never promulgated as a rule

and was declared unlawful by one

district court because it effectively

modified the 1993 preamble language

without any formal rulemaking process.

New Hope Power Co. v. U.S. Army

Corps of Eng’rs, 746 F. Supp. 2d 1272,

1282 (S.D. Fla. 2010).

3. Supreme Court Decisions

From the earliest rulemaking efforts

following adoption of the 1972 CWA

amendments, to the agencies most

recent attempt to define ‘‘waters of the

United States’’ in 2015, the sparse

statutory definition has spurred

substantial litigation testing the

meaning of the phrase. Hundreds of

cases and dozens of courts have

attempted to discern the intent of

Congress when crafting the phrase. See,

e.g., Rapanos v. United States, 547 U.S.

715, 739 (2006) (Scalia, J., plurality)

(briefly summarizing case history). The

federal courts have established different

analytical frameworks to interpret the

phrase, and the applicable test may

differ from state to state. See, e.g.,

Memorandum from Dick Pedersen,

President of the Environmental Council

of the States (ECOS) of September 11,

2014 Concerning Waters of the United

States under the Act at 2–23 (2014)

(hereinafter, the ‘‘ECOS

Memorandum’’), available at http://

acoel.org/file.axd?

file=2014%2f9%2fWaters+

of+the+U+S+Final+9_11_14.pdf

(summarizing case history following

Rapanos).

As part of this complex litigation

history, three key U.S. Supreme Court

decisions have interpreted the term

‘‘waters of the United States’’ and its

implementing regulations and serve as

guideposts for the agencies’

interpretation of the phrase ‘‘waters of

the United States.’’ In 1985, for

example, the Supreme Court deferred to

the Corps’ assertion of jurisdiction over

wetlands actually abutting a traditional

navigable water in Michigan, stating

that adjacent wetlands may be regulated

as ‘‘waters of the United States’’ because

they are ‘‘inseparably bound up’’ with

navigable waters and ‘‘in the majority of

cases’’ have ‘‘significant effects on water

quality and the aquatic ecosystem’’ in

those waters. United States v. Riverside

Bayview Homes, 474 U.S. 121, 131–35 &

n.9 (1985). The Court recognized that

‘‘[i]n determining the limits of its power

to regulate discharges under the Act, the

Corps must necessarily choose some

point at which water ends and land

begins ..... Where on this

continuum to find the limit of ‘waters’

is far from obvious.’’ Id. at 132. The

Court acknowledged the ‘‘inherent

difficulties of defining precise bounds to

regulable waters,’’ and deferred to the

agencies’ interpretation that the close

ecological relationship between adjacent

wetlands and traditional navigable

waters provided a legal justification for

treating wetlands as waters. Id. at 134.

The Court also ‘‘conclude[d] that a

definition of ‘waters of the United

States’ encompassing all wetlands

adjacent to other bodies of water over

which the Corps has jurisdiction is a

permissible interpretation of the Act.’’

Id. at 135.

The Supreme Court again addressed

the definition of ‘‘waters of the United

States’’ in Solid Waste Agency of

Northern Cook County v. U.S. Army

Corps of Engineers, 531 U.S. 159 (2001)

(SWANCC). In SWANCC, the Court

relied on the statute to reject a claim of

federal jurisdiction over nonnavigable,

isolated, intrastate ponds that lack a

sufficient connection to traditional

navigable waters, noting that the term

‘‘navigable’’ must be given meaning

within the context and application of

the statute. Id. The Court held that

interpreting the statute to extend to

nonnavigable, isolated, intrastate ponds

that lack a sufficient connection to

traditional navigable waters would

invoke the outer limits of Congress’

power under the Commerce Clause. Id.

at 172. Where an administrative

interpretation of a statute presses

against the outer limits of Congress’

constitutional authority, the Court

explained, it expects a clear statement

from Congress that it intended that

result, and even more so when the broad

interpretation authorizes federal

encroachment upon a traditional state

power. Id. The CWA contains no such

clear statement. Id. at 174.

In January 2003, EPA and the Corps

issued joint guidance interpreting the

Supreme Court decision in SWANCC.

9

The guidance indicated that SWANCC

focused on nonnavigable, isolated,

intrastate waters, and called for field

staff to coordinate with their respective

Corps or EPA Headquarters on

jurisdictional determinations which

asserted jurisdiction over such waters.

The agencies at that time focused the

application of SWANCC to its facts, and

applied the decision as restricting the

exercise of federal jurisdiction based on

the Migratory Bird Rule.

The Court most recently interpreted

the term ‘‘waters of the United States’’

in Rapanos v. United States, 547 U.S.

715 (2006). Rapanos involved two

consolidated cases in which the CWA

had been applied to wetlands located

near man-made ditches that were

ultimately connected to traditional

navigable waters. All members of the

Court agreed that the term ‘‘waters of

the United States’’ encompasses some

waters that are not navigable in the

traditional sense.

A four-Justice plurality interpreted

the term ‘‘waters of the United States’’

to ‘‘include[ ] only those relatively

permanent, standing or continuously

flowing bodies of water ‘forming

geographic features’ that are described

in ordinary parlance as ‘streams[,] . . .

oceans, rivers, [and] lakes,’ ’’ Rapanos,

547 U.S. at 739 (Scalia, J., plurality)

(quoting Webster’s New International

Dictionary 2882 (2d ed. 1954)), and

‘‘wetlands with a continuous surface

connection’’ to a relatively permanent

water. Id. at 742. The plurality

explained that ‘‘[w]etlands with only an

intermittent, physically remote

hydrologic connection to ‘waters of the

United States’ do not implicate the

boundary-drawing problem of Riverside

Bayview,’’ and thus do not have the

‘‘necessary connection’’ to covered

waters that triggers CWA jurisdiction.

Id. at 742. The plurality also noted that

its reference to ‘‘relatively permanent’’

waters did ‘‘not necessarily exclude

streams, rivers, or lakes that might dry

up in extraordinary circumstances, such

as drought,’’ or ‘‘seasonal rivers, which

contain continuous flow during some

months of the year but no flow during

dry months . . . .’’ Id. at 732 n.5

(emphasis in original).

In a concurring opinion, Justice

Kennedy took a different approach,

concluding that ‘‘to constitute

‘navigable waters’ under the Act, a

water or wetland must possess a

‘significant nexus’ to waters that are or

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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.

11

In this notice, a ‘‘primary’’ water is a category

(1) through (3) ‘‘jurisdictional by rule’’ water

according to the 2015 Rule.

were navigable in fact or that could

reasonably be so made.’’ Id. at 759

(citing SWANCC, 531 U.S. at 167, 172).

He stated that adjacent wetlands possess

the requisite significant nexus if the

wetlands ‘‘either alone or in

combination with similarly situated

lands in the region, significantly affect

the chemical, physical, and biological

integrity of other covered waters more

readily understood as ‘navigable.’ ’’ Id.

at 780.

Following Rapanos, on June 7, 2007,

the agencies issued joint guidance

entitled, ‘‘Clean Water Act Jurisdiction

Following the U.S. Supreme Court’s

Decision in Rapanos v. United States

and Carabell v. United States,’’ to

address the waters at issue in that

decision but did not change the codified

definition. The guidance indicated that

the agencies would assert jurisdiction

over traditional navigable waters and

their adjacent wetlands, relatively

permanent nonnavigable tributaries of

traditional navigable waters and

wetlands that abut them, nonnavigable

tributaries that are not relatively

permanent if they have a significant

nexus with a traditional navigable

water, and wetlands adjacent to

nonnavigable tributaries that are not

relatively permanent if they have a

significant nexus with a traditional

navigable water. The guidance was

reissued on December 2, 2008, with

minor changes (hereinafter, the

‘‘Rapanos Guidance’’).

10

After issuance

of the Rapanos Guidance, Members of

Congress, developers, farmers, state and

local governments, environmental

organizations, energy companies, and

others asked the agencies to replace the

guidance with a regulation that would

provide clarity and certainty regarding

the scope of the waters federally

regulated under the CWA.

Since Rapanos, litigation has

continued to confuse the regulatory

landscape. See, e.g., the ECOS

Memorandum at 2–23. The Supreme

Court also has twice weighed in on

topics related to the agencies’

implementation of their authorities

under the CWA to help clarify federal

authority in this area. In each case,

members of the Court noted the

longstanding confusion regarding the

scope of federal jurisdiction under the

CWA and the importance of providing

clear guidance to the regulated

community. In 2012, for example, the

Supreme Court unanimously rejected

EPA’s long-standing position that

compliance orders issued under the

CWA to force property owners to restore

wetlands are not judicially reviewable

as final agency actions. See Sackett v.

EPA, 132 S. Ct. 1367, 1374 (2012). In a

concurring opinion, Justice Alito

referred to the jurisdictional reach of the

CWA as ‘‘notoriously unclear’’ and

noted that the Court’s decision provided

only ‘‘a modest measure of relief.’’ Id. at

1375 (‘‘For 40 years, Congress has done

nothing to resolve this critical

ambiguity, and the EPA has not seen fit

to promulgate a rule providing a clear

and sufficiently limited definition of the

phrase’’ waters of the United States.).

In 2016, the Supreme Court in a

unanimous opinion rejected the Corps’

longstanding position that jurisdictional

determinations issued by the Corps

were not judicially reviewable as final

agency actions. Writing for the Court,

the Chief Justice recognized that it ‘‘is

often difficult to determine whether a

particular piece of property contains

waters of the United States, but there are

important consequences if it does.’’ U.S.

Army Corps of Engineers v. Hawkes, 136

S. Ct. 1807, 1812 (2016). Given those

important consequences, the Court held

that jurisdictional determinations are

subject to immediate judicial review

when made. Justice Kennedy authored a

concurring opinion, ‘‘not to qualify

what the Court says but to point out,

that based on the Government’s

representations in this case, the reach

and systemic consequences of the Clean

Water Act remain a cause for concern.’’

Id. at 1816 (referring to the ‘‘ominous

reach’’ of the Act). On remand, the

lower court found that the Corps’

assertion of jurisdiction over a peat farm

more than 90 miles from the nearest

traditional navigable water based on the

‘‘significant nexus’’ test described in the

agencies’ Rapanos Guidance was

‘‘arbitrary and capricious.’’ Hawkes Co.

v. United States Army Corps of Eng’rs,

No. 13–107 ADM/TNL, 2017 U.S. Dist.

LEXIS 10680 at *33 (D. Minn. Jan. 24,

2017).

4. The 2015 Rule

On June 29, 2015, the agencies issued

a final rule amending various portions

of the Code of Federal Regulations that

set forth a new definition of ‘‘waters of

the United States.’’ 80 FR 37054 (June

29, 2015). The 2015 Rule revised the

definition of ‘‘waters of the United

States’’ by grouping waters and features

in three categories: (1) Waters that are

jurisdictional by rule; (2) waters that

will be found jurisdictional only upon

a case-specific showing of a significant

nexus with a primary water;

11

and (3)

waters and aquatic features that are

expressly excluded from jurisdiction. Id.

at 37057. The 2015 Rule did not modify

the regulatory text from the 1986

regulation for traditional navigable

waters, interstate waters, the territorial

seas, or impoundments of jurisdictional

waters. Id. at 37058.

As in the 1986 regulation and its

predecessors, the 2015 Rule identified

tributaries as jurisdictional. Unlike the

1986 regulation, the 2015 Rule defined

‘‘tributary’’ as a water that ‘‘contributes

flow, either directly or through another

water,’’ to a traditional navigable water,

interstate water, or the territorial seas,

and that has the ‘‘physical indicators of

a bed and banks and an ordinary high

water mark.’’ Id. at 37104, 37105–6. The

2015 Rule also defined ‘‘waters of the

United States’’ to include ‘‘wetlands,

ponds, lakes, oxbows, impoundments,

and similar waters’’ that are ‘‘adjacent

to’’ a primary water, impoundment, or

tributary. Id. at 37104. The term

‘‘adjacent’’ continued to be defined as in

the 1986 regulation to mean ‘‘bordering,

contiguous, or neighboring.’’ Id. at

37105. The 2015 Rule, however,

promulgated a new definition for

‘‘neighboring,’’ interpreting that term to

encompass all waters located within 100

feet of the ordinary high water mark of

a category (1) through (5) ‘‘jurisdictional

by rule’’ water; all waters located within

the 100-year floodplain of a category (1)

through (5) ‘‘jurisdictional by rule’’

water and not more than 1,500 feet from

the ordinary high water mark of such

water; all waters located within 1,500

feet of the high tide line of a primary

water; and all waters within 1,500 feet

of the ordinary high water mark of the

Great Lakes. Id. at 37105. Under the

2015 Rule, the entire water is

considered neighboring if any portion of

it lies within one of these zones. See id.

In addition to the six categories of

‘‘jurisdictional by rule’’ waters, the 2015

Rule identifies two other categories of

waters that are subject to a case-specific

analysis to determine if they have a

‘‘significant nexus’’ to a primary water.

Id. at 37104–5. The first category of

these waters consists of five specific

types of waters in specific regions of the

country considered similarly situated:

Prairie potholes, Carolina and Delmarva

bays, pocosins, western vernal pools in

California, and Texas coastal prairie

wetlands. Id. at 37105. The second

category consists of all waters located

within the 100-year floodplain of any

primary water and all waters located

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‘‘[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.

13

Alabama, Alaska, Arizona, Arkansas, Colorado,

Florida, Georgia, Idaho, Indiana, Kansas, Kentucky,

Louisiana, Michigan, Mississippi, Missouri,

Montana, Nebraska, Nevada, New Mexico

(Environment Department and State Engineer),

North Carolina (Department of Environment and

Natural Resources), North Dakota, Ohio, Oklahoma,

South Carolina, South Dakota, Tennessee, Texas,

Utah, West Virginia, Wisconsin, and Wyoming.

Iowa joined the challenge later in the process,

bringing the total to 32 States.

14

U.S. District Courts for the Northern and

Southern District of Georgia, District of Minnesota,

District of North Dakota, Southern District of Ohio,

Northern District of Oklahoma, Southern District of

Texas, District of Arizona, Northern District of

Florida, District of the District of Columbia,

Western District of Washington, Northern District of

California, and Northern District of West Virginia.

15

U.S. Court of Appeals for the Second, Fifth,

Sixth, Eighth, Ninth, Tenth, Eleventh, and District

of Columbia Circuits.

16

Alaska, Arizona, Arkansas, Colorado, Idaho,

Missouri, Montana, Nebraska, Nevada, New

Mexico, North Dakota, South Dakota, and

Wyoming. The agencies note that Iowa is now also

subject to the preliminary injunction issued by the

District of North Dakota. See Order, North Dakota

v. EPA, No. 3:15–cv–59 (D.N.D. Sept. 18, 2018).

within 4,000 feet of the high tide line or

ordinary high water mark of any

category (1) through (5) ‘‘jurisdictional

by rule’’ water. Id.

The 2015 Rule also changed the

implementation of ‘‘significant nexus’’

previously adopted by the agencies in

the Rapanos Guidance. The 2015 Rule

defines ‘‘significant nexus’’ to mean a

water, including wetlands, that either

alone or in combination with other

similarly situated waters in the region,

significantly affects the chemical,

physical, or biological integrity of a

primary water. 80 FR 37106. ‘‘For an

effect to be significant, it must be more

than speculative or insubstantial.’’ Id.

The term ‘‘in the region’’ means ‘‘the

watershed that drains to the nearest’’

primary water, and waters are ‘‘similarly

situated’’ when they function alike and

are sufficiently close to function

together in affecting downstream

primary waters. Id. This definition is

different than the test articulated by the

agencies in their Rapanos Guidance.

That guidance interpreted ‘‘similarly

situated’’ to include all wetlands (not

waters) adjacent to the same tributary, a

less expansive treatment of similarly

situated waters than in the 2015 Rule.

Under the 2015 Rule, to determine

whether a water, alone or in

combination with similarly situated

waters, has a significant nexus, one

must look at nine functions, including

sediment trapping, runoff storage,

provision of life cycle dependent

aquatic habitat, and others. It is

sufficient for determining whether a

water has a significant nexus if any

single function performed by the water,

alone or together with similarly situated

waters in the watershed, contributes

significantly to the chemical, physical,

or biological integrity of the nearest

primary water. Id. Taken together, the

enumeration of the nine functions and

the more expansive consideration of

‘‘similarly situated’’ in the 2015 Rule

relative to the Rapanos Guidance could

mean that the vast majority of water

features in the United States not

otherwise excluded from the 2015

Rule’s definition of ‘‘waters of the

United States’’ may come within the

jurisdictional purview of the federal

government.

12

The agencies retained exclusions from

the definition of ‘‘waters of the United

States’’ for prior converted cropland and

waste treatment systems. Id. In addition,

the agencies codified several exclusions

that reflected longstanding agency

practice. Id. For instance, certain

ditches and artificial, constructed lakes

and ponds (including small ornamental

waters created in dry land) are excluded

from jurisdiction under the 2015 Rule,

as are groundwater and a number of

other specified features. See 80 FR

37109. The agencies also added specific

exclusions for ‘‘puddles’’ and

‘‘swimming pools’’ in response to

concerns raised by many stakeholders

during the public comment period on

the proposed 2015 Rule.

Following publication of the 2015

Rule, 31 States

13

and 53 non-state

parties, including environmental groups

and groups representing farming,

recreational, forestry, and other

interests, filed complaints and petitions

for review in multiple federal district

14

and appellate

15

courts challenging the

2015 Rule. In those cases, the

challengers alleged numerous

procedural deficiencies in the

development and promulgation of the

2015 Rule and significant substantive

deficiencies in the 2015 Rule itself.

The day before the 2015 Rule’s

August 28, 2015 effective date, the U.S.

District Court for the District of North

Dakota preliminarily enjoined the 2015

Rule in the 13 States that challenged the

rule in that court.

16

The district court

found those States were ‘‘likely to

succeed’’ on the merits of their

challenge to the 2015 Rule because,

among other reasons, ‘‘it appears likely

that the EPA has violated its

Congressional grant of authority in its

promulgation of the Rule.’’ North

Dakota v. EPA, 127 F. Supp. 3d 1047,

1051 (D.N.D. 2015). In particular, the

court noted concern that the 2015 Rule’s

definition of tributary ‘‘includes vast

numbers of waters that are unlikely to

have a nexus to navigable waters.’’ Id.

at 1056. Further, the court found that ‘‘it

appears likely that the EPA failed to

comply with [Administrative Procedure

Act (APA)] requirements when

promulgating the Rule,’’ suggesting that

certain distance-based measures were

not a logical outgrowth of the proposal

to the 2015 Rule. Id. at 1058. No party

sought an interlocutory appeal.

The numerous petitions for review

filed in the courts of appeals were

consolidated in the U.S. Court of

Appeals for the Sixth Circuit. In that

litigation, state and industry petitioners

raised concerns about whether the 2015

Rule violated the Constitution and the

CWA, and whether its promulgation

violated the APA and other statutes.

Environmental petitioners also

challenged the 2015 Rule, claiming that

the 2015 Rule was too narrow. On

October 9, 2015, approximately six

weeks after the 2015 Rule took effect in

the 37 States, the District of Columbia,

and U.S. Territories that were not

subject to the preliminary injunction

issued by the District of North Dakota,

the Sixth Circuit stayed the 2015 Rule

nationwide after finding, among other

things, that State petitioners had

demonstrated ‘‘a substantial possibility

of success on the merits of their claims.’’

In re EPA & Dep’t of Def. Final Rule, 803

F.3d 804 (6th Cir. 2015) (‘‘In re EPA’’).

On January 13, 2017, the U.S.

Supreme Court granted certiorari on the

question of whether the courts of

appeals have original jurisdiction to

review challenges to the 2015 Rule. See

Nat’l Ass’n of Mfrs. v. Dep’t of Defense,

137 S. Ct. 811 (2017). The Sixth Circuit

granted petitioners’ motion to hold in

abeyance the briefing schedule in the

litigation challenging the 2015 Rule

pending a Supreme Court decision on

the question of the court of appeals’

jurisdiction. On January 22, 2018, the

Supreme Court, in a unanimous

opinion, held that the 2015 Rule is

subject to direct review in the district

courts. Nat’l Ass’n of Mfrs. v. Dep’t of

Def., 138 S. Ct. 617, 624 (Jan. 22, 2018).

Throughout the pendency of the

Supreme Court litigation (and for a short

time thereafter), the Sixth Circuit’s

nationwide stay remained in effect. In

response to the Supreme Court’s

decision, on February 28, 2018, the

Sixth Circuit lifted the stay and

dismissed the corresponding petitions

for review. See In re Dep’t of Def. & EPA

Final Rule, 713 Fed. Appx. 489 (6th Cir.

2018).

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17

To assist the public in keeping up with the

changing regulatory landscape of federal

jurisdiction under the CWA, the EPA has posted a

map of current effective regulation by state online

at https://www.epa.gov/wotus-rule/definition-

waters-united-states-rule-status-and-litigation-

update.

Since the Supreme Court’s

jurisdictional ruling, district court

litigation regarding the 2015 Rule has

resumed. The 2015 Rule continues to be

subject to a preliminary injunction

issued by the District of North Dakota as

to 14 States: Alaska, Arizona, Arkansas,

Colorado, Idaho, Iowa, Missouri,

Montana, Nebraska, Nevada, North

Dakota, South Dakota, Wyoming, and

New Mexico. The 2015 Rule also is

subject to a preliminary injunction

recently issued by the United States

District Court for the Southern District

of Georgia as to 11 more States: Georgia,

Alabama, Florida, Indiana, Kansas,

Kentucky, North Carolina, South

Carolina, Utah, West Virginia, and

Wisconsin. See Georgia v. Pruitt, No.

15–cv–79 (S.D. Ga.). When issuing the

preliminary injunction, the Southern

District of Georgia court held that the

State plaintiffs had demonstrated ‘‘a

likelihood of success on their claims

that the [2015] WOTUS Rule was

promulgated in violation of the CWA

and the APA.’’ Georgia v. Pruitt, No. 15–

cv–79, slip op. at 10 (S.D. Ga. June 8,

2018) (Order Granting Preliminary

Injunction) (‘‘Georgia’’). In support of

the preliminary injunction, the court

stated that the 2015 Rule failed to meet

the standard expounded in SWANCC

and Rapanos, and that the rule was

fatally defective because it ‘‘allows the

Agencies to regulate waters that do not

bear any effect on the ‘chemical,

physical, and biological integrity’ of any

navigable-in-fact water.’’ Id. at 12. The

court also held that the plaintiffs ‘‘have

demonstrated a likelihood of success on

both of their claims under the APA’’

that the 2015 Rule ‘‘is arbitrary and

capricious’’ and ‘‘that the final rule is

not a logical outgrowth of the proposed

rule.’’ Id. at 13.

In September 2018, the United States

District Court for the Southern District

of Texas issued a preliminary injunction

against the 2015 Rule in response to

motions filed by the States of Texas,

Louisiana, and Mississippi and several

business associations, finding that

enjoining the rule would provide ‘‘much

needed governmental, administrative,

and economic stability’’ while the rule

undergoes judicial review. See Texas v.

EPA, No. 3:15–cv–162, 2018 U.S. Dist.

LEXIS 160443, at *4 (S.D. Tex. Sept. 12,

2018). The court observed that if it did

not temporarily enjoin the rule, ‘‘it risks

asking the states, their governmental

subdivisions, and their citizens to

expend valuable resources and time

operationalizing a rule that may not

survive judicial review.’’ Id. At this

time, the 2015 Rule is enjoined in 28

States and remains in effect following

the lift of the Sixth Circuit stay in 22

States, the District of Columbia, and

U.S. Territories.

C. Executive Order 13778, the ‘‘Step

One’’ Notice of Proposed Rulemaking,

and the Applicability Date Rule

On February 28, 2017, the President

issued Executive Order 13778 entitled

‘‘Restoring the Rule of Law, Federalism,

and Economic Growth by Reviewing the

‘Waters of the United States’ Rule.’’

Section 1 of the Executive Order states,

‘‘[i]t is in the national interest to ensure

the Nation’s navigable waters are kept

free from pollution, while at the same

time promoting economic growth,

minimizing regulatory uncertainty, and

showing due regard for the roles of the

Congress and the States under the

Constitution.’’ The Executive Order

directs the EPA and the Army to review

the 2015 Rule for consistency with the

policy outlined in section 1 of the Order

and to issue a proposed rule rescinding

or revising the 2015 Rule as appropriate

and consistent with law (Section 2). The

Executive Order also directs the

agencies to ‘‘consider interpreting the

term ‘navigable waters’ . . . in a manner

consistent with’’ Justice Scalia’s

plurality opinion in Rapanos v. United

States, 547 U.S. 715 (2006) (Section 3).

On March 6, 2017, the agencies

published a notice of intent to review

the 2015 Rule and provide notice of a

forthcoming proposed rulemaking

consistent with the Executive Order. 82

FR 12532. Shortly thereafter, the

agencies announced that they would

implement the Executive Order in a

two-step approach. On July 27, 2017,

the agencies issued the ‘‘Step One’’

notice of proposed rulemaking (82 FR

34899) that proposed to repeal the 2015

Rule and recodify the regulatory text

that governed prior to the promulgation

of the 2015 Rule, consistent with

Supreme Court decisions and informed

by applicable guidance documents and

agency practice, and which the agencies

have been implementing since the

judicial stay of the 2015 Rule. 82 FR

34899. The agencies invited comment

on the notice of proposed rulemaking

over a 62-day period. On July 12, 2018,

the agencies published a supplemental

notice of proposed rulemaking to

clarify, supplement, and seek additional

comment on the Step One notice of

proposed rulemaking. 83 FR 32227.

On November 22, 2017, the agencies

published and solicited public comment

on a proposal to establish an

applicability date for the 2015 Rule that

would be two years from the date of any

final rule (82 FR 55542). On February 6,

2018, the agencies issued a final rule, 83

FR 5200 (Feb. 6, 2018), adding an

applicability date to the 2015 Rule. The

applicability date was established as

February 6, 2020. When adding an

applicability date to the 2015 Rule, the

agencies clarified that they will

continue to implement nationwide the

previous regulatory definition of

‘‘waters of the United States,’’ consistent

with the practice and procedures the

agencies implemented long before and

immediately following the 2015 Rule

pursuant to the preliminary injunction

issued by the District of North Dakota

and the nationwide stay issued by the

Sixth Circuit. The agencies further

explained that the final applicability

date rule would ensure regulatory

certainty and consistent implementation

of the CWA nationwide while the

agencies reconsider the 2015 Rule and

pursue further rulemaking to develop a

new definition of ‘‘waters of the United

States.’’

The applicability date rule was

challenged in a number of district courts

by States and environmental

organizations. On August 16, 2018, the

U.S. District Court for the District of

South Carolina granted summary

judgment in favor of the plaintiffs and

enjoined the Applicability Date Rule

nationwide. South Carolina Coastal

Conservation League, et al., v. Pruitt,

No. 2–18–cv–330–DCN, 2018 U.S. Dist.

LEXIS 138595 (D.S.C. Aug. 16, 2018). In

addition, on November 26, 2018, the

U.S. District Court for the Western

District of Washington vacated the

Applicability Date Rule nationwide.

Puget Soundkeeper Alliance, et al. v.

Andrew Wheeler, et al., No. C15–1342–

JCC (W.D. Wash. November 26, 2018).

As a result, the 2015 Rule is now in

effect in 22 States.

17

The 2015 Rule

continues to be subject to preliminary

injunctions issued by the U.S. District

Court for the District of North Dakota,

the U.S. District Court for the Southern

District of Georgia, and the U.S. District

Court for the Southern District of Texas

in a total of 28 States.

D. Summary of Stakeholder Outreach

Following the March 6, 2017 Federal

Register notice announcing the

agencies’ intent to review and rescind or

revise the 2015 Rule, the agencies

initiated an effort to engage the public

to hear perspectives as to how the

agencies could define ‘‘waters of the

United States,’’ including creating a new

website to provide information on the

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18

As Congress drafted the 1972 CWA

amendments, the Senate bill set the ‘‘no-discharge

of pollutants into the navigable water by 1985’’

provision as a policy whereas the House bill set it

as a goal. The Act was ultimately passed with the

‘‘no-discharge by 1985’’ provision established as a

goal. See 33 U.S.C 1251(a)(1). In House

consideration of the Conference Report,

Congressman Jones captured the policy versus goal

distinction in Section 101(a)(1) as follows: ‘‘The

objective of this legislation is to restore and

preserve for the future the integrity of our Nation’s

waters. The bill sets forth as a national goal the

complete elimination of all discharges into our

navigable waters by 1985, but . . . the conference

report states clearly that achieving the 1985 target

date is a goal, not a national policy. As such, it

serves as a focal point for long-range planning, and

Continued

rulemaking. See www.epa.gov/wotus-

rule. On April 19, 2017, the agencies

held an initial Federalism consultation

with State and local government

officials as well as national

organizations representing such

officials. The agencies also convened

several additional meetings with

intergovernmental associations and

their members to solicit input on the

future rule. The EPA, with participation

from the Army, initiated Tribal

consultation on April 20, 2017, under

the EPA Policy on Consultation and

Coordination with Indian Tribes. See

Section VI for further details on the

agencies’ Federalism and Tribal

consultations.

In addition to engaging key State,

tribal and local officials through

Federalism and Tribal consultations, the

agencies sought feedback on the

definition of ‘‘waters of the United

States’’ from a broad audience of

stakeholders, including small entities

(small businesses, small organizations

and small government jurisdictions),

through a series of outreach webinars

that were held September 9, 2017,

through November 21, 2017, as well as

an in-person meeting for small entities

on October 23, 2017. A summary of

these public meetings is available in the

docket (Docket Id. No. EPA–HQ–OW–

2018–0149) for this proposed rule. The

webinars were tailored to specific

sectors, including agriculture (row crop,

livestock, silviculture); conservation

(hunters and anglers); small entities

(small businesses, small organizations,

small jurisdictions); construction and

transportation; environment and public

advocacy (including health and

environmental justice); mining; energy

and chemical industry; scientific

organizations and academia;

stormwater, wastewater management,

and drinking water agencies; and the

general public.

At the webinars and meetings, the

agencies provided a presentation and

sought input on specific issues, such as

potential approaches to defining

‘‘relatively permanent’’ waters and

‘‘continuous surface connections’’ after

the plurality opinion in Rapanos. The

agencies did not provide participants

with specific rule text or alternatives for

consideration, but requested feedback

on other considerations addressing

specific geomorphological features,

exclusions and exemptions, costs and

benefits, and aquatic resource data that

the agencies might consider in the

technical analyses for a future rule.

Participant comments and letters

submitted represent a diverse range of

interests, positions, suggestions, and

recommendations provided to the

agencies. Several themes emerged

throughout this process, including

support for ongoing State and tribal

engagement; clarity and predictability of

the regulation; specific suggestions for

rule language; suggested exclusions and

exemptions; regionalization of the

definition; and, procedural concerns.

As part of this outreach effort, the

agencies established a public

recommendations docket (Docket ID No.

EPA–HQ–OW–2017–0480) that opened

August 28, 2017, and closed November

28, 2017. The agencies received over

6,300 recommendations that have been

considered as the agencies developed

this proposed rule, which are available

on Regulations.gov at https://

www.regulations.gov/docket?D=EPA-

HQ-OW-2017-0480. Another source of

recommendations as to how the

agencies should define ‘‘waters of the

United States’’ came from public

comments on the agencies’ proposed

‘‘Step One’’ rule (82 FR 34899) and the

July 2018 supplemental notice of

proposed rulemaking (83 FR 32227).

These comments also have been

considered.

In addition, on March 8 and 9, 2018,

the agencies held an in-person meeting

with a group of nine states (Arizona,

Arkansas, Florida, Iowa, Maryland,

Minnesota, Oregon, Pennsylvania, and

Wyoming), and convened a subsequent

in-person meeting on March 22, 2018,

with representatives from all states at

the spring meeting of the Environmental

Council of the States. The agencies also

held an in-person Tribal Co-Regulators

Workshop on March 6 and 7, 2018.

These meetings were intended to seek

technical input on the proposed rule. A

summary of these meetings is available

in the docket (Docket Id. No. EPA–HQ–

OW–2018–0149) for this proposed rule.

E. Overview of Legal Construct for the

Proposed Rule

As the preceding summary of the

statutory and regulatory history makes

clear, the central term delineating the

federal geographic scope of authority

under the CWA—‘‘waters of the United

States’’—has been the subject of debate

and litigation for many years. The

agencies today are proposing to

establish a regulation that would define

‘‘waters of the United States’’ in simple,

understandable, and implementable

terms to reflect the ordinary meaning of

the statutory term, as well as to adhere

to Constitutional and statutory

limitations, the policies of the CWA,

and case law, and to meet the needs of

regulatory agencies and the regulated

community. This subsection

summarizes the legal principles that

inform the agencies’ proposal, and the

following section (Section III) describes

how the agencies are applying those

legal principles to support the proposed

‘‘waters of the United States’’ definition.

1. Statutory Framework

To determine the scope of executive

branch authority under the CWA, the

agencies begin with the text of the

statute. The objective of the CWA, as

established by Congress, is ‘‘to restore

and maintain the chemical, physical,

and biological integrity of the Nation’s

waters.’’ 33 U.S.C. 1251(a). As discussed

in Section II.B above, in order to meet

that objective, Congress declared two

national water quality goals and

established several key policies that

direct the work of the agencies.

Congress also envisioned a major role

for the States in implementing the CWA,

carefully balancing the traditional

power of States to regulate land and

water resources within their borders

with the need for national water quality

regulation.

The agencies have developed

programs designed to ensure that the

full statute is implemented as Congress

intended. See, e.g., Hibbs v. Winn, 542

U.S. 88, 101 (2004) (‘‘A statute should

be construed so that effect is given to all

its provisions, so that no part will be

inoperative or superfluous, void or

insignificant.’’). This includes pursuing

the overall ‘‘objective’’ of the CWA

while implementing the specific

‘‘policy’’ directives from Congress to,

among other things, ‘‘recognize,

preserve, and protect the primary

responsibilities and rights of States to

prevent, reduce, and eliminate

pollution’’ and ‘‘to plan the

development and use . . . of land and

water resources,’’ 33 U.S.C. 1251(b). See

Webster’s II, New Riverside University

Dictionary (1994) (defining ‘‘policy’’ as

a ‘‘plan or course of action, as of a

government[,] designed to influence and

determine decisions and actions;’’ an

‘‘objective’’ is ‘‘something worked

toward or aspired to: Goal’’).

18

The

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for research and development in water pollution

control technology .... While it is our hope that

we can succeed in eliminating all discharge into our

waters by 1985, without unreasonable impact on

the national life, we recognized in this report that

too many imponderables exist, some still beyond

our horizons, to prescribe this goal today as a legal

requirement.’’ 118 Cong. Rec. H. 33749 (daily ed.

October 4, 1972).

19

See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519, 544, (2012) (‘‘Where Congress uses

certain language in one part of a statute and

different language in another, it is generally

presumed that Congress acts intentionally’’);

Russello v. United States, 464 U.S. 16, 23 (1983)

(‘‘[Where] Congress includes particular language in

one section of a statute but omits it in another

section of the same Act, it is generally presumed

that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.’’).

20

The agencies recognize that individual member

statements are not a substitute for full congressional

intent, but they do help provide context for issues

that were discussed during the legislative debates.

For a detailed discussion of the legislative history

of the 1972 CWA amendments, see, e.g., Albrecht

& Nickelsburg, Could SWANCC Be Right? A New

Look at the Legislative History of the Clean Water

Act, 32 ELR 11042 (Sept. 2002).

21

For a detailed discussion of the legislative

history supporting the enactment of CWA section

404(g), see Final Report of the Assumable Waters

Subcommittee (May 2017), App. F., available at

https://www.epa.gov/sites/production/files/2017-

05/documents/awsubnaceptpresent5-final.pdf.

agencies therefore recognize a

distinction between the specific word

choices of Congress, including the need

to develop regulatory programs that aim

to accomplish the goals of the Act while

implementing the specific policy

directives of Congress.

19

To do so, the

agencies must determine what Congress

had in mind when it defined ‘‘navigable

waters’’ in 1972 as simply ‘‘the waters

of the United States.’’

Congress’ authority to regulate

navigable waters derives from its power

to regulate the ‘‘channels of interstate

commerce’’ under the Commerce

Clause. Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1 (1824); see also United States

v. Lopez, 514 U.S. 549, 558–59 (1995)

(describing the ‘‘channels of interstate

commerce’’ as one of three areas of

congressional authority under the

Commerce Clause). The Supreme Court

explained in SWANCC that the term

‘‘navigable’’ indicates ‘‘what Congress

had in mind as its authority for enacting

the Clean Water Act: its traditional

jurisdiction over waters that were or had

been navigable in fact or which could

reasonably be so made.’’ 531 U.S. 159,

172 (2001). The Court further explained

that nothing in the legislative history of

the Act provides any indication that

‘‘Congress intended to exert anything

more than its commerce power over

navigation.’’ Id. at 168 n.3. The Supreme

Court, however, has recognized that

Congress intended ‘‘to exercise its

powers under the Commerce clause to

regulate at least some waters that would

not be deemed ‘navigable’ under the

classical understanding of that term.’’

Riverside Bayview, 474 U.S. at 133; see

also SWANCC, 531 U.S. at 167.

The classical understanding of the

term navigable was first articulated by

the Supreme Court in The Daniel Ball:

Those rivers must be regarded as public

navigable rivers in law which are navigable

in fact. And they are navigable in fact when

they are used, or are susceptible of being

used, in their ordinary condition, as

highways of commerce, over which trade and

travel are or may be conducted in the

customary modes of trade and travel on

water. And they constitute navigable waters

of the United States within the meaning of

the Acts of Congress, in contradistinction

from the navigable waters of the States, when

they form in their ordinary condition by

themselves, or by uniting with other waters,

a continued highway over which commerce

is or may be carried on with other States or

foreign countries in the customary modes in

which such commerce is conducted by water.

77 U.S. (10 Wall.) 557, 563 (1871). Over

the years, this traditional test has been

expanded to include waters that had

been used in the past for interstate

commerce, see Economy Light & Power

Co. v. United States, 256 U.S. 113, 123

(1921), and waters that are susceptible

for use with reasonable improvement,

see United States v. Appalachian Elec.

Power Co., 311 U.S. 377, 407–10 (1940).

By the time the 1972 CWA

amendments were enacted, the Supreme

Court had also made clear that Congress’

authority over the channels of interstate

commerce was not limited to regulation

of the channels themselves, but could

extend to non-navigable tributaries as

necessary to protect the channels. See

Oklahoma ex rel. Phillips v. Guy F.

Atkinson Co., 313 U.S. 508, 523 (1941)

(‘‘Congress may exercise its control over

the non-navigable stretches of a river in

order to preserve or promote commerce

on the navigable portions.’’). The

Supreme Court had also clarified that

Congress could regulate waterways that

formed a part of a channel of interstate

commerce, even if they are not

themselves navigable or do not cross

state boundaries. See Utah v. United

States, 403 U.S. 9, 11 (1971).

