Revised Definition of “Waters of the United States”
| Published date | 07 December 2021 |
| Citation | 86 FR 69372 |
| Record Number | 2021-25601 |
| Section | Proposed rules |
| Court | Army, Corps Of Engineers Department,Defense Department |
Federal Register, Volume 86 Issue 232 (Tuesday, December 7, 2021)
[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Proposed Rules]
[Pages 69372-69450]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25601]
[[Page 69371]]
Vol. 86
Tuesday,
No. 232
December 7, 2021
Part IIDepartment of Defense----------------------------------------------------------------------- Department of the Army, Corps of Engineers-----------------------------------------------------------------------33 CFR Part 328Environmental Protection Agency-----------------------------------------------------------------------
40 CFR Part 120Revised Definition of ``Waters of the United States''; Proposed Rule
Federal Register / Vol. 86 , No. 232 / Tuesday, December 7, 2021 /
Proposed Rules
[[Page 69372]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 120
[EPA-HQ-OW-2021-0602; FRL-6027.4-03-OW]
Revised Definition of ``Waters of the United States''
AGENCY: Department of the Army, Corps of Engineers, Department of
Defense; and Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) and the Department
of the Army (``the agencies'') are publishing for public comment a
proposed rule defining the scope of waters protected under the Clean
Water Act. This proposal is consistent with the Executive Order signed
on January 20, 2021, on ``Protecting Public Health and the Environment
and Restoring Science to Tackle the Climate Crisis,'' which directed
the agencies to review the agencies' rule promulgated in 2020 defining
``waters of the United States.'' This proposed rule would meet the
objective of the Clean Water Act and ensure critical protections for
the nation's vital water resources, which support public health,
environmental protection, agricultural activity, and economic growth
across the United States.
DATES: Comments must be received on or before February 7, 2022. Please
refer to the SUPPLEMENTARY INFORMATION section for additional
information on the public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2021-0602, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Email: [email protected]. Include Docket ID No. EPA-HQ-OW-
2021-0602 in the subject line of the message.
Instructions: All submissions received must include Docket ID No.
EPA-HQ-OW-2021-0602. 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 ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document. Out
of an abundance of caution for members of the public and our staff, the
EPA Docket Center and Reading Room are open to the public by
appointment only to reduce the risk of transmitting COVID-19. Our
Docket Center staff also continues to provide remote customer service
via email, phone, and webform. Hand deliveries and couriers may be
received by scheduled appointment only. For further information on EPA
Docket Center services and the current status, please visit us online
at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Damaris Christensen, Oceans, Wetlands
and Communities Division, Office of Water (4504-T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 564-2281; email address: [email protected], and
Stacey Jensen, Office of the Assistant Secretary of the Army for Civil
Works, Department of the Army, 108 Army Pentagon, Washington, DC 20310-
0104; telephone number: (703) 459-6026; email address:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Public Participation
A. Written Comments
B. Virtual Public Hearings
III. General Information
A. What action are the agencies taking?
B. What is the agencies' authority for taking this action?
C. What are the incremental costs and benefits of this action?
IV. Background
A. Legal Background
B. The Agencies' Post-Rapanos Rules
C. Summary of Stakeholder Outreach
V. Proposed Revised Definition
A. Basis for Proposed Rule
B. Concerns With Alternatives
C. Proposed Rule
D. Implementation of Proposed Rule
E. Publicly Available Jurisdictional Information and Permit Data
F. Placement of the Definition of ``Waters of the United
States'' in the Code of Federal Regulations
VI. Summary of Supporting Analyses
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Executive Summary
Congress enacted the Federal Water Pollution Control Act Amendments
of 1972, Public Law 92-500, 86 Stat. 816, as amended, 33 U.S.C. 1251 et
seq. (Clean Water Act or Act) ``to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' 33 U.S.C.
1251(a). In doing so, Congress performed a ``total restructuring'' and
``complete rewriting'' of the existing statutory framework, seeking to
better protect the quality of the nation's waters. City of Milwaukee v.
Illinois, 451 U.S. 304, 317 (1981). Congress thus intended the 1972 Act
to be a bold step forward in providing protections for the nation's
waters.
Central to the framework and protections provided by the Clean
Water Act is the term ``navigable waters,'' \1\ defined in the Act as
``the waters of the United States, including the territorial seas.'' 33
U.S.C. 1362(7). This term establishes the extent of most federal
programs to protect water quality under the Act--including, for
example, water quality standards, impaired waters and total maximum
daily loads, oil spill prevention, preparedness and response programs,
state and tribal water quality certification programs, and dredged and
fill programs--because such programs apply only to ``waters of the
United States.''
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\1\ To avoid confusion between the term ``navigable waters'' as
defined in the Clean Water Act and its implementing regulations, 33
U.S.C. 1362(7); 33 CFR 328.3 (2014), and the traditional use of the
term ``navigable waters'' to describe waters that are, have been, or
could be used for interstate or foreign commerce, 33 CFR 328.3(a)(1)
(2014), this preamble will refer to the latter as ``traditional
navigable waters'' or waters that are ``navigable-in-fact.''
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As the Supreme Court presciently noted decades ago, defining this
term requires the EPA and the U.S. Department of the Army (Army)
(together, ``the agencies'') to ``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
[[Page 69373]]
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.''
United States v. Riverside Bayview Homes, 474 U.S. 121, 132 (1985)
(``Riverside Bayview'').\2\
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\2\ The Supreme Court has twice more addressed the issue of
Clean Water Act jurisdiction over ``waters of the United States.''
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159 (2001) (``SWANCC''); Rapanos v. United
States, 547 U.S. 715 (2006) (``Rapanos'').
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In the nearly five decades since the Clean Water Act was enacted,
the agencies have undertaken the challenge of developing and
implementing a durable definition of the term ``waters of the United
States'' that draws the line on the Riverside Bayview ``continuum''
consistent with the objective of the Act--to restore and maintain the
chemical, physical, and biological integrity of the nation's waters--
based on science, and refined over the years by extensive experience in
implementing the definition in the field. In 2020, however, the
agencies issued a rule, called the ``Navigable Waters Protection Rule''
(NWPR), which substantially departed from prior rules defining ``waters
of the United States.'' The earlier rules had been based on scientific
concepts, implementation experience, and consideration of how the water
quality implications of the definitions would advance the Clean Water
Act's statutory objective. While the NWPR's interpretation of the
statute and case law overlaps in some respects with those prior
regulations--for example, its understanding that the statute authorizes
the agencies to regulate waters beyond those that are navigable-in-
fact--it departed from prior regulations by diminishing the appropriate
role of science and Congress's objective in the Clean Water Act. The
NWPR provided less protection and could have allowed far more impacts
to the nation's waters than any rule that preceded it.
In response to President Joseph R. Biden Jr.'s Executive Order
13990, 86 FR 7037 (January 25, 2021), which directed federal agencies
to review certain regulations, EPA and the Army undertook a review of
the NWPR. The agencies found that the NWPR did not appropriately
consider the water quality impacts of its approach to defining ``waters
of the United States,'' in contravention of Congress's objective in the
Clean Water Act ``to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,'' and that the rule's
reduction in the scope of protected waters could have a potentially
extensive and adverse impact on the nation's waters. The agencies'
ongoing analyses of waters that fall outside of the Act's protections
because of the NWPR support these findings.
Following a federal district court decision vacating the NWPR on
August 30, 2021, the agencies halted implementation of the NWPR and
began interpreting ``waters of the United States'' consistent with the
pre-2015 regulatory regime.3 4 Though EPA and the U.S. Army
Corps of Engineers (Corps) are not currently implementing the NWPR, the
agencies are aware that further developments in litigation over the
rule could bring the rule back into effect. For these reasons, among
others discussed more fully below, the agencies have decided that
prompt replacement of the NWPR through the administrative rulemaking
process is vital.
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\3\ See Pascua Yaqui Tribe v. EPA, No. 20-00266 (D. Ariz. Aug.
30, 2021); U.S. EPA, Current Implementation of Waters of the United
States, https://www.epa.gov/wotus/current-implementation-waters-united-states.
\4\ The ``pre-2015 regulatory regime'' refers to the agencies'
pre-2015 definition of ``waters of the United States,'' implemented
consistent with relevant case law and longstanding practice, as
informed by applicable guidance, training, and experience.
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In order to ensure necessary federal protections for the nation's
waters, the agencies are proposing to exercise their discretion under
the statute to return generally to the familiar pre-2015 definition
that has bounded the Act's protections for decades, has been codified
multiple times, and has been implemented by every Administration for
the last 35 years, from that of Ronald Reagan through Donald Trump,
which re-promulgated the pre-2015 regulations. See In re EPA & Dep't of
Def. Final Rule, 803 F.3d 804, 808 (6th Cir. 2015). The pre-2015
regulations were largely in place for both agencies in 1986 and are
thus commonly referred to as ``the 1986 regulations.'' \5\
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\5\ EPA and the Corps have separate regulations defining the
statutory term ``waters of the United States,'' but their
interpretations were substantially similar and remained largely
unchanged between 1977 and 2015. See, e.g., 42 FR 37122, 37144 (July
19, 1977); 44 FR 32854, 32901 (June 7, 1979). For convenience, the
agencies in this preamble will generally cite the Corps'
longstanding regulations and will refer to them as ``the 1986
regulations,'' ``the pre-2015 regulations,'' or ``the regulations in
place until 2015'' as inclusive of EPA's comparable regulations that
were recodified in 1988 and of the exclusion for prior converted
cropland both agencies added in 1993.
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In this proposed rule the agencies are exercising their
discretionary authority to interpret ``waters of the United States'' to
mean the waters defined by the longstanding 1986 regulations, with
amendments to certain parts of those rules to reflect the agencies'
interpretation of the statutory limits on the scope of the ``waters of
the United States'' and informed by Supreme Court case law. Thus, in
the proposed rule, the agencies interpret the term ``waters of the
United States'' to include: Traditional navigable waters, interstate
waters, and the territorial seas, and their adjacent wetlands; most
impoundments of ``waters of the United States''; tributaries to
traditional navigable waters, interstate waters, the territorial seas,
and impoundments that meet either the relatively permanent standard or
the significant nexus standard; wetlands adjacent to impoundments and
tributaries, that meet either the relatively permanent standard or the
significant nexus standard; and ``other waters'' that meet either the
relatively permanent standard or the significant nexus standard. The
``relatively permanent standard'' means waters that are relatively
permanent, standing or continuously flowing and waters with a
continuous surface connection to such waters. The ``significant nexus
standard'' means waters that either alone or in combination with
similarly situated waters in the region, significantly affect the
chemical, physical, or biological integrity of traditional navigable
waters, interstate waters, or the territorial seas (the ``foundational
waters''). With these amendments to the 1986 regulations, the proposed
rule is within the proper scope of the agencies' statutory authority
and would restore and maintain the chemical, physical, and biological
integrity of the nation's waters.
The proposed rule advances the Clean Water Act's statutory
objective as it is based on the best available science concerning the
functions provided by upstream tributaries, adjacent wetlands, and
``other waters'' to restore and maintain the water quality of
downstream foundational waters. By contrast, the agencies conclude that
the NWPR, which this proposed rule would replace, and which found
jurisdiction primarily under the relatively permanent standard,
established a test for jurisdiction that did not adequately address the
impacts of degradation of upstream waters on downstream waters,
including traditional navigable waters, and was therefore incompatible
with the objective of the Clean Water Act. While
[[Page 69374]]
the ``more absolute position'' taken by the NWPR ``may be easier to
administer,'' it has ``consequences that are inconsistent with major
congressional objectives, as revealed by the statute's language,
structure, and purposes.'' County of Maui, Hawaii v. Hawaii Wildlife
Fund, 140 S. Ct. 1462, 1477 (2020).
In developing the proposed rule, the agencies also considered the
statute as a whole, the scientific record, relevant Supreme Court case
law, and the agencies' experience and expertise after more than 30
years of implementing the 1986 regulations defining ``waters of the
United States,'' including more than a decade of experience
implementing those regulations consistent with the Supreme Court's
decisions in Riverside Bayview, SWANCC, and Rapanos. The agencies'
interpretation also reflects consideration of the statute as a whole,
including section 101(b), which states that ``it is the policy of
Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution, to plan the development and use (including restoration,
preservation, and enhancement) of land and water resources.'' 33 U.S.C.
1251(b). The proposed rule's limits appropriately draw the boundary of
waters subject to federal protection by ensuring that where upstream
waters significantly affect the integrity of waters and the federal
interest is indisputable--the traditional navigable waters, interstate
waters, and territorial seas--Clean Water Act programs would apply to
ensure that those downstream waters are protected. And where they do
not, the agencies would leave regulation to the states and tribes. The
proposed rule's relatively permanent and significant nexus limitations
are thus based on the agencies' conclusion that together, those
standards are consistent with the statutory text, advance the objective
of the Act, are supported by the scientific record and Supreme Court
case law, and appropriately consider the policies of the Act. In
addition, because the proposed rule reflects consideration of the
agencies' experience and expertise, as well as updates in
implementation tools and resources, it is familiar and implementable.
While there are case-specific determinations that would need to be
made under this proposed rule, that was also true under the NWPR and
many other regulatory regimes where agencies must balance competing
factors. The agencies, moreover, believe that a return to the pre-2015
definition would provide a known and familiar framework for co-
regulators and stakeholders. In addition, the clarifications proposed
here and the intervening advancements in implementation resources,
tools, and scientific support (see section V.D.3.d of this preamble)
would address some of the concerns raised in the past about timeliness
and consistency of jurisdictional determinations under this regulatory
regime.
Through this rulemaking process, the agencies will consider all
public comments on the proposed rule including changes that improve
clarity, implementability, and long-term durability of the definition.
The agencies will also consider changes through a second rulemaking
that they anticipate proposing in the future, which would build upon
the foundation of this proposed rule.
II. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2021-
0602, at https://www.regulations.gov (our preferred method), or via the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA and the Army
may publish any comment received to the public docket. Do not submit to
EPA's docket at https://www.regulations.gov 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. EPA and the
Army 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.
Due to public health concerns related to COVID-19, the EPA Docket
Center and Reading Room are open to the public by appointment only. Our
Docket Center staff also continue to provide remote customer service
via email, phone, and webform. Hand deliveries or couriers will be
received by scheduled appointment only. For further information and
updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets.
EPA and the Army continue to carefully monitor information from the
Centers for Disease Control and Prevention (CDC), local area health
departments, and our federal partners so that we can respond rapidly as
conditions change regarding COVID-19.
B. Virtual Public Hearings
Please note that because of current CDC recommendations, as well as
state and local orders for social distancing to limit the spread of
COVID-19, EPA and the Army cannot hold in-person public meetings at
this time. The agencies are hosting virtual public hearings on
Wednesday, January 12, 2022 from 10 a.m. to 1 p.m. Eastern Time; on
Thursday, January 13, 2022 from 2 p.m. to 5 p.m. Eastern Time; and on
Tuesday, January 18, 2022 from 5 p.m. to 8 p.m. Eastern Time.
EPA and the Army will begin pre-registering speakers for the
hearing upon publication of this document in the Federal Register. To
register to speak at a specific session of the virtual hearing, please
use the online registration forms available at:
1. Wednesday, January 12, 2022--https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211244667487.
2. Thursday, January 13, 2022--https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211258017417.
3. Tuesday, January 18, 2022--https://www.eventbrite.com/e/us-epa-and-department-of-the-army-wotus-public-hearing-tickets-211274536827.
The last day to pre-register to speak at each session will be,
respectively, Friday, January 7, 2022; Monday, January 10, 2022; and
Thursday, January 13, 2022. A day before each scheduled session, EPA
and the Army will post a general agenda for the hearing that will list
pre-registered speakers in approximate order at https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities. People may
also register to listen to the public sessions at the registration
links above.
To allow more time for speakers, the agencies may prerecord a video
introduction and overview of the rule, which will be available on the
EPA website above for viewing before the public hearings. EPA and the
Army will make every effort to follow the schedule as closely as
possible on the day of the hearing, but it is possible that the
hearings will run either ahead of schedule or behind schedule.
Each commenter will have three (3) minutes to provide oral
testimony. EPA and the Army encourage commenters to
[[Page 69375]]
provide the agencies with a copy of their oral testimony electronically
by emailing it to [email protected]. EPA and the Army also recommend
submitting the text of your oral comments as written comments to the
rulemaking docket.
The agencies may ask clarifying questions during the oral
presentations but will not respond to the presentations at that time.
Written statements and supporting information submitted during the
comment period will be considered with the same weight as oral comments
and supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities. While the agencies expect the
hearing to go forward as set forth above, please monitor our website or
contact [email protected] to determine if there are any updates. EPA and
the Army do not intend to publish a document in the Federal Register
announcing updates.
If you require the services of a translator or special
accommodations such as audio description, please pre-register for the
hearing with [email protected] and describe your needs a week in advance
of each session--respectively, by Wednesday, January 5, 2022; Thursday,
January 6, 2022; and Tuesday, January 11, 2022. EPA and the Army may
not be able to arrange accommodations without advanced notice.
III. General Information
A. What action are the agencies taking?
In this action, the agencies are publishing a proposed rule
defining ``waters of the United States'' in 33 CFR 328.3 and 40 CFR
120.2.
B. What is the agencies' authority for taking this action?
The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including sections 301, 304, 311,
401, 402, 404, and 501.
C. What are the incremental costs and benefits of this action?
Because the agencies are not currently implementing the NWPR, the
proposed rule would provide protections that are generally comparable
to current practice; as such, the agencies find that there would be no
appreciable cost or benefit difference. Potential costs and benefits
would be incurred as a result of actions taken under existing Clean
Water Act programs (i.e., sections 303, 311, 401, 402, and 404) that
implement and follow this proposed rule. Entities currently are, and
would continue to be, regulated under these programs that protect
``waters of the United States'' under the Clean Water Act.
The agencies prepared the Economic Analysis for the Proposed
``Revised Definition of `Waters of the United States' '' Rule
(``Economic Analysis for the Proposed Rule''), available in the
rulemaking docket, for informational purposes to analyze the potential
costs and benefits associated with this proposed action. The agencies
analyze the potential costs and benefits against two baselines: The
current status quo and the vacated NWPR. The analysis is summarized in
section VI of this preamble. The agencies' primary estimate is that the
proposed rule would have zero impact.
IV. Background
A. Legal Background
1. The Clean Water Act
Before passage of the Clean Water Act, the nation's waters were in
``serious trouble, thanks to years of neglect, ignorance, and public
indifference.'' H.R. Rep. No. 92-911, at 753 (1972). Congress enacted
the Federal Water Pollution Control Act Amendments of 1972, Public Law
92-500, 86 Stat. 816, as amended, 33 U.S.C. 1251 et seq., with the
objective ``to restore and maintain the chemical, physical and
biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a). The
Act was intended to address longstanding concerns regarding the quality
of the nation's waters and the Federal government's ability to respond
to those concerns under existing law.
Prior to 1972, the Federal government's authority to control and
redress pollution in the nation's waters largely fell to the Corps
under the Rivers and Harbors Act of 1899. While much of that statute
focused on restricting obstructions to navigation on the nation's major
waterways, section 13 of the statute made it unlawful to discharge
refuse ``into any navigable water of the United States, or into any
tributary of any navigable water from which the same shall float or be
washed into such navigable water.'' 33 U.S.C. 407. In 1948, Congress
enacted the Federal 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, 1961, and
1965. These early versions of the statute that eventually became known
as the Clean Water Act encouraged 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. However, these authorities 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).
As a result, in 1972, Congress performed ``a `total restructuring'
and `complete rewriting' of the existing'' statutory framework. City of
Milwaukee, 451 U.S. at 317 (quoting legislative history of 1972
amendments). The Clean Water Act, which was passed as an amendment to
the Federal Water Pollution Control Act, was described by its
supporters as the first truly comprehensive federal water pollution
legislation. The ``major purpose'' of the Clean Water Act was ``to
establish a comprehensive long-range policy for the elimination of
water pollution.'' S. Rep. No. 92-414, at 95 (1971), 2 Legislative
History of the Water Pollution Control Act Amendments of 1972
(Committee Print compiled for the Senate Committee on Public Works by
the Library of Congress), Ser. No. 93-1, p. 1511 (1971) (emphasis
added). ``No Congressman's remarks on the legislation were complete
without reference to [its] `comprehensive' nature.'' City of Milwaukee,
451 U.S. at 318. In passing the 1972 amendments, Congress ``intended to
repudiate limits that had been placed on federal regulation by earlier
water pollution control statutes and 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.''
United States v. Riverside Bayview Homes, 474 U.S. 121, 133 (1985)
(``Riverside Bayview''); see also Int'l Paper Co. v. Ouellette, 479
U.S. 481, 486 n.6 (1987).
One of the Clean Water Act's principal tools to protect the
integrity of the nation's waters is section 301(a), which generally
prohibits ``the discharge of any pollutant by any person'' without a
permit or other authorization under the Act. The terms ``discharge of a
pollutant'' and ``discharge of pollutants'' are defined broadly to
include ``any addition of any pollutant to navigable waters from any
point source.'' 33 U.S.C. 1362(12). And ``navigable waters'' means
``the waters of the United States, including the territorial seas.''
Id. at 1362(7). Although Congress opted to carry over the term
``navigable waters'' from prior versions of the Federal Water Pollution
Control Act, Congress broadened the definition
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of ``navigable waters'' to encompass all ``waters of the United
States.'' Id. Indeed, in finalizing the 1972 amendments, the conferees
specifically deleted the word ``navigable'' from the definition of
``waters of the United States'' that had originally appeared in the
House version of the Act. S. Conf. Rep. No. 92-1236, at 144 (1972).
Further, the Senate Report stated that ``navigable waters'' means ``the
navigable waters of the United States, portions thereof, tributaries
thereof, and includes the Territorial Seas and the Great Lakes.'' S.
Rep. No. 92-414, at 77 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668,
3742-43 (emphasis added). The Senate Report accompanying the 1972 Act
also explained that ``[w]ater moves in hydrologic cycles and it is
essential that the discharge of pollutants be controlled at the
source.'' Id.
The definition of ``waters of the United States'' affects most
Clean Water Act programs--including water quality standards, impaired
waters and total maximum daily loads, oil spill prevention,
preparedness and response programs, the state and tribal water quality
certification programs, National Pollutant Discharge Elimination System
(NPDES) programs, and dredge and fill programs--because such programs
apply only to ``waters of the United States.'' Some Clean Water Act
programs are implemented by the Federal government, and others are
implemented by state or tribal governments where the statute provides a
direct grant of authority to the state or authorized tribe or provides
an option for the state or authorized tribe to take on those programs.
States and tribes may additionally implement, establish, or modify
their own programs under state or tribal law to manage and regulate
waters independent of the Clean Water Act.
Under Clean Water Act section 303(d) and EPA's implementing
regulations, states are required to assemble and evaluate all existing
and readily available water quality-related data and information and to
submit to EPA every two years a list of impaired waters that require
total maximum daily loads (TMDLs). For waters identified on a 303(d)
list, states establish TMDLs for all pollutants preventing or expected
to prevent attainment of water quality standards. Section 303(d)
applies to ``waters of the United States'' and ``non-jurisdictional''
waterbodies are not required to be assessed or otherwise identified as
impaired; TMDL restoration plans likewise apply to ``waters of the
United States.''
Clean Water Act section 311 and the Oil Pollution Act (OPA) of 1990
authorize the Oil Spill Liability Trust Fund (OSLTF) to reimburse costs
of assessing and responding to oil spills to ``waters of the United
States'' or adjoining shorelines. The OSLTF allows an immediate
response to a spill, including containment, countermeasures, cleanup,
and disposal activities. The OSLTF is not available to reimburse costs
incurred by states or tribes to clean up spills and costs related to
business and citizen impacts (e.g., lost wages and damages) for spills
affecting waters not subject to Clean Water Act jurisdiction. EPA also
lacks authority to take enforcement actions based on spills solely
affecting waters not subject to Clean Water Act jurisdiction.
The scope of facilities required to prepare oil spill prevention
and response plans is also affected by the definition of ``waters of
the United States.'' EPA-regulated oil storage facilities with storage
capacities greater than 1,320 gallons (except farms) that have a
reasonable expectation of an oil discharge to ``waters of the United
States'' or adjoining shorelines are required to prepare and implement
spill prevention plans. High-risk oil storage facilities that meet
certain higher storage thresholds and related harm factors are required
to prepare and submit oil spill preparedness plans to EPA for review.
The U.S. Coast Guard and Department of Transportation also require oil
spill response plans under their respective authorities. However, Clean
Water Act section 311 spill prevention and preparedness plan
requirements do not apply to a facility if there is no reasonable
expectation that an oil discharge from a facility could reach a
jurisdictional water or adjoining shoreline.
Clean Water Act section 401 provides that a Federal agency cannot
issue a permit or license for an activity that may result in a
discharge to ``waters of the United States'' until the state or tribe
where the discharge would originate has granted or waived water quality
certification. As a result, section 401 certification provides states
and authorized tribes an opportunity to address the proposed aquatic
resource impacts of federally-issued permits and licenses. The
definition of ``waters of the United States'' affects where federal
permits are required and thus where section 401 certification applies.
Under section 402 of the Clean Water Act, a National Pollutant
Discharge Elimination System (NPDES) permit is required where a point
source discharges a pollutant to a ``water of the United States.''
The Clean Water Act section 404 permitting program addresses the
discharge of dredged or fill material from a point source into ``waters
of the United States,'' unless the activity is exempt from Clean Water
Act section 404 regulation (e.g., certain farming, ranching, and
forestry activities). Section 404 requires a permit before dredged or
fill material may be discharged to ``waters of the United States.''
Where Clean Water Act jurisdiction does not apply, no section 404
permits are required for dredged or fill activities in those waters or
features.
States and tribes play a vital role in the implementation and
enforcement of these and other Clean Water Act programs. Section 101(b)
of the Act established that ``it is the policy of Congress to
recognize, preserve and protect the primary responsibilities and rights
of States to prevent, reduce and eliminate pollution, to plan the
development and use (including restoration, preservation, and
enhancement) of land and water resources.'' 33 U.S.C. 1251(b). All
states and 74 tribes have authority to implement section 401 water
quality certification programs. Currently 47 states and one territory
have authority to administer all or portions of the section 402 NPDES
program for ``waters of the United States.'' All states and 46 tribes
have established water quality standards pursuant to section 303 of the
Act, which form a legal basis for limitations on discharges of
pollutants to ``waters of the United States.''
Moreover, consistent with the Clean Water Act, states and tribes
retain authority to implement their own programs to protect the waters
in their jurisdiction more broadly and more stringently than the
Federal government. Under section 510 of the Clean Water Act, unless
expressly stated, nothing in the Clean Water Act precludes or denies
the right of any state or tribe to establish more protective standards
or limits than the Clean Water Act.\6\ Many states and tribes, for
example, regulate groundwater, and some others protect wetlands that
are vital to their environment and economic
[[Page 69377]]
well-being but which may be outside the scope of the Clean Water Act.
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\6\ Congress has provided for eligible tribes to administer
Clean Water Act programs over their reservations and expressed a
preference for tribal regulation of surface water quality on
reservations to ensure compliance with the goals of the statute. See
33 U.S.C. 1377; 56 FR 64876, 64878-79 (December 12, 1991). In
addition, tribes may establish more protective standards or limits
under tribal law that may be more stringent than the federal Clean
Water Act. Where appropriate, references to states in this document
may also include eligible tribes.
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In 1977, Congress considered and rejected a legislative proposal
that would have redefined and limited the waters subject to the Corps'
permitting authority under section 404 of the Clean Water Act to only
navigable-in-fact waters and their adjacent wetlands. In 1975, the
Corps had extended the scope of ``waters of the United States'' to
encompass, in a phased approach, non-navigable tributaries, wetlands
adjacent to primary navigable waters, intermittent rivers, streams,
tributaries, and certain other categories of waters. 40 FR 31325-31326
(1975). In reaction to that broadened definition, Congress considered a
proposal to limit the geographic reach of section 404, but it was
defeated in the Senate and eliminated by the Conference Committee. H.R.
Conf. Rep. No. 95-830, at 97-105 (1977). As the Supreme Court explained
in Riverside Bayview, ``efforts to narrow the definition of `waters'
were abandoned; the legislation as ultimately passed, in the words of
Senator Baker, `retain[ed] the comprehensive jurisdiction over the
Nation's waters exercised in the 1972 Federal Water Pollution Control
Act. ' '' 474 U.S. at 136-137; see also 123 Cong. Rec. 26718 (1977)
(remarks of Senator Baker: ``Continuation of the comprehensive coverage
of this program is essential for the protection of the aquatic
environment. The once seemingly separable types of aquatic systems are,
we now know, interrelated and interdependent. We cannot expect to
preserve the remaining qualities of our water resources without
providing appropriate protection for the entire resource.'').
Rather than alter the geographic reach of section 404 in 1977,
Congress instead amended the statute by exempting certain activities--
for example, certain agricultural and silvicultural activities--from
the permit requirements of section 404. See 33 U.S.C. 1344(f). The
amendments also authorized the use of general permits to streamline the
permitting process. See id. at 1344(e). Finally, the 1977 Act
established for the first time a mechanism by which a state, rather
than the Corps, could assume responsibility for implementing the
section 404 permitting program, but only for waters ``other than''
traditional navigable waters and their adjacent wetlands. Id. at
1344(g)(1). Three states have since assumed the section 404 program.
The fact that a resource is a ``water of the United States'' does
not mean that activities such as farming, construction, infrastructure
development, or resource extraction, cannot occur in or near the
resource at hand. The Clean Water Act exempts a number of activities
from permitting or from the definition of ``point source,'' including
agricultural storm water and irrigation return flows. See id. at
1342(l)(2), 1362(14). As discussed above, since 1977 the Clean Water
Act in section 404(f) has exempted many normal farming activities from
the section 404 permitting requirement, including seeding, harvesting,
cultivating, planting, and soil and water conservation practices, among
other activities. Id. at 1344(f). The scope of ``waters of the United
States'' does not affect these statutory exemptions.
In addition, permits are routinely issued under sections 402 and
404 of the Clean Water Act. The permitting authority, which is most
often a state agency for the section 402 NPDES program and the Corps in
the context of section 404, generally works with permit seekers to
ensure that activities can occur without harming the integrity of the
nation's waters.
Effluent limitations serve as the primary mechanism in NPDES
permits for controlling discharges of pollutants to receiving waters,
and include technology-based effluent limitations and water quality-
based effluent limitations. These limits, which are typically numeric,
generally specify an acceptable level of a pollutant or pollutant
parameter in a discharge (for example, a certain level of bacteria).
The permittee may choose which technologies to use to achieve that
level. Some permits contain certain ``best management practices''
(BMPs) which are actions or procedures to prevent or reduce the
discharge of pollution to ``waters of the United States'' (for example,
stormwater control measures for construction activities).
In issuing section 404 permits, the Corps or authorized state works
with the applicant to avoid, minimize, or compensate for any
unavoidable impacts to ``waters of the United States.'' Permit
applicants show that steps have been taken to avoid impacts to
wetlands, streams, and other aquatic resources; that potential impacts
have been minimized; and that compensatory mitigation will be provided
for all remaining unavoidable impacts. For most discharges that will
have only minimal adverse effects, a general permit (e.g., a
``nationwide'' permit) may be suitable. General permits are issued on a
nationwide, regional, or state basis for particular categories of
activities. While some general permits require the applicant to submit
a pre-construction notification to the Corps, others allow the
applicant to proceed with no formal notification. The general permit
process eliminates individual review and allows certain activities to
proceed with little or no delay, provided that the general or specific
conditions for the general permit are met. For example, minor road
construction activities, utility line backfill, and minor discharges
for maintenance are activities in ``waters of the United States'' that
can be considered for a general permit. States and tribes also have a
role in section 404 decisions, through state program general permits,
water quality certification, or program assumption.
Under any regulation defining ``waters of the United States,''
property owners may obtain from the Corps jurisdictional determinations
whether waters on their property are subject to the Clean Water Act.
The Corps' regulations provide that a jurisdictional determination
consists of ``a written Corps determination that a wetland and/or
waterbody is subject to regulatory jurisdiction under Section 404 of
the Clean Water Act (33 U.S.C. 1344) or a written determination that a
waterbody is subject to regulatory jurisdiction under Section 9 or 10
of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).'' See 33
CFR 331.2. These jurisdictional determinations can be obtained at no
charge to the property owners. See 33 CFR 325.1 (omitting mention of
fees for jurisdictional determinations) and Regulatory Guidance Letter
16-01 (2016) (stating that such determinations are issued as a ``public
service'').
2. The 1986 Regulations Defining ``Waters of the United States''
In 1973, EPA published regulations defining ``navigable waters''
broadly to include traditional navigable waters; tributaries of
traditional navigable waters; interstate waters; and intrastate lakes,
rivers, and streams used in interstate commerce. 38 FR 13528, 13528-29
(May 22, 1973). The Corps published regulations in 1974 defining the
term ``navigable waters'' to mean ``those waters of the United States
which 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 12115, 12119 (April 3, 1974); 33 CFR 209.120(d)(1) (1974); see
also 33 CFR 209.260(e)(1) (1974) (explaining that ``[i]t is the water
body's capability of use by the public for purposes of transportation
or commerce which is the determinative factor'').
Several federal courts then held that the Corps had given ``waters
of the
[[Page 69378]]
United States'' an unduly restrictive reading in its regulations
implementing Clean Water Act section 404. See, e.g., United States v.
Holland, 373 F. Supp. 665, 670-676 (M.D. Fla. 1974). EPA and the House
Committee on Government Operations agreed with the decision in
Holland.\7\ In Natural Resources Defense Council, Inc. v. Callaway, 392
F. Supp. 685, 686 (D.D.C. 1975) (``Callaway''), the court held that in
the Clean Water Act, Congress had ``asserted federal jurisdiction over
the nation's waters to the maximum extent permissible under the
Commerce Clause of the Constitution. Accordingly, as used in the
[Federal] Water [Pollution Control] Act, the term [`navigable waters']
is not limited to the traditional tests of navigability.'' The court
ordered the Corps to publish new regulations ``clearly recognizing the
full regulatory mandate of the [Federal] Water [Pollution Control]
Act.'' Id.
---------------------------------------------------------------------------
\7\ EPA expressed the view that ``the Holland decision provides
a necessary step for the preservation of our limited wetland
resources,'' and that ``the [Holland] court properly interpreted the
jurisdiction granted under the [Clean Water Act] and Congressional
power to make such a grant.'' See section 404 of the Federal Water
Pollution Control Act Amendments of 1972: Hearings Before the Senate
Comm. on Pub. Works, 94th Cong., 2d Sess. 349 (1976) (letter dated
June 19, 1974, from Russell E. Train, Administrator of EPA, to Lt.
Gen. W.C. Gribble, Jr., Chief of Corps of Engineers). Shortly
thereafter, the House Committee on Government Operations discussed
the disagreement between the two agencies (as reflected in EPA's
June 19 letter) and concluded that the Corps should adopt the
broader view of the term ``waters of the United States'' taken by
EPA and by the court in Holland. See H.R. Rep. No. 93-1396, at 23-27
(1974). The Committee urged the Corps to adopt a new definition that
``complies with the congressional mandate that this term be given
the broadest possible constitutional interpretation.'' Id. at 27
(internal quotation marks omitted).
---------------------------------------------------------------------------
In response to the district court's order in Callaway, the Corps
promulgated interim final regulations providing for a phased-in
expansion of its section 404 jurisdiction. 40 FR 31320 (July 25, 1975);
see 33 CFR 209.120(d)(2) and (e)(2) (1976). The interim regulations
revised the definition of ``waters of the United States'' to include,
inter alia, waters (sometimes referred to as ``isolated waters'') that
are not connected by surface water or adjacent to traditional navigable
waters. 33 CFR 209.120(d)(2)(i) (1976).\8\ On July 19, 1977, the Corps
published its final regulations, in which it revised the 1975 interim
regulations to clarify many of the definitional terms. 42 FR 37122
(July 19, 1977). The 1977 final regulations defined the term ``waters
of the United States'' to include, inter alia, ``isolated wetlands and
lakes, intermittent streams, prairie potholes, and other waters that
are not part of a tributary system to interstate waters or to navigable
waters of the United States, the degradation or destruction of which
could affect interstate commerce.'' 33 CFR 323.2(a)(5) (1978); see also
40 CFR 122.3 (1979).\9\
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\8\ Phase I, which was immediately effective, included coastal
waters and traditional inland navigable waters and their adjacent
wetlands. 40 FR 31321, 31324, 31326 (July 25, 1975). Phase II, which
took effect on July 1, 1976, extended the Corps' jurisdiction to
lakes and certain tributaries of Phase I waters, as well as wetlands
adjacent to the lakes and certain tributaries. Id. Phase III, which
took effect on July 1, 1977, extended the Corps' jurisdiction to all
remaining areas encompassed by the regulations, including
``intermittent rivers, streams, tributaries, and perched wetlands
that are not contiguous or adjacent to navigable waters.'' Id. at
31325; see also 42 FR 37124 (July 19, 1977) (describing the three
phases).
\9\ An explanatory footnote published in the Code of Federal
Regulations stated that ``[p]aragraph (a)(5) incorporates all other
waters of the United States that could be regulated under the
Federal government's Constitutional powers to regulate and protect
interstate commerce.'' 33 CFR 323.2(a)(5), at 616 n.2 (1978).
---------------------------------------------------------------------------
In 1986, the Corps consolidated and recodified its regulatory
provisions defining ``waters of the United States'' for purposes of
implementing the section 404 program. See 51 FR 41216-17 (November 13,
1986). These regulations reflected the interpretation of both agencies.
While EPA and the Corps also have separate regulations defining the
statutory term ``waters of the United States,'' their interpretations,
reflected in the 1986 regulations, have been identical and remained
largely unchanged from 1977 to 2015. See 42 FR 37122, 37124, 37127
(July 19, 1977).\10\ EPA's comparable regulations were recodified in
1988 (53 FR 20764, June 6, 1988), and both agencies added an exclusion
for prior converted cropland in 1993 (58 FR 45008, 45031, August 25,
1993). For convenience, the agencies in this preamble will generally
cite the Corps' longstanding regulations and will refer to ``the 1986
regulations'' as inclusive of EPA's comparable regulations and the 1993
addition of the exclusion for prior converted cropland.
---------------------------------------------------------------------------
\10\ Multiple provisions in the Code of Federal Regulations
contained the definition of the phrases ``waters of the United
States'' and ``navigable waters'' for purposes of implementing the
Clean Water Act, 33 U.S.C. 1362(7), and other water pollution
protection statutes such as the Oil Pollution Act, 33 U.S.C.
2701(21). Some EPA definitions were added after 1986, but each
conformed to the 1986 regulations except for variations in the waste
treatment system exclusion. See, e.g., 55 FR 8666 (March 8, 1990);
73 FR 71941 (November 26, 2008).
---------------------------------------------------------------------------
The 1986 regulations define ``waters of the United States'' as
follows (33 CFR 328.3 (2014)) \11\:
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\11\ There are some variations in the waste treatment system
exclusion across EPA's regulations defining ``waters of the United
States.'' The placement of the waste treatment system and prior
converted cropland exclusions also varies in EPA's regulations.
---------------------------------------------------------------------------
The term waters of the United States means:
1. All waters which are currently used, or were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters:
a. Which are or could be used by interstate or foreign travelers
for recreational or other purposes; or
b. From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
c. Which are used or could be used for industrial purposes by
industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the
United States under this definition;
5. Tributaries of waters identified in paragraphs (a)(1) through
(4) of this section;
6. The territorial seas;
7. Wetlands adjacent to waters (other than waters that are
themselves wetlands) identified in paragraphs (a)(1) through (6) of
this section.
8. Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA. Waste treatment systems, including
treatment ponds or lagoons designed to meet the requirements of Clean
Water Act (other than cooling ponds as defined in 40 CFR 423.11(m)
which also meet the criteria of this definition) are not waters of the
United States.
Note that these categories in the 1986 regulations may be referred
to by this numbering system (for example, (a)(1) through (a)(8) waters)
throughout this preamble. See sections I.C.3 and I.C.4 of the Economic
Analysis for the Proposed Rule for a comparison of regulatory
categories between the NWPR and this proposed rule.