These developments were discussed

during the legislative process leading up

to the passage of the 1972 CWA

amendments, and certain members

referred to the scope of the amendments

as encompassing waterways that serve

as ‘‘links in the chain’’ of interstate

commerce as it flows through various

channels of transportation, such as

railroads and highways. See, e.g., 118

Cong. Rec. 33756–57 (1972) (statement

of Rep. Dingell); 118 Cong. Rec. 33699

(Oct. 4, 1972) (statement of Sen.

Muskie).

20

Other references suggest that

congressional committees at least

contemplated applying the ‘‘control

requirements’’ of the Act ‘‘to the

navigable waters, portions thereof, and

their tributaries.’’ S. Rep. No. 92–414,

92nd Cong. 1st Sess. at 77 (1971). And

in 1977, when Congress authorized

State assumption over the section 404

dredged or fill material permitting

program, Congress limited the scope of

assumable waters by requiring the Corps

to retain permitting authority over

Rivers and Harbors Act waters (as

identified by the Daniel Ball test) plus

wetlands adjacent to those waters,

minus historic use only waters. See 33

U.S.C. 1344(g)(1).

21

This suggests that

Congress had in mind a broader scope

of waters subject to CWA jurisdiction

than waters traditionally understood as

navigable. See SWANCC, 531 U.S. at

171; Riverside Bayview, 474 U.S. at 138

n.11.

Thus, Congress intended to assert

federal authority over more than just

waters traditionally understood as

navigable, and Congress rooted that

authority in ‘‘its commerce power over

navigation.’’ SWANCC, 531 U.S. at 168

n.3. However, there must necessarily be

a limit to that authority and to what

water is subject to federal jurisdiction.

How the agencies should exercise that

authority has been the subject of dispute

for decades, but the Supreme Court on

three occasions has analyzed the issue

and provided some instructional

guidance.

2. Supreme Court Precedent

a. Adjacent Wetlands

In Riverside Bayview, the Supreme

Court considered the Corps’ assertion of

jurisdiction over ‘‘low-lying, marshy

land’’ immediately abutting a water

traditionally understood as navigable on

the grounds that it was an ‘‘adjacent

wetland’’ within the meaning of the

Corps’ then existing regulations. 474

U.S. at 124. The Court addressed the

question of whether non-navigable

wetlands may be regulated as ‘‘waters of

the United States’’ on the basis that they

are ‘‘adjacent to’’ navigable-in-fact

waters and ‘‘inseparably bound up

with’’ them because of their ‘‘significant

effects on water quality and the aquatic

ecosystem.’’ Id. at 131–135 & n.9.

In determining whether to give

deference to the Corps’ assertion of

jurisdiction over adjacent wetlands, the

Court acknowledged the difficulty in

determining where the limits of federal

jurisdiction end, noting that the line is

somewhere between open water and dry

land:

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22

For additional context, at oral argument during

Riverside Bayview, the government attorney

characterized the wetland at issue as ‘‘in fact an

adjacent wetland, adjacent—by adjacent, I mean it

is immediately next to, abuts, adjoins, borders,

whatever other adjective you might want to use,

navigable waters of the United States.’’ Official Tr.

at 5–6, quoted in Edgar B. Washburn, Current Status

of the 404 Regulatory Programs, ALI Wetlands L. &

Reg. (May/June 2001).

23

See, e.g., American Farm Bureau Federation et

al. to Hon. Andrew Wheeler and Hon. R.D. James.

August 13, 2018. Docket ID: EPA–HQ–OW–2017–

0203–15275), available at https://

www.regulations.gov/document?D=EPA-HQ-OW-

2017-0203-15275.

In determining the limits of its power to

regulate discharges under the Act, the Corps

must necessarily choose some point at which

water ends and land begins. Our common

experience tells us that this is often no easy

task: the transition from water to solid

ground is not necessarily or even typically an

abrupt one. Rather, between open waters and

dry land may lie shallows, marshes,

mudflats, swamps, bogs—in short, a huge

array of areas that are not wholly aquatic but

nevertheless fall far short of being dry land.

Where on this continuum to find the limit of

‘‘waters’’ is far from obvious.

Id. at 132 (emphasis added). Within this

statement, the Supreme Court identifies

a basic principle for adjacent wetlands:

The limits of jurisdiction lie within the

‘‘continuum’’ or ‘‘transition’’ ‘‘between

open waters and dry land.’’ Observing

that Congress intended the CWA ‘‘to

regulate at least some waters that would

not be deemed ‘navigable,’ ’’ the Court

therefore held that it is ‘‘a permissible

interpretation of the Act’’ to conclude

that ‘‘a wetland that actually abuts on a

navigable waterway’’ falls within the

‘‘definition of ‘waters of the United

States.’ ’’ Id. at 133, 135. Thus, a

wetland that abuts a navigable water

traditionally understood as navigable is

subject to CWA permitting because it is

‘‘inseparably bound up with the ‘waters’

of the United States.’’ Id. at 134. ‘‘This

holds true even for wetlands that are not

the result of flooding or permeation by

water having its source in adjacent

bodies of open water.’’ Id. The Court

also noted that the agencies can

establish categories of jurisdiction for

adjacent wetlands. See id. at 135 n.9.

The Supreme Court in Riverside

Bayview declined to decide whether

wetlands that are not adjacent to

navigable waters could also be regulated

by the agencies. See id. at 124 n.2 and

131 n.8. In SWANCC a few years later,

however, the Supreme Court analyzed a

similar question but in the context of an

abandoned sand and gravel pit located

some distance from a traditional

navigable water, with excavation

trenches that ponded—some only

seasonally—and served as habitat for

migratory birds. 531 U.S. at 162–64. The

Supreme Court rejected the

government’s stated rationale for

asserting jurisdiction over such

‘‘nonnavigable, isolated, intrastate

waters’’ as outside the scope of CWA

jurisdiction. Id. at 171–72. In doing so,

the Supreme Court noted that Riverside

Bayview upheld ‘‘jurisdiction over

wetlands that actually abutted on a

navigable waterway’’ because the

wetlands were ‘‘inseparably bound up

with the ‘waters’ of the United States.’’

Id. at 167.

22

As summarized by the

SWANCC majority:

It was the significant nexus between the

wetlands and ‘‘navigable waters’’ that

informed our reading of the CWA in

Riverside Bayview Homes. Indeed, we did not

‘‘express any opinion’’ on the ‘‘question of

authority of the Corps to regulate discharges

of fill material into wetlands that are not

adjacent to bodies of open water. . . . In

order to rule for [the Corps] here, we would

have to hold that the jurisdiction of the Corps

extends to ponds that are not adjacent to

open water. But we conclude that the text of

the statute will not allow this.

Id. at 167–68 (internal citations

omitted).

The Court also rejected the argument

that the use of the abandoned ponds by

migratory birds fell within the power of

Congress to regulate activities that in the

aggregate have a substantial effect on

interstate commerce, or that the CWA

regulated the use of the ponds as a

municipal landfill because such use was

commercial in nature. Such arguments,

the Court noted, raised ‘‘significant

constitutional questions.’’ Id. at 173.

‘‘Where an administrative interpretation

of a statute invokes the outer limits of

Congress’ power, we expect a clear

indication that Congress intended that

result.’’ Id. 172–73 (‘‘Congress does not

casually authorize administrative

agencies to interpret a statute to push

the limit of congressional authority’’).

This is particularly true ‘‘where the

administrative interpretation alters the

federal-state framework by permitting

federal encroachment upon a traditional

state power.’’ Id. at 173; see also

Atascadero State Hospital v. Scanlon,

473 U.S. 234, 242 (1985) (‘‘If Congress

intends to alter the ‘usual constitutional

balance between the States and the

Federal Government,’ it must make its

intention to do so ‘unmistakably clear in

the language of the statute,’ ’’); Gregory

v. Ashcroft, 501 U.S. 452, 460–61 (1991)

(‘‘the plain statement rule . . .

acknowledg[es] that the States retain

substantial sovereign powers under our

constitutional scheme, powers with

which Congress does not readily

interfere.’’). ‘‘Rather than expressing a

desire to readjust the federal-state

balance in this manner, Congress chose

[in the CWA] to ‘recognize, preserve,

and protect the primary responsibilities

and rights of States . . . to plan the

development and use . . . of land and

water resources . . . .’’ Id. at 174

(quoting 33 U.S.C. 1251(b)). The Court

found no clear statement from Congress

that it had intended to permit federal

encroachment on traditional State

power, and construed the CWA to avoid

the significant constitutional questions

related to the scope of Federal authority

authorized therein. Id.

Historically, the Federal government

has interpreted and applied the

SWANCC decision narrowly, focusing

on the specific holding in the case as

rejecting federal jurisdiction over the

isolated ponds and mudflats at issue in

that case based on their use by

migratory birds. By contrast, members of

the regulated community, certain states

and other interested stakeholders have

argued that the case stands for a broader

proposition based on key federalism and

separation of powers principles. They

argue that the case should be read as

restricting federal jurisdiction over all

‘‘nonnavigable, isolated, intrastate

waters’’ and argue for a broader

interpretation and application of the

rationale articulated in the decision.

23

As the agencies revisit the definition of

‘‘waters of the United States’’ in this

rulemaking, the agencies solicit

comment on the proper reading of

SWANCC. In addition, the agencies

solicit comment on whether to revoke

their 2003 guidance on the subject

should the agencies finalize this

proposal because existence of the final

rule may mean that guidance on

SWANCC may no be longer needed.

Several years after SWANCC, the

Supreme Court considered the concept

of adjacency in consolidated cases

arising out of the Sixth Circuit. See

Rapanos v. United States, 547 U.S. 715

(2006). In one case, the Corps had

determined that wetlands on three

separate sites were subject to CWA

jurisdiction because they were adjacent

to ditches or man-made drains that

eventually connected to traditional

navigable waters several miles away

through other ditches, drains, creeks,

and/or rivers. Id. at 719, 729. In another

case, the Corps had asserted jurisdiction

over a wetland separated from a man-

made drainage ditch by a four-foot-wide

man-made berm. Id. at 730. The ditch

emptied into another ditch, which then

connected to a creek, and eventually

connected to Lake St. Clair

approximately a mile from the parcel at

issue. The berm was largely or entirely

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The agencies’ Rapanos Guidance recognizes

that the plurality’s ‘‘continuous surface connection’’

does not refer to a continuous surface water

connection. See, e.g., Rapanos Guidance at n.28 (‘‘A

continuous surface connection does not require

surface water to be continuously present between

the wetland and the tributary.’’)

impermeable, but may have permitted

occasional overflow from the wetland to

the ditch. Id. The Court, in a fractured

opinion, vacated and remanded the

Sixth Circuit’s decision upholding the

Corps’ asserted jurisdiction over the

four wetlands at issue, with Justice

Scalia writing for the plurality and

Justice Kennedy concurring in the

judgment but on alternate grounds. Id.

at 757 (plurality), 787 (Kennedy, J.,

concurring).

The plurality determined that CWA

jurisdiction only extended to adjacent

‘‘wetlands with a continuous surface

connection to bodies that are ‘waters of

the United States’ in their own right, so

that there is no clear demarcation

between ‘waters’ and wetlands.’’ Id. at

742. The plurality then concluded that

‘‘establishing . . . wetlands . . .

covered by the Act requires two

findings: First that the adjacent channel

contains a ‘wate[r] of the United States,’

(i.e., a relatively permanent body of

water connected to traditional interstate

navigable waters); and second, that the

wetland has a continuous surface

connection with that water, making it

difficult to determine where the ‘water’

ends and the ‘wetland’ begins.’’ Id.

(alteration in original).

In reaching the adjacency component

of the two-part analysis, the plurality

interpreted the Riverside Bayview

decision, and subsequent SWANCC

decision characterizing Riverside

Bayview, as authorizing jurisdiction

over wetlands that physically abutted

traditional navigable waters. Id. at 740–

42. The plurality focused on the

‘‘inherent ambiguity’’ described in

Riverside Bayview in determining where

on the continuum between open waters

and dry land the scope of federal

jurisdiction should end. Id. at 740. It

was ‘‘the inherent difficulties of

defining precise bounds to regulable

waters,’’ id. at 741 n.10, according to the

plurality, that prompted the Court in

Riverside Bayview to defer to the Corps’

inclusion of adjacent wetlands as

‘‘waters’’ subject to CWA jurisdiction

based on proximity. Id. at 741 (‘‘When

we characterized the holding of

Riverside Bayview in SWANCC, we

referred to the close connection between

waters and the wetlands they gradually

blend into: ‘It was the significant nexus

between the wetlands and ‘navigable

waters’ that informed our reading of the

CWA in Riverside Bayview Homes.’ ’’);

see also id. at 1816–17 (Kennedy, J.,

concurring) (‘‘the reach and systemic

consequences of the Clean Water Act

remain a cause for concern’’ and

‘‘continues to raise troubling questions

regarding the Government’s power to

cast doubt on the full use and

enjoyment of private property

throughout the Nation’’). Given the

significant civil and criminal penalties

associated with the CWA, the agencies

seek to promote regulatory certainty

while providing fair and predictable

notice of the limits of federal

jurisdiction. See, e.g., Sessions v.

Dimaya, No. 15–1498, 2018 U.S. LEXIS

2497, at *39, 42–43 (Apr. 17, 2018)

(Gorsuch, J., concurring in part and

concurring in judgment) (characterizing

fair notice as possibly the most

fundamental of the protections provided

by the Constitution’s guarantee of due

process, and stating that vague laws are

an exercise of ‘‘arbitrary power . . .

leaving the people in the dark about

what the law demands and allowing

prosecutors and courts to make it up’’).

Under this proposed rule, the

agencies would not view the definition

of ‘‘waters of the United States’’ as

conclusively determining which of the

nation’s waters warrant environmental

protection; rather, the agencies interpret

the definition as drawing the boundary

between those waters subject to federal

requirements under the CWA and those

waters that States and Tribes are free to

manage under their independent

authorities. The agencies are proposing

this line-drawing based primarily on

their interpretation of the language,

structure, and legislative history of the

statute and the policy choices of the

executive branch agencies.

The agencies interpret their authority

to include promulgation of a new

regulatory definition of ‘‘waters of the

United States,’’ consistent with the

guidance in Executive Order 13778, so

long as the new definition is authorized

under the law and based on a reasoned

explanation. FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 515 (2009)

(‘‘Fox’’). A revised rulemaking based on

a desired change in policy is well

within an agency’s discretion and ‘‘[a]

change in administration brought about

by the people casting their votes is a

perfectly reasonable basis for an

executive agency’s reappraisal’’ of its

regulations and programs. Nat’l Ass’n of

Home Builders v. EPA, 682 F.3d 1032,

1038 & 1043 (D.C. Cir. 2012) (citing Fox,

556 U.S. at 514–15 (Rehnquist, J.,

concurring in part and dissenting in

part)). In developing this proposed rule,

the agencies have re-evaluated their

legal authority and those policies that

they deem most important in shaping

the jurisdiction of the CWA: Prioritizing

the text of the statute, adherence to

constitutional limitations, including the

autonomy of States, and providing

clarity for the regulated community.

The agencies consider these proposed

priorities to be reasonable, especially in

light of the long history of controversy

and confusion over this definition. In

concurring with the Rapanos plurality

decision, Chief Justice Roberts stated

that ‘‘[g]iven the broad, somewhat

ambiguous, but clearly limiting terms

Congress employed in the Clean Water

Act, the [agencies] would have enjoyed

plenty of room to operate in developing

some notion of an outer bound to the

reach of their authority’’ under the

CWA, and that the agencies’

interpretations under the Act are

‘‘afforded generous leeway by the

courts.’’ Rapanos, 547 U.S. at 758

(Roberts, C.J., concurring) (emphasis in

original) (‘‘Rather than refining its view

of its authority in light of our decisions

in SWANCC, . . . the Corps chose to

adhere to its essentially boundless view

of the scope of its power. The upshot

today is another defeat for the agency.’’).

In this proposed rule, as described in

detail in Section III below, the agencies

are proposing outer bounds for their

authority under the Act that they

consider objective and reasonable, and

that are consistent with its text,

structure, legislative history and

applicable Supreme Court precedent.

The agencies solicit comment on all

aspects of the proposed definition and

whether it would strike the proper

balance between the regulatory

authority of the Federal government and

States, meets its obligation to provide

fair notice to members of the regulated

community, and adheres to the overall

structure and function of the CWA by

ensuring the protection of the nation’s

waters.

III. Proposed Definition of ‘‘Waters of

the United States’’

Below is a summary of the key

substantive provisions of this proposed

rule. Each subsection describes what the

agencies are proposing, why the

agencies are proposing this approach,

how the agencies might implement the

approach, and specific issues upon

which the agencies are seeking

comment. To assist the reader, the

longer subsections have internal

headings.

As a threshold matter, in this proposal

the agencies would interpret the term

‘‘the waters’’ in the phrase ‘‘the waters

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of the United States’’ to encompass

relatively permanent flowing and

standing waterbodies that are traditional

navigable waters in their own right or

that have a specific connection to

traditional navigable waters, as well as

wetlands abutting or having a direct

hydrologic surface connection to those

waters. As the plurality decision in

Rapanos notes, the term ‘‘the waters’’ is

most commonly understood to refer to

‘‘streams and bodies forming

geographical features such as oceans,

rivers, lakes,’’ or ‘‘the flowing or moving

masses, as of waves or floods, making

up such streams or bodies.’’ 547 U.S. at

732 (citing Webster’s New International

Dictionary 2882 (2d ed. 1954)); see also

Riverside Bayview, 474 U.S. at 131

(characterizing ‘‘waters of the United

States’’ as ‘‘rivers, streams, and other

hydrographic features more

conventionally identifiable as

‘waters.’ ’’); see also 118 Cong. Rec.

33699 (Oct. 4, 1972) (statement of Sen.

Muskie) (referring to ‘‘navigable waters’’

as ‘‘water bodies’’). According to the

Rapanos plurality, however, the

ordinary meaning of the term ‘‘waters’’

does not include areas that are dry most

of the year, and which may occasionally

contain ‘‘transitory puddles or

ephemeral flows of water.’’ See

Rapanos, 547 U.S. at 733.

The agencies are also proposing a

definition of ‘‘waters of the United

States’’ to align with the intent of

Congress to broadly interpret the term

‘‘navigable waters’’ beyond just

commercially navigable-in-fact waters.

See, e.g., S. Conf. Rep. No. 92–1236, p.

144 (1972). As proposed, this definition

recognizes Congress’ intent ‘‘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, but at the same time acknowledges

‘‘[t]he grant of authority to Congress

under the Commerce Clause, though

broad, is not unlimited.’’ SWANCC, 531

U.S. at 173. The definition also

recognizes the constitutional

underpinnings of the CWA, which was

Congress exercising ‘‘its commerce

power over navigation.’’ Id. at 168 n.3.

This proposal is intended to establish

categorical bright lines that provide

clarity and predictability for regulators

and the regulated community by

defining ‘‘waters of the United States’’

to include the following: Traditional

navigable waters, including the

territorial seas; tributaries of such

waters; certain ditches; certain lakes and

ponds; impoundments of otherwise

jurisdictional waters; and wetlands

adjacent to other jurisdictional waters.

The agencies propose to eliminate the

case-by-case application of Justice

Kennedy’s significant nexus test,

proposing instead the establishment of

clear categories of jurisdictional waters

that adhere to the basic principles

articulated in the Riverside Bayview,

SWANCC, and Rapanos decisions while

respecting the overall structure and

function of the CWA.

A. Traditional Navigable Waters and

Territorial Seas

The proposed definition of ‘‘waters of

the United States’’ would encompass

traditional navigable waters, including

the territorial seas. Since the passage of

the CWA, the first paragraph of the

agencies’ definition of ‘‘waters of the

United States’’ has included all waters

that are currently used, or were used in

the past, or may be susceptible to use in

interstate or foreign commerce,

including all waters which are subject to

the ebb and flow of the tide. See, e.g.,

33 CFR 328.3(a)(1). This paragraph of

the 1986 and 2015 regulations

encompasses waters that are often

referred to as waters more traditionally

understood as navigable or ‘‘traditional

navigable waters.’’ The second

paragraph of the 1986 and 2015

regulations lists the territorial seas as

jurisdictional. See id. To streamline and

simplify the definition of ‘‘waters of the

United States,’’ the agencies propose to

include both traditional navigable

waters and the territorial seas as a single

category of jurisdictional waters. The

agencies can think of no instance in

which a territorial sea would not also be

considered traditionally navigable, and

thus the broader term should suffice.

The agencies are proposing no other

changes to these historically regulated

categories of waters.

The agencies note that the term

‘‘territorial seas’’ is defined in CWA

section 502(8), 33 U.S.C. 1362(8), as

‘‘the belt of the seas measured from the

line of ordinary low water along that

portion of the coast which is in direct

contact with the open sea and the line

marking the seaward limit of inland

waters, and extending seaward a

distance of three miles.’’ The territorial

seas establish the seaward limit of

‘‘waters of the United States.’’ The

agencies are not proposing to replicate

this definition in this proposed rule, but

request comment on whether adding the

definition would improve regulatory

clarity.

The agencies interpret traditional

navigable waters as all waters that are

currently defined in 33 CFR part 329,

which implements sections 9 and 10 of

the Rivers and Harbors Act, and by

numerous decisions of the federal

courts, as well as all other waters that

are navigable-in-fact. The definition of

navigable-in-fact originates with the

Supreme Court’s decision in The Daniel

Ball, 77 U.S. 557 (1870). In that case, the

Supreme Court stated:

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 for commerce, over which trade

and travel are or may be conducted in the

customary modes of trade and travel on

water.

In subsequent decisions, the Supreme

Court clarified that waters that are

navigable-in-fact include waters beyond

those capable of navigation by large

vessels, The Montello, 87 U.S. 430, 441–

42 (1874); as well as waters that are not

continuously navigable or are not

navigable in all seasons, Economy Light

and Power Co. v. U.S., 256 U.S. 113, 122

(1921); and waters that have never been

used in commerce, so long as they are

susceptible for use in commerce. U.S. v.

Utah, 283 U.S. 64 (1931); U.S. v.

Appalachian Elec. Power Co., 311 U.S.

377 (1940). The proposed rule does not

modify the text that supports the

agencies’ longstanding interpretation of

‘‘traditional navigable waters.’’

Nonetheless, the pre-proposal

recommendations docket received

several comments on how to interpret

‘‘traditional navigable waters,’’

including comments about what

constitutes navigability for purposes of

that term and what it means to be

‘‘susceptible to use’’ in commerce.

Several pre-proposal commenters, for

example, identified confusion in recent

years associated with the agencies’

interpretation and field implementation

of the tests for determining navigability.

Those commenters point out that

determinations made by the agencies

using the Rapanos Guidance, and in

particular Appendix D to that guidance,

may have allowed for the regulation of

waters that are not navigable-in-fact

within the legal construct established

for such waters by the courts. The

agencies therefore solicit comment on

and request specific examples of where

that may be the case. As the agencies

consider whether Appendix D is

sufficiently clear regarding the

regulation of these foundational waters,

the agencies solicit comment on

whether the existing guidance regarding

the scope of traditional navigable waters

should be updated to help improve

clarity and predictability of the

agencies’ regulatory program. The

agencies also solicit comment on

whether the regulation of this category

of waters has been or can be clarified

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25

U.S. EPA and U.S. Army Corps of Engineers.

Technical Support Document for the Clean Water

Rule: Definition of Waters of the United States (May

2015) (Docket ID: EPA–HQ–OW–2011–0880–

20869), available at https://www.regulations.gov/

document?D=EPA-HQ-OW-2011-0880-20869.

through existing, modified, or new

exclusions to the term ‘‘waters of the

United States,’’ or other regulatory

changes.

B. Interstate Waters

1. What are the agencies proposing?

The 1986 regulations define ‘‘waters

of the United States’’ to include

interstate waters, including interstate

wetlands. In this proposal, the agencies

would remove interstate waters and

interstate wetlands as a separate

category of ‘‘waters of the United

States’’ to more closely align the

definition to the constitutional and

statutory authorities reflected in the

CWA and judicial interpretations of the

term ‘‘navigable waters,’’ while

balancing the statute’s policy directives

to preserve and protect the rights and

responsibilities of the States.

2. Why are the agencies proposing this

approach?

The agencies have evaluated their

earlier legal and policy rationales

supporting the inclusion of interstate

waters as a separate category of ‘‘waters

of the United States’’ and are proposing

to eliminate the category in this

rulemaking. The agencies are concerned

that the regulation of interstate waters is

a relic of the original Water Pollution

Control Act (WPCA) of 1948 and lacks

foundation in statutory text. The WPCA

stated that the ‘‘pollution of interstate

waters in or adjacent to any State or

States (whether the matter causing or

contributing to such pollution is

discharged directly into such waters or

reaches such waters after discharge into

a tributary of such waters) which

endangers the health or welfare of

persons in a State other than that in

which the discharge originates, is

declared to be a public nuisance and

subject to abatement as provided by the

Act.’’ WPCA of 1948, 2(d)(1), (4), 62

Stat. 1155, 1156–57. The statute defined

‘‘interstate waters’’ as all rivers, lakes,

and other waters that flow across, or

form a part of, state boundaries. Id. at

10, 62 Stat. 1161.

In 1961, Congress amended the statute

to substitute the term ‘‘interstate or

navigable waters’’ for ‘‘interstate

waters.’’ See Public Law 87–88, 75 Stat.

208 (1961). In 1965, Congress amended

the statute to require states to develop

water quality standards for all

‘‘interstate waters’’ within their borders.

See Public Law 89–234, 79 Stat. 908

(1965). In 1972, Congress amended the

statute again and selected the term

‘‘navigable waters’’ as the operative term

for the major regulatory programs

established by the 1972 amendments,

dropping the definition of interstate

waters from the statute. See, e.g., 33

U.S.C. 1362(7) (defining ‘‘navigable

waters’’ as ‘‘waters of the United

States’’). In doing so, however, Congress

allowed the continued enforcement of

water quality standards for interstate

waters developed by the States under

the pre-1972 statutory program. See 33

U.S.C. 1313(a).

The EPA promulgated its first

regulatory definition for the term

‘‘waters of the United States’’ in 1973.

38 FR 13528 (May 22, 1973). In that

regulation, the EPA administratively

determined that ‘‘interstate waters’’

should be a separate category of waters

of the United States, distinct from the

traditional navigable waters category,

and the agencies have retained it as a

separate category ever since, including

in the 2015 Rule.

The agencies have historically viewed

navigable and interstate waters as

having distinct and separate meanings

because Congress in 1961 identified

both in the statute. The agencies have

explained their continuing

interpretation in part through the

doctrine of congressional acquiescence,

in that Congress was aware of the EPA’s

retention of interstate waters as a

separate category when amending the

CWA in 1977 (making no amendments

to remove the agencies’ regulatory

inclusion of interstate waters), and

therefore acquiesced to its inclusion as

a separate category. The agencies have

also historically relied on two Supreme

Court cases (Illinois v. Milwaukee, 406

U.S. 91 (1972) and City of Milwaukee v.

Illinois, 451 U.S. 304 (1981)), addressing

interstate water pollution to further

support their position. In the 1972 case,

which was decided prior to the date of

the 1972 CWA amendments, the

Supreme Court referred to the two

categories in the disjunctive, implying

that the Court viewed the pre-1972

statutory program as encompassing two

separate categories. See Illinois, 406

U.S. at 102 (‘‘it is federal, not state, law

that in the end controls pollution of

interstate or navigable waters’’)

(emphasis added). Finally, the agencies

historically have referred to section

303(c) of the CWA as further evidence

that Congress intended interstate waters

to be retained as an independent

category of jurisdictional waters because

that provision allowed the continuing

enforcement of water quality standards

for ‘‘interstate waters’’ developed

following the 1965 amendments. A

summary of the agencies’ prior legal

position with respect to interstate

waters was included in a Technical

Support Document prepared in support

of the 2015 Rule (‘‘2015 Rule TSD’’).

25

The agencies note that when Congress

enacted the 1972 CWA amendments, it

selected the term ‘‘navigable waters’’ to

frame the scope of federal regulatory

jurisdiction under the Act. To the extent

interstate waters were viewed by

Congress as a separate and distinct

category, the agencies now consider a

more natural interpretation of the 1972

amendments to be an express rejection

of that category as Congress had before

it both options within the scope of the

statute it was modifying. Congress

specifically did not carry that term

forward as the operative phrase for

federal jurisdiction. Under basic canons

of statutory construction, the agencies

begin with the presumption that

Congress did so intentionally. See, e.g.,

Stone v. INS, 514 U.S. 386, 397 (1995)

(‘‘When Congress acts to amend a

statute, we presume it intends its

amendment to have real and substantial

effect.’’).

Congressional acquiescence is a

doctrine of limited application and was

specifically rejected as a basis for

expansive federal jurisdiction in

SWANCC in the context of analyzing the

Corps’ 1977 regulations. SWANCC, 531

U.S. at 170–71 (‘‘Although we have

recognized congressional acquiescence

to administrative interpretations of a

statute in some situations, we have done

so with extreme care.’’). Thus, the

agencies are concerned about

continuing to rely on congressional

acquiescence to their regulatory

definitions, see, e.g., 2015 Rule TSD at

219–220, following SWANCC.

The legislative history of the 1972

amendments, in fact, suggest that

Congress may not have considered

interstate waters and navigable waters to

be two separate and distinct categories,

and instead referred to terms in the pre-

1972 statutory regime conjunctively as

‘‘interstate navigable waters.’’ S. Rep.

No. 92–414, 92nd Cong. 1st Sess., at 2

(Oct. 28, 1971) (‘‘Each State was

required by the 1965 Act to develop

standards for water quality within its

boundaries. These standards were to be

applied to all interstate navigable waters

flowing through the State; intrastate

waters were not included.’’) (emphasis

added); id. at 4 (‘‘The setting of water

quality standards for interstate

navigable waters .... is the keystone

of the present program for control of

water pollution’’) (emphasis added); id.

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(‘‘The States have first responsibility for

enforcement of their standards. When

approved by the [EPA], however, the

standards for interstate navigable waters

become Federal-State standards.’’)

(emphasis added). In 1976, the Supreme

Court shared the same view of the pre-

1972 statutory scheme: ‘‘Before it was

amended in 1972, the Federal Water

Pollution Control Act employed

ambient water quality standards

specifying acceptable levels of pollution

in a State’s interstate navigable waters

as the primary mechanism in its

program for the control of water

pollution.’’ EPA v. California, 426 U.S.

200, 202 (1976) (emphasis added). This

history suggests at a minimum that the

section 303(a) provision relating to

existing water quality standards for

‘‘interstate waters’’ may be referring to

‘‘interstate navigable waters,’’ not

interstate waters more broadly, at least

with respect to continuing federal

enforcement authority over the pre-

existing standards.

Neither Supreme Court case

historically relied on by the agencies, as

discussed in the 2015 Rule TSD,

addressed the specific question of

whether interstate waters and navigable

waters are separate and distinct

categories of jurisdictional waters under

the CWA. They instead addressed

interstate water pollution generally, and

the water at issue in those cases was

Lake Michigan, an interstate navigable-

in-fact water. The 1981 decision,

however, did recognize that the 1972

amendments ‘‘were viewed by Congress

as a ‘total restructuring’ and ‘complete

rewriting’ of the existing water pollution

legislation considered in that case.

Milwaukee, 451 U.S. at 317 (citing

legislative history of the 1972 CWA

amendments). This would support the

notion that prior iterations of the

statute, referring to both interstate

waters and navigable waters, were

replaced with a completely new

program in 1972, not that certain

aspects of that program continued

through congressional acquiescence of a

later regulatory determination.

The agencies therefore propose to

eliminate ‘‘interstate waters’’ as a

separate category of ‘‘waters of the

United States.’’ Nothing in the

legislative history of the 1972 CWA

amendments ‘‘signifies that Congress

intended to exert anything more than its

commerce power over navigation.’’

SWANCC, 531 U.S. at 168 n.3. By

proposing to eliminate a separate

category for interstate waters, the

proposed rule adheres to the agencies’

legal principles discussed in Section II

by including within the definition of

‘‘waters of the United States’’ traditional

navigable waters, the territorial seas,

and waters subject to the ebb and flow

of the tide; tributaries to such waters;

certain ditches that operate more like

traditional navigable waters or were

excavated in tributaries or adjacent

wetlands; certain lakes and ponds;

impoundments of otherwise jurisdiction

waters; and wetlands adjacent to

jurisdictional waters. Because the

agencies’ authority flows from Congress’

use of the term ‘‘navigable waters’’ in

the CWA, the agencies lack authority to

regulate waters untethered from that

term. Therefore, those interstate waters

that would satisfy the definitions in this

proposed rule would be jurisdictional;

interstate waters without any

connection to traditional navigable

waters would be more appropriately

regulated by the States and Tribes under

their sovereign authorities.

The agencies recognize that this

proposal marks a shift away from prior

agency positions. In doing so, however,

the agencies anticipate that most waters

that would be deemed jurisdictional

under the existing regulatory definition

from the 1980s would likely remain

jurisdictional under this proposal as

they would likely fall within the

proposed traditional navigable waters

category or one of the other proposed

categories, such as tributaries or lakes

and ponds. The agencies note that this

proposal likely would reduce the

number of interstate waters that would

be jurisdictional under the 2015 Rule

given that rule’s broad interpretation of

the term ‘‘neighboring’’ within its

‘‘adjacent’’ definition and its inclusion

of ephemeral streams and related

features meeting its ‘‘tributary’’

definition. The agencies, however, are

not aware of any database that identifies

the jurisdictional status of interstate

waters based solely on the fact that they

cross state lines or any other resource

that would identify these waters and

therefore lack the analytical ability to

perform a comparative analysis with

precision.

3. What are specific issues upon which

the agencies are seeking comment?

The agencies welcome comment on

this proposed change, including the

rationale for and against having

interstate waters as a separate

jurisdictional category. Alternatively,

the agencies seek comment on an

approach that would retain interstate

waters as a separate category, reflecting

longstanding agency practice. In the

event the agencies were to pursue that

alternate approach, the agencies solicit

comment on which waters should

remain jurisdictional and on what basis,

and whether the term ‘‘interstate’’

should be interpreted as crossing

between States, between States and

tribal lands, between States and/or tribal

lands and foreign countries, or other

formulations. Finally, if a commenter

believes that the agencies have in the

past asserted jurisdiction over waters

based solely on the fact that such waters

were interstate and otherwise not

connected to a traditional navigable

water, the agencies solicit examples of

such jurisdictional determinations or

other available data that may allow the

agencies to further analyze the

differences between the 1986 and 2015

rules and this proposed rule.

C. Impoundments

The agencies do not propose to make

any changes to the impoundment

category of ‘‘waters of the United

States’’ as it existed in the 1986

regulations. Impoundments have

historically been determined by the

agencies to be jurisdictional because

impounding a ‘‘water of the United

States’’ generally does not change the

water body’s status as a ‘‘water of the

United States.’’ See, e.g., S. D. Warren

Co. v. Maine Board of Environmental

Protection, 547 U.S. 370, 379 n.5 (2006)

(‘‘[N]or can we agree that one can

denationalize national waters by

exerting private control over them.’’).

Under this proposal, alteration of a

‘‘water of the United States’’ by

impounding it would not change the

water’s jurisdictional status, consistent

with longstanding agency practice,

unless jurisdiction has been

affirmatively relinquished.

Most impoundments do not cut off a

connection between upstream

tributaries and a downstream traditional

navigable water or territorial sea. As a

result, the agencies would consider

tributaries upstream of an impoundment

to be tributaries to downstream

jurisdictional waters even where the

impoundment might impede the flow of

water. Impoundments therefore may

serve as one of the waters through

which tributaries flow to a traditional

navigable water or territorial sea.

However, where discharge of dredged or

fill material into a ‘‘water of the United

States’’ transforms a water body into

upland through a section 404 permitting

action, the water would no longer be

jurisdictional, consistent with

longstanding agency practice.

During the agencies’ pre-proposal

outreach, most commenters supported a

policy under which impoundments of

waters of the United States remain

jurisdictional, while some commenters

argued that impoundments that do not

remain hydrologically connected to a

traditional navigable water should not

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be jurisdictional. The agencies welcome

comment on whether impoundments

are needed as a separate category of

‘‘waters of the United States,’’ or

whether the other categories of waters in

this proposed rule effectively

incorporate the impoundment of other

jurisdictional waters, such as the lakes

and ponds category. The agencies also

seek comment on whether there are

existing jurisdictional impoundments

that would not be found jurisdictional

under an alternate approach that would

remove impoundments as a separate

category of ‘‘waters of the United

States.’’ The agencies also welcome

comment on whether certain categories

of impoundments should not be

jurisdictional, such as certain types of

impoundments that release water

downstream only very infrequently or

impede flow downstream such that the

flow is less than intermittent. An

impounded wetland frequently becomes

a pond, and the agencies solicit

comment as to whether that pond

should remain jurisdictional even if, for

example, it does not meet the elements

of the lakes and ponds category under

paragraph (a)(4) in this proposed rule,

such as contributing perennial or

intermittent flow to an (a)(1) water. The

agencies solicit comment on these and

any other aspects of the proposed

impoundment category.

D. Tributaries

1. What are the agencies proposing?

In this proposed rule, the agencies

would retain tributaries as a category of

jurisdictional waters subject to CWA

jurisdiction. This proposed rule defines

‘‘tributary’’ to mean a river, stream, or

similar naturally occurring surface

water channel that contributes perennial

or intermittent flow to a traditional

navigable water or territorial sea in a

typical year either directly or indirectly

through other jurisdictional waters,

such as other tributaries,

impoundments, and adjacent wetlands

or through water features identified in

paragraph (b) of this proposal so long as

those water features convey perennial or

intermittent flow downstream. Excluded

waters and features in this proposal are

not tributaries, but certain excluded

waters and features may convey

perennial or intermittent flow from a

tributary to traditional navigable waters

or the territorial seas. For example, if a

tributary flows into an excluded ditch or

a waste treatment system and those

excluded features convey perennial or

intermittent flow to a tributary

downstream, the tributary remains a

jurisdictional tributary upstream and

downstream of the excluded feature.

However, certain excluded waters and

features are incapable of providing

perennial or intermittent flow as

defined in this proposal (e.g., ephemeral

features) and therefore break

jurisdiction upstream of the excluded

feature. Under the proposed definition,

a tributary does not lose its status as a

jurisdictional tributary if it flows

through a culvert, dam, or other similar

artificial break or through a debris pile,

boulder field, or similar natural break so

long as the artificial or natural break

conveys perennial or intermittent flow

to a tributary or other jurisdictional

water at the downstream end of the

break. The alteration or relocation of a

tributary would not modify its status as

a jurisdictional tributary as long as it

continues to satisfy the elements of the

tributary definition.

Regardless of the name they are given

locally (e.g., creek, bayou, branch,

brook, run, etc.), or their size (e.g.,

discharge volume, width, depth, stream

order, etc.), waters that meet the

definition of ‘‘tributary’’ would be

jurisdictional under this proposed rule.

However, tributaries as defined in this

proposal do not include surface features

that flow only in direct response to

precipitation, such as ephemeral flows,

dry washes, arroyos, and similar

features. These features lack the

required perennial or intermittent flow

regimes to satisfy the tributary

definition under this proposal and

therefore would not be jurisdictional.

Though ‘‘perennial,’’ ‘‘intermittent,’’

and ‘‘ephemeral’’ are commonly used

scientific terms, the agencies are

proposing to provide definitions of

these terms for purposes of CWA

jurisdiction to ensure that the regulation

is clear. The agencies propose to define

the term ‘‘perennial’’ to mean surface

water flowing continuously year-round

during a typical year. The proposed

definition of ‘‘intermittent’’ is surface

water flowing continuously during

certain times of a typical year, not

merely in direct response to

precipitation, but when the groundwater

table is elevated, for example, or when

snowpack melts. Continuous surface

flow during certain times of the year

may occur seasonally such as in the

spring when evapotranspiration is low

and the groundwater table is elevated.

Under these conditions, the

groundwater table intersects the channel

bed and groundwater provides

continuous baseflow for weeks or

months at a time even when it is not

raining or has not very recently rained.

The term ‘‘snowpack’’ in this definition

is proposed as ‘‘layers of snow that

accumulate over extended periods of

time in certain geographic regions and

high altitudes (e.g., in northern climes

and mountainous regions).’’ Melting

snowpack can be the sole or primary

source of perennial or intermittent flow

in tributaries. The agencies recognize

that perennial or intermittent flow in

certain mountain streams, for example,

may result primarily from melting

snowpack, not groundwater

contributions to the channel.

The phrase ‘‘certain times of a typical

year’’ is intended to include extended

periods of predictable, continuous,

seasonal surface flow occurring in the

same geographic feature year after year.

The agencies are not proposing a

specific duration (e.g., the number days,

weeks, or months) of surface flow that

constitutes intermittent flow as the

agencies believe the time period that

encompasses intermittent flow can vary

widely across the country based upon

climate, hydrology, topography, soils,

and other conditions. ‘‘Typical year’’ is

defined in the proposed rule to mean

within the normal range of precipitation

over a rolling thirty-year period for a

particular geographic area. Under this

proposed definition, a typical year

would generally not include times of

drought or extreme flooding. The term

‘‘ephemeral’’ in the proposal means

surface water flowing or pooling only in

direct response to precipitation, such as

rain or snow fall. The agencies intend to

distinguish flow resulting from snow

fall from sustained flow resulting from

melting snowpack in these definitions.

Under the proposed rule a tributary

must contribute perennial or

intermittent flow to a traditional

navigable water or territorial sea in

typical year. Perennial or intermittent

flow would require some form of

discrete and confined flow (as opposed

to diffuse overland flow) forming

geographic features such as rivers,

streams, or similar naturally occurring

surface water channels. A tributary may

contribute perennial or intermittent

flow to downstream traditional

navigable waters through, for example,

lakes, impoundments, adjacent

wetlands, or other tributaries. Under the

proposed rule, when a tributary flows

through a wetland and into another

tributary (sometimes called a ‘‘run-of-

stream’’ wetland), the tributary would

remain jurisdictional even though it

may be difficult to identify channelized

flow through the wetland. Similarly,

such a wetland would be considered

‘‘adjacent’’ and thus jurisdictional under

this proposal given the wetland abuts

(i.e., touches at a point in this case) the

tributary. In the case of a perennial or

intermittent stream which flows through

ditches excluded from this proposed

definition of ‘‘waters of the United

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States,’’ the non-jurisdictional ditches

would not sever jurisdiction under the

proposed rule as long as the ditches

convey perennial or intermittent flow to

tributaries or other jurisdictional waters

at the downstream end of the ditch.

However, a perennial or intermittent

stream that flows into a non-

jurisdictional ephemeral feature would

not meet the definition of ‘‘tributary’’ if

the perennial or intermittent flow does

not reach a traditional navigable water

or territorial sea; the ephemeral feature

would sever jurisdiction for such

perennial and intermittent streams as it

does not convey surface water year-

round or continuously for extended

periods of time to a traditional navigable

water or territorial sea.

Under the proposed rule, tributaries

could have certain natural breaks (such

as debris piles, boulder fields, or

subterranean rivers) or man-made

breaks (such as bridges, culverts, pipes,

or dams) and remain a tributary. A

tributary does not lose its status as a

tributary according to this proposal if it

flows through a natural or man-made

break so long as the break conveys

perennial or intermittent flow to a

tributary or other jurisdictional water at

the downstream end of the break. To

implement the proposed tributary

definition, the agencies would consider

the upstream extent of a tributary to be

the point at which the feature ceases to

contribute perennial or intermittent

flow to a traditional navigable water or

territorial sea.

The alteration or relocation of a

tributary would not modify its status

under the proposed definition of

tributary as long as it continues to

satisfy the elements of the definition.

The agencies’ longstanding

interpretation of the CWA is that

tributaries that are modified waters are

jurisdictional, and the agencies are not

proposing to change this interpretation.

If a tributary is channelized, its bed and/

or banks are altered in some way, or it

is re-routed or its flow regime is

modified, then it would remain

jurisdictional under the proposed rule

as long as it continues to meet the

definition of ‘‘tributary.’’ For example,

streams that have been channelized

with hardened banks or otherwise

modified may still meet the definition of

‘‘tributary’’ under the proposal.

2. Why are the agencies proposing this

approach?

The agencies’ proposed definition of

‘‘tributary’’ reflects the authority granted

by Congress to regulate navigable

waters, the interconnected nature of the

tributary system, as well as the ordinary

meaning of the term ‘‘waters,’’ an

adherence to constitutional and

statutory authority regarding the role of

the Federal government and limits on its

authority to regulate the use of land and

waters within State and tribal

boundaries, and the agencies’ goal to

establish a clear and easily

implementable definition. In the

proposed definition of ‘‘tributary,’’ the

agencies would set boundaries to the

scope of the regulation to ensure it is

consistent with the role of the Federal

government under the Constitution and

the CWA. As the Supreme Court

recognizes, States traditionally exercise

‘‘primary power over land and water

use,’’ SWANCC, 531 U.S. at 174. The

Federal government should avoid

pressing against the outer limits of its

authority when doing so would infringe

upon the traditional rights and

responsibilities of States to manage their

own waters. See SWANCC, 531 U.S. at

172–73 and supra Section III.A.

Limiting the scope of the proposed

‘‘tributary’’ definition to perennial or

intermittent fixed waterbodies that

contribute flow to traditional navigable

waters or the territorial seas, including

through other jurisdictional waters and

through certain excluded waters and

features, would also provide clear and

predictable jurisdictional boundaries to

guide the agencies and the regulated

community. By proposing to define

perennial and intermittent tributaries of

traditional navigable waters as

jurisdictional and ephemeral features as

non-jurisdictional, the agencies seek to

balance Congress’ intent to interpret the

term ‘‘navigable waters’’ broadly, see,

e.g., S. Conf. Rep. No. 92–1236, p. 144

(1972), with the notion that nothing in

the legislative history of the Act

‘‘signifies that Congress intended to

exert anything more than its commerce

power over navigation.’’ SWANCC, 531

U.S. at 168 n.3. The agencies believe

that limiting jurisdiction to perennial

and intermittent streams most

appropriately balances the Federal

government’s interest in regulation the

nation’s navigable waters while

respecting State land use authority over

features that are only episodically wet

following precipitation events.

By including rivers and streams that

contribute perennial or intermittent

flow to traditional navigable waters or

the territorial seas, and excluding

ephemeral features, the agencies are

proposing a definition of ‘‘tributary’’

that is consistent with the Rapanos

plurality’s position that ‘‘ ‘the waters of

the United States’ include only

relatively permanent, standing, or

flowing bodies of waters’’ . . . ‘‘as

opposed to ordinarily dry channels’’

. . . ‘‘or ephemeral flows of water.’’ Id.

at 732–33 see also id. at 736 n.7

(‘‘[R]elatively continuous flow is a

necessary condition for qualification as

a ‘water,’ not an adequate condition’’

(original emphasis)). Perennial waters,

by definition, are permanent. And while

the plurality did note that ‘‘waters of the

United States’’ do not include

‘‘ordinarily dry channels through which

water occasionally or intermittently

flows,’’ id. at 733, the plurality would

‘‘not necessarily exclude seasonal

rivers, which contain continuous flow

during some months of the year but no

flow during dry months.’’ Id. at 732 n.5

(original emphasis); compare id. at 770

(Kennedy, J., concurring) (‘‘an

intermittent flow can constitute a stream

. . . while it is flowing . . . [i]t follows

that the Corps can reasonably interpret

the Act to cover the paths of such

impermanent streams’’). Intermittent

waters may occur seasonally, for

example, during times when

groundwater tables are elevated or when

snowpack runoff produces relatively

permanent flow, returning on an annual

basis in known, fixed geographic

locations.

Pre-proposal commenters provided

various definitions for perennial flow,

including streams which flow

continually or which flow for twelve

months of the year other than times of

extreme drought. Several commenters

recommended that the agencies only

include tributaries with perennial flow,

suggesting that they would broadly

protect water quality and provide a clear

line regarding federal jurisdiction

without being overly expansive. Some

stakeholders recommended the agencies

include waters that receive water from

a spring or other surface source, such as

melting snow. Others recommended

including ephemeral features and

washes in the definition of ‘‘tributary’’

and relying on physical features of a

stream (e.g., bed and banks and ordinary

high water mark) regardless of flow.

Many pre-proposal commenters

recommended the agencies propose a

bright line to distinguish between

intermittent and ephemeral flow

regimes. A few commenters suggested

specific timeframes for the flow

requirement to be a tributary, such as

185 days, with most recommending

three continuous months of the year.

Several States submitted comments

during the Federalism consultations

recommending a regionalized approach

to flow regime, whereby the agencies

could provide regional manuals with

examples of jurisdictional flow regimes

in various parts of the country or some

other mechanism to recognize regional

differences in waters. The agencies have

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26

U.S. EPA. Connectivity of Streams and

Wetlands to Downstream Waters: A Review and

Synthesis of the Scientific Evidence (Final Report).

U.S. Environmental Protection Agency,

Washington, DC, EPA/600/R–14/475F, 2015.

27

U.S. EPA. Connectivity of Streams and

Wetlands to Downstream Waters: A Review and

Synthesis of the Scientific Evidence (External

Review Draft). U.S. Environmental Protection

Agency, Washington, DC, EPA/600/R11/098B,

September 2013.

considered these comments and have

crafted proposed regulatory definitions

designed to address a broad array of

interests, while adhering to the legal

principles articulated in this notice and

while providing a predictable,

implementable regulatory framework.

By proposing to define ‘‘tributary’’ as

rivers and streams that contribute

perennial or intermittent flow to

traditional navigable waters or the

territorial seas, the agencies would

establish that a mere hydrologic

connection cannot provide the basis for

CWA jurisdiction; the bodies of water

must be ‘‘geographical features’’ (i.e.,

rivers and streams) that are ‘‘relatively

permanent’’ (i.e., perennial or

intermittent) and that contribute

perennial or intermittent flow to a

traditional navigable water. Id. at 732.

This proposed requirement is informed

by Rapanos wherein the plurality

determined that the phrase ‘‘the waters

of the United States’’ ‘‘cannot bear the

expansive meaning that the Corps

would give it,’’ id. at 732, and

challenged the notion that ‘‘even the

most insubstantial hydrologic

connection may be held to constitute a

‘significant nexus.’ ’’ Id. at 728.

Similarly, Justice Kennedy noted, ‘‘mere

hydrologic connection should not

suffice in all cases; the connection may

be too insubstantial for the hydrologic

linkage to establish the required nexus

with navigable waters as traditionally

understood.’’ Id. at 784–85. On the other

hand, Justice Kennedy challenged the

plurality’s requirement that a channel

contain ‘‘continuous flow,’’ asserting

‘‘[t]he merest trickle, if continuous,

would count as a ‘water’ subject to

federal regulation’’ under the plurality’s

test.’’ Id. at 769. The proposed

requirement that a tributary be

connected to a traditional navigable

water by perennial or intermittent flow

also reflects the plurality’s description

of a ‘‘ ‘wate[r] of the United States’’’ as

‘‘i.e., a relatively permanent body of

water connected to traditional interstate

navigable waters.’’ Id. at 742.

The agencies acknowledge the

proposed tributary definition contains

no flow volume requirement, but only a

flow duration requirement of perennial

or intermittent flow. The agencies

believe establishing a specific flow

volume requirement for all tributaries

would be inappropriate given the wide

spatial and temporal variability of flow

volume in rivers and streams across the

country. While the proposed definition

may in certain instances assert

jurisdiction over bodies of water

contributing ‘‘the merest trickle’’ to a

traditional navigable water, the agencies

believe that regardless of flow volume,

such bodies are ‘‘ ‘waters’ in the

ordinary sense of containing a relatively

permanent flow.’’ Id. at 757. As

described in the agencies’ Rapanos

Guidance, the agencies currently

conduct a significant nexus analysis for

certain types of waters referred to as

‘‘non-relatively permanent waters,’’

which includes ephemeral features and

some intermittent streams. See Rapanos

Guidance at 7 (‘‘ ‘[R]elatively

permanent’ waters do not include

ephemeral tributaries which flow only

in response to precipitation and

intermittent streams which do not

typically flow year-round or have

continuous flow at least seasonally.

However, CWA jurisdiction over these

waters will be evaluated under the

significant nexus standard[.]’’). This

proposed definition of ‘‘tributary’’

would replace existing procedures that

may depend on case-specific

‘‘significant nexus’’ analyses of the

relationship between a particular stream

with downstream waters. The agencies

are proposing to eliminate this case-

specific ‘‘significant nexus’’ analysis by

providing a clear definition of

‘‘tributary’’ that is easier to implement.

Indeed, Justice Kennedy’s ‘‘significant

nexus’’ test for wetlands adjacent to

nonnavigable tributaries was only

needed ‘‘absent more specific

regulations,’’ Rapanos, 547 U.S. at 782,

because ‘‘the breadth of [the Corps’

existing tributary] standard’’ . . .

‘‘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’’ and thus

‘‘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.’’ Id.

at 781. In light of the ‘‘more specific

[tributary] regulations’’ proposed today,

the agencies propose to eliminate the

case-specific significant nexus review

through categorical treatment of all

tributaries, as defined by this proposal,

as ‘‘waters of the United States.’’ In

doing so, the agencies believe they

avoid interpretation of the CWA that

raise significant constitutional

questions. See Rapanos 547 U.S. 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.’’).

The agencies recognize that this is a

departure from prior positions of the

Federal government. The agencies also

recognize that some courts apply the

significant nexus standard articulated in

Justice Kennedy’s opinion as the

exclusive test of CWA jurisdiction over

certain waters. But the agencies believe

that this proposed definition

incorporates the important aspects of

Justice Kennedy’s opinion, together

with the plurality, to craft a clear and

implementable definition that stays

within our statutory and constitutional

mandates. The agencies request

comment on this interpretation, and on

whether the agencies have previously

overread Justice Kennedy’s opinion to

mandate the significant nexus test

outside the actual holding of Justice

Kennedy’s opinion, which was limited

to the wetlands at issue in that case.

The proposed definition of ‘‘waters of

the United States’’ is a legal and policy

decision informed by the statute, its

legislative history, Supreme Court

interpretations, and the agencies’

respect for the traditional power of

States to regulate their land and water

resources. This proposed definition is

also informed by the science. As part of

the rulemaking effort leading up to the

promulgation of the 2015 Rule, the

EPA’s Office of Research and

Development developed a report

entitled ‘‘Connectivity of Streams and

Wetlands to Downstream Waters: A

Review and Synthesis of the Scientific

Evidence’’ (‘‘Connectivity Report’’).

26

The report reviews more than 1,200

peer-reviewed publications and

summarizes the current scientific

understanding about the connectivity

and mechanisms by which streams and

wetlands affect the physical, chemical,

and biological integrity of downstream

waters. Before the Connectivity Report

was finalized, the EPA released a draft

version of it in September 2013 (‘‘Draft

Connectivity Report’’).

27

The Draft

Connectivity Report was reviewed by

the EPA’s Science Advisory Board

(‘‘SAB’’), a public advisory group tasked

with providing scientific information

and advice to EPA. In October 2014, the

SAB completed its peer review (‘‘SAB

Review’’) of the Draft Connectivity

Report. While the SAB found that ‘‘[t]he

literature review provides strong

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Letter to Gina McCarthy. October 17, 2014.

SAB Review of the Draft EPA Report Connectivity

of Streams and Wetlands to Downstream Waters: A

Review and Synthesis of the Scientific Evidence.

Page 3.

29

Id. at 2 (emphasis added).

scientific support for the conclusion

that ephemeral, intermittent, and

perennial streams exert a strong

influence on the character and

functioning of downstream waters and

that tributary streams are connected to

downstream waters,’’ at the same time

the SAB stressed that ‘‘the EPA should

recognize that there is a gradient of

connectivity.’’

28

The SAB

recommended that ‘‘the interpretation of

connectivity be revised to reflect a

gradient approach that recognizes

variation in the frequency, duration,

magnitude, predictability, and

consequences of physical, chemical, and

biological connections.’’

29

To describe the ‘‘connectivity

gradient’’ and the probability that

impacts occurring along the gradient

will be transmitted downstream, the

SAB developed a figure as part of its

review of the Draft Connectivity Report.

See SAB Review fig. 3 at 54. The figure

illustrates the connectivity gradient and

potential consequences between

perennial, intermittent, and ephemeral

streams and downstream waters and

depicts a decreased ‘‘probability that

changes .... will be transmitted to

downstream waters’’ at flow regimes

less than perennial and intermittent. In

other words, the SAB found perennial

and intermittent streams have a greater

probability to impact downstream

waters compared to ephemeral streams.

While the SAB stated that ‘‘at

sufficiently large spatial and temporal

scales, all waters and wetlands are

connected,’’ it found that ‘‘[m]ore

important are the degree of connection

(e.g., frequency, magnitude, timing,

duration) and the extent to which those

connections affect the chemical,

physical, and biological integrity of

downstream waters.’’ Id. at 17.

At the same time, the SAB recognized

that ‘‘[t]he Report is a science, not

policy, document that was written to

summarize the current understanding of

connectivity or isolation of streams and

wetlands relative to large water bodies

such as rivers, lakes, estuaries, and

oceans.’’ Id. at 2. ‘‘The SAB also

recommended that the agencies clarify

in the preamble to the final rule that

‘significant nexus’ is a legal term, not a

scientific one.’’ 80 FR 37065. And in

issuing the 2015 Rule, the agencies

stated, ‘‘the science does not provide a

precise point along the continuum at

which waters provide only speculative

or insubstantial functions to

downstream waters.’’ Id. at 37090. Thus,

the agencies use the Connectivity Report

to inform certain aspects of this

proposed definition of ‘‘waters of the

United States,’’ such as recognizing the

‘‘connectivity gradient’’ and potential

consequences between perennial,

intermittent, and ephemeral streams and

downstream waters within a tributary

system, but acknowledge that science

cannot be used to draw the line between

Federal and State waters, as those are

legal distinctions that have been

established within the overall

framework and construct of the CWA.

This proposed tributary definition

identifies a category of perennial and

intermittent rivers and streams that due

to their relatively permanent flow

regime and their contribution of flow to

navigable waters should be federally

regulated. Through this proposed

definition of ‘‘tributary,’’ the agencies

would also acknowledge the policy

direction from Congress to ‘‘recognize,

preserve, and protect the primary

responsibilities and rights of States to

prevent, reduce, and eliminate pollution

[and] to plan for the development and

use (including restoration, preservation,

and enhancement) of land and water

resources . . . .’’ 33 U.S.C. 1251(b); see

also Rapanos, 547 U.S. at 737 (Scalia, J.,

plurality). The proposed approach to

defining ‘‘tributary’’ is also intended to

limit federal jurisdiction over ephemeral

flows and other ordinarily dry land

features in order to ‘‘preserve, and

protect the primary responsibilities and

rights of States to . . . plan the

development and use . . . of land . . .

resources.’’ See id. at 738 (Scalia, J.,

plurality) (‘‘Regulation of land use, as

through the issuance of the

development permits sought by

petitioners in both [Rapanos and

Carabell], is a quintessential state and

local power.’’). With the proposed

definition, the agencies seek to avoid

‘‘impairing or in any manner affecting

any right or jurisdiction of the States

with respect to waters (including

boundary waters) of such States.’’ 33

U.S.C. 1370. In addition, the agencies

are drawing a line between intermittent

and ephemeral flows for administrative

efficiency as they balance the law,

science, and stakeholder feedback.

Therefore, ephemeral features, such as

dry washes and arroyos, that lack the

required perennial or intermittent flow

regime necessary to satisfy the tributary

definition under this proposed rule are

excluded from the definition. However,

an ephemeral feature may constitute a

point source that discharges pollutants

to a ‘‘water of the United States.’’ See

Rapanos, 547 U.S. at 743–44 (Scalia, J.,

plurality). States and Tribes may also

address ephemeral features as ‘‘waters

of the State’’ or ‘‘waters of the Tribe’’

under their own laws to the extent they

deem appropriate.

3. How might the agencies implement

this approach?

The agencies and our co-regulators

have significant experience identifying

flow regime in perennial and

intermittent waters and expect that

landowners will have also sufficient

knowledge to understand how water

moves throughout their properties.

Moreover, the technical consultants that

support the permitting and development

community will be familiar with the

basic concept of perennial and

intermittent flow regimes. The agencies,

however, have identified several

potential implementation methods and

tools that could be used to identify and

distinguish perennial and intermittent

flow regimes from ephemeral flow

regimes as defined in this proposal. In

conjunction with a field visit, such

methods could include remote and

field-based tools, such as visual

observations, photographs, data

collection on flow, trapezoidal flumes

and pressure transducers for measuring

surface flow and comparing that to

rainfall, StreamStats by the U.S.

Geological Survey (USGS) (available at

https://streamstats.usgs.gov/ss/),

Natural Resources Conservation Service

(NRCS) hydrologic tools and soil maps,

desktop tools that provide for the

hydrologic estimation of a discharge

sufficient to generate intermittent or

perennial flow, such as a regional

regression analysis or hydrologic

modeling, USGS topographic data, or

modeling tools using drainage area,

precipitation data, climate, topography,

land use, vegetation cover, geology, and

other publicly available information.

There may be other methods which

could be researched and developed by

the agencies over time, including the

identification of field indicators, such as

vegetation and macroinvertebrates,

which could be regionalized (for

example, the Streamflow Duration

Assessment Method for the Pacific

Northwest, at http://www.epa.gov/

measurements/streamflow-duration-

assessment-method-pacific-northwest,

which could be expanded to other

regions).

During the agencies’ Federalism

consultation, a few States recommended

the agencies identify a variety of

methods which may be employed to

identify flow regimes, and that such

methods involve tools readily available

to a typical landowner. Some other

States recommended not using the

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because they commented that it has

been shown to overestimate flow in

certain areas. Some States

recommended using local flow data

collected and maps developed by

government agencies, where available.

Climatic conditions and precipitation

data are important elements to consider

when determining flow regime given the

dependent relationship in many systems

between surface flow and groundwater

tables. For example, observing flow

directly after a large rainfall may not be

a good indicator of a stream’s typical

flow regime, while observing flow in a

stream in the middle of summer in the

arid West when no recent rainfall has

occurred may be a good indication that

it flows more than ephemerally. Often

multiple data points and multiple

sources of information could be used to

determine flow regime.

The same tools discussed above can

also be helpful in establishing the

presence of a tributary. For example,

where a USGS topographic map and/or

NHD data display a ‘‘blue line stream,’’

there is an indication of a potential

tributary. Combining this information

with stream order can yield greater

certainty. For example, higher order

streams will generally be more likely to

exhibit relatively permanent flow

compared to lower order streams. This

information will vary in validity in

different parts of the country, so care

would be taken to evaluate additional

information prior to reasonably

concluding a tributary is present.

Supporting information, as well as field

work, should also be used to conclude

the presence of a tributary. Other

reliable methods that can indicate

existence of a tributary include stream

gage data, elevation data, spillway

height, historic water flow records,

flood predictions, statistical evidence,

and direct observation. Also, the

agencies recognize that States may have

specific, validated tools they employ to

identify perennial or intermittent

streams or flow regimes and are

soliciting comment on those approaches

which may be useful for application in

this proposed rule. The agencies also

solicit comment on other

implementation tools available to

determine the flow regime of a river or

stream and its contribution of flow to a

traditional navigable water.

To determine whether the year in

question is a ‘‘typical year,’’ the

agencies presently use observed rainfall

amount and compare it to tables

developed by the Corps using data from

the National Oceanic and Atmospheric

Administration (NOAA). The agencies

consider a year to be ‘‘typical’’ when the

observed rainfall from the previous

three months falls within the 30th and

70th percentiles established by a 30-year

rainfall average generated at NOAA

weather stations. A typical year would

generally not include times of drought

or extreme floods. A rolling 30-year

period would account for variability to

provide a reliable indicator of the

climate in a given geographic area

without being confounded by a year or

two of unusual climate data for the

given area. The geographic area

proposed to be used by the agencies

would be on a watershed-scale basis to

ensure specific climatic data are

representative of the landscape in

relation to the feature under

consideration for meeting the tributary

definition.

Other potential data sources for

obtaining relevant information to

determine typical year could include

one or several of the following: the Web-

based Water-Budget Interactive

Modeling Program (WebWIMP) for

approximate dates of wet and dry

seasons for any terrestrial location based

on average monthly precipitation and

estimated evapotranspiration (http://

climate.geog.udel.edu/∼wimp/); WETS

tables (or similar tools) which are

provided by the NRCS National Water

and Climate Center (http://

www.wcc.nrcs.usda.gov/climate/

wetlands.html) and are calculated from

long-term (30-year) weather records

gathered at National Weather Service;

meteorological stations; or by examining

trends in drought indices, such as the

Palmer Drought Severity Index (PDSI)

(Sprecher and Warne 2000), where time-

series plots of PDSI values by month or

year are available from the National

Climatic Data Center (http://

www.ncdc.noaa.gov/oa/climate/

onlineprod/drought/xmgr.html#ds). The

agencies are not proposing to codify

specific tools or resources in the

regulation to determine a ‘‘typical year.’’

Sources of information on

‘‘snowpack’’ can be found in the NOAA

national snow analyses maps (https://

www.nohrsc.noaa.gov/nsa/), Natural

Resources Conservation Service sources

(https://www.wcc.nrcs.usda.gov/snow/),

or by using hydrographs of subject

locations as a potential guide to alert the

regulated public and regulators as to

which regions of the country have to

consider snowpack scenarios. In these

regions, for example, a hydrograph

could indicate a large increase in

discharge volume due to the late spring/

early summer thaws of melting

snowpack. Such indications are a

regular, predictable, seasonal

occurrence of flow. The large water

contribution source for those northern

and mountainous geographic regions

which do not have significant elevation

changes but which do have a consistent,

predictable snowfall that accumulates

on the ground for extended periods of

time would be covered in a proposed

definition of ‘‘snowpack.’’

4. What are specific issues upon which

the agencies are seeking comment?

While the public may comment on all

aspects of the agencies’ proposed rule,

the agencies have identified several

specific areas related to the proposed

tributary definition for which they seek

comment. As a threshold matter, the

agencies solicit comment on their

interpretation of the Rapanos opinions

and whether the significant nexus

standard, articulated by a single justice,

must be a mandatory component of any

future definition of ‘‘waters of the

United States.’’ Or, may the agencies

apply the principles and rationale of the

plurality and concurring opinions to

craft a new standard established by

rule?

The agencies also solicit comment on

whether the definition of ‘‘tributary’’

should be limited to perennial waters

only. The agencies also request

comment whether the definition of

‘‘tributary’’ as proposed should indicate

that the flow originate from a particular

source, such as a requirement for

groundwater interface, snowpack, or

lower stream orders that contribute

flow. The agencies also solicit comment

on how effluent-dependent streams

(e.g., streams that flow year-round based

on wastewater treatment plant

discharges) should be treated under the

tributary definition. As proposed,

effluent-dependent streams would be

included in the definition of ‘‘tributary’’

as long as they contribute perennial or

intermittent flow to a traditional

navigable water or territorial sea in a

typical year.

The agencies also solicit comment on

whether the tributary definition should

include streams that contribute less than

intermittent flow to a traditional

navigable water or territorial sea in a

typical year. Additionally, the agencies

request comment on whether less than

intermittent flow in a channel breaks

jurisdiction of upstream perennial or

intermittent flow and under what

conditions that may happen. The

agencies recognize that the proposed

definition may present a challenge for

certain landowners upstream of an

ephemeral feature. For example,

landowners may find it difficult to

determine whether there is a

jurisdictional break downstream of a

feature on their property. The agencies

therefore solicit comment on this issue.

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See, e.g., 82 FR 2006 (Jan. 6, 2017) (Corps

nationwide permit program); National Research

Council. 2002. Riparian Areas: Functions and

Strategies for Management. Washington, DC: The

National Academies Press. https://doi.org/

10.17226/10327.

The agencies also seek comment on the

proposed treatment of natural and man-

made breaks regarding the jurisdictional

status of upstream waters, including

whether these features can convey

perennial or intermittent flow to

downstream jurisdictional waters. The

agencies also seek comment on the

jurisdictional status of the breaks

themselves.

The agencies are also soliciting

comment on an alternate definition that

would change the focus of the proposed

definition from intermittent flow

occurring during certain times of the

year to ‘‘seasonal flow.’’ Under this

alternative definition, a tributary would

be a river, stream, or similar naturally

occurring surface water channel that

contributes flow at least seasonally to a

traditional navigable water or territorial

sea in a typical year. The alternate

definition could add that ‘‘seasonal flow

is predictable, continuous surface flow

that generally occurs at the same time in

a typical year.’’ The agencies welcome

comments on the concept of a

‘‘seasonal’’ flow regime, what that term

may include, and how it may be

implemented, including tools to identify

‘‘seasonal’’ flow.

As an alternative to the proposed

definition of ‘‘intermittent,’’ the

agencies are soliciting comment on

whether the term could instead mean

‘‘water flowing continuously during

certain times of a typical year as a result

of melting snowpack or when the

channel bed intersects the groundwater

table.’’ Although the identification of

groundwater input is found in most

definitions for intermittent flow,

30

the

agencies note that identifying whether

the channel bed intersects the

groundwater table may be challenging to

accomplish in the field, that gathering

the relevant data could be time

consuming, and could require new tools

and training of field staff and the

regulated public. Some options for

identifying whether groundwater is

providing a source of water to the

tributary may involve the installation of

monitoring wells or staff gauges to

identify the presence of the water table

and/or to estimate the base flow using

a hydrograph. Identifying the

appropriate depth of installation for a

monitoring well can be challenging,

especially in the case of intermittent

streams that have seasonally fluctuating

water tables. Installing these devices in

certain substrates, such as rocky

substrates, can also be challenging.

There may be other methods which

could be researched and developed by

the agencies over time, including the

identification of field indicators, which

could be regionalized, as well as the

development of modeling tools.

However, both of these methods (field

indicators and modeling tools) would

only provide an indication of

groundwater generated base flow and

would not directly measure its presence.

The agencies are soliciting comment on

whether these or other methods may be

most appropriately used to identify

groundwater in the field.

The agencies are also soliciting

comment on whether the definition of

‘‘intermittent’’ should contain the

requirement of continuous flow for a

specific duration, such as ‘‘at least one

month of the calendar year,’’ instead of

the phrase ‘‘during certain times of a

typical year.’’ See, e.g., 30 CFR 710.5

(definition of ‘‘intermittent’’ used in a

U.S. Department of the Interior

regulation). The agencies note that such

an approach would provide for national

consistency but may not offer a more

regionalized implementation of

intermittent tributaries as some States

recommended (i.e., intermittent would

be viewed the same across the country,

from the arid West to the Southeast).

Some pre-proposal commenters

recommended this approach to provide

certainty for determining flow regime.

The agencies are also soliciting

comment on whether the seasonal

continuous surface flow consideration

(e.g., typically three months) from the

Rapanos Guidance could be used as a

definitional flow regime in the

regulation. Rapanos Guidance at 6.

Several commenters recommended this

approach be used to define tributaries.

The seasonal ‘‘typically three month’’

approach is current practice, subject to

case-by-case analysis, and is therefore

familiar to agency staff and the

regulated public, but like a one-month

limitation, it may not provide for

regional variation in the implementation

of flow regime.

The agencies therefore seek comment

as to whether the tributary definition

should include specific flow

characteristics (e.g., timing, duration,

frequency, or magnitude), and if so,

what flow values or ranges of values

(including supporting rationale) would

satisfy the tributary definition and what

methods, tools, or data could be used to

determine such values. Certain flow

requirements might include, for

example, an average annual flow

volume of five or more cubic feet per

second in a typical year and/or that a

river or stream flow continuously for a

certain number of days (e.g., 30, 60, or

90 days) in a typical year.

The agencies are also soliciting

comment on whether the concepts of

bed and banks and ordinary high water

mark should be added to the definition

of tributary, and if so, how. Several

commenters recommended including

these characteristics in the proposed

definition of ‘‘tributary,’’ similar to the

definition of tributary in the 2015 Rule,

while others opposed the addition,

stating that it would inappropriately

result in regulation over certain waters

that should not be jurisdictional under

the CWA, such as ephemeral features.

The lateral jurisdictional limit of a

tributary currently is established by a

tributary’s ordinary high water mark.

The agencies solicit comment on the

usefulness of incorporating into the

tributary definition the following

sentence: ‘‘the lateral extent of a

tributary is established by its ordinary

high water mark.’’ The agencies note

that the Corps has existing regulations at

33 CFR 328.4 regarding the limits of

jurisdiction for categories of ‘‘waters of

the United States.’’ The agencies solicit

comment on including these Corps

regulations in the EPA’s regulations or

simply cross-referencing the Corps

regulations in EPA’s to apply to the

definition of ‘‘waters of the United

States.’’

The agencies are proposing to define

a typical year as ‘‘within the normal

range of precipitation over a rolling 30-

year period for a particular geographic

area.’’ The agencies solicit comment on

whether it is necessary to define

‘‘typical year’’ given the agencies’

understanding that it is a commonly

understood term in field application.

Alternatively, the agencies seek

comment on whether they should

provide additional details in the rule

text about what constitutes a typical

year or provide further guidance in a

final preamble about appropriate tools

for determining whether a year is

‘‘typical.’’ Finally, the agencies solicit

comment on alternative approaches in

the rule text to convey that times of

drought or extreme floods would not be

a factor when determining if a river or

stream meets the conditions of the

definition of ‘‘tributary.’’

The agencies are also soliciting

comment on implementation methods

and tools that could be used to identify

and distinguish perennial and

intermittent flow regimes from

ephemeral flow regimes as defined in

this proposal. As mentioned above, such

tools could include field-based tools,

such as visual observations, or remote

desktop tools, such as aerial photos. The

agencies are also soliciting comment on

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The Corps also moved the ditch exclusion from

rule text to preamble language in 1986 but stated

that this was not a substantive change and that

jurisdiction was not expanded. 51 FR 41206,

41216–17 (November 13, 1986).

the appropriate watershed scale for use

in the geographic area as defined in a

‘‘typical year’’ of the proposed rule, for

example, hydrologic units at the level of

Hydrological Unit Code (HUC)–8s,

HUC–10s, or HUC–12s could be used. A

broad geographic area may include

multiple micro-climates and may not be

representative of precipitation

conditions on the ground for the subject

tributary. The agencies are soliciting

comment on other approaches to

determine the geographic area.

E. Ditches

1. What are the agencies proposing?

The agencies propose to add a new

category to the definition of ‘‘waters of

the United States’’ to provide regulatory

clarity and predictability regarding the

regulation of ditches and similar

artificial features. The regulatory status

of ditches has long created confusion for

farmers, ranchers, irrigation districts,

municipalities, water supply and

stormwater management agencies, and

the transportation sector, among others.

In an effort to reduce that confusion, the

agencies propose to delineate the

categories of ditches that would be

‘‘waters of the United States,’’ and are

proposing to exclude all other ditches

from that definition.

The agencies also propose to define

ditches for purposes of this proposed

rule as simply artificial channels used to

convey water. Ditches perform a variety

of functions including conveying

irrigation water, draining water from

farm fields, capturing runoff from roads,

or use for transporting goods and

services in interstate or foreign

commerce, such as the Erie Canal and

the Great Lakes Waterway. The status of

ditches as ‘‘point sources’’ under the

CWA, 33 U.S.C. 1362(14), would not be

affected by this proposed rule. One of

the goals of this proposal is to address

the confusion regarding whether ditches

are point sources or ‘‘waters of the

United States’’ more generally, and to

provide clear categories for regulators

and the regulated community for

distinguishing between the two.

The agencies propose to include

ditches as ‘‘waters of the United States’’

if they (1) satisfy any of the conditions

identified in paragraph (a)(1) of this

proposed rule; (2) are ditches

constructed in a tributary as defined in

paragraph (c)(11) of the proposal as long

as those ditches also satisfy the

conditions of the tributary definition; or

(3) are ditches constructed in an

adjacent wetland as defined in

paragraph (c)(1) of the proposal as long

as those ditches also satisfy the

conditions of the tributary definition.

The agencies propose to exclude all

other ditches from the definition of

‘‘waters of the United States.’’ Ditches

not covered by this proposed category

could still be regulated by States and

Tribes and would be subject to CWA

permitting if they meet the definition of

‘‘point source’’ in CWA section 502(14).

2. Why are the agencies proposing this

approach?

During the 1970s, the Corps

interpreted its authorities under the

CWA as not including drainage and

irrigation ditches in the definition of

‘‘waters of the United States.’’ See, e.g.,

40 FR 31320, 31321 (July 25, 1975)

(‘‘Drainage and irrigation ditches have

been excluded.’’). The ditch exclusion

was expressly stated in regulatory text

in the Corps’ 1977 regulations and

clarified as applying to ditches

excavated in dry land. 33 CFR

323.2(a)(3); 42 FR 37122, 37144 (July 19,

1977) (‘‘manmade nontidal drainage and

irrigation ditches excavated on dry land

are not considered waters of the United

States under this definition’’). As the

Corps explained in 1977: ‘‘nontidal

drainage and irrigation ditches that feed

into navigable waters will not be

considered ‘waters of the United States’

under this definition. To the extent that

these activities cause water quality

problems, they will be handled under

other programs of the FWPCA,

including Section 208 and 402.’’ 42 FR

at 37127 (July 19, 1977). Similar

statements in proposed rules from the

early 1980s confirmed this

interpretation: ‘‘man-made, non-tidal

drainage and irrigation ditches

excavated on dry land are not

considered waters of the United States.’’

45 FR 62732, 62747 (September 19,

1980); see also 48 FR 21466, 21474 (May

12, 1983) (‘‘Waters of the United States

do not include the following man-made

waters: (1) Non-tidal drainage and

irrigation ditches excavated on dry land,

(2) Irrigated areas which would revert to

upland if the irrigation ceased.’’).