3. U.S. Supreme Court Decisions
The U.S. Supreme Court first addressed the scope of ``waters of the
United States'' protected by the Clean
[[Page 69379]]
Water Act in United States v. Riverside Bayview Homes, 474 U.S. 121
(1985) (``Riverside Bayview''), which involved wetlands adjacent to a
traditional navigable water in Michigan. In a unanimous opinion, the
Court deferred to the Corps' judgment that adjacent wetlands are
``inseparably bound up with the `waters' of the United States,'' thus
concluding that ``adjacent wetlands may be defined as waters under the
Act.'' Riverside Bayview, 474 U.S. at 134, 139. The Court observed that
the broad objective of the Clean Water Act to restore the integrity of
the nation's waters ``incorporated a broad, systemic view of the goal
of maintaining and improving water quality . . . . Protection of
aquatic ecosystems, Congress recognized, demanded broad federal
authority to control pollution, for `[w]ater moves in hydrologic cycles
and it is essential that discharge of pollutants be controlled at the
source.' '' Id. at 132-33 (citing S. Rep. 92-414). The Court then
stated: ``In keeping with these views, Congress chose to define the
waters covered by the Act broadly. Although the Act prohibits
discharges into `navigable waters,' see CWA [sections] 301(a), 404(a),
502(12), 33 U.S.C. [sections] 1311(a), 1344(a), 1362(12), the Act's
definition of `navigable waters' as `the waters of the United States'
makes it clear that the term `navigable' as used in the Act is of
limited import.'' Id. at 133.
The Court also 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. 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. The Court then deferred to the agencies'
interpretation: ``In view of the breadth of federal regulatory
authority contemplated by the Act itself and the inherent difficulties
of defining precise bounds to regulable waters, the Corps' ecological
judgment about the relationship between waters and their adjacent
wetlands provides an adequate basis for a legal judgment that adjacent
wetlands may be defined as waters under the Act.'' Id. at 134.
The Court went on to note that to achieve the goal of preserving
and improving adjacent wetlands that have significant ecological and
hydrological impacts on traditional navigable waters, it was
appropriate for the Corps to regulate all adjacent wetlands, even
though some might not have any impacts on traditional navigable waters.
Id. at 135 n.9. Indeed, the Court acknowledged that some adjacent
wetlands might not have significant hydrological and biological
connections with navigable waters, but concluded that the Corps'
regulation was valid in part because such connections exist in the
majority of cases. Id.
The Court deferred to the Corps' definition of ``adjacent'': ``The
term adjacent means bordering, contiguous, or neighboring. Wetlands
separated from other waters of the United States by man-made dikes or
barriers, natural river berms, beach dunes and the like are `adjacent
wetlands.' '' The Court expressly reserved the question of whether the
Act applies to ``wetlands that are not adjacent to open waters.'' Id.
at 131 n.8.
The Supreme Court again addressed the issue of Clean Water Act
jurisdiction over ``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 (in a 5-4 opinion) held that
the use of ``isolated'' non-navigable intrastate ponds by migratory
birds was not by itself a sufficient basis for the exercise of federal
authority under the Clean Water Act. The Court noted that in Riverside
Bayview it had ``found that Congress' concern for the protection of
water quality and aquatic ecosystems indicated its intent to regulate
wetlands `inseparably bound up with the ``waters'' of the United
States' '' and that ``[i]t was the significant nexus between the
wetlands and `navigable waters' that informed [the Court's] reading of
the Clean Water Act'' in that case. Id. at 167.
While recognizing that in Riverside Bayview it had found the term
``navigable'' to be of limited import, the Court in SWANCC noted that
the term ``navigable'' could not be read entirely out of the Act. Id.
at 172. The Court stated: ``We said in Riverside Bayview Homes that the
word `navigable' in the statute was of `limited import' and went on to
hold that [section] 404(a) extended to non-navigable wetlands adjacent
to open waters. But it is one thing to give a word limited effect and
quite another to give it no effect whatever. The term `navigable' has
at least the import of showing us what Congress had in mind as its
authority for enacting the CWA: its traditional jurisdiction over
waters that were or had been navigable in fact or which could
reasonably be so made.'' Id. at 172 (internal citations omitted).
The Court found that the exercise of Clean Water Act regulatory
authority over discharges into the ponds, on the grounds that their use
by migratory birds is within the power of Congress to regulate
activities that in the aggregate have a substantial effect on
interstate commerce, raised questions. Id. at 173. The Court explained
that ``[w]here an administrative interpretation of a statute invokes
the outer limits of Congress' power, we expect a clear indication that
Congress intended that result,'' id. at 172, and that 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 (citing United States v. Bass,
404 U.S. 336, 349 (1971)). The Court thus construed the Clean Water Act
to avoid the constitutional questions related to the scope of federal
authority authorized therein. Id. at 174.
Five years after SWANCC, the Court again addressed the Clean Water
Act term ``waters of the United States'' in Rapanos v. United States,
547 U.S. 715 (2006) (``Rapanos''). Rapanos involved two consolidated
cases in which the Act had been applied to wetlands adjacent to non-
navigable tributaries of 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. Id. at 731 ((Scalia, J., plurality opinion) (``We have twice
stated that the meaning of `navigable waters' in the Act is broader
than the traditional understanding of that term, SWANCC, 531 U.S. at
167, 121 S. Ct. 675, 148 L. Ed. 2d 576; Riverside Bayview, 474 U.S. at
133, 106 S. Ct. 455, 88 L. Ed. 2d 419.'')).
A four-Justice plurality in Rapanos interpreted the term ``waters
of the United States'' as covering ``relatively permanent, standing or
continuously flowing bodies of water,'' id. at 739, that are connected
to traditional navigable waters, id. at 742, as well as wetlands with a
``continuous surface connection'' to such water bodies, id. (Scalia,
J., plurality opinion). The Rapanos plurality 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).
Justice Kennedy's concurring opinion took a different approach that
was based
[[Page 69380]]
in the Court's SWANCC opinion. Justice Kennedy concluded that ``to
constitute `navigable waters' under the Act, a water or wetland must
possess a `significant nexus' to waters that are or were navigable in
fact or that could reasonably be so made.'' Id. at 759 (citing SWANCC,
531 U.S. at 167, 172). He concluded that wetlands possess the requisite
significant nexus if the wetlands ``either alone or in combination with
similarly situated [wet]lands in the region, significantly affect the
chemical, physical, and biological integrity of other covered waters
more readily understood as `navigable.' '' Id. at 780. Justice
Kennedy's opinion notes that to be jurisdictional, such a relationship
with traditional navigable waters must be more than ``speculative or
insubstantial.'' Id.
The four dissenting Justices in Rapanos, who would have affirmed
the court of appeals' application of the agencies' regulation to find
jurisdiction over the waters at issue, also concluded that the term
``waters of the United States'' encompasses, inter alia, all
tributaries and wetlands that satisfy ``either the plurality's
[standard] or Justice Kennedy's.'' Id. at 810 & n.14 (Stevens, J.,
dissenting). The four dissenting Justices stated: ``The Army Corps has
determined that wetlands adjacent to tributaries of traditionally
navigable waters preserve the quality of our Nation's waters by, among
other things, providing habitat for aquatic animals, keeping excessive
sediment and toxic pollutants out of adjacent waters, and reducing
downstream flooding by absorbing water at times of high flow. The
Corps' resulting decision to treat these wetlands as encompassed within
the term `waters of the United States' is a quintessential example of
the Executive's reasonable interpretation of a statutory provision.''
Id. at 788 (citation omitted).
In addition to joining the plurality's opinion, Chief Justice
Roberts issued his own concurring opinion noting that the agencies
``are afforded generous leeway by the courts in interpreting the
statute they are entrusted to administer,'' and the agencies thus have
``plenty of room to operate in developing some notion of an outer bound
to the reach of their authority'' under the Clean Water Act. Id. at
758.
Neither the plurality nor the concurring opinions in Rapanos
invalidated any of the regulatory provisions defining ``waters of the
United States.''
4. Post-Rapanos Appellate Court Decisions
The earliest post-Rapanos decisions by the United States Courts of
Appeals focused on which standard to apply in interpreting the scope of
``waters of the United States''--the plurality's or Justice Kennedy's.
Chief Justice Roberts anticipated this question and cited Marks v.
United States, 430 U.S. 188 (1977) in his concurring opinion to Rapanos
as applicable precedent. Marks v. United States provides that ``[w]hen
a fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, the holding of the Court
may be viewed as the position taken by those Members who concurred in
the judgments on the narrowest grounds.'' The dissenting Justices in
Rapanos also spoke to future application of the divided decision. While
Justice Stevens stated that he assumed Justice Kennedy's significant
nexus standard would apply in most instances, the dissenting Justices
noted that they would find the Clean Water Act extended to waters
meeting either the relatively permanent standard articulated by Justice
Scalia or the significant nexus standard described by Justice Kennedy.
Rapanos, 547 U.S. at 810 & n.14 (Stevens, J., dissenting).
Since Rapanos, every court of appeals to have considered the
question has determined that the government may exercise Clean Water
Act jurisdiction over at least those waters that satisfy the
significant nexus standard set forth in Justice Kennedy's concurrence.
None has held that solely the plurality's relatively permanent standard
may be used to establish jurisdiction. Some have held that the
government may establish jurisdiction under either standard. The
Eleventh Circuit has held that only Justice Kennedy's standard applies.
Precon Dev. Corp. v. U.S. Army Corps of Eng'rs, 633 F.3d 278 (4th Cir.
2011); see also United States v. Donovan, 661 F.3d 174 (3d Cir. 2011);
United States v. Bailey, 571 F.3d 791 (8th Cir. 2009); United States v.
Cundiff, 555 F.3d 200 (6th Cir. 2009); United States v. Lucas, 516 F.3d
316 (5th Cir. 2008); N. Cal. River Watch v. City of Healdsburg, 496
F.3d 993 (9th Cir. 2007) (superseding the original opinion published at
457 F.3d 1023 (9th Cir. 2006)); United States v. Robison, 505 F.3d 1208
(11th Cir. 2007); United States v. Johnson, 467 F.3d 56 (1st Cir.
2006); United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir.
2006).
5. Post-Rapanos Implementation of the 1986 Regulations
For nearly a decade after Rapanos, the agencies did not revise
their regulations but instead determined jurisdiction under the 1986
regulations consistent with the two standards established in Rapanos
(the relatively permanent standard and the significant nexus standard)
and by using guidance issued jointly by the agencies. See U.S. EPA &
U.S. Army Corps of Engineers, Clean Water Act Jurisdiction Following
the U.S. Supreme Court's Decision in Rapanos v. United States &
Carabell v. United States (June 5, 2007), superseded December 2, 2008
(the ``Rapanos Guidance'').
Under the Rapanos Guidance,\12\ the agencies concluded that Clean
Water Act jurisdiction exists if a water meets either the relatively
permanent standard or the significant nexus standard. The agencies'
assertion of jurisdiction over traditional navigable waters and their
adjacent wetlands remained unchanged by Rapanos. Under the relatively
permanent standard, the guidance stated that the agencies would assert
jurisdiction over: Non-navigable tributaries of traditional navigable
waters that typically flow year-round or have continuous flow at least
seasonally; and wetlands that directly abut such tributaries. Id. at 4-
7. The guidance states that the agencies will determine jurisdiction
under the significant nexus standard for the following waters: Non-
navigable tributaries that are not relatively permanent, wetlands
adjacent to non-navigable tributaries that are not relatively
permanent, and wetlands adjacent to but not directly abutting a
relatively permanent non-navigable tributary. Id. at 8-12. The agencies
generally did not assert jurisdiction over non-wetland swales or
erosional features (e.g., gullies and small washes characterized by low
volume or infrequent or short duration flow) or ditches (including
roadside ditches) excavated wholly in and draining only uplands and
that did not carry a relatively permanent flow of water. Id. at 11-12.
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\12\ The agencies note that the guidance ``does not impose
legally binding requirements on EPA, the Corps, or the regulated
community, and may not apply to a particular situation depending on
the circumstances.'' Rapanos Guidance at 4 n.17.
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B. The Agencies' Post-Rapanos Rules
Since 2015, EPA and the Army have finalized three rules revising
the definition of ``waters of the United States.''
[[Page 69381]]
1. The 2015 Clean Water Rule
On June 29, 2015, EPA and the Army published the ``Clean Water
Rule: Definition of `Waters of the United States,' '' 80 FR 37054 (June
29, 2015). The 2015 Clean Water Rule's definition of ``waters of the
United States'' established three categories: (A) Waters that are
categorically ``jurisdictional by rule'' (without the need for
additional analysis); (B) waters that are subject to case-specific
analysis to determine whether they are jurisdictional; and (C) waters
that are categorically excluded from jurisdiction. Id. at 37054. Waters
considered ``jurisdictional by rule'' included (1) traditional
navigable waters; (2) interstate waters, including interstate wetlands;
(3) the territorial seas; (4) impoundments of waters otherwise
identified as jurisdictional; (5) tributaries of the first three
categories of ``jurisdictional by rule'' waters; and (6) waters
adjacent to a water identified in the first five categories of
``jurisdictional by rule'' waters, including ``wetlands, ponds, lakes,
oxbows, impoundments, and similar waters.'' Finally, all exclusions
from the definition of ``waters of the United States'' in the pre-2015
regulations were retained, and several exclusions reflecting agency
practice or based on public comment were added to the regulation for
the first time.\13\
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\13\ In February 2018, the agencies issued a rule that added an
applicability date of February 6, 2020 to the 2015 Clean Water Rule.
83 FR 5200 (February 6, 2018) (``Applicability Date Rule''). The
Applicability Date Rule was challenged in several district court
actions and on August 16, 2018--a mere six months after the rule had
been issued--the rule was vacated and enjoined nationwide. See South
Carolina Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959
(D.S.C. Aug. 16, 2018); see also Puget Soundkeeper All. v. Wheeler,
No. 15-01342 (W.D. Wash. Nov. 26, 2018) (vacating the Applicability
Date Rule nationwide).
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2. The 2019 Repeal Rule
On February 28, 2017, Executive Order 13778 ``Restoring the Rule of
Law, Federalism, and Economic Growth by Reviewing the `Waters of the
United States' Rule,'' directed EPA and the Army to review the 2015
Clean Water 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. 82 FR 12497 (March 3,
2017). The Executive Order also directed the agencies to ``consider
interpreting the term `navigable waters' . . . in a manner consistent
with'' Justice Scalia's opinion in Rapanos. Id.
Consistent with this directive, after notice and comment, on
October 22, 2019, the agencies published a final rule repealing the
2015 Clean Water Rule and recodifying the 1986 regulations without any
changes to the regulatory text. 84 FR 56626 (October 22, 2019).
3. The 2020 Navigable Waters Protection Rule
Three months later, on January 23, 2020, the agencies signed
another final rule--the Navigable Waters Protection Rule: Definition of
``Waters of the United States'' (NWPR)--that for the first time defined
``waters of the United States'' based generally on Justice Scalia's
plurality test from Rapanos. The NWPR was published on April 21, 2020,
and went into effect on June 22, 2020. 85 FR 22250 (April 21, 2020).
The NWPR interpreted the term ``the waters'' within ``the waters 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 surface water connection to traditional
navigable waters, as well as wetlands that abut or are otherwise
inseparably bound up with such relatively permanent waters.'' Id. at
22273. Specifically, the rule established four categories of
jurisdictional waters: (1) The territorial seas and traditional
navigable waters; (2) tributaries of such waters; (3) certain lakes,
ponds, and impoundments of jurisdictional waters; and (4) wetlands
adjacent to other jurisdictional waters (other than jurisdictional
wetlands). Id. at 22273.
The NWPR defined the scope of each of these four categories. The
territorial seas and traditional navigable waters were defined
consistent with the agencies' longstanding interpretations of those
terms. A ``tributary'' was defined as a river, stream, or similar
naturally occurring surface water channel that contributes surface
water flow to a territorial sea or traditional navigable water in a
typical year either directly or indirectly through other tributaries,
jurisdictional lakes, ponds, or impoundments, or adjacent wetlands. A
tributary was required to be perennial or intermittent in a typical
year. The term ``tributary'' included a ditch that either relocates a
tributary, is constructed in a tributary, or is constructed in an
adjacent wetland as long as the ditch is perennial or intermittent and
contributes surface water flow to a traditional navigable water or
territorial sea in a typical year. Id. at 22251. The definition did not
include ephemeral features, which were defined as surface waters that
flow only in direct response to precipitation, including ephemeral
streams, swales, gullies, rills, and pools. Id.
The NWPR defined ``lakes and ponds, and impoundments of
jurisdictional waters'' as ``standing bodies of open water that
contribute surface water flow in a typical year to a territorial sea or
traditional navigable water either directly or through a tributary,
another jurisdictional lake, pond, or impoundment, or an adjacent
wetland.'' Id. A lake, pond, or impoundment of a jurisdictional water
did not lose its jurisdictional status if it contributes surface water
flow to a downstream jurisdictional water in a typical year through
certain artificial or natural features. The NWPR also defined a lake,
pond, or impoundment of a jurisdictional water inundated by flooding
from a jurisdictional water in a typical year as jurisdictional. Id.
As for wetlands, the NWPR interpreted ``adjacent wetlands'' to be
those wetlands that abut jurisdictional waters and those non-abutting
wetlands that are (1) ``inundated by flooding'' from a jurisdictional
water in a typical year, (2) physically separated from a jurisdictional
water only by certain natural features (e.g., a berm, bank, or dune),
or (3) physically separated from a jurisdictional water by an
artificial structure that ``allows for a direct hydrologic surface
connection'' between the wetland and the jurisdictional water in a
typical year. Id. at 22251. Wetlands that do not have these types of
connections to other waters were not jurisdictional.
The NWPR expressly provided that waters that do not fall into one
of these jurisdictional categories are not considered ``waters of the
United States.'' Id. Moreover, waters within these categories,
including traditional navigable waters and the territorial seas, were
not ``waters of the United States'' if they also fit within the NWPR's
broad exclusions. See id. at 22325 (``If the water meets any of the[ ]
exclusions, the water is excluded even if the water satisfies one or
more conditions to be a [jurisdictional] water.'').\14\ The rule
excluded groundwater, including groundwater drained through subsurface
drainage systems; ephemeral features; diffuse stormwater runoff and
directional sheet flow over upland; ditches that are not traditional
navigable waters, tributaries, or that are not constructed in adjacent
wetlands, subject to certain limitations; prior converted cropland;
artificially irrigated areas; artificial lakes and ponds; water-filled
depressions constructed or excavated in upland or in non-jurisdictional
waters incidental to
[[Page 69382]]
mining or construction activity; pits excavated in upland or in non-
jurisdictional waters for the purpose of obtaining fill, sand, or
gravel; stormwater control features constructed or excavated in upland
or in non-jurisdictional waters; groundwater recharge, water reuse, and
wastewater recycling structures constructed or excavated in upland or
in non-jurisdictional waters; and waste treatment systems.
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\14\ The NWPR's exclusion for ditches, however, explicitly did
not encompass ditches that are traditional navigable waters or
jurisdictional tributaries. 33 CFR 328.3(b)(5).
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4. Legal Challenges to the Rules
Starting with the 2015 Clean Water Rule, the agencies' rulemakings
to revise the definition of ``waters of the United States'' have been
subject to multiple legal challenges.
Multiple parties sought judicial review of the 2015 Clean Water
Rule in various district and circuit courts. On January 22, 2018, the
Supreme Court, in a unanimous opinion, held that rules defining the
scope of ``waters of the United States'' are subject to direct review
in the district courts. Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S.
Ct. 617 (2018). Several of those district court cases remain
pending.\15\ While the 2015 Clean Water Rule went into effect in some
parts of the country in August 2015, due to multiple injunctions \16\
and later rulemakings, the 2015 Clean Water Rule was never implemented
nationwide.
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\15\ See, e.g., North Dakota v. EPA, No. 15-00059 (D.N.D.); Ohio
v. EPA, No. 15-02467 (S.D. Ohio); Southeastern Legal Found. v. EPA,
No. 15-02488 (N.D. Ga.).
\16\ See, e.g., North Dakota v. EPA, 127 F. Supp. 3d 1047
(D.N.D. 2015) (preliminary injunction barring implementation of the
2015 Clean Water Rule in 13 states); Georgia v. Pruitt, 326 F. Supp.
3d 1356 (S.D. Ga. June 6, 2018) (same as to 11 states); Texas v.
EPA, No. 3:15-cv-162, 2018 WL 4518230 (S.D. Tex. Sept. 12, 2018)
(same as to 3 states). See section I.A of the Technical Support
Document for the Proposed ``Revised Definition of `Waters of the
United States''' Rule (``Technical Support Document''; located in
the docket for this action), for a comprehensive history of the
effects of the litigation against the 2015 Clean Water Rule.
---------------------------------------------------------------------------
A number of pending cases involve claims against the NWPR. On
August 30, 2021, the U.S. District Court for the District of Arizona
remanded the NWPR and vacated the rule. Pascua Yaqui Tribe v. EPA, No.
4:20-cv-00266, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021). The court
found that ``[t]he seriousness of the Agencies' errors in enacting the
NWPR, the likelihood that the Agencies will alter the NWPR's definition
of `waters of the United States,' and the possibility of serious
environmental harm if the NWPR remains in place upon remand, all weigh
in favor of remand with vacatur.'' Id. at *5. On September 27, 2021,
the U.S. District Court for the District of New Mexico also issued an
order vacating and remanding the NWPR. Navajo Nation v. Regan, No.
2:20-cv-00602 (D.N.M. Sept. 27, 2021). In vacating the rule, the court
agreed with the reasoning of the Pascua Yaqui court that the NWPR
suffers from ``fundamental, substantive flaws that cannot be cured
without revising or replacing the NWPR's definition of `waters of the
United States.''' Slip. op. at 6. Six courts also remanded the NWPR
without vacatur or without addressing vacatur.\17\
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\17\ Order, Pueblo of Laguna v. Regan, No. 1:21-cv-00277, ECF
No. 40 (D.N.M. Sept. 21, 2021) (declining to reach issue of vacatur
in light of the Pascua decision); Order, California v. Wheeler, No.
3:20-cv-03005, ECF No. 271 (N.D. Cal. Sept. 16, 2021) (same);
Waterkeeper All. v. Regan, No. 3:18-cv-03521, ECF No. 125 (N.D. Cal.
Sept. 16, 2021) (same); Order, Conservation Law Found. v. EPA, No.
1:20-cv-10820, ECF No. 122 (D. Mass. Sept. 1, 2021) (same); Order,
S.C. Coastal Conservation League v. Regan, No. 2:20-cv-01687, ECF
No. 147 (D.S.C. July 15, 2021) (remanding without vacating); Order,
Murray v. Wheeler, No. 1:19-cv-01498, ECF No. 46 (N.D.N.Y. Sept. 7,
2021) (same).
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At this time, 14 cases are pending challenging the agencies' rules
defining ``waters of the United States,'' including the 2015 Clean
Water Rule, 2019 Repeal Rule, and the NWPR.\18\ Some of these cases
challenge only one of the rules, while others challenge two or even all
three rules in the same lawsuit. See section I.A of the Technical
Support Document for a comprehensive history of the effects of the
litigation surrounding the 2015 Clean Water Rule, 2019 Repeal Rule, and
the NWPR.
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\18\ Pascua Yaqui Tribe v. EPA, No. 20-00266 (D. Ariz.);
Colorado v. EPA, No. 20-01461 (D. Colo.); Am. Exploration & Mining
Ass'n v. EPA, No. 16-01279 (D.D.C.); Envtl. Integrity Project v.
Regan, No. 20-01734 (D.D.C.); Se. Stormwater Ass'n v. EPA, No. 15-
00579 (N.D. Fla.); Se. Legal Found. v. EPA, No. 15-02488 (N.D. Ga.);
Chesapeake Bay Found. v. Regan, Nos. 20-1063 & 20-1064 (D. Md.);
Navajo Nation v. Regan, No. 20-00602 (D.N.M.); N.M. Cattle Growers'
Ass'n v. EPA, No. 19-00988 (D.N.M.); North Dakota v. EPA, No. 15-
00059 (D.N.D.); Ohio v. EPA, No. 15-02467 (S.D. Ohio); Or.
Cattlemen's Ass'n v. EPA, No. 19-00564 (D. Or.); S.C. Coastal
Conservation League v. Regan, No. 19-03006 (D.S.C.); Puget
Soundkeeper All. v. EPA, No. 20-00950 (W.D. Wash.); Wash.
Cattlemen's Ass'n v. EPA, No. 19-00569 (W.D. Wash.).
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5. 2021 Executive Order and Review of the Navigable Waters Protection
Rule
On January 20, 2021, President Biden signed Executive Order 13990,
entitled ``Executive Order on Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis,'' which
provides that ``[i]t is, therefore, the policy of my Administration to
listen to the science; to improve public health and protect our
environment; to ensure access to clean air and water; to limit exposure
to dangerous chemicals and pesticides; to hold polluters accountable,
including those who disproportionately harm communities of color and
low-income communities; to reduce greenhouse gas emissions; to bolster
resilience to the impacts of climate change; to restore and expand our
national treasures and monuments; and to prioritize both environmental
justice and the creation of the well-paying union jobs necessary to
deliver on these goals.'' 86 FR 7037 (published January 25, 2021,
signed January 20, 2021). The order ``directs all executive departments
and agencies (agencies) to immediately review and, as appropriate and
consistent with applicable law, take action to address the promulgation
of Federal regulations and other actions during the last 4 years that
conflict with these important national objectives, and to immediately
commence work to confront the climate crisis.'' Id. at section 2(a).
``For any such actions identified by the agencies, the heads of
agencies shall, as appropriate and consistent with applicable law,
consider suspending, revising, or rescinding the agency actions.'' Id.
The order also revoked Executive Order 13778 of February 28, 2017
(Restoring the Rule of Law, Federalism, and Economic Growth by
Reviewing the ``Waters of the United States'' Rule), which had
initiated development of the NWPR.
In conformance with Executive Order 13990, the agencies reviewed
the NWPR to determine if it is aligned with the principles laid out
therein:
Science: Science plays a critical role in understanding how to
protect the integrity of our nation's waters. As discussed in detail
below, see section V.B.3 of this preamble, the NWPR did not properly
consider the extensive scientific evidence demonstrating the
interconnectedness of waters and their downstream effects, thereby
undermining Congress's objective to restore and maintain the chemical,
physical, and biological integrity of the nation's waters. The NWPR's
definition of ``waters of the United States'' does not adequately
consider the way pollution moves through waters or the way filling in a
wetland affects downstream water resources.
Climate: Science has established that human and natural systems
have been extensively impacted by climate change. Climate change can
have a variety of impacts on water resources in particular. See
Technical Support Document section III.C. For instance, a warming
climate is already increasing precipitation in many areas (e.g., the
Northeast and Midwest), while decreasing precipitation in other areas
(e.g., the Southwest). Climate change can also increase the intensity
of
[[Page 69383]]
precipitation events, including storms, and runoff from these storms
can impair water quality as pollutants deposited on land wash into
water bodies. Changes in streamflow, snowmelt timing, snowpack
accumulation, and the size and frequency of heavy precipitation events
can also cause river floods to become larger or more frequent than they
used to be in some places. Climate change also affects streamflow
characteristics like the magnitude and timing of flows, in part due to
changes in snowpack magnitude and seasonality. As the climate continues
to change, many historically dry areas are likely to experience less
precipitation and increased risk of drought associated with more
frequent and intense heatwaves, which can cause streams and wetlands to
become drier, negatively affecting both water supplies and water
quality. Lower streamflow and groundwater levels can also increase
events such as wildfires, which can alter water quality and impact
wetlands and their functions. A warming climate can also result in
increased and more variable temperatures in streams, leading to fish
kills and negatively affecting other aquatic species that can live only
in colder water. Finally, rising sea levels associated with climate
change are inundating low-lying wetlands and dry land and further
contributing to coastal flooding and erosion.
Although water resources are vulnerable to the effects of climate
change, they perform a variety of functions that can help restore
ecological function of other water resources in light of climate change
(i.e., contribute to climate resiliency) and mitigate the negative
effects of climate change on other water resources including
traditional navigable waters, interstate waters, and the territorial
seas. For instance, wetlands inside and outside of floodplains are
well-known to store large volumes of floodwaters, thereby protecting
downstream watersheds from potential flooding. Coastal wetlands can
also help buffer storm surges, which are becoming more frequent due to
climate change. Additionally, small streams are particularly effective
at retaining and attenuating floodwaters. As natural filters, wetlands
help purify and protect the quality of other waters, including drinking
water sources--a function which is more important than ever as intense
precipitation events spurred on by a changing climate mobilize
sediment, nutrients, and other pollutants. Biological communities and
geomorphic processes in small streams and wetlands break down leaves
and other organic matter, burying and sequestering a portion of that
carbon that could otherwise be released to the atmosphere and lead to
continued negative effects on water resources.
The NWPR did not appropriately acknowledge or take account of the
effects of a changing climate on the chemical, physical, and biological
integrity of the nation's waters. For example, its rolling thirty-year
approach to determining a ``typical year'' does not allow the agencies
flexibility to account for the effects of a rapidly changing climate,
including positive trends in temperature, increasing storm events, and
extended droughts (see section V.B.3.c of this preamble). The NWPR also
excluded ephemeral streams and their adjacent wetlands in the arid West
from the definition of ``waters of the United States.'' These aquatic
systems are increasingly critical to protecting and maintaining
downstream integrity as the climate in that region continues to get
hotter and drier, but with altered monsoon seasons with fewer but more
intense storms that contribute to flashy hydrology (i.e., higher runoff
volume, leading to more rapidly rising and falling streamflow over
shorter periods of time).
Section V.A.2.c.iv of this preamble contains a discussion of how
the agencies believe that climate change can be appropriately
considered in implementing the proposed rule.
Environmental Justice: The agencies recognize that the burdens of
environmental pollution and climate change often fall
disproportionately on population groups of concern (e.g., minority,
low-income, and indigenous populations as specified in Executive Order
12898). Numerous groups have raised concerns that the NWPR had
disproportionate impacts on tribes and indigenous communities.\19\ The
NWPR decreased the scope of Clean Water Act jurisdiction across the
country, including in geographic regions where regulation of waters
beyond those covered by the Act is not authorized under current state
or tribal law (see section V.B.3.d of this preamble). Absent
regulations governing discharges of pollutants into previously
jurisdictional waters, population groups of concern where these waters
are located may experience increased water pollution and impacts from
associated increases in health risk.
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\19\ See, e.g., Tribal Consultation Comment Letter from
President Jonathan Nez and Vice President Myron Lizer, Navajo
Nation, October 4, 2021 (``The Navajo Nation relies greatly on all
its surface waters, including ephemeral, intermittent, and perennial
surface waters. The Navajo Nation currently lacks the resources to
implement CWA permitting and other programs necessary to maintain
and protect water quality and relies on the Agencies to fill that
need. Therefore, any new WOTUS rule must not reduce the scope of the
waters that the Agencies can protect, or it will have
`disproportionately high and adverse human health or environmental
effects' on the Navajo Nation.''), and Tribal Consultation Comment
Letter from Clarice Madalena, Interim Director, Natural Resources
Department, Pueblo of Jemez, October 4, 2021 (``The combination of
these factors--[desert] hydrology and the geographic location of
Native communities--means that the Navigable Waters Rule had the
effect of disparately stripping Clean Water Act protections from
areas with higher Native populations. This means that the Rule
disproportionately harmed Native American communities. This
discriminatory impact violates the principles of environmental
justice'' (citations omitted). See, also, section V.B.3.d of this
preamble and the Technical Support Document.
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Further, the NWPR categorically excluded ephemeral streams from
jurisdiction, which disproportionately impacts tribes and population
groups of concern in the arid West. Tribes may lack the authority and
often the resources to regulate waters within their boundaries, and
they may also be affected by pollution from adjacent jurisdictions.\20\
Therefore, the change in jurisdiction under the NWPR may have
disproportionately exposed tribes to increased pollution and health
risks.
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\20\ See supra at note 18.
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After completing the review and reconsidering the record for the
NWPR, on June 9, 2021, the agencies announced their intention to revise
or replace the rule. The factors the agencies found most relevant in
making this decision are: The text of the Clean Water Act;
Congressional intent and the objective of the Clean Water Act; Supreme
Court precedent; the current and future harms to the chemical,
physical, and biological integrity of the nation's waters due to the
NWPR; concerns raised by stakeholders about the NWPR, including
implementation-related issues; the principles outlined in the Executive
Order; and issues raised in ongoing litigation challenging the NWPR.
EPA and the Army concluded that the NWPR did not appropriately consider
the effect of the revised definition of ``waters of the United States''
on the integrity of the nation's waters, and that the rule threatened
the loss or degradation of waters critical to the protection of
traditional navigable waters, among other concerns.
C. Summary of Stakeholder Outreach
EPA held a series of stakeholder meetings during the agencies'
review of the NWPR, including specific meetings in May 2021 with
industry, environmental organizations, agricultural organizations, and
state associations. On July 30, 2021, the
[[Page 69384]]
agencies signed a Federal Register notice that announced a schedule for
initial public meetings to hear from interested stakeholders on their
perspectives on defining ``waters of the United States'' under the
Clean Water Act and how to implement the definition. 86 FR 41911
(August 4, 2021). The agencies also announced their intent to accept
written pre-proposal recommendations from members of the public for a
30-day period beginning on August 4, 2021, and concluding on September
3, 2021. The agencies received over 32,000 recommendation letters from
the public, which can be found in the pre-proposal docket (Docket ID
EPA-HQ-OW-2021-0328). The agencies also announced their plans for
future engagement opportunities, including geographically focused
roundtables to provide for broad, transparent, regionally focused
discussions among a full spectrum of stakeholders. The Federal Register
notice articulated several specific issues that the agencies are
particularly interested in receiving feedback on, including
implementation of previous regulatory regimes; regional, state, and
tribal interests; identification of relevant science; environmental
justice interests; climate implications; the scope of jurisdictional
waters such as tributaries, jurisdictional ditches, and adjacent
features; and exclusions from jurisdiction.
The agencies also have engaged state and local governments over a
60-day federalism consultation period during development of this
proposed rule, beginning with an initial federalism consultation
meeting on August 5, 2021, and concluding on October 4, 2021.
Additional information about the federalism consultation can be found
in section VII.E of this preamble and in the report summarizing
consultation and additional outreach to state and local governments,
available in the docket (Docket ID No. EPA-HQ-OW-2021-0602) for this
proposed rule. On September 29, October 6, and October 20, 2021, the
agencies hosted virtual meetings with states focused on implementation
of prior ``waters of the United States'' regulatory regimes.
The agencies received input from a wide variety of states and local
governments through virtual meetings, consultation letters, and
recommendation letters submitted to the public docket. Many of these
groups encouraged meaningful dialogue between the states, local
governments, and the agencies, and identified implementation challenges
with determining the jurisdiction of waters under the pre-2015
regulatory regime. States and local governments stressed the need for
guidance, training, and tools early in the process to help with
implementing any revised definition of ``waters of the United States.''
A few also requested the agencies to consider a delayed effective date
for revised definitions of ``waters of the United States'' to give
state and local partners time to revise and develop new policies. Many
state and local governments emphasized the variability of water
resources across the United States and supported regionalized criteria
for determining jurisdictional waters. Some of these groups noted the
importance of strong Federal standards and the regulation of interstate
waters, since pollutants from upstream states can enter waters within
their borders.
States and local governments held divergent views on the agencies'
plans to revert to the pre-2015 regulatory regime, and on which water
resources should be considered ``waters of the United States.'' Some
supported the NWPR and recommended the agencies generally retain and
revise that rule. These state and local entities believed that the NWPR
provided a clear definition for ``waters of the United States,''
maintained a balance between federal and state jurisdiction, and
appropriately excluded waters that should not be subject to the Clean
Water Act. Others supported the agencies' current rulemaking efforts as
they thought the NWPR was not protective enough and did not account for
the complexities of the hydrologic cycle, importance of ephemeral
waters, or the connections among waters on the landscape. State and
local governments held differing opinions on how the criteria for
jurisdiction of ephemeral streams, ditches, tributaries, and wetlands
should be determined, and which resources should be included in the
scope of the Clean Water Act.
Several state and local governments recommended consideration of
climate change and environmental justice concerns in any new rulemaking
effort. Some emphasized that isolated wetlands and ephemeral streams
are important in reducing flooding during extreme weather events and
that the agencies should consider this importance in the rulemaking.
Others acknowledged the impacts of climate change but stated that other
programs and legislation are more appropriate ways to address climate
change. Some state and local governments also noted that NWPR excluded
wetlands that are important to minority and low-income communities and
that future rulemaking needs to consider environmental justice issues.
The agencies also initiated a tribal consultation and coordination
process on July 30, 2021. The agencies engaged tribes over a 66-day
tribal consultation period during development of this proposed rule
that concluded on October 4, 2021, including two consultation kick-off
webinars and meetings. The agencies received consultation comment
letters from 24 tribes and three tribal organizations and held three
leader-to-leader consultation meetings and two staff-level meetings
with tribes at their request. The agencies anticipate that consultation
meetings with additional tribes will be held with tribes during the
rulemaking process. Many tribes and tribal organizations expressed
support for the agencies' efforts to replace the NWPR. One tribe did
not support the agencies' efforts to revise the definition of ``waters
of the United States,'' stating tribal sovereignty concerns and
concerns that the agencies might exceed the power of Congress under the
Commerce Clause. Some tribes stated that the NWPR disadvantaged tribes
because unlike states, many tribes lack the resources to enforce a
definition of ``tribal waters'' that is broader than the definition of
``waters of the United States.'' Several tribes also stated that they
rely on the Federal government to permit discharges of pollutants into
waters on their lands and do not have the resources to administer their
own permitting programs. Some tribes spoke of the importance of
protecting ephemeral streams, which were eliminated from jurisdiction
under the NWPR, as well as for wetlands that were excluded under the
NWPR. Several tribes spoke about the need to include ``waters of the
tribe'' into the definition of ``waters of the United States'' Several
tribes stated support for furthering environmental justice with the
proposed rule, noting that the agencies failed to undertake an
environmental justice analysis for the NWPR. Some tribes also supported
the need to account for climate change in the definition of ``waters of
the United States.'' Additional information about the tribal
consultation process can be found in section VII.F of this preamble and
the Summary of Tribal Consultation and Coordination, which is available
in the docket for this proposed rule. On October 7, 13, 27, and 28,
2021, the agencies hosted virtual dialogues with tribes focused on
implementation of prior ``waters of the United States'' regulatory
regimes.
Consistent with the August 4, 2021 Federal Register notice, the
agencies held six public meeting webinars on
[[Page 69385]]
August 18, August 23, August 25 (specifically for small entities),
August 26, August 31, and September 2, 2021. At these pre-proposal
webinars, the agencies provided a brief presentation and sought input
on the agencies' intent to revise the definition of ``waters of the
United States'' and the specific issues included in the outreach
Federal Register notice described above. The agencies heard from
stakeholders representing a diverse range of interests, positions,
suggestions, and recommendations.
The agencies have received a variety of recommendations during this
pre-proposal outreach process. The agencies received broad support for
robust stakeholder outreach and the development of a rule that is
consistent with Supreme Court precedent. Stakeholders disagreed about
whether states and tribes could or would fill any perceived gap in
permitting introduced by the NWPR's decreased scope of jurisdiction,
with some stakeholders providing examples of environmental harms caused
by the NWPR. Some stakeholders expressed support for a science-based
rule, including stakeholders who believed the NWPR did not adequately
consider the agencies' scientific record. Most stakeholders who
provided input supported a clear, implementable rule that is easy for
the public to understand, and the agencies received feedback that the
significant nexus standard and typical year analysis were challenging
to implement under prior regulatory regimes.
Many stakeholders also emphasized the importance of regional
geographic variability across the United States, and some stakeholders
suggested that the agencies consider regionally specific criteria for
jurisdictional waters. Some stakeholders emphasized the importance of
climate change considerations in any new rulemaking effort, while other
stakeholders stated that climate change cannot be used as a tool to
expand jurisdictional authority. Some stakeholders explicitly supported
the consideration of impacts to minority and low-income communities in
developing a revised definition of ``waters of the United States'' and
asserted that the NWPR did not consider impacts to these communities.