The general exclusion for non-tidal

drainage and irrigation ditches

excavated in dry land continued

through 1986, although the Corps

modified its earlier statements that year

by noting in preamble text that ‘‘we

generally do not consider’’ such features

to be ‘‘waters of the United States,’’ and

indicating that the agency would

evaluate certain ditches on a case-by-

case basis. 51 FR 41206, 41217

(November 13, 1986).

31

The Corps

further clarified the regulation of

ditches in its nationwide permit

regulation in March 2000, stating that

‘‘non-tidal drainage ditches are waters

of the United States if they extend the

[ordinary high water mark] of an

existing water of the United States.’’ 65

FR 12818, 12823–24 (March 9, 2000). In

other words, if flow or flooding from a

jurisdictional non-tidal river or stream

inundated an upland ditch, the agencies

would assert jurisdiction over that

upland ditch because the ordinary high

water mark of the river or stream

extends into the ditch, and the agencies

would then assert jurisdiction over the

entire reach of that ditch. Essentially,

the agencies have found that a ditch

becomes part of the tributary network

because of the presence of the ordinary

high water mark in the ditch.

In the 2015 Rule, the agencies

promulgated a definition of ‘‘waters of

the United States’’ that expressly

included man-made features such as

ditches and canals in the definition of

tributaries, but excluded ditches with

ephemeral flow if those ditches are not

a relocated tributary or were not

constructed in a tributary. 80 FR 37105

(June 29, 2015). That definition also

excluded ditches with intermittent flow,

as long as those ditches are not a

relocated tributary, are not constructed

in a tributary, or do not drain wetlands.

Id. Ditches that do not contribute flow,

either directly or through another

‘‘water of the United States,’’ are also

excluded from the definition of ‘‘waters

of the United States’’ under the 2015

Rule. Id.

The agencies today propose to clarify

the regulatory status of ditches in a

manner that would be more consistent

with the Corps’ regulations following

the 1972 and 1977 CWA amendments,

with some modifications to provide a

clear definition that also falls within

scope of the agencies’ authority under

the CWA.

When Congress enacted the 1972

amendments, it specifically included

ditches and related artificial features as

‘‘point sources,’’ declaring them to be

‘‘discernible, confined, and discrete

conveyances . . . from which pollutants

are or may be discharged.’’ 33 U.S.C.

1362(16). Congress envisioned

protecting the quality of the navigable

waters, defined as ‘‘waters of the United

States’’ at that time, by regulating the

discharge of pollutants from

conveyances like pipes, ditches,

channels, tunnels and similar features

into ‘‘waters of the United States.’’ Id.

(defining ‘‘discharge of pollutants’’ as

‘‘any addition of any pollutant to

navigable waters from any point

source’’). The agencies today propose to

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32

The agencies also note that Congress exempted

the discharge of irrigation return flows into waters

of the United States from the section 402 permit

program. 33 U.S.C. 1342(l). This exemption

potentially would not be needed if agricultural

drainage ditches carrying irrigation return flow

were themselves waters of the United States, as the

entry point of the irrigation return flow into the

drainage ditch might then lack the requisite point

source discharging mechanism given the diffuse

overland flow entry point from the field to ditch in

most circumstances.

better demarcate navigable waters and

point sources that can discharge

pollutants into those waters, as

established by Congress in 1972. See,

e.g., Rapanos, 547 U.S. at 735–36

(Scalia, J., concurring) (‘‘The definition

of ‘discharge’ would make little sense if

the two categories were significantly

overlapping’’). To do so, the agencies

evaluated the treatment of ditches in the

CWA to discern whether Congress

intended ditches to be point sources,

navigable waters, or both. For example,

Congress exempted the discharge of

dredged or fill material into ‘‘waters of

the United States’’ when that discharge

occurs as a result of the construction or

maintenance of irrigation ditches, the

maintenance of drainage ditches, or

minor drainage associated with normal

farming activities. 33 U.S.C.

1344(f)(1)(A), (C). One possible

interpretation of these exemptions is an

implicit acknowledgement that there

may be some irrigation or drainage

ditches that are ‘‘waters of the United

States,’’ thus the need to exempt

common agricultural and related

practices in those waters from section

404 permitting. Another interpretation,

and one that may more closely align

with the pre-existing CWA definition of

‘‘point source,’’ is that dredged or fill

material is not subject to federal

permitting if those materials get washed

down the ditch into a connected ‘‘water

of the United States.’’

For irrigation ditches, which typically

are constructed in upland but frequently

must connect to a ‘‘water of the United

States’’ to either capture or return flow,

Congress exempted both the

construction and maintenance of such

facilities. 33 U.S.C. 1344(f)(1)(C); see

also 33 U.S.C. 1362(14) (excluding

agricultural stormwater discharges and

irrigation return flows from the

definition of point source).

32

The

construction activities performed in

upland areas are beyond the reach of the

CWA, but the permitting exemption

applies to the diversion structures,

weirs, headgates, and other related

facilities that connect the irrigation

ditches to jurisdictional waters. See,

e.g., Corps, Regulatory Guidance Letter

No. 07–02, at 1–2 (July 4, 2007).

The permitting exemption for

drainage ditches, by contrast, is limited

to the maintenance of such ditches. 33

U.S.C. 1344(f)(1)(C). That is because an

alternate formulation would have

allowed the drainage of wetlands

subject to CWA jurisdiction without a

permit. Congress’ concern for such a

result is evident in the ‘‘recapture’’

provision of 33 U.S.C. 1344(f)(2). See,

e.g., Sen. Rpt. 95–370, 95th Cong. 1st

Sess., at 76–77 (July 19, 1977) (noting

that exempted ‘‘activities should have

no serious adverse impact on water

quality if performed in a manner that

will not impair the flow and circulation

patterns and the chemical and biological

characteristics of the affected

waterbody’’ and noting that the

‘‘exemption for minor drainage does not

apply to the drainage of swampland or

other wetlands’’).

Thus, Congress may have envisioned

the interconnection between the

irrigation and drainage ditches and

down-gradient ‘‘waters of the United

States’’ as creating the need for the

section 404(f) permitting exemptions,

not necessarily that those ditches

themselves are ‘‘waters of the United

States.’’ The agencies have not been able

to identify any legislative history,

however, that signals the clear intent of

Congress on this complex topic. The

agencies also recognize that this

interpretation of the statutory structure

has not been articulated previously, and

solicit comment on which this

formulation adheres more closely to the

language of the Act and the positions

articulated by the plurality opinion in

Rapanos. See, e.g., 547 U.S. at 735–36

and n.7. To be clear, the agencies are not

saying that in all circumstances a ditch

may be a water of the United States or

a point source, but not both. The

agencies are, however, attempting to

more clearly establish demarcations

between the two to reduce regulatory

uncertainty.

The agencies today propose to limit

the term ‘‘waters of the United States’’

to apply to clearly defined categories of

ditches and related features. The

agencies propose to include their

longstanding interpretation that ditches

that satisfy any of the conditions of a

category (a)(1) water are ‘‘waters of the

United States.’’ This also includes tidal

ditches and ditches that transport goods

and services in interstate and foreign

commerce, as those ditches—more

commonly referred to as ‘‘canals’’—

provide important commercial

navigation services to the nation and

operate more like natural waters

traditionally understood as navigable.

See, e.g., id. at 736 (Scalia, J., plurality)

(‘‘a permanently flooded man-made

ditch used for navigation is normally

described, not as a ‘ditch,’ but a

‘canal’ ’’). The Los Angeles River, for

example, is a ‘‘water of the United

States’’ (having been determined to be a

traditional navigable water) and would

not be excluded under paragraph (b)

even where it has been channelized or

concreted. Other examples include the

St. Lawrence Seaway, the Sturgeon Bay

Ship Canal, and the Chesapeake and

Delaware Canal.

In addition, the agencies propose to

include ditches that were constructed in

a water that meets the proposed

definition of ‘‘tributary’’ and continues

to meet the definition of ‘‘tributary.’’

This provision is consistent with the

agencies’ longstanding, historic position

that non-tidal ditches excavated in

upland (and historically described as

‘‘dry land’’) are not jurisdictional.

Features, including ditches, that are not

waters under paragraph (a)(1) and that

are constructed in upland are not

‘‘waters of the United States’’ because

areas that are naturally dry land do not

meet the ordinary meaning of the term.

As discussed in the introduction to

Section III, ‘‘waters of the United

States’’ are waters within the ordinary

meaning of the term, such as oceans,

rivers, streams, lakes, ponds, and

wetlands; ditches artificially excavated

in upland do not fit into this category.

This proposal would also align the

treatment of ditches to that of tributaries

in this proposal, which retains the

agencies’ longstanding position that the

alteration or relocation of a ‘‘water of

the United States’’ does not modify the

jurisdictional status of that water, and as

such, ditches that alter or relocate a

water of the United States would be

jurisdictional.

The agencies also propose to include

ditches as ‘‘waters of the United States’’

if they were constructed in a wetland

that meets this proposed definition of

‘‘adjacent wetland,’’ as long as the ditch

also satisfies the conditions of the

tributary definition in this proposed

rule. Such an approach would align the

proposed rule with the section 404(f)

permitting exemption for the

maintenance but not construction of

drainage ditches, and the associated

concern expressed during the legislative

process for the 1977 amendments

related to draining swamps and

wetlands. The provision would also be

restricted to ditches that satisfy this

proposed definition of ‘‘tributary,’’ as

such ditches likely functionally

maintain some of the same

interconnected relationship between the

drained wetland and navigable water

that supported federal jurisdiction over

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the adjacent wetland in the first

instance.

Ditches used to drain surface and

shallow subsurface water from cropland

are a quintessential example of the

interconnected relationship between

land and water resource management, as

is managing water resources in the

Western United States, conveying

irrigation water to and from fields, and

managing surface water runoff from

lands and roads following precipitation

events—all activities that rely on

ditches. See, e.g., FERC v. Mississippi,

456 U.S. 742, 768 n.30 (1982)

(characterizing ‘‘regulation of land use

[as] perhaps the quintessential state

activity’’). This proposal therefore

effectuates the clear policy directive

from Congress to preserve and protect

the primary authority of States over land

and water resources within their

borders. See 33 U.S.C. 1251(b), 1370.

3. How might the agencies implement

this approach?

In order to be a jurisdictional ditch

under this proposed rule, a feature

would first need to meet the definition

of ‘‘ditch’’ as proposed (i.e., an artificial

channel used to convey water). An

‘‘artificial’’ channel is not a natural

feature, rather it has been constructed in

some manner. Also, to meet the

proposed definition of ‘‘ditch,’’ the

artificial channel must be used to

convey water. Once a feature has been

determined to meet the proposed

definition of ‘‘ditch,’’ a ditch would be

considered ‘‘waters of the United

States’’ if it meets any of the conditions

in paragraph (a)(1). This would include

ditches which are currently used, or

were used in the past, or may be

susceptible to use in interstate or foreign

commerce, as well as ditches which are

subject to the ebb and flow of the tide.

This may include waters such as

navigable canals and tidal drainage

ditches. See Section III.A for further

discussion on paragraph (a)(1) waters.

A ditch would also be considered a

‘‘water of the United States’’ if it was

constructed in a tributary as defined in

paragraph (c)(11) and also satisfies the

conditions of the tributary definition. A

tributary that was channelized or

straightened because its natural

sinuosity has been altered, cutting off

the meanders, may or may not meet the

definition of ‘‘ditch’’ but nonetheless

would remain a tributary as long as it

meets the conditions of the tributary

definition provided in this proposed

rule. If these ditches were tributaries

prior to their construction and continue

to meet the conditions of the tributary

definition after construction, they

would remain jurisdictional under the

proposed rule. However, if the evidence

does not demonstrate whether a ditch

was constructed in a tributary as

defined in the proposed rule, that ditch

would be considered to be non-

jurisdictional by the agencies under this

proposal.

For example, if the agencies are not

sure whether a ditch was constructed in

a tributary given the physical

appearance and functionality of the

current ditch, the agencies would look

at the available evidence to attempt to

discern when the ditch was constructed

and the nature of the landscape before

and after construction. If the evidence

does not demonstrate that the ditch was

located in a natural waterway, the

agencies would consider the ditch non-

jurisdictional under this proposed rule.

If the evidence suggests that the ditch

may have been constructed in a natural

waterway, the agencies would review

the available evidence to attempt to

discern whether that natural waterway

would qualify as a tributary under this

proposed rule. Absent such evidence,

the agencies would determine the ditch

is non-jurisdictional. If the evidence

demonstrates that a ditch was

constructed in a tributary, then the ditch

would be a ‘‘water of the United States’’

as long as it still satisfies the conditions

of the proposed definition of

‘‘tributary.’’ See Section III.D for further

information about tributaries under this

proposed rule.

A ditch would be considered a ‘‘water

of the United States’’ if it was

constructed in an adjacent wetland as

defined in this proposed rule (see

Section III.G for a discussion of adjacent

wetlands under this proposed rule), but

only if that ditch also satisfies the

conditions of the proposed definition of

‘‘tributary.’’ The same scenarios above

for ditches constructed in a tributary

would apply when determining the

jurisdictional status of a ditch

constructed in an adjacent wetland. If

there is evidence to indicate that a ditch

was constructed in an adjacent wetland

as defined in the proposal, the agencies

would consider the ditch to be

jurisdictional if it also satisfies the

conditions of the tributary definition as

proposed. Absent such evidence, the

agencies would determine the ditch is

non-jurisdictional.

Along with field data and current

information on the subject water,

historic tools and resources may also be

used to determine the presence of a

tributary or adjacent wetland at the time

of ditch construction, and several

sources of information may be required

to make such determination. This may

include historic topographic maps,

historic aerial photographs, local and

state records and surface water

management plans, agricultural records,

street maintenance data, precipitation

records, historic permitting and

jurisdictional determination records,

certain hydrogeomorphological or soil

indicators, wetlands and conservation

programs and plans, and functional

assessments and monitoring efforts. For

example, when a USGS topographic

map displays a tributary located

upstream and downstream of a ditch,

this may indicate that the ditch was

constructed in a tributary.

In addition, high resolution aerial

photographs may be used to identify

whether there are or were characteristics

of a tributary upstream or downstream

of a ditch, indicating that a ditch may

have been constructed in a tributary. In

some cases, stream channel morphology

is visible on the aerial photograph along

with visible persistent water (e.g.,

multiple dates of aerial photography

showing visible water) providing

evidence of the flow regime necessary to

identify a tributary under this proposed

rule at the time of ditch construction.

However, characteristics of tributaries

may not be visible in aerial photographs

taken in areas with high shrub or tree

cover, in which case aerial photographs

taken during ‘‘leaf off’’ may provide the

most beneficial information. National

Wetlands Inventory maps may indicate

the presence of a ditch constructed in an

adjacent wetland; however, it may be

challenging to identify the historic

status of a wetland where a ditch has

drained the wetland such that it would

no longer meet the definition of

‘‘adjacent wetland’’ under this proposed

rule. In general, the burden of proof

would be on the agencies to determine

the historic status of the ditch

construction, and if field and remote-

based resources do not provide

sufficient evidence to show that the

ditch was constructed in a tributary or

an adjacent wetland then a

determination would be made that the

ditch is not jurisdictional under this

proposed rule.

4. What are the specific issues upon

which the agencies are seeking

comment?

While the public may comment on all

aspects of the agencies’ proposed rule,

the agencies are proposing a number of

ways to address and clarify jurisdiction

over ditches as described above and are

seeking comment. The agencies seek

comment on the utility and clarity of

proposing a separate category of

jurisdictional ditches and how the

agencies have delineated those ditches

that would be ‘‘waters of the United

States’’ and those that would be

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excluded. In the alternative, the

agencies seek public comment on

whether the agencies should retain the

historical treatment of jurisdictional

ditches within the definition of

‘‘tributary’’ and not in a separate

category. The agencies also seek

comment on their proposed definition

of ‘‘ditch.’’

As the agencies consider how to

implement this provision, the agencies

seek comment on whether they should

add a temporal component to

distinguish jurisdictional ditches when

evaluating ditches that may have been

constructed in tributaries or adjacent

wetlands. For example, the agencies

could consider a ditch that appears to

have been constructed in upland to be

non-jurisdictional unless there is

evidence that the ditch was in fact

constructed in a natural waterway prior

to the adoption of the 1972 CWA

amendments. The agencies also solicit

comment as to what tools can be used

to help identify whether a ditch is

constructed in upland or whether it was

constructed in a tributary or adjacent

wetland that meets the respective

proposed definitions, and in particular

what sort of showing would constitute

evidence that a ditch was constructed in

upland or in a jurisdictional tributary or

adjacent wetland. The agencies seek

comment as to whether there are other

approaches for addressing the

evidentiary concerns that may arise in a

permitting context for historic ditches.

For example, the agencies solicit

comment on the role of historic

photographs and records, in

determining whether a ditch was built

in a tributary and more generally what

constitutes evidence that a ditch was

constructed in a tributary or an adjacent

wetland.

In addition, the agencies solicit

comment on the exclusion of all ditches

constructed in upland, regardless of

flow regime, and whether that is

consistent with the plurality and

concurring opinions in Rapanos. For

example, ditches constructed in upland

that flow perennially would be

presumed non-jurisdictional under this

proposal, even if they would also satisfy

the conditions of the proposed tributary

definition. Finally, the agencies solicit

comment on whether a ditch can be

both a point source and a ‘‘water of the

United States,’’ or whether these two

categories as established by Congress are

mutually exclusive.

F. Lakes and Ponds

1. What are the agencies proposing?

The agencies are proposing a separate

category of waters of the United States

to include certain lakes and ponds. The

agencies are proposing three instances

where lakes and ponds would meet the

definition of ‘‘waters of the United

States.’’ First, lakes and ponds that

satisfy any of the conditions in

paragraph (a)(1) are proposed to be

included. Such lakes and ponds would

be jurisdictional as an (a)(1) water, as

well as an (a)(4) water.

Second, lakes and ponds that

contribute perennial or intermittent

flow to an (a)(1) water in a typical year

through an (a)(2)–(6) water would also

be considered waters of the United

States. This second category of lakes

and ponds can contribute flow to an

(a)(1) water either directly or through a

tributary, jurisdictional ditch, another

jurisdictional lake or pond, an

impoundment, an adjacent wetland, or

through a combination of these waters.

The contribution of perennial or

intermittent flow to an (a)(1) water from

such lakes and ponds may also occur

through water features identified in

paragraph (b) of this proposal so long as

those water features convey perennial or

intermittent flow downstream and

ultimately to an (a)(1) water. The term

‘‘typical year’’ as used in the proposed

lakes and ponds category of ‘‘waters of

the United States’’ would be

implemented using the proposed

definition of the term in paragraph

(c)(12).

Third, the agencies propose that lakes

and ponds flooded by an (a)(1)–(5) water

in a typical year would be waters of the

United States. These lakes and ponds

would receive flood waters from (a)(1)–

(5) waters via overtopping in a typical

year.

2. Why are the agencies proposing this

approach?

The agencies propose to include

certain lakes and ponds as waters of the

United States because lakes and ponds

are waters within the ordinary meaning

of the term. As discussed in Section II,

the plurality decision in Rapanos

explains that the term ‘‘the waters’’ is

most commonly understood to refer to

‘‘streams and bodies forming

geographical features such as oceans,

rivers, lakes,’’ or ‘‘the flowing or moving

masses, as of waves or floods, making

up such streams or bodies.’’ 547 U.S. at

732. The plurality also noted that its

reference to ‘‘relatively permanent’’

waters did ‘‘not necessarily exclude

streams, rivers, or lakes that might dry

up in extraordinary circumstances, such

as drought,’’ Id. at 732 n.5. The agencies

focus in large part on the lake or pond’s

contribution of flow to and connection

with traditional navigable waters to

remain consistent with the overall

structure and function of the CWA. See,

e.g., SWANCC, 531 U.S. at 168 n.3.

Many commenters in the Federalism

consultation with the agencies stated

that the rule should include permanent

lakes. Some commenters also stated that

the rule should not include isolated

lakes, which this proposal does not

unless the lake satisfies the conditions

in paragraph (a)(1). The agencies are

proposing a distinct category for lakes

and ponds because they are distinct

water features; they are lentic systems

(i.e., still waters) as opposed to

tributaries, which are typically lotic

features (i.e., flowing waters). In

addition, the agencies view the

establishment of a separate category for

lakes and ponds as providing greater

clarity and predictability for Federal

agencies, States, Tribes, the regulated

community, and the public, rather than

including these waters in the definition

of ‘‘tributaries’’ or with adjacent

wetlands.

As discussed in Section II, the

agencies’ authority 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

given the broad purposes of the CWA,

but must provide a reasonable basis for

doing so. The agencies are proposing

that lakes and ponds that contribute

perennial or intermittent flow to those

traditional navigable waters, in any of

the manners described above, fall

within Congress’ commerce power and

are consistent with the ordinary

meaning of ‘‘waters of the United

States,’’ and that regulating them

effectuates the goals and policies of the

CWA.

Lakes and ponds that satisfy any of

the conditions in paragraph (a)(1) are

traditionally navigable waters and as

such should be considered waters of the

United States for the same reasons

discussed under the rationale for (a)(1)

waters in this proposal. Lakes and

ponds that contribute perennial or

intermittent flow to an (a)(1) water in a

typical year either directly or indirectly

through an (a)(2)–(6) water or through

water features identified in paragraph

(b) of this proposal so long as those

water features convey perennial or

intermittent flow would also be

considered waters of the United States.

Such lakes and ponds would contribute

flow in a manner similar to a tributary

and would be jurisdictional for the same

reasons that a tributary would be

jurisdictional. Lakes and ponds that

contribute flow to traditional navigable

waters through ephemeral flow would

be excluded for the same reasons that

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ephemeral features are proposed to be

not jurisdictional. The agencies believe

that this proposed category of lakes and

ponds better reflects the limits to the

agencies’ authority that the plurality

and concurring opinions recognized in

Rapanos.

By requiring that a contribution of

flow exists as perennial or intermittent

flow between lakes and ponds and

traditional navigable waters, including

the territorial seas, in the proposed

definition, the agencies would establish

that a mere hydrologic connection

cannot provide the basis for CWA

jurisdiction; the connection must be

perennial or intermittent flow from the

lake or pond. This proposed

requirement is informed by Rapanos

wherein the plurality rejected the

Federal government’s hydrologic

connection theory in deciding that the

phrase ‘‘the waters of the United States’’

‘‘cannot bear the expansive meaning

that the Corps would give it,’’ id. at 732,

and challenged the notion that ‘‘even

the most insubstantial hydrologic

connection may be held to constitute a

‘significant nexus.’ ’’ Id. at 728. It also

reflects the plurality’s description of a

‘‘ ‘wate[r] of the United States’’’ as ‘‘i.e.,

a relatively permanent body of water

connected to traditional interstate

navigable waters.’’ Id. at 742 (emphasis

added).

Lakes and ponds that are flooded by

an (a)(1)–(5) water in a typical year

would be considered waters of the

United States under this proposal. See

Rapanos, 474 U.S. at 732 (Scalia, J.,

plurality) (recognizing that the term

‘‘the waters’’ within ‘‘the waters of the

United States’’ includes ‘‘the flowing or

moving masses, as of waves or floods,

making up . . . streams or bodies,’’)

(emphasis added) (internal quotations

omitted); id. at 770 (Kennedy, J.,

concurring) (‘‘the term ‘waters’ may

mean ‘flood or inundation’ events that

are impermanent by definition’’)

(emphasis added) (internal citations

omitted). During times of inundation

occurring from a jurisdictional water to

a lake or pond in a typical year, such

lake or pond is indistinguishable from

and inseparably bound up with other

waters of the United States.

Flooding from a water of the United

States to a jurisdictional lake or pond

can occur as a result of seasonal or

permanent flooding, for example, so

long as flood waters connect such lakes

or ponds to other waters of the United

States in a typical year and have as their

source a jurisdictional water. A mere

hydrologic connection between a

nonnavigable, isolated, intrastate lake or

pond and a jurisdictional water,

however, may be insufficient to

establish jurisdiction under the

proposed rule. For instance, a lake or

pond that may be connected to a ‘‘water

of the United States’’ by flooding, on

average, once every 100 years would not

be jurisdictional under this proposal. To

be jurisdictional, a lake or pond that is

otherwise physically separated from a

‘‘water of the United States’’ would

need to be flooded by a jurisdictional

water during a typical year; ecological

connections between physically

separated lakes and ponds and

otherwise jurisdictional waters cannot

be used to assert jurisdiction according

to this proposal. See 547 U.S. at 741–42

(Scalia, J., plurality) (‘‘SWANCC found

such ecological consideration irrelevant

to the question whether physically

isolated waters come within the Corps’

jurisdiction.’’).

The proposed lakes and ponds

category would replace existing

procedures that may depend on case-

specific ‘‘significant nexus’’ analyses of

the relationship between a particular

lake or pond with downstream waters.

The agencies are proposing to eliminate

this case-specific ‘‘significant nexus’’

analysis by providing a clear category of

‘‘waters of the United States’’ that is

easier for members of the public and

regulatory agencies to implement. In

light of the clearer lakes and ponds

category proposed today, the agencies

propose to eliminate the case-specific

significant nexus review through

categorical treatment of certain lakes

and ponds as ‘‘waters of the United

States.’’

This proposed rule identifies a

category of certain lakes and ponds that

due to their contribution of perennial or

intermittent flow to navigable waters

should be federally regulated. Through

this proposed category, the agencies

would also acknowledge the policy

direction from Congress to ‘‘recognize,

preserve, and protect the primary

responsibilities and rights of States to

prevent, reduce, and eliminate pollution

[and] to plan for the development and

use (including restoration, preservation,

and enhancement) of land and water

resources . . . .’’ 33 U.S.C. 1251(b); see

also Rapanos, 547 U.S. at 737 (Scalia, J.,

plurality). The proposed approach to

lakes and ponds is also intended to

avoid ‘‘impairing or in any manner

affecting any right or jurisdiction of the

States with respect to waters (including

boundary waters) of such States.’’ 33

U.S.C. 1370. For example, lakes and

ponds which contribute ephemeral

flow, such as through dry washes and

arroyos, that lack the required perennial

or intermittent flow regime necessary to

satisfy the conditions of jurisdictional

lakes and ponds under this proposed

rule would not be ‘‘waters of the United

States.’’ Those features are, however,

water resources of the States, and

therefore, States have an inherent

interest in regulating such features

pursuant to the powers reserved to the

States under the Constitution. See., e.g.,

North Dakota, 127 F. Supp. 3d at 1059.

States and Tribes may therefore address

such features under their own laws to

the extent they deem appropriate. Lakes

and ponds that contribute flow through

ephemeral features may also constitute

point sources that discharge pollutants

to a ‘‘water of the United States.’’ See

Rapanos, 547 U.S. at 743–44 (Scalia, J.,

plurality). In those instances, authority

to regulate water quality in downstream

waters under the CWA is not lost to

either Federal or State governments.

3. How might the agencies implement

this approach?

Most lakes and ponds are formed

through a variety of events, including

glacial, tectonic, and volcanic activity.

Lakes and ponds can also be man-made

features for industrial and agricultural

uses, power generation, domestic water

supply, or for aesthetic or recreational

purposes. Most lakes and ponds have at

least one natural outflow in the form of

a river or stream, which maintain a

lake’s average level by allowing the

drainage of excess water. Some lakes do

not have a natural outflow and lose

water solely by evaporation or

underground seepage or both.

Individual lakes and ponds range in

size. Ponds are generally smaller in size

than lakes but regional naming

conventions vary. Lakes are also

generally deeper than ponds.

The tools and guidance which are

described in Section III.A can be used

to determine whether a lake or pond

meets the terms of an (a)(1) water and

as such would be jurisdictional under

this proposed rule as an (a)(1) water, as

well as an (a)(5) water. The same tools

discussed in Section III.C can also be

helpful in establishing the presence of a

lake or pond. For example, where an

enclosed body of water is displayed on

a USGS topographic map or in NHD

data it may indicate a lake or pond is

present. USGS maps often include

different symbols to indicate perennial

or intermittent lakes and ponds and

even a different symbol to indicate dry

lakes and ponds, which may be helpful

in determining whether such lakes and

ponds satisfy the proposed definition of

‘‘waters of the United States.’’

Waterbodies such as lake and pond

features are also represented in

NHDWaterbody. The NHD portrays the

spatial geometry and the attributes of

the feature. These water polygons may

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also have NHDFlowline artificial paths

drawn through them to allow the

representation of water flow direction.

Combining this information with

climate and surrounding hydrology

information can yield greater certainty

as to the presence of a lake or pond and

the flow regime the lake or pond

contributes downstream. These tools

may also be helpful in indicating

whether the lake or pond is part of the

‘‘waters of the United States’’ network

because they may identify whether it

contributes perennial or intermittent

flow downstream. For example, the

presence of a ‘‘blue line stream’’ on

USGS topographic or NHD maps which

extends from the lake or pond may

indicate the lake or pond contributes

perennial or intermittent flow, directly

or indirectly through an (a)(2)–(6) water,

to the (a)(1) water in a typical year,

which may indicate that the lake or

pond is jurisdictional. Other reliable

methods that can indicate existence of

a lake or pond and potential

jurisdictional status include gage data,

bathymetry data, elevation data,

spillway height, historic water flow

records, flood predictions, statistical

evidence, and direct observation.

The agencies are proposing that lakes

and ponds that are flooded by a water

identified in paragraphs (a)(1)–(5) in a

typical year would also be waters of the

United States. The agencies propose to

use flood records, precipitation data,

elevation data, aerial photography, and

field observations to help identify when

a lake or pond may be flooded by an

(a)(1)–(5) water in a typical year.

Oxbows may be jurisdictional under

this category.

The information provided by the tools

described above will vary in validity in

different parts of the country, so care

would be taken to evaluate the

information prior to reasonably

concluding a lake or pond is

jurisdictional. Supporting information,

as well as field work, may also be used

to conclude the presence of a

jurisdictional lake or pond.

4. What are specific issues upon which

the agencies are seeking comment?

The agencies welcome comment on

the proposal to establish a distinct

jurisdictional category for lakes and

ponds and whether this provides

additional clarity and regulatory

certainty. In the alternative, the agencies

solicit comment on incorporating

jurisdictional lakes and ponds into

another category, such as tributaries.

The agencies note that there is

considerable uncertainty about defining

the difference between lakes and ponds,

and no current accepted definition of

either term across scientific disciplines

exists. The agencies are soliciting

comment on whether a specific

definition of lakes and ponds should be

provided in the rule language or

whether any such definition is

necessary. For example, the Corps has a

definition of ‘‘lake’’ provided at 33 CFR

323.2, which includes, ‘‘The term lake

means a standing body of open water

that occurs in a natural depression fed

by one or more streams from which a

stream may flow, that occurs due to the

widening or natural blockage or cutoff

of a river or stream, or that occurs in an

isolated natural depression that is not a

part of a surface river or stream. The

term also includes a standing body of

open water created by artificially

blocking or restricting the flow of a

river, stream, or tidal area. . . .’’

Alternatively, other definitions could be

used to define lakes and ponds, such as

the Cowardin classification system

developed by the U.S. Fish and Wildlife

Service which could use the

permanently flooded and semi-

permanently flooded for non-tidal

waters categories. Such definition could

be, ‘‘Lakes and ponds are either semi-

permanently or permanently flooded

during a typical year and may or may

not exhibit hydrophytic vegetation.’’

There may also be other parameters

used to define lakes and ponds, such as

size and depth. For example, in the

1975 regulations, the Corps had

proposed a minimum size requirement

on lakes of five acres to be waters of the

United States. See 40 FR 31321.

However, such size requirement

received many negative comments that

the size was too small or too large or did

not account for seasonal changes in

sizes of lakes, while others commented

on the legality of imposing size

limitations on lakes. See 42 FR 37129.

Also, the agencies recognize that States

and Tribes may have specific, validated

tools they employ to identify lakes or

ponds and are soliciting comment on

those approaches which may be useful

for application in this proposed rule.

The agencies solicit comment on

whether more specific parameters

should be included for the type of

flooding that should be included for

lakes and ponds when flooded by an

(a)(1)–(5) water in a typical year. For

example, the agencies request comment

as to whether to establish a specific

flooding periodicity or magnitude or

frequency. The agencies also solicit

comment on other implementation tools

available to determine the presence of a

contribution of perennial or intermittent

flow from the lake or pond in a typical

year. Additionally, the agencies request

comment on whether less than

intermittent flow from lakes and ponds

to an (a)(1) water in a typical year could

be sufficient to extend jurisdiction to

such lakes and ponds.

G. Wetlands

1. What are the agencies proposing?

The agencies propose a category of

‘‘waters of the United States’’ to include

all adjacent wetlands to: Traditional

navigable waters, including the

territorial seas; tributaries to those

waters; jurisdictional ditches;

jurisdictional lakes and ponds; and

impoundments of otherwise

jurisdictional waters. The agencies

propose to maintain their longstanding

regulatory definition of ‘‘wetlands’’ to

mean ‘‘those areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.’’ The presence

and boundaries of wetlands are

determined based upon an area

satisfying all three of the definition’s

criteria (i.e., hydrology, hydrophytic

vegetation, and hydric soils) under

normal circumstances.

The agencies propose to define the

term ‘‘adjacent wetlands’’ to mean

wetlands that abut or have a direct

hydrologic surface connection to other

‘‘waters of the United States’’ in a

typical year. ‘‘Abut’’ is proposed to

mean when a wetland touches a water

of the United States at either a point or

side. A ‘‘direct hydrologic surface

connection’’ as proposed occurs as a

result of inundation from a

jurisdictional water to a wetland or via

perennial or intermittent flow between

a wetland and a jurisdictional water.

The agencies propose that when

wetlands are physically separated from

jurisdictional waters by upland or by

dikes, barriers, or similar structures and

also lack a direct hydrologic surface

connection to jurisdictional waters,

those wetlands are not adjacent.

‘‘Upland’’ in the proposed rule refers to

any land area above the ordinary high

water mark or high tide line that does

not satisfy all three wetland delineation

factors (i.e., hydrology, hydrophytic

vegetation, and hydric soils) under

normal circumstances, as described in

the Corps’ 1987 Wetland Delineation

Manual. Features that were once

wetlands but have been naturally

transformed or lawfully converted to

upland (e.g., in compliance with a

section 404 permit) would be

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considered upland. A ‘‘typical year’’

means within the normal range of

precipitation over a rolling 30-year

period for a particular geographic area.

For convenience, the agencies propose

to include the existing Corps definitions

for ‘‘ordinary high water mark’’ and

‘‘high tide line’’ from 33 CFR 328.3, as

those terms are used in the proposed

definition of ‘‘upland.’’

Wetlands that have a direct

hydrologic surface connection to a

‘‘water of the United States’’ via

inundation by a jurisdictional water

during a typical year would be adjacent

wetlands under the proposal. Similarly,

a wetland has a direct hydrologic

surface connection to a jurisdictional

water and is an adjacent wetland if the

wetland and jurisdictional water are

connected via perennial or intermittent

flow in a typical year. The perennial or

intermittent flow constituting the direct

hydrologic surface connection may

occur in either direction (i.e.,

jurisdictional water to wetland or

wetland to jurisdictional water).

Perennial or intermittent flow between

a wetland and jurisdictional water may

occur through upland or through a dike,

barrier, or similar structure via a culvert,

tide gate, or other feature. Perennial or

intermittent flow between a wetland

and jurisdictional water may also occur

as a result of a wetland overtopping

upland or overtopping a dike, barrier, or

similar structure and flowing directly

into a jurisdictional water.

2. Why are the agencies proposing this

approach?

The agencies are proposing the

definition of ‘‘adjacent wetlands’’ based

on the core principles and concepts set

forth in the three major Supreme Court

cases addressing the scope of the phrase

‘‘the waters of the United States,’’ as

discussed at length in Section II.E.2. In

summary, adjacent wetlands as

proposed form part of the ‘‘waters of the

United States’’; otherwise they are

isolated from ‘‘waters of the United

States’’ and not jurisdictional. The

agencies’ proposed definition is

consistent with the ordinary meaning of

the term ‘‘waters’’ described in those

cases and is intended to implement the

CWA policy directive of preserving the

ability of the States to regulate land and

waters within their boundaries. The

agencies view the proposed definition

as establishing a clear, predictable

regulatory framework that can be

efficiently implemented in the field.

This proposed definition of ‘‘adjacent

wetlands’’ as wetlands abutting or

having a direct hydrologic surface

connection to other jurisdictional waters

in a typical year rests on several key

factors and considerations. As a

threshold matter, the proposed

definition is informed by the Supreme

Court decisions in Riverside Bayview,

SWANCC, and Rapanos. For example,

the agencies considered the holding in

Riverside Bayview ‘‘that a definition of

‘waters of the United States’

encompassing all wetlands adjacent to

other bodies of water over which the

Corps has jurisdiction is a permissible

interpretation of the Act.’’ 474 U.S. at

135. The proposed definition is

consistent with the holding in Riverside

Bayview and with the Supreme Court’s

subsequent interpretation of Riverside

Bayview and the scope of CWA

jurisdiction over wetlands in Rapanos,

in which both the plurality and

concurring opinions agreed that waters

of the United States encompass

wetlands closely connected to navigable

waters. As discussed in Section II.E.2,

the plurality characterized the scope of

CWA jurisdiction over wetlands as

encompassing wetlands, like those at

issue in Riverside Bayview, with a

‘‘continuous surface connection’’ or a

‘‘continuous physical connection’’ to a

navigable water, Rapanos, 547 U.S. at

742, 751 n.13. Justice Kennedy’s

concurrence recognized 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 concepts of

‘‘abutting’’ and a ‘‘direct hydrologic

surface connection’’ in this proposal are

consistent with the Rapanos plurality’s

continuous surface connection

requirement. Because the concept of

‘‘abutting’’ in this proposal does not

require the existence of a hydrologic

connection between wetlands that

physically touch jurisdictional waters,

this concept is also consistent with

Justice Kennedy’s statement that

‘‘[g]iven the role wetlands play in

pollutant filtering, flood control, and

runoff storage, it may well be the

absence of hydrologic connection (in the

sense of interchange of waters) that

shows the wetlands’ significance for the

aquatic system.’’ Id. at 786. The agencies

acknowledge, however, that non-

abutting wetlands may also lack a

hydrologic connection. Those non-

abutting wetlands would not be

considered adjacent under this proposal

because the agencies believe they do not

implicate the line-drawing concerns

articulated in Riverside Bayview,

SWANCC, and the Rapanos plurality,

and because this proposed definition

will provide clear, understandable

delineation between Federal waters and

state land and water resources.

The limits to this proposed definition,

i.e., the categories of wetlands that the

proposed definition would not

encompass, are consistent with the

principles articulated in the three key

Supreme Court decisions. The inquiry

as to where to draw the line between

jurisdictional and non-jurisdictional

wetlands is laid out in Riverside

Bayview: ‘‘[i]n determining the limits of

its power to regulate discharges under

the Act, the Corps must necessarily

choose some point at which water ends

and land begins .... Where on this

continuum to find the limit of ‘waters’

is far from obvious.’’ 474 U.S. at 132.