Stakeholders also provided feedback on which water resources should
be considered jurisdictional as ``waters of the United States.'' For
instance, some stakeholders supported a jurisdictional category for
interstate waters, while others opposed such a category. Stakeholders
differed in whether they supported the criteria for jurisdictional
tributaries, wetlands, and ditches under the pre-2015 regulatory
regime, 2015 Clean Water Rule, or NWPR. Some stakeholders suggested
that the agencies should enhance clarity by using physical indicators,
functional characteristics, or surface water flow as jurisdictional
criteria. Some stakeholders asserted that the agencies should exclude
most ditches from the definition of ``waters of the United States,''
while others stated that the agencies should instead include ditches as
jurisdictional if they function as tributaries or have other
connections to other hydrologic features in the watershed. Some
stakeholders indicated that impoundments and ``other waters'' are not
appropriate categories of jurisdictional waters, while others suggested
regulating a broad spectrum of open waters.
Stakeholders expressed different views about which exclusions are
important and should be included in a revised definition of ``waters of
the United States.'' Many stakeholders noted that the waste treatment
system exclusion and prior converted cropland exclusion should be
retained, and some stakeholders expressed support for other exclusions
such as stormwater control features and artificial lakes and ponds. As
described in section V.C.8 of this preamble, the agencies are proposing
to retain the waste treatment system exclusion and prior converted
cropland exclusion from the 1986 regulations and have specified in the
preamble that certain other waters are generally not considered
``waters of the United States.'' Stakeholders also had divergent views
on whether ephemeral streams should be categorically excluded from the
definition of ``waters of the United States'' or evaluated as
tributaries. As described in section V.C.5 of this preamble, the
agencies are not proposing to exclude ephemeral streams but are instead
proposing that ephemeral streams that meet the significant nexus
standard be jurisdictional as tributaries.
The agencies have considered the input that they received as part
of the consultation processes and other opportunities for pre-proposal
recommendations. The proposed rule, discussed in section V of this
preamble, seeks to balance the considerations and concerns of co-
regulators and stakeholders. The agencies welcome feedback on this
proposed rule through a public hearing and the 60-day public comment
period initiated through publication of this action. The agencies will
consider all comments received during the comment period on this
proposal, and this consideration will be reflected in the final rule
and supporting documents.
V. Proposed Revised Definition
A. Basis for Proposed Rule
In this proposed rule, the agencies are exercising their
discretionary authority to interpret ``waters of the United States'' to
mean the waters defined by the familiar 1986 regulations, with
amendments to reflect the agencies' determination of the statutory
limits on the scope of the ``waters of the United States'' informed by
Supreme Court precedent. The agencies propose to interpret the term
``waters of the United States'' to include: Traditional navigable
waters, interstate waters, and the territorial seas, and their adjacent
wetlands; most impoundments of ``waters of the United States'';
tributaries to traditional navigable waters, interstate waters, the
territorial seas, and impoundments, that meet either the relatively
permanent standard or the significant nexus standard; wetlands adjacent
to impoundments and tributaries, that meet either the relatively
permanent standard or the significant nexus standard; and ``other
waters'' that meet either the relatively permanent standard or the
significant nexus standard.
The proposed rule advances the Clean Water Act's statutory
objective to ``restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,'' section 101(a), as it is
based on the best available science concerning the functions provided
by upstream tributaries, adjacent wetlands, and ``other waters'' to
restore and maintain the water quality of downstream foundational
waters. In developing the proposed rule, the agencies also considered
the statute as a whole, relevant Supreme Court case law, and the
agencies' experience and expertise after more than 30 years of
implementing the longstanding 1986 regulations defining ``waters of the
United States,'' including more than a decade of experience
implementing those regulations consistent with the decisions in
Riverside Bayview, SWANCC, and Rapanos collectively. This proposed
interpretation also reflects consideration of provisions of the Act
including section 101(b) which states that ``[i]t is the policy of the
Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution, to plan the development and use (including restoration,
preservation, and enhancement) of land and water resources'' because
the limitations
[[Page 69386]]
reflect consideration of both the comprehensive nature and objective of
the Clean Water Act and avoid assertions of jurisdiction that raise
federalism concerns. Determining where to draw the boundaries of
federal jurisdiction to ensure that the agencies achieve Congress's
objective while preserving and protecting the responsibilities and
rights of the states is a matter of judgment assigned by Congress to
the agencies. The proposed rule's relatively permanent and significant
nexus limitations appropriately draw this boundary by ensuring that
where upstream waters significantly affect the integrity of the
traditional navigable waters, interstate waters, and territorial seas,
Clean Water Act programs will apply to ensure that those downstream
waters are protected, and where they do not, the agencies will leave
regulation to the states and tribes. These limitations are thus based
on the agencies' conclusion that together those standards are
consistent with the statutory text, advance the objective of the Act,
are supported by the scientific record, and appropriately consider the
objective in section 101(a) of the Act and the policy in section
101(b). In addition, because the proposed rule reflects consideration
of the agencies' experience and expertise, as well as updates in
implementation tools and resources, it is familiar and implementable.
For all these reasons, the proposed rule would achieve the
agencies' goals of quickly and durably protecting the quality of the
nation's waters. Quickly, because the regulatory framework is familiar
to the agencies and stakeholders and supporting science is available
along with confirmatory updates; and durably, because the foundation of
the rule is the longstanding regulations amended to reflect the
agencies' interpretation of appropriate limitations on the geographic
scope of the Clean Water Act that is consistent with case law, the Act,
and the best available science. The proposal would protect the quality
of the nation's waters by restoring the important protections for
jurisdictional waters provided by the Clean Water Act, including not
only protections provided by the Act's permitting programs, but also
protections provided by programs ranging from water quality standards
and total maximum daily loads to oil spill prevention, preparedness and
response programs, to the state and tribal water quality certification
programs.
The proposed rule is based on the agencies' interpretation of the
Clean Water Act, and the proposed rule's protection of water resources
advances both the goals of the Act and the goals identified in the
Executive Order, including: Listening to the science; improving public
health and protecting our environment; ensuring access to clean water;
limiting exposure to dangerous chemicals and pesticides; holding
polluters accountable, including those who disproportionately harm
communities of color and low-income communities; and bolstering
resilience to the impacts of climate change.
1. The Proposed Rule Is Within the Agencies' Discretion Under the Act
The Clean Water Act delegates authority to the agencies to
interpret the term ``navigable waters'' and its statutory definition
``waters of the United States,'' and agencies have inherent authority
to reconsider past decisions and to revise, replace, or repeal a
decision to the extent permitted by law and supported by a reasoned
explanation. Given the regulatory and litigation history described
above, there can be little disagreement that both terms under the Clean
Water Act are ambiguous and that therefore the agencies have generous
leeway to provide the considered and reasonable interpretation of the
terms provided in this proposal. Indeed, the Supreme Court has twice
held that the Act's terms ``navigable waters'' and ``waters of the
United States'' are ambiguous and, therefore, that the agencies have
delegated authority to reasonably interpret this phrase in the statute.
First, in Riverside Bayview, the Supreme Court deferred to and
upheld the agencies' interpretation of the Act to protect wetlands
adjacent to navigable-in-fact bodies of water, relying on the familiar
Chevron standard that ``[a]n agency's construction of a statute it is
charged with enforcing is entitled to deference if it is reasonable and
not in conflict with the expressed intent of Congress.'' 474 U.S. at
131 (citing Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-45 (1984)). Second, in Rapanos, all Justices
found ambiguity in the terms--albeit to varying degrees. In his
concurring opinion, Justice Kennedy referenced ``ambiguity in the
phrase `navigable waters.' '' 547 U.S. at 780. So did the dissenting
Justices. See id. at 796 (``[G]iven the ambiguity inherent in the
phrase `waters of the United States,' the Corps has reasonably
interpreted its jurisdiction[.]'') (Stevens, J., dissenting); id. at
811-12 (``Congress intended the Army Corps of Engineers to make the
complex technical judgments that lie at the heart of the present cases
(subject to deferential judicial review).'') (Breyer, J., dissenting).
The plurality also agreed that the term ``is in some respects
ambiguous.'' Id. at 752.
Ambiguity in a statute represents ``delegations of authority to the
agency to fill the statutory gap in reasonable fashion.'' Nat'l Cable &
Telecomm. Ass'n v. Brand X internet Servs., 545 U.S. 967, 980 (2005).
As the Supreme Court explained in Riverside Bayview, Congress delegated
a ``breadth of federal regulatory authority'' and expected the agencies
to tackle the ``inherent difficulties of defining precise bounds to
regulable waters.'' 474 U.S. at 134. And, in concurring with the
Rapanos plurality opinion, Chief Justice Roberts emphasized the breadth
of the agencies' discretion in defining ``waters of the United States''
through rulemaking, noting that ``[g]iven the broad, somewhat
ambiguous, but nonetheless 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 Clean Water Act. 547 U.S. at 758 (Roberts,
C.J., concurring). Indeed, the agencies' interpretations under the Act,
Chief Justice Roberts emphasized, are ``afforded generous leeway by the
courts.'' Id.
In addition, agencies have inherent authority to reconsider past
decisions and to revise, replace, or repeal a decision to the extent
permitted by law and supported by a reasoned explanation. FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009) (``Fox''); Motor
Vehicle Manufacturers Ass'n of the United States, Inc. v. State Farm
Mutual Automobile Insurance Co., 463 U.S. 29, 42 (1983) (``State
Farm''); see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,
2125 (2016) (``Agencies are free to change their existing policies as
long as they provide a reasoned explanation for the change.''). Such a
decision need not be based upon a change of facts or circumstances. A
revised rulemaking based ``on a reevaluation of which policy would be
better in light of the facts'' is ``well within an agency's
discretion.'' 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).
As discussed further in section V.B.3 of this preamble, the
agencies have reviewed the NWPR and determined that the rule should be
replaced. The proposed rule properly considers the objective of the
Act, is consistent with the text and structure of the Act and
[[Page 69387]]
Supreme Court precedent, and is supported by the best available
science.
2. The Proposed Rule Advances the Objective of the Clean Water Act
The proposed rule is grounded in the Act's objective ``to restore
and maintain the chemical, physical, and biological integrity of the
Nation's waters,'' 33 U.S.C. 1251(a). The proposed rule advances the
Act's objective by defining ``waters of the United States'' to include
waters that significantly affect the chemical, physical, or biological
integrity of traditional navigable waters, interstate waters, and the
territorial seas and waters that are relatively permanent or that have
a continuous surface connection to such waters. Those limitations also
ensure that the agencies will not assert jurisdiction where the effect
is not significant. The proposed rule is supported by the best
available science on the functions provided by upstream waters,
including wetlands, to restore and maintain the integrity of
foundational waters because it recognizes that upstream waters can have
significant effects and enables the agencies to make science-informed
decisions about such effects. The proposed rule thus retains the
familiar categories of waters in the 1986 regulations--traditional
navigable waters, interstate waters, ``other waters,'' impoundments,
tributaries, the territorial seas, and adjacent wetlands--while
proposing to add, where appropriate, a requirement that waters also
meet either the significant nexus standard or the relatively permanent
standard.
a. The Objective of the Clean Water Act To Protect Water Quality Must
Be Considered When Defining ``Waters of the United States''
A statute must be interpreted in light of the purposes Congress
sought to achieve. See, e.g., Dickerson v. New Banner Institute, Inc.,
460 U.S. 103, 118 (1983). Thus, the agencies must consider the
objective of the Clean Water Act in interpreting the scope of the
statutory term ``waters of the United States.'' The objective of the
Clean Water Act is ``to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a).
To thus adequately consider the Act's statutory objective, a rule
defining ``waters of the United States'' must consider its effects on
the chemical, physical, and biological integrity of the nation's
waters. And--as the text and structure of the Act, supported by
legislative history and Supreme Court decisions, make clear--chemical,
physical, and biological integrity refers to water quality.
The Act begins with the objective in section 101(a) and establishes
numerous programs all designed to protect the integrity of the nation's
waters, ranging from permitting programs and enforcement authorities,
to water quality standards and effluent limitations guidelines, to
research and grant provisions.
One of the Clean Water Act's principal tools in protecting the
integrity of the nation's waters is section 301(a), which prohibits
``the discharge of any pollutant by any person'' without a permit or
other authorization under the Act. Other substantive provisions of the
Clean Water Act that apply to ``navigable waters'' and are designed to
meet the statutory objective include the section 402 NPDES permit
program, the section 404 dredged and fill permit program, the section
311 oil spill prevention and response program, the section 303 water
quality standards and total maximum daily load programs, and the
section 401 state and tribal water quality certification process, as
discussed above. Each of these programs is designed to protect water
quality and, therefore, further the objective of the Act. The question
of federal jurisdiction is foundational to most programs administered
under the Clean Water Act. See section IV.A.1 of this preamble.\21\
---------------------------------------------------------------------------
\21\ Additional provisions are also designed to achieve the
Act's statutory objective and use its specific language, including
the definition of ``pollution,'' which the Act defines as ``the man-
made or man-induced alteration of the chemical, physical,
biological, and radiological integrity of water.'' 33 U.S.C.
1362(19).
---------------------------------------------------------------------------
Two recent Supreme Court Clean Water Act decisions, County of Maui,
Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1476 (2020) (``Maui'')
and Nat'l Ass'n of Mfrs. v. Dep't of Defense, 138 S. Ct. 617, 624
(2018) (``National Association of Manufacturers''), affirm that
Congress used specific language in the definitions of the Act in order
to meet the objective of the Act, that the definition of ``waters of
the United States'' is fundamental to meeting the objective of the Act,
and, therefore, that the objective of the Act must be considered in
interpreting the term ``waters of the United States.''
In Maui, the Supreme Court instructed that ``[t]he object in a
given scenario will be to advance, in a manner consistent with the
statute's language, the statutory purposes that Congress sought to
achieve.'' 140 S. Ct. at 1476. The Court, in recognizing that
Congress's purpose to `` `restore and maintain the . . . integrity of
the Nation's waters' '' is ``reflected in the language of the Clean
Water Act,'' also found that ``[t]he Act's provisions use specific
definitional language to achieve this result,'' noting that among that
definitional language is the phrase ``navigable waters.'' Id. at 1468-
69.\22\ Thus, in accordance with Maui, in interpreting the ``specific
definitional language'' of the Clean Water Act, the agencies must
consider whether they are advancing the statutory purposes Congress
sought to achieve.
---------------------------------------------------------------------------
\22\ The Court explained:
The Act's provisions use specific definitional language to
achieve this result. First, the Act defines ``pollutant'' broadly,
including in its definition, for example, any solid waste,
incinerator residue, `` `heat,' '' `` `discarded equipment,' '' or
sand (among many other things). Sec. 502(6), 86 Stat. 886. Second,
the Act defines a ``point source'' as `` `any discernible, confined
and discrete conveyance . . . from which pollutants are or may be
discharged,' '' including, for example, any `` `container,' '' ``
`pipe, ditch, channel, tunnel, conduit,' '' or `` `well.' '' Sec.
502(14), id., at 887. Third, it defines the term ``discharge of a
pollutant'' as `` `any addition of any pollutant to navigable waters
[including navigable streams, rivers, the ocean, or coastal waters]
from any point source.' '' Sec. 502(12), id., at 886.
Maui, 140 S. Ct. at 1469.
---------------------------------------------------------------------------
In National Association of Manufacturers, the Court confirmed the
importance of considering the objective of the Clean Water Act when
interpreting the specific definitional language of the Act, and in
particular when interpreting the definitional language ``waters of the
United States.'' The Court identified section 301's prohibition on
unauthorized discharges as one of the Act's principal tools for
achieving the objective and then identified ``waters of the United
States'' as key to the scope of the Act: ``Congress enacted the Clean
Water Act in 1972 `to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.' [33 U.S.C.] 1251(a). One
of the Act's principal tools in achieving that objective is [section]
1311(a), which prohibits `the discharge of any pollutant by any
person,' except in express circumstances. . . . Because many of the
Act's substantive provisions apply to `navigable waters,' the statutory
phrase `waters of the United States' circumscribes the geographic scope
of the Act in certain respects.'' 138 S. Ct. 617, 624. Thus,
consideration of the objective of the Act is of particular importance
when defining the foundational phrase ``waters of the United States.''
Many other Supreme Court decisions confirm the importance of
considering the Act's objective. When faced with questions of statutory
interpretation on the scope of the Clean Water Act, many Supreme Court
decisions begin with the
[[Page 69388]]
objective of the Act and examine the relevant question through that
lens. See, e.g., PUD No. 1 of Jefferson Cty v. Washington Dep't of
Ecology, 511 U.S. 700, 704 (1994) (interpreting the scope of Clean
Water Act section 401 and finding that the Act ``is a comprehensive
water quality statute designed to `restore and maintain the chemical,
physical, and biological integrity of the Nation's waters,' '' that
``[t]he Act also seeks to attain `water quality which provides for the
protection and propagation of fish, shellfish, and wildlife,' '' and
that ``[t]o achieve these ambitious goals, the Clean Water Act
establishes distinct roles for the Federal and State Governments'');
EPA v. California ex rel. State Water Resources Control Bd., 426 U.S.
200, 203, 205 n.12 (1976) (``In 1972, prompted by the conclusion of the
Senate Committee on Public Works that `the Federal water pollution
control program . . . has been inadequate in every vital aspect,'
Congress enacted the [Clean Water Act], declaring `the national goal
that the discharge of pollutants into the navigable waters be
Eliminated by 1985.''); Arkansas v. Oklahoma, 503 U.S. 91 (1992)
(reviewing the scope of EPA's authority to issue a permit affecting a
downstream state and finding that the Act ``anticipates a partnership
between the States and the Federal Government, animated by a shared
objective: `to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters' ''); S.D. Warren Co. v.
Maine Bd. of Envtl. Protection, 126 S. Ct. 1843, 1852-53 (2006)
(interpreting the scope of ``discharge'') (``Congress passed the Clean
Water Act to `restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,' 33 U.S.C. [section]
1251(a)''); Int'l Paper Co. v. Ouellette, 479 U.S. 481, 492-93 (1987)
(``Congress intended the 1972 Act amendments to `establish an all-
encompassing program of water pollution regulation.' . . . The Act
applies to all point sources and virtually all bodies of water, and it
sets forth the procedures for obtaining a permit in great detail. . . .
Given that the Act itself does not speak directly to the issue, the
Court must be guided by the goals and policies of the Act in
determining whether it in fact pre-empts an action based on the law of
an affected State.'').
Along with Maui and National Association of Manufacturers, these
cases confirm that, for purposes of a rulemaking revising the
definition of ``waters of the United States,'' the agencies must
consider the rule's effect on the chemical, physical, and biological
integrity of the nation's waters--i.e., the quality of those waters.
The Supreme Court in Riverside Bayview explained the inherent link
between the Act's objective and water quality: ``This objective
incorporated a broad, systemic view of the goal of maintaining and
improving water quality: As the House Report on the legislation put it,
`the word ``integrity'' . . . refers to a condition in which the
natural structure and function of ecosystems [are] maintained.' '' 474
U.S. at 132 (citations omitted).
Indeed, the Clean Water Act is replete with 90 references to water
quality--from the goals set forth in furtherance of meeting the
statutory objective to the provisions surrounding research, effluent
limitations, and water quality standards. See, e.g., 33 U.S.C.
1251(a)(2) (``[I]t is the national goal 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''), 1254(b)(6) (providing
that the Administrator shall collect ``basic data on chemical,
physical, and biological effects of varying water quality''),
1311(b)(1)(C) (requiring permits to have limits as stringent as
necessary to meet water quality standards), 1313(c) (providing that
water quality standards ``shall be such as to protect the public health
or welfare, enhance the quality of water and serve the purposes of this
[Act]''). And Congress was clear that ``[t]he development of
information which describes the relationship of pollutants to water
quality is essential for carrying out the objective of the Act.'' S.
Rep. No. 92-414 (1972), as reprinted in 1972 U.S.C.C.A.N. 3668, 3716.
See also id. at 3717 (``Water quality is intended to refer to the
biological, chemical and physical parameters of aquatic ecosystems, and
is intended to include reference to key species, natural temperature
and current flow patterns, and other characteristics which help
describe ecosystem integrity. . . . The criteria will allow the
translation of the narrative of the general objective of the Act to
specific and precise parameters.''); id. at 3742 (``The Committee has
added a definition of pollution to further refine the concept of water
quality measured by the natural chemical, physical and biological
integrity.''). As the Sixth Circuit explained shortly after the 1972
enactment of the Clean Water Act: ``It would, of course, make a mockery
of [Congress's] powers if its authority to control pollution was
limited to the bed of the navigable stream itself. The tributaries
which join to form the river could then be used as open sewers as far
as federal regulation was concerned. The navigable part of the river
could become a mere conduit for upstream waste.'' United States v.
Ashland Oil & Transp. Co., 504 F.2d 1317, 1326 (6th Cir. 1974).
To be clear, the agencies do not interpret the objective of the
Clean Water Act to be the only factor relevant to determining the scope
of the Act. Rather, in light of the precise definitional language of
the definitions in the Act, the importance of water quality to the
statute as a whole, and Maui and other Supreme Court decisions
affirming that consideration of the objective of the Act is important
in defining the scope of the Act, the agencies conclude that
consideration of the objective of the Act for purposes of a rule
defining ``waters of the United States'' must include substantive
consideration of the effects of a revised definition on the integrity
of the nation's waters. As discussed further below, the proposed rule
properly considers and advances the objective of the Act because it
focuses on the effects of upstream waters including wetlands on
traditional navigable waters, interstate waters, and the territorial
seas, and is supported by the best available science on those water
quality effects.
b. The Proposed Rule Builds Upon the 1986 Regulations, Which Were
Designed To Advance the Objective of the Act
The 1986 regulations--which are substantially the same as the 1977
regulations--represented the agencies' interpretation of the Clean
Water Act in light of its objective and their scientific knowledge
about aquatic ecosystems. The 1986 regulations were designed to advance
the objective of the Act and are thus a reasonable foundation upon
which to build the proposed rule. In this proposed rule, the agencies
are exercising their discretionary authority to interpret ``waters of
the United States'' to mean the waters defined by the familiar 1986
regulations, with amendments to reflect the agencies' interpretation of
the statutory limits on the scope of the ``waters of the United
States'' informed by Supreme Court decisions and the scientific record.
The best available science as discussed below confirms that the
1986 regulations remain a reasonable foundation for a definition of
``waters of the United States'' that furthers the water quality
objective of the Clean Water Act. See Technical Support Document. This
section describes the agencies' historic rationale for the 1986
regulations and its regulatory categories
[[Page 69389]]
and describes the latest science that supports the conclusion that the
categories of waters identified in the 1986 regulations, such as
tributaries, adjacent wetlands, and ``other waters,'' provide functions
that restore and maintain the chemical, physical, and biological
integrity of traditional navigable waters, interstate waters, and the
territorial seas.
The agencies' historic regulations, which became the 1986
regulations, were based on the agencies' scientific and technical
judgment about which waters needed to be protected to restore and
maintain the chemical, physical, and biological integrity of
traditional navigable waters, interstate waters, and the territorial
seas. For more than 40 years, EPA and the Corps recognized the need to
protect ``the many tributary streams that feed into the tidal and
commercially navigable waters . . . since the destruction and/or
degradation of the physical, chemical, and biological integrity of each
of these waters is threatened by the unregulated discharge of dredged
or fill material.'' 42 FR 37121, 37123. The agencies further recognized
that the nation's wetlands are ``a unique, valuable, irreplaceable
water resource. . . . Such areas moderate extremes in waterflow, aid in
the natural purification of water, and maintain and recharge the ground
water resource.'' EPA, Protection of Nation's Wetlands: Policy
Statement, 38 FR 10834 (May 2, 1973). In Riverside Bayview, the Supreme
Court acknowledged that the agencies were interpreting the Act
consistent with its objective and based on their scientific expertise:
In view of the breadth of federal regulatory authority
contemplated by the Act itself and the inherent difficulties of
defining precise bounds to regulable waters, the Corps' ecological
judgment about the relationship between waters and their adjacent
wetlands provides an adequate basis for a legal judgment that
adjacent wetlands may be defined as waters under the Act.
474 U.S. at 134.
As the Corps stated in promulgating the 1977 definition, ``[t]he
regulation of activities that cause water pollution cannot rely on . .
. artificial lines, however, but must focus on all waters that together
form the entire aquatic system. Water moves in hydrologic cycles, and
the pollution of . . . part of the aquatic system . . . will affect the
water quality of the other waters within that aquatic system.'' 42 FR
37128. Thus, the proposed rule includes the categories long identified
by the agencies as affecting the water quality of traditional navigable
waters, interstate waters, and the territorial seas, including
tributaries, adjacent wetlands, impoundments, and ``other waters.''
For example, the agencies have long construed the Act to include
tributaries as ``waters of the United States.'' The Corps explained in
1977 that its regulations necessarily encompassed ``the many tributary
streams that feed into the tidal and commercially navigable waters''
because ``the destruction and/or degradation of the physical, chemical,
and biological integrity of each of these waters is threatened by the
unregulated discharge of dredged or fill material.'' Id. at 37123.
Construing ``waters of the United States'' to include tributaries
of traditional navigable waters, interstate waters, the territorial
seas, and impoundments of ``waters of the United States'' is consistent
with the discussion of tributaries in the Act's legislative history.
The Senate Report accompanying the 1972 Act states that ``navigable
waters'' means ``the navigable waters of the United States, portions
thereof, tributaries thereof, and includes the territorial seas and the
Great Lakes.'' S. Rep. No. 92414, at 77 (1971), as reprinted in 1972
U.S.C.C.A.N. 3668, 3742 (emphasis added). Furthermore, Congress
recognized that Clean Water Act jurisdiction must extend broadly
because ``[w]ater moves in hydrologic cycles and it is essential that
[the] discharge of pollutants be controlled at the source.'' Id.
Congress thus restated that ``reference to the control requirements
must be made to the navigable waters, portions thereof, and their
tributaries.'' Id. at 3743 (emphasis added).
As discussed below and further in the Technical Support Document,
the best available science supports the 1986 regulations' conclusions
about the importance of tributaries to the water quality of downstream
foundational waters: Tributaries provide natural flood control,
recharge groundwater, trap sediment, store and transform pollutants
from fertilizers, decrease high levels of chemical contaminants,
recycle nutrients, create and maintain biological diversity, and
sustain the biological productivity of downstream rivers, lakes, and
estuaries.
With the 1986 regulations, the agencies determined that wetlands
adjacent to navigable waters generally play a key role in protecting
and enhancing water quality: ``Water moves in hydrologic cycles, and
the pollution of this part of the aquatic system, regardless of whether
it is above or below an ordinary high water mark, or mean high tide
line, will affect the water quality of the other waters within that
aquatic system. For this reason, the landward limit of Federal
jurisdiction under Section 404 must include any adjacent wetlands that
form the border of or are in reasonable proximity to other waters of
the United States, as these wetlands are part of this aquatic system.''
42 FR 37128; see also 38 FR 10834.
In Riverside Bayview, the Supreme Court deferred to the agencies'
judgment that adjacent wetlands provide valuable functions for
downstream waters:
[T]he Corps has concluded that wetlands may serve to filter and
purify water draining into adjacent bodies of water and to slow the
flow of surface runoff into lakes, rivers, and streams and thus
prevent flooding and erosion. In addition, adjacent wetlands may
``serve significant natural biological functions, including food
chain production, general habitat, and nesting, spawning, rearing
and resting sites for aquatic . . . species.'' . . . [W]e cannot say
that the Corps' judgment on these matters is unreasonable . . . .
474 U.S. at 134-35 (citations omitted). The Supreme Court then
unanimously held 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.'' Id. at
135.
As discussed below and further in the Technical Support Document,
the best available science supports the 1986 regulations' conclusions
about the functions provided by adjacent wetlands to downstream
traditional navigable waters, interstate waters, and the territorial
seas, namely that adjacent wetlands provide valuable flood control and
water quality functions including interruption and delay of the
transport of water-borne contaminants over long distances, retention of
sediment, prevention and mitigation of drinking water contamination,
and assurance of drinking water supply.
The 1986 regulations also included ``other waters'' based on their
effects on water quality and their effects on interstate commerce. 42
FR 37128. As discussed below and further in section IV.D of the
Technical Support Document, the best available science also shows that
``other waters''--such as depressional wetlands, open waters, and
peatlands--can provide important hydrologic (e.g., flood control),
water quality, and habitat functions which vary as a result of the
diverse settings in which they exist across the country and which can
have downstream effects on larger rivers, lakes, and estuaries,
particularly when considered collectively with other non-floodplain
wetlands on the landscape. The
[[Page 69390]]
functions that ``other waters'' provide include storage of floodwater,
recharge of ground water that sustains river baseflow, retention and
transformation of nutrients, metals, and pesticides, export of
organisms to downstream waters, and habitats needed for aquatic and
semi-aquatic species that also utilize streams.
While the 1986 regulations are a reasonable foundation upon which
to build the proposed rule, the agencies are exercising their
discretionary authority to interpret ``waters of the United States'' to
mean the waters defined by the familiar 1986 regulations, with
amendments to reflect the agencies' interpretation of the statutory
limits on the scope of the ``waters of the United States'' informed by
Supreme Court decisions as discussed in section V.A.3 of this preamble.
c. The Proposed Rule Properly Considers the Objective by the Act
Because It Is Informed by the Best Available Science on Water Quality
As noted above, the agencies propose to interpret the term ``waters
of the United States'' to include: Traditional navigable waters,
interstate waters, and the territorial seas, and their adjacent
wetlands; most impoundments of ``waters of the United States'';
tributaries to traditional navigable waters, interstate waters, the
territorial seas, and impoundments, that meet either the relatively
permanent standard or the significant nexus standard; wetlands adjacent
to impoundments and tributaries, that meet either the relatively
permanent standard or the significant nexus standard; and ``other
waters'' that meet either the relatively permanent standard or the
significant nexus standard. The proposal is supported by the best
available science on the functions provided by upstream waters,
including wetlands, that are important for the chemical, physical, and
biological integrity of foundational waters. The agencies' proposal is
supported by a wealth of scientific knowledge. The scientific
literature extensively illustrates the effects tributaries, wetlands
adjacent to impoundments and tributaries, and ``other waters'' can and
do have on the integrity of downstream traditional navigable waters,
interstate waters, and the territorial seas. The relevant science on
the relationship and downstream effects of streams, wetlands, and open
waters has advanced considerably in recent years, and confirms the
agencies' longstanding view that these waters can be subject to
jurisdiction. A comprehensive report prepared by EPA's Office of
Research and Development entitled ``Connectivity of Streams and
Wetlands to Downstream Waters: A Review and Synthesis of the Scientific
Evidence'' \23\ (hereafter the Science Report) in 2015 synthesized the
peer-reviewed science. Since the release of the Science Report,
additional published peer-reviewed scientific literature has
strengthened and supplemented the report's conclusions. The agencies
have summarized and provided an update on more recent literature and
scientific support for this section in the Technical Support Document
section II.
---------------------------------------------------------------------------
\23\ U.S. Environmental Protection Agency, Connectivity of
Streams and Wetlands to Downstream Waters: A Review and Synthesis of
the Scientific Evidence (Final Report), EPA/600/R-14/475F (2015),
available at https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414.
---------------------------------------------------------------------------
Again, in the proposed rule, the agencies are not including all
tributaries, adjacent wetlands, and ``other waters'' as jurisdictional
waters. Rather, the agencies are concluding that proposing these
longstanding, familiar categories of waters as subject to the
relatively permanent or significant nexus jurisdictional standards is
consistent with the best available science because waters in these
categories can have significant effects on downstream foundational
waters, and are therefore proposing to restore them from the 1986
regulations. The agencies are also proposing to add the relatively
permanent and significant nexus standards based on their conclusion
that together those standards are consistent with the statutory text,
advance the objective and policies of the Act, and are supported by the
scientific record. Indeed, the agencies are not reaching any
conclusions, categorical or otherwise, about which tributaries,
adjacent wetlands (other than those adjacent to traditional navigable
waters, interstate waters, or the territorial seas), or ``other
waters'' meet either the relatively permanent or the significant nexus
standard. Instead, the proposal enables the agencies to make science-
informed determinations of whether or not a water that falls within
these categories meets either jurisdictional standard and is therefore
a ``water of the United States,'' on a case-specific basis.
The agencies also reiterate their previous conclusion that
significant nexus is not a purely scientific determination. 80 FR
37054, 37060 (June 29, 2015). As the agencies charged with interpreting
the statute, EPA and the Corps must develop the outer bounds of the
scope of the Clean Water Act and science does not provide bright line
boundaries with respect to where ``water ends'' for purposes of the
Clean Water Act. Riverside Bayview, 474 U.S. at 132-33. This section
summarizes the best available science in support of the longstanding
categories of the 1986 regulation, and in support of the proposed rule
and the agencies' conclusion that the proposal advances the objective
of the Clean Water Act. This section reflects the scientific consensus
on the strength of the effects that upstream tributaries, adjacent
wetlands, and ``other waters'' can and do have on downstream
foundational waters. However, a significant nexus determination
requires legal, technical, and policy judgment, as well as scientific
considerations, for example, to assess the significance of any effects.
Section V.D of this preamble discusses the agencies' approaches to
making case-specific relatively permanent and significant nexus
determinations under the proposed rule.
Thus, while the agencies are not proposing to establish that any
tributaries, adjacent wetlands (other than those wetlands adjacent to
traditional navigable waters, interstate waters, and the territorial
seas), or ``other waters'' are jurisdictional without the need for
further assessment, they are proposing a rule that, based on the
scientific record, identifies those categories of waters as subject to
jurisdiction under the Clean Water Act under either the relatively
permanent or significant nexus standard.
i. Tributaries Can Provide Functions That Restore and Maintain the
Chemical, Physical, and Biological Integrity of Downstream Traditional
Navigable Waters, Interstate Waters, and the Territorial Seas
Tributaries play an important role in the transport of water,
sediments, organic matter, nutrients, and organisms to downstream
foundational waters. See Technical Support Document section IV.A.
Tributaries slow and attenuate floodwaters; provide functions that help
maintain water quality; trap and transport sediments; transport, store
and modify pollutants; and sustain the biological productivity of
downstream mainstem waters. Tributaries can provide these functions
whether they are natural, modified, or constructed and whether they are
perennial, intermittent, or ephemeral.
All tributary streams, including perennial, intermittent, and
ephemeral streams, are chemically, physically, and biologically
connected to larger downstream waters via channels and associated
alluvial deposits where water and other materials are concentrated,
mixed, transformed, and transported. Streams, even where seasonally
dry, are
[[Page 69391]]
the dominant source of water in most rivers, rather than direct
precipitation or groundwater input to mainstem river segments. Within
stream and river networks, headwater streams make up most of the total
channel length. The smallest streams represent an estimated three-
quarters of the total length of stream and river channels in the United
States.\24\ Because of their abundance and location in the watershed,
small streams offer the greatest opportunity for exchange between the
water and the terrestrial environment.
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\24\ The actual proportion may be much higher because this
estimate is based on the stream networks shown on the U.S.
Geological Survey (USGS) National Hydrography Dataset, which does
not show all headwater streams.
---------------------------------------------------------------------------
In addition, compared with the humid regions of the country, stream
and river networks in arid regions have a higher proportion of channels
that flow ephemerally or intermittently. For example, in Arizona, most
of the stream channels--96% by length--are classified as ephemeral or
intermittent. The functions that streams provide to benefit downstream
waters occur even when streams flow less frequently, such as
intermittent or ephemeral streams. For example, ephemeral headwater
streams shape larger downstream river channels by accumulating and
gradually or episodically releasing stored materials such as sediment
and large woody debris.\25\ Due to the episodic nature of flow in
ephemeral and intermittent channels, sediment and organic matter can be
deposited some distance downstream in the arid Southwest in particular,
and then moved farther downstream by subsequent precipitation events.
Over time, sediment and organic matter continue to move downstream and
influence larger downstream waters. These materials help structure
downstream river channels by slowing the flow of water through channels
and providing substrate and habitat for aquatic organisms.
---------------------------------------------------------------------------
\25\ Videos of ephemeral streams flowing after rain events in
the Southwest highlight how effective ephemeral streams can be in
transporting woody debris (e.g., tree branches) and sediment
downstream during the rainy season. See, e.g., U.S. Department of
Agriculture, Agricultural Research Service, Multiflume Runoff Event
August 1, 1990, https://www.tucson.ars.ag.gov/unit/WGWebcam/WalnutGulchWebcam.htm; U.S. Geological Survey, Post-fire Flash Flood
in Coronado National Memorial, Arizona (August 25, 2011), https://www.youtube.com/watch?v=qJ8JxBZt6Ws; Santa Clara Pueblo Fire/Rescue/
EMS Volunteer Department, Greg Lonewolf, #4 Santa Clara Pueblo Flash
Flood Event 01 Sept 2013 (April 14, 2017), https://www.youtube.com/watch?v=nKOQzkRi4BQ; Rankin Studio, Amazing Flash Flood/Debris Flow
Southern Utah HD (July 19, 2019), https://www.youtube.com/watch?v=_yCnQuILmsM.
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Stream and wetland ecosystems also process natural and human
sources of nutrients, such as those found in leaves that fall into
streams and those that may flow into creeks from agricultural fields.
Some of this processing converts the nutrients into more biologically
useful forms. Other aspects of the processing store nutrients, thereby
allowing their slow and steady release and preventing the kind of
short-term glut of nutrients that can cause algal blooms in downstream
rivers or lakes. Small streams and their associated wetlands play a key
role in both storing and modifying potential pollutants, ranging from
chemical fertilizers to rotting salmon carcasses, in ways that maintain
downstream water quality. Inorganic nitrogen and phosphorus, the main
chemicals in agricultural fertilizers, are essential nutrients not just
for plants, but for all living organisms. However, in excess or in the
wrong proportions, these chemicals can harm natural systems and humans.
Larger rivers process excess nutrients much more slowly than smaller
streams. Loss of nutrient retention capacity in headwater streams is
known to cause downstream water bodies to contain higher concentrations
and loads of nitrogen and phosphorus. In freshwater ecosystems,
eutrophication, the enriching of waters by excess nitrogen and
phosphorus, reduces water quality in streams, lakes, estuaries, and
other downstream water bodies. One obvious result of eutrophication is
the excessive growth of algae. Too much algae clouds previously clear
streams, such as those favored by trout. Algal blooms not only reduce
water column visibility, but the microbial decay of algal blooms
reduces the amount of oxygen dissolved in the water, sometimes to a
degree that causes fish kills. Fish are not the only organisms harmed
by eutrophication: Some of the algae species that grow in eutrophic
waters generate tastes and odors or are toxic--a clear problem for
stream systems, reservoirs, and lakes that supply drinking water for
municipalities or that are used for swimming and other contact-
recreational purposes. In addition, increased nitrogen and phosphorus
and associated algal blooms can injure people and animals. Algal blooms
can also lead to beach closures. In addition to causing algal blooms,
eutrophication changes the natural community composition of aquatic
ecosystems by altering environmental conditions.
Recycling organic carbon contained in dead plants and animals is
another crucial function provided by headwater streams and wetlands.
Ecological processes that transform inorganic carbon into organic
carbon and recycle organic carbon are the basis for every food web on
the planet. In freshwater ecosystems, much of the recycling happens in
small streams and wetlands, where microorganisms transform everything
from leaf litter and downed logs to dead salamanders into food for
other organisms in the aquatic food web, including salmon. Like
nitrogen and phosphorus, carbon is essential to life but can be harmful
to freshwater ecosystems if it is present in excess or in the wrong
chemical form. If all organic material received by headwater streams
and wetlands went directly downstream, the glut of decomposing material
could deplete oxygen in downstream rivers, thereby damaging and even
killing fish and other aquatic life. The ability of headwater stream
ecosystems to transform organic matter into more usable forms helps
maintain healthy downstream ecosystems.
Microorganisms in headwater stream systems use material such as
leaf litter and other decomposing material for food and, in turn,
become food for other organisms. For example, fungi that grow on leaf
litter become nutritious food for invertebrates that make their homes
on the bottom of a stream, including mayflies, stoneflies, and caddis
flies. These animals provide food for larger animals, including birds
such as flycatchers and fish such as trout. The health and productivity
of downstream traditional navigable waters, interstate waters, or the
territorial seas depend in part on processed organic carbon delivered
by upstream headwater systems.
To be clear, the agencies recognize that SWANCC held that the use
of ``isolated'' non-navigable intrastate ponds by migratory birds was
not by itself a sufficient basis for the exercise of federal regulatory
authority under the Clean Water Act. Consideration of biological
functions does not constitute an assertion of jurisdiction over a water
based solely on its use by migratory birds; rather, the agencies would
consider biological functions for purposes of significant nexus
determinations under the proposed rule only to the extent that the
functions provided by tributaries, adjacent wetlands, and ``other
waters'' significantly affect the biological integrity of the
downstream traditional navigable waters, interstate waters, or the
territorial seas. For example, to protect Pacific and Atlantic salmon
in traditional navigable waters (and their associated commercial and
recreational fishing industries), headwater streams must be protected
because Pacific and
[[Page 69392]]
Atlantic salmon require both freshwater and marine habitats over their
life cycles and therefore migrate along river networks, providing one
of the clearest illustrations of biological connectivity. Many Pacific
salmon species spawn in headwater streams, where their young grow for a
year or more before migrating downstream, live their adult life stages
in the ocean, and then migrate back upstream to spawn. Even where they
do not provide direct habitat for salmon themselves, ephemeral streams
may contribute to the habitat needs of salmon by supplying sources of
cold water that these species need to survive (i.e., by providing
appropriate physical conditions for cold water upwelling to occur at
downstream confluences), transporting sediment that supports fish
habitat downstream, and providing and transporting food for juveniles
and adults downstream. These species thereby create a biological
connection along the entire length of the river network and
functionally help to maintain the biological integrity of the
downstream traditional navigable water. Many other species of
anadromous fish--that is fish that are born in freshwater, spend most
of their lives in saltwater, and return to freshwater to lay eggs--as
well as species of freshwater fish like rainbow trout and brook trout
also require small headwater streams to carry out life cycle functions.
Based on the importance of the functions that can be provided by
tributaries to foundational waters, the agencies' proposal to interpret
the Clean Water Act to protect tributaries where those tributaries meet
either the relatively permanent standard or the significant nexus
standard reflects proper consideration of the objective of the Act and
the best available science.
ii. Adjacent Wetlands Provide Functions That Restore and Maintain the
Chemical, Physical, and Biological Integrity of Downstream Traditional
Navigable Waters, Interstate Waters, and the Territorial Seas
Adjacent wetlands provide valuable flood control and water quality
functions that affect the chemical, physical, and biological integrity
of downstream foundational waters including interruption and delay of
the transport of water-borne contaminants over long distances;
retention of sediment; retention and slow release of flood waters; and
prevention and mitigation of drinking water contamination and assurance
of drinking water supply. See Technical Support Document section IV.B.
Because adjacent wetlands retain sediment and augment streamflow
via the gradual release of groundwater or water flowing just beneath
the solid surface, wetland loss correlates with increased need for
dredging and unpredictability of adequate streamflow for navigation.
The Supreme Court has recognized the importance of the physical
integrity of upstream tributaries in overcoming sedimentation hazards
to navigation. United States v. Rio Grande Dam Irrigation Co., 174 U.S.
690 (1899). Headwater wetlands are located where erosion risk is
highest and are therefore best suited to recapture and stabilize
manageable amounts of sediment that might enter traditional navigable
waters, interstate waters, or the territorial seas. Adjacent wetlands
naturally serve to recapture and stabilize sediment carried by streams
and rivers in times when flood flow distributes water across a
floodplain.
Adjacent wetlands affect the integrity of downstream waters by
retaining stormwater and slowly releasing floodwaters that could
otherwise negatively affect the condition or function of downstream
waters. The filling or draining of wetlands, including those that are
close to the stream network, reduces water storage capacity in a
watershed and causes runoff from rainstorms to overwhelm the remaining
available water conveyance system. The resulting stream erosion and
channel downcutting quickly drains the watershed as surface water
leaves via incised (deeper) channels. Disconnecting the incised channel
from the wetlands leads to more downstream flooding. As the adjacent
wetlands remain disconnected, riparian vegetation and wetland functions
are reduced. Because less water is available in groundwater and
wetlands for slow release to augment streamflow during dry periods, the
filling or draining of wetlands can make the timing and extent of
navigability on some waterways less predictable during dry periods.
Therefore, the filling or draining of adjacent wetlands, including
headwater wetlands, can interfere with the ability to maintain
navigability on the nation's rivers and harbors and can lead to
flooding in larger downstream waters.
The loss of wetlands adjacent to tributaries of navigable waters,
interstate waters, and the territorial seas can also result in notable
reductions in drinking water supply and quality. Over 225 million
people are served by nearly 15,000 public water systems using surface
water such as streams, rivers, lakes, tributaries, and surface-water
storage impoundments as a primary source of water. Though drinking
water supplied through public water supplies is regulated by the Safe
Drinking Water Act, many water suppliers also rely on source water
protection efforts, as the quality of the drinking water source is
dependent on the protection of its upstream waters. Discharge of
agricultural, industrial, sanitary, or other waste into any surface
water may pose a public health risk downstream. For example, excessive
upstream discharge may overwhelm a public water system filtration unit,
allowing microbial pathogens into the drinking water system. EPA's
Science Advisory Board cited drinking water contamination by pathogens
as one of the most important environmental risks. Drinking water
treatment to address microbial pathogens has little effect on many
toxic chemicals, metals, and pesticides discharged into streams,
drainage ditches, canals, or other surface waters. Conserving wetlands
in source water protection areas can help protect water quality,
recharge aquifers, and maintain surface water flow during dry periods.
Adjacent wetlands have an important role in improving source water
quality, due to their strategic location as buffers for other water
bodies and their filtration of surface water. Detention of water and
its associated constituents by wetlands allows the biochemical uptake
and/or breakdown of contaminants, and the destruction of pathogens. A
wide and dense distribution of adjacent wetlands protects and mitigates
against contaminant discharges. The water detention capacity of
adjacent wetlands also allows for the storage and gradual release of
surface waters that may supply public water system intakes during times
of drought. In either case, this detention substantially improves both
the supply and quality of drinking water. For example, wetlands
conservation is a crucial feature of the low-cost New York City
municipal water system, which provides high-quality drinking water to
millions of people through watershed protection, including of adjacent
wetlands, of its source waters rather than extensive treatment.
Based on the importance of the functions that are provided by
adjacent wetlands to foundational waters, the agencies' proposal to
interpret the Clean Water Act to protect adjacent wetlands where those
adjacent wetlands meet either the relatively permanent standard or the
significant nexus standard reflects proper consideration of the
objective of the Act and the best available science.
[[Page 69393]]
iii. ``Other waters'' Can Provide Functions That Restore and Maintain
the Chemical, Physical, and Biological Integrity of Downstream
Traditional Navigable Waters, Interstate Waters, and the Territorial
Seas
``Other waters''--examples of which include, but are not limited
to, intrastate lakes, wetlands, prairie potholes, playa lakes, streams
that are not tributaries, and natural ponds--can provide important
functions which affect the chemical, physical, and biological integrity
of downstream foundational waters. See Technical Support Document
section IV.D. These functions are particularly valuable when considered
cumulatively across the landscape or across different watershed/sub-
watershed scales and are similar to the functions that adjacent
wetlands provide, including water storage to control streamflow and
mitigate downstream flooding; interruption and delay of the transport
of water-borne pollutants (such as excess nutrients and contaminants)
over long distances; and retention of sediment. These functions can be
important to the physical integrity of downstream foundational waters.
For non-floodplain wetlands and open waters lacking a channelized
surface or regular shallow subsurface connection, generalizations from
the available literature about their specific effects on downstream
waters are difficult because information on both function and
connectivity is needed, and thus case-specific analysis of their
effects on downstream waters is appropriate from both a scientific and
policy perspective.
``Other waters'' individually span the gradient of connectivity
identified in the Science Report; they can be open waters located in
the riparian area or floodplain of traditional navigable waters,
interstate waters, and the territorial seas (e.g., oxbow lakes) and
otherwise be physically proximate to the stream network (similar to
adjacent wetlands) or they can be open waters or wetlands that are
fairly distant from the network. They can be connected to downstream
foundational waters via confined surface or subsurface connections
(including channels, pipes, and culverts), unconfined surface
connections, shallow subsurface connections, deeper groundwater
connections, biological connections, or spillage. They can also provide
additional functions such as storage and mitigation of peak flows,
natural filtration by biochemical uptake and/or breakdown of
contaminants, and in some locations, high volume aquifer recharge that
contributes to the baseflow in downstream waters. The strength of
functions provided by ``other waters'' on downstream waters will vary
depending on the type and degree of connection (i.e.., from highly
connected to highly isolated) to downstream waters and landscape
features such as proximity to stream networks and to ``other waters''
with similar characteristics that function as a group to influence
jurisdictional downstream waters.
Since the publication of the Science Report in 2015, the published
literature has expanded scientific understanding and quantification of
functions that ``other waters'' perform that affect the integrity of
traditional navigable waters, interstate waters, and the territorial
seas, particularly in the aggregate. The more recent literature (i.e.,
2014-present, as some literature from 2014 and 2015 may not have been
included in the Science Report) has determined that non-floodplain
wetlands can have demonstrable hydrologic and biogeochemical downstream
effects, such as decreasing peak flows, maintaining baseflows, and
performing nitrate removal, particularly when considered cumulatively.
Oxbow lakes and other lakes and ponds that are in close proximity
to the stream network, located within floodplain or riparian areas, or
that are connected via surface and shallow subsurface hydrology to the
stream network or to other ``waters of the United States'' also perform
critical chemical, physical, and biological functions that affect
downstream foundational waters. Like adjacent wetlands, these waters
individually and collectively affect the integrity of downstream waters
by acting as sinks that retain floodwaters, sediments, nutrients, and
contaminants that could otherwise negatively impact the condition or
function of downstream waters. They also provide important habitat for
aquatic species to forage, breed, and rest.
Some ``other waters'' are wetlands that are located too far from
other jurisdictional waters to be considered ``adjacent.'' The specific
distance may vary based on the characteristics of the aquatic resources
being evaluated, but they are often located outside of the riparian
area or floodplain, lack a confined surface or shallow subsurface
hydrologic connection to jurisdictional waters, or exceed the minimum
distances necessary for aquatic species that cannot disperse overland
to utilize both the subject waters and the waters in the broader
tributary network. Some ``other waters'' may be too removed from the
stream network or from jurisdictional waters to have significant
effects on downstream traditional navigable waters, interstate waters,
or the territorial seas. However, particularly when considered in the
aggregate, some ``other waters'' can, in certain circumstances, have
strong chemical, physical, and biological connections to and effects on
foundational waters. Sometimes it is their relative isolation from the
stream network (e.g., lack of a hydrologic surface connection) that
contributes to the important effect that they have downstream; for
example, depressional non-floodplain wetlands lacking surface outlets
can function individually and cumulatively to retain and transform
nutrients, retain sediment, provide habitat, and reduce or attenuate
downstream flooding, depending on site-specific conditions such as
landscape characteristics (e.g., slope of the terrain, permeability of
the soils).
Based on the functions that can be provided by ``other waters'' to
traditional navigable waters, interstate waters, and the territorial
seas, the agencies' proposal to assess ``other waters'' to determine
whether they meet either the relatively permanent standard or the
significant nexus standard reflects proper consideration of the
objective of the Act and the best available science.
The agencies' use of the best available science to interpret the
scope of ``waters of the United States'' is a change from the NWPR. In
the NWPR's preamble, the agencies stated: ``While science informs the
agencies' interpretation'' of the phrase ``waters of the United
States,'' ``science cannot dictate where to draw the line between
Federal and State or tribal waters, as those are legal distinctions.''
85 FR 22271, April 21, 2020; see also id. at 22314 (``the line between
Federal and State waters is a legal distinction, not a scientific
one''). In this proposal, the agencies agree that science alone cannot
dictate where to draw the line defining ``waters of the United
States.'' But science is critical to attaining Congress's objective to
restore and maintain the chemical, physical, and biological integrity
of the nation's waters: Only by relying upon scientific principles to
understand the way waters affect one another can the agencies know
whether they are achieving that objective. Drawing the line without
regard to science risks nullifying Congress's objective altogether. And
because the agencies believe that the definition of ``waters of the
United States'' should advance the objective of the Act and that
objective is focused on restoring and maintaining water quality, see
section V.A.2 of this preamble, the best available science is of far
more importance to the agencies' proposed
[[Page 69394]]
rule than it was in the NWPR. Moreover, the agencies have concluded
that the NWPR was not informed by the science, but rather was
inconsistent with the best available science in substantially important
ways. See section V.B.3 of this preamble.
iv. The Significant Nexus Standard Allows for Consideration of the
Effects of Climate Change on Water Resources Consistent With the Best
Available Science
The significant nexus standard allows for the agencies to consider
a changing climate when evaluating if upstream waters significantly
affect foundational waters. This is because the significant nexus
standard is based on the science of the strength of the effects that
upstream tributaries, adjacent wetlands, and ``other waters'' can and
do have on downstream foundational waters, and so implementation of the
standard can adapt to changing climatic conditions. For example, a lake
that dries up from warming temperatures due to climate change and no
longer has a surface hydrologic connection to downstream waters might
become non-jurisdictional, whereas another lake that previously had
limited surface hydrologic connectivity might have increased hydrologic
connectivity with higher precipitation conditions under a changing
climate.
In addition, the significant nexus standard allows the agencies to
consider the functions of streams, wetlands, and open waters that
support the resilience of the chemical, physical, or biological
integrity of traditional navigable waters, interstate waters, or the
territorial seas to climate change. For example, as more intense and
frequent storms and other shifts in precipitation cause floods to
increase in frequency and volume in some areas of the United States, a
significant nexus determination can evaluate the strength of the effect
of runoff storage in wetlands, open waters, and headwater tributaries
in mitigating increased flood risk associated with climate change in
downstream foundational waters. In addition, as drought leads to
decreased baseflows in foundational waters in other areas of the
country, the transmission of flows into alluvial or regional aquifer
storage through tributaries and wetlands can mitigate for these climate
change-related conditions, and those benefits to downstream traditional
navigable waters or interstate waters can be assessed as part of a
significant nexus analysis. Changes in flow in tributaries caused by
climate change will also be relevant to the relatively permanent
standard, but that standard may not allow the agencies to take into
account the contribution of upstream waters to the resilience of the
integrity of downstream waters.
As discussed in section V.C.10 of this preamble, the agencies
believe that there are climate benefits that streams, wetlands, and
open waters provide that are not related to restoring or maintaining
the integrity of downstream traditional navigable waters, interstate
waters, or the territorial seas, such as carbon sequestration. Those
functions would not be considered under this rule because they are not
directly related to the chemical, physical, and biological integrity of
downstream waters. However, considering a changing climate when
conducting jurisdictional decisions by considering on a case-by-case
basis the functions of aquatic resources that contribute to the
resilience of the integrity of downstream foundational waters to
climate change is consistent with the policy and goals of the Clean
Water Act, case law, and the policy goals of this administration as
articulated in Executive Order 13990.
3. The Proposed Rule Establishes Limitations That Together Are
Consistent With the Statutory Text, Supported by the Scientific Record,
and Informed by Relevant Supreme Court Decisions
In this proposed rule, the agencies are exercising their
discretionary authority to interpret ``waters of the United States'' to
mean the waters defined by the familiar 1986 regulations, with
amendments to reflect the agencies' interpretation of the statutory
limits on the scope of the ``waters of the United States'' informed by
Supreme Court decisions. The proposed rule's relatively permanent and
significant nexus limitations are based on the agencies' conclusion
that together those standards are consistent with the statutory text,
are supported by the scientific record, and appropriately consider the
objective in section 101(a) of the Act and the policy in section
101(b). Moreover, these fact-dependent, science-informed approaches to
jurisdiction are not unique under the Clean Water Act.
At the outset, the agencies think it is useful to lay out the areas
where the agencies agree with the statutory interpretation and case law
laid out in the NWPR. The agencies agree that ``[b]y the time the 1972
amendments were enacted, the Supreme Court had held that Congress'
authority over the channels of interstate commerce was not limited to
regulation of the channels themselves but could extend to activities
necessary to protect the channels,'' 85 FR 22263, April 21, 2020
(citing Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508,
523 (1941)), and that ``Congress had in mind a broader scope of waters
subject to CWA jurisdiction than waters traditionally understood as
navigable,'' id.; see also id. at 22267 (recognizing that ``[t]he
plurality and Justice Kennedy both recognized the jurisdictional scope
of the CWA is not restricted to traditional navigable waters'' in
Rapanos). In fact, it would be impossible to achieve Congress's
objective if the scope of authority were constrained to waters
traditionally understood as navigable because those channels cannot be
protected without protecting the tributaries that flow into them and
wetlands adjacent to them. Cf. United States v. Ashland Oil & Transp.
Co., 504 F.2d 1317, 1326 (6th Cir. 1974) (``It would, of course, make a
mockery of [Congress's] powers if its authority to control pollution
was limited to the bed of the navigable stream itself. The tributaries
which join to form the river could then be used as open sewers as far
as federal regulation was concerned. The navigable part of the river
could become a mere conduit for upstream waste.''). The Supreme Court
has explained both that the term ``navigable'' in the defined term
``navigable waters'' has ``limited import,'' Riverside Bayview, 474
U.S. at 133, and also that by using the term ``navigable,'' ``Congress
had in mind as its authority for enacting the CWA[ ] [i]ts traditional
jurisdiction over waters that were or had been navigable in fact or
which could reasonably be so made,'' SWANCC, 531 U.S. at 172. As the
agencies did in the NWPR, the agencies interpret this to mean that the
object of federal protection is foundational waters, and that
jurisdiction encompasses (and is limited to) those tributaries,
wetlands, and open waters that are necessary to protect the
foundational waters.\26\
---------------------------------------------------------------------------
\26\ Unlike the NWPR, the agencies now interpret the
foundational waters to include ``interstate waters.'' See section
V.C.2 of this preamble.
---------------------------------------------------------------------------
The agencies also agree that ``there must be a limit to that
authority and to what water is subject to federal jurisdiction,'' 85 FR
22263, April 21, 2020, that where to draw that limit is ambiguous, and
that ``Congress, when it left ambiguity in a statute meant for
implementation by an agency, understood that the ambiguity would be
resolved, first and foremost, by the agency, and desired the agency
(rather than the courts) to possess whatever degree of discretion the
ambiguity allows,'' id. at 22264 (quoting Nat'l Cable & Telecomm. Ass'n
v. Brand X
[[Page 69395]]
internet Servs., 545 U.S. 967, 982 (2005)). In determining that limit,
the agencies generally continue to believe that the determination of
jurisdiction with regard to wetlands adjacent to tributaries ``must be
made using a basic two-step approach that considers (1) the connection
of the wetland to the tributary; and (2) the status of the tributary
with respect to downstream traditional navigable waters'' and that the
concept of a ``connectivity gradient'' is useful. Id. at 22267, 22271.
Similarly, for tributaries, the agencies agree that ``contribution of
flow to and connection'' matters. Id. at 22267. At bottom, the agencies
agree that the Supreme Court has indicated that the limit should relate
to the ``significant effects'' of or ``significant nexus'' between that
water and traditional navigable waters, interstate waters, and the
territorial seas, id at 22263-64 (discussing Supreme Court case law,
although as explained in section V.A.3.a of this preamble, the NWPR in
fact removed the significant nexus test without considering an
alternative approach to protecting waters that significantly affect
downstream traditional navigable waters). Finally, the agencies agree
that the Supreme Court has ``call[ed] into question the agencies'
authority to regulate nonnavigable, isolated, intrastate waters that
lack a sufficient connection to traditional navigable waters,'' id. at
22269, and this proposal would not assert jurisdiction over such
waters.\27\
---------------------------------------------------------------------------
\27\ The NWPR criticized the agencies' prior practice as
insufficiently attentive to the concerns raised by the Supreme Court
in SWANCC regarding jurisdiction over the ``other waters'' category
defined in (a)(3) of the regulatory definition that was at issue in
SWANCC. Id. at 22264. This criticism is inaccurate. Cognizant of the
Supreme Court's direction in SWANCC and to ensure that any assertion
of authorities over (a)(3) waters is consistent with the Court's
precedents, since SWANCC, the agencies have required that before
exercising jurisdiction over an (a)(3) water field staff get
approval from headquarters. 68 FR 1991 (January 15, 2003). As a
practical matter, and as discussed in more detail below, section
V.C.3 of this preamble, field staff have rarely, if ever, sought
such approval and therefore the agencies have not asserted
jurisdiction over (a)(3) waters. But (a)(3) waters can have
significant effects on foundational waters and, when they do,
jurisdiction is proper and would not implicate the constitutional
concerns expressed by the Court in SWANCC for the reasons explained
herein.
---------------------------------------------------------------------------
a. The Relatively Permanent Standard and the Significant Nexus Standard
Together Advance the Objective of the Act
The proposed rule's utilization of both the relatively permanent
standard and the significant nexus standard gives effect to the Act's
broad terms and environmentally protective aim as well as its
limitations. See Rapanos, 547 U.S. at 767-69 (observing ``the evident
breadth of congressional concern for protection of water quality and
aquatic ecosystems'' and referring to the Act as ``a statute concerned
with downstream water quality'') (Kennedy, J., concurring) (citations
omitted); Riverside Bayview, 474 U.S. at 133 (``Congress chose to
define the waters covered by the Act broadly.''). The agencies,
however, are proposing that it is the significant nexus standard that
advances the objective of the Act because it is linked to effects on
downstream water quality while establishing a reasonable limitation on
the scope of jurisdiction by requiring those links to be significant.
The relatively permanent standard is administratively useful as an
example of a subset of waters that will virtually always have the
requisite nexus, but, on its own, is insufficiently protective to meet
the objective of the Clean Water Act.
The agencies have consistently construed Rapanos to mean that a
water is jurisdictional under the Clean Water Act if it meets either
the relatively permanent standard or the significant nexus standard.
The NWPR, however, interpreted the statute to primarily find waters
jurisdictional only if they met the relatively permanent standard, as
specifically interpreted in the NWPR. The NWPR argued that it reflected
both the plurality and Kennedy opinions, which it characterized as
having ``sufficient commonalities . . . to help instruct the agencies
on where to draw the line between Federal and State waters.'' 85 FR
22268, April 21, 2020. The opinions have important differences,
however. Justice Kennedy looked to the existence of a significant nexus
between waters at issue and downstream traditional navigable waters,
whereas the plurality held that ``waters of the United States'' is
limited to ``relatively permanent'' waters connected to traditional
navigable waters, and wetlands with a ``continuous surface connection''
with those waters. Rapanos, 547 U.S. at 742. Justice Kennedy rejected
these two limitations in the plurality as ``without support in the
language and purposes of the Act or in our cases interpreting it.'' Id.
at 768; see also id. at 776 (``In sum the plurality's opinion is
inconsistent with the Act's text, structure, and purpose.''). Yet the
plurality's limitation of jurisdiction to ``relatively permanent
waters'' and those with a ``continuous surface connection'' to those
waters pervades the NWPR. See 85 FR 22338-39; 33 CFR 328.3(a), (c)(1),
(c)(6), and (c)(12). The NWPR disregards the significant nexus
standard, see generally 85 FR 22338-39; 33 CFR 328.3, and, in doing so,
restricted the scope of the statute using limitations Justice Kennedy
viewed as anathema to the purpose and text of the Clean Water Act.
The agencies propose to reject the NWPR's interpretation as
inconsistent with the objective of the Clean Water Act, the science,
and the case law, and instead to propose an interpretation whereby if a
water meets either standard, it falls within the protections of the
Clean Water Act. This section first discusses why the significant nexus
test is consistent with the Act and the best available science; then
explains why the relatively permanent standard is administratively
useful, but limiting the scope of jurisdiction to waters meeting the
relatively permanent standard is insufficient to meet the objective of
the Clean Water Act; and finally, explains that fact-based standards
for determining Clean Water Act jurisdiction are reasonable and not
unique to the definition of ``waters of the United States.''
i. The Significant Nexus Test Is Consistent With the Act and the Best
Available Science
The significant nexus standard advances the objective of the Act
because it is linked to effects on downstream water quality while
establishing a reasonable limitation on the scope of jurisdiction. The
significant nexus standard reasonably effectuates the text of 33 U.S.C.
1362(7), which defines ``navigable waters.'' The requirement that a
significant nexus exist between upstream waters, including wetlands and
``navigable waters in the traditional sense'' fulfills ``the need to
give the term `navigable' some meaning.'' Rapanos, 547 U.S. at 779
(Kennedy, J., concurring). With the significant nexus standard, the
proposed rule is properly focused on protecting the foundational waters
clearly protected by the Clean Water Act. The significant nexus is thus
consistent with the text of the Act, with scientific principles and
supported by the best available science, with the Act's legislative
history, and with case law.
Congress was focused on water quality when it enacted the Clean
Water Act and established its objective, as discussed in section V.A.2
of this preamble. The significant nexus standard is derived from the
objective of the Act and thus also focused on water quality and
specifically focused on the water quality of the foundational waters.
As described more fully in section V.A.2.c of this preamble, supra, the
[[Page 69396]]
significant nexus standard is consistent with scientific principles
about the aquatic ecosystem: Upstream waters can significantly affect
the chemical, physical, and biological integrity of downstream
traditional navigable waters, interstate waters, and the territorial
seas. Therefore, assessing the effects that waters have on downstream
foundational waters when considered, alone or in combination with other
similar waters in a region, is a reasonable means of identifying those
waters necessary to protect in order to advance the objective of the
Act.
A significant nexus analysis is consistent with the framework
through which scientists assess a river system--examining how the
components of the system (e.g., wetlands, tributaries), in the
aggregate (in combination), in the region, contribute and connect to
the river (significantly affect the chemical, physical, or biological
integrity of foundational waters). Indeed, the significant nexus
standard in the proposed rule reflects the type of analysis in the
Science Report by describing the components of a river system and
watershed; the types of physical, chemical, and biological connections
that link those components; the factors that influence connectivity at
various temporal and spatial scales; and methods for quantifying
connectivity. The structure and function of rivers are highly dependent
on the constituent materials stored in and transported through them.
Most of these materials originate from either the upstream river
network or other components of the river system and then are
transported to the river by water movement or other mechanisms.
Further, the significant nexus standard is supported by the Science
Report's discussion of connectivity, a foundational concept in
hydrology and freshwater ecology. See also Technical Support Document.
Connectivity is the degree to which components of a system are
joined, or connected, by various transport mechanisms and is determined
by the characteristics of both the physical landscape and the biota of
the specific system. Connectivity serves to demonstrate the ``nexus''
between upstream water bodies and the downstream traditional navigable
water, interstate water, or the territorial sea and, while the
scientific literature does not use the term ``significant'' in the same
manner used by the Supreme Court, the literature does provide
information on the strength of the effects on the chemical, physical,
and biological functioning of the downstream water bodies that permits
the agencies to judge when an effect is significant such that a water,
alone or in combination, should be protected by the Clean Water Act in
order to meet the objective of the Act. The Science Report presents
evidence of connections for various categories of waters, evaluated
singly or in combination, which affect downstream waters and the
strength of those effects. The connections and mechanisms discussed in
the Science Report include: Transport of physical materials and
chemicals such as water, wood, sediment, nutrients, pesticides, and
mercury; functions that jurisdictional adjacent waters perform, such as
storing and cleansing water; and movement of organisms. Again, the
significant nexus standard, under which waters are assessed alone or in
combination for the functions they provide downstream, is consistent
with the foundational scientific framework and concepts of hydrology.
The agencies' use of scientific principles to determine the scope
of ``waters of the United States'' is consistent with the Supreme
Court's approach in Maui. The Court also looked to scientific
principles to inform its interpretation of the Clean Water Act's
jurisdictional scope, noting: ``[m]uch water pollution does not come
from a readily identifiable source. See 3 Van Nostrand's Scientific
Encyclopedia, at 5801 (defining `Water Pollution'). Rainwater, for
example, can carry pollutants (say, as might otherwise collect on a
roadway); it can pollute groundwater, and pollution collected by
unchanneled rainwater runoff is not ordinarily considered point source
pollution.'' 140 S. Ct. at 1471. The Court further observed that
``[v]irtually all water, polluted or not, eventually makes its way to
navigable water. This is just as true for groundwater. See generally 2
Van Nostrand's Scientific Encyclopedia 2600 (10th ed. 2008) (defining
`Hydrology').'' Id. at 1470. The Court then enumerated a series of
factors relevant to determining whether a discharge is jurisdictional
under the Act, many of which are scientifically based, including the
nature of the material through which the pollutant travels and the
extent to which the pollutant is diluted or chemically changed as it
travels. Id. at 1476-77.
In carefully considering the objective of the Act and the best
available science, the proposed rule's incorporation of the significant
nexus standard is consistent with the legislative history of the Clean
Water Act. The Supreme Court has noted that ``some Members of this
Court have consulted legislative history when interpreting ambiguous
statutory language.'' Bostock v. Clayton County, Georgia, 140 S. Ct.
1731, 1749 (2020). In Bostock, the Court stated further that ``while
legislative history can never defeat unambiguous statutory text,
historical sources can be useful for a different purpose: Because the
law's ordinary meaning at the time of enactment usually governs, we
must be sensitive to the possibility a statutory term that means one
thing today or in one context might have meant something else at the
time of its adoption or might mean something different in another
context. And we must be attuned to the possibility that a statutory
phrase ordinarily bears a different meaning than the terms do when
viewed individually or literally. To ferret out such shifts in
linguistic usage or subtle distinctions between literal and ordinary
meaning, this Court has sometimes consulted the understandings of the
law's drafters.'' Id. at 1750.
Bills introduced in 1972 in both the House of Representatives and
the Senate defined ``navigable waters'' as ``the navigable waters of
the United States.'' See 2 Environmental Policy Div., Library of
Congress, Legislative History of the Water Pollution Control Act
Amendments of 1972 at 1069, 1698 (1973). The House and Senate
Committees, however, expressed concern that the definition might be
given an unduly narrow reading. Thus, the House Report observed: ``One
term that the Committee was reluctant to define was the term `navigable
waters.' The reluctance was based on the fear that any interpretation
would be read narrowly. However, this is not the Committee's intent.
The Committee fully intends that the term `navigable waters' be given
the broadest possible constitutional interpretation unencumbered by
agency determinations which have been made or may be made for
administrative purposes.'' H.R. Rep. No. 92-911, at 131 (1972).
The Senate Report stated that ``[t]hrough a narrow interpretation
of the definition of interstate waters the implementation [of the] 1965
Act was severely limited. Water moves in hydrologic cycles and it is
essential that discharge of pollutants be controlled at the source.''
S. Rep. No. 92-414, at 77 (1971). The Conference Committee deleted the
word ``navigable'' from the definition of ``navigable waters,'' broadly
defining the term to include ``the waters of the United States.'' The
Conference Report explained that the definition was intended to
repudiate earlier limits on the reach of federal water pollution
efforts: ``The conferees fully intend that the term `navigable waters'
be given the broadest possible
[[Page 69397]]
constitutional interpretation unencumbered by agency determinations
which have been made or may be made for administrative purposes.'' S.
Conf. Rep. No. 92-1236, at 144 (1972).
The significant nexus standard is also consistent with prior
Supreme Court decisions, and with every circuit decision that has
gleaned a rule of law from that precedent. For example, in Riverside
Bayview, the Court deferred to the agencies' interpretation: ``In view
of the breadth of federal regulatory authority contemplated by the Act
itself and the inherent difficulties of defining precise bounds to
regulable waters, the Corps' ecological judgment about the relationship
between waters and their adjacent wetlands provides an adequate basis
for a legal judgment that adjacent wetlands may be defined as waters
under the Act.'' 474 U.S. at 134. In Rapanos, Justice Kennedy stated of
the Court in Riverside Bayview ``the Court indicated that `the term
``navigable'' as used in the Act is of limited import,' 474 U.S., at
133, [and] it relied, in upholding jurisdiction, on the Corps' judgment
that `wetlands adjacent to lakes, rivers, streams, and other bodies of
water may function as integral parts of the aquatic environment even
when the moisture creating the wetlands does not find its source in the
adjacent bodies of water,' id., at 135.'' 547 U.S. at 779 (Kennedy, J.,
concurring). ``The implication,'' Justice Kennedy observed, ``was that
wetlands' status as `integral parts of the aquatic environment'--that
is, their significant nexus with navigable waters--was what established
the Corps' jurisdiction over them as waters of the United States.'' Id.
(emphasis added); see also id. at 780 (``[W]etlands' ecological
functions vis-[aacute]-vis other covered waters are the basis for the
Corps' regulation of them.''). The Court in SWANCC also characterized
its decision in Riverside Bayview as informed by the ``significant
nexus between the wetlands and `navigable waters.' '' 531 U.S. at 167.
In Rapanos, Justice Kennedy reasoned that Riverside Bayview and
SWANCC ``establish the framework for'' determining whether an assertion
of regulatory jurisdiction constitutes a reasonable interpretation of
``navigable waters,'' finding 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,'' and ``[a]bsent a significant nexus,
jurisdiction under the Act is lacking.'' 547 U.S. at 767. Justice
Kennedy also identified many of the same valuable functions of wetlands
identified in the Science Report:
Important public interests are served by the Clean Water Act in
general and by the protection of wetlands in particular. To give
just one example, amici here have noted that nutrient-rich runoff
from the Mississippi River has created a hypoxic, or oxygen-
depleted, ``dead zone'' in the Gulf of Mexico that at times
approaches the size of Massachusetts and New Jersey. Brief for
Association of State Wetland Managers et al. 21-23; Brief for
Environmental Law Institute 23. Scientific evidence indicates that
wetlands play a critical role in controlling and filtering runoff.
See, e.g., OTA 43, 48-52; R. Tiner, In Search of Swampland: A
Wetland Sourcebook and Field Guide 93-95 (2d ed. 2005); Whitmire &
Hamilton, Rapid Removal of Nitrate and Sulfate in Freshwater Wetland
Sediments, 34 J. Env. Quality 2062 (2005).
Id. at 777-78.
The agencies are mindful of the Supreme Court's decision in SWANCC
regarding the specific Commerce Clause authority Congress was
exercising in enacting the Clean Water Act. The Court noted that the
statement in the Conference Report for the Act that the conferees
``intend that the term `navigable waters' be given the broadest
possible constitutional interpretation,'' S. Conf. Rep. No. 92-1236, at
144 (1972), signifies Congress's intent with respect to its exertion of
its commerce power over navigation and no more. In light of the
ambiguous nature of the phrase ``waters of the United States,'' the
agencies have found the legislative history concerning the intent of
Congress regarding the scope of the Act's protections under its power
over navigation confirms the reasonableness of the proposed rule. The
rule would ensure that all waters that either alone or in combination
significantly affect the integrity of traditional navigable waters,
interstate waters, or the territorial seas are protected under the
Clean Water Act. The Supreme Court has long held that authority over
traditional navigable waters is not limited to either protection of
navigation or authority over only the traditional navigable water.
Rather, ``the authority of the United States is the regulation of
commerce on its waters . . . [f]lood protection, watershed development,
[and] recovery of the cost of improvements through utilization of power
are likewise parts of commerce control.'' United States v. Appalachian
Electric Power Co., 311 U.S. 377, 426 (1940); see also Oklahoma ex rel.
Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 525-526 (1941) (``[J]ust
as control over the non-navigable parts of a river may be essential or
desirable in the interests of the navigable portions, so may the key to
flood control on a navigable stream be found in whole or in part in
flood control on its tributaries. . . . [T]he exercise of the granted
power of Congress to regulate interstate commerce may be aided by
appropriate and needful control of activities and agencies which,
though intrastate, affect that commerce.''). Again, to quote the Sixth
Circuit after the 1972 enactment of the Clean Water Act: ``It would, of
course, make a mockery of [Congress's] powers if its authority to
control pollution was limited to the bed of the navigable stream
itself. The tributaries which join to form the river could then be used
as open sewers as far as federal regulation was concerned. The
navigable part of the river could become a mere conduit for upstream
waste.'' United States v. Ashland Oil & Transp. Co., 504 F.2d 1317,
1326 (6th Cir. 1974). The significant nexus standard included in the
proposed rule remains well within the bounds of SWANCC.
ii. The Relatively Permanent Standard Is Administratively Useful, but
Insufficient To Meet the Objective of the Clean Water Act
The agencies also conclude that federal protection is appropriate
where a water meets the relatively permanent standard. Waters that meet
this standard are an example of a subset of waters that will virtually
always have the requisite connection to downstream traditional
navigable waters, interstate waters, or the territorial seas, and
therefore properly fall within the Clean Water Act's scope. However,
the relatively permanent standard is insufficient as the sole standard
for geographic jurisdiction under the Clean Water Act as it is
inconsistent with the Act's text and objective and runs counter to the
science.
Science supports that tributaries of traditional navigable waters
with relatively permanent, standing, or continuously flowing water and
wetlands and relatively permanent open waters with continuous surface
connections to such relatively permanent waters perform important
functions that either individually or cumulatively with similarly
situated waters in the region have substantial effects on the chemical,
physical, or biological integrity of downstream foundational waters.
See Technical Support Document section IV.A. For example, perennial and
seasonally intermittent tributaries contribute consistent flow to
downstream foundational waters, and with that flow export nutrients,
sediment, and food resources, contaminants, and other
[[Page 69398]]
materials that can both positively (e.g., by contributing to downstream
baseflow, providing food for aquatic species, contributing to
downstream aquatic habitat) and negatively (e.g., if exporting too much
sediment, runoff, or nutrients or if exporting pollutants) affect the
integrity, including the water quality, of those larger downstream
waters. In addition, wetlands with a continuous surface connection to
such relatively permanent waters can attenuate floodwaters, trap
sediment, and process and transform nutrients that might otherwise
reach downstream traditional navigable waters, interstate waters, or
the territorial seas. The relatively permanent standard is useful
because it generally requires less information gathering and assessment
and because it focuses on flow and includes wetlands with a continuous
surface connection. As such, while both the significant nexus and
relatively permanent standards require fact-specific inquiries before
determining whether a water is a ``water of the United States,'' the
relatively permanent standard will generally require less assessment.
Standing alone as the sole test for Clean Water Act jurisdiction,
the relatively permanent standard is insufficient. The standard's
apparent exclusion of major categories of waters from the protections
of the Clean Water Act, specifically with respect to tributaries that
are not relatively permanent (such as ephemeral streams) and adjacent
wetlands that do not have a continuous surface water connection to
other jurisdictional waters, is inconsistent with the Act's text and
objective and runs counter to the science demonstrating how such waters
can affect the integrity of downstream waters, including traditional
navigable waters, interstate waters, and territorial seas. The NWPR,
for example, excluded federal jurisdiction over the many ephemeral
tributaries that regularly and directly provide sources of freshwater
to the sparse traditional navigable waters in the arid Southwest, such
as portions of the Gila River.
As discussed in section V.A.2.c of this preamble, there is
overwhelming scientific information demonstrating the effects ephemeral
streams can have on downstream waters and the effects wetlands can have
on downstream waters when they do not have a continuous surface
connection. The science is clear that aggregate effects of ephemeral
streams ``can have substantial consequences on the integrity of the
downstream waters'' and that the evidence of such downstream effects is
``strong and compelling.'' Science Report at 6-10, 6-13. EPA's Science
Advisory Board (SAB) Review of the draft Science Report explained that
ephemeral streams ``are no less important to the integrity of the
downgradient waters'' than perennial or intermittent streams. Letter
from SAB to Gina McCarthy, Administrator, EPA (Oct. 17, 2014) (``SAB
Review'') at 22-23, 54 fig. 3. The agencies also find no exclusion of
waters that are not relatively permanent in the text of the statute.
Rapanos, 547 U.S. at 770 (``To be sure, Congress could draw a line to
exclude irregular waterways, but nothing in the statute suggests it has
done so.'') (Kennedy, J., concurring).
The science is also clear that wetlands may significantly affect
downstream waters when they have other types of surface connections,
such as wetlands that overflow and flood jurisdictional waters or
wetlands with less frequent surface water connections due to long-term
drought; wetlands with shallow subsurface connections to other
protected waters; or other wetlands proximate to jurisdictional waters.