While the Court in Riverside Bayview

identified this inquiry as a task for the

Corps and deferred to the Corps’

judgment under Chevron principles, the

Supreme Court has subsequently

recognized outer bounds for the scope of

‘‘waters of the United States.’’

In SWANCC, the Supreme Court held

that the agencies do not have authority

to regulate nonnavigable, isolated,

intrastate waters that lack a sufficient

connection to a traditional navigable

water, as regulation of those waters

would raise constitutional questions

regarding the scope of CWA authority.

531 U.S. at 172. The plurality opinion

in Rapanos elaborated further on the

wetlands that it did not consider

jurisdictional under the Act,

specifically, wetlands with only an

‘‘intermittent, physically remote

hydrologic connection to ‘waters of the

United States,’ ’’ as those ‘‘do not

implicate the boundary-drawing

problem of Riverside Bayview.’’ 531 U.S.

at 742. The proposed definition also

reflects Justice Kennedy’s concurring

opinion in Rapanos that in some

instances, as exemplified by the ‘‘ponds

and mudflats that were isolated in the

sense of being unconnected to other

waters covered by the Act,’’ ‘‘there may

be little or no connection’’ ‘‘between a

nonnavigable water or wetland and a

navigable water.’’ Id. at 766–67. The

proposal is consistent with SWANCC

and the Rapanos plurality opinion in

that it would exclude isolated wetlands

with only physically remote hydrologic

connections to jurisdictional waters.

Under the proposed definition,

ecological connections alone would not

provide a basis for including physically

isolated wetlands within the phrase

‘‘the waters of the United States.’’ See,

e.g., id. at 741–42 (Scalia, J., plurality)

(‘‘SWANCC rejected the notion that the

ecological considerations upon which

the Corps relied in Riverside Bayview—

and upon which the dissent repeatedly

relies today . . .—provided an

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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.’’ (original emphasis)).

In assessing the appropriate ‘‘limits of

‘waters’ ’’ on the continuum between

water and land, the proposed definition

balances the inclusion of wetlands that

have a direct hydrologic surface

connection to otherwise jurisdictional

waters during a typical year with the

fact that ‘‘a mere hydrologic connection

should not suffice in all cases.’’ Id. at

784 (Kennedy, J., concurring). For

example, the Rapanos plurality

questioned the Corps’ broad

interpretation of its regulatory authority

to ‘‘conclude that wetlands are

‘adjacent’ to covered waters if they are

hydrologically connected through

directional sheet flow during storm

events or if they lie within the 100-year

floodplain of a body of water.’’ Id. at 728

(internal citations and quotations

omitted). Similarly, Justice Kennedy

believed that ‘‘possible flooding’’ was an

unduly speculative basis for a

jurisdictional connection between

wetlands and other jurisdictional waters

as applied to the facts of Carabell. 547

U.S. at 786. In other words, wetlands

separated from otherwise jurisdictional

waters by upland or by dikes, barriers,

or other similar structures are not

adjacent simply because a surface water

connection between the two is possible

or if, for example, wetlands ‘‘are

connected to the navigable water by

flooding, on average, once every 100

years’’ or by directional sheet flow

during an individual storm event. Id. In

order to satisfy this proposed ‘‘adjacent

wetlands’’ definition, a wetland

separated from other waters of the

United States by upland or by dikes,

barriers, or other similar structures

would have to have a direct hydrologic

surface connection to an otherwise

jurisdictional water in a typical year.

As proposed, a direct hydrologic

surface connection occurs as a result of

inundation from a jurisdictional water

to a wetland or via perennial or

intermittent flow between a wetland

and a jurisdictional water. Inundation

can occur as a result of seasonal or

permanent flooding, for example, so

long as inundation occurs in a typical

year and has as its source a

jurisdictional water. A direct hydrologic

surface connection that occurs as a

result of perennial or intermittent flow

between a wetland and a jurisdictional

water must satisfy the definitions of

‘‘perennial’’ or ‘‘intermittent’’ in this

proposal and can occur either from a

jurisdictional water to a wetland or from

a wetland to a jurisdictional water.

Ephemeral flow or ephemeral pooling

occurring only in direct response to

precipitation and connecting a wetland

to a jurisdictional water does not

constitute a direct hydrologic surface

connection according to the proposal.

Under current practice and in this

proposal, wetlands adjacent to

traditional navigable waters would be

categorically jurisdictional. The

agencies propose to adopt this position

based on the rationale that an adjacent

wetland is ‘‘inseparably bound up with’’

the jurisdictional water; if the water is

jurisdictional, so is the adjacent

wetland. Riverside Bayview, 474 U.S. at

134; Rapanos, 547 U.S. at 740 (plurality

quoting Riverside Bayview) (‘‘ ‘Faced

with such a problem of defining the

bounds of its regulatory authority,’ we

held, the agency could reasonably

conclude that a wetland that ‘adjoin[ed]’

waters of the United States is itself a

part of those waters.’’) (internal citations

omitted). This position is consistent

with Riverside Bayview, about which

Justice Kennedy noted in Rapanos that

‘‘the assertion of jurisdiction for those

wetlands is sustainable under the Act by

showing adjacency alone.’’ 547 U.S. at

780.

In addition, this proposed definition

would end the current practice of

conducting case-specific significant

nexus evaluations for non-abutting

wetlands to relatively permanent and

non-relatively permanent waters. Under

the agencies’ Rapanos Guidance, this

evaluation requires individual analyses

of the relationship between a particular

wetland with traditional navigable

waters. Importantly, Justice Kennedy’s

‘‘significant nexus’’ test for wetlands

adjacent to nonnavigable tributaries was

only needed ‘‘absent more specific

regulations,’’ id. at 782, because ‘‘the

breadth of [the existing tributary]

standard’’ . . . ‘‘seems to leave wide

room for regulations of drains, ditches,

and streams remote from any navigable-

in-fact water and carrying only minor

water volumes towards it’’ and thus

‘‘precludes its adoption as a

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.’’ Id.

at 781. In light of the ‘‘more specific

[tributary] regulations’’ proposed today,

the agencies propose to eliminate the

case-specific significant nexus analysis

through categorical treatment of all

adjacent wetlands, as defined by this

proposal, as waters of the United States.

The agencies recognize that this is a

new position and modification of prior

agency positions on Justice Kennedy’s

concurring opinion in Rapanos. The

agencies also recognize that several

courts have adopted the significant

nexus standard as a test for jurisdiction

for both adjacent wetlands and

tributaries. The agencies believe,

however, that this proposal provides

better clarity for the regulators and the

regulated community alike while

adhering to the basic principles

articulated in all three Supreme Court

cases on point.

The proposed categorical inclusion of

adjacent wetlands beyond the wetlands

that ‘‘actually abut[ ]’’ navigable-in-fact

waters addressed in Riverside Bayview,

474 U.S. at 135, the agencies recognize,

is dependent on the relationship

between the other categories of ‘‘waters

of the United States’’ and waters more

traditionally understood as navigable.

The agencies believe that the proposed

definition of ‘‘tributary,’’ as described in

Section III.D, would appropriately limit

federal jurisdiction to those rivers and

streams that due to their relatively

permanent flow regime and contribution

of flow to navigable waters 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.’’

Rapanos, 547 U.S. at 781 (Kennedy, J.,

concurring). Because the tributary

definition as proposed today ‘‘rests

upon a reasonable inference of

ecological interconnection’’ with

navigable waters, and adjacent wetlands

as proposed must be ‘‘directly abutting’’

or have a direct hydrologic surface

connection to tributaries and are thus

‘‘inseparably bound up with’’

tributaries, the assertion of jurisdiction

over wetlands adjacent to tributaries ‘‘is

sustainable under the Act by showing

adjacency alone.’’ Id. at 780 (citing

Riverside Bayview, 474 U.S. at 134). The

proposed ‘‘tributary’’ definition—which

addresses the ‘‘breadth of [the]

standard’’ about which Justice Kennedy

was concerned in Rapanos—would

provide support for the Court’s

conclusion in Riverside Bayview ‘‘that a

definition of ‘waters of the United

States’ encompassing all wetlands

adjacent to other bodies of water over

which the Corps has jurisdiction is a

permissible interpretation of the Act.’’

Id. at 135. To be clear, there is no

requirement under this proposal to

prove the existence of nor the

significance of ‘‘ecological

interconnection’’ between an adjacent

wetland and navigable waters. If a

wetland meets the proposed ‘‘adjacent

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wetland’’ definition, it would be

jurisdictional.

The proposed definition of ‘‘adjacent

wetlands,’’ which includes the term

‘‘abut,’’ also captures the common

understanding of that term, meaning

‘‘touching.’’ See Webster’s II, New

Riverside University Dictionary (1994)

(defining ‘‘abut’’ to mean ‘‘to touch at

one end or side of something’’). This

definition is also consistent with the

common understanding of the term

‘‘adjacent,’’ which means ‘‘next to,’’

‘‘adjoining,’’ ‘‘to lie near,’’ or ‘‘close to,’’

see id., and is consistent with the

Rapanos plurality’s ‘‘physical-

connection requirement,’’ 547 U.S. at

751 n.13.

By retaining the term ‘‘adjacent’’ in

the proposed definition from the

longstanding regulations, the agencies

would continue to use terminology that

is familiar to the agencies and the

regulated public. But the agencies are

proposing not to include the terms

‘‘bordering, contiguous, or neighboring’’

from the 1986 regulations, as the

agencies consider the term ‘‘abut’’ and

the concept of a ‘‘direct hydrologic

surface connection’’ as reducing the

potential confusion associated with

using three seemingly similar terms in

the same definition. See, e.g., U.S.

General Accounting Office, Waters and

Wetlands, GAO–04–297, at 10 (Feb.

2004) (‘‘The regulations specify that

adjacent means ‘bordering, contiguous,

or neighboring’.... This definition of

adjacency leaves some degree of

interpretation to the Corps districts’’);

see also id. at 3 (‘‘Districts apply

different approaches to identify

wetlands that are adjacent to other

waters of the United States and are

subject to federal regulation.’’).

The term ‘‘abut’’ in the proposed

definition, meaning ‘‘to touch at least at

one point or side of’’ a jurisdictional

water, would provide members of the

regulated community with fair notice as

to whether wetlands are subject to CWA

jurisdiction. The agencies consider

wetlands that abut or have a direct

hydrologic surface connection to

otherwise jurisdictional waters in a

typical year to better meet the ordinary

meaning of the term ‘‘waters’’ more

clearly than wetlands separated from

such waters by dry land and lacking a

direct hydrologic surface connection or

located a specified distance from those

waters. See, e.g., 547 U.S. at 740 quoting

Riverside Bayview, 474 U.S. at 132, 135,

and n. 9 (‘‘[W]e held, the agency could

reasonably conclude that a wetland that

‘adjoin[ed]’ waters of the United States

is itself a part of those waters.’’).

This proposed categorical treatment of

adjacent wetlands would also effectuate

the clear policy direction from Congress

to ‘‘recognize, preserve, and protect the

primary responsibilities and rights of

States to prevent, reduce, and eliminate

pollution [and] to plan for the

development and use (including

restoration, preservation, and

enhancement) of land and water

resources . . . .’’ 33 U.S.C. 1251(b); see

also Rapanos, 547 U.S. at 737 (Scalia, J.,

plurality). The agencies believe that this

approach avoids ‘‘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. Wetlands

that do not abut or have a direct

hydrologic surface connection to other

waters of the United States in a typical

year are not inseparably bound up with

the waters of the United States and are

more appropriately regulated as land

and water resources of the States and

Tribes pursuant to their own authorities.

The agencies also note that the

proposed definition of ‘‘adjacent

wetlands’’ and the categorical treatment

of jurisdiction over wetlands adjacent to

tributaries as proposed is informed by,

though not dictated by, science. For

example, the EPA’s Science Advisory

Board noted when reviewing the Draft

Connectivity Report in 2014, ‘‘[s]patial

proximity is one important determinant

of the magnitude, frequency and

duration of connections between

wetlands and streams that will

ultimately influence the fluxes of water,

materials and biota between wetlands

and downstream waters.’’ SAB Review

at 60. ‘‘Wetlands that are situated

alongside rivers and their tributaries are

likely to be connected to those waters

through the exchange of water, biota

and chemicals. As the distance between

a wetland and a flowing water system

increases, these connections become

less obvious.’’ Id. at 55 (emphasis

added). The Connectivity Report also

recognizes that ‘‘areas that are closer to

rivers and streams have a higher

probability of being connected than

areas farther away.’’ Connectivity Report

at ES–4. As discussed above, however,

the line between Federal and State

waters is a legal distinction, not a

scientific one, that reflects the overall

framework and construct of the CWA.

This proposed definition would draw

the legal limit of federal jurisdiction as

those wetlands that abut or have a direct

hydrologic surface connection to

otherwise jurisdictional waters,

including tributaries as defined in this

proposal, in a clear and implementable

way that adheres to established legal

principles while being informed by the

policy choices and expertise of the

executive branch agencies charged with

administering the CWA.

3. How might the agencies implement

this approach?

Under this proposal, wetlands would

be considered indistinguishable from

other jurisdictional waters, and

therefore adjacent, when they abut such

waters, even in the absence of a surface

hydrological connection occurring

between the two. Alternatively, when

wetlands are not abutting jurisdictional

waters, for example where wetlands are

separated from jurisdictional by upland

or dikes, barriers, or other similar

structures, those wetlands would not be

adjacent wetlands unless they have a

direct hydrologic surface connection to

a jurisdictional water during a typical

year. If a wetland satisfies this proposed

definition it would be considered a

‘‘water of the United States’’ without

need for further case-specific significant

nexus analysis. This categorical

inclusion, however, does not alleviate

the need for site-specific verification of

jurisdiction, such as confirmation of

wetland characteristics, whether the

wetlands abut another jurisdictional

water and other issues typically

addressed during a jurisdictional

determination process.

The proposed definition of ‘‘adjacent

wetlands’’ would not require surface

water exchange between wetlands and

the jurisdictional waters they abut to

create the jurisdictional link, consistent

with case law and for ease of

implementation. See Riverside Bayview,

474 U.S. at 129 (‘‘The plain language of

the [Corps’ 1977] regulation refutes the

Court of Appeals’ conclusion that

inundation or ‘frequent flooding’ by the

adjacent body of water is a sine qua non

of a wetland under the regulation.’’).

Rather, as proposed, a wetland that

directly touches an otherwise

jurisdictional water at a point or side is

‘‘adjacent’’ regardless of where ‘‘the

moisture creating the wetlands . . .

find[s] it source.’’ Rapanos, 547 U.S. at

772 (Kennedy, J., concurring), citing

Riverside Bayview, 474 U.S. at 135.

In addition to wetlands that actually

abut other jurisdictional waters, the

proposed definition considers wetlands

to be ‘‘adjacent’’ when they have a

direct hydrologic surface connection to

jurisdictional waters during a typical

year. See Rapanos, 474 U.S. at 732

(Scalia, J., plurality) (recognizing that

the term ‘‘the waters’’ within ‘‘the

waters of the United States’’ includes

‘‘the flowing or moving masses, as of

waves or floods, making up . . . streams

or bodies’’) (emphasis added) (internal

quotations omitted); id. at 770

(Kennedy, J., concurring) (‘‘the term

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‘waters’ may mean ‘flood or inundation’

events that are impermanent by

definition’’) (emphasis added) (internal

citations omitted). During times of

inundation occurring from a

jurisdictional water to a wetland in a

typical year, ‘‘adjacent wetlands’’ are

indistinguishable from and inseparably

bound up with other waters of the

United States. In addition to regular

flooding, such direct hydrologic surface

connections during a typical year may

be the result of perennial or intermittent

flow between a wetland and a

jurisdictional water. Surface water from

a wetland that overtops a berm and

connects the wetland to a jurisdictional

water or connections from a wetland to

a jurisdictional water through upland or

through a barrier as mediated by a

culvert, tide gate, or similar structure

would constitute direct hydrologic

surface connections so long as such

connections are perennial or

intermittent as defined in this proposal

and occur in a typical year. As

proposed, a direct hydrologic surface

connection may occur as either confined

or unconfined perennial or intermittent

flow. Wetlands with a direct hydrologic

surface connection to other

jurisdictional waters are

indistinguishable from and inseparably

bound up with those waters of the

United States and are adjacent wetlands

under this proposal. Ephemeral

connections as well as subsurface

connections between wetlands and

jurisdictional waters do not constitute a

direct hydrologic surface connection

according to this proposal.

A mere hydrologic connection

between a nonnavigable, isolated,

intrastate wetland and a jurisdictional

water, however, may be insufficient to

establish adjacency under the proposed

rule. For instance, the fact that a

wetland may be connected to the

navigable water by flooding, on average,

once every 100 years does not satisfy the

proposed ‘‘adjacent wetlands’’

definition. To be adjacent, a wetland

that is otherwise physically separated

from a ‘‘water of the United States’’

would need to have a direct hydrologic

surface connection to a jurisdictional

water during a typical year; ecological

connections between physically

separated wetlands and otherwise

jurisdictional waters cannot be used to

determine adjacency according to this

proposal. See 547 U.S. at 741–42

(Scalia, J., plurality) (‘‘SWANCC found

such ecological consideration irrelevant

to the question whether physically

isolated waters come within the Corps’

jurisdiction.’’). The agencies may

determine that a direct hydrologic

surface connection exists during a

typical year using, for example, USGS

stream gage records, channel-forming

discharge recurrence interval, and/or

wetland surface water level records.

Physically remote isolated wetlands,

however, would not be adjacent

wetlands under this proposal.

In addition, a jurisdictional wetland

divided by an artificial feature, such as

a road, would be treated as a single

wetland and remain jurisdictional

unless there is no direct hydrologic

surface connection during a typical year

between the wetlands present on either

side of that feature. Without such direct

hydrologic surface connection, only that

wetland (i.e., that portion of the original

wetland) which abuts or has a direct

hydrologic surface connection to

another ‘‘water of the United States’’

would be jurisdictional as adjacent,

even if there is a subsurface hydrologic

connection between the wetlands

present on either side of the road. If

there is a direct hydrologic surface

connection between the wetlands on

either side of the road during a typical

year, such as where the road has a low-

flow crossing or another direct

hydrologic surface connection provided

by a conduit, such as a culvert, as well

as where there is a direct hydrologic

surface connection via overtopping of

the road, the wetlands on either side of

the road may be treated as one wetland

and would be jurisdictional as adjacent

in its entirety.

For purposes of adjacency under the

proposed rule, the entire wetland would

be considered adjacent if any portion of

the wetland abuts or has a direct

hydrologic surface connection to

another ‘‘water of the United States,’’

regardless of the size and extent of the

wetland. For example, if a portion of

one side of a wetland physically touches

a tributary, then the wetland would be

jurisdictional in its entirety. Similarly, if

any part of a wetland has a direct

hydrologic surface connection to a

jurisdictional water, the entire wetland

would be considered adjacent.

Interpreting the entire wetland to be

adjacent if any portion of it satisfies the

proposed ‘‘adjacent wetlands’’

definition is consistent with

longstanding practice. The agencies

have found this approach to be simpler

and easier to implement in the field

than establishing a means of bifurcating

wetlands. An adjacent wetland that

changes classification (e.g., as defined in

Cowardin et al. 1979) due to landscape

position, hydrologic inundation, or

other factors, such as changing from salt

marsh to brackish to freshwater

wetland, would remain jurisdictional as

one adjacent wetland.

The term ‘‘adjacent wetlands’’ as

proposed includes reference to

‘‘upland.’’ The term upland has been

used in program implementation for at

least a decade following the agencies’

Rapanos Guidance and thus is familiar

to the regulated community and field

staff. The term ‘‘upland’’ is defined in

this proposal as any land that does not

meet the three-part test (i.e., hydrology,

hydrophytic vegetation, and hydric

soils) for wetland under normal

circumstances, and as the ordinary

meaning of the term clearly indicates,

would not include other ‘‘waters of the

United States.’’

Wetlands separated from other

‘‘waters of the United States’’ by upland

or by dikes, barriers, or similar

structures would not be adjacent and

would not be jurisdictional wetlands

under the proposed rule, unless there is

a direct hydrologic surface connection

between the wetland and those waters

through or over such structures during

a typical year. This is because upland or

dikes, barriers, or similar structures

typically block most surface water flow.

However, if there is a direct hydrologic

surface connection during a typical year

between the wetland and other ‘‘waters

of the United States’’ through the dike,

barrier, or similar structure, such as

through a culvert or tide gate, the

wetland would remain adjacent under

this proposed rule. A direct hydrologic

surface connection can also result from

water in the wetland overtopping a

berm or barrier to connect the wetland

via perennial or intermittent flow to a

jurisdictional water in a typical year.

Adjacent wetlands under this

proposal would include wetlands with

alternating hydroperiods and seasonal

wetlands with vegetation shifts so long

as the delineated boundary of the

wetland abuts a jurisdictional water.

The delineated boundary of a seasonal

wetland remains constant, even though

all three delineation factors may not be

apparent year-round, as is current

practice. This proposed approach

acknowledges seasonal variation in

visible wetland characteristics as well as

the variation in hydrology and climatic

conditions across the country. For

example, wetlands with alternating

hydroperiods that abut another ‘‘water

of the United States’’ in the arid West

may only have hydrology present for

three months while those wetlands in

the southeast may have hydrology

present for nine months. Wetland

hydrology indicators involving direct

observation of surface water or saturated

soils often are present only during the

normal wet portion of the growing

season and may be absent during the

dry season. Also, seasonal wetlands

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with vegetation shifts may display

hydrophytic vegetation abutting another

‘‘water of the United States’’ except

during the dry season. Certain wetland

indicators may not be present year-

round in a typical year, such as

indicators of hydrophytic vegetation,

hydric soil, or wetland hydrology

periodically due to normal seasonal or

annual variability.

Where wetlands in a complex of

wetlands have a continuous physical

surface connection to one another such

that upland boundaries or dikes,

barriers, or other structures cannot be

drawn to distinguish them as physically

separated, the agencies would evaluate

these wetlands as a single wetland

under the proposed rule. If any portion

of these physically interconnected

wetlands is adjacent to another ‘‘water

of the United States,’’ the wetland

would be considered adjacent for

purposes of this proposed rule.

Given the focus of the proposed

adjacent wetlands definition based on

the ordinary meaning of the term

‘‘waters,’’ common principles from case

law, and the limitations on federal

authority embodied in section 101(b) of

the Act, this proposed definition does

not include subsurface hydrologic

connectivity as a basis for determining

adjacency. The agencies are concerned

that the use of shallow subsurface

connection could encroach on State and

tribal authority over land and water

resources and could be confusing and

difficult to implement, including in

determining whether a subsurface

connection exists and to what extent.

The categorical inclusion of all wetlands

that abut other ‘‘waters of the United

States’’ and all wetlands with a direct

hydrologic surface connection to other

jurisdictional waters will invariably

include some wetlands that also connect

to those waters through shallow

subsurface flow. Physically remote

wetlands and wetlands lacking a direct

hydrologic surface connection would be

reserved to regulation by States and

Tribes as land and water resources of

those States and Tribes.

4. What are the specific issues upon

which the agencies are seeking

comment?

While the public may comment on all

aspects of the agencies’ proposed rule,

the agencies have proposed a number of

ways to try to address and clarify

jurisdiction over wetlands as described

above and are seeking comment. As a

threshold matter, the agencies solicit

comment on their interpretations of

Riverside Bayview, SWANCC, and the

Rapanos opinions, including

specifically the proposal to provide

regulatory certainty through categorical

treatment of adjacent wetlands rather

than on the case-by-case application of

Justice Kennedy’s significant nexus test.

While the agencies are not proposing

to change the longstanding regulatory

definition of ‘‘wetlands,’’ they request

comment on whether including in the

regulatory text that areas must satisfy all

three wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation, and

hydric soils) under normal

circumstances to qualify as wetlands

would provide additional clarity. The

agencies also seek comment on whether

there are terms or phrases within the

existing wetlands definition that require

clarification (e.g., ‘‘under normal

circumstances’’), and if so how such

terms might be defined and if

clarification should be provided, for

example, via regulatory text or future

agency guidance.

The agencies are soliciting comment

on other potential interpretations of

adjacency, such as including a distance

limit to establish the boundaries

between Federal and State waters,

which several pre-proposal commenters

recommended. For example, some

commenters have suggested using

distance from another jurisdictional

water as the basis for asserting

jurisdiction over wetlands, even if those

wetlands do not abut or have a direct

hydrologic surface connection to such

waters in a typical year. Others have

suggested establishing a jurisdictional

cut-off in a contiguous wetland for

administrative purposes rather than

extending jurisdiction to the outer limits

of the wetland where all three wetland

characteristics are no longer satisfied.

The agencies solicit comment on these

alternate suggestions.

The agencies are also soliciting

comment on whether the definition of

‘‘adjacent wetlands’’ should not include

reference to dikes, barriers, and similar

structures and instead those terms

should be included in the definition of

‘‘upland.’’ The definition of ‘‘upland’’

would then mean, ‘‘any land area,

including dikes, barriers, or similar

structures, that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(c)(15) of this section, and does not lie

below the ordinary high water mark or

the high tide line of a water identified

in paragraphs (a)(1)–(6) of this section.’’

Upland would include both natural and

artificial land areas meeting the

definition.

The agencies are also soliciting

comment on an alternate approach,

whereby wetlands that are separated

from another jurisdictional water by

upland or a dike, barrier or other similar

structure would not be jurisdictional

even if they have a direct hydrologic

surface connection in a typical year to

an otherwise jurisdictional water.

Unlike the proposed approach, this

alternative would not allow for seasonal

overtopping, for example, to provide for

a direct hydrologic surface connection

during a typical year, but wetlands

would be jurisdictional if the direct

hydrologic surface connection is

through the upland or structure (e.g.,

through a culvert). The agencies solicit

comment on whether this approach is

more consistent with the considerations

articulated above than the approach in

the proposed definition.

The agencies note that identifying

remotely whether wetlands abut a

jurisdictional water can be challenging,

especially with 2–D aerial imagery and

the resolution of remote tools. The

agencies are soliciting comment on

which indicators can be used to

determine whether a wetland abuts a

jurisdictional water, and whether

surface hydrology indicators or remote

tools exist that may be helpful. The

agencies believe that it is also important

to consider weather and climatic

conditions, i.e., review recent

precipitation and climate records, to

ensure adjacency is not being assessed

during a period of drought or after a

major precipitation or infrequent flood

event. These climatic assessments could

employ the same tools used to evaluate

whether it is a ‘‘typical year’’ for

purposes of determining whether a

tributary is jurisdictional.

The agencies seek comment on

whether it is appropriate to describe a

‘‘direct hydrologic surface connection’’

as occurring due to inundation from an

(a)(1)–(5) water or via perennial or

intermittent flow between a wetland

and an (a)(1)–(5) water in a typical year.

Additionally, the agencies request

comment on whether other types of

hydrologic surface connections between

wetlands and jurisdictional waters

could constitute a ‘‘direct hydrologic

surface connection’’ or if and under

what circumstances subsurface water

connections between wetlands and

jurisdictional waters could be used to

determine adjacency.

The agencies are also soliciting

comment on other tools that may be

helpful in implementation of the

proposed adjacent wetlands category.

For example, the agencies seek

comment as to whether tools such as

NRCS Soil Surveys (Flooding Frequency

Classes), tidal gauge data, and site-

specific modeling (e.g., Hydrologic

Engineering Centers River System

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Analysis System or HEC–RAS), as well

as historical evidence, such as

photographs, prior delineations,

topographic maps, and existing site

characteristics, could be helpful in

implementation.

H. Waters and Features That Are Not

Waters of the United States

1. What are the agencies proposing?

In paragraph (b) of the proposal, the

agencies propose eleven exclusions

from the definition of ‘‘waters of the

United States.’’ Specifically, under this

proposal, any water not enumerated in

paragraphs (a)(1) through (6) would not

be a water of the United States. The

proposed rule would exclude

groundwater, including groundwater

drained through subsurface drainage

systems. This proposed rule would

exclude ephemeral surface features and

diffuse stormwater run-off such as

directional sheet flow over upland. This

proposal would exclude all ditches from

the definition of ‘‘waters of the United

States’’ except those ditches identified

in paragraph (a)(3) of the proposed rule.

Jurisdictional ditches identified in

paragraph (a)(3) include: (1) Ditches that

satisfy any of the conditions identified

in paragraph (a)(1); (2) ditches

constructed in a tributary as long as

those ditches also satisfy the conditions

of the tributary definition; and (3)

ditches constructed in an adjacent

wetland as long as those ditches also

satisfy the conditions of the tributary

definition. See the Section III.E for

further discussion on the types of

ditches which would be considered

‘‘waters of the United States’’ under this

proposed rule. All other ditches are

proposed to be excluded.

Prior converted cropland has been

excluded from this definition since 1993

and would continue to be excluded. The

agencies include in the proposed rule a

definition of ‘‘prior converted cropland’’

and an explanation of when a prior

converted cropland designation would

no longer be applicable for purposes of

the CWA. The agencies also propose to

exclude artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease. In addition, the

agencies propose to exclude artificial

lakes and ponds constructed in upland,

such as water storage reservoirs, farm

and stock watering ponds, settling

basins, and log cleaning ponds, as long

as they are not subject to jurisdiction

under either paragraph (a)(4) or (a)(5) of

the proposed rule. The proposed rule

would also exclude water-filled

depressions created in upland

incidental to mining or construction

activity, and pits excavated in upland

for the purpose of obtaining fill, sand,

or gravel. The agencies also propose to

exclude stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate, or store

stormwater run-off. Also proposed to be

excluded are wastewater recycling

structures constructed in upland, such

as detention, retention and infiltration

basins and ponds, and groundwater

recharge basins. Waste treatment

systems have been excluded from this

definition since 1979, and they would

continue to be excluded under this

proposal; however, waste treatment

systems are being defined for the first

time in this proposed rule under

paragraph (c). A waste treatment system

would include all components,

including lagoons and treatment ponds

(such as settling or cooling ponds),

designed to convey or retain,

concentrate, settle, reduce, or remove

pollutants, either actively or passively,

from wastewater prior to discharge (or

eliminating any such discharge). A

waste treatment system requires a

section 402 permit if it discharges into

a water of the United States.

2. Why are the agencies proposing this

approach?

These proposed exclusions generally

reflect the agencies’ current practice,

and their inclusion in the proposed rule

would further the agencies’ goal of

providing greater clarity over which

waters are and are not regulated under

the CWA. Just as the proposed

categorical assertions of jurisdiction

over tributaries and adjacent wetlands

would simplify the jurisdiction issue,

the categorical exclusions would

likewise simplify the process, and they

reflect the agencies’ proposed

determinations of the lines of

jurisdiction based on the case law and

the agencies’ long-standing practice and

technical judgment that certain waters

and features are not subject to the CWA.

The plurality opinion in Rapanos

noted that there were certain features

that were not primarily the focus of the

CWA, such as channels that periodically

provide drainage for rainfall. See 547

U.S. at 734. During outreach for this

proposed rule, many States, regional

groups, and national associations

requested ‘‘distinct,’’ ‘‘specific,’’ and

‘‘clear’’ exclusions from the definition of

‘‘waters of the United States.’’ In this

proposed rule, the agencies propose to

thus draw lines and articulate that

certain waters and features would not be

subject to the jurisdiction of the CWA,

consistent with the agencies’ proposed

interpretation of this statutory term.

Importantly, the agencies are

proposing that all waters and features

identified in paragraph (b) as excluded

would not be ‘‘waters of the United

States.’’ As stated in paragraph (b)(1) of

the proposed rule, waters or water

features not enumerated in paragraphs

(a)(1) through (6) would not be a water

of the United States. The agencies are

proposing to take this approach to avoid

suggesting that but for an applicable

exclusion, such features could be

jurisdictional. This proposed approach

comprehensively excludes all waters

and features the agencies do not intend

to include as ‘‘waters of the United

States.’’ Different features are called

different names in different parts of the

country, so this approach is intended to

also eliminate the risk of confusion.

In proposed paragraph (b)(2), the

agencies would exclude groundwater,

including groundwater drained through

subsurface drainage systems. The

agencies have never interpreted ‘‘waters

of the United States’’ to include

groundwater and would continue that

practice through this proposed rule by

explicitly excluding groundwater.

In proposed paragraph (b)(3), the

agencies would exclude ephemeral

features and diffuse stormwater run-off,

including directional sheet flow over

upland. Such features would not be

jurisdictional under the proposed terms

of paragraph (a) or the proposed

definitions in paragraph (c). They would

be specifically excluded in the proposed

rule to avoid confusion. This proposed

exclusion would further highlight and

clarify that such features are not

tributaries under the proposed rule.

The proposed ditch exclusion in

paragraph (b)(4) is intended to be clearer

for the regulated public to identify and

more straightforward for agency staff to

implement than current practice. The

agencies have proposed a clear

statement that all types of ditches would

be excluded except for three instances

(see paragraph (a)(3) and the Section

III.E for further information on ditches).

First, ditches that are (a)(1) waters

would be ‘‘waters of the United States.’’

Second, ditches constructed in a

tributary and that continue to satisfy the

conditions of the tributary definition

after alteration would be ‘‘waters of the

United States.’’ And third, ditches

constructed in an adjacent wetland that

satisfy the conditions of the tributary

definition would be ‘‘waters of the

United States.’’ Many States, regional

groups and national associations that

commented during the Federalism

consultation and during the agencies’

general outreach efforts noted that the

definition of ‘‘waters of the United

States’’ should exclude ditches. This

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approach reasonably balances the

exclusion with the need to preserve

jurisdiction over tributaries and

adjacent wetlands as defined in this

proposal. With this proposed approach,

the agencies seek to address the kinds

of ditches of concern to many

stakeholders.

The definition of ‘‘waters of the

United States’’ would continue to

exclude prior converted cropland in this

proposed rule. The agencies are

proposing to move this exclusion to

paragraph (b)(5), add a definition of

‘‘prior converted cropland’’ in

paragraph (c)(8), and clarify that the

prior converted cropland exclusion

would no longer be applicable when the

cropland is abandoned and the land has

reverted to wetlands, as that term is

defined in paragraph (c)(15). Under this

proposed rule, prior converted cropland

is considered abandoned if it is not used

for, or in support of, agricultural

purposes at least once in the

immediately preceding five years.

Agricultural purposes include land use

that makes the production of an

agricultural product possible, including

but not limited to grazing and haying.

This proposed rule would also clarify

that cropland that is left idle or fallow

for conservation or agricultural

purposes for any period of time remains

in agricultural use, and therefore

maintains the prior converted cropland

exclusion. The agencies believe that this

clarification is necessary to ensure that

cropland enrolled in long-term and

other NRCS conservation programs

administered by the United States or by

State and local agencies that prevents

erosion or other natural resource

degradation does not lose its prior

converted cropland designation as a

result of implementing conservation

practices. The five-year timeframe for

maintaining agricultural purposes is

consistent with the 1993 preamble. 58

FR 45033. It is also consistent with the

five-year timeframe regarding validity of

a jurisdictional determination. See 2005

Corps Regulatory Guidance Letter (RGL)

05–02. These proposed revisions are

intended to clarify the scope and

application of the prior converted

cropland exclusion and reaffirm key

principles from the 1993 preamble. 58

FR 45033.

In 1993, the agencies categorically

excluded prior converted cropland from

the definition of ‘‘waters of the United

States.’’ The 1993 preamble defined

prior converted cropland as ‘‘areas that,

prior to December 23, 1985, were

drained or otherwise manipulated for

the purpose, or having the effect, of

making production of a commodity crop

possible [and that are] inundated for no

more than 14 consecutive days during

the growing season.’’ 58 FR 45031. As

explained in detail in the 1993

preamble, the agencies’ objective is to

protect the nation’s waters, including

the navigable waters, and due to the

degraded and altered nature of prior

converted cropland, the agencies

determined that such lands should not

be treated as jurisdictional wetlands for

purposes of the CWA. 58 FR 45032. The

1993 preamble also set out a mechanism

to ‘‘recapture’’ prior converted cropland

into the section 404 program when the

land has been abandoned and wetland

features return. 58 FR 45034. This

approach is consistent with the

principles in the 1990 Corps RGL 90–7.

Although included in the 1993

preamble and RGL 90–7, these

principles have not been incorporated

into the text of any promulgated rule.

This rulemaking therefore represents the

first time the agencies are proposing

regulatory language to clarify the

meaning of ‘‘prior converted cropland,’’

the application of the exclusion, and a

recapture mechanism based on

abandonment and reversion to

wetlands.

Historically, the agencies have

attempted to create consistency between

the CWA and the Swampbuster program

for prior converted cropland. The

agencies continue to believe that

consistency across these programs is

important for the regulated community

(see 58 FR 45033), and therefore

propose to continue excluding prior

converted cropland from the definition

of waters of the United States. By

incorporating the abandonment

principles from the 1993 preamble, this

proposal remains consistent with the

concepts underlying the Swampbuster

program but differs in implementation

from certain aspects of USDA’s current

program. Incorporating the

abandonment principle, as opposed to a

pure ‘‘change in use’’ policy (described

below), is important for the agencies to

appropriately manage wetland resources

while providing better clarity to the

farming community.

When the 1993 preamble was

published, the abandonment recapture

principle was consistent with USDA’s

implementation of the Swampbuster

program. Three years later, the 1996

Swampbuster amendments modified the

abandonment principle and

incorporated a ‘‘change in use’’ policy.

Under the new policy, prior converted

cropland would continue to be

regulated as such even if wetland

characteristics returned because of lack

of maintenance of the land or other

circumstances beyond the owner’s

control, ‘‘as long as the prior converted

cropland continues to be used for

agricultural purposes.’’ Conf. Rep. No.

104–494, at 380 (1996). In 2005, the

Army and USDA issued a joint

Memorandum to the Field (the 2005

Memorandum) in an effort to again align

the CWA 404 program with

Swampbuster. The 2005 Memorandum

provided that, ‘‘certified [prior

converted] determination made by

[USDA] remains valid as long as the

area is devoted to an agricultural use. If

the land changes to a non-agricultural

use, the [prior converted] determination

is no longer applicable and a new

wetland determination is required for

CWA purposes.’’

The 2005 Memorandum did not

clearly address the abandonment

principle that the agencies had been

implementing since the 1993

rulemaking. The change in use policy

was also never promulgated as a rule

and was declared unlawful by one

district court because it effectively

modified the 1993 preamble language

without any formal rulemaking process.

New Hope Power Co. v. U.S. Army

Corps of Eng’rs, 746 F. Supp. 2d 1272,

1282 (S.D. Fla. 2010). Implementing the

2005 Memorandum created other

challenges for the agencies and the

regulated community. For example,

because the 2005 Memorandum did not

clearly address whether or how the

abandonment principles should be

applied in prior converted cropland

cases, neither the agencies nor the

regulated community could be certain

which approach would be applied to a

specific case. If this proposed exclusion

is finalized, the Army would take action

to withdraw the 2005 Memorandum. It

is the agencies’ intent that this proposed

rule will clarify the prior converted

cropland issue and provide regulatory

certainty.