Such wetlands provide a number of functions, including water storage
that can help reduce downstream flooding, recharging groundwater that
contributes to baseflow of downstream rivers, improving water quality
through processes that remove, store, or transform pollutants such as
nitrogen, phosphorus, and metals, and serving as unique and important
habitats including for aquatic species that also utilize larger
downstream waters. See, e.g., Science Report at 4-20 to 4-38. For
example, adjacent, interdunal wetlands separated from the Atlantic
Ocean only by beach dunes would not meet the relatively permanent
standard, but provide numerous functions, including floodwater storage
and attenuation, storage and transformation of sediments and
pollutants, and important habitat for species that utilize both the
wetlands and the ocean, that significantly affect the Atlantic Ocean
(both a traditional navigable water and territorial sea).
In addition, the agencies see no basis in the text or the science
to exclude waters from Clean Water Act jurisdiction based solely on the
continuous surface connection requirement. As discussed in section
V.A.2.a of this preamble, the objective of the Act is to restore and
maintain the water quality of the nation's waters. Nowhere does the Act
refer to a continuous surface connection, and the imposition of such a
limitation would not account for the science regarding how upstream
waters and wetlands affect downstream foundational waters. As discussed
above in this section and in the Technical Support Document, the
science supports that wetlands and open waters that lack a continuous
surface connection to relatively permanent waters can individually and
cumulatively have more than a speculative or insubstantial effect on
the chemical, physical, and biological integrity of traditional
navigable waters, interstate waters, or the territorial seas. As a
scientific matter, the agencies agree with Justice Kennedy that the
Clean Water Act intends to protect waters that do not meet the
relatively permanent standard, where such waters have a significant
nexus. Rapanos, 547 U.S. at 773-74 (``Needless to say, a continuous
connection is not necessary for moisture in wetlands to result from
flooding--the connection might well exist only during floods.'')
(Kennedy, J., concurring); see also id at 775 (``In many cases,
moreover, filling in wetlands separated from another water by a berm
can mean that floodwater, impurities, or runoff that would have been
stored or contained in the wetlands will instead flow out to major
waterways. With these concerns in mind, the Corps' definition of
adjacency is a reasonable one, for it may be the absence of an
interchange of waters prior to the dredge and fill activity that makes
protection of the wetlands critical to the statutory scheme.'').
While the relatively permanent standard is administratively useful
and includes waters that have important effects on downstream water
quality, the standard excludes many waters that properly fall within
the Act's protections. As a result, the proposed rule's incorporation
of both Rapanos standards represents a reasonable interpretation of
broad and ambiguous statutory text and a permissible way for the
agencies to fulfill their congressionally delegated responsibility to
interpret ``waters of the United States'' in a manner that advances the
objective of the Act.
iii. Fact-Based Standards for Determining Clean Water Act Jurisdiction
Are Reasonable
Finally, while a fact-dependent jurisdictional analysis of whether
a water meets either the relatively permanent standard or the
significant nexus standard does not necessarily provide categorical
certainty, case-specific determinations of the scope of Clean Water Act
jurisdiction are not unique. In the Supreme Court's most recent
decision addressing a question about the jurisdictional scope of the
Clean Water Act, although not the scope of ``waters of the United
States,'' the Court established a standard for
[[Page 69399]]
determining jurisdiction that, like the significant nexus standard,
does not establish bright lines marking the bounds of federal
jurisdiction and instead requires an inquiry focused on the specific
facts at issue and guided by the purposes Congress sought to achieve
under the Act. In Maui, the Supreme Court considered whether discharges
to groundwater that reach navigable waters are jurisdictional under the
Act and thus subject to the Act's section 402 permitting program. The
Court held that ``the statute requires a permit when there is a direct
discharge from a point source into navigable waters or when there is
the functional equivalent of a direct discharge.'' Maui, 140 S. Ct. at
1476. The Court explained that ``[w]e think this phrase best captures,
in broad terms, those circumstances in which Congress intended to
require a federal permit.'' Id. The Court further explained that, in
applying its broadly worded standard, ``[t]he object in a given
scenario will be to advance, in a manner consistent with the statute's
language, the statutory purposes that Congress sought to achieve.'' Id.
The Court recognized that the difficulty with its approach was that
``it does not, on its own, clearly explain how to deal with middle
instances,'' but reasoned that ``there are too many potentially
relevant factors applicable to factually different cases for this Court
now to use more specific language.'' Id. The Court enumerated a series
of factors relevant to determining whether a discharge is the
``functional equivalent'' of direct discharge, including the time
between when the discharge occurs and when the pollutants reach the
navigable water, the distance the pollutants travel to the navigable
water, the nature of the material through which the pollutant travels,
the extent to which the pollutant is diluted or chemically changed as
it travels, the amount of pollutant entering the navigable waters
relative to the amount of the pollutant that leaves the point source,
the manner by or area in which the pollutant enters the navigable
waters, and the degree to which the pollution (at that point) has
maintained its specific identity. Id. at 1476-77.
The Supreme Court's ``functional equivalent'' standard has several
key characteristics in common with the significant nexus standard and
the agencies' approach in the proposed rule. Both standards require an
analysis focused on the specific facts at issue in a particular
instance. The ``functional equivalent'' standard requires consideration
of facts related to the discharge at issue, the geologic substrate
through which the discharges travels, the location and nature of the
receiving water, and other factors. Likewise, the significant nexus
standard requires consideration of scientific principles of upstream
functions and effects on the integrity of downstream waters and facts
related to the specific waters at issue. Indeed, the agencies have
proposed a list of factors that would be considered when assessing
whether waters ``significantly affect'' foundational waters that is
similar in nature to the factors identified by the Court for making a
``functional equivalent'' assessment. See section V.C.10 of this
preamble. The relatively permanent standard also requires inquiry into
specific facts about particular tributaries and wetlands, although the
inquiry generally requires less information gathering and assessment
than the significant nexus standard. The Court in Maui also explicitly
rejected EPA's suggested approach which established a bright line that
categorically excluded all discharges to groundwater regardless of
whether they reached navigable waters and instead adopted the
``functional equivalent'' analysis. 140 S. Ct. at 1474-75. Likewise,
the significant nexus standard also does not necessarily establish
bright lines with respect to determining which waters have a sufficient
impact on downstream traditional navigable waters, interstate waters,
or the territorial seas, in contrast to the NWPR which categorically
excluded all ephemeral waters in spite of their impact on the chemical,
physical, and biological integrity of downstream foundational waters.
Finally, both the functional equivalent standard and the
significant nexus standard should be applied while keeping in mind the
purposes of the Act. As the Court explained in Maui, ``[t]he underlying
statutory objectives also provide guidance. Decisions should not create
serious risks either of undermining state regulation of groundwater or
of creating loopholes that undermine the statute's basic federal
regulatory objectives.'' Id. at 1477. Likewise, Justice Kennedy
explained that when assessing the existence of a ``significant nexus''
between wetlands and navigable waters, ``[t]he required nexus must be
assessed in terms of the statute's goals and purposes.'' Rapanos, 547
U.S. at 779.
The agencies recognize that in both Rapanos and Maui the Supreme
Court was clear that the agencies could promulgate regulations that
further refine the case-specific jurisdictional tests. The agencies'
goal with this proposed rule is to return to the familiar and
longstanding framework that will ensure Clean Water Act regulatory
protections, informed by relevant Supreme Court decisions. The agencies
also anticipate developing another rule that builds upon the regulatory
foundation of this rule with the benefit of additional stakeholder
engagement and which could, among many issues, consider more
categorical approaches to jurisdiction.
b. The Proposed Rule Reflects Full and Appropriate Consideration of the
Water Quality Objective in Section 101(a) and the Policies Relating to
Responsibilities and Rights of States and Tribes Under Section 101(b)
of the Act
The proposed rule reflects consideration of the statute as a whole,
including the objective of the Act and the policies of the Act with
respect to the role of states and tribes. As discussed in section
V.A.2.a of this preamble, the agencies must consider the objective of
the Clean Water Act in interpreting the scope of the statutory term
``waters of the United States.'' In this proposed rule, the agencies
also consider the entire statute, including section 101(b) of the Clean
Water Act, which provides that it is Congressional policy to preserve
the primary responsibilities and rights of states ``to prevent, reduce,
and eliminate pollution, to plan the development and use . . . of land
and water resources, and to consult with the Administrator with respect
to the exercise of the Administrator's authority'' under the Clean
Water Act. 33 U.S.C. 1251(b). Determining where to draw the boundaries
of federal jurisdiction to both ensure that the agencies achieve
Congress's objective while preserving and protecting the
responsibilities and rights of the states is a matter of judgment
assigned by Congress to the agencies.
The agencies find that the proposed rule both advances the
objective of the Act in section 101(a) and respects the role of states
and tribes in 101(b).\28\ The proposed rule appropriately draws the
boundary of waters subject to federal protection by extending, and
limiting, it to the protection of upstream waters that significantly
affect the integrity of waters where the federal interest is
indisputable--the traditional navigable waters, interstate waters, and
territorial seas. Waters that do not implicate federal interest in
these foundational
[[Page 69400]]
waters are left entirely to state and tribal protection and management.
---------------------------------------------------------------------------
\28\ While Clean Water Act section 101(b) does not specifically
identify tribes, the policy of preserving states' sovereign
authority over land and water use is equally relevant to ensuring
the primary authority of tribes to address pollution and plan the
development and use of tribal land and water resources.
---------------------------------------------------------------------------
The scope and boundaries of the proposed definition therefore
reflect the agencies' considered judgment of both the Act's objective
in section 101(a) and the Congressional policy relating to states'
rights and responsibilities under section 101(b). In several key
respects, the agencies' consideration and weighing of these provisions
in this rulemaking differs from the agencies' approach in the NWPR.
Those differences and the bases for them follow.
i. Consideration of Sections 101(a) and 101(b) in the NWPR
In promulgating the NWPR, the agencies gave predominant weight to
consideration of the policy in section 101(b), citing it frequently in
its rationale for the rule generally. For example, the agencies stated:
``The agencies interpret the policy of Congress, set forth in section
101(b), as relevant to all aspects of the implementation of the CWA,
both implementing federally-established standards as well as the scope
of waters subject to such standards and regulatory programs.'' 85 FR
22269, April 21, 2020. The agencies also opined on the relationship
between its consideration of section 101(a) and 101(b): ``In developing
an appropriate regulatory framework for the final rule, the agencies
recognize and respect the primary responsibilities and rights of States
to regulate their land and water resources as reflected in CWA section
101(b). The oft-quoted objective of the CWA to `restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters,' . . . must be implemented in a manner consistent with
Congress' policy directives to the agencies.'' Id. The NWPR ultimately
concluded that the rule ``appropriately balances . . . the objective of
the Act and the policy of Congress set forth in CWA sections 101(a) and
101(b), respectively.'' Id. at 22277.
Beyond relying on section 101(b) for the agencies' overall approach
to the rulemaking, the NWPR relied specifically on section 101(b) as a
basis for the rule's line-drawing between jurisdictional and non-
jurisdictional waters. For example, with regard to tributaries, the
agencies stated that limiting jurisdiction to waters that contribute
surface flow to traditional navigable waters in a typical year ``better
balances the CWA's objective in section 101(a) with the need to respect
State and tribal authority over land and water resources as mandated by
Congress in section 101(b).'' Id. at 22287. The agencies contended,
moreover, that excluding ephemeral waters from jurisdiction
``respect[s] State and Tribal land use authority over features that are
only episodically wet during and/or following precipitation events.''
Id. at 22319. With regard to wetlands, the agencies similarly relied
upon ``limitations on federal authority embodied in CWA section
101(b)'' as a justification for excluding subsurface hydrologic
connectivity as a basis for determining what constitutes an adjacent
wetland. Id. at 22313.
ii. Consideration of Sections 101(a) and 101(b) in Developing the
Proposed Rule
The agencies have carefully considered sections 101(a) and 101(b)
as well as the agencies' analysis and application of these provisions
in promulgating the NWPR. As discussed below, based on the text of
section 101(b), the structure of section 101 and the Act as a whole,
Supreme Court precedent, and the history of federal water pollution
laws enacted by Congress up through the 1972 Amendments, the agencies
believe that the proposed rule reflects fuller and more appropriate
consideration of sections 101(a) and 101(b) than the agencies undertook
in promulgating the NWPR.
As a threshold matter, the agencies agree that the policy in
section 101(b) is both important and relevant to the agencies' defining
an appropriate scope of ``waters of the United States.'' Consistent
with the text of the statute and as emphasized by the Supreme Court,
federal jurisdiction under the Clean Water Act has limits. As explained
above, Clean Water Act jurisdiction encompasses (and is limited to)
those waters that significantly affect the indisputable federal
interest in the protection of the foundational waters that prompted
Congress to enact the various incarnations of the Act--i.e.,
traditional navigable waters, interstate waters, and the territorial
seas. And consistent with the section 101(b) policy, where protection
(or degradation) of waters do not implicate this federal interest, such
waters fall exclusively within state or tribal regulatory authority,
should they choose to exercise it.
The agencies' considered view at this time differs, however, in
certain important respects from how the NWPR considered section 101(b).
As the above statements make clear, section 101(b) was not simply a
relevant consideration for the NWPR, but a key lynchpin of both the
overall regulatory approach and the rule's specific definitions of
jurisdictional waters. In the agencies' view, the better reading of
section 101(b) does not support the heavy weight accorded to it by the
NWPR for either its overall approach nor its specific definitions.
(1) The Text of Section 101(b)
First, the agencies believe that the NWPR's reading of section
101(b) fails to align with the better reading of the text of section
101(b). For example, the agencies stated in support of the NWPR that
``[i]n developing an appropriate regulatory framework for the final
rule, the agencies recognize and respect the primary responsibilities
and rights of States to regulate their land and water resources as
reflected in CWA section 101(b).'' 85 FR 22269, April 21, 2020
(emphasis added). However, this appears to be a restatement of the
first sentence of section 101(b), which actually states:
It is the policy of the Congress to recognize, preserve, and
protect the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution, to plan the development
and use (including restoration, preservation, and enhancement) of
land and water resources, and to consult with the Administrator in
the exercise of his authority under this Act.
The NWPR read this provision as essentially agnostic (or even in
opposition) to preventing pollution and meeting the objective of Act.
See, e.g., 85 FR 22270, April 21, 2020 (``States are free to evaluate
the most effective means of addressing their waters and may weigh the
costs and benefits of doing so.''). The agencies believe the better
reading of this provision is found in the text of section 101(b), as a
recognition of states' authority to ``prevent, reduce, and eliminate
pollution'' and provide support for the Administrator's exercise of his
authority to advance the objective of the Act. Indeed, section 101(b)'s
text is plainly focused on environmental protection (``prevent, reduce,
and eliminate pollution,'' ``including restoration, preservation and
enhancement[] of land and water resources'').
Section 101(b) further recognizes the very important role that the
states play in achieving the Act's objective. ``Pollution'' is a
defined term in the Act that means ``man-made or man-induced alteration
of the chemical, physical, biological, and radiological integrity of
water'' (section 502(19)) and has a broader scope than the ``discharge
of a pollutant'' subject to regulatory jurisdiction under the Clean
Water Act (e.g., nonpoint sources of pollution). The agencies believe
that Congress's use of the broad term ``pollution'' in section
[[Page 69401]]
101(b) indicates that the policy in this section is intended to
recognize and preserve, among other things, states' authority to
prevent, reduce, and eliminate all kinds of pollution, including
pollution falling outside the scope of federal regulatory authority.
Importantly, this includes all non-point sources, which indisputably
may (and do) significantly affect the integrity of foundational waters.
The agencies' proposed definition of ``waters of the United States''
does not implicate, let alone impinge, on such state authorities.
The first sentence of section 101(b) also refers to states'
``primary'' role in preventing, reducing, and eliminating pollution--a
word that is not incompatible with overlapping federal and state
authority over waters which, under the proposed rule, implicate core
federal interests. Thus, the text of section 101(b) need not be read,
and in the agencies' view is best not read, as a general policy in
favor of preserving for states a zone of exclusive regulatory authority
based on federalism principles ``to choose whether or not to regulate''
regardless of the impact of those decisions on achievement of the Act's
objective. See 85 FR 22270, April 21, 2020.
In developing the proposed rule, the agencies also considered the
language in section 101(b) referring to states' rights and
responsibilities ``to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources.'' Planning the development, use, and protection of land and
water resources is indisputably a traditional state function (e.g.,
zoning, allocation and administration of water rights, exercise of
eminent domain, preservation of lands and waters). Congress's
recognition of the states' primary role in this domain does not state
or even suggest a policy to limit Clean Water Act jurisdiction over
waters, as would be covered under the proposed rule, implicating the
core federal interest in protecting traditional navigable waters,
interstate waters and the territorial seas.
Indeed, any implication to the contrary is dispelled by the
remainder of section 101(b), which, among other things, expressly
recognizes states' role in administering the federal permitting
programs under section 402 of the Act:
It is the policy of Congress that the States manage the
construction grant program under this Act and implement the permit
programs under sections 402 and 404 of this Act. It is further the
policy of the Congress to support and aid research relating to the
prevention, reduction, and elimination of pollution, and to provide
Federal technical services and financial aid to State and interstate
agencies and municipalities in connection with the prevention,
reduction, and elimination of pollution.
Thus, in the agencies' view, the text of section 101(b) as a whole
reflects not a general policy of deference to state regulation to the
exclusion of Federal regulation, but instead a policy focused on
preserving the responsibilities and rights of states to work to achieve
the objective of the Act by preventing, reducing and eliminating
pollution generally, including, but not limited to, through their
authority over any source of pollution subject to state law, consulting
with the Administrator in the exercise of his Clean Water Act
authority, and implementing the Act's regulatory permitting programs,
in partnership and with technical and financial support from the
Federal government.
In the preamble to the NWPR, the agencies criticized prior
statements they had made as taking an unduly narrow view of section
101(b) ``as limited to implementation of the Act's regulatory programs
by States and State authority to impose conditions on `waters of the
United States.''' 85 FR 22269, April 21, 2020. As indicated above, the
agencies now view the policy in section 101(b) as encompassing a broad
understanding of states' roles in preventing, reducing, and eliminating
pollution, and as explained above, the proposed rule reflects due
consideration of this provision.
The agencies' interpretation and consideration of section 101(b) in
this rulemaking is consistent with Supreme Court precedent. The Supreme
Court has described, on numerous occasions, section 101(b) as creating
a partnership between the federal and state governments, in which the
states administer programs under federally mandated standards and are
allowed to set even more stringent standards. See Arkansas v. Oklahoma,
503 U.S. at 144 (describing ``partnership between the States and the
Federal government'' to meet 101(a) objective of Federal government
setting pollutant discharge limitations and States implementing water
quality standards for water bodies themselves); Int'l Paper Co. v.
Ouellette, 479 U.S. at 489-90 (explaining 101(b) as allowing Federal
government to delegate administration of point source pollution permits
to states and allowing states to establish more stringent discharge
limitations than federal requirements); City of Milwaukee, 451 U.S. at
341 (describing 101(b) as creating ``shared authority between the
Federal Government and the Individual States'' that allows for the
states to set more stringent standards than necessary by federal law);
Colorado Public Interest Group, 426 U.S. at 16, n.13 (describing 101(b)
as providing states authority to develop permit programs and
establishing standards more stringent than the Clean Water Act).
(2) Relationship Between Sections 101(a) and 101(b)
The agencies have also carefully considered the policy in section
101(b) as it relates to the Act's objective in section 101(a) and have
reconsidered how the agencies considered these two provisions in
promulgating the NWPR.
In the preamble to the final NWPR, the agencies stated: ``The oft-
quoted objective of the CWA to `restore and maintain the chemical,
physical, and biological integrity of the Nation's waters,' . . . must
be implemented in a manner consistent with Congress' policy directives
to the agencies.'' 85 FR 22269, April 21, 2020. As discussed above, the
agencies gave section 101(b) predominant weight, and relied upon it as
the basis for the rule's line-drawing between jurisdictional and non-
jurisdictional waters. Upon further review and reconsideration, while
the agencies agree with the view in the NWPR that section 101(b) is
relevant to a rulemaking defining ``waters of the United States'' (and
have given the provision due consideration, as discussed above), the
agencies are giving greater weight to section 101(a) than did the NWPR,
and conclude that section 101(b) is better read as supporting
Congress's objective in the Clean Water Act than in tension with it.
The Clean Water Act's structure makes clear that section 101(a) is
the foundational purpose of the statute that must be achieved. First,
section 101(a) is the opening section of the statute and is labelled
the ``objective'' of the Act. The agencies interpret its placement and
its simple, declarative, and overarching statement as a powerful
expression by Congress that merits significant weight in defining the
scope of jurisdiction for all of the Clean Water Act's regulatory
programs. In contrast, section 101(b) is one of four Congressional
policies contained in section 101; the other three relate to seeking to
ensure foreign countries take action to prevent, reduce, and eliminate
pollution; reducing paperwork, duplication, and government delays; and
state authority to allocate quantities of water within their
jurisdictions. See 33 U.S.C. 1251(c), (f) and (g). The agencies believe
that the prominently placed and single expression of the Act's
overarching objective in section 101(a) merits greater weight in the
agencies' decision-making than one of the four Congressional
[[Page 69402]]
policies expressed in section 101 which, while important, appear
subordinate to the objective--particularly given the statutory text and
structure.
The remainder of the Act's text also demonstrates how important
this objective was to Congress. As the NWPR accurately stated, the
objective in section 101(a) is ``oft-quoted'' 85 FR 22269, April 21,
2020. In the Clean Water Act itself, Congress refers to the objective
of the Act approximately a dozen times, including in sections 122, 217,
301, 302, 304, 305, 308, 318, 402, 405, 505, 516, 518, 601, and 603.
The repeated reference to section 101(a) highlights the importance of
the Act's objective to the statute as a whole, supporting the agencies'
giving significant weight to this provision. Section 101(b), in
contrast, is not referred to elsewhere in the Act.
Indeed, while the NWPR read section 101(b) in isolation from the
rest of the Clean Water Act, reviewing the statute as a whole reveals
that Congress itself gave direction to the agencies on how it expected
them to achieve section 101(a)'s objective and implement section
101(b)'s policy. Following section 101, the remainder of the Act
provides extensive and detailed instruction on how Congress expected
its objective, goals, and policies to be met through the Act.
Specifically, with regard to its objective and goals in section 101(a),
Congress laid out a series of detailed programs (e.g., the section 303
water quality standards program, the section 402 discharge elimination
program, and the section 404 dredge and fill program) designed to meet
that objective. So too, Congress gave detailed instructions on how it
intended to apply its policy of preserving the primary role of the
states. Specifically, as referenced explicitly in section 101(b), it
authorized states to implement the key permitting programs under
sections 402 and 404 of the Act--i.e., their authority to assume
administration of the federal regulatory program for discharges of
pollutants under sections 402(b) and 404(g). The Clean Water Act
likewise delineates a role for states in implementing numerous other
Clean Water Act programs central to achieving the Act's objective,
including the water quality standards program and impaired waters and
total maximum daily load program in section 303. Section 401 grants
primary authority to states and authorized tribes to grant, deny, or
waive certification of proposed federal licenses or permits that may
discharge into ``waters of the United States'' within their borders.
And under section 510, unless expressly stated, nothing in the Clean
Water Act precludes or denies the right of any state or tribe to
establish more protective standards or limits than the Act. As
described above, the Clean Water Act further assigns exclusive
authority to the states to regulate non-point sources.
Thus, the agencies choose not to read the policy of section 101(b)
as essentially a free-floating instruction or license for the agencies
to interpret or implement other sections of the Act in a manner that
impedes achievement of its overall objective, in particular
definitional provisions like ``waters of the United States'' which are
central to administration of the entire statute and therefore achieving
that objective. To the contrary, Congress itself defined the contours
of how it expected the agencies to both achieve its object in section
101(a) and implement its policy in section 101(b) through the rest of
the provisions of the Act. Notably, a narrow definition of ``waters of
the United States'' would not uniformly boost state authority, as the
NWPR suggested, as that definition is foundational to the scope of all
of these programs in which the states are assigned authority. Indeed,
with regard to section 401, a narrow definition would actually limit
states' ability to protect waters within their borders.
Finally, section 101(a) has also been ``oft-quoted'' by the courts,
including the U.S. Supreme Court. See, e.g., National Association of
Manufacturers, 138 S. Ct. at 624 (``Congress enacted the Clean Water
Act in 1972 `to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.' 33 U.S.C. 1251(a).'');
see supra section V.A.2 of this preamble (summarizing Supreme Court
case law surrounding the Act's statutory objective).
The agencies' careful balancing of 101(a) and 101(b) in the
proposed rule is also informed by and consistent with the Court in
SWANCC, which noted that ``Congress chose to `recognize, preserve, and
protect the primary responsibilities and rights of States . . . to plan
the development and use . . . of land and water resources. . . .' 33
U.S.C. [section] 1251(b). We thus read the statute as written to avoid
the significant constitutional and federalism questions.'' U.S. 531 at
174. Justice Kennedy further explained in Rapanos: ``In SWANCC, by
interpreting the Act to require a significant nexus with navigable
waters, the Court avoided applications--those involving waters without
a significant nexus--that appeared likely, as a category, to raise
constitutional difficulties and federalism concerns.'' 547 U.S. at 776.
Likewise here, the proposed rule--by limiting jurisdiction only to
those waters that significantly affect the integrity of waters where
the federal interest is indisputable (traditional navigable waters,
interstate waters, and the territorial seas)--would avoid
constitutional and federalism concerns.
In sum, taking into account the prominence, text, repeated
statutory references to section 101(a), the Supreme Court's
highlighting of the central importance of this provision, and the fact
that the vast majority of the rest of the Clean Water Act is primarily
aimed towards meeting this objective, the agencies accord this section
significant weight, and greater weight than the due consideration it
has given section 101(b) in developing the proposed rule.
(3) Statutory History
Finally, in considering sections 101(a) and 101(b) for purposes of
interpreting the scope of ``waters of the United States,'' the agencies
believe it is important to consider the statutory history that gave
rise to this structure. Indeed, the agencies recognize that in passing
the Federal Water Pollution Control Act Amendments of 1972, Congress
was not acting on a blank slate--it was amending existing law that had
primarily provided for states to establish water quality standards for
a subset of waters. Water Quality Act of 1965, Public Law 89-234, 79
Stat. 903 (1965). Congress found the previous statute's focus on
states' establishment and administration of water quality standards
insufficient for the task of upgrading and protecting the quality of
America's waters because states were lagging in establishing such
standards and there was ``an almost total lack of enforcement.'' S.
Rep. 92-414, S. Rep. 92-414 (1971) at 3671, 72. The Clean Water Act was
enacted to address these shortcomings after ``two of the important
rivers [in the Sixth] circuit, the Rouge River in Dearborn, Michigan,
and the Cuyahoga River in Cleveland, Ohio, reached a point of pollution
by flammable materials in the last ten years that they repeatedly
caught fire.'' United States. v. Ashland Oil & Transp. Co., 504 F.2d
1317, 1326 (6th Cir. 1974).
With the 1972 Amendments, Congress adopted an entirely new approach
to water pollution control--a prohibition of discharges of pollutants
unless authorized by the Act and a new, comprehensive, federal
regulatory scheme grounded in technology-based effluent standards
applied uniformly across industries of the same type. ``The Committee
recommends the change to effluent limits as the best available
mechanism to control water pollution.
[[Page 69403]]
With effluent limits, the Administrator can require the best control
technology.'' S. Rep. 92-414 at 3675. Congress further indicated that
the Clean Water Act was intended to ``restore Federal-State balance to
the permit system. Talents and capacities of those States whose own
programs are superior are to be called upon to administer the permit
system within their boundaries. The Administrator is to suspend his
activity, insofar as the permit system is concerned, in these States.''
Id. . Congress also viewed the prohibition on discharges of pollutants
unless authorized under the Act as ``establish[ing] a direct link
between the Federal government and each industrial source of discharge
into the navigable waters.'' Id. Thus, Congress viewed the Clean Water
Act as a change from previous laws that centered on states and state
water quality standards to a system based on a prohibition of
discharges of pollutants to waters unless permitted in accordance with
a federal regulatory scheme and technology standards established by
EPA. States and tribes play a vital role in the implementation and
enforcement of the Clean Water Act and the proposed rule proposes
limitations after carefully considering how best to identify those
waters for which protections were better left to the states.
Thus, in passing the 1972 Amendments, Congress itself acted to
rebalance its approach to protecting water quality--shifting from a
statutory scheme dependent on state action to one rooted in a federal
foundation, providing a uniform floor of water quality protection and
leaving space for states to choose whether to regulate more
stringently. See Dubois v. U.S. Dep't of Agriculture, 102 F.3d 1273,
1300 (1st Cir. 1996) (``Simply put, the CWA provides a federal floor,
not a ceiling, on environmental protection.''). Yet, in interpreting
section 101(b) as serving to limit the scope of the Federal
government's authority in favor of state authority, the NWPR turned
Congress's scheme in the 1972 Amendments--in which it purposefully
sought to give the Federal government a greater role in water quality
protection--on its head. Unlike the NWPR, which did not consider the
Act's statutory history in its read of section 101(b), the agencies
here interpret section 101(b) in the context of this history and
Congress's deliberate choice to restructure the statute to move away
from its previous reliance on state-led water pollution control.
The Supreme Court has also long recognized that Congress, in
enacting the Clean Water Act, ``intended the 1972 Act amendments to
`establish an all-encompassing program of water pollution
regulation.''' Int'l Paper Co. v. Ouellette, 479 U.S. 481, 492-93
(1987); see, e.g., PUD No. 1 of Jefferson Cty v. Washington Dep't of
Ecology, 511 U.S. 700, 704 (1994) (interpreting the scope of Clean
Water Act section 401 and finding that the Act ``is a comprehensive
water quality statute designed to `restore and maintain the chemical,
physical, and biological integrity of the Nation's waters,''' that
``[t]he Act also seeks to attain `water quality which provides for the
protection and propagation of fish, shellfish, and wildlife,''' and
that ``to achieve these ambitious goals, the Clean Water Act
establishes distinct roles for the Federal and State Governments'');
EPA v. California ex rel. State Water Resources Control Bd., 426 U.S.
200, 203, 205 n.12 (1976) (``In 1972, prompted by the conclusion of the
Senate Committee on Public Works that `the Federal water pollution
control program . . . has been inadequate in every vital aspect,'
Congress enacted the [Clean Water Act] declaring `the national goal
that the discharge of pollutants into the navigable waters be
Eliminated by 1985.''). In the context of the scope of ``waters of the
United States,'' the Court stated that Congress ``intended to repudiate
limits that had been placed on federal regulation by earlier water
pollution control statutes and 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. 121, 133. More recently, the Supreme Court
in Maui noted that:
Congress' purpose as reflected in the language of the Clean
Water Act is to ```restore and maintain the integrity of the
Nation's waters,' '' [section] 101(a), 86 Stat. 816. Prior to the
Act, Federal and State Governments regulated water pollution in
large part by setting water quality standards. See EPA v. California
ex rel. State Water Resources Control Bd., 426 U.S. 200, 202-203, 96
S.Ct. 2022, 48 L.Ed.2d 578 (1976). The Act restructures federal
regulation by insisting that a person wishing to discharge any
pollution into navigable waters first obtain EPA's permission to do
so. See id., at 203-205, 96 S.Ct. 2022; Milwaukee v. Illinois, 451
U.S. 304, 310-311, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981).
140 S. Ct. at 1468.
With respect to states' responsibilities and rights under section
101(b), Justice Kennedy in Rapanos cited state amici briefs which
``note[d], among other things, that the Act protects downstream States
from out-of-state pollution that they cannot themselves regulate.'' 547
U.S. at 777. Indeed, the Supreme Court has recognized that this is an
important aspect of the Clean Water Act's passage. City of Milwaukee
involved alleged discharges of inadequately treated sewage from
Milwaukee, Wisconsin sewer systems directly into Lake Michigan, which
also borders Illinois. The Supreme Court noted that prior to passage of
the Clean Water Act, these discharges would have had to be resolved
through litigation, in which the courts must apply ``often vague and
indeterminate nuisance concepts and maxims of equity jurisprudence.''
451 U.S. at 317. The Clean Water Act, however, replaced this
unpredictable and inefficient approach with ``a comprehensive
regulatory program supervised by an expert administrative agency.'' Id.
Yet, an overly narrow definition of jurisdictional waters--such as
that under the NWPR (including the NWPR's removal from jurisdiction the
longstanding category of interstate waters) --threatens a return to
pre-1972 days excluding from federal protection waters that
significantly affect foundational waters and risks removing from the
statutory scheme instances of interstate pollution the 1972 amendments
were designed to address. In response to concerns expressed by
commenters regarding protection of downstream states from out-of-state
pollution, the agencies in the NWPR simply stated: ``The CWA provides a
number of opportunities for the EPA to mediate disputes among states,
though the remedies available for cross-boundary water pollution
disputes over non-jurisdictional waters depends upon the parties and
the issues of the case. As they do today, under the final rule remedies
for pollution disputes among states that do not implicate CWA sections
319(g), 401, or 402 would likely derive from federal common law under
the Supreme Court's original jurisdiction. Remedies for disputes
between a state and a public or private party would likely derive from
state or federal common law and be heard by state or federal courts.''
NWPR, Response to Comments, Topic 1 Legal Arguments at 26. But
directing states and other parties to utilize state or federal common
law to resolve such disputes overlooks ``Congress' intent in enacting
the [1972] Amendments . . . to establish an all-encompassing program of
water pollution regulation,'' City of Milwaukee, 451 U.S. at 318, and
that ``the need for such an unusual exercise of lawmaking by federal
courts disappears'' when Congress passes legislation that ``speak[s]
directly'' to the question at issue, as Congress did in
[[Page 69404]]
passing the Clean Water Act. Id. at 317-18.
By proposing regulations interpreting the Act to cover waters that
meet the relatively permanent standard or the significant nexus
standard, the agencies have reasonably interpreted the Act to protect
those waters necessary to protect the integrity of downstream
traditional navigable waters, interstate waters, and the territorial
seas while leaving regulatory authority over all other waters
exclusively to the states. This interpretation respects the statutory
history that gave rise to the Act and gives effect to the comprehensive
nature of the Clean Water Act, its objective, and the many programs
affected by the scope of ``waters of the United States'' designed to
meet that objective, along with other important policies of the Act,
while ensuring that states have sole authority over waters with no or
insignificant connection to the foundational waters clearly protected
by the Clean Water Act.
(4) The Definitions of Jurisdictional Waters in the Proposed Rule
Reflect Appropriate Consideration of Sections 101(a) and 101(b) of the
Act
As discussed elsewhere, the proposed rule includes definitions of
tributaries, adjacent wetlands, and ``other waters'' that meet the
relatively permanent or significant nexus standards (see section V.C of
this preamble). The proposed rule advances the Act's objective by
helping restore and maintain the chemical, physical, and biological
integrity of traditional navigable waters, interstate waters, and
territorial seas--waters of longstanding and indisputable federal
interest--by protecting them from degradation of upstream waters that
significantly affect them. At the same time, consistent with section
101(b), the proposed rule recognizes, preserves, and protects states'
rights and responsibilities subject to the policy in section 101(b) of
the Act by leaving within their purview all waters that do not
significantly affect the foundational waters of paramount federal
interest. The specific jurisdictional lines in the proposed rule
demarcating jurisdictional from non-jurisdictional waters therefore
bear a relationship to the nature and extent of federal and state
interests at play; this line-drawing highlights the agencies'
deliberate and due consideration of sections 101(a) and 101(b) in
developing the proposed rule.
The agencies believe that the jurisdictional line-drawing reflected
in the proposed rule better aligns with these statutory provisions than
the NWPR. As noted previously, the preamble to the final NWPR cited
section 101(b) as a justification, in part, for its specific
definitions of jurisdictional tributaries and adjacent wetlands. One of
the most environmentally significant decisions in the NWPR was its
categorical exclusion of all ephemeral streams from Clean Water Act
jurisdiction. The agencies cited section 101(b) as a basis for this
exclusion as ``respecting State and Tribal land use authority over
features that are only episodically wet during and/or following
precipitation events.'' 85 FR 22319. The agencies' explanation,
however, does not link the agencies' line-drawing to the text or
purpose of section 101(b). Nor do the agencies, at this time, see any
linkage between the flow regime of ephemeral waters and the nature or
extent of state authorities referenced in section 101(b). Indeed, as
discussed elsewhere, available science unequivocally demonstrates that
ephemeral tributaries can implicate the important federal interest in
the protection of the integrity of traditional navigable waters,
interstate waters, and territorial seas. Likewise, in categorically
excluding ephemeral waters, the agencies in the NWPR cite section
101(a), but again do not explain how their decision relates to or
advances the Act's objective. 85 FR 22277, April 21, 2020. In contrast,
informed by the policy in section 101(b) and the Act's objective in
section 101(a), the proposed role appropriately distinguishes between
jurisdictional and non-jurisdictional tributaries based on whether a
tributary implicates core federal interests, in which case it is
covered by the rule, or fails to do so, in which case its protection
and management is left to states and tribes.
The NWPR similarly relied upon section 101(b) as a basis for its
definition of adjacent wetlands, in particular the decision to exclude
from consideration subsurface hydrologic connection between a wetland
and an adjacent water when determining jurisdiction, stating:
``[B]alancing the policy in CWA section 101(a) with the limitations on
federal authority embodied in CWA section 101(b), the agencies are
finalizing the definition of `adjacent wetlands' that does not include
subsurface hydrologic connectivity as a basis for determining
adjacency.'' Id. at 22313. Again, the NWPR does not explain how
excluding consideration of subsurface hydrologic connections relates to
or derives from section 101(b), and the agencies do not now discern
such a linkage. And as with the definition of tributaries, the NWPR
does not explain how this choice relates to or advances the objective
of the Act. In contrast, the proposed rule's approach to adjacent
wetlands, like its approach to jurisdictional tributaries, gives due
consideration to the policy in section 101(b) and the objective in
section 101(a) by tethering jurisdiction to whether the wetland
implicates foundational waters with a demonstrated federal interest.
4. The Proposed Rule Is Both Familiar and Implementable
The agencies have extensive experience implementing the 1986
regulations. In addition, the scientific and technical information
available to inform the significant nexus analysis and identify waters
that meet the relatively permanent standard has markedly improved over
time and become more easily available since the agencies first started
implementing both standards. The agencies are taking comment on a range
of implementation options discussed in section V.D of this preamble
that would further inform the public as to the agencies' intended
practice for asserting jurisdiction under the proposed rule.
Since the Court's decision in Rapanos, the agencies have gained
more than a decade of experience implementing the 1986 regulations
consistent with the relatively permanent standard and the significant
nexus standard under three different presidential Administrations,
beginning with the Rapanos Guidance issued in 2007. Even after the
agencies promulgated the 2015 Clean Water Rule, they continued to
implement the 1986 regulations consistent with the Rapanos Guidance in
certain states in response to court decisions enjoining the 2015 Clean
Water Rule in various parts of the country.
The agencies repromulgated the 1986 regulations in the 2019 Repeal
Rule and implemented those rules nationwide until June 22, 2020, when
the NWPR became effective. The agencies explained that with the 2019
Repeal Rule, they intended to ``restore the regulatory text that
existed prior to the 2015 Rule'' and that the agencies would
``implement the pre-2015 Rule regulations informed by applicable agency
guidance documents and consistent with Supreme Court decisions and
longstanding agency practice.'' 84 FR 56626, October 22, 2019. The
agencies concluded that ``[the] final rule will provide greater
regulatory certainty and national consistency while the agencies
consider public comments on the proposed [2020 Rule].'' Id. at 56660.