The following features also would not

be ‘‘waters of the United States’’ under

this proposed rule:

•Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease (paragraph

(b)(6));

•Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, settling basins, and log

cleaning ponds) which are not

identified in paragraph (a)(4) or (a)(5) of

this section (paragraph (b)(7)); and

•Water-filled depressions created in

upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand or gravel (paragraph (b)(8)).

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Paragraphs (b)(6), (7), and (8) of the

proposed rule identify features and

waters that the agencies have identified

as generally not ‘‘waters of the United

States’’ in previous preambles. The

agencies intend that codifying these

longstanding practices would further

the agencies’ goals of providing greater

clarity and predictability for the

regulated public and the regulators.

Several of these exclusions use the

phrase ‘‘upland.’’ In keeping with the

goal of providing greater clarity, the

agencies have proposed a definition of

‘‘upland’’ in paragraph (c)(13). It is

important to note that a ‘‘water of the

United States’’ would not be considered

‘‘upland’’ just because it lacks water at

a given time. Similarly, an area may

remain ‘‘upland’’ even if it is wet after

a rainfall or flood event. Also, the

upland requirement would not apply to

all exclusions under paragraph (b).

Those waters/features under proposed

paragraph (b) that do contain the

stipulation that they must be created in

upland to be excluded must be created

wholly in upland. Features not

constructed wholly in upland could

meet the proposed definition of ‘‘waters

of the United States,’’ unless otherwise

excluded under another part of

paragraph (b). The agencies note that the

mere interface between the excluded

feature constructed wholly in upland

and a jurisdictional water would not

make that feature jurisdictional. For

example, a ditch constructed wholly in

upland that connects to a tributary

would not be considered a jurisdictional

ditch. Finally, a proposed excluded

feature that develops wetland

characteristics within the confines of

the water/feature would remain

excluded from the definition of ‘‘waters

of the United States.’’

In proposed paragraph (b)(7)

regarding artificial lakes and ponds

constructed in upland, the agencies

have removed language regarding ‘‘use’’

of the ponds, including the term

‘‘exclusively,’’ which were used in the

1986 and 1988 preambles. In most cases,

the ‘‘use’’ of the pond is captured in its

name. More importantly, the agencies

recognize that artificial lakes and ponds

are often used for more than one

purpose and can have a variety of

beneficial purposes, including water

retention or recreation. The proposed

exclusion reflects the agencies’ practice

and would ensure that waters the

agencies have historically not treated as

jurisdictional would not become so

because of another incidental beneficial

use. In the text of the proposed

exclusion, the agencies are also

clarifying that these features would not

be excluded if they are jurisdictional

impoundments because altering a water

by impounding it would not change the

water’s jurisdictional status, consistent

with longstanding agency practice.

However, when an applicant receives a

permit to impound a water of the United

States in order to construct a waste

treatment system (as excluded under

(b)(11)), the agencies are affirmatively

relinquishing jurisdiction over the

resulting waste treatment system as long

as it is used for this permitted purpose,

consistent with longstanding practice.

Also consistent with longstanding

practice, waters upstream of the waste

treatment system may still be

considered jurisdictional where they

meet the proposed definition of ‘‘waters

of the United States.’’

In proposed paragraph (b)(8), the

proposed rule includes several

refinements to the existing 1986 and

1988 preamble language related to the

exclusion for water-filled depressions

created in upland as a result of certain

activities. In addition to construction

activity, the agencies have also

proposed to exclude water-filled

depressions created in upland

incidental to mining activity. This is

consistent with the exclusion in the

2015 Rule and with the agencies’ 1986

and 1988 preambles, which generally

excluded pits excavated for obtaining

fill, sand or gravel, and the agencies

believe there is no need to distinguish

between features based on whether they

are created by construction or mining

activity.

In proposed paragraph (b)(9), the

agencies would exclude stormwater

control features excavated or

constructed in upland to convey, treat,

infiltrate, or store stormwater runoff.

The agencies’ practice is to view

stormwater control measures that are

not built in ‘‘waters of the United

States’’ as non-jurisdictional.

Conversely, the agencies currently view

some waters, such as channelized

streams with intermittent or perennial

flow, as jurisdictional even where used

as part of a stormwater management

system. Nothing in the proposed rule is

intended to change that practice. Rather,

this exclusion would clarify the

appropriate limits of jurisdiction

relating to these systems. A key element

of the exclusion is whether the feature

or control system was built in upland

and whether it conveys, treats, or stores

stormwater. Certain features, such as

curbs and gutters, may be features of

stormwater collection systems, but have

never been considered waters of the

United States. Stormwater control

features have evolved considerably over

the past several years, and their

nomenclature is not consistent, so in

order to avoid unintentionally limiting

the proposed exclusion, the agencies

have not included a list of excluded

features in the rule. The proposed rule

is intended to exclude the diverse range

of stormwater control features that are

currently in place and may be

developed in the future.

Traditionally, stormwater controls

were designed to direct runoff away

from people and property as quickly as

possible. Cities built systems to collect,

convey, or store stormwater, using

structures such as curbs, gutters, and

sewers. Retention and detention

stormwater ponds were built to store

excess stormwater until it could be more

safely released. More recently, treatment

of stormwater has become more

prevalent to remove pollutants before

the stormwater is discharged. Even more

recently, cities have turned to green

infrastructure, using existing natural

features or creating new features that

mimic natural hydrological processes

that work to infiltrate or evapo-

transpirate precipitation, to manage

stormwater at its source and keep it out

of the conveyance system. These

engineered components of stormwater

management systems can address both

flood control and water quality

concerns, as well as provide other

benefits to communities. This proposed

rule is designed to avoid disincentives

to this environmentally beneficial trend

in stormwater management practices.

The agencies propose to exclude

wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins in paragraph (b)(10).

This proposed exclusion clarifies the

agencies’ current practice that waters

and water features used for water reuse

and recycling would not be

jurisdictional when constructed in

upland. The agencies recognize the

importance of water reuse and

recycling, particularly in areas like

California and the Southwest where

water supplies can be limited and

droughts can exacerbate supply issues.

This proposed exclusion responds to

numerous commenters and is intended

to avoid discouraging or creating

barriers to water reuse and conservation.

Many commenters noted the growing

interest in and commitment to water

recycling and reuse projects. Detention

and retention basins can play an

important role in capturing and storing

water prior to beneficial reuse.

Similarly, groundwater recharge basins

and infiltration ponds are becoming

more prevalent tools for water reuse and

recycling. These features are used to

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collect and store water, which then

infiltrates into groundwater via

permeable soils. Though these features

are often created in upland, they are

also often located in close proximity to

tributaries or other larger bodies of

water. The proposed exclusion in

paragraph (b)(10) would codify

longstanding agency practice and

encourage water management practices

that the agencies recognize are

important and beneficial.

Proposed paragraph (b)(11) would

exclude waste treatment systems. The

waste treatment system exclusion has

existed since 1979, and the agencies are

continuing such exclusion under this

proposal. The agencies are also for the

first time proposing a definition of

‘‘waste treatment system’’ under

paragraph (c)(14) to clarify which waters

and features are considered part of a

waste treatment system and therefore

excluded. Continuing current practice,

any entity with a waste treatment

system would need to comply with the

CWA by obtaining a section 404 permit

if constructed in waters of the United

States, and a section 402 permit for

discharges from the waste treatment

system into waters of the United States.

The agencies intend for this exclusion to

apply only to waste treatment systems

constructed in accordance with the

requirements of the CWA and to all

waste treatment systems constructed

prior to the 1972 CWA amendments.

One proposed ministerial change is the

deletion of a cross-reference in the

current language to an EPA regulation

that no longer exists.

Some pre-proposal commenters

suggested the agencies clarify how the

waste treatment system exclusion is

currently implemented. Many

comments raised questions about

stormwater systems and wastewater

reuse and whether such facilities are

considered part of a complete waste

treatment system for purposes of the

waste treatment system exclusion. For

clarity, the agencies propose related

exclusions in paragraphs (b)(9) and

(b)(10) and propose to add settling

basins and cooling ponds to the

definition of ‘‘waste treatment system’’

in paragraph (c)(14). The agencies note

that cooling ponds that are created

under section 404 in jurisdictional

waters and that have section 402

permits are and would continue to be

subject to the waste treatment system

exclusion under the proposed rule.

Cooling ponds created to serve as part

of a cooling water system with a valid

state permit constructed in waters of the

United States prior to enactment of the

1972 amendments of the CWA and

currently excluded from jurisdiction

would also remain excluded under the

proposed rule.

3. How might the agencies implement

this approach?

The agencies propose to include an

exclusion for groundwater under

paragraph (b)(2), including groundwater

drained through subsurface drainage

systems. The agencies added the

subsurface drainage clarification to

specify that even when groundwater is

channelized in subsurface systems, like

tile drains used in agriculture, it still

remains subject to the exclusion.

However, the exclusion would not

apply to surface expressions of

groundwater, such as where

groundwater emerges on the surface and

becomes baseflow in intermittent or

perennial streams.

The proposed rule would exclude

ephemeral features and diffuse

stormwater run-off including directional

sheet flow over upland under proposed

paragraph (b)(3). This exclusion would

include ephemeral flows, swales, and

erosional features, including gullies and

rills, as non-jurisdictional features.

Tributaries can be distinguished from

these excluded features by the flow

regime proposed in the definition of

‘‘tributary.’’ Tributaries would have

intermittent or perennial flow while

these proposed excluded features would

have ephemeral flow. It should be noted

that some streams are colloquially

called ‘‘gullies’’ or the like even when

they exhibit the characteristics of a

tributary; regardless of the name they

are given locally, waters that meet the

definition of ‘‘tributary’’ would not be

excluded ephemeral features.

With respect to implementing the

proposed ditch exclusions consistent

with the proposed rule, that reach of a

ditch that meets any of the three

categories in paragraph (a)(3) would be

considered a ‘‘water of the United

States.’’ The jurisdictional status of

other reaches of the same ditch would

have to be assessed based on the

specific facts and under the terms of the

proposed rule to determine the

jurisdictional status of the ditch. For

example, a ditch that is constructed in

a tributary would not be an excluded

ditch under proposed paragraph (b)(4)

so long as it satisfies the conditions of

the tributary definition, and a ditch is

constructed in a tributary when at least

a portion of the tributary’s original

channel has been physically moved.

Further, the exclusion of a ditch does

not affect the possible status of the ditch

as a point source. The agencies believe

the proposed ditch exclusion included

in the proposed rule would address the

majority of irrigation and drainage

ditches, including most roadside and

other transportation ditches, as well as

agricultural ditches.

For the proposed prior converted

cropland exclusion, the agencies

propose to clarify that when cropland

has been abandoned and wetlands have

returned, any prior converted cropland

designation for that site would no longer

be valid for purposes of the CWA. In

general, the Corps’ current practice has

been to defer to certifications of prior

converted cropland made by the USDA

for areas in agricultural use; but in

instances when land has been proposed

to change from agricultural to non-

agricultural use, the Corps has made

new jurisdictional determinations,

regardless of any previous designation

of prior converted cropland or if an

actual change in use has occurred. In

other instances when cropland may

have been abandoned, the Corps may

apply the test from the 1993 preamble.

This proposed rule would clarify that

the Corps would only apply

abandonment principles consistent with

the 1993 preamble and would no longer

apply the change in use analysis. Under

the proposed rule, the Corps must first

determine if the land has been

‘‘abandoned.’’ Prior converted cropland

will be considered abandoned if it is not

used for, or in support of, agricultural

purposes at least once in the

immediately preceding five years. If the

Corps determines that the land is

abandoned, then it must evaluate the

current condition of the land to

determine whether wetlands conditions

have returned. If wetlands are currently

present on the property, the Corps must

determine whether the wetlands are

waters of the United States, consistent

with this proposed rule.

As the term ‘‘prior converted

cropland’’ suggests, and as stated in the

preamble to the 1993 Rule, land

properly designated prior converted

cropland has typically been so

extensively modified from its prior

condition that it no longer exhibits

wetland hydrology or vegetation, and no

longer performs the functions it did in

its natural and original condition as a

wetland. 58 FR 45032. It is often altered

and degraded, with long-term physical

and hydrological modifications that

substantially reduce the likelihood of

reestablishment of hydrophytic

vegetation. Consistent with

longstanding Corps policy and wetland

delineation procedures, if a former

wetland has been lawfully manipulated

to the extent that it no longer exhibits

wetland characteristics under normal

circumstances, it would not be a

jurisdictional wetland under the CWA.

The altered nature of prior converted

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33

Log cleaning ponds are used to float logs for

removal of twigs, branches, and large knots.

cropland and its conditions constitute

the ‘‘normal circumstances’’ of such

areas. The agencies expect the majority

of prior converted cropland in the

nation to fall into this category and not

be subject to CWA regulation, even after

it is abandoned.

However, at least some abandoned

prior converted cropland may, under

normal circumstances, meet the

proposed definition of ‘‘wetlands’’

under paragraph (c)(15). To determine

whether wetland characteristics are

present under ‘‘normal circumstances,’’

and whether the site contains waters of

the United States as defined under this

proposed rule, the agencies could,

pursuant to existing regulations and

guidance, and in accordance with this

proposed rule, prepare a new

jurisdictional determination for

abandoned prior converted cropland.

Such a determination would also

evaluate whether the wetland is

adjacent within the meaning of

paragraph (c)(1) of this proposed rule.

The agencies consider rulemaking to

be appropriate here in order to clarify

the definition of ‘‘prior converted

cropland’’ and to provide regulatory

certainty over when such lands are no

longer eligible for the CWA exclusion.

The USDA is responsible for making the

determination as to whether land is

prior converted cropland for its program

purposes, which the agencies would

adopt for purposes of the prior

converted cropland exclusion under this

proposed rule. The EPA and the Corps

enforce the prior converted cropland

exclusion for CWA purposes and

identify whether lands that are no

longer prior converted cropland may be

waters of the United States. The EPA

and the Corps intend to consult with

other federal agencies as appropriate,

including USDA, when evaluating

whether a parcel of land may no longer

be eligible for the CWA prior converted

cropland exclusion. The agencies’

implementation of the proposed prior

converted cropland exclusion for CWA

regulatory purposes does not affect

USDA’s administration of the

Swampbuster program or a landowner’s

eligibility for benefits under that

program.

In paragraph (b)(6), the agencies

propose to clarify their longstanding

view that the artificial irrigation

exclusion would only apply to the

specific land being directly artificially

irrigated, including fields flooded for

rice or cranberry growing, which would

revert to upland should artificial

irrigation cease; it is not the case that all

waters within watersheds where

irrigation occurs would be excluded.

Historically, the agencies have taken the

position that ponds for rice growing are

generally not considered waters of the

United States, as reflected in the 1986

preamble and the 2015 Rule. See 51 FR

41217. In the past, the agencies have

considered those under the artificial

lakes or ponds exclusion but propose

today to include them in the artificial

irrigation category as any wetland crop

species, such as rice and cranberry

operations, is typically supplied with

artificial flow irrigation or similar

mechanisms. The agencies take

comment on whether this approach is

better aligned with existing practices or

if rice and cranberry operations should

remain in the artificial lakes and ponds

exclusion.

In the proposed exclusion at (b)(7) for

artificial lakes or ponds, the agencies

have also proposed to add farm ponds,

log cleaning ponds,

33

and cooling ponds

to the list of excluded ponds in the rule

for additional clarity. Artificial lakes

and ponds created in upland and not

subject to jurisdiction under paragraphs

(a)(4) or (a)(5) would be excluded. As

proposed, this exclusion would also

apply to artificial lakes and ponds

created as a result of impounding non-

jurisdictional waters or features.

Conveyances created in upland that are

physically connected to and are a part

of the proposed excluded feature would

also be excluded. The agencies

emphasize that ponds that are proposed

to be excluded from ‘‘waters of the

United States’’ could, in some

circumstances, be point sources of

pollutants subject to section 301 of the

Act.

Under proposed paragraph (b)(8), the

proposed rule would exclude water-

filled depressions created in upland

incidental to mining or construction

activity, and pits excavated in upland

for the purpose of obtaining fill, sand,

or gravel. In addition to construction

activity, the agencies have proposed to

exclude water-filled depressions created

in upland incidental to mining activity.

Since pits excavated in upland for the

purpose of obtaining fill, sand, or gravel,

which are forms of mining, were not

considered to be ‘‘waters of the United

States’’ as described in the 1986 and

1988 preambles, the agencies believe

mining activities should also be

explicitly excluded. This is consistent

with the 2015 Rule. In addition, through

this proposed exclusion the agencies

intend to make clear that such water-

filled depressions and pits would

typically not become ‘‘waters of the

United States.’’

The agencies also propose to exclude

in paragraph (b)(9) stormwater control

features excavated or constructed in

upland to convey, treat, infiltrate or

store stormwater run-off. As stated

previously, the proposed rule is

intended to exclude the diverse range of

stormwater control features that are

currently in place and may be

developed in the future. This proposed

exclusion does not cover ditches, as

ditches would be addressed under

paragraph (b)(4) of the proposed rule.

Paragraph (b)(10) of the proposed rule

clarifies that wastewater recycling

structures constructed in upland would

be excluded. The agencies propose to

include in this exclusion detention and

retention basins as well as groundwater

recharge basins and infiltration ponds

built for wastewater recycling. The

proposed exclusion would also cover

water distributary structures that are

built in upland for water recycling.

These features often connect or carry

flow to other water recycling structures,

for example a channel or canal that

carries water to an infiltration pond.

The agencies have not considered these

water distributary systems

jurisdictional.

The existing exclusion for waste

treatment systems moves to paragraph

(b)(11). As discussed above, the agencies

propose to not change the longstanding

approach to implementing the waste

treatment exclusion. As a result, the

agencies would continue to apply the

exclusion to systems that are treating

water so as to meet the requirements of

the CWA. Discharges from these systems

to waters of the United States would

continue to be subject to regulation by

the section 402 permitting program.

Similarly, if a waste treatment system is

abandoned or otherwise ceases to serve

the treatment function for which it was

designed, it would not continue to

qualify for the exclusion.

The agencies also considered other

exclusions recommended by

stakeholders that were not added to the

proposed rule. The agencies did not

propose these additional exclusions

because they were either so broadly

characterized as to introduce significant

confusion and potentially exclude

waters that the agencies have

consistently determined should be

covered as ‘‘waters of the United

States,’’ they were so site-specific or

activity-based that they did not warrant

inclusion in the nationally-applicable

definition, or they were covered by

another exclusion in the proposed rule.

It is important to note that while the

waters and features listed in the

proposed exclusions would not be

‘‘waters of the United States,’’ some of

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them may convey perennial or

intermittent flow to a downstream

jurisdictional water, so that portions of

a tributary upstream and downstream of

the excluded water may meet the

definition of ‘‘tributary’’ at (c)(11). For

example, when water from a tributary is

moved into another jurisdictional water

through an excluded ditch, the ditch

itself would be excluded from

jurisdiction under the proposed rule but

the tributary upstream and downstream

of such break would remain ‘‘waters of

the United States.’’ Excluded geographic

features, such as ditches, may function

as ‘‘point sources’’ under CWA section

502(14), so that discharges of pollutants

to navigable waters through these

features would be subject to other parts

of the CWA (e.g., CWA section 402).

4. What are specific issues upon which

the agencies are seeking comment?

The agencies seek comment on all

aspects of the proposed exclusions. In

addition, the agencies solicit comment

on whether they should enumerate

additional specific exclusions for the

purposes of clarity, or whether proposed

paragraphs (a) and (b) are sufficiently

clear as to account for all of the

agencies’ intended jurisdictional and

non-jurisdictional waters. For example,

features that move water (particularly in

the arid West) that do not eventually

reconnect into a tributary or other

jurisdictional water would not be

jurisdictional and therefore do not need

their own specific exclusion. These

features would not meet the definition

of ‘‘tributary’’ or may meet the currently

proposed ditch exclusion as an artificial

conveyance of water. However, the

agencies seek comment on the

jurisdictional status of features (other

than the ditches the agencies currently

propose to exclude) whose purpose is to

move water and which do eventually

reconnect to the tributary system.

Further, the agencies seek comment

on the clarity of the groundwater

exclusion in proposed paragraph (b)(2)

and ask commenters to consider

whether the exclusion could instead

read, ‘‘groundwater, including diffuse or

shallow subsurface flow and

groundwater drained through

subsurface drainage systems.’’ The

agencies recognize that unique

groundwater situations such as shallow

aquifers and tile drainage systems exist

around the country and welcome

comments on the parameters of the

groundwater exclusion and any

implementation issues that may arise.

With respect to the proposed

exclusion for ditches, the agencies

solicit comment on whether certain

ditches excavated in upland but with

perennial or intermittent flow to an

(a)(1) through (5) water should be

treated as a jurisdictional tributary and

why, and if so, what flow regime would

apply (e.g., perennial only or both

perennial and intermittent). Recognizing

that excluded ditches must be used to

convey water, the agencies also seek

comment on whether the exclusion for

ditches should instead focus on

particular ditch use, such as roadside,

railway, agriculture, irrigation, water

supply, or other similar uses, and if so,

why. As discussed in Section III.E, the

agencies are soliciting comment on

available tools to help identify whether

a ‘‘ditch’’ is artificial or whether it was

constructed in a tributary or adjacent

wetland.

The agencies solicit comment on the

proposed exclusion of prior converted

cropland that uses the abandonment

principle to determine whether prior

converted cropland would be subject to

CWA jurisdiction or if the agencies

should apply the change in use analysis.

The agencies also solicit comment on

procedures that may be useful in

implementing the proposed exclusion

for prior converted cropland. In

particular, the agencies solicit comment

as to what constitutes ‘‘for, or in support

of, agricultural purposes’’ as the term

applies to the proposed prior converted

cropland definition in this proposal.

The agencies also seek comment on the

kind of documentation a landowner

must maintain to demonstrate that

cropland has not been abandoned, or in

the alternative, that the land has been

used for, or in support of, agricultural

purposes at least once in the

immediately preceding five years. The

agencies also solicit comment on what

evidence, other than a USDA

determination, the agencies should

evaluate and rely upon to determine if

cropland is eligible for the prior

converted cropland exclusion. Finally,

the agencies solicit comment on

whether the five-year timeframe for

maintaining agricultural purposes is

appropriate.

The agencies also request comment on

whether the proposed exclusion for

artificially irrigated areas should

include fields flooded to support the

production of other wetland crop

species in addition to rice and

cranberries. Additionally, the agencies

seek comment on whether the proposed

artificially irrigated areas exclusion

should be expanded to include areas

flooded to support aquaculture, such as

crayfish production.

The agencies also seek comment on

whether the waters and features

proposed to be excluded in paragraphs

(b)(7), (b)(8), (b)(9), and (b)(10) must be

constructed wholly in upland, not just

in upland as provided in the proposed

regulatory text, in order for the

exclusion to apply and how such a

requirement would affect the utility of

these proposed exclusions. The agencies

also request comment on whether the

proposed exclusion in paragraph (b)(9)

for stormwater control features should

be expanded or clarified to include

permitted municipal separate storm

sewer systems (MS4s). If so, the

agencies request comment on whether

the exclusion would apply to the entire

MS4 or limited portions thereof. The

agencies also request comment on how

they might implement such an

exclusion.

The agencies intend for the exclusion

in paragraph (b)(11) to apply only to

lawfully constructed waste treatment

systems. The agencies solicit comment

on whether greater clarity is needed by

including in the rule text that the

exclusion only applies to ‘‘lawfully

constructed waste treatment systems.’’

I. Summary of Proposed Rule as

Compared to the 1986 and 2015

Regulations

The agencies are proposing a

definition of ‘‘waters of the United

States’’ that they consider to be superior

to both the 1986 and 2015 Rules. The

agencies are proposing to revise

previous regulatory definitions of this

term to distinguish between water that

is a ‘‘water of the United States’’ subject

to Federal regulation under the CWA

and water or land that is subject to

exclusive State or tribal jurisdiction,

consistent with the scope of jurisdiction

authorized under the CWA and the

direction in that Act to ‘‘recognize,

preserve, and protect the primary

responsibilities and rights of States to

. . . plan the development and use

(including restoration, preservation, and

enhancement) of land and water

resources . . . .’’ 33 U.S.C. 1251(b). The

Supreme Court has recognized that new

administrations may reconsider the

policies of their predecessors so long as

they provide a reasonable basis for the

change in approach. Nat’l Ass’n of

Home Builders v. EPA, 682 F.3d 1032,

1038 & 1043 (D.C. Cir. 2012), citing FCC

v. Fox Television Stations, Inc., 556 U.S.

502, 514–15 (2009) (Rehnquist, J.,

concurring in part and dissenting in

part). The agencies intend that the

proposed revised interpretation of the

Federal regulatory scope of the CWA

would resolve longstanding confusion

over broad and unclear definitions of

‘‘waters of the United States.’’

The agencies propose to replace the

2015 Rule for the reasons discussed in

the Step 1 proposal and supplemental

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notice of proposed rulemaking

(SNPRM). See 83 FR 32227 (July 12,

2018). In addition, the agencies consider

this proposal to adhere more closely

than the 2015 Rule to the text of the

CWA and its legislative history, to the

scope of Congress’ authority in

promulgating the CWA, to the guiding

principles that the Supreme Court has

articulated in Riverside Bayview,

SWANCC, and Rapanos for interpreting

the reach of the CWA, and because it

provides a straightforward definition

that would be easier to implement than

the 2015 Rule. As discussed in Section

II of the preamble, this proposed

definition of ‘‘waters of the United

States’’ reflects the ordinary meaning of

the term ‘‘waters,’’ such as oceans,

rivers, and lakes, as opposed to, as

discussed in the Step 1 SNPRM, for

example, ephemeral geographic features

that are dry almost all of the year, as

well as nonnavigable, isolated waters as

the 2015 Rule would regulate.

The agencies consider the proposed

definitions of ‘‘tributary’’ and ‘‘adjacent

wetlands’’ to be more consistent with

the Supreme Court’s interpretation of

the agencies’ authority than the scope of

‘‘waters of the United States’’ under the

2015 Rule. Congress’ traditional

commerce power over navigation

extends beyond waters traditionally

considered navigable, but it is not

unlimited. This proposed interpretation

of the scope of ‘‘waters of the United

States’’ would adhere more closely to

the limits of Congress’ authority over

navigable waters than the 2015 Rule,

which allows for jurisdiction over a

range of ephemeral waters that meet that

regulation’s definition of ‘‘tributary’’ (as

well as physically remote isolated

wetlands and other waters) that may be

located at great distances from

traditional navigable waters, so long as

they have indicators of a bed, banks,

and ordinary high-water mark and

eventually contribute flow to a

navigable water.

In addition, this proposal would also

adhere more closely than the 2015 Rule

to the statute and legislative history of

the Act, including the policy articulated

in CWA section 101(b) that States

should maintain primary responsibility

over land and water resources. 33 U.S.C.

1251(b). As noted in the Step 1 SNPRM,

many commenters on the 2015 Rule

indicated that the potential breadth of

the 2015 Rule could interfere with State

and local land use planning. They

expressed particular concern that the

2015 Rule’s use of the 100-year

floodplain as a factor to establish

jurisdiction and the extension of

jurisdiction potentially to water features

as far as 4,000 feet from a covered

tributary, traditional navigable water,

interstate water, or territorial sea

extended into the regulatory domain of

States, Tribes, and local governments.

This proposed definition of ‘‘waters of

the United States,’’ which would limit

CWA jurisdiction over rivers and

streams to those that contribute

perennial or intermittent flow to

traditional navigable waters or territorial

seas in a typical year, certain lakes and

ponds, and wetlands abutting or having

a direct hydrologic surface connection

to other jurisdictional waters in a

typical year, would restore the authority

of States, Tribes, and local governments

over large swaths of lands and waters

that they have traditionally managed

based on the preferences of their

citizens. See SWANCC, 531 U.S. at 174.

The agencies believe that this

proposal is also more consistent with

Rapanos than the 2015 Rule. It reflects

the key concepts in the plurality

opinion that limited jurisdiction to

relatively permanent waters and

wetlands with a continuous surface

connection to those waters, 547 U.S. at

742, 751 n.13, as well as addressing

Justice Kennedy’s concern with respect

to regulation of wetlands adjacent to

‘‘drains, ditches, and streams remote

from any navigable-in-fact water and

carrying only minor water volumes

towards it,’’ id. at 781. The plurality and

Justice Kennedy both agreed in

principle that the definition of ‘‘waters

of the United States’’ must consider: (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 refers to the necessary

connection of a wetland to a tributary as

a ‘‘continuous surface connection’’ or

‘‘continuous physical connection,’’ as

demonstrated in Riverside Bayview. Id.

at 742, 751 n.13. Justice Kennedy states

that the Act requires a water or wetland

have a connection in the form of a

‘‘‘significant nexus’ to waters that are or

were navigable in fact or that could

reasonably be so made.’’ Id. at 759.

Justice Kennedy recognized 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. In other instances, as exemplified

by SWANCC, there may be little or no

connection.’’ Id. at 767. The agencies are

particularly concerned that the 2015

Rule’s reading of Justice Kennedy’s

significant nexus test exceeds the

agencies’ authority under the Act, for

the reasons discussed in the Step 1

SNPRM.

For example, as the Step 1 SNPRM

explains, Justice Kennedy wrote 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. The opinion does not define the

terms ‘‘in the region’’ or ‘‘similarly

situated,’’ but it is reasonable to

presume that that Justice Kennedy did

not intend ‘‘similarly situated’’ to be

synonymous with ‘‘all’’ waters in a

region. The 2015 Rule, however,

effectively applied the significant nexus

test to lakes, ponds, and other waters,

not just wetlands, either alone or in

combination with other waters in an

entire watershed. See, e.g., 80 FR 37106.

The agencies are concerned that this

broad reading of the significant nexus

test relies too heavily on considerations

that Justice Kennedy expresses

regarding the interconnected nature of

waters but fails to balance those

‘‘environmental concerns’’ with the

‘‘limits in the statutory text’’ the

agencies cannot disregard. See 547 U.S.

at 778. The agencies also do not think

that the opinion of a single justice in a

complex case should be the primary

determinant of federal jurisdiction over

potentially large swaths of aquatic

resources, particularly an approach that

relies on potentially subjective case-by-

case application that reduces regulatory

certainty for the regulated community

and hinders straightforward

implementation by regulatory agencies.

The agencies also believe the

definitions of ‘‘tributary’’ and ‘‘adjacent

wetlands’’ in this proposed rule better

reflect the importance of the term

‘‘navigable’’ in ‘‘navigable waters,’’ id. at

778–79, than did the analogous

definitions in the 2015 Rule. This

proposal would give effect to the term

‘‘navigable’’ by limiting jurisdiction to

tributaries and wetlands that have a

continuous physical connection, during

some part of a typical year, to traditional

navigable waters or the territorial seas.

In contrast, under the 2015 Rule, all

features meeting the ‘‘tributary’’

definition, including ordinarily dry

channels, are categorically jurisdictional

no matter how small, remote, or

frequently flowing, and all ‘‘adjacent’’

waters and wetlands, such as those

located within 1,500 feet of the high tide

line of an (a)(1) or (a)(3) water, are

categorically jurisdictional.

Additionally, the 2015 Rule provides

that waters and wetlands as far as 4,000

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34

In the 2015 Rule, the agencies acknowledged

that science cannot dictate where to draw the line

of federal jurisdiction. See, e.g., 80 FR 37060.

Notwithstanding that qualifier, the agencies relied

on the Connectivity Report extensively in

establishing the 2015 Rule’s definition of ‘‘waters of

the United States.’’

feet from an (a)(1) through (5) water are

jurisdictional if they, either alone or in

combination with other similarly

situated waters in the region,

significantly affect the chemical,

physical, or biological integrity of an

(a)(1) through (3) water. Such

interpretations create considerable

tension with Justice Kennedy’s

understanding of the term ‘‘significant

nexus.’’ See id. at 781–82 (‘‘[I]n many

cases wetlands adjacent to tributaries

covered by [the Corps’ 1986 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 agencies are concerned that these

expansive interpretations of key

elements of the definition of ‘‘waters of

the United States’’ in the 2015 Rule may

not comport with the CWA. See id. at

778. As the agencies described in the

Step 1 SNPRM, the 2015 Rule may have

failed to appropriately recognize that

the science in the Connectivity Report,

while informative and important to

consider, is not dispositive in

interpreting the statutory reach of

‘‘waters of the United States,’’ which is

ultimately a legal determination based

on the language and structure of the Act

and applicable judicial precedent. Id.

34

The agencies are mindful that courts

that have considered the merits of

challenges to the 2015 Rule have

similarly observed that the rule may

conflict with Justice Kennedy’s opinion

in Rapanos, particularly the rule’s

definition of ‘‘tributary.’’ See North

Dakota, 127 F. Supp. 3d at 1056;

Georgia, 2018 U.S. Dist. LEXIS 97223, at

*17. Likewise, the Sixth Circuit stated

in response to petitioners’ ‘‘claim that

the Rule’s treatment of tributaries,

‘adjacent waters,’ and waters having a

‘significant nexus’ to navigable waters is

at odds with the Supreme Court’s ruling

in Rapanos’’ that ‘‘[e]ven assuming, for

present purposes, as the parties do, that

Justice Kennedy’s opinion in Rapanos

represents the best instruction on the

permissible parameters of ‘waters of the

United States’ as used in the Clean

Water Act, it is far from clear that the

new Rule’s distance limitations are

harmonious with the instruction.’’ In re

EPA, 803 F.3d at 807 & n.3 (noting that

‘‘[t]here are real questions regarding the

collective meaning of the [Supreme]

Court’s fragmented opinions in

Rapanos’’). This proposed tributary

definition as a river or stream that

contributes perennial or intermittent

flow to a traditional navigable water or

territorial sea in a typical year, better

reflects the limits to the agencies’

authority that the plurality, as well as

Justice Kennedy, recognized in

Rapanos.

The proposed definition of ‘‘adjacent

wetlands’’ in this rulemaking, which

encompasses wetlands abutting or

having a direct hydrologic surface

connection to other jurisdictional non-

wetland waters in a typical year also

specifically reflects the Supreme Court’s

longstanding views on the scope of

jurisdictional wetlands, as opposed to

the far broader interpretation in the

2015 Rule. Since Riverside Bayview, the

Court has held that the Corps could

define ‘‘waters of the United States’’ to

include wetlands ‘‘actually abut[ting]’’

navigable waters, but it has not

extended its deference to an agency

interpretation to encompass more

physically remote wetlands. Rapanos,

547 U.S. at 740, 741 n.10 (Scalia, J.,

plurality), citing Riverside Bayview, 474

U.S. at 135, and SWANCC, 531 U.S. 159.

The 2015 Rule expanded the scope of

jurisdictional wetlands well beyond

those wetlands ‘‘that form the border of

or are in reasonable proximity to other

waters of the United States,’’ Riverside

Bayview, 474 U.S. at 134, quoting 42 FR

37128 (July 19, 1977), that the Supreme

Court has long held to be a permissible

exercise of authority of the CWA. For

instance, the 2015 Rule defined

‘‘adjacent’’ and, in turn, ‘‘neighboring’’

to include as categorically jurisdictional

all waters located within the 100-year

floodplain of an (a)(1) through (5) water

and not more than 1,500 feet from the

ordinary high water mark of such water.

The agencies propose to correct this

broad interpretation, thereby

maintaining consistency with the

Supreme Court’s opinions and ensuring

the agencies operate within the bounds

of our Constitutional authority, see

SWANCC, 531 U.S. at 172, as well as

protecting the States’ traditional

authority over their waters and land use,

and the right of the public to clear limits

to agency authority.

The proposed rule’s specific tributary

and adjacent wetlands definitions

would eliminate the need for the case-

specific significant nexus test that was

required for many features after Justice

Kennedy’s concurring opinion in

Rapanos and according to the agencies’

Rapanos Guidance. The categorical

treatment of all tributaries and adjacent

wetlands, as defined by this proposal,

will provide clarity to the regulated

public regarding the jurisdictional status

of such features and ease the

administrative burden the agencies face

in conducting a case-specific significant

nexus analysis to complete many

jurisdictional determinations under

previous regulations and guidance.

This proposal would also establish

greater clarity with respect to the scope

of CWA jurisdiction than the 2015 Rule.

The Step 1 SNPRM described the

widespread confusion regarding the

reach of the 2015 Rule. Filings in the

Sixth Circuit demonstrate that

petitioners representing the States in

that case view the 2015 Rule as

extending ‘‘jurisdiction to virtually

every potentially wet area of the

country.’’ Opening Brief of State

Petitioners at 15, 61, In re EPA, No. 15–

3751 (6th Cir. Nov. 1, 2016). In contrast,

petitioners representing environmental

organizations viewed the 2015 Rule as

violating the CWA by failing to cover

certain waters. Brief of Conservation

Groups at 11, In re EPA, No. 15–3751

(6th Cir. Nov. 1, 2016). In addition to

the differing interpretations of

stakeholders, the litigation itself could

lead to further uncertainty. A successful

challenge to the 2015 Rule could result

in a court order vacating the rule in all

or part of the country, potentially

contributing to the existing patchwork

of legal regimes in effect in different

parts of the country. This proposed

definition of ‘‘waters of the United

States’’ would establish bright line

jurisdictional boundaries that are

intended to be easily comprehensible

and implementable by the regulated

community, and would avoid the

potentially extremely complex

jurisdictional landscape that could

result from litigation over the 2015 Rule.

The agencies believe that the

proposed rule would also be clearer

than both the substantive content of the

1986 Rule and the way it has been

implemented as a result of litigation.

For the reasons discussed in the Step 1

proposal and SNPRM, the 1986 Rule, as

interpreted by the Supreme Court and

implemented through agency guidance,

is preferable to the 2015 Rule. However,

a clear, comprehensive regulation that

encompasses the Supreme Court’s

interpretations and agency guidance is

preferable to the 1986 Rule. The

language of the original 1986 Rule

leaves substantially more room for

discretion and case-by-case variation

than this proposal, particularly

paragraph (a)(3) in the 1986 regulation,

which claims jurisdiction over waters

that are used by interstate or foreign

travelers for recreational or other

purposes, with no reference to navigable

waters. Following the Supreme Court’s

opinions on the definition of ‘‘waters of

the United States,’’ particularly

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SWANCC and Rapanos, the 1986 Rule

cannot be implemented as promulgated,

but rather it must be implemented

taking into account the Court’s holdings

and agency guidance interpreting those

cases. In the decade since the Rapanos

decision, the agencies and the public

have become familiar with this multi-

layered interpretive approach, which is

the reason that the agencies have

proposed maintaining this regime

during the process of developing and

considering public comments on this

proposal. Yet a codified definition of

‘‘waters of the United States’’ that

incorporates Supreme Court caselaw

and guidance, and is clear as to the

scope of jurisdictional waters, certainly

provides greater regulatory

predictability than the 1986 regulations,

as interpreted by the Supreme Court and

implemented through agency guidance.

This proposal more appropriately

reflects the scope of the agencies’

authority under the statute, the

Constitution, the vital role of the States

and Tribes in managing their land and

water resources, and the need of the

public for predictable, easily

implementable regulations.