To further justify a return to the 1986 framework, the agencies noted
that ``[t]he agencies, their
[[Page 69405]]
coregulators, and the regulated community are . . . familiar with the
pre-2015 Rule regulatory regime and have amassed significant experience
operating under those pre-existing regulations. Agency staff in
particular have developed significant technical expertise in
implementing the 1986 regulations.'' Id. The 2019 Repeal Rule would
thus ``provide greater certainty by reinstating nationwide a
longstanding regulatory framework that is familiar to and well
understood by the agencies, States, Tribes, local governments,
regulated entities, and the public.'' Id. at 56661. Indeed, a number of
regulators and regulated parties alike expressed support for returning
to the pre-2015 regulations, as implemented following SWANCC and
Rapanos, due in part to their experience and familiarity with that
regime.\29\
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\29\ See, e.g., comments submitted by American Water Works
Association (August 13, 2018) (Docket ID: EPA-HQ-OW-2017-0203-
15559); comments submitted by North Dakota's Department of
Agriculture (July 25, 2018) (Docket ID: EPA-HQ-OW-2017-0203-15541);
comments submitted by the Office of the Governor of Utah (August 9,
2018) (Docket ID: EPA-HQ-OW-2017-0203-15202) (``Recodification of
the regulations that existed prior to the 2015 Rule will provide
continuity and certainty for regulated entities, States, the
agencies' staff, and the American public.'').
---------------------------------------------------------------------------
Further, in responding to comments asserting that the agencies
should not return to the pre-2015 regulatory regime because that regime
would reduce regulatory certainty compared to the 2015 Clean Water Rule
due to the prior regime's reliance on case-specific significant nexus
determinations, the agencies explained that ``[f]ollowing the Supreme
Court's decisions in SWANCC and Rapanos . . . the Corps published a
guidebook to assist district staff in issuing approved jurisdictional
determinations. In particular, the guidebook outlines procedures and
documentation used to support significant nexus determinations. This
guidebook has been and continues to be publicly available and will
continue to serve as a resource in issuing jurisdictional
determinations under this final rule.'' \30\ Id. at 56660. Even after
the NWPR's June 22, 2020 effective date, the agencies continued to
implement the 2019 Repeal Rule consistent with the Rapanos Guidance in
Colorado until April 2021 due to litigation barring implementation of
the NWPR in that state.
---------------------------------------------------------------------------
\30\ For convenience, EPA decisions on jurisdiction are referred
to as jurisdictional determinations throughout this document, but
such decisions are not approved jurisdictional determinations as
defined and governed by the Corps regulations at 33 CFR 331.2.
---------------------------------------------------------------------------
In addition to the past three presidential Administrations, courts
have also found that the 1986 regulations, implemented consistent with
the Rapanos standards, provide an appropriate regulatory framework by
which to implement the Act. Indeed, in staying the 2015 Rule
nationwide, the Sixth Circuit found that returning to the ``familiar,
if imperfect, pre-Rule regime'' was the best path forward pending
judicial review of the 2015 Rule. In re EPA & Dep't of Def. Final Rule,
803 F.3d 804, 808 (6th Cir. 2015). In doing so, the court recognized
that it needed to reinstate the pre-2015 regulatory regime--not the
1986 regulations alone--to properly preserve the status quo. See id. at
806 (finding that ``the status quo at issue is the pre-[2015 Rule]
regime of federal-state collaboration that has been in place for
several years, following the Supreme Court's decision in Rapanos'').
Likewise, in vacating the NWPR, the Arizona district court reinstated
the pre-2015 regulatory regime, noting that the regime ``is familiar to
the Agencies and industry alike.'' See Pascua Yaqui Tribe, 2021 WL
3855977, at *5.
The agencies acknowledge that a return to the pre-2015 regime would
result in the need for case-specific analyses for certain
jurisdictional determinations, potentially raising some timeliness and
consistency issues that the agencies' rules in 2015 and 2020 were
designed, in part, to reduce. However, the NWPR both fails to advance
the Act's statutory objective and introduces new implementation
uncertainties, including its own case-specific typical year analysis
for most categories of jurisdictional waters. In contrast, the proposed
rule is both consistent with the Act's statutory text and purposes and
is longstanding and familiar to regulated parties and regulators alike.
Moreover, all definitions of ``waters of the United States'' require
some level of case-specific analysis, and implementation of the
proposed rule will be aided by improved and increased scientific and
technical information and tools that both the agencies and the public
can use to determine whether waters are ``waters of the United States''
(see section V.D of this preamble). Accordingly, the agencies have
concluded the proposed rule is consistent with the Clean Water Act and
the best available science as well as familiar and implementable.
Through the various rulemakings and court decisions relating to the
definition of ``waters of the United States'' since the Rapanos
decision in 2006, the agencies have continued implementing the 1986
regulations consistent with the Rapanos standards nationwide or in
numerous states across the country for various periods of time. This
experience has allowed the agencies to further develop expertise in
implementing this regime. The agencies, most often the Corps, have made
hundreds of thousands of Clean Water Act approved jurisdictional
determinations since the issuance of the 2008 Rapanos Guidance. Of
those, approximately 36,000 have required a case-specific significant
nexus determination. The agencies have made such determinations in
every state in the country as well as in the U.S. territories.
With field staff located in 38 Corps District offices and 10 EPA
regional offices, the agencies have over a decade of nationwide
experience in making decisions regarding jurisdiction under the 1986
regulations consistent with the relatively permanent standard and the
significant nexus standard as interpreted by the Rapanos Guidance.
These individual determinations have been made affirmatively for waters
ranging from an ephemeral stream that flows directly into a traditional
navigable water used extensively for recreational boating and fishing,
to wetlands directly touching a perennial tributary, to an intermittent
stream that provides flow to a drinking water source, to a group of
floodplain wetlands that provide important protection from floodwaters
to downstream communities alongside the traditional navigable water, to
headwater mountain streams that provide high quality water that
supplies baseflow and reduces the harmful concentrations of pollutants
in the main part of the river below. The agencies have also made many
findings of no jurisdiction under the 1986 regulations when they
concluded the waters in question did not meet either the relatively
permanent standard or the significant nexus standard as implemented by
the Rapanos Guidance. This includes individual determinations for a
small non-relatively permanent stream without any adjacent wetlands
miles from the nearest downstream traditional navigable water, for a
small wetland adjacent to a non-relatively permanent water that
together did not have a case specific significant nexus under the
guidance, and for a roadside ditch constructed in and draining uplands
that lacked relatively permanent flow.
Through this experience, the agencies developed wide-ranging
technical expertise in assessing the hydrologic flowpaths along which
water and materials are transported and transformed that determine the
degree of chemical, physical, or biological connectivity and effects to
downstream
[[Page 69406]]
waters. The agencies have also become deeply familiar with the
variations in climate, geology, and terrain within and among watersheds
and over time that affect the functions (such as the removal or
transformation of pollutants) performed by streams, open waters, and
wetlands for downstream traditional navigable waters, interstate
waters, or the territorial seas. The Corps can complete jurisdictional
determinations at no charge to the landowner or project proponent upon
their request.
The agencies utilize many tools and many sources of information to
help support decisions on jurisdiction, including U.S. Geological
Survey (USGS) and state and local topographic maps, aerial photography,
satellite imagery, soil surveys, National Wetland Inventory maps,
floodplain maps, watershed studies, scientific literature and
references, and field work. As discussed further in section V.D.3.d of
this preamble, these tools have undergone significant technological
advances, and become increasingly available, since the Rapanos
decision. For example, USGS and state and local stream maps and
datasets, aerial photography, gage data, watershed assessments,
monitoring data, and field observations are often used to help assess
the contributions of flow of tributaries, including intermittent and
ephemeral streams, to downstream traditional navigable waters,
interstate waters, or the territorial seas. Similarly, floodplain and
topographic maps from federal, state, and local agencies, modeling
tools, and field observations can be used to assess how wetlands are
storing floodwaters that might otherwise affect the integrity of
downstream waters. Further, the agencies utilize the large body of
scientific literature regarding the functions of tributaries, including
tributaries with ephemeral, intermittent, and perennial flow, and of
wetlands and open waters to inform their significant nexus analyses. In
addition, the agencies have experience and expertise from decades of
making decisions on jurisdiction that considered hydrology, ordinary
high water mark (OHWM) and its associated indicators (see section
V.C.9.d of this preamble), biota, and other technical factors in
implementing Clean Water Act programs. The agencies' immersion in the
science, along with the practical expertise developed through case-
specific determinations across the country for more than a decade, have
helped the agencies determine which waters have a significant nexus and
where to draw boundaries demarking the ``waters of the United States.''
Regulated entities and other interested parties also have
significant experience with the 1986 regulations and the two Rapanos
standards. While the agencies have been developing their expertise in
implementing this regime, so have state and tribal co-regulators and
regulated entities that may be subject to the Act's reach, including
technical consultants that advise regulated entities on whether they
may be subject to Clean Water Act requirements, and interested citizens
who may play an important role in the Act's permitting process.
Due in part to the familiarity of this regime, the proposed rule
would not undermine significant reliance interests in an alternative
regime, including the NWPR. The Supreme Court has held that agencies'
changes in position do not require any reasons ``more substantial than
those required to adopt a policy in the first instance.'' FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 514 (U.S. 2009). The Court
acknowledges that if an agency's ``prior policy has engendered serious
reliance interests,'' the agencies must not ignore them, but must
provide a reasoned explanation for disregarding facts and circumstances
that underlay or were engendered by the prior policy. Id. at 515.
However, the Court emphasizes that even in the case of serious reliance
interests, further justification is not required ``by the mere fact of
policy change.'' Id. at 516.
The proposal does not implicate serious reliance interests because,
first, the agencies are proposing to codify a rule similar to the
definition currently being implemented nationwide. Therefore, no
stakeholders are currently relying on the implementation of an
alternative definition, including the NWPR. As discussed in section VI
of this preamble, the proposed rule would restore a regime that is
generally comparable to current practice, and there would be no
appreciable cost or benefit difference between the proposed rule and
the regulatory regime that the agencies are currently implementing.
Second, members of the public, states, and tribes have been aware that
the agencies might reconsider the NWPR for nearly a year and have had
many opportunities to share their views with the agencies. President
Biden indicated on his first day in office, following the issuance of
Executive Order 13990, that this administration would be reviewing the
NWPR and deciding whether to revise or replace the rule. See section
IV.B.5 of this preamble. On June 9, 2021, the agencies announced their
intention to revise or replace the rule. The agencies subsequently
embarked on an extensive stakeholder outreach process, including public
meetings and state and tribal consultation. See section IV.C of this
preamble. The agencies received over 32,000 recommendation letters from
the public during its pre-proposal outreach. Third, the NWPR was only
in effect for 14 months and was subject to multiple legal challenges
during that entire time. Finally, as discussed in this section, members
of the public are familiar with the proposed rule's regulatory
framework thereby minimizing the potential disruption of a change.
Regardless, even if serious reliance interests were at issue, which
they are not, this proposed rule provides a thorough and reasoned
explanation for the changed definition of ``waters of the United
States.''
For all of these reasons, the agencies are now once again proposing
to return the definition of ``waters of the United States'' to its
longstanding and familiar definition reflected in the 1986 regulations,
amended to reflect the agencies' current view of the limitations on
their jurisdiction informed by relevant Supreme Court decisions.
B. Concerns With Alternatives
In promulgating a rule to repeal existing regulations, agencies
must address and consider alternative ways of achieving the relevant
statute's objectives and must provide adequate reasons to abandon those
alternatives. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 48 (1983). As discussed below, the agencies have
thoroughly considered alternatives to the proposed rule and have
concluded that the proposed rule is the best path forward to meet the
agencies' goals to promulgate a rule that advances the objective of the
Clean Water Act, is consistent with Supreme Court decisions, is
supported by the best available science, and promptly and durably
restores vital protections to the nation's waters. The agencies have
reconsidered the policies, interpretations, and conclusions of the NWPR
and for the reasons articulated in this preamble are changing their
approach. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009).
1. 2015 Clean Water Rule
The agencies are not proposing to repromulgate the 2015 Clean Water
Rule. While the proposed rule utilizes the best available science in
support of the conclusion that the proposed rule would advance the
objectives of the Act, the proposed rule is not, as aspects of the 2015
Rule were, based on categorical significant nexus determinations.
Rather, the proposed rule restores the
[[Page 69407]]
longstanding and familiar categories of the 1986 regulations and
proposes jurisdictional limitations based on both the relatively
permanent standard and the significant nexus standard.
The 2015 Clean Water Rule, while designed to advance the objective
of the Clean Water Act, is not the best alternative to meet the policy
goals of the agencies: To promptly restore the protections of the
longstanding regulations and avoid current and future harms to
important aquatic resources, consistent with the best available science
and the agencies' determination of the statutory limits on the scope of
the ``waters of the United States.'' In particular, the procedural
status of the 2015 Rule in light of the complex litigation surrounding
it means that re-adoption of the rule would not meet the agencies'
policy goal of promptly ensuring necessary protections for the nation's
waters.
Indeed, litigation over the 2015 Rule previously led to different
definitions of ``waters of the United States'' being in effect in
different parts of the country. At this time, the 2015 Clean Water Rule
remains subject to preliminary injunctions barring implementation of
the rule in roughly half the states in the country. See section I.A of
the Technical Support Document for more information on the status of
the definition of ``waters of the United States'' in effect at
different times across the country based on the litigation over the
2015 Rule.
2. 2019 Repeal Rule
As discussed in section V.A of this preamble, the agencies agree
with the concept in the 2019 Repeal Rule of returning to the pre-2015
regulatory framework as a means of restoring a longstanding and
familiar regulatory regime. Indeed, like the 2019 Repeal Rule, the
proposed rule seeks to return generally to the longstanding regulations
that existed prior to the 2015 Clean Water Rule.\31\ Unlike the 2019
Repeal Rule, however, the proposed rule would restore those regulations
with necessary limitations to ensure the definition of ``waters of the
United States'' reflects consideration of the agencies' statutory
authority under the Clean Water Act and of relevant Supreme Court
decisions.
---------------------------------------------------------------------------
\31\ 2019 Repeal Rule, Response to Comments at 9 (``The agencies
find that reinstating the longstanding and familiar pre-2015 Rule
regulatory regime will provide regulatory certainty in this interim
period . . . .''), 15 (``[T]his final rule to recodify the 1986
regulations will provide greater regulatory certainty and nationwide
consistency while the agencies consider public comments on the
proposed revised definition of ``waters of the United States.'').
---------------------------------------------------------------------------
Additionally, the agencies have significant concerns regarding the
legal rationale underpinning the 2019 Repeal Rule. In particular, the
agencies are concerned that the interpretation of relevant Supreme
Court case law in the 2019 Repeal Rule is flawed and thereby led to an
erroneous assessment of the legality of the 2015 Clean Water Rule. See,
e.g., 84 FR 56638-52, October 22, 2019. The agencies' reading of the
Clean Water Act in the 2019 Repeal Rule is also inconsistent with the
agencies' considered interpretation, at this time, of the Act. For
these reasons, the agencies find that the 2019 Repeal Rule is not an
appropriate alternative to the proposed rule.
3. NWPR
The agencies have also evaluated the NWPR as an alternative to the
proposed rule. After carefully considering the NWPR in light of the
text, objective, and legislative history of the Act, Supreme Court case
law, the best available scientific information, and the agencies'
experience in implementing the NWPR for over a year, the agencies do
not believe the NWPR is a suitable alternative to the proposal.
a. The NWPR Fails To Advance the Objective of the Clean Water Act
The agencies do not consider the NWPR to have advanced the
statutory objective of the Clean Water Act, which the Supreme Court
recently emphasized is an important aspect of defining the
jurisdictional scope of the Act. See, e.g., Maui, 140 S. Ct. 1462,
1468-69 (emphasizing the importance of considering the Clean Water
Act's objective when determining the scope of the Act and finding that
``[t]he Act's provisions use specific definitional language to achieve
this result,'' including the phrase ``navigable waters''). Consistent
with the Supreme Court's opinion in Maui, a rule defining ``waters of
the United States'' must consider its effects on the chemical,
physical, and biological integrity of the nation's waters. And--as the
text and structure of the Act, supported by legislative history and
Supreme Court decisions, make clear--chemical, physical, and biological
integrity refers to water quality.
The agencies do not view the objective of the Clean Water Act as
the only factor relevant to determining the scope of the Act. Rather,
the agencies have concluded that consistent with the text, structure,
and legislative history of the Act, as well as Maui and the other
Supreme Court decisions addressing ``waters of the United States,'' and
with general principles of administrative law, the agencies must give
substantial consideration of the effects of a revised definition of
``waters of the United States'' on the integrity of the nation's
waters.
The agencies view the failure of the NWPR to advance the Act's
objective as an important factor in their choice not to propose a rule
based on the NWPR. One critical example of the NWPR's failure to
advance the objective of the Act is its removal of the significant
nexus test without considering an alternative approach to protecting
waters that significantly affect downstream traditional navigable
waters. The significant nexus inquiry reflects and furthers the
objective of the Clean Water Act by allowing for a scientific
evaluation of the effect of wetlands, tributaries, and other features
on downstream waters. For that reason, evolving forms of this inquiry
have been present in Riverside Bayview, SWANCC, and Justice Kennedy's
concurring opinion in Rapanos. The NWPR ``eliminate[d]'' the
significant nexus test, 85 FR 22325, April 21, 2020, and failed to
replace it with an alternative approach that furthered the objective of
the Act.
To be clear, the Supreme Court's interpretations of the scope of
``waters of the United States'' do not require adoption of a
significant nexus test. The Supreme Court has held that its
interpretation of a statutory term only binds the agency in future
rulemakings if it has stated that ``its construction follows from the
unambiguous terms of the statute and thus leaves no room for agency
discretion.'' Brand X internet Services, 545 U.S. at 982. The term
``waters of the United States'' is no such ``unambiguous term.''
``Waters of the United States'' can be subject to many interpretations
and the agencies have ``generous leeway'' in interpreting it. Rapanos,
547 U.S. at 758 (Roberts, C.J., concurring in the judgment.)
While the agencies were not bound to adopt the significant nexus
standard, the failure of the NWPR to adopt any standard for
jurisdiction that adequately addresses the effects of degradation of
upstream waters on downstream waters, including traditional navigable
waters, fails to advance the Act's objective. For example, the NWPR
categorically excluded ephemeral features without appropriately
considering scientific information about their important effects on the
integrity of downstream traditional navigable waters. In addition, in
limiting the scope of protected wetlands to those that touch or
demonstrate evidence of a regular surface water connection to other
jurisdictional waters, the NWPR failed
[[Page 69408]]
to appropriately consider the many effects of other categories of
wetlands on downstream waters. For example, an ephemeral stream that
flows directly into the Rio Grande (a traditional navigable water) and
an adjacent wetland separated from the Mississippi River (a traditional
navigable water) by an artificial levee and that lacks a direct
hydrologic surface connection to the river in a typical year are non-
jurisdictional under the NWPR but have significant effects on
traditional navigable waters.
The NWPR's assertion that it considered the objective of the Act
because Clean Water Act and non-Clean Water Act state, tribal, and
local efforts ``collectively pursue the objective'' does not reflect
consideration of the objective as intended by Congress. The agencies
contended in adopting the NWPR that the drastic reduction in the scope
of Clean Water Act jurisdiction pursues the objective of the Act
because it would be combined with the Clean Water Act's non-regulatory
programs as well as state, tribal, and local efforts. The NWPR
explained: ``The CWA's longstanding regulatory permitting programs,
coupled with the controls that States, Tribes, and local entities
choose to exercise over their land and water resources, will continue
to address the discharge of pollutants into waters of the United
States, and the CWA's non-regulatory measures will continue to address
pollution of the nation's waters generally. These programs and measures
collectively pursue the objective of restoring and maintaining the
chemical, physical, and biological integrity of the nation's waters.''
85 FR 22269, April 21, 2020.
The agencies agree with the NWPR's position that the Clean Water
Act's non-regulatory measures, such as grantmaking and technical
assistance authorities, advance the objective the Act. However, the
agencies do not view these authorities as limiting the scope of
``waters of the United States,'' or as relevant to determining whether
a definition of ``waters of the United States'' advances the objective
of the Act. The non-regulatory Clean Water Act programs that the NWPR
cites complement and support the permitting programs at the core of the
Act, as opposed to limiting its scope. For example, the NWPR cited the
Act's provisions to address pollution into key waters in its
discussion, including the Great Lakes, 33 U.S.C. 1258, 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). These
resources are ``waters of the United States'' to which regulatory
programs apply, and the technical assistance and grants in the cited
sections assist states and others in achieving the requirements of the
Act, but do not limit the regulatory programs' scope.
The agencies disagree, however, with NWPR's assertion that the
rule's reduction in regulatory scope achieved the objective of the Act
based in part on the impacts of non-Clean Water Act programs. As
discussed in section V.A.3.B of this preamble, the Clean Water Act's
fundamental innovation in 1972 was ``to establish an all-encompassing
program of water pollution regulation,'' Int'l Paper Co. v. Ouellette,
479 U.S. 481, 492-93 (1987). The definition of ``waters of the United
States'' establishes the scope of that program. The agencies therefore
believe it is appropriate to consider whether the definition of the
scope of waters to which the Act's water pollution regulations apply
helps to achieve that objective. Thus, the NWPR's statement that the
rule ``pursues'' the objective of the Act if Clean Water Act and non-
Clean Water Act programs are viewed in ``combination,'' is not
consistent with the better reading of text and structure of the Act,
its legislative history, or Supreme Court decisions concerning the
effect of enactment of the Clean Water Act in 1972, nor does it fulfill
the agencies' obligation to consider the objective of the Act by
assessing the water quality effects of revising the definition of
``waters of the United States.''
In sum, based on the text, structure, and history of the statute,
the relevant and available science, Supreme Court case law, and the
agencies' technical expertise and experience, the agencies have
determined that the NWPR is not a suitable alternative to the proposed
rule because it fails to achieve the objective of the Act. The NWPR
does not establish either the significant nexus test or an alternative
standard that advances the objective of the Clean Water Act by
protecting waters, including upstream ephemeral tributaries and
wetlands, where they have a significant effect on the integrity of
downstream traditional navigable waters, interstate waters, and the
territorial seas and does not appropriately value the importance of
federal programs in achieving the objective of the Act.
b. The NWPR is Inconsistent With the Best Available Scientific
Information
The NWPR's exclusion of major categories of waters from the
protections of the Act, specifically in the definitions of
``tributary'' and ``adjacent wetlands,'' runs counter to the scientific
record demonstrating how such waters can affect the integrity of
downstream waters. Specifically, its categorical exclusion of ephemeral
features and large categories of wetlands is inconsistent with the
scientific record before the agencies. In addition, the NWPR's limits
on the scope of protected wetlands to those that touch or demonstrate
evidence of a regular surface water connection to other jurisdictional
waters were counter to the ample scientific information demonstrating
the effects of wetlands on downstream waters when they have other types
of connections.
First, the definition of the term ``tributary'' in the NWPR
categorically excluded ephemeral streams from the regulatory
protections of the Act, contrary to scientific information emphasizing
the vital role these streams can play in protecting the integrity of
downstream waters. The science is clear that aggregate effects of
ephemeral streams ``can have substantial consequences on the integrity
of the downstream waters'' and that the evidence of such downstream
effects is ``strong and compelling,'' as discussed above. Science
Report at 6-10, 6-13. EPA's SAB Review of the draft Science Report
explains that ephemeral streams ``are no less important to the
integrity of the downgradient waters'' than perennial or intermittent
streams. SAB Review at 22-23, 54 fig. 3. While in the arid Southwest,
features flow into downstream waters less frequently than they do in
the wetter East, the Science Report emphasizes that short duration
flows through ephemeral streams can transport large volumes of water to
downstream rivers. Science Report at 6-10. For instance, the report
notes that ephemeral streams supplied 76% of flow to the Rio Grande
following a large rainstorm. Id. at 3-8. The SAB Review emphasizes that
the ``cumulative effects'' of ephemeral flows in arid landscapes can be
``critical to the maintenance of the chemical, physical, and biological
integrity'' of downstream waters. SAB Review at 22.
Similarly, the NWPR's definition of ``adjacent wetlands'' excluded
many categories of wetlands that can play a vital role in protecting
the integrity of waters to which they are connected, including
traditional navigable waters. In defining ``adjacent wetlands,'' the
NWPR limited the scope of wetlands protected by the Clean Water Act's
regulatory programs to those that either abut or have evidence of
certain surface water connections to other protected waters in a
typical year. 85 FR 22340, April 21, 2020. Specifically, the rule
[[Page 69409]]
encompassed wetlands that (i) abut, meaning to touch, another
jurisdictional water; (ii) are flooded by a jurisdictional water in a
typical year; (iii) are separated from a jurisdictional water only by a
natural feature, such as a berm, which provides evidence of a direct
surface hydrological connection with that water; or (iv) are separated
from a jurisdictional water only by an artificial structure so long as
that structure allows for a direct hydrologic surface connection
between the wetlands and the water in a typical year. Id. As with the
tributary definition, the NWPR stated that the definition of ``adjacent
wetlands'' is ``informed by science.'' Id. at 22314. Yet the NWPR's
limits on the scope of protected wetlands to those that touch or
demonstrate evidence of a regular surface water connection to other
jurisdictional waters were counter to the ample scientific information
before the agencies demonstrating the effects of wetlands on downstream
waters when they have other types of surface connections, such as
wetlands that overflow and flood jurisdictional waters or wetlands with
less frequent surface water connections due to long-term drought;
wetlands with shallow subsurface connections to other protected waters;
or other wetlands proximate to jurisdictional waters. See Rapanos, 547
U.S. at 786 (Kennedy, J., concurring in the judgment) (``[g]iven the
role wetlands play in pollutant filtering, flood control, and runoff
storage, it may well be the absence of a hydrologic connection (in the
sense of interchange of waters) that shows the wetlands' significance
for the aquatic system.'') Id. at 786.
Indeed, the overwhelming scientific information before the agencies
weighs decisively against proposing the definition of ``adjacent
wetlands'' in the NWPR. Available scientific information demonstrates
the significant effects of categories of newly excluded wetlands on the
chemical, physical, and biological integrity of downstream traditional
navigable waters. For example, whereas the NWPR provided that wetlands
flooded by jurisdictional waters are only protected if the flooding
occurs in a ``typical year,'' the Science Report stated that wetlands
that are ``rarely'' or ``infrequently'' flooded by streams and rivers
can be ``highly connected'' to those waters and have ``long-lasting
effects'' on them. Science Report at 4-39. The Science Report noted
that effects ``critical to maintaining the health of the river'' result
from large floods that provide ``infrequent connections'' with more
distant wetlands. Id. Reflecting these concerns, the October 16, 2019
SAB Draft Commentary on the proposed NWPR stated that the narrow
definition of ``adjacent wetlands'' in the NWPR as it was proposed
``departs from established science.'' The agencies have weighed these
statements and in light of the information about the importance of
``infrequently'' flooded wetlands to downstream waters, the agencies
believe that the NWPR's exclusion of wetlands that lack the limited,
specific types of surface water connections to other jurisdictional
waters in a typical year lacked scientific support.
The SAB's assessment of the NWPR proposal recognized that the
proposed rule was not consistent with the scientific information in the
record, including the Draft Science Report that the SAB had previously
reviewed. SAB Commentary on the Proposed Rule Defining the Scope of
Waters Federally Regulated Under the Clean Water Act (February 27,
2020). The 2020 SAB Commentary emphasized that the proposal does not
``fully incorporate the body of science on connectivity'' that the SAB
had reviewed in the Draft Science Report and offers ``no scientific
justification for disregarding the connectivity of waters accepted by
current hydrological science.'' Id. at 2.
The NWPR stated that the ``agencies' decisions in support of this
final rule have been informed by science.'' 85 FR 22288, April 21,
2020. For example, the scientific information that the NWPR cited as a
basis for excluding ephemeral tributaries is the concept of a
``connectivity gradient.'' Id., citing the SAB Review. The NWPR
referred to the SAB Review's recommendation that the agencies recognize
that connectivity occurs along a gradient allowing for variation in
chemical, physical, and biological connections. Id., citing the SAB
Review at 3. The NWPR asserted that there is a ``decreased'' likelihood
that waters with ``less than perennial or intermittent'' flow, i.e.,
ephemeral streams, will affect the chemical, physical, and biological
integrity of downstream waters. Id.
Upon careful review, however, the agencies have concluded that the
NWPR's conclusion takes the SAB's recommendation out of context and is
inconsistent with the information in the SAB Review as a whole. The
agencies recognize that the SAB explained that the connectivity
gradient the NWPR cited was just a hypothetical example \32\ meant to
illustrate just one aspect of connectivity--hydrological, or physical
connectivity--and sheds no light on the many other ways that features
connect to and affect downstream waters. According to the SAB itself,
the only scientific information the agencies provided in support of
categorically excluding ephemeral features does not fully represent the
discussion in the cited SAB Review and runs counter to key elements of
the scientific record before the agencies. Id.
---------------------------------------------------------------------------
\32\ The figure cited is captioned in part as ``Hypothetical
illustration of connectivity gradient and potential consequences to
downstream waters.'' SAB Review at 54 (emphasis added). Nowhere in
its review does the SAB review indicate that this is the actual or
only connectivity gradient.
---------------------------------------------------------------------------
The NWPR also stated that the line it draws between regulated and
non-regulated wetlands, which excludes large categories of wetlands
previously covered by the Act, is ``informed by science.'' 85 FR 22314,
April 21, 2020. The NWPR cited statements from the SAB Review to the
effect that wetlands situated alongside other waters are likely to be
connected to those waters, whereas ``those connections become less
obvious'' as the distance ``increases.'' Id., citing the SAB Review at
55; see also id. at 22314, citing the SAB Review at 60 (``[s]patial
proximity is one important determinant [influencing the connections]
between wetlands and downstream waters''). In addition, the NWPR cited
a statement in the Science Report that explained, ``areas that are
closer to rivers and streams have a higher probability of being
connected than areas farther away.'' Id. at 22314, citing the Science
Report at ES-4.\33\
Despite these citations, the NWPR's definition of adjacent is not
based on proximity, but instead on factors that are distinct from
proximity--e.g., a ``direct hydrologic connection,'' or a ``continuous
surface [water] connection.'' See id. at 22340. Thus, the NWPR's
definition of ``adjacent wetlands'' may exclude wetlands a dozen feet
away from jurisdictional waters (therefore proximate under any
reasonable interpretation of the term) if they are separated by a levee
that does not convey flow in a typical year, but include wetlands much
further away so long as they are inundated by flooding from the
jurisdictional water in a typical year.
c. The NWPR Is Difficult To Implement and Yields Inconsistent Results
In addition to the above concerns, the agencies' experience
implementing the NWPR for over a year made clear that foundational
concepts underlying much of the NWPR are confusing and difficult to
implement in the way the NWPR required. While any rule that draws lines
between jurisdictional waters and
[[Page 69410]]
non-jurisdictional waters will involve some implementation challenges,
the agencies have found the challenges imposed by the NWPR to be
impracticable in important respects. Based on the agencies' experience,
the NWPR does not ``provide[] clarity and predictability for Federal
agencies, States, Tribes, the regulated community, and the public.''
See 85 FR 22252, April 21, 2020. More importantly, the challenges that
the NWPR imposes to establish jurisdiction for features that it appears
to define as jurisdictional and that significantly affect the integrity
of downstream waters further undermine the NWPR's viability as an
alternative to the proposed rule.
i. ``Typical Year'' Metric
The ``typical year'' is a concept fundamental to many of the NWPR's
definitions. Id. at 22273. Under the rule, tributaries and lakes,
ponds, and impoundments of jurisdictional waters are only
jurisdictional if they have certain surface water connections with a
traditional navigable water or territorial sea at least once in a
typical year. 33 CFR 328.3(c)(6), (12). Two categories of wetlands only
meet the adjacency test for jurisdiction if they have a surface water
connection with other jurisdictional waters once in a typical year. Id.
at (c)(1). As a scientific matter, the concept of ``typical year
conditions,'' including precipitation normalcy, may be relevant to
ensuring that certain surface water connections in natural streams are
not being observed under conditions that are unusually wet or dry. In
terms of implementation, the concept of precipitation normalcy is valid
in certain contexts, such as to inform determinations as to the
presence of a wetland. However, in many important contexts, available
tools, including the tools the NWPR recommends, cannot reliably
demonstrate the presence of surface water connections in a typical
year, which are a necessary element of most categories of
jurisdictional waters under the NWPR. However, ``typical year
conditions'' are often irrelevant to the extent of flow in many human-
altered streams, including effluent-dependent streams, and the NWPR did
not explain why human-altered hydrology should be subject to the same
typical year requirement as natural streams. These challenges undermine
the NWPR's claim that it enhances the ``predictability and consistency
of Clean Water Act programs . . .'' See 85 FR 22250, April 21, 2020.
Identifying the presence of a surface water connection in a typical
year can be difficult and sometimes impossible, as such connections are
often not apparent from visual field observation alone. For example, on
the day of a visit to an intermittent stream that flows only several
months or several weeks a year, it is very unlikely that an observer
would see a surface water connection to a downstream jurisdictional
water. Similarly, though many ponds or wetlands may be frequently
inundated, those in arid areas may be inundated only a few times every
year, and sometimes the inundation occurs on a single day or within a
matter of hours. While these waters satisfy the NWPR's jurisdictional
test, agency staff would probably not be able to determine that they
do, given how unlikely they would be to observe it. The difficulty of
finding in a field visit the direct hydrologic connections under any
interpretation of typical year permissible under the NWPR is
exacerbated by the fact that the NWPR discourages reliance on field
indicators. See, e.g., id. at 22292 (``The agencies . . . conclude that
physical indicators of flow, absent verification of the actual
occurrence of flow, may not accurately represent the flow
classifications required for tributaries under this rule.'').
Given the insufficiency of visual field observations to assess the
presence of a surface water connection as specified in the NWPR, agency
staff must often expend substantial time and resources to try to obtain
ancillary data to determine flow conditions at a particular site in a
typical year. Hydrologic modeling tools and advanced statistical
analyses could be employed where sufficient flow data are available,
but often data needed to conduct such an analysis is limited or lacking
altogether, especially for smaller streams. Few streams across the
country have hydrologic gages that continuously measure flow, as most
such gages are located on larger rivers with perennial flow.
For the same reasons that agency staff are unlikely to witness the
specific surface water connections required under the NWPR during a
site visit in dry regions or during the dry season, available aerial
photographs, which are often taken just once per year or once every
other year, are also very unlikely to capture evidence of this surface
water connection between a stream and a downstream traditional
navigable water or territorial sea. High-resolution satellite imagery
can potentially provide additional coverage, but availability and
usability vary across the country, depending on access, update
intervals, cloud cover, and land cover (i.e., vegetation or trees that
obscure aerial views of stream channels, requiring the use of advanced
tools to detect features of interest or the presence of water).
Moreover, as the NWPR acknowledges, ``characteristics of tributaries
may not be visible in aerial photographs'' taken during periods of
``high shrub or tree cover,'' 85 FR 22299, April 21, 2020. New
satellites are expected to surmount some of these issues in the future,
but as this information is not yet available, regulators could not use
it to inform jurisdictional decisions under the NWPR. Although any
definition of ``waters of the United States'' requires the use of
remote tools like interpretation of aerial or satellite imagery, the
NWPR made it more challenging to use these resources because of that
rule's typical year criteria and the burden of proof to demonstrate
that the requirement is met.
The same difficulties create challenges in detecting surface
hydrologic connections that meet the NWPR's definition of ``adjacent
wetlands'' or ``lakes and ponds, and impoundments of jurisdictional
waters.'' Demonstrating that a wetland, lake, pond, or impoundment is
inundated by flooding once in a typical year would require a field
visit or a high-quality aerial photograph or satellite image coinciding
with the exact time that the hydrologic connection (flooding) occurs
from a tributary to a wetland, lake, pond, or impoundment. The NWPR's
standard of inundation by flooding in a typical year is not tied to any
more commonly calculated flood interval, such as flood recurrence
intervals, and the agencies are not aware of any tool capable of
collecting the type of inundation data the NWPR requires. Determining
that inundation by flooding occurs in a typical year is therefore
extremely difficult, and sometimes impossible. Demonstrating that an
artificial feature allows for a direct hydrologic surface connection
between a wetland and a tributary in a typical year poses similar
obstacles, requiring either auspiciously timed field visits, aerial
photography, or high-resolution satellite imagery, or data that the
agencies may not be able to access, such as construction plans or
operational records for an artificial levee.
The NWPR suggests the agencies ``will generally use'' precipitation
data from the National Oceanic and Atmospheric Administration (NOAA) to
help determine the presence of a surface water connection in a typical
year, see 85 FR 22274, April 21, 2020, but the methodology described in
the NWPR preamble for determining precipitation in a typical year makes
it difficult to use these data to inform jurisdiction. NOAA
precipitation totals over the three
[[Page 69411]]
months prior to a site observation are compared to precipitation totals
observed over the preceding 30 years to determine if rainfall was
wetter than normal, drier than normal, or normal (``typical''). Using
the methodology in the preamble of the NWPR, only 40% of observations
over a rolling 30-year period of record are considered ``normal,''
while 30% of observations are considered to be ``wetter than normal''
and 30% of observations are considered to be ``drier than normal.'' If
surface water flow was observed during normal or dry conditions, the
agencies can have higher confidence that the surface water observations
represent flow in a ``typical year.'' However, if flow was observed
during the 30% of conditions that are ``wetter than normal,'' the
surface water observations do not reveal whether flow would occur
during a typical year. And if flow was not observed, precipitation data
from the previous three months do not indicate whether flow might occur
in that particular water feature under typical year conditions at a
different point in the year. Therefore, if a site visit is conducted
when surface water flow is not present, the agencies' suggested
approach for evaluating whether a feature meets the typical year test
often does not provide meaningful and relevant information upon which
the agencies could reasonably rely to make accurate determinations of
jurisdiction. Under any regulatory regime, the agencies use a weight of
evidence approach to determine jurisdiction, but the NWPR typical year
requirement places onerous and in many instances arbitrary constraints
on the data that can be used as evidence.
Use of NOAA precipitation data to assess whether surface water flow
occurs in a typical year for purposes of the NWPR presents other
implementation challenges. The data rely on reports from weather
stations that are sometimes at a different elevation from the site in
question, or far away from the site, so that their indications as to
whether precipitation at a given site is normal, wetter than normal, or
drier than normal can be inaccurate. More importantly, the typical year
concept as applied to the NWPR does not account for the increasing
number of recurrent heatwaves, droughts, storms, and other extreme
weather events in many parts of the country, which can have profound
impacts on local and regional streamflow. Although the concept of
``typical year'' in the NWPR factors in long-term climatic changes over
time to some degree by considering a thirty-year rolling period of
data, see 33 CFR 328.3(c)(13), the NWPR does not allow the agencies
flexibility to consider other time intervals when appropriate to
reflect effects of a rapidly changing climate, including positive
trends in temperature, increasing storm events, and extended droughts.
In response to more rapid recent changes in climate, NOAA has developed
alternative approaches for estimating climate normals, including
seasonal averages computed using shorter, annually-updated averaging
periods for temperature (10-year seasonal average) and total
precipitation (15-year seasonal average). The rolling thirty-year
approach to determining typical year in the NWPR does not allow the
agencies to use these updated methods.
The NWPR notes that the agencies can look to sources of information
other than site visits, aerial photographs, and precipitation data to
assess whether a feature has surface water flow in a typical year. It
identifies the Web-based Water-Budget Interactive Modeling Program,
Climate Analysis for Wetlands Tables, and the Palmer Drought Severity
Index, 85 FR 22275, April 21, 2020, but all of these only look at
climate-related conditions generally and have well documented
limitations. These methods, which provide information useful in many
other contexts, often do not specifically answer the jurisdictional
questions established by the NWPR. For example, they do not address
whether surface water flow might connect a particular stream to a
downstream traditional navigable water or territorial sea, whether a
particular wetland is inundated by or connected to a jurisdictional
water as required under the NWPR, or how uncertainties associated with
their application at different locations and in different months affect
the accuracy of condition estimates. Precipitation is an important
factor but other information is also relevant to streamflow and surface
water connections in particular waters, including the abundance of and
contributions of flow from wetlands, upgradient streams, and open
waters in the watershed, evapotranspiration rates, water withdrawals
including groundwater pumping, and other climatic conditions. Yet
collecting this information from a variety of sources and interpreting
it can be extremely time- and resource-intensive and may require
special expertise that in many cases may not be feasible given
available agency staff and resources. While the agencies have
substantial experience using a weight of evidence approach to determine
jurisdiction, the ``typical year'' requirement makes it significantly
more difficult to interpret available data and narrows the scope of
data that can be used to determine jurisdiction.
Finally, the challenges presented by determining the presence of
surface water flow in a typical year are even greater when evaluating a
tributary at a distance from the downstream traditional navigable water
or territorial sea. Even streams that flow perennially or
intermittently often travel many miles prior to reaching the closest
traditional navigable water or territorial sea, meaning many downstream
reaches may need to be assessed. Under the NWPR, any ephemeral reaches
along that pathway that do not carry surface water flow once in a
typical year would render all upstream waters non-jurisdictional. Id.
at 22277. The need to assess lengthy tributary systems pursuant to this
provision of the rule imposes an extraordinarily high burden of proof
on the agencies to assess surface water flow in a typical year along
the flow path, and the longer the pathway, the less feasible the
analysis.
ii. Determining Adjacency
The NWPR provides that wetlands are ``adjacent'' when they: (1)
Abut a traditional navigable water or territorial sea; a tributary; or
a lake, pond, or impoundment of a jurisdictional water; (2) are
inundated by flooding from one of these waters in a typical year; (3)
are physically separated from one of these waters only by a natural
berm, bank, dune, or similar natural feature; or (4) are physically
separated from one of these waters only by an artificial dike, barrier,
or similar artificial structure so long as that structure allows for a
direct hydrologic surface connection between the wetlands and the water
in a typical year, such as through a culvert, flood or tide gate, pump,
or similar artificial feature. Id. at 22338; 33 CFR 328.3(c)(1). In
practice, agency staff have found several of these criteria for
adjacency extremely difficult to implement in certain circumstances.
First, agency staff have found it difficult to distinguish between
natural and artificial barriers for purposes of determining adjacency.
The NWPR for the first time establishes separate tests for adjacency
depending on whether the barrier between the wetland and jurisdictional
water is ``natural'' or ``artificial''; if a barrier is artificial, it
must allow for a direct hydrological surface connection in a typical
year in order for a wetland to be adjacent, whereas no such showing is
necessary for natural barriers. 33 CFR 328.3(c)(1)(iv). However, many
barriers between wetlands and jurisdictional
[[Page 69412]]
waters were built decades or even a century earlier, and determining
whether they were originally natural or artificial can be extremely
challenging, even if inspected in person, as artificial features that
are left alone often naturalize over time. It sometimes requires
extensive research into historical records, and those records may not
be available at all. Furthermore, some barriers may be both artificial
and natural. Artificial levees and other barriers are frequently built
on top of natural berms. Given the distinct regulatory consequences
that flow from whether a barrier is ``artificial'' or ``natural,'' the
NWPR requires the agencies to make determinations that are difficult or
in some cases not possible.
The artificial barrier provision also leads to absurd results. For
example, under the fourth way to meet the adjacency definition, a
wetland may be jurisdictional if it is separated from a jurisdictional
water by an artificial structure, such as a levee, that allows for a
direct hydrologic surface connection in a typical year through a
culvert. However, the same wetland would not be jurisdictional if there
was no levee present, even if there was a direct hydrological surface
connection in a typical year through a culvert (assuming the wetland
did not meet another criterion for adjacency). The NWPR therefore
establishes that certain wetlands with a direct hydrologic surface
connection to a jurisdictional water are only jurisdictional due to the
presence of an artificial barrier. This discrepancy bears no
relationship to the actual connections between the features at issue
and makes no scientific or practical sense.
Finally, the provision establishing that a wetland is ``adjacent''
if a jurisdictional water inundates it by flooding in a typical year is
also extremely difficult to implement. See 33 CFR 328.3(c)(1)(ii).
Inundation by flooding in a typical year is not a metric that is
normally recorded either by implementing agencies or the regulated
community. Available models generally focus on flood recurrence
intervals, which do not necessarily correspond to the likelihood of
inundation by flooding in a given or typical year. Indeed, the NWPR
acknowledges that inundation by flooding in a typical year could
correspond to a variety of flood recurrence intervals depending on
location, climate, season, and other factors. 85 FR 22311, April 21,
2020. Given the absence of existing records of inundation by flooding,
determining whether inundation by flooding has occurred in a typical
year is extremely difficult in many circumstances.
Compounding the challenge, the NWPR provides that wetlands can be
jurisdictional if they are inundated by flooding from a jurisdictional
water in a typical year--but inundation in the other direction, from
the wetlands to the jurisdictional water, is not grounds for
jurisdiction. Not only is there no compelling scientific or legal basis
for distinguishing between inundation of the wetland as opposed to
inundation from the wetland, see Riverside Bayview, 474 U.S. at 134
(upholding the Corps' assertion of jurisdiction over ``wetlands that
are not flooded by adjacent waters [but] may still tend to drain into
those waters''), but determining whether the limited available
photographs or other evidence of inundation reflects flooding in one
direction as opposed to another compounds the difficulty in evaluating
whether this standard is met. The same challenges apply to determining
whether lakes, ponds, or impoundments of jurisdictional waters are
inundated by flooding in a typical year, one basis for demonstrating
Clean Water Act jurisdiction over these features. 85 FR 22338, April
21, 2020; 33 CFR 328.3(c)(vi).
iii. Ditches
Among other requirements, the NWPR provides that a ditch \34\ is
jurisdictional as a tributary if it was originally built in a tributary
or adjacent wetland, as those terms are defined in the NWPR, and
emphasizes that the agencies bear the burden of proof to determine that
a ditch was originally constructed in a tributary or adjacent wetland.
33 CFR 328.3(a)(2), (c)(12); 85 FR 22299, April 21, 2020. In other
words, in order to find a ditch jurisdictional, the agencies must
demonstrate that a ditch was (1) originally constructed in a stream (2)
that, at the time of construction, had perennial or intermittent flow
and (3) a surface water connection to a downstream traditional
navigable water or territorial sea (4) in a ``typical year.''
Alternatively, the agencies must show that a ditch was (1) originally
constructed in a wetland (2) that either abutted or had certain surface
hydrologic connections to a jurisdictional water (3) in a ``typical
year,'' in order to demonstrate that the ditch is jurisdictional.
Americans have been building ditches, straightening streams, and
draining wetlands for hundreds of years. Therefore, to determine
whether a ditch is jurisdictional under the NWPR, the agencies must
address all of the implementation challenges discussed in the preceding
sections involved in determining surface water connections and wetland
adjacency in a typical year--but often for ditches built fifty, one
hundred, or several hundred years ago. To the extent that sparse
evidence is available to demonstrate a surface water connection in a
typical year for tributaries using tools available today, evidence is
even more difficult to find when looking so far back in time. States
have approached the agencies seeking assistance in assessing the
jurisdictional status of ditches, but the agencies are often unable to
provide significant help given the burdens imposed by the NWPR's ditch
definition.
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\34\ Ditches perform many of the same functions as natural
tributaries. For example, like natural tributaries, ditches that are
part of the stream network convey water that carries nutrients,
pollutants, and other constituents, both good and bad, to downstream
traditional navigable waters, interstate waters, and the territorial
seas.
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The NWPR also provides that ditches are jurisdictional if they
relocate a tributary, as that term is defined in the rule, 85 FR 22341,
April 21, 2020, 33 CFR 328.3(a)(2), (c)(12), but this standard as
defined is also often extremely difficult to assess. The NWPR explains
that a relocated tributary is ``one in which an entire portion of the
tributary may be moved to a different location.'' 85 FR 22290, April
21, 2020. In other words, the NWPR appears to require a ditch to divert
100% of the tributary's flow to meet the ``relocate a tributary'' test.
While prior rules have defined relocated tributaries as jurisdictional,
the requirement that the entire portion be relocated is new and has
created significant implementation challenges. As a practical matter,
when a tributary is relocated it often reroutes just a portion to the
ditch. Assessing whether a ditch relocated 100% of a tributary's flow,
however, as opposed to 80% or 50% of its flow, is extremely difficult
and may not be possible in some circumstances. By establishing a
jurisdictional standard that is extremely difficult to meet, the NWPR
effectively removes from the protections of the Clean Water Act large
numbers of ditches that function as tributaries and that significantly
affect the integrity of downstream traditional navigable waters,
interstate waters, and the territorial seas. As is the case with
tributaries, lakes and ponds, impoundments, and wetlands, the NWPR's
impracticable approach to ditches makes it extremely difficult to find
that many waters subject to the NWPR are actually jurisdictional,
further undermining the viability of the
[[Page 69413]]
NWPR as an alternative to the proposed rule.
d. The NWPR Has Significantly Reduced Clean Water Act Protections Over
Waters
The failure of the NWPR to achieve the objective of the Act, as
well as its inconsistency with science and the challenges it presents
in implementation, have had real-world consequences. The agencies have
found that substantially fewer waters are protected by the Clean Water
Act under the NWPR compared to previous rules and practices. It is
important to note that the definition of ``waters of the United
States'' affects most Clean Water Act programs designed to restore and
maintain water quality--including not only the NPDES and dredged and
fill permitting programs, but water quality standards, impaired waters
and total maximum daily loads, oil spill prevention, preparedness and
response programs, and the state and tribal water quality certification
programs--because such programs apply only to ``waters of the United
States.'' While the NWPR was enacted with the expressed intent to
decrease the scope of federal jurisdiction, the agencies now believe
the actual decrease in water resource protections has been more
pronounced than the qualitative predictions in the NWPR preamble and
supporting documents anticipated and acknowledged to the public. This
data supports the agencies' conclusion that the NWPR is not a suitable
alternative to the proposed rule.
i. Jurisdictional Determination and Permitting Data Show a Large Drop
in the Scope of Waters Protected Under the Clean Water Act.
Through an evaluation of jurisdictional determinations completed by
the Corps between 2016 and 2021,\35\ EPA and the Army have identified
consistent indicators of a substantial reduction in waters protected by
the NWPR (see Technical Support Document section III.B.ii for
additional discussion on methods and results of the agencies'
analyses). These indicators include an increase in the number and
proportion of jurisdictional determinations completed where aquatic
resources were found to be non-jurisdictional, an increase in
determinations made by the Corps that no Clean Water Act section 404
permit is required for specific projects, and an increase in requests
for the Corps to complete approved jurisdictional determinations (AJDs)
rather than preliminary jurisdictional determinations (PJDs), which
treat a feature as jurisdictional. These trends all reflect the narrow
scope of jurisdiction in the NWPR's definitions. Additionally, the
agencies believe these indicators account for only a fraction of the
NWPR's impacts, because many project proponents do not need to seek any
form of jurisdictional determinations for waters that the NWPR
categorically excludes, such as ephemeral streams, and the Corps does
not have purview over such projects and does not track them. A closer
look at each of these indicators will help demonstrate some of the more
pronounced impacts of the NWPR on foundational waters of this country
than was identified for the public in the NWPR and its supporting
documents. As explained in detail above, when a water falls outside the
scope of the Act, that means, among other things, that no federal water
quality standards will be established, and no federal permit will be
required to control the discharge of pollutants or fill into such
waters. And by virtue of the fact that the NWPR's scope means that for
many waters entities do not even need to seek a jurisdictional
determination, it is impossible to fully understand the scope of
degradation to foundational waters caused by the NWPR's definition.
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\35\ A jurisdictional determination is a written Corps
determination that a water is subject to regulatory jurisdiction
under section 404 of the Clean Water Act (33 U.S.C. 1344) or a
written determination that a water is subject to regulatory
jurisdiction under section 9 or 10 of the Rivers and Harbors Act of
1899 (33 U.S.C. 401 et seq.). Jurisdictional determinations are
identified as either preliminary or approved, and both types are
recorded in determinations through an internal regulatory management
database, called Operation and Maintenance Business Information
Link, Regulatory Module (ORM2). This database documents Department
of the Army authorizations under Clean Water Act section 404 and
Rivers and Harbors Act section 10, including permit application
processing and jurisdictional determinations. This database does not
include aquatic resources that are not associated with a
jurisdictional determination or alternatives to jurisdictional
determinations (such as delineation concurrences or ``No
jurisdictional determination required'' findings, where the Corps
finds that a jurisdictional determination is not needed for a
project), or permit request or resource impacts that are not
associated with a Corps permit or enforcement action. An approved
jurisdictional determination (AJD) is an official Corps document
stating the presence or absence of ``waters of the United States''
on a parcel or a written statement and map identifying the limits of
``waters of the United States'' on a parcel. A preliminary
jurisdictional determination (PJD) is a non-binding written
indication that there may be ``waters of the United States'' on a
parcel; an applicant can elect to use a PJD to voluntarily waive or
set aside questions regarding Clean Water Act jurisdiction over a
particular site and thus move forward assuming all waters will be
treated as jurisdictional without making a formal determination.
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Consistent with Executive Order 13990, EPA and Army staff have
reviewed jurisdictional determinations as recorded in the Corps'
internal regulatory management database, referred to as the ORM2
database (see supra note 30), to identify any noticeable trends in
jurisdictional determinations under the past recent rules defining
``waters of the United States.'' The agencies found within the AJDs
completed under the NWPR, the probability of finding resources to be
non-jurisdictional also increased precipitously. Of the 9,399 AJDs
completed by the Corps during the first twelve months in which the NWPR
was in effect,\36\ the agencies found approximately 75% of AJDs
completed had identified non-jurisdictional water resources and
approximately 25% of AJDs completed identified jurisdictional
waters.\37\ Conversely, when the 1986 regulations and applicable
guidance were in effect during the previous five years (including
following the 2019 recodification of those regulations), significantly
more jurisdictional waters were identified in AJDs than compared to the
first twelve months of the NWPR. During similar 1-year calendar
intervals when the 1986 regulations and applicable guidance were in
effect, approximately 27% to 45% of AJDs completed identified non-
jurisdictional aquatic resources, with percentages varying between each
of the different periods, and 55% to 72% of AJDs identified
jurisdictional resources.\38\
[[Page 69414]]
The change from a range of 27% to 45% non-jurisdictional AJD findings
prior to the NWPR to 75% non-jurisdictional findings following issuance
of the NWPR indicates that significantly fewer waters are protected by
the Clean Water Act under the NWPR (see Technical Support Document
section III.B.ii for additional discussion).
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\36\ These AJDs were completed by the Corps between the NWPR's
effective date of June 22, 2020 and June 21, 2021.
\37\ This excludes drylands and waters identified as being
jurisdictional only under section 10 of the Rivers and Harbors Act.
In addition, under the NWPR, a single AJD in the Corps' database can
include both affirmative and negative jurisdictional determinations.
Under prior regulatory regimes, the Corps' database was structured
such that a single AJD could be either affirmative, or negative, but
not both. To account for this change in the structure of the
database, a NWPR jurisdictional determination that includes both
affirmative and negative jurisdictional resources was normalized and
counted as two separate AJDs, one affirmative and one negative. The
total number of AJDs considered after this process was carried out
was 9,399. Prior to this normalization, the total number of AJDs
considered was 7,769. More details on this can be found in the
Technical Support Document section III.B.ii.
\38\ The time periods evaluated were June 22, 2016 to June 21,
2017; June 22, 2017 to June 21, 2018; and December 23, 2019 to June
21, 2020. The date ranges here constitute periods of time when the
1986 regulations (including the 2019 Repeal Rule's recodification of
those regulations) and applicable guidance were in effect
nationally. Because the proposed rule is marking a return to prior
longstanding practice, 2015 Clean Water Rule determinations were
left out of this analysis.
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When evaluating the effect of the NWPR on the number of
jurisdictional individual aquatic resources (as opposed to the AJDs
completed), the agencies found a similar significant reduction in
protections. Within the first twelve months of implementation of the
NWPR, the Corps documented the jurisdictional status of 48,313
individual aquatic resources or water features through AJDs completed
between June 22, 2020, and June 21, 2021; of these individual aquatic
resources, approximately 75% were found to be non-jurisdictional by the
Corps. More specifically, 70% of streams and wetlands evaluated were
found to be non-jurisdictional, including 11,044 ephemeral features
(mostly streams) and 15,675 wetlands that did not meet the NWPR's
revised adjacency criteria (and thus are non-jurisdictional under the
NWPR). Ditches were also frequently found to be non-jurisdictional
(4,706 individual exclusions), which is likely the result of the
narrowed definition of a relocated tributary under the NWPR. By
comparison, only 45% of aquatic resources were found to be non-
jurisdictional during similar year-long calendar intervals between 2016
and 2020 under the 1986 regulations implemented consistent with Supreme
Court case law.\39\ The agencies anticipate that this increase in non-
jurisdictional determinations, to a level of approximately 75% of water
bodies being non-jurisdictional under the NWPR as opposed to only 45%
under the prior regulations, would reduce the integrity of the nation's
waters.
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\39\ Based on the average annual percentage of non-
jurisdictional findings.
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Of particular concern to the agencies is the NWPR's
disproportionate effect on arid regions of the country, which are
dominated by ephemeral stream systems. The Corps' data show that in New
Mexico, of the 263 streams assessed via AJDs in the first twelve months
of implementation of the NWPR (i.e., between June 22, 2020, to June 21,
2021), 100% were found to be non-jurisdictional ephemeral
resources.\40\ In Arizona, of the 1,525 streams assessed in AJDs in the
first year of implementation of the NWPR, 1,518, or 99.5%, were found
to be non-jurisdictional ephemeral resources. While the Corps found
high percentages of streams in Arizona to be non-jurisdictional between
2016 and 2020, the NWPR resulted in a ten-fold increase in the total
number of individual resources documented as non-jurisdictional in
AJDs.
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\40\ These non-jurisdictional ephemeral resources are
predominantly ephemeral streams, but a small portion may be swales,
gullies, or pools.
---------------------------------------------------------------------------
For example, the average annual number of individual stream
resources considered in AJDs in Arizona between 2016-2020 was 147 (of
which 138 were determined non-jurisdictional), compared to 1,525 stream
reaches assessed under the NWPR (of which 1,521 were determined non-
jurisdictional accounting for all exclusions). The number of stream
reaches assessed in Arizona also dominated the number of evaluations
completed nationally under the NWPR, which is incongruent with the
geographic extent of water resources in this country. The number of
stream reaches assessed in Arizona constituted 9% of the total stream
reaches assessed nationally and 13% of the ephemeral reaches assessed
nationally over the first twelve months in which the NWPR was
implemented.\41\ This increase in the number of streams assessed and
found to be non-jurisdictional in Arizona under the NWPR highlights the
disproportionate impacts this rule had on water resource protection in
this state and in similar arid regions of this country.
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\41\ There were a total of 16,787 stream reaches assessed via
AJDs nationwide between June 22, 2020 and June 21, 2021.
---------------------------------------------------------------------------
The number of individual stream reaches considered under PJDs also
declined precipitously in these states under the NWPR, while many more
streams were evaluated and determined to be non-jurisdictional through
AJDs. As mentioned previously, project proponents who request an AJD
obtain an official Corps document stating the presence or absence of
``waters of the United States'' on a parcel or a written statement and
map identifying the limits of ``waters of the United States'' on a
parcel. In contrast, an applicant can elect to use a PJD to voluntarily
waive or set aside questions regarding Clean Water Act jurisdiction
over a particular site and thus move forward assuming all waters will
be treated as jurisdictional without making a formal determination.
There are time savings and sometimes cost savings associated with
requesting a PJD in lieu of an AJD. However, proportionally fewer PJDs
being requested under the NWPR indicate that fewer project proponents
are requesting that aquatic resources on their project site be treated
as if they are jurisdictional.
In Arizona, the annual average number of individual stream reaches
considered under PJDs and similar alternatives to AJDs between 2016 to
2020 was 941, while under the NWPR in 2020-2021 it was only 45.\42\
When looking at the total number of individual streams reaches over
time, under the NWPR Arizona experienced an approximate 95% decrease in
individual stream reaches being considered via PJDs and a 9-fold
increase in individual stream reaches being considered via AJDs,
compared to pre-2015 regulatory practice. Similar metrics for New
Mexico show an 84% decrease in individual streams being considered via
PJDs and a 28-fold increase in individual streams being considered via
AJDs under the NWPR. Based on averages for non-jurisdictional streams
from 2016-2020 compared to non-jurisdictional streams under the NWPR,
there has been a 10-fold increase in non-jurisdictional findings for
streams in Arizona and a 36-fold increase in non-jurisdictional
findings for streams in New Mexico following implementation of the
NWPR. Compounding resource losses, eliminating these streams from
jurisdiction under the NWPR also typically eliminated jurisdiction over
wetlands which otherwise might meet adjacency criteria.
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\42\ The AJD values associated with the NWPR fall outside of the
95% confidence interval calculated for annual data from 2016-2020.
Note that in New Mexico and Arizona, the 2015 Clean Water Rule was
never implemented due to litigation stays. The PJD values associated
with the NWPR do not fall outside of the 95% confidence interval
calculated for annual data from 2016-2020; this is likely a product
of scale. See the Technical Support Document section III.B.ii for
more analysis.
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The NWPR also significantly reduced the number of Clean Water Act
section 404 permits required for dredging and filling activity
nationwide. The Corps has identified at least 368 projects from June
22, 2020 to June 21, 2021 through its ORM2 database that would have
needed a Clean Water Act section 404 permit pre-NWPR, but no longer did
under the NWPR's definition of ``waters of the United States.'' \43\
Moreover, in comparing 2020-2021 to similar annual data from 2016 to
2020 from
[[Page 69415]]
implementation of the 1986 regulations consistent with Supreme Court
case law, there was on average an increase of over 100% in the number
of projects determined to not require section 404 permits under the
Clean Water Act due to activities not occurring in ``waters of the
United States'' or activities occurring in waters that were deemed no
longer ``waters of the United States'' due to the NWPR. The number of
projects that did not require a section 404 permit under the NWPR was
likely much greater than these numbers indicate because project
proponents did not need to notify the Corps if they had already
received an AJD that concluded waters in the review area were not
``waters of the United States,'' and because many project proponents
may not have sought a jurisdictional determination or applied for a
permit at all if they believed their aquatic resources were non-
jurisdictional under the NWPR. Many projects could have occurred
without consultation with the Corps due to the NWPR's narrow definition
of ``waters of the United States'' and expansive non-jurisdictional
categories. Therefore, while the Corps' ORM2 data shed light on the
trend and magnitude of impacts to the scope of jurisdiction under the
NWPR, it is fair to assume that these impacts are a significant
underestimate.\44\
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\43\ This tracking method only applies when 100% of jurisdiction
is lost under NWPR (i.e., if even 1 aquatic resource out of 100 that
is proposed to be impacted remains jurisdictional, this method is
not used). Additionally, this tracking method has not been
implemented uniformly across the United States, and is likely under-
representative even for those cases in which 100% of jurisdiction
was lost under the NWPR.
\44\ Requests for AJDs and the jurisdictional dispositions of
the aquatic resources evaluated as part of those AJDs are imperfect
measures of activities that might affect those jurisdictional or
non-jurisdictional aquatic resources. The AJD data in the Corps ORM2
database generally contain only records for situations in which
landowners or project proponents have requested jurisdictional
determinations from the Corps or that are associated with an
enforcement action, and thus do not represent all aquatic resources
that exist within the United States. The proportion and specific
types of aquatic resources evaluated for jurisdiction via AJDs
varies both geographically and also from year to year. In addition,
the ORM2 data collected from AJDs conducted under different
regulatory regimes have some metrics that are not directly
comparable. Notwithstanding these limitations, the volume of ORM2
data on AJDs and associated aquatic resources is quite large and is
tracked in a reasonably accurate fashion, and thus provides a
reasonable estimate of overall trends and conditions on the ground.
It represents the best data available to the agencies at this time.
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ii. States and Tribes Did Not Fill the Regulatory Gap Left by the NWPR
Some stakeholders have argued that the diminished scope of ``waters
of the United States'' would not necessarily reduce protections for
waters as a practical matter, because states, tribes, and local
entities may regulate discharges even in the absence of Clean Water Act
regulation. See section V.A.3.b of this preamble. This perspective is
consistent with the NWPR's emphasis that, in the face of a narrower
scope of ``waters of the United States,'' ``the controls that States,
Tribes, and local entities choose to exercise over their land and water
resources . . .'' would help to achieve the objective of the Act. 85 FR
22259, April 21, 2020. Yet while some states and tribes regulate
``waters of the state'' or ``waters of the tribe'' more broadly than
the federal government under their own laws, many newly non-
jurisdictional waters under the NWPR were in states and on tribal lands
that do not regulate waters beyond those covered by the Clean Water
Act. Under the NWPR, discharges into these waters could have occurred
without any restriction.
As discussed in the Economic Analysis for the Proposed Rule, many
states and tribes do not regulate waters more broadly than the Clean
Water Act requires. Economic Analysis, Chapter II; NWPR Economic
Analysis at 30-31. Contrary to the predictions made in the NWPR
Economic Analysis, during the year in which the NWPR was in effect, the
net change made by states was deregulatory in nature. Two states which
had previously protected state waters beyond the scope of ``waters of
the United States'' removed these expansive protections, whereas no
states that had previously lacked these broader protections established
them. See NWPR Economic Analysis at 39-41 (estimating that certain
states are likely to continue their current permitting practices for
dredged and fill material) and the Economic Analysis for the Proposed
Rule Chapter II (indicating that two of those states sought to reduce
the scope of state clean water protections after the NWPR was
finalized, and none of them sought to expand protections.).
The agencies understand that revising state regulations and/or laws
takes time and the agencies do not know how some states might have
responded if the NWPR had been in place for more than a year, but the
agencies have no basis to expect that more states that currently lack
protections beyond the NWPR federal floor would have established them.
Indeed, the External Environmental Economics Advisory Committee (E-
EEAC) has stated that the model that the NWPR used to forecast state
responses to that rule was overly optimistic with respect to the
likelihood that states would address a federal regulatory gap, in part
based on the agencies' failure to fully consider states' responses to
past changes to the definition of ``waters of the United States''
(i.e., only two states directly changed regulations in response to the
decision in SWANCC that the use of ``isolated'' non-navigable
intrastate ponds by migratory birds was not by itself a sufficient
basis for the exercise of federal authority under the Clean Water Act,
and the agencies' significant resulting change in implementation of the
Act). See E-EEAC Report on the Repeal of the Clean Water Rule and its
Replacement with the Navigable Waters Protection Rule to Define Waters
of the United States (WOTUS) 5-6, available at https://www.e-eeac.org/wotusreport.
The agencies are also not aware of any tribes that expanded their
clean water protections to compensate for a reduction in protections
under the NWPR. During the agencies' tribal consultation and
coordination for this rulemaking process, tribes overwhelmingly
indicated that they lack the independent resources and expertise to
protect their waters and therefore rely on Clean Water Act protections.
See section IV.C of this preamble and the Summary of Tribal
Consultation and Coordination, available in the docket for this
proposed rule. This feedback is consistent with the concerns expressed
during the NWPR rulemaking process. See, e.g., 85 FR 22336-22337, April
21, 2020 (``many Tribes may lack the capacity to create a tribal water
program under tribal law, to administer a program, or to expand
programs that currently exist. Other tribes may rely on the Federal
government for enforcement of water quality violations'').
Given the limited authority of many states and tribes to regulate
waters more broadly than the Federal government, the narrowing of
federal jurisdiction would mean that discharges into the newly non-
jurisdictional waters would in many cases no longer be subject to
regulation, including permitting processes and mitigation requirements
designed to protect the chemical, physical, and biological integrity of
the nation's waters. The agencies have heard concerns from a broad
array of stakeholders, including states, tribes, scientists, and non-
governmental organizations, that corroborated the agencies' data and
indicated that the NWPR's reduction in the jurisdictional scope of the
Clean Water Act would cause significant environmental harms. Ephemeral
streams and their associated wetlands, wetlands that do not meet the
NWPR's revised adjacency criteria, and other aquatic resources not
protected by the NWPR provide numerous ecosystem services. The absence
of protections for such resources and any subsequent unregulated and
unmitigated impacts to such resources would have caused cascading,
cumulative, and substantial downstream harm, including damage
[[Page 69416]]
connected to water supplies, water quality, flooding, drought, erosion,
and habitat integrity, thereby undermining the objective of the Clean
Water Act (see section V.A.2 of this preamble). See Pascua Yaqui v.
EPA, no. 4:20-cv-00266, slip op. at 9-10 (citing evidence that the
agencies and plaintiffs provided of a ``substantial reduction in waters
covered under the NWPR'' as demonstrating ``the possibility of serious
environmental harm'' that weighed in favor of vacating the rule.); see
also Navajo Nation v. Regan, no. 2:20-cv-00602, slip op. at 6-7 (citing
the same reduction particularly ```an increase in determinations by the
Corps that waters are non-jurisdictional,' including excluded ephemeral
resources, `and an increase in projects for which CWA Section 404
permits are no longer required,''' as weighing in favor of vacatur).
In conclusion, the agencies do not believe the NWPR is a suitable
alternative to the proposed rule because it failed to advance the
objective of the Act, including through its elimination of the
significant nexus standard and the absence of any alternative standard
that would protect the chemical, physical, and biological integrity of
the nation's waters; it is inconsistent with scientific information
about protecting water quality; its implementation proved confusing,
difficult, and often infeasible; and it drastically reduced the numbers
of waters protected by the Clean Water Act, including waters that
affect the integrity of downstream traditional navigable waters,
interstate waters, and the territorial seas.
C. Proposed Rule
The agencies are proposing to restore the longstanding, familiar
1986 regulations, with amendments to reflect the agencies'
determination of the statutory limits on the scope of the ``waters of
the United States'' informed by Supreme Court case law. Therefore, this
proposed rule retains the structure of the agencies' 1986 definition of
``waters of the United States,'' and the text of that definition where
revisions are not warranted. Continuity with the 1986 regulations will
minimize confusion and provide regulatory stability for the public, the
regulated community, and the agencies, while protecting the nation's
waters. Each aspect of the proposed rule will be discussed in more
detail below.
The implementation section V.D of this preamble identifies features
that the agencies have, as a matter of practice, generally not asserted
jurisdiction over and the agencies propose to continue implementing the
regulations consistent with that longstanding interpretation and
practice. In addition, the agencies note that Congress has exempted or
excluded certain discharges from the Clean Water Act or from specific
permitting requirements. The proposed rule also would not affect any of
the exemptions, including exemptions from section 404 permitting
requirements provided by section 404(f), such as those for normal
farming, ranching, and silviculture activities. 33 U.S.C. 1344(f); 40
CFR 232.3; 33 CFR 323.4. The proposed rule would not affect the
existing statutory or regulatory exemptions or exclusions from section
402 NPDES permitting requirements, such as for agricultural stormwater
discharges and return flows from irrigated agriculture, or the status
of water transfers. 33 U.S.C. 1342(l)(1), (l)(2); 33 U.S.C. 1362(14);
40 CFR 122.3(f), 122.2. In addition, where waters are covered by the
Clean Water Act, the agencies have adopted measures to simplify
compliance with the Act such as general permits and tools for
expediting the permitting process (e.g., mitigation banks, in-lieu fee
programs, and functional/conditional assessment tools). The agencies
intend to continue to develop general permits and simplified procedures
to ensure that projects, particularly those that offer environmental or
public benefits, can proceed with the necessary environmental
safeguards while minimizing permitting delays.
The agencies have highlighted areas throughout the proposal where
they are seeking comment on specific aspects of the revised definition
of ``waters of the United States'' and implementation of that
definition. The agencies are also generally seeking comment from the
public on all aspects of this proposal to support development of the
final rule.
1. Traditional Navigable Waters
The proposed rule retains the provision in the 1986 regulations
that defines ``waters of the United States'' to include ``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.'' 33 CFR
328.3(a)(1) (2014); 40 CFR 122.2 (2014); 40 CFR 230.3(s)(1) (2014).
Such waters are often referred to as ``traditional navigable waters.''
With respect to traditional navigable waters, the text of the 1986
regulations and the text of the NWPR are identical. The agencies are
not proposing to amend this longstanding text defining ``traditional
navigable waters.''
The NWPR maintained the categories of traditional navigable waters
and the territorial seas in the definition of ``waters of the United
States,'' but consolidated these two categories into a single paragraph
in the regulatory text in order to streamline the text. 85 FR 22280,
April 21, 2020. Because the 1986 regulations kept the traditional
navigable waters provisions and the territorial seas provisions
separate, this proposed rule does as well. The agencies are seeking
comment, however, on whether it would be useful to similarly streamline
the proposed rule by consolidating the traditional navigable waters,
interstate waters, and the territorial seas provisions into one
provision since under the 1986 regulations and the proposed rule the
jurisdictional status of the other categories of waters relies on their
connection to a traditional navigable water, interstate water, or the
territorial seas (and, where required, meeting either the relatively
permanent or the significant nexus standard). The agencies also seek
comment on whether consolidation would cause confusion regarding the
consistency of the proposed rule with the 1986 regulations, because
such a change would require corresponding changes to cross references
and the numbering of other provisions.
Supreme Court decisions have not questioned the inclusion of
traditional navigable waters in the definition of ``waters of the
United States.'' E.g., SWANCC, 531 U.S. 159, 172 (``[t]he term
`navigable' has at least the import of showing us what Congress had in
mind as its authority for enacting the CWA: Its traditional
jurisdiction over waters that were or had been navigable in fact or
which could reasonably be so made.'').
The agencies also are making no changes to their longstanding
guidance on traditional navigable waters for purposes of Clean Water
Act jurisdiction. Waters will continue to be considered traditional
navigable waters, and thus jurisdictional under this provision of the
proposed rule, if they:
Are subject to section 9 or 10 of the Rivers and Harbors
Act of 1899;
have been determined by a federal court to be navigable-
in-fact under federal law;
are waters currently being used for commercial navigation,
including commercial waterborne recreation (for example, boat rentals,
guided fishing trips, or water ski tournaments);
have historically been used for commercial navigation,
including commercial waterborne recreation; or
[[Page 69417]]
are susceptible to being used in the future for commercial
navigation, including commercial waterborne recreation.
See ``U.S. Army Corps of Engineers Jurisdictional Determination
Form Instructional Guidebook, Appendix D, `Traditional Navigable
Waters''' (hereinafter, ``Appendix D''). The NWPR also continued use of
Appendix D, stating ``because the agencies have not modified the
definition of `traditional navigable waters,' the agencies are
retaining Appendix D to help inform implementation of that provision of
this final rule.'' 85 FR 22281, April 21, 2020.\45\ However, after the
NWPR was promulgated the agencies issued a coordination memo that
created some confusion. ``U.S. Environmental Protection Agency (EPA)
and U.S. Army Corps of Engineers (Corps) Process for Elevating and
Coordinating Specific Draft Determinations under the Clean Water Act
(CWA)'' (hereinafter ``TNW Coordination Memo''). The memorandum
established an implementation process by which the agencies elevate to
their headquarters for coordination certain case-specific and stand-
alone Clean Water Act traditional navigable water determinations
concluding a water is ``susceptible to use'' solely based on evidence
of recreation-based commerce. Id. On November 17, 2021, the TNW
Coordination Memo was rescinded. Regardless of any confusion caused by
the TNW Coordination Memo, the Supreme Court has been clear that
``[e]vidence of recreational use, depending on its nature, may bear
upon susceptibility of commercial use.'' PPL Montana v. Montana, 565
U.S. 576, 600-01 (2012) (in the context of navigability at the time of
statehood and quoting Appalachian Elec. Power Co., 311 U.S. at 416
(``[P]ersonal or private use by boats demonstrates the availability of
the stream for the simpler types of commercial navigation''); Utah, 283
U.S. at 82 (fact that actual use has ``been more of a private nature
than of a public, commercial sort . . . cannot be regarded as
controlling'')).
---------------------------------------------------------------------------
\45\ Appendix D is an attachment to the U.S. Army Corps of
Engineers Jurisdictional Determination Form Instructional Guidebook
that was published in 2007 concurrently with the 2007 Rapanos
Guidance, available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2316. The Rapanos Guidance was
updated in 2008, but Appendix D has remained unchanged since 2007.
Appendix D notes (at page 1) that ``EPA and the Corps are providing
this guidance on determining whether a water is a `traditional
navigable water' for purposes of the Rapanos Guidance, the Clean
Water Act (CWA), and the agencies' CWA implementing regulations.''
Appendix D operates in tandem with the Rapanos Guidance, along with
other agency resources, to assist in guiding field implementation of
Clean Water Act jurisdictional determinations.
---------------------------------------------------------------------------
2. Interstate Waters
The proposed rule would restore the longstanding categorical
protections for interstate waters, regardless of their navigability,
that were established by the earliest predecessors to the 1972 Clean
Water Act and remained in place until the promulgation of the NWPR.
Interstate waters are waters of the several states and therefore
unambiguously ``waters of the United States.'' Categorical protection
of interstate waters is the interpretation of the Clean Water Act that
is most consistent with the text of the statute, including section
303(a), its purpose and history, Supreme Court case law, and the
agencies' charge to implement a ``comprehensive regulatory program''
that protects the chemical, physical, and biological integrity of the
nation's waters.
Until 1972, the predecessors of the Clean Water Act explicitly
protected interstate waters independent of their navigability. The 1948
Water Pollution Control Act declared that the ``pollution of interstate
waters'' and their tributaries is ``a public nuisance and subject to
abatement.'' 33 U.S.C. 466a(d)(1) (1952) (codifying Pub. L. 80-845
section 2(d)(1), 62 Stat. 1156 (1948)). Interstate waters were defined
without reference to navigability: ``all rivers, lakes, and other
waters that flow across, or form a part of, State boundaries.'' 33
U.S.C. 466i(e) (1952) (codifying Pub. L. 80-845 section 10(e), 62 Stat.
1161 (1948)).
In 1961, Congress broadened the 1948 statute and made the pollution
of ``interstate or navigable waters'' subject to abatement, retaining
the definition of ``interstate waters.'' 33 U.S.C. 466g(a) (1964)
(codifying Pub. L. 87-88 section 8(a), 75 Stat. 204, 208 (1961)). In
1965, Congress required states to develop water quality standards for
``interstate waters or portions thereof within such State.'' 33 U.S.C.
1160(c)(1) (1970) (codifying Pub. L. 89-234 section 5, 79 Stat. 903,
907 (1965)); see also 33 U.S.C. 1173(e) (1970) (retaining definition of
``interstate waters''). In the 1972 Act, Congress abandoned the
``abatement'' approach initiated in the 1948 statute in favor of a
focus on permitting for discharges of pollutants.
The NWPR asserted that Congress' replacement of the term
``navigable or interstate waters'' with ``navigable waters'' in 1972
was an ``express rejection'' of the regulation of interstate waters as
an independent category, reflecting Congress' intent to protect
interstate waters only to the extent that they are navigable. 85 FR
22583, April 21, 2020. In support of its rationale, the NWPR cited the
order of the U.S. District Court for the Southern District of Georgia
remanding the 2015 Clean Water Rule. Id.; citing Georgia v. Wheeler,
418 F. Supp. 3d 1336 (S.D. Ga. 2019). That order found that the
categorical inclusion of interstate waters exceeds the agencies'
authority under the Clean Water Act because it ``reads the term
navigability out of the CWA,'' and would assert jurisdiction over
waters that are not navigable-in-fact and otherwise have no significant
nexus to any other navigable-in-fact water. Id. at 1358-59. The court
also found the standard overly broad because it would result in Clean
Water Act jurisdiction over tributaries, adjacent waters, and case-by-
case waters based on their relationship to non-navigable interstate
waters. Id. at 1359-60.
The agencies view the interpretation of the agencies' authority
over interstate waters articulated in the NWPR and in Georgia v.
Wheeler as inconsistent with both the text and the history of the Clean
Water Act, as well as Supreme Court case law. While the term
``navigable waters'' is ambiguous in some respects, interstate waters
are waters that are clearly covered by the plain language of the
definition of ``navigable waters.'' Congress defined ``navigable
waters'' to mean ``the waters of the United States, including the
territorial seas.'' The Supreme Court has recognized that ``the power
conferred by the Commerce Clause [is] broad enough to permit
congressional regulation of activities causing air or water pollution,
or other environmental hazards that may have effects in more than one
State.'' Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.
264, 282 (1981). Interstate waters are, by their very nature, waters of
the ``several States,'' U.S. Const. section 8, and, consequently,
waters ``of the United States.'' The Clean Water Act reflects Congress'
recognition that the degradation of water resources in one state may
cause significant harms in states other than that in which the
pollution occurs.
In addition, the text of the 1972 Act specifically addresses
``interstate waters'' regardless of their connection to navigability.
The 1972 statute retains the term ``interstate waters'' in 33 U.S.C.