J. Placement of the Definition of Waters

of the United States in the Code of

Federal Regulations

Consistent with existing placement of

the definition of ‘‘waters of the United

States’’ in the Code of Federal

Regulations, the agencies propose to

locate the proposed definition of

‘‘waters of the United States’’ at 33 CFR

328.3, 40 CFR 110.1, 112.2, 116.3, 117.1,

122.2, 230.3, 232.2, 300.5, 401.11, and

Appendix E to 40 CFR part 300.

Alternatively, the agencies seek

comment on whether the definition

should be codified in just two places in

the Code of Federal Regulations for the

sake of simplicity, rather than in the

eleven locations in which it currently

appears. Following this alternate

approach, the agencies would retain one

definition in Title 33 of the Code of

Federal Regulations, which implements

the Corps’ statutory authority, and one

in Title 40, which generally implements

EPA’s statutory authority. The agencies

are not aware of any implications that

this alternate approach might have on

program implementation aside from

making references to the definition less

confusing. The agencies solicit comment

on any potential impacts this alternate

placement approach could have on

program implementation.

IV. State, Tribal and Federal Agency

Datasets of ‘‘Waters of the United

States’’

During the extensive pre-proposal

outreach to the general public and

focused engagement with States and

Tribes, the agencies heard from a

number of States about their familiarity

with waters within their borders and

their expertise in aquatic resource

mapping. As co-implementers of CWA

programs, they also emphasized the

potential benefit of greater State and

tribal involvement in jurisdictional

determinations. Several States suggested

the agencies consider their knowledge

and increase the role of States and

Tribes in identifying those waters that

are ‘‘waters of the United States.’’

Stakeholders also indicated that maps

could increase certainty and

transparency regarding the data and

methods used to determine which

waters are jurisdictional and which

waters are not.

In response, the agencies are

interested in advancing the

development of state-of-the-art

geospatial data tools through Federal,

State and tribal partnerships to provide

an enhanced, publicly-accessible

platform for critical CWA information,

such as the location of federally

jurisdictional waters, the applicability

of State and tribal water quality

standards, permitted facility locations,

impaired waters, and other important

features.

Such mapped features would make it

easier for agency field staff, the general

public, property owners, permit-holders

and others to understand the

relationship between familiar

geographical features and the overlay of

CWA jurisdictional waters. For Federal,

State and tribal agencies, such

geospatial data sets could improve the

administration of CWA programs and

attainment of water quality goals.

Geospatial datasets and resulting future

maps that indicate which waters are

likely subject to federal jurisdiction

could allow members of the regulated

community to more easily and quickly

ascertain whether they may want to

contact a government agency regarding

the potential need for a CWA permit.

These datasets, when fully developed,

would promote greater regulatory

certainty and relieve some of the

regulatory burden associated with

determining the need for a permit and

play an important part in helping to

attain the goals of the CWA. They could

also eventually be used to identify in

one layered geospatial map water

quality standards, total maximum daily

loads, water quality monitoring data,

and other beneficial information.

The agencies are seeking public input

on possible approaches to developing or

utilizing existing aquatic resource

mapping, remote sensing technology, or

satellite data in order to facilitate the

implementation of this proposed

definition of ‘‘waters of the United

States.’’ Specifically, the agencies are

interested in suggestions for how to

create a regulatory framework that

would authorize interested States,

Tribes, and Federal agencies to develop

for the agencies’ approval geospatial

datasets representing ‘‘waters of the

United States,’’ as well as waters

excluded from the definition and

‘‘waters of the State’’ or ‘‘waters of the

Tribe’’ within their respective borders.

The agencies anticipate that such

geospatial dataset development would

be optional and not a requirement. The

agencies are not proposing such a

framework today because they would

like to engage more fully in discussions

with States, Tribes, other Federal

agencies, and other technical experts

before developing a proposal. The

agencies anticipate a possible future

rulemaking that could propose a

specific approach that would be

informed by public comments and

suggestions on this notice.

State and tribal geospatial datasets

would be unrelated to the ability of

States or Tribes to establish their own

jurisdiction over waters based on State

or tribal law that may be broader than

the CWA. They would also be unrelated

to the subset of waters for which a State

or Tribe could assume permitting

responsibility for under the CWA, such

as section 402 and section 404

permitting. In a separate rulemaking, the

EPA intends to clarify the waters for

which a State or Tribe could assume

responsibility under section 404(g).

Developing geospatial datasets of

‘‘waters of the United States’’ may raise

a number of technical and process

challenges and questions. This is why

the agencies are soliciting public input

on the feasibility of creating a geospatial

dataset of jurisdictional waters to help

inform the agencies’ considerations

rather than proposing a specific

approach today. Below is a discussion

of some of the technical and process

considerations the agencies have

anticipated. The public is encouraged to

comment on these and other challenges

and questions that might arise from

geospatial datasets of CWA jurisdiction.

Dataset development would likely be

a longer-term activity involving

collaboration among technical

geospatial experts from Federal, State,

tribal governments, and involving other

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key stakeholders, such as consensus

standards organizations, the private

sector, and academia. The agencies are

aware that other entities, including, but

not limited to, the Advisory Committee

on Water Information, which reports to

the Department of the Interior; the

National Hydrography Dataset program

of the U.S. Geological Survey; the

National Wetlands Inventory program of

the U.S. Fish and Wildlife Service; the

Risk Mapping, Assessment, and

Planning program of the Federal

Emergency Management Agency; the

National Wetland Team of the Natural

Resources Conservation Service; and

others, possess geospatial data and

expertise in matters of geospatial

identification of water features. In

addition, the agencies would anticipate

drawing on the expertise and

infrastructure of the standing Federal

Geographic Data Committee (FGDC) for

convening experts, resolving technical

issues and vetting developments and

innovative ideas.

In the realm of geospatial data, the

Federal government has sought to

establish ‘‘standards’’ for geospatial data

through the FGDC. The agencies expect

that a final rule defining the scope of

‘‘waters of the United States’’ would be

the policy with which any mapping

effort would need to be consistent. The

primary question the methods and data

specifications would address is how to

remotely identify the measurable

hydrologic features that comprise the

‘‘waters of the United States’’ in order

to create these geospatial datasets. The

agencies recognize the need to provide

specifications for the data in order to

ensure that ‘‘waters of the United

States’’ datasets are consistent

nationwide. These specifications would

include the specific structure and

content details for the dataset itself,

such as the acceptable geographic or

projected coordinate system(s),

identification of all mandatory (and any

optional) data fields to be populated,

minimum FGDC-compliant metadata

attributes, and acceptable file format(s).

One approach the agencies could take

is a future rulemaking following

collaboration with technical experts as

described above and prior to the States,

Tribes, or Federal agencies creating such

datasets. States, Tribes, and Federal

agencies could then submit method(s)

for creating a dataset which would be

consistent with the revised definition of

‘‘waters of the United States.’’ The EPA

and Corps would then review each

proposed method in order to determine

whether the method results in a

complete and accurate representation of

‘‘waters of the United States’’ within a

dataset extent. Under this approach, any

methods determined to result in

complete and accurate datasets would

be published in the Federal Register or

through a public website, along with a

statement of the geographic area(s)

where use of each method is appropriate

and approved for use. This approach

would likely account for the variation in

landscapes and data availability across

the nation, would leverage the

knowledge the Federal land

management agencies, States and Tribes

possess regarding their own geography,

and could be completed sooner than if

the agencies were to develop applicable

methods first.

The agencies solicit comment on this

proposed approach and suggestions for

alternative approaches that the agencies

might consider as part of a future

rulemaking. For example, how would

the methods and datasets, once

approved by the agencies, be most

effectively communicated to the public?

One option might be that, as part of the

approval process, States, Tribes and

Federal agencies undertake a public

notice and comment process for

proposed datasets prior to submitting

the jurisdictional geospatial dataset to

the EPA and the Corps for approval.

With respect to review by EPA and the

Corps, should there should be a

requirement that the agencies approve

or disapprove the dataset within a set

number of days? As datasets would

need to be updated periodically, the

agencies also request comment on the

appropriate process for updating

datasets and a reasonable frequency for

doing so such that the datasets

effectively represent current conditions.

The goal would be to develop datasets

that graphically represent ‘‘waters of the

United States’’ or portions thereof, to

which agencies’ staff, the potentially

regulated community, and others could

refer to see waters that are

presumptively jurisdictional under the

CWA. No such dataset currently exists.

The agencies anticipate that, for such a

presumption, a geospatial dataset would

need to be developed using a method

approved by the EPA and the Corps, be

within the specifications for the dataset,

and be approved by the agencies to be

of sufficient quality. Such a dataset

would be subject to potential site-

specific refinement in individual

jurisdictional determinations to address,

for example, the lateral extent of

jurisdiction. This approval or

disapproval could be subject to judicial

review. Following approval, the

agencies anticipate that individual

waters could be added to or removed

from a dataset based on site-specific

jurisdictional determinations. Presently,

jurisdictional determinations by the

Corps are valid for five years, and the

agencies anticipate these approved

geospatial datasets would need to be

updated at a reasonable frequency to

ensure they reflect current conditions.

As part of such an effort, the agencies

would make public approved methods,

specifications and the geospatial

datasets at a centralized location. The

agencies therefore solicit comment on

appropriate features and attributes of

the website that would publish this

information, as well as any privacy

considerations the agencies should

understand. In order to provide a useful

tool to the public, the agencies

anticipate that each approved geospatial

dataset would need to be viewable

online via a web-based map, on a

federally-maintained website. The EPA

currently maintains a website at https://

watersgeo.epa.gov/cwa/CWA-JDs/ that

presents information on approved

jurisdictional determinations made by

the Corps and the EPA under the CWA

since August 28, 2015. The agencies

envision that in the future, this site or

another site could provide access to a

web-based map.

Because the EPA and the Corps would

review the methods used to generate the

datasets for consistency with the

definition of ‘‘waters of the United

States’’ and an acceptable level of

completeness and accuracy, the

resulting State, tribal, and Federal

agency datasets would not

inappropriately delegate the authority to

determine federal jurisdiction under the

CWA. Under this proposal, the agencies

would retain their current final

authority regarding the scope of ‘‘waters

of the United States.’’

The agencies are interested in

learning about experiences States,

Tribes, and other Federal agencies have

had with mapping aquatic resources and

using this information for program

implementation. What technical and

financial resources were required by

their past mapping efforts, and what

challenges were faced in mapping

various types of aquatic resources? Does

past experience recommend an

incremental approach, such that States,

Tribes, and other Federal agencies start

the process with more manageable first

steps such as focusing on tributaries

rather than all types of waters of the

United States, or by focusing on a

portion rather than or all of the

watersheds or other defined areas

within their borders? Under such an

incremental approach, the States,

Tribes, and other Federal agencies could

establish datasets for additional waters

over time. However, an incremental

approach would require recognition that

any approved dataset would not capture

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all waterbody types and therefore the

agencies would identify any limitations

on the web map viewer to provide

clarity. As the agencies engage with

States, Tribes, other Federal agencies,

and the public in a discussion of

possible aquatic resource datasets, the

agencies would like to better understand

the level of interest in developing

geospatial datasets of jurisdictional

waters should such an option be

available.

V. Overview of Supporting Analyses

The agencies conducted a series of

analyses to better understand the

potential effects across CWA programs

associated with a revised definition of

‘‘waters of the United States.’’ The

analyses are contained and described

more fully in the Resource and

Programmatic Assessment for the

Proposed Revised Definition of ‘‘Waters

of the United States’’ and in the

Economic Analysis for the Proposed

Revised Definition of ‘‘Waters of the

United States.’’ Copies of these

documents are available in the docket

for this action.

As a preliminary matter, the agencies

note that they are not aware of any map

or dataset that accurately or with any

precision portrays the scope of CWA

jurisdiction at any point in the history

of this complex regulatory program.

Establishing a mapped baseline from

which to assess regulatory changes is

likewise impracticable at this time. As

summarized in Section II, for example,

what was understood about the

potential scope of CWA jurisdiction

changed in the 1970s, in the mid-80s

with Riverside Bayview and regulatory

updates, in 2001 with the landmark

SWANCC decision, in 2006 with the

fractured Rapanos decision, in 2007 and

2008 with the agencies’ attempts to

discern the meaning of the Rapanos

decision through guidance and

throughout the ensuing decade of

litigation that tested those

interpretations, in 2015 with a major

rulemaking to redefine the operative

phrase ‘‘waters of the United States,’’

and throughout the complex litigation

following that rulemaking. As the Chief

Justice of the Supreme Court succinctly

observed in 2016, ‘‘[i]t is often difficult

to determine whether a particular piece

of property contains waters of the

United States . . . .’’ Army Corps of

Eng’rs v. Hawkes Co., 136 S. Ct. at 1812.

Given this history, the agencies are not

aware of any means to quantify changes

in CWA jurisdiction with any precision

that may or may not occur as a result of

this proposed rule. The agencies

acknowledge that they faced criticism

from many commenters regarding the

accuracy and assumptions they made

when attempting to estimate changes in

jurisdiction for the economic analysis

associated with the 2015 Rule.

Within this complex framework, the

agencies have attempted to look at

available data to analyze the potential

effects of this proposed definition across

CWA programs, recognizing that there

will be limitations with any approach.

In their analyses, the agencies describe

how the proposed regulation compares

to the baseline of the 2015 Rule and an

alternate baseline of pre-2015 practice

(i.e., the pre-2015 regulations as

interpreted by the Supreme Court and

implemented through agency guidance),

both of which represent current practice

in some areas of the country. The

documents outline the agencies’

assessment of the potential effects of the

proposed definition on aquatic

resources across the country and on

CWA programs, and the Resource and

Programmatic Assessment provides

further information on programs

addressing aquatic resource quality

under other federal statutes. The

agencies also researched current State

laws and programs to better understand

how States already regulate waters

within their borders. This information

was utilized throughout the agencies’

analyses; the State descriptions may be

found in Appendix B of the Resource

and Programmatic Assessment.

The agencies also identified relevant

datasets and technical limitations for

analyses of potential changes in

jurisdiction for different types of aquatic

resources. For the analyses, the agencies

examined data records in the Corps’

Operation and Maintenance Business

Information Link, Regulatory Module

(ORM2) database that documents Corps

decisions regarding the jurisdictional

status of various aquatic resource types

(i.e., jurisdictional determinations). The

aquatic resource types used in ORM2

generally track the Rapanos Guidance

(e.g., relatively permanent waters) but

do not directly correlate with the terms

used in the proposed rule, with limited

exceptions. The agencies attempted to

use publicly-available data from

national datasets (e.g., the National

Hydrography Dataset (NHD) at High

Resolution and the National Wetlands

Inventory (NWI)) to assess the potential

extent of types of waters whose

jurisdictional status might change as a

result of the proposed rule. While the

NHD and NWI datasets are widely used

and recognized as the most

comprehensive national datasets that

generally map waters and wetlands,

they are neither designed nor able to

portray jurisdictional waters under the

CWA. Therefore, they have technical

limitations that would affect the

agencies’ analyses, as more fully

described in the Resource and

Programmatic Assessment and

Economic Analysis for this proposal.

Because of these limitations and the

uncertainties in the way in which States

or Tribes might respond following a

change in the definition of ‘‘waters of

the United States,’’ many of the

potential effects of the proposed rule are

discussed qualitatively, and some are

discussed quantitatively where possible.

For the Economic Analysis, the

agencies applied a two-stage analysis to

make the best use of limited local and

national level water resources

information in their effort to assess the

potential implications of this proposed

rule. The agencies believe that the

outputs of this two-stage analysis are the

best way to illustrate the potential

overall impact of the proposed rule

against the baseline of the 2015 Rule

being in effect nationwide (i.e., the sum

effect of both stages) and of the 2015

Rule not being in effect (i.e., second

stage only). The agencies acknowledge

that determining what may happen

following the issuance of a new

regulation requires making various

assumptions, which are discussed

throughout the analyses.

The first stage of the Economic

Analysis (hereinafter Stage 1) assesses

the potential impacts of moving from

the 2015 Rule to the pre-2015 practice

baseline (i.e., repealing the 2015 Rule

and recodifying the prior regulations).

For the Stage 1 analysis, the agencies

used the original 2015 Rule economic

analysis as a starting point and

developed a quantitative assessment

limited to Stage 1. However, several

significant changes to the 2015 Rule

analysis have been made in the Stage 1

analysis to account for existing State

laws and programs that regulate water

and potential State governance

responses, as well as to account for

better information used to assess the

potential benefits and costs of the Stage

1 effects. The agencies developed

several scenarios using different

assumptions about potential State

regulation of waters to provide a range

of costs and benefits. Under the scenario

that assumes the fewest number of

States regulating newly non-

jurisdictional waters, the agencies

estimate the proposed rule would

produce annual avoided costs ranging

between $98 and $164 million and

annual forgone benefits ranging between

$33 to $38 million. When assuming the

greatest number of States are already

regulating newly non-jurisdictional

waters, the agencies estimate there

would be avoided annual costs ranging

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from $9 to $15 million and annual

forgone benefits are estimated to be

approximately $3 million. Under the

scenario that assumes no States will

regulate newly non-jurisdictional

waters, an outcome the agencies believe

would be unlikely, the agencies estimate

the proposed rule would produce

annual avoided costs ranging from $165

and $343 million and annual forgone

benefits ranging from $93 to $104

million.

The second stage of the economic

analysis (hereinafter Stage 2) consists of

a series of qualitative analyses and three

detailed case studies of moving from the

pre-2015 practice to the proposal. The

qualitative analysis is intended to

provide information on the likely

direction of the potential effects on

CWA regulatory programs. In addition,

the agencies conducted case studies in

three major watersheds (Ohio River

basin, Lower Missouri River basin, and

Rio Grande River basin) to provide

information for a quantitative

assessment of the potential effects of the

proposal. The case studies considered

potential ecological effects, and their

accompanying potential economic

effects for programs implemented

pursuant to sections 311, 402, and 404

of the CWA. Because of data limitations,

the agencies were only able to provide

Stage 2 national-level estimates of the

potential avoided permit and mitigation

costs and forgone benefits for the CWA

404 program. Using the same

methodologies employed in the case

studies and using a meta function

benefits transfer to value forgone

wetland benefits, the national annual

avoided costs of the CWA 404 program

are estimated to range from $28 million

to $266 million and national annual

forgone benefits from the CWA 404

program are estimated to range from $7

million to $47 million. When

considering the full range of scenarios

regarding potential State regulation of

waters no longer considered

jurisdictional under the proposal, the

estimated national annual avoided costs

of the CWA 404 program range from $28

million to $497 million and national

annual forgone benefits range from $7

million to $136 million.

The agencies solicit comment on all

aspects of the analyses performed,

including the assumptions made and

information used, and request that

commenters provide any data that may

assist the agencies in evaluating and

characterizing potential effects of the

proposed change of the definition of

‘‘waters of the United States.’’ For

example, the agencies request comment

on the suitability of the NHD and NWI

datasets as tools for performing

comparative analyses of revisions to the

definition of ‘‘waters of the United

States,’’ the datasets used (including

how they were used) for purposes of the

case studies and the national estimates

of costs and benefits for CWA 404

program, and the appropriateness of the

stated preference studies used to value

household willingness to pay for

changes in wetland acreage. The

agencies also solicit comment on the

utility of using focused case studies to

help inform the agencies’ analysis of a

nationwide rule given the lack of

comprehensive national datasets

representing jurisdictional waters.

VI. Statutory and Executive Order

Reviews

Additional information about these

statutes and Executive Orders can be

found at http://www2.epa.gov/laws-

regulations/laws-and-executive-orders.

A. Executive Order 13771: Reducing

Regulation and Controlling Regulatory

Costs

Pursuant to Executive Order 13771

(82 FR 9339, February 3, 2017), this

proposed rule is expected to be a

deregulatory action.

B. Executive Order 12866: Regulatory

Planning and Review; Executive Order

13563: Improving Regulation and

Regulatory Review

This action is an ‘‘economically

significant regulatory action’’ that was

submitted to the Office of Management

and Budget (OMB) for review. Any

changes made in response to OMB

recommendations have been

documented in the docket for this

action. In addition, the agencies

prepared an analysis of the potential

costs and benefits associated with this

action. This analysis is contained in

Economic Analysis for the Proposed

Revised Definition of ‘‘Waters of the

United States,’’ which is available in the

docket and briefly summarized in

Section V. Additional analysis can be

found in the Resource and

Programmatic Assessment for the

Proposed Revised Definition of ‘‘Waters

of the United States’’ which is also

available in the docket.

C. Paperwork Reduction Act

This action does not impose any new

information collection burden under the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq. OMB has previously

approved the information collection

activities contained in the existing

regulations and has assigned OMB

control numbers 2050–0021 and 2050–

0135 for the CWA section 311 program

and 2040–0004 for the CWA section 402

program. For the CWA section 404

program, the current OMB approval

number for information requirements is

maintained by the Corps (OMB approval

number 0710–0003). However, there are

no new approval or application

processes required as a result of this

rulemaking that necessitate a new

Information Collection Request (ICR).

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to prepare

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements under the

Administrative Procedure Act or any

other statute unless the agency certifies

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small

organizations, and small governmental

jurisdictions.

For purposes of assessing the impacts

of this proposed rule on small entities,

‘‘small entity’’ is defined as: (1) A small

business that is a small industrial entity

as defined in the U.S. Small Business

Administration’s size standards (see 13

CFR 121.201); (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district, or

special district with a population of less

than 50,000; or (3) a small organization

that is any not-for-profit enterprise that

is independently owned and operated

and is not dominant in its field.

The purpose of the RFA is ‘‘to fit

regulatory and informational

requirements to the scale of the

businesses, organizations and

governmental jurisdictions subject to

the regulation.’’ 5 U.S.C. 601. Small

entities subject to this proposed rule are

largely those entities whose activities

are directly covered by the CWA

sections 402, 404, and 311 programs.

The proposed rule is expected to result

in fewer entities subject to these

programs, and a reduced regulatory

burden for many of the entities that will

still be subject to these programs. As a

result, small entities subject to these

regulatory programs are unlikely to

suffer adverse impacts as a result of

regulatory compliance.

As addressed in the Economic

Analysis for the proposed rule,

narrowing the scope of CWA regulatory

jurisdiction over waters may result in a

reduction in the ecosystem services

provided by some waters, and as a

result, some entities may be adversely

impacted. Some business sectors that

depend on habitat, such as those

catering to hunters or anglers, or that

require water treatment to meet

production needs, could experience a

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greater impact relative to other sectors.

These changes in ecosystem services are

likely to be small, infrequent, and

dispersed over wide geographic areas,

thereby limiting the significance of

these impacts on these business sectors.

In addition, States and Tribes may

already address waters potentially

affected by a revised definition, thereby

reducing forgone benefits.

The sector likely to be most impacted

by the proposed rule are mitigation

banks, and companies that provide

restoration services. Because fewer

waters would be subject to the CWA

under the proposed rule than are subject

to regulation under the 2015 Rule or

pre-2015 practice, there may be a

reduction in demand for mitigation and

restoration services under the section

404 permitting program. Assessing

impacts to this sector is problematic,

because this sector lacks a SBA small

business definition, and many of the

businesses that fall within this sector

are also classified under various other

NAICs categories. Furthermore, impacts

to this sector would not be the direct

result of these businesses complying

with the proposed rule, rather they

would be the indirect result of other

entities no longer being required to

mitigate for discharges of dredged or fill

material into waters that would no

longer be jurisdictional under the

proposed rule. In addition, potential

impacts would be lessened when

accounting for State and tribal dredged

and fill programs that would necessitate

the purchase of mitigation credits. For a

more detailed discussion see the RFA

section of the Economic Analysis for the

proposed rule.

The agencies certify that this action

will not have a significant economic

impact on a substantial number of small

entities under the RFA. In making this

determination, the impact of concern is

any significant adverse economic

impact on small entities. An agency may

certify that a rule will not have a

significant economic impact on a

substantial number of small entities if

the rule relieves regulatory burden, has

no net burden or otherwise has a

positive economic effect on the small

entities subject to the rule. This is a

deregulatory action, and the burden on

all entities affected by this proposed

rule, including small entities, is reduced

compared to the 2015 Rule and pre-2015

practice. The agencies have therefore

concluded that this action will relieve

regulatory burden to small entities.

E. Unfunded Mandates Reform Act

This proposed rule does not contain

any unfunded mandate as described in

the Unfunded Mandates Reform Act of

1995 (UMRA), 2 U.S.C. 1531–1538, and

does not significantly or uniquely affect

small governments. The proposed

definition of ‘‘waters of the United

States’’ applies broadly to CWA

programs. The proposed action imposes

no enforceable duty on any state, local

or tribal governments or the private

sector, and does not contain regulatory

requirements that significantly or

uniquely affect small governments.

F. Executive Order 13132: Federalism

Consulting with state and local

government officials, or their

representative national organizations, is

an important step in the process prior to

proposing regulations that may have

implications for State and local

governments under the terms of

Executive Order 13132 (64 FR 43255,

August 10, 1999). The agencies

undertook a 60-day Federalism

consultation early in the process and

then conducted additional outreach to

States for this proposed rulemaking to

ensure that the agencies could hear the

perspectives on how the agencies might

revise the definition of ‘‘waters of the

United States’’ from our State co-

regulators. All letters received by the

agencies during Federalism consultation

may be found on EPA’s website at

https://www.epa.gov/wotus-rule/

federalism-consultation.

State and local governments were

consulted at the outset of rule

development starting on April 19, 2017.

The agencies held nineteen Federalism

meetings between April 19 and June 16,

2017. Seventeen intergovernmental

associations, including nine of the ten

organizations identified in EPA’s 2008

E.O. 13132 Guidance, attended the

initial Federalism consultation meeting,

as well as several associations

representing State and local

governments. Organizations in

attendance included: The National

Governors Association, the National

League of Cities, the National

Association of Counties, the U.S.

Conference of Mayors, the Council of

State Governments, the National

Conference of State Legislatures, the

County Executives of America, the

National Association of Towns and

Townships, the Environmental Council

of the States, the Western Governors

Association, the National Association of

Clean Water Agencies, the Association

of Clean Water Administrators, the

National Association of State

Departments of Agriculture, the

Association of State Wetlands Managers,

the Association of State Floodplain

Managers, the National Water Resources

Association, the State/Local Legal

Center, and several members of EPA’s

Local Government Advisory Committee

(LGAC).

The LGAC met 10 times during this

period to address the charge given to its

members by the EPA Administrator on

a revised rule and completed a report

addressing the questions outlined in

their charge. The July 14, 2017, final

report can be obtained here: https://

www.epa.gov/sites/production/files/

2017-07/documents/lgac-final-

wotusreport-july2017.pdf.

The agencies held two additional

webinars, the first for Tribes, States, and

local governments on December 12,

2017; and, one for States on February

20, 2018. In addition, one in-person

meeting to seek technical input on the

proposed rule was held with a small

group of nine states (Arizona, Arkansas,

Florida, Iowa, Maryland, Minnesota,

Oregon, Pennsylvania, and Wyoming)

on March 8 and 9, 2018.

These meetings and the letters

provided by representatives provide a

wide and diverse range of interests,

positions, comments, and

recommendations to the agencies. The

agencies have prepared a report

summarizing their consultation and

additional outreach to state and local

governments and the results of this

outreach. A copy of the draft report is

available in the docket (Docket Id. No.

EPA–HQ–OW–2018–0149) for this

proposed rule.

Under the technical requirements of

Executive Order 13132, the agencies

have determined that this proposed rule

may not have federalism implications

but believe that the requirements of the

Executive Order have been satisfied in

any event.

G. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

The EPA consulted with tribal

officials under the EPA Policy on

Consultation and Coordination with

Indian Tribes early in the process of

developing this action to permit them to

have meaningful and timely input into

its development. In the course of this

consultation, the Department of the

Army participated in aspects of the

process.

EPA initiated a tribal consultation and

coordination process before proposing

this rule by sending a ‘‘Notification of

Consultation and Coordination’’ letter

on April 20, 2017, to all of the 567

Tribes federally recognized at that time.

The letter invited tribal leaders and

designated consultation representatives

to participate in the tribal consultation

and coordination process. The agencies

held two identical webinars concerning

this matter for tribal representatives on

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April 27 and May 18, 2017. Tribes and

tribal organizations sent 43 pre-proposal

comment letters to the agencies as part

of the consultation process. The

agencies met with nine Tribes at a staff-

level and with three Tribes at a leader-

to-leader level, and additional meetings

with Tribes are to be scheduled. The

agencies continued engagement with

Tribes after the end of the formal

consultation, including at national

update webinars on December 12, 2017

and February 20, 2018, and an in-person

Tribal Co-Regulators Workshop on

March 6–7, 2018. The agencies have

prepared a report summarizing the

consultation and further engagement

with tribal nations. This report,

Summary Report of Tribal Consultation

and Engagement for the Proposed Rule:

Definition of ‘‘Waters of the United

States’’ (Docket Id. No. EPA–HQ–OW–

2018–0149), is available in the docket

for this proposed rule.

This action may have tribal

implications. However, it will neither

impose substantial direct compliance

costs on federally recognized tribal

governments, nor preempt tribal law.

H. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

This action is not subject to Executive

Order 13045 (62 FR 19885, April 23,

1997) because the environmental health

or safety risks addressed by this action

do not present a disproportionate risk to

children.

I. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution or Use

This action is not a ‘‘significant

energy action’’ as defined in Executive

Order 13211 (66 FR 28355, May 22,

2001), because it is not likely to have a

significant adverse effect on the supply,

distribution or use of energy.

J. National Technology Transfer and

Advancement Act

This proposed rule does not involve

technical standards. The agencies

recognize, however, that if they pursue

a separate rulemaking to establish a

process for approving methodologies

and geospatial datasets as discussed in

Section III.H, there would be technical

standards involved.

K. Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Populations

This action is not subject to Executive

Order 12898 (59 FR 7629, February 11,

1994) because there is no significant

evidence of disproportionately high and

adverse human health or environmental

effects on minority populations, low-

income populations, and/or indigenous

peoples, as specified in Executive Order

12898.

List of Subjects

33 CFR Part 328

Environmental protection,

Administrative practice and procedure,

Navigation (water), Water pollution

control, Waterways.

40 CFR Part 110

Environmental protection, Oil

pollution, Reporting and recordkeeping

requirements.

40 CFR Part 112

Environmental protection, Oil

pollution, Penalties, Reporting and

recordkeeping requirements.

40 CFR Part 116

Environmental protection, Hazardous

substances, Reporting and

recordkeeping requirements, Water

pollution control.

40 CFR Part 117

Environmental protection, Hazardous

substances, Penalties, Reporting and

recordkeeping requirements, Water

pollution control.

40 CFR Part 122

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous substances, Reporting and

recordkeeping requirements, Water

pollution control.

40 CFR Part 230

Environmental protection, Water

pollution control.

40 CFR Part 232

Environmental protection,

Intergovernmental relations, Water

pollution control.

40 CFR Part 300

Environmental protection, Air

pollution control, Chemicals, Hazardous

substances, Hazardous waste,

Intergovernmental relations, Natural

resources, Occupational safety and

health, Oil pollution, Penalties,

Reporting and recordkeeping

requirements, Superfund, Water

pollution control, Water supply.

40 CFR Part 302

Environmental protection, Air

pollution control, Chemicals, Hazardous

substances, Hazardous waste,

Intergovernmental relations, Natural

resources, Reporting and recordkeeping

requirements, Superfund, Water

pollution control, Water supply.

40 CFR Part 401

Environmental protection, Waste

treatment and disposal, Water pollution

control.

Dated: December 11, 2018.

Andrew R. Wheeler,

Acting Administrator, Environmental

Protection Agency.

Dated: December 11, 2018.

R.D. James,

Assistant Secretary for the Army (Civil

Works), Department of the Army.

Title 33—Navigation and Navigable

Waters

For the reasons set forth in the

preamble, the Corps of Engineers

proposes to amend 33 CFR part 328 as

follows:

PART 328—DEFINITION OF WATERS

OF THE UNITED STATES

■1. The authority citation for part 328

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

■2. Section 328.3 is revised to read as

follows:

§ 328.3 Definitions.

For the purpose of this regulation

these terms are defined as follows:

(a) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (b) of this

section, the term ‘‘waters of the United

States’’ means:

(1) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(2) Tributaries of waters identified in

paragraph (a)(1) of this section;

(3) Ditches that satisfy any of the

conditions identified in paragraph (a)(1)

of this section, ditches constructed in a

tributary or that relocate or alter a

tributary as long as those ditches also

satisfy the conditions of the tributary

definition, and ditches constructed in

an adjacent wetland as long as those

ditches also satisfy the conditions of the

tributary definition;

(4) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(a)(1) of this section, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(a)(1) in a typical year either directly or

indirectly through a water(s) identified

in paragraphs (a)(2) through (6) of this

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section or through water features

identified in paragraph (b) of this

section so long as those water features

convey perennial or intermittent flow

downstream, and lakes and ponds that

are flooded by a water identified in

paragraphs (a)(1) through (5) of this

section in a typical year;

(5) Impoundments of waters

identified in paragraphs (a)(1) through

(4) and (6) of this section; and

(6) Adjacent wetlands to waters

identified in paragraphs (a)(1) through

(5) of this section.

(b) The following are not ‘‘waters of

the United States’’:

(1) Waters or water features that are

not identified in paragraphs (a)(1)

through (6) of this section;

(2) Groundwater, including

groundwater drained through

subsurface drainage systems;

(3) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(4) Ditches that are not identified in

paragraph (a)(3) of this section;

(5) Prior converted cropland;

(6) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(7) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(a)(4) or (5) of this section;

(8) Water-filled depressions created in

upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(9) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(10) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(11) Waste treatment systems.

(c) Definitions: In this section, the

following definitions apply:

(1) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (a)(1) through (5) of this

section in a typical year. Abut means to

touch at least at one point or side of a

water identified in paragraphs (a)(1)

through (5) of this section. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(a)(1) through (5) water to a wetland or

via perennial or intermittent flow

between a wetland and a paragraph

(a)(1) through (5) water. Wetlands

physically separated from a paragraph

(a)(1) through (5) water by upland or by

dikes, barriers, or similar structures and

also lacking a direct hydrologic surface

connection to such waters are not

adjacent.

(2) Ditch. The term ditch means an

artificial channel used to convey water.

(3) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(4) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(5) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(6) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(7) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(8) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (c)(15) of this section.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(9) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(10) Tidal waters and waters subject

to the ebb and flow of the tide. The

terms tidal waters and waters subject to

the ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(11) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (a)(1) of this section in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (a)(2) through (6) of this

section or through water features

identified in paragraph (b) of this

section so long as those water features

convey perennial or intermittent flow

downstream. A tributary does not lose

its status as a tributary if it flows

through a culvert, dam, or other similar

artificial break or through a debris pile,

boulder field, or similar natural break so

long as the artificial or natural break

conveys perennial or intermittent flow

to a tributary or other jurisdictional

water at the downstream end of the

break. The alteration or relocation of a

tributary does not modify its status as a

tributary as long as it continues to

satisfy the elements of this definition.

(12) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(13) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

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hydric soils) identified in paragraph

(c)(15) of this section, and does not lie

below the ordinary high water mark or

the high tide line of a water identified

in paragraph (a)(1) through (6) of this

section. Waters identified in paragraphs

(a)(1) through (6) of this section are not

upland.

(14) Waste treatment system. The term

waste treatment system includes all

components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(15) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

Title 40—Protection of Environment

For reasons set out in the preamble,

the EPA proposes to amend 40 CFR part

110 as follows:

PART 110—DISCHARGE OF OIL

■3. The authority citation for part 110

continues to read as follows: 33 U.S.C.

Authority: 1251 et seq., 33 U.S.C.

1321(b)(3) and (b)(4) and 1361(a); E.O. 11735,

38 FR 21243, 3 CFR parts 1971–1975 Comp.,

p. 793.

■4. Section 110.1 is amended by

revising the definition of ‘‘navigable

waters’’ to read as follows:

§ 110.1 Definitions.

* * * * *

Navigable waters means waters of the

United States, including the territorial

seas.

(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (2) of this

section, the term ‘‘waters of the United

States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (1)(i) of this definition;

(iii) Ditches that satisfy any of the

conditions identified in paragraph (1)(i)

of this definition, ditches constructed in

a tributary or that relocate or alter a

tributary as long as those ditches also

satisfy the conditions of the tributary

definition, and ditches constructed in

an adjacent wetland as long as those

ditches also satisfy the conditions of the

tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(1)(i) of this definition, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(1)(i) of this definition in a typical year

either directly or indirectly through a

water(s) identified in paragraphs (1)(ii)

through (vi) of this definition or through

water features identified in paragraph

(2) of this definition so long as those

water features convey perennial or

intermittent flow downstream, and lakes

and ponds that are flooded by a water

identified in paragraphs (1)(i) through

(v) of this definition in a typical year;

(v) Impoundments of waters

identified in paragraphs (1)(i) through

(iv) and (vi) of this definition; and

(vi) Adjacent wetlands to waters

identified in paragraphs (1)(i) through

(v) of this definition.

(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (1)(i)

through (vi) of this definition;

(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (1)(iii) of this definition;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(1)(iv) or (v) of this definition;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(ix) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this definition, the following

terms apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (1)(i) through (v) of this

definition in a typical year. Abut means

to touch at least at one point or side of

a water identified in paragraphs (1)(i)

through (v) of this definition. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(1)(i) through (v) water to a wetland or

via perennial or intermittent flow

between a wetland and a paragraph

(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(1)(i) through (v) water by upland or by

dikes, barriers, or similar structures and

also lacking a direct hydrologic surface

connection to such waters are not

adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

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(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (3)(xv) of this definition.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (1)(i) of this definition in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (1)(ii) through (vi) of this

definition or through water features

identified in paragraph (2) of this

definition so long as those water

features convey perennial or

intermittent flow downstream. A

tributary does not lose its status as a

tributary if it flows through a culvert,

dam, or other similar artificial break or

through a debris pile, boulder field, or

similar natural break so long as the

artificial or natural break conveys

perennial or intermittent flow to a

tributary or other jurisdictional water at

the downstream end of the break. The

alteration or relocation of a tributary

does not modify its status as a tributary

as long as it continues to satisfy the

elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(3)(xv) of this definition, and does not

lie below the ordinary high water mark

or the high tide line of a water identified

in paragraph (1)(i) through (vi) of this

definition. Waters identified in

paragraphs (1)(i) through (vi) of this

definition are not upland.

(xiv) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

* * * * *

PART 112—OIL POLLUTION

PREVENTION

■5. The authority citation for part 112

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

■6. Section 112.2 is amended by

revising the definition of ‘‘navigable

waters’’ to read as follows:

§ 112.2 Definitions.

* * * * *

Navigable waters means waters of the

United States, including the territorial

seas.

(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (2) of this

section, the term ‘‘waters of the United

States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (1)(i) of this definition;

(iii) Ditches that satisfy any of the

conditions identified in paragraph (1)(i)

of this definition, ditches constructed in

a tributary or that relocate or alter a

tributary as long as those ditches also

satisfy the conditions of the tributary

definition, and ditches constructed in

an adjacent wetland as long as those

ditches also satisfy the conditions of the

tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(a)(1) of this definition, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(1)(i) of this section in a typical year

either directly or indirectly through a

water(s) identified in paragraphs (1)(ii)

through (iv) of this definition or through

water features identified in paragraph

(2) of this definition so long as those

water features convey perennial or

intermittent flow downstream, and lakes

and ponds that are flooded by a water

identified in paragraphs (1)(i) through

(v) of this definition in a typical year;

(v) Impoundments of waters

identified in paragraphs (1)(i) through

(iv) and (vi) of this definition; and

(vi) Adjacent wetlands to waters

identified in paragraphs (1)(i) through

(v) of this definition.

(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (1)(i)

through (vi) of this definition;

(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (1)(iii) of this definition;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(1)(iv) or (1)(v) of this definition;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(ix) Stormwater control features

excavated or constructed in upland to

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convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this definition, the following

terms apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (1)(i) through (v) of this

definition in a typical year. Abut means

to touch at least at one point or side of

a water identified in paragraphs (1)(i)

through (v) of this definition. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(1)(i) through (v) water to a wetland or

via perennial or intermittent flow

between a wetland and a paragraph

(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(1)(i) through (v) water by upland or by

dikes, barriers, or similar structures and

also lacking a direct hydrologic surface

connection to such waters are not

adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (3)(xv) of this definition.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (1)(i) of this definition in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (1)(ii) through (vi) of this

definition or through water features

identified in paragraph (2) of this

section so long as those water features

convey perennial or intermittent flow

downstream. A tributary does not lose

its status as a tributary if it flows

through a culvert, dam, or other similar

artificial break or through a debris pile,

boulder field, or similar natural break so

long as the artificial or natural break

conveys perennial or intermittent flow

to a tributary or other jurisdictional

water at the downstream end of the

break. The alteration or relocation of a

tributary does not modify its status as a

tributary as long as it continues to

satisfy the elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(3)(xv) of this definition, and does not

lie below the ordinary high water mark

or the high tide line of a water identified

in paragraph (1)(i) through (vi) of this

definition. Waters identified in

paragraphs (1)(i) through (vi) of this

definition are not upland.

(xiv) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

* * * * *

PART 116—DESIGNATION OF

HAZARDOUS SUBSTANCES

■7. The authority citation for part 116

is continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

■8. Section 116.3 is amended by

revising the definition of ‘‘Navigable

waters’’ to read as follows:

§ 116.3 Definitions.

* * * * *

Navigable waters means waters of the

United States, including the territorial

seas.

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(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (2) of this

definition, the term ‘‘waters of the

United States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (1)(i) of this definition;

(iii) Ditches that satisfy any of the

conditions identified in paragraph (1)(i)

of this definition, ditches constructed in

a tributary or that relocate or alter a

tributary as long as those ditches also

satisfy the conditions of the tributary

definition, and ditches constructed in

an adjacent wetland as long as those

ditches also satisfy the conditions of the

tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(a)(1) of this definition, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(1)(i) of this definition in a typical year

either directly or indirectly through a

water(s) identified in paragraphs (1)(ii)

through (iv) of this definition or through

water features identified in paragraph

(2) of this definition so long as those

water features convey perennial or

intermittent flow downstream, and lakes

and ponds that are flooded by a water

identified in paragraphs (1)(i) through

(v) of this definition in a typical year;

(v) Impoundments of waters

identified in paragraphs (1)(i) through

(iv) and (vi) of this definition; and

(vi) Adjacent wetlands to waters

identified in paragraphs (1)(i) through

(v) of this definition.

(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (1)(i)

through (vi) of this definition;

(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (1)(iii) of this definition;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(1)(iv) or (v) of this definition;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(ix) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this definition, the following

terms apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (1)(i) through (v) of this

definition in a typical year. Abut means

to touch at least at one point or side of

a water identified in paragraphs (1)(i)

through (v) of this definition. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(1)(i) through (v) water to a wetland or

via perennial or intermittent flow

between a wetland and a paragraph

(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(1)(i) through (v) water by upland or by

dikes, barriers, or similar structures and

also lacking a direct hydrologic surface

connection to such waters are not

adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (3)(xv) of this definition.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

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channel that contributes perennial or

intermittent flow to a water identified in

paragraph (1)(i) of this definition in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (1)(ii) through (vi) of this

definition or through water features

identified in paragraph (2) of this

section so long as those water features

convey perennial or intermittent flow

downstream. A tributary does not lose

its status as a tributary if it flows

through a culvert, dam, or other similar

artificial break or through a debris pile,

boulder field, or similar natural break so

long as the artificial or natural break

conveys perennial or intermittent flow

to a tributary or other jurisdictional

water at the downstream end of the

break. The alteration or relocation of a

tributary does not modify its status as a

tributary as long as it continues to

satisfy the elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(3)(xv) of this definition, and does not

lie below the ordinary high water mark

or the high tide line of a water identified

in paragraph (1)(i) through (vi) of this

definition. Waters identified in

paragraphs (1)(i) through (vi) of this

definition are not upland.

(xiv) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

* * * * *

PART 117—DETERMINATION OF

REPORTABLE QUANTITIES FOR

HAZARDOUS SUBSTANCES

■9. The authority citation for part 117

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq., and

Executive Order 11735, superseded by

Executive Order 12777, 56 FR 54757.

■10. Section 117.1 is amended by

revising paragraph (i) to read as follows:

§ 117.1 Definitions.

* * * * *

(i) Navigable waters is defined in

section 502(7) of the Act to mean

‘‘waters of the United States, including

the territorial seas.’’

(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (i)(2) of this

section, the term ‘‘waters of the United

States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (i)(1)(i) of this section;

(iii) Ditches that satisfy any of the

conditions identified in paragraph

(i)(1)(i) of this section, ditches

constructed in a tributary or that

relocate or alter a tributary as long as

those ditches also satisfy the conditions

of the tributary definition, and ditches

constructed in an adjacent wetland as

long as those ditches also satisfy the

conditions of the tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(i)(1)(i) of this section, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(i)(1)(i) of this section in a typical year

either directly or indirectly through a

water(s) identified in paragraphs

(i)(1)(ii) through (vi) of this section or

through water features identified in

paragraph (i)(2) of this section so long

as those water features convey perennial

or intermittent flow downstream, and

lakes and ponds that are flooded by a

water identified in paragraphs (i)(1)(i)

through (v) of this section in a typical

year;

(vi) Impoundments of waters

identified in paragraphs (i)(1)(i) through

(iv) and (vi) of this section; and

(vii) Adjacent wetlands to waters

identified in paragraphs (i)(1)(i) through

(v) of this section.

(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (i)(1)(i)

through (vi) of this section;

(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (i)(1)(iii) of this section;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(i)(1)(iv) or (v) of this section;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(ix) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this paragraph (i), the following

definitions apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (i)(1)(i) through (v) of this

section in a typical year. Abut means to

touch at least at one point or side of a

water identified in paragraphs (i)(1)(i)

through (v) of this section. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(i)(1)(i) through (v) water to a wetland

or via perennial or intermittent flow

between a wetland and a paragraph

(i)(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(i)(1)(i) through (v) water by upland or

by dikes, barriers, or similar structures

and also lacking a direct hydrologic

surface connection to such waters are

not adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

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lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (i)(3)(xv) of this section.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (i)(1)(i) of this section in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (i)(1)(ii) through (vi) of this

section or through water features

identified in paragraph (i)(2) of this

section so long as those water features

convey perennial or intermittent flow

downstream. A tributary does not lose

its status as a tributary if it flows

through a culvert, dam, or other similar

artificial break or through a debris pile,

boulder field, or similar natural break so

long as the artificial or natural break

conveys perennial or intermittent flow

to a tributary or other jurisdictional

water at the downstream end of the

break. The alteration or relocation of a

tributary does not modify its status as a

tributary as long as it continues to

satisfy the elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(i)(3)(xv) of this section, and does not lie

below the ordinary high water mark or

the high tide line of a water identified

in paragraph (i)(1)(i) through (vi) of this

section. Waters identified in paragraphs

(i)(1)(i) through (vi) of this section are

not upland.

(xiv) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

* * * * *

PART 122—EPA ADMINISTERED

PERMIT PROGRAMS: THE NATIONAL

POLLUTANT DISCHARGE

ELIMINATION SYSTEM

■11. The authority citation for part 122

continues to read as follows:

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

1251 et seq.

■12. Section 122.2 is amended by

revising the definition of ‘‘Waters of the

United States’’ to read as follows:

§ 122.2 Definitions.

* * * * *

Waters of the United States or waters

of the U.S. means:

(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (2) of this

definition, the term ‘‘waters of the

United States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (1)(i) of this definition;

(iii) Ditches that satisfy any of the

conditions identified in paragraph (1)(i)

of this definition, ditches constructed in

a tributary or that relocate or alter a

tributary as long as those ditches also

satisfy the conditions of the tributary

definition, and ditches constructed in

an adjacent wetland as long as those

ditches also satisfy the conditions of the

tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(1)(i) of this definition, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(1)(i) of this definition in a typical year

either directly or indirectly through a

water(s) identified in paragraphs (1)(ii)

through (vi) of this definition or through

water features identified in paragraph

(2) of this definition so long as those

water features convey perennial or

intermittent flow downstream, and lakes

and ponds that are flooded by a water

identified in paragraphs (1)(i) through

(v) of this definition in a typical year;

(v) Impoundments of waters

identified in paragraphs (1)(i) through

(iv) and (vi) of this definition; and

(vi) Adjacent wetlands to waters

identified in paragraphs (1)(i) through

(v) of this definition.

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(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (1)(i)

through (vi) of this definition;

(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (1)(iii) of this definition;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(1)(iv) or (v) of this section;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(ix) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this definition, the following

terms apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (1)(i) through (v) of this

definition in a typical year. Abut means

to touch at least at one point or side of

a water identified in paragraphs (1)(i)

through (v) of this definition. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(1)(i) through (v) water to a wetland or

via perennial or intermittent flow

between a wetland and a paragraph

(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(1)(i) through (v) water by upland or by

dikes, barriers, or similar structures and

also lacking a direct hydrologic surface

connection to such waters are not

adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (3)(xv) of this definition.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (1)(i) of this definition in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (1)(ii) through (vi) of this

definition or through water features

identified in paragraph (2) of this

section so long as those water features

convey perennial or intermittent flow

downstream. A tributary does not lose

its status as a tributary if it flows

through a culvert, dam, or other similar

artificial break or through a debris pile,

boulder field, or similar natural break so

long as the artificial or natural break

conveys perennial or intermittent flow

to a tributary or other jurisdictional

water at the downstream end of the

break. The alteration or relocation of a

tributary does not modify its status as a

tributary as long as it continues to

satisfy the elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(3)(xv) of this definition, and does not

lie below the ordinary high water mark

or the high tide line of a water identified

in paragraph (1)(i) through (vi) of this

definition. Waters identified in

paragraphs (1)(i) through (vi) of this

definition are not upland.

(xiv) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

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retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

* * * * *

PART 230—SECTION 404(b)(1)

GUIDELINES FOR SPECIFICATION OF

DISPOSAL SITES FOR DREDGED OR

FILL MATERIAL

■13. The authority citation for part 230

continues to read as follows:

Authority: The Clean Water Act, Secs.

404(b) and 501(a) of the Clean Water Act of

1977 (33 U.S.C. 1344(b) and 1361(a)).

■14. Section 230.3 is amended by

revising paragraph (o) to read as follows:

§ 230.3 Definitions.

* * * * *

(o) The term waters of the United

States means:

(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (o)(3) of this

section, the term ‘‘waters of the United

States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (o)(1)(i) of this section;

(iii) Ditches that satisfy any of the

conditions identified in paragraph

(o)(1)(i) of this section, ditches

constructed in a tributary or that

relocate or alter a tributary as long as

those ditches also satisfy the conditions

of the tributary definition, and ditches

constructed in an adjacent wetland as

long as those ditches also satisfy the

conditions of the tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(o)(1)(i) of this section, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(o)(1)(i) of this section in a typical year

either directly or indirectly through a

water(s) identified in paragraphs

(o)(1)(i) of this section or through water

features identified in paragraph (o)(2) of

this section so long as those water

features convey perennial or

intermittent flow downstream, and lakes

and ponds that are flooded by a water

identified in paragraphs (o)(1)(i) through

(v) of this section in a typical year;

(v) Impoundments of waters

identified in paragraphs (o)(1)(i) through

(iv) and (vi) of this section; and

(vi) Adjacent wetlands to waters

identified in paragraphs (o)(1)(i) through

(v) of this section.

(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (o)(1)(i)

through (vi) of this section;

(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (o)(1)(iii) of this section;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(o)(1)(iv) or (v) of this section;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(ix) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this paragraph (o), the following

definitions apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (o)(1)(i) through (v) of this

section in a typical year. Abut means to

touch at least at one point or side of a

water identified in paragraphs (o)(1)(i)

through (v) of this section. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(o)(1)(i) through (v) water to a wetland

or via perennial or intermittent flow

between a wetland and a paragraph

(o)(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(o)(1)(i) through (v) water by upland or

by dikes, barriers, or similar structures

and also lacking a direct hydrologic

surface connection to such waters are

not adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

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Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (o)(3)(xv) of this section.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (o)(1)(i) of this section in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (o)(1)(i) through (vi) of this

section or through water features

identified in paragraph (o)(3) of this

section so long as those water features

convey perennial or intermittent flow

downstream. A tributary does not lose

its status as a tributary if it flows

through a culvert, dam, or other similar

artificial break or through a debris pile,

boulder field, or similar natural break so

long as the artificial or natural break

conveys perennial or intermittent flow

to a tributary or other jurisdictional

water at the downstream end of the

break. The alteration or relocation of a

tributary does not modify its status as a

tributary as long as it continues to

satisfy the elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(o)(3)(xv) of this section, and does not

lie below the ordinary high water mark

or the high tide line of a water identified

in paragraph (o)(1)(i) through (vi) of this

section. Waters identified in paragraphs

(o)(1)(i) through (vi) of this section are

not upland.

(xiv) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

PART 232—404 PROGRAMS

DEFINITIONS; EXEMPT ACTIVITIES

NOT REQUIRING 404 PERMITS

■15. The authority citation for part 232

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

■16. Section 232.2 is amended by

revising the definition of ‘‘Waters of the

United States’’ to read as follows:

§ 232.2 Definitions.

* * * * *

Waters of the United States means:

(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (2) of this

definition, the term ‘‘waters of the

United States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (1)(i) of this definition;

(iii) Ditches that satisfy any of the

conditions identified in paragraph (1)(i)

of this definition, ditches constructed in

a tributary or that relocate or alter a

tributary as long as those ditches also

satisfy the conditions of the tributary

definition, and ditches constructed in

an adjacent wetland as long as those

ditches also satisfy the conditions of the

tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(1)(i) of this definition, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(1)(i) of this definition in a typical year

either directly or indirectly through a

water(s) identified in paragraphs (1)(ii)

through (vi) of this definition or through

water features identified in paragraph

(2) of this definition so long as those

water features convey perennial or

intermittent flow downstream, and lakes

and ponds that are flooded by a water

identified in paragraphs (1)(i) through

(v) of this definition in a typical year;

(v) Impoundments of waters

identified in paragraphs (1)(i) through

(iv) and (vi) of this definition; and

(vi) Adjacent wetlands to waters

identified in paragraphs (1)(i) through

(v) of this definition.

(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (1)(i)

through (vi) of this definition;

(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (1)(iii) of this definition;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(1)(iv) or (v) of this definition;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(ix) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this definition, the following

terms apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (1)(i) through (v) of this

definition in a typical year. Abut means

to touch at least at one point or side of

a water identified in paragraphs (1)(i)

through (v) of this definition. A direct

hydrologic surface connection occurs as

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a result of inundation from a paragraph

(1)(i) through (v) water to a wetland or

via perennial or intermittent flow

between a wetland and a paragraph

(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(1)(i) through (v) water by upland or by

dikes, barriers, or similar structures and

also lacking a direct hydrologic surface

connection to such waters are not

adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (3)(xv) of this definition.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (1)(i) of this section in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (1)(ii) through (vi) of this

section or through water features

identified in paragraph (b) of this

section so long as those water features

convey perennial or intermittent flow

downstream. A tributary does not lose

its status as a tributary if it flows

through a culvert, dam, or other similar

artificial break or through a debris pile,

boulder field, or similar natural break so

long as the artificial or natural break

conveys perennial or intermittent flow

to a tributary or other jurisdictional

water at the downstream end of the

break. The alteration or relocation of a

tributary does not modify its status as a

tributary as long as it continues to

satisfy the elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(3)(xv) of this definition, and does not

lie below the ordinary high water mark

or the high tide line of a water identified

in paragraph (1)(i) through (vi) of this

definition. Waters identified in

paragraphs (1)(i) through (vi) of this

definition are not upland.

(xvi) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

PART 300—NATIONAL OIL AND

HAZARDOUS SUBSTANCES

POLLUTION CONTINGENCY PLAN

■17. The authority citation for part 300

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

■18. Section 300.5 is amended by

revising the definition of ‘‘Navigable

waters’’ to read as follows:

§ 300.5 Definitions.

* * * * *

Navigable waters means the waters of

the United States, including the

territorial seas.

(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (2) of this

definition, the term ‘‘waters of the

United States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (1)(i) of this definition;

(iii) Ditches that satisfy any of the

conditions identified in paragraph (1)(i)

of this definition, ditches constructed in

a tributary or that relocate or alter a

tributary as long as those ditches also

satisfy the conditions of the tributary

definition, and ditches constructed in

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an adjacent wetland as long as those

ditches also satisfy the conditions of the

tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(1)(i) of this definition, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(1)(i) of this definition in a typical year

either directly or indirectly through a

water(s) identified in paragraphs (1)(ii)

through (vi) of this definition or through

water features identified in paragraph

(2) of this section so long as those water

features convey perennial or

intermittent flow downstream, and lakes

and ponds that are flooded by a water

identified in paragraphs (1)(i) through

(v) of this definition in a typical year;

(v) Impoundments of waters

identified in paragraphs (1)(i) through

(iv) and (vi) of this definition; and

(vi) Adjacent wetlands to waters

identified in paragraphs (1)(i) through

(v) of this definition.

(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (1)(i)

through (vi) of this definition;

(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (1)(iii) of this definition;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(1)(iv) or (v) of this definition;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(ix) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this definition, the following

definitions apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (1)(i) through (v) of this

definition in a typical year. Abut means

to touch at least at one point or side of

a water identified in paragraphs (1)(i)

through (v) of this definition. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(1)(i) through (v) water to a wetland or

via perennial or intermittent flow

between a wetland and a paragraph

(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(1)(i) through (v) water by upland or by

dikes, barriers, or similar structures and

also lacking a direct hydrologic surface

connection to such waters are not

adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (3)(xv) of this definition.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (1)(i) of this definition in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (1)(ii) through (vi) of this

definition or through water features

identified in paragraph (2) of this

definition so long as those water

features convey perennial or

intermittent flow downstream. A

tributary does not lose its status as a

tributary if it flows through a culvert,

dam, or other similar artificial break or

through a debris pile, boulder field, or

similar natural break so long as the

artificial or natural break conveys

perennial or intermittent flow to a

tributary or other jurisdictional water at

the downstream end of the break. The

alteration or relocation of a tributary

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does not modify its status as a tributary

as long as it continues to satisfy the

elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(3)(xv) of this definition, and does not

lie below the ordinary high water mark

or the high tide line of a water identified

in paragraph (1)(i) through (vi) of this

definition. Waters identified in

paragraphs (1)(i) through (vi) of this

definition are not upland.

(xiv) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

* * * * *

■19. In appendix E to part 300, section

1.5 Definitions is amended by revising

the definition of ‘‘Navigable waters’’ to

read as follows:

Appendix E to Part 300—Oil Spill

Response

* * * * *

1.5 Definitions. * * *

Navigable waters means the waters of the

United States, including the territorial seas.

(1) For purposes of the Clean Water Act, 33

U.S.C. 1251 et seq. and its implementing

regulations, subject to the exclusions in

paragraph (2) of this definition, the term

‘‘waters of the United States’’ means:

(i) Waters which are currently used, or

were used in the past, or may be susceptible

to use in interstate or foreign commerce,

including the territorial seas and waters

which are subject to the ebb and flow of the

tide;

(ii) Tributaries of waters identified in

paragraph (1)(i) of this definition;

(iii) Ditches that satisfy any of the

conditions identified in paragraph (1)(i) of

this definition, ditches constructed in a

tributary or that relocate or alter a tributary

as long as those ditches also satisfy the

conditions of the tributary definition, and

ditches constructed in an adjacent wetland as

long as those ditches also satisfy the

conditions of the tributary definition;

(iv) Lakes and ponds that satisfy any of the

conditions identified in paragraph (1)(i) of

this definition, lakes and ponds that

contribute perennial or intermittent flow to a

water identified in paragraph (1)(i) of this

section in a typical year either directly or

indirectly through a water(s) identified in

paragraphs (1)(ii) through (vi) of this

definition or through water features

identified in paragraph (2) of this definition

so long as those water features convey

perennial or intermittent flow downstream,

and lakes and ponds that are flooded by a

water identified in paragraphs (1)(i) through

(v) of this definition in a typical year;

(v) Impoundments of waters identified in

paragraphs (1)(i) through (iv) and (vi) of this

definition; and

(vi) Adjacent wetlands to waters identified

in paragraphs (1)(i) through (v) of this

section.

(2) The following are not ‘‘waters of the

United States’’:

(i) Waters or water features that are not

identified in paragraphs (1)(i) through (vi) of

this definition;

(ii) Groundwater, including groundwater

drained through subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including directional

sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (1)(iii) of this definition;

(v) Prior converted cropland;

(vi) Artificially irrigated areas, including

fields flooded for rice or cranberry growing,

that would revert to upland should

application of irrigation water to that area

cease;

(vii) Artificial lakes and ponds constructed

in upland (including water storage reservoirs,

farm and stock watering ponds, and log

cleaning ponds) which are not identified in

paragraph (1)(iv) or (v) of this definition;

(viii) Water-filled depressions created in

upland incidental to mining or construction

activity, and pits excavated in upland for the

purpose of obtaining fill, sand, or gravel;

(xi) Stormwater control features excavated

or constructed in upland to convey, treat,

infiltrate or store stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as detention,

retention and infiltration basins and ponds,

and groundwater recharge basins; and

(xi) Waste treatment systems.

(3) In this definition, the following terms

apply:

(i) Adjacent wetlands. The term adjacent

wetlands means wetlands that abut or have

a direct hydrologic surface connection to a

water identified in paragraphs (1)(i) through

(v) of this definition in a typical year. Abut

means to touch at least at one point or side

of a water identified in paragraphs (1)(i)

through (v) of this definition. A direct

hydrologic surface connection occurs as a

result of inundation from a paragraph (1)(i)

through (v) water to a wetland or via

perennial or intermittent flow between a

wetland and a paragraph (1)(i) through (v)

water. Wetlands physically separated from a

paragraph (1)(i) through (v) water by upland

or by dikes, barriers, or similar structures and

also lacking a direct hydrologic surface

connection to such waters are not adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral means

surface water flowing or pooling only in

direct response to precipitation (e.g., rain or

snow fall).

(iv) High tide line. The term high tide line

means the line of intersection of the land

with the water’s surface at the maximum

height reached by a rising tide. The high tide

line may be determined, in the absence of

actual data, by a line of oil or scum along

shore objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical markings or

characteristics, vegetation lines, tidal gages,

or other suitable means that delineate the

general height reached by a rising tide. The

line encompasses spring high tides and other

high tides that occur with periodic frequency

but does not include storm surges in which

there is a departure from the normal or

predicted reach of the tide due to the piling

up of water against a coast by strong winds,

such as those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing continuously

during certain times of a typical year and

more than in direct response to precipitation

(e.g., seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The term

ordinary high water mark means that line on

the shore established by the fluctuations of

water and indicated by physical

characteristics such as clear, natural line

impressed on the bank, shelving, changes in

the character of soil, destruction of terrestrial

vegetation, the presence of litter and debris,

or other appropriate means that consider the

characteristics of the surrounding areas.

(vii) Perennial. The term perennial means

surface water flowing continuously year-

round during a typical year.

(viii) Prior converted cropland. The term

prior converted cropland means any area

that, prior to December 23, 1985, was drained

or otherwise manipulated for the purpose, or

having the effect, of making production of an

agricultural product possible. EPA and the

Corps will recognize designations of prior

converted cropland made by the Secretary of

Agriculture. An area is no longer considered

prior converted cropland for purposes of the

Clean Water Act when the area is abandoned

and has reverted to wetland, as defined in

paragraph (3)(xv) of this definition.

Abandonment occurs when prior converted

cropland is not used for, or in support of,

agricultural purposes at least once in the

immediately preceding five years. For the

purposes of the Clean Water Act, the EPA

Administrator shall have the final authority

to determine whether prior converted

cropland has been abandoned.

(ix) Snowpack. The term snowpack means

layers of snow that accumulate over extended

periods of time in certain geographic regions

and high altitudes (e.g., in northern climes

and mountainous regions).

(x) Tidal waters and waters subject to the

ebb and flow of the tide. The terms tidal

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waters and waters subject to the ebb and flow

of the tide mean those waters that rise and

fall in a predictable and measurable rhythm

or cycle due to the gravitational pulls of the

moon and sun. Tidal waters and waters

subject to the ebb and flow of the tide end

where the rise and fall of the water surface

can no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary means a

river, stream, or similar naturally occurring

surface water channel that contributes

perennial or intermittent flow to a water

identified in paragraph (1)(i) of this

definition in a typical year either directly or

indirectly through a water(s) identified in

paragraphs (1)(ii) through (vi) of this

definition or through water features

identified in paragraph (2) of this definition

so long as those water features convey

perennial or intermittent flow downstream. A

tributary does not lose its status as a tributary

if it flows through a culvert, dam, or other

similar artificial break or through a debris

pile, boulder field, or similar natural break so

long as the artificial or natural break conveys

perennial or intermittent flow to a tributary

or other jurisdictional water at the

downstream end of the break. The alteration

or relocation of a tributary does not modify

its status as a tributary as long as it continues

to satisfy the elements of this definition.

(xii) Typical year. The term typical year

means within the normal range of

precipitation over a rolling thirty-year period

for a particular geographic area.

(xiii) Upland. The term upland means any

land area that under normal circumstances

does not satisfy all three wetland delineation

criteria (i.e., hydrology, hydrophytic

vegetation, hydric soils) identified in

paragraph (3)(xv) of this definition, and does

not lie below the ordinary high water mark

or the high tide line of a water identified in

paragraph (1)(i) through (vi) of this

definition. Waters identified in paragraphs

(1)(i) through (vi) of this definition are not

upland.

(xiv) Waste treatment system. The term

waste treatment system includes all

components, including lagoons and

treatment ponds (such as settling or cooling

ponds), designed to convey or retain,

concentrate, settle, reduce, or remove

pollutants, either actively or passively, from

wastewater prior to discharge (or eliminating

any such discharge).

(xv) Wetlands. The term wetlands means

areas that are inundated or saturated by

surface or ground water at a frequency and

duration sufficient to support, and that under

normal circumstances do support, a

prevalence of vegetation typically adapted for

life in saturated soil conditions. Wetlands

generally include swamps, marshes, bogs,

and similar areas.

* * * * *

PART 302—DESIGNATION,

REPORTABLE QUANTITIES, AND

NOTIFICATION

■20. The authority citation for part 302

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

■21. Section 302.3 is amended by

revising the definition of ‘‘Navigable

waters’’ to read as follows:

§ 302.3 Definitions.

* * * * *

Navigable waters means the waters of

the United States, including the

territorial seas.

(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (2) of this

definition, the term ‘‘waters of the

United States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (1)(i) of this definition;

(iii) Ditches that satisfy any of the

conditions identified in paragraph (1)(i)

of this definition, ditches constructed in

a tributary or that relocate or alter a

tributary as long as those ditches also

satisfy the conditions of the tributary

definition, and ditches constructed in

an adjacent wetland as long as those

ditches also satisfy the conditions of the

tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(1)(i) of this definition, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(1)(i) of this definition in a typical year

either directly or indirectly through a

water(s) identified in paragraphs (1)(ii)

through (vi) of this definition or through

water features identified in paragraph

(2) of this definition so long as those

water features convey perennial or

intermittent flow downstream, and lakes

and ponds that are flooded by a water

identified in paragraphs (1)(i) through

(v) of this definition in a typical year;

(v) Impoundments of waters

identified in paragraphs (1)(i) through

(iv) and (vi) of this definition; and

(vi) Adjacent wetlands to waters

identified in paragraphs (1)(i) through

(v) of this definition.

(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (1)(i)

through (vi) of this definition;

(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (1)(iii) of this definition;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(1)(iv) or (v) of this definition;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(xi) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this definition, the following

terms apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (1)(i) through (v) of this

definition in a typical year. Abut means

to touch at least at one point or side of

a water identified in paragraphs (1)(i)

through (v) of this definition. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(1)(i) through (v) water to a wetland or

via perennial or intermittent flow

between a wetland and a paragraph

(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(1)(i) through (v) water by upland or by

dikes, barriers, or similar structures and

also lacking a direct hydrologic surface

connection to such waters are not

adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

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encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (3)(xv) of this section.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (1)(i) of this section in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (1)(ii) through (vi) of this

definition or through water features

identified in paragraph (2) of this

definition so long as those water

features convey perennial or

intermittent flow downstream. A

tributary does not lose its status as a

tributary if it flows through a culvert,

dam, or other similar artificial break or

through a debris pile, boulder field, or

similar natural break so long as the

artificial or natural break conveys

perennial or intermittent flow to a

tributary or other jurisdictional water at

the downstream end of the break. The

alteration or relocation of a tributary

does not modify its status as a tributary

as long as it continues to satisfy the

elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(3)(xv) of this section, and does not lie

below the ordinary high water mark or

the high tide line of a water identified

in paragraph (1)(i) through (vi) of this

definition. Waters identified in

paragraphs (1)(i) through (vi) of this

definition are not upland.

(xiv) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

* * * * *

PART 401—GENERAL PROVISIONS

■22. The authority citation for part 401

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

■23. Section 401.11 is amended by

revising paragraph (l) to read as follows:

§ 401.11 General definitions.

* * * * *

(l) Navigable waters means ‘‘waters of

the United States, including the

territorial seas.’’

(1) For purposes of the Clean Water

Act, 33 U.S.C. 1251 et seq. and its

implementing regulations, subject to the

exclusions in paragraph (l)(2) of this

section, the term ‘‘waters of the United

States’’ means:

(i) Waters which are currently used,

or were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including the territorial seas

and waters which are subject to the ebb

and flow of the tide;

(ii) Tributaries of waters identified in

paragraph (l)(1)(i) of this section;

(iii) Ditches that satisfy any of the

conditions identified in paragraph

(l)(1)(i) of this section, ditches

constructed in a tributary or that

relocate or alter a tributary as long as

those ditches also satisfy the conditions

of the tributary definition, and ditches

constructed in an adjacent wetland as

long as those ditches also satisfy the

conditions of the tributary definition;

(iv) Lakes and ponds that satisfy any

of the conditions identified in paragraph

(l)(1)(i) of this section, lakes and ponds

that contribute perennial or intermittent

flow to a water identified in paragraph

(l)(1)(i) of this section in a typical year

either directly or indirectly through a

water(s) identified in paragraphs

(l)(1)(ii) through (vi) of this section or

through water features identified in

paragraph (l)(2) of this section so long

as those water features convey perennial

or intermittent flow downstream, and

lakes and ponds that are flooded by a

water identified in paragraphs (l)(1)(i)

through (v) of this section in a typical

year;

(v) Impoundments of waters

identified in paragraphs (l)(1)(i) through

(iv) and (vi) of this section; and

(vi) Adjacent wetlands to waters

identified in paragraphs (l)(1)(i) through

(v) of this section.

(2) The following are not ‘‘waters of

the United States’’:

(i) Waters or water features that are

not identified in paragraphs (l)(1)(i)

through (vi) of this section;

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(ii) Groundwater, including

groundwater drained through

subsurface drainage systems;

(iii) Ephemeral features and diffuse

stormwater run-off, including

directional sheet flow over upland;

(iv) Ditches that are not identified in

paragraph (l)(1)(iii) of this section;

(v) Prior converted cropland;

(vi) Artificially irrigated areas,

including fields flooded for rice or

cranberry growing, that would revert to

upland should application of irrigation

water to that area cease;

(vii) Artificial lakes and ponds

constructed in upland (including water

storage reservoirs, farm and stock

watering ponds, and log cleaning ponds)

which are not identified in paragraph

(l)(1)(iv) or (v) of this section;

(viii) Water-filled depressions created

in upland incidental to mining or

construction activity, and pits excavated

in upland for the purpose of obtaining

fill, sand, or gravel;

(ix) Stormwater control features

excavated or constructed in upland to

convey, treat, infiltrate or store

stormwater run-off;

(x) Wastewater recycling structures

constructed in upland, such as

detention, retention and infiltration

basins and ponds, and groundwater

recharge basins; and

(xi) Waste treatment systems.

(3) In this paragraph (l), the following

definitions apply:

(i) Adjacent wetlands. The term

adjacent wetlands means wetlands that

abut or have a direct hydrologic surface

connection to a water identified in

paragraphs (l)(1)(i) through (v) of this

section in a typical year. Abut means to

touch at least at one point or side of a

water identified in paragraphs (l)(1)(i)

through (v) of this section. A direct

hydrologic surface connection occurs as

a result of inundation from a paragraph

(l)(1)(i) through (v) water to a wetland

or via perennial or intermittent flow

between a wetland and a paragraph

(l)(1)(i) through (v) water. Wetlands

physically separated from a paragraph

(l)(1)(i) through (v) water by upland or

by dikes, barriers, or similar structures

and also lacking a direct hydrologic

surface connection to such waters are

not adjacent.

(ii) Ditch. The term ditch means an

artificial channel used to convey water.

(iii) Ephemeral. The term ephemeral

means surface water flowing or pooling

only in direct response to precipitation

(e.g., rain or snow fall).

(iv) High tide line. The term high tide

line means the line of intersection of the

land with the water’s surface at the

maximum height reached by a rising

tide. The high tide line may be

determined, in the absence of actual

data, by a line of oil or scum along shore

objects, a more or less continuous

deposit of fine shell or debris on the

foreshore or berm, other physical

markings or characteristics, vegetation

lines, tidal gages, or other suitable

means that delineate the general height

reached by a rising tide. The line

encompasses spring high tides and other

high tides that occur with periodic

frequency but does not include storm

surges in which there is a departure

from the normal or predicted reach of

the tide due to the piling up of water

against a coast by strong winds, such as

those accompanying a hurricane or

other intense storm.

(v) Intermittent. The term intermittent

means surface water flowing

continuously during certain times of a

typical year and more than in direct

response to precipitation (e.g.,

seasonally when the groundwater table

is elevated or when snowpack melts).

(vi) Ordinary high water mark. The

term ordinary high water mark means

that line on the shore established by the

fluctuations of water and indicated by

physical characteristics such as clear,

natural line impressed on the bank,

shelving, changes in the character of

soil, destruction of terrestrial vegetation,

the presence of litter and debris, or

other appropriate means that consider

the characteristics of the surrounding

areas.

(vii) Perennial. The term perennial

means surface water flowing

continuously year-round during a

typical year.

(viii) Prior converted cropland. The

term prior converted cropland means

any area that, prior to December 23,

1985, was drained or otherwise

manipulated for the purpose, or having

the effect, of making production of an

agricultural product possible. EPA and

the Corps will recognize designations of

prior converted cropland made by the

Secretary of Agriculture. An area is no

longer considered prior converted

cropland for purposes of the Clean

Water Act when the area is abandoned

and has reverted to wetland, as defined

in paragraph (l)(3)(xv) of this section.

Abandonment occurs when prior

converted cropland is not used for, or in

support of, agricultural purposes at least

once in the immediately preceding five

years. For the purposes of the Clean

Water Act, the EPA Administrator shall

have the final authority to determine

whether prior converted cropland has

been abandoned.

(ix) Snowpack. The term snowpack

means layers of snow that accumulate

over extended periods of time in certain

geographic regions and high altitudes

(e.g., in northern climes and

mountainous regions).

(x) Tidal waters and waters subject to

the ebb and flow of the tide. The terms

tidal waters and waters subject to the

ebb and flow of the tide mean those

waters that rise and fall in a predictable

and measurable rhythm or cycle due to

the gravitational pulls of the moon and

sun. Tidal waters and waters subject to

the ebb and flow of the tide end where

the rise and fall of the water surface can

no longer be practically measured in a

predictable rhythm due to masking by

hydrologic, wind, or other effects.

(xi) Tributary. The term tributary

means a river, stream, or similar

naturally occurring surface water

channel that contributes perennial or

intermittent flow to a water identified in

paragraph (l)(1)(i) of this section in a

typical year either directly or indirectly

through a water(s) identified in

paragraphs (l)(1)(ii) through (vi) of this

section or through water features

identified in paragraph (l)(2) of this

section so long as those water features

convey perennial or intermittent flow

downstream. A tributary does not lose

its status as a tributary if it flows

through a culvert, dam, or other similar

artificial break or through a debris pile,

boulder field, or similar natural break so

long as the artificial or natural break

conveys perennial or intermittent flow

to a tributary or other jurisdictional

water at the downstream end of the

break. The alteration or relocation of a

tributary does not modify its status as a

tributary as long as it continues to

satisfy the elements of this definition.

(xii) Typical year. The term typical

year means within the normal range of

precipitation over a rolling thirty-year

period for a particular geographic area.

(xiii) Upland. The term upland means

any land area that under normal

circumstances does not satisfy all three

wetland delineation criteria (i.e.,

hydrology, hydrophytic vegetation,

hydric soils) identified in paragraph

(l)(3)(xv) of this section, and does not lie

below the ordinary high water mark or

the high tide line of a water identified

in paragraph (l)(1)(i) through (vi) of this

section. Waters identified in paragraphs

(l)(1)(i) through (vi) of this section are

not upland.

(xiv) Waste treatment system. The

term waste treatment system includes

all components, including lagoons and

treatment ponds (such as settling or

cooling ponds), designed to convey or

retain, concentrate, settle, reduce, or

remove pollutants, either actively or

passively, from wastewater prior to

discharge (or eliminating any such

discharge).

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

(xv) Wetlands. The term wetlands

means areas that are inundated or

saturated by surface or ground water at

a frequency and duration sufficient to

support, and that under normal

circumstances do support, a prevalence

of vegetation typically adapted for life

in saturated soil conditions. Wetlands

generally include swamps, marshes,

bogs, and similar areas.

* * * * *

[FR Doc. 2019–00791 Filed 2–13–19; 8:45 am]

BILLING CODE 6560–50–P

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Citation	84 FR 4154
Record Number	2019-00791
Published date	14 February 2019
Court	Army, Corps Of Engineers Department

Revised Definition of “Waters of the United States”

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