1313(a), a provision added in 1972, which provides that pre-existing
water quality standards for ``interstate waters'' remain in effect
unless EPA determined that they were inconsistent with any applicable
requirements of the pre-1972 version of the Act. That plain language is
a clear indication that Congress
[[Page 69418]]
intended the agencies to continue to protect the water quality of
interstate waters without reference to their navigability. Excluding
``interstate waters'' as an independent category of Clean Water Act
jurisdiction disregards the plain language of section 303(a).
The Supreme Court has concluded that the 1972 amendments ``were not
merely another law `touching interstate waters,' '' but rather
``occupied the field through the establishment of a comprehensive
regulatory program supervised by an expert administrative agency.''
City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981). Thus, the 1972
amendments superseded the federal common law of nuisance as a means to
protect interstate waters in favor of a statutory ``all-encompassing
program of water pollution regulation,'' id. at 318, and they did not
curtail the scope of protected waters.
Even if the text and history of the statute and Supreme Court case
law interpreting the Act do not unambiguously resolve the issue, the
situation addressed by the Supreme Court in the City of Milwaukee cases
highlights the reasonableness of the agency's interpretation that the
Clean Water Act protects interstate waters. The City of Milwaukee
litigation involved alleged discharges of inadequately treated sewage
from Milwaukee, Wisconsin sewer systems directly into Lake Michigan,
which also borders Illinois. As the Supreme Court noted, prior to
passage of the Clean Water Act, these discharges would have had to be
resolved through litigation, in which the courts must apply ``often
vague and indeterminate nuisance concepts and maxims of equity
jurisprudence.'' Id. at 317. The Clean Water Act, however, replaced
this unpredictable and inefficient approach with ``a comprehensive
regulatory program supervised by an expert administrative agency.'' Id.
The Court in Arkansas v. Oklahoma also stated in the context of an
NPDES permit for a discharge of pollutants to interstate waters that
while the Clean Water Act may place some limits on downstream states'
participation in the permitting process, those limits ``do not in any
way constrain the EPA's authority to require a point source to comply
with downstream water quality standards.'' 503 U.S. at 106.
The potential for interstate harm, and the consequent need for
federal regulation, is particularly clear with respect to water bodies
that span more than one state. The alternative interpretation would
leave interstate waters that do not fall within any other provisions in
the definition of ``waters of the United States'' without federal
protection and parties in different states to resolve concerns about
upstream discharges in non-jurisdictional waters through litigation
using ``often vague and indeterminate nuisance concepts and maxims of
equity jurisprudence.'' City of Milwaukee, 451 U.S. at 317; 85 FR
22286, April 21, 2020. Restoration of longstanding protections for
interstate waters, regardless of whether they are navigable-in-fact,
would enable the agencies to efficiently and effectively address
interstate water quality issues. The agencies interpret interstate
waters to encompass all waters that Congress has sought to protect
since 1948: all rivers, lakes, and other waters that flow across, or
form a part of, state boundaries. Pub. L. 80-845, sec. 10, 62 Stat.
1155, at 1161 (1948). These waters need not meet the relatively
permanent standard or significant nexus standard. See Technical Support
Document section I.B. for further discussion of interstate waters.
Interstate waters may be streams, lakes or ponds, or wetlands.
Under this provision of the proposed rule, consistent with the pre-2015
regulatory regime, the agencies would consider lakes, ponds, and
similar lentic (or still) water features, as well as wetlands, crossing
state boundaries jurisdictional as interstate waters in their entirety.
For streams and rivers, including impoundments, the agencies would
determine the upstream and downstream extent of the stream or river
crossing a state boundary or serving as a state boundary that should be
considered the ``interstate water.'' One method of determining the
extent of a riverine ``interstate water'' is the use of stream order.
Stream order is a common, longstanding scientific concept of assigning
whole numbers to indicate the branches of a stream network. Under this
method, for rivers and streams the ``interstate water'' would extend
upstream and downstream of the state boundary for the entire length
that the water is of the same stream order. For interstate waters that
are lakes and ponds or wetlands, the entire lake, pond, or wetland
could be considered the interstate water through the entirety of its
delineated extent. The agencies are requesting comment on this approach
or others for implementing the interstate waters provision of the
proposed rule. For instance, if a water serves as the state boundary,
the entire length of the river that serves as the boundary could be
considered the appropriate extent of the interstate water.
The agencies are seeking comment on whether interstate waters
should encompass waters that flow across, or form a part of, boundaries
of federally recognized tribes because these waters flow across, or
form a part of, state boundaries. See Public Law 80-845, sec. 10, 62
Stat. 1155, at 1161 (1948). In comments submitted to the agencies as
part of the tribal consultation and coordination process for this
proposed rule, several tribes and tribal organizations stated that
interstate waters should include waters that border upon or traverse
tribal lands, both between and from state to tribe (or vice versa) and
between and from one tribe to another (in instances where tribal lands
are adjacent to each other). The agencies are also interested in
comments on whether and how to identify what constitutes a tribal
boundary for purposes of interstate waters under the Clean Water Act,
for example, boundaries associated with the term ``Indian country'' as
defined at 18 U.S.C. 1151 or reservation boundaries.
3. Other Waters
The agencies are proposing to retain the ``other waters'' category
from the 1986 regulations in the definition of ``waters of the United
States,'' but with changes informed by relevant Supreme Court
precedent. Under the 1986 regulations, ``other waters'' (such as
intrastate rivers, lakes, and wetlands that are not otherwise
jurisdictional under other sections of the rule) could be determined to
be jurisdictional if the use, degradation, or destruction of the water
could affect interstate or foreign commerce. The proposed rule amends
the 1986 regulations to delete all of the provisions referring to
authority over activities that ``could affect interstate or foreign
commerce'' and replace them with the relatively permanent and
significant nexus standards the agencies have developed based on their
best judgment and relevant Supreme Court case law. The proposed rule
provides that ``other waters'' meet the relatively permanent standard
if they are relatively permanent, standing or continuously flowing
bodies of water with a continuous surface connection to a traditional
navigable water, interstate water, or the territorial seas. The
proposed rule also provides that ``other waters'' meet the significant
nexus standard if they, either alone or in combination with similarly
situated waters in the region, significantly affect the chemical,
physical, or biological integrity of a traditional navigable water,
interstate water, or the territorial seas. Thus, the proposed rule
would provide for case-specific analysis of waters not addressed by any
other provision of the definition to determine whether they are
``waters of the United
[[Page 69419]]
States'' under the relatively permanent or significant nexus standards.
In light of agency guidance discussed below, the agencies have not in
practice asserted jurisdiction over ``other waters'' based on the 1986
regulations' provision since SWANCC. Section V.D of this preamble
solicits comment on this practice and other implementation approaches
for this provision of the proposed rule.
The text of the 1986 regulations reflected the agencies'
interpretation at the time, based primarily on the legislative history
of the Act, that the jurisdiction of the Clean Water Act extended to
the maximum extent permissible under the Commerce Clause of the
Constitution. SWANCC did not invalidate the 1986 regulations' ``other
waters'' provision or any other parts of the 1986 regulations'
definition of ``waters of the United States.'' Based on that case and
subsequent Supreme Court decisions, the agencies conclude that
asserting jurisdiction over non-navigable, intrastate ``other waters''
based solely on whether the use, degradation, or destruction of the
water could affect interstate or foreign commerce pushes the scope of
the Clean Water Act beyond the limitations intended by Congress. The
proposal is consistent with many of the concerns the agencies
identified in guidance issued in 2003 (discussed further below). In
addition, the proposed rule reflects consideration of the principles
the NWPR identified as foundational to the Court's opinion in SWANCC.
See 85 FR 22265, April 21, 2020 (``the reasoning in the SWANCC decision
stands for key principles related to federalism and the balancing of
the traditional power of States to regulate land and water resources
within their borders with the need for national water quality
regulation.'').
The proposed rule would replace the interstate commerce test with
the relatively permanent and significant nexus standards because, as
discussed in section V.A of this preamble, those standards are
consistent with the text of the Clean Water Act, advance the objective
of the Act, and are consistent with relevant decisions of the Supreme
Court. Waters that do not fall within one of the more specific
categories identified in the proposed rule may still meet either the
relatively permanent or significant nexus standard. For example, a lake
that is not a tributary and is not a wetland may have a continuous
surface connection to a traditional navigable water, and the ``other
waters'' provision as proposed would allow for such a water to be
evaluated for jurisdiction. This is consistent with Supreme Court
precedent. As the Rapanos plurality concluded, ``relatively permanent,
standing or continuously flowing bodies of water,'' 547 U.S. at 739,
that are connected to traditional navigable waters, id. at 742, and
waters with a ``continuous surface connection'' to such water bodies,
id. (Scalia, J., plurality opinion), are ``waters of the United
States'' under the relatively permanent standard. And as Justice
Kennedy concluded, SWANCC held that ``to constitute `navigable waters'
under the Act, a water or wetland must possess a `significant nexus' to
waters that are or were navigable in fact or that could reasonably be
so made.'' Id. at 759 (citing SWANCC, 531 U.S. at 167, 172).
The agencies note that in 2003, they issued a Joint Memorandum
regarding SWANCC. See 68 FR 1991, 1995 (January 15, 2003) (``SWANCC
Guidance''). In the guidance, the agencies stated that in view of
SWANCC, neither agency would assert Clean Water Act jurisdiction over
isolated waters that are both intrastate and non-navigable, where the
sole basis available for asserting Clean Water Act jurisdiction rests
on the factors listed in the ``Migratory Bird Rule.'' In the preamble
to the 1986 regulations, the agencies had stated that ``waters of the
United States'' include waters ``[w]hich are or would be used as
habitat by birds protected by Migratory Bird Treaties,'' as well as
waters ``[w]hich are or would be used as habitat by other migratory
birds which cross state lines.'' 51 FR 41216-17 (November 13, 1986).
That preamble language became known as the ``Migratory Bird Rule.'' In
addition to ending use of the ``Migratory Bird Rule,'' the SWANCC
Guidance also stated that, cognizant of the Supreme Court's direction
in SWANCC, with respect to all waters subject to the ``other waters''
provision, ``field staff should seek formal project-specific
Headquarters approval prior to asserting jurisdiction over such waters,
including permitting and enforcement actions.'' 68 FR 1996 (January 15,
2003). The Rapanos Guidance ``[did] not address SWANCC nor does it
affect the Joint Memorandum regarding that decision issued by the
General Counsels of EPA and the Department of the Army on January 10,
2003.'' Rapanos Guidance at 4 n.19. As a result of the SWANCC
Guidance's directive to field staff, field staff have not in practice
sought Headquarters approval and the agencies have not asserted
jurisdiction over waters based on the ``other waters'' provision of the
1986 regulations since then.
The ``other waters'' provision in the 1986 regulations contains a
non-exclusive list of water types that could be jurisdictional under
this provision if they are not jurisdictional under the other
provisions of the definition: ``[a]ll other waters such as intrastate
lakes, rivers, streams (including intermittent streams), mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds.'' The agencies are not proposing to change
this language. Rather, the agencies are proposing to replace the
Commerce Clause-based standard for determining jurisdiction with the
relatively permanent and significant nexus standards. It is important
to note that the list of water types does not reflect a conclusion that
these waters are necessarily jurisdictional; rather the list is simply
meant to inform the public of types of waters that can be
jurisdictional if they meet the requisite test (under the proposal,
either the relatively permanent standard or the significant nexus
standards), even though they do not fall within the other provisions of
the proposed rule. The list led to confusion in the past when it was
sometimes incorrectly read as an exclusive list. There has also been
confusion about some of the listed water types; for example, the list
includes intermittent streams and was meant to allow for jurisdictional
evaluation of intermittent streams that do not fall within the other
categories (such as intermittent streams that are not tributaries to a
traditional navigable water, interstate water, or territorial sea but
which under the 1986 regulations could affect interstate commerce and
under the proposed rule could meet the significant nexus standard) and
not to imply that intermittent streams were not jurisdictional under
the tributary provision of the 1986 regulations.
The agencies are seeking comment on whether it would be helpful to
the public to delete the list of water types or to otherwise provide
more clarity to the list of water types in the regulation. For
instance, the agencies could delete the list of water types in the
``other waters'' provision of the 1986 regulations and simply state in
the rule that the ``other waters'' category includes ``all other
intrastate waters (including wetlands)'' that meet either the
relatively permanent standard or the significant nexus standard.
However, removing the list of water types would not be meant to imply
that any of the water types listed in the 1986 regulations are not
subject to jurisdiction under this provision of the proposed rule if
they meet either the relatively permanent standard or the significant
nexus standard. The agencies
[[Page 69420]]
also solicit comment on whether the final rule should add or delete
particular water types from the list.
In the NWPR, the category of waters most analogous to the ``other
waters'' category was the category for lakes, ponds, and impoundments
of jurisdictional waters that met certain tests. Because those
limitations on the scope of jurisdiction were not related to the
effects of other waters on the water quality of foundational waters,
the agencies are proposing an approach based in the relatively
permanent and significant nexus standards.
4. Impoundments
The proposed rule retains the provision in the 1986 regulations
that defines ``waters of the United States'' to include impoundments of
``waters of the United States'' with one change. Waters that are
determined to be jurisdictional under the ``other waters'' provision
would be excluded from this provision under the proposed rule.
The Supreme Court has confirmed that damming or impounding a
``water of the United States'' does not make the water non-
jurisdictional. See S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 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.''). While the definition of ``waters of the United States'' was
not before the Court in S.D. Warren, the Court's conclusion supports
the agencies' longstanding interpretation of the Clean Water Act that a
``water of the United States'' remains a ``water of the United States''
even if it is impounded, as reflected in the 1986 regulations and
continued in this proposal. The Ninth Circuit has similarly found that
``it is doubtful that a mere man-made diversion would have turned what
was part of the waters of the United States into something else and,
thus, eliminated it from national concern.'' United States v. Moses,
496 F.3d 984, 988 (9th Cir. 2007), cert. denied, 554 U.S. 918 (2008).
The agencies are proposing to exclude impoundments of waters that
are determined to be jurisdictional under the ``other waters''
provision. This proposal is practical: as discussed in sections V.C.5
and 7 below, the agencies are proposing that the ``tributaries''
category not include tributaries of ``other waters'' and the adjacent
wetlands category not include wetlands adjacent to ``other waters.''
This change reflects the agencies' consideration of the jurisdictional
concerns and limitations of SWANCC and Rapanos. The agencies have
concluded that a provision that authorizes consideration of
jurisdiction over tributaries that meet the relatively permanent or
significant nexus standard when assessed based simply on connections to
``other waters'' would have too tenuous a connection to traditional
navigable waters, interstate waters, or the territorial seas. The
proposed rule retains the provisions of the 1986 regulations under
which tributaries and adjacent wetlands to impoundments may be
determined to be jurisdictional. The proposed change ensures that the
impoundment of an ``other water'' does not change the jurisdictional
status of tributaries or adjacent wetlands to it. This change reflects
the agencies' consideration of the jurisdictional concerns and
limitations of SWANCC and Rapanos. To be clear, an impoundment of an
``other water'' could still meet the relatively permanent standard or
the significant nexus standard under the ``other waters'' provision;
the impoundment simply would not retain its jurisdictional status under
this impoundment provision.
Impoundments of jurisdictional waters were not addressed in the
Rapanos decision and thus were not directly addressed by the agencies
in the Rapanos Guidance. Under the proposed rule and pre-2015 practice,
impounding waters can create traditional navigable waters, even if the
waters that are impounded are not themselves traditional navigable
waters. In addition, under the proposed rule impounding a water can
create a relatively permanent water, even if the water that is being
impounded is a non-relatively permanent water. For purposes of
implementation, relatively permanent waters include waters where water
is standing or ponded at least seasonally.
In the NWPR, the agencies changed their longstanding position that
impoundments of jurisdictional waters remain jurisdictional and added
new requirements for impoundments of jurisdictional waters to be
considered ``waters of the United States.'' Specifically, under the
NWPR, impoundments of jurisdictional waters had to either contribute
surface water flow to a downstream jurisdictional water in a typical
year or be inundated by flooding from a jurisdictional water in a
typical year. In support of the NWPR's position that impounding a
jurisdictional water could potentially create a non-jurisdictional
feature, the agencies stated that ``the agencies are aware of no
decision of the Supreme Court that has ruled that the indelibly
navigable principle applies to all waters of the United States,
although the principle does apply to certain traditional navigable
waters or any decision that would prohibit the United States from
consenting to defederalization of a water by a lawfully issued section
404 permit.'' 85 FR 22303, April 21, 2020.
The agencies disagree that jurisdiction over impoundments of
``waters of the United States'' reflects application of the principle
of indelible navigability. The indelible navigation principle is
applicable to Rivers and Harbors Act jurisdiction, not Clean Water Act
jurisdiction, and holds that sudden or man-made changes to a water body
or its navigable capacity do not alter the extent of Rivers and Harbors
Act jurisdiction, and thus the area occupied or formerly occupied by
that water body will always be subject to Rivers and Harbors Act
jurisdiction even when the area is no longer a water.\46\ The agencies
are not aware of any statement relying on that concept as the
justification for its longstanding position that impoundments of
``waters of the United States'' remain ``waters of the United States''
for Clean Water Act purposes, absent a legally authorized change of
jurisdictional status under a Clean Water Act permit (such as a section
404 permit authorizing creation of an excluded waste treatment system).
---------------------------------------------------------------------------
\46\ This principle has been incorporated in the Corps'
definition of ``navigable waters of the United States'' for purposes
of the Rivers and Harbors Act: ``A determination of navigability,
once made, applies laterally over the entire surface of the water
body, and is not extinguished by later actions or events which may
impede or destroy navigable capacity.'' 33 CFR 329.4. The rule is
expanded upon in 33 CFR 329.9 and 329.13: ``an area will remain
`navigable in law,' even though no longer covered with water,
whenever the change has occurred suddenly, or was caused by
artificial forces intended to produce that change.'' EPA has no such
regulations for purposes of implementing the Clean Water Act.
---------------------------------------------------------------------------
In departing from the agencies' longstanding position regarding the
jurisdictional status of impoundments, the NWPR also stated that the
agencies were unaware of any judicial decision ``that would prohibit
the United States from consenting to defederalization of a water by a
lawfully issued section 404 permit.'' 85 FR 22303, April 21, 2020. As
noted above, the agencies recognize that a lawfully issued section 404
permit, with any accompanying appropriate and practicable mitigation,
can authorize filling of a ``water of the United States'' such that it
is no longer a ``water of the United States.'' The ``impoundment''
provision of the definition of ``waters of the United States'' simply
retains jurisdiction over ``waters of the United States'' that are
naturally or artificially impounded. If the impoundment occurs pursuant
to a section 404 permit and the permit
[[Page 69421]]
authorizes the removal of the resulting impoundment from jurisdiction,
such as in the case of the creation of a waste treatment system
excluded from the ``waters of the United States'' by regulation, the
impoundment would no longer be jurisdictional pursuant to this
provision. On the flip side, an impoundment of a water that is not a
``water of the United States'' could become jurisdictional if, for
example, the impounded water becomes navigable-in-fact and is thus
covered under the traditional navigable waters provision of the rule.
Asserting Clean Water Act jurisdiction over impoundments also
aligns with the scientific literature, as well as the agencies'
scientific and technical expertise and experience, which confirm that
impoundments have chemical, physical, and biological effects on
downstream waters through surface or subsurface hydrologic connections.
See Technical Support Document section IV.C. Indeed, berms, dikes, and
similar features used to create impoundments typically do not block all
water flow. Even dams, which are specifically designed and constructed
to impound large amounts of water effectively and safely, generally do
not prevent all water flow, but rather allow seepage under the
foundation of the dam and through the dam itself. See, e.g.,
International Atomic Energy Agency (``All dams are designed to lose
some water through seepage.''); U.S. Bureau of Reclamation (``All dams
seep, but the key is to control the seepage through properly designed
and constructed filters and drains.''); Federal Energy Regulatory
Commission 2005 (``Seepage through a dam or through the foundations or
abutments of dams is a normal condition.''). Further, as an agency with
expertise and responsibilities in engineering and public works, the
Corps extensively studies water retention structures like berms,
levees, and earth and rock-fill dams. The agency has found that all
water retention structures are subject to seepage through their
foundations and abutments. See, e.g., U.S. Army Corps of Engineers 1992
at 1-1; U.S. Army Corps of Engineers 1993 at 1-1; U.S. Army Corps of
Engineers 2004 at 6-1.
That said, there may be circumstances where an impoundment
authorized under a section 404 permit completely and permanently severs
surface or subsurface hydrologic connections. See ``U.S. Army Corps of
Engineers Jurisdictional Determination Form Instructional Guidebook,''
at 58. The agencies are considering whether there are certain types of
impoundments--such as the example in the preceding sentence--that
should be assessed under the ``other waters'' provision of the
regulation. The agencies are seeking comment on this approach and
accompanying implementation issues.
5. Tributaries
The proposed rule retains the tributary provision of the 1986
regulations, updated to reflect consideration of relevant Supreme Court
decisions. The 1986 regulations defined ``waters of the United States''
to include tributaries of traditional navigable waters, interstate
waters, ``other waters,'' or impoundments. The proposed rule defines
``waters of the United States'' to include tributaries of traditional
navigable waters, interstate waters, impoundments, or the territorial
seas if the tributary meets either the relatively permanent standard or
the significant nexus standard. The agencies solicit comment on all
aspects of the tributary provision in this proposed rule.
The 1986 regulations include tributaries to interstate waters.
Since interstate waters, like traditional navigable waters and the
territorial seas, are foundational waters protected by the Clean Water
Act, the agencies are proposing to protect them in a similar manner by
providing that tributaries that meet either the relatively permanent
standard or the significant nexus standard in relation to an interstate
water are jurisdictional under the proposed rule. Ample scientific
information makes clear that the health and productivity of rivers and
lakes, including interstate waters, depends upon the functions provided
by upstream tributaries. As discussed in section V.A.2.c of this
preamble, tributaries, adjacent wetlands, and ``other waters'' that are
relatively permanent or that have a significant nexus to downstream
waters, including interstate waters, have important beneficial effects
on those waters, and polluting or destroying these tributaries,
adjacent wetlands, or ``other waters'' can harm downstream
jurisdictional waters.
The agencies are proposing to delete the cross reference to ``other
waters'' as a water to which tributaries may connect to be determined
``waters of the United States.'' This change reflects the agencies'
consideration of the jurisdictional concerns and limitations of SWANCC
and Rapanos. The agencies have concluded that a provision that
authorizes consideration of jurisdiction over tributaries that meet the
relatively permanent or significant nexus standard when assessed based
simply on connections to ``other waters'' would have too tenuous a
connection to traditional navigable waters, interstate waters, or the
territorial seas. Rather, any such streams that are tributaries to
jurisdictional ``other waters'' could be assessed themselves under the
``other waters'' category to determine if they meet the relatively
permanent or significant nexus standard. Thus, a tributary to, for
example, a lake that meets the significant nexus standard under the
``other waters'' provision could not be determined to be jurisdictional
simply because it significantly affects the physical integrity of the
lake; rather, the tributary would need to be assessed under the ``other
waters'' provision for whether it significantly affects a traditional
navigable water, interstate water, or the territorial seas.
Additionally, the agencies are proposing to add the territorial
seas to the list of waters to which tributaries may connect to
constitute a jurisdictional tributary because the territorial seas are
explicitly protected by the Clean Water Act and are a type of
traditional navigable water. The agencies are unaware of a legal basis
for the 1986 regulation's failure to include the term ``territorial
seas'' in the original tributaries provision of the rule. The proposed
rule clarifies that tributaries to the territorial seas where they meet
either the relatively permanent standard or the significant nexus
standard fall within the definition of ``waters of the United States.''
The territorial seas are explicitly covered by the Clean Water Act and
they are also traditional navigable waters, so it is reasonable to
protect tributaries to the territorial seas that meet either the
relatively permanent standard or the significant nexus standard for the
same reasons as tributaries to traditional navigable waters are
covered.
Finally, the agencies are retaining the 1986 regulations' coverage
of tributaries to impoundments, updated to include the requirement that
the tributaries meet either the relatively permanent or significant
nexus standard. As discussed above, the agencies' longstanding
interpretation of the Clean Water Act is that a ``water of the United
States'' remains a ``water of the United States'' even if it is
impounded. Since the impoundment does not ``defederalize'' the ``water
of the United States,'' see S.D. Warren at 379 n. 5, the agencies
similarly interpret the Clean Water Act to continue to protect
tributaries that fall within the tributary provision of the proposed
rule upstream from the jurisdictional impoundment.
The agencies' longstanding interpretation of tributary for purposes
[[Page 69422]]
of Clean Water Act jurisdiction includes not only rivers and streams,
but also lakes and ponds that flow directly or indirectly to downstream
traditional navigable waters, interstate waters, the territorial seas,
or impoundments of jurisdictional waters. See ``U.S. Army Corps of
Engineers Jurisdictional Determination Form Instructional Guidebook,''
at 8, 9. They may be at the headwaters of the tributary network (e.g.,
a lake with no stream inlets that has an outlet to the tributary
network) or farther downstream from the headwaters (e.g., a lake with
both a stream inlet and a stream outlet to the tributary network). Once
a water is determined to be a tributary, under the proposed rule the
tributary must meet either the relatively permanent or significant
nexus standards to be jurisdictional. Implementation of those standards
is addressed in section V.D of this preamble.
Finally, the 1986 regulations do not contain a definition of
tributary, and the agencies are not proposing a definition in this
rule. However, the agencies have decades of experience implementing the
1986 regulations. The agencies' longstanding interpretation of
tributary for purposes of the definition of ``waters of the United
States'' includes natural, man-altered, or man-made water bodies that
flow directly or indirectly into a traditional navigable water,
interstate water, or the territorial seas. See Rapanos Guidance at 6.
Given the extensive human modification of watercourses and hydrologic
systems throughout the country, it is often difficult to distinguish
between natural watercourses and watercourses that are wholly or partly
manmade or man-altered. Because natural, man-altered, and manmade
tributaries provide many of the same functions, especially as conduits
for the movement of water and pollutants to other tributaries or
directly to traditional navigable waters, interstate waters, or the
territorial seas, the agencies have interpreted the 1986 regulations to
cover such tributaries. The OHWM, a term unchanged since 1977, see 41
FR 37144 (July 19, 1977); and 33 CFR 323.3(c) (1978), defines the
lateral limits of jurisdiction in non-tidal waters, provided the limits
of jurisdiction are not extended by adjacent wetlands.
The agencies are proposing a different approach to tributaries than
the NWPR's interpretation of that term. The NWPR defined ``tributary''
as a river, stream, or similar naturally occurring surface water
channel that contributes surface water flow to a territorial sea or
traditional navigable water in a typical year either directly or
indirectly through other tributaries, jurisdictional lakes, ponds, or
impoundments, or adjacent wetlands. A tributary was required to be
perennial or intermittent in a typical year. 85 FR 22251, April 21,
2020. The agencies are proposing an alternative to the NWPR's approach
to tributaries for the reasons discussed in this section and in section
V.B.3 of this preamble. The definition of ``tributary'' in the NWPR
failed to advance the objective of the Clean Water Act and was
inconsistent with scientific information about the important effects of
ephemeral tributaries on the integrity of downstream traditional
navigable waters. In addition, key elements of the NWPR's definition of
tributary were extremely difficult to implement. All of these
deficiencies are reflected in significant losses of federal protections
on the ground. See section V.B.3 of this preamble.
6. Territorial Seas
The Clean Water Act, the 1986 regulations, and the NWPR all include
``the territorial seas'' as a ``water of the United States.'' This
proposed rule makes no changes to that provision, and would retain the
territorial seas provision near the end of the list of jurisdictional
waters, consistent with the 1986 regulations.
The Clean Water Act defines ``navigable waters'' to include ``the
territorial seas'' at section 502(7). The Clean Water Act then defines
the ``territorial seas'' in section 502(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.''
7. Adjacent Wetlands
As discussed further in section V.C.9.b of this preamble, in this
proposed rule, the agencies are retaining the definition of
``adjacent'' unchanged from the 1986 regulations, which defined
``adjacent'' as follows: ``The term adjacent means bordering,
contiguous, or neighboring. Wetlands separated from other waters of the
United States by man-made dikes or barriers, natural river berms, beach
dunes and the like are adjacent wetlands.'' In addition to retaining
the definition of ``adjacent'' from the 1986 regulations, the proposed
rule adds language to the adjacent wetlands provision regarding which
adjacent wetlands can be considered ``waters of the United States'' to
reflect the relatively permanent and significant nexus standards. As
such, adjacent wetlands that would be jurisdictional under the proposed
rule include wetlands adjacent to traditional navigable waters,
interstate waters, or the territorial seas; wetlands adjacent to
relatively permanent, standing, or continuously flowing impoundments or
tributaries and that have a continuous surface connection to such
waters; and wetlands adjacent to impoundments or tributaries that meet
the significant nexus standard when the wetlands either alone or in
combination with similarly situated waters in the region, significantly
affect the chemical, physical, or biological integrity of foundational
waters.
Under the proposed rule, the agencies would continue, as they did
under the 1986 regulations and the Rapanos Guidance, to assert
jurisdiction over wetlands adjacent to traditional navigable waters
without need for further assessment. Indeed, the Rapanos decision did
not affect the scope of jurisdiction over wetlands that are adjacent to
traditional navigable waters because at least five justices agreed that
such wetlands are ``waters of the United States.'' See Rapanos, 547
U.S. at 780 (Kennedy, J., concurring) (``As applied to wetlands
adjacent to navigable-in-fact waters, the Corps' conclusive standard
for jurisdiction rests upon a reasonable inference of ecologic
interconnection, and the assertion of jurisdiction for those wetlands
is sustainable under the Act by showing adjacency alone.''), id. at 810
(Stevens, J. dissenting) (``Given that all four Justices who have
joined this opinion would uphold the Corps' jurisdiction in both of
these cases--and in all other cases in which either the plurality's or
Justice Kennedy's test is satisfied--on remand each of the judgments
should be reinstated if either of those tests is met.''); see also
Riverside Bayview, 474 U.S. 121, 134 (``[T]he Corps' ecological
judgment about the relationship between waters and their adjacent
wetlands provides an adequate basis for a legal judgment that adjacent
wetlands may be defined as waters under the Act.''); Rapanos Guidance
at 5. Moreover, ample scientific information makes clear that the
health and productivity of rivers and lakes, including foundational
waters, depends upon the functions provided by upstream tributaries,
adjacent wetlands, and ``other waters.''
Under the proposed rule the agencies would also define ``waters of
the United States'' to include wetlands adjacent to the territorial
seas as they did under the 1986 regulations without need for further
assessment; the territorial seas are categorically protected under the
[[Page 69423]]
Clean Water Act and are a type of traditional navigable water.
The 1986 regulations also include wetlands adjacent to interstate
waters and since interstate waters, like traditional navigable waters
and the territorial seas, are foundational waters protected by the
Clean Water Act, under the proposed rule the agencies would define
``waters of the United States'' to include wetlands adjacent to
interstate waters without need for further assessment.
The proposed rule also would add the relatively permanent standard
and the significant nexus standard to the 1986 regulations' adjacent
wetlands provisions for wetlands adjacent to impoundments and
tributaries. The relatively permanent standard and the significant
nexus standard are independent of each other and this provision in the
proposed rule is structured so that jurisdiction over wetlands adjacent
to jurisdictional waters would be determined using the same standard
under which the impoundment or tributary would be determined to be
jurisdictional. For example, a wetland adjacent to a relatively
permanent tributary must have a continuous surface connection to the
tributary to be jurisdictional under the relatively permanent standard.
Similarly, under the significant nexus standard an adjacent wetland and
a tributary would be assessed for whether the waters either alone or in
combination with similarly situated waters in the region, significantly
affect the chemical, physical, or biological integrity of foundational
waters. Wetlands adjacent to relatively permanent tributaries but that
lack a continuous surface connection to such waters would then be
assessed under the significant nexus, along with the tributary.
The agencies are proposing to delete the cross reference to ``other
waters'' as a water to which wetlands may be adjacent to be determined
``waters of the United States.'' This change reflects the agencies'
consideration of the jurisdictional concerns and limitations of SWANCC
and Rapanos. The agencies have concluded that a provision that
authorizes consideration of jurisdiction over adjacent wetlands that
meet the relatively permanent or significant nexus standard when
assessed based simply on connections to ``other waters'' would have too
tenuous a connection to traditional navigable waters, interstate
waters, or the territorial seas. Rather, any such wetlands that are
adjacent to jurisdictional ``other waters'' could be assessed
themselves under the ``other waters'' category to determine if they
meet the relatively permanent or significant nexus standard. Thus, a
wetland adjacent to, for example, a lake that meets the significant
nexus standard under the ``other waters'' provision could not be
determined to be jurisdictional simply because it significantly affects
the physical integrity of the lake; rather, the wetland would need to
be assessed under the ``other waters'' provision for whether it
significantly affects a traditional navigable water, interstate water,
or the territorial seas.
Finally, the agencies are retaining the 1986 regulations' coverage
of wetlands adjacent to impoundments and wetlands adjacent to
tributaries to impoundments, updated to include the requirement that
the wetlands meet either the relatively permanent or significant nexus
standard. As discussed above, the agencies' longstanding interpretation
of the Clean Water Act is that a ``water of the United States'' remains
a ``water of the United States'' even if it is impounded. Since the
impoundment does not ``defederalize'' the ``water of the United
States,'' see S.D. Warren 379 n.5, the agencies similarly interpret the
Clean Water Act to continue to protect wetlands adjacent to the
jurisdictional impoundment and adjacent to jurisdictional tributaries
to the impoundment.
For wetlands adjacent to impoundments of jurisdictional waters,
such waters were not addressed in the Rapanos decision and thus were
not addressed by the agencies in the Rapanos Guidance. Under the
proposed rule, the agencies would assess if the impoundment (i.e., the
water identified in paragraph (a)(4) of the proposed rule) itself is or
is not a relatively permanent, standing, or continuously flowing body
of water. If it is, the agencies would assess if the adjacent wetlands
have a continuous surface connection with the impoundment. Wetlands
adjacent to relatively permanent impoundments and that lack a
continuous surface connection to the impoundment and wetlands adjacent
to non-relatively permanent impoundments would be considered under the
significant nexus standard. The agencies are soliciting comment on the
approach in the proposed rule for wetlands adjacent to impoundments and
if they should instead consider alternative approaches for wetlands
adjacent to impoundments, such as determining which jurisdictional
standard should apply based on the water that is being impounded (e.g.,
if a non-relatively permanent tributary is impounded, the agencies
would assess the wetlands adjacent to the impoundment under the
significant nexus standard, even if the impoundment itself contains
standing water at least seasonally).
Finally, the agencies retain in the proposed rule the parenthetical
from the 1986 regulations that limited the scope of jurisdictional
adjacent wetlands under (a)(7) to wetlands adjacent to waters ``(other
than waters that are themselves wetlands).'' Under this provision, a
wetland is not jurisdictional simply because it is adjacent to another
adjacent wetland. See Universal Welding & Fabrication, Inc. v. United
States Army Corps of Engineers, 708 Fed. Appx. 301 (9th Cir. 2017)
(``Despite the subject wetland's adjacency to another wetland, the
Corps determined that its regulatory authority was not precluded by the
parenthetical language within [section] 328.3(a)(7), which it
interpreted as prohibiting the exercise of jurisdiction over a wetland
only if based upon that wetland's adjacency to another wetland.''). The
provision has created confusion, as some have argued that a wetland
that is indeed adjacent to a jurisdictional tributary should not be
determined to be a ``water of the United States'' simply because
another adjacent wetland was located between the adjacent wetland and
the tributary. Some have even suggested that the parenthetical flatly
excluded all wetlands that are adjacent to other wetlands, regardless
of any other considerations. These interpretations are inconsistent
with the agencies' intent and longstanding interpretation of the
parenthetical. Id. at 303 (holding the Corps' interpretation is ``the
most reasonable reading of the regulation's text'' and ``[t]o the
extent that Plaintiff argues that all wetlands adjacent to other
wetlands fall outside the Corps' regulatory authority, regardless of
their adjacency to a non-wetland water that would otherwise render them
jurisdictional, we conclude that this reading is unsupported by the
regulation's plain language.''). In addition, under the 1986
regulations and longstanding practice, wetlands adjacent to an
interstate wetland or wetlands adjacent to tidal wetlands, which are
traditional navigable waters, are jurisdictional. Because this
provision has caused confusion at times for the public and the
regulated community, the agencies are requesting comment on whether to
remove the parenthetical ``(other than waters that are themselves
wetlands)'' because it is confusing and unnecessary.
The agencies are proposing a different approach to adjacent
wetlands than the NWPR's interpretation of that term. The NWPR defined
``adjacent wetlands'' to be those wetlands that abut
[[Page 69424]]
jurisdictional waters and those non-abutting wetlands that are (1)
``inundated by flooding'' from a jurisdictional water in a typical
year, (2) physically separated from a jurisdictional water only by
certain natural features (e.g., a berm, bank, or dune), or (3)
physically separated from a jurisdictional water by an artificial
structure that ``allows for a direct hydrologic surface connection''
between the wetland and the jurisdictional water in a typical year. 85
FR 22251, April 21, 2020. Wetlands that do not have these types of
connections to other waters were not jurisdictional.
The agencies are not proposing the NWPR's approach to adjacent
wetlands for the reasons discussed in this section and in section V.B.3
of this preamble. Specifically, the definition of ``adjacent wetlands''
in the NWPR failed to advance the objective of the Clean Water Act and
was inconsistent with scientific information about the important
effects of wetlands that do not abut jurisdictional waters and that
lack evidence of surface water to such waters on the integrity of
downstream foundational waters. In addition, key elements of that
definition were extremely difficult to implement. These deficiencies
are reflected in significant losses of federal protections on the
ground. See section V.B.3 of this preamble.
8. Exclusions
The agencies are also proposing to repromulgate two longstanding
exclusions from the definition of ``waters of the United States'': the
exclusion for prior converted cropland and the exclusion for waste
treatment systems. These longstanding exclusions from the definition
provide important clarity.\47\ The agencies are not proposing to codify
the list of exclusions established by the NWPR or the 2015 Clean Water
Rule, as they view the two proposed regulatory exclusions as most
consistent with the goal of this proposed rule to return to the
familiar and longstanding framework that will ensure Clean Water Act
protections, informed by relevant Supreme Court decisions. Moreover, as
discussed in section V.D.1.b of this preamble, the agencies would
expect to implement the proposed rule consistent with longstanding
practice, pursuant to which they have generally not asserted
jurisdiction over certain other features. The agencies solicit comment
on this approach to codifying and implementing exclusions.
---------------------------------------------------------------------------
\47\ The agencies note that they have never interpreted
groundwater be a ``water of the United States'' under the Clean
Water Act. See, e.g., 80 FR 37099-37100 (explaining that the
agencies have never interpreted ``waters of the United States'' to
include groundwater); 85 FR 22278, April 21, 2020 (explaining that
the agencies have never interpreted ``waters of the United States''
to include groundwater). The proposed rule makes no change to that
longstanding interpretation. This interpretation was recently
confirmed by the U.S. Supreme Court. Maui, 140 S.Ct. at 1472 (``The
upshot is that Congress was fully aware of the need to address
groundwater pollution, but it satisfied that need through a variety
of state-specific controls. Congress left general groundwater
regulatory authority to the States; its failure to include
groundwater in the general EPA permitting provision was
deliberate.'') While groundwater itself is not a ``water of the
United States,'' discharges of pollutants to groundwater that reach
a jurisdictional surface require a NPDES permit where the discharge
through groundwater is the ``functional equivalent'' of a direct
discharge from the point source into navigable waters. Maui, 140
S.Ct. at 1468.
---------------------------------------------------------------------------
a. Prior Converted Cropland
The proposed rule would repromulgate the regulatory exclusion for
prior converted cropland first codified in 1993, which provided that
prior converted cropland is ``not `waters of the United States,''' and
that ``for purposes of the Clean Water Act, the final authority
regarding Clean Water Act jurisdiction remains with EPA,''
notwithstanding any other Federal agency's determination of an area's
status. 58 FR 45008, 45036. This proposal would restore longstanding
and familiar practice under the pre-2015 regulatory regime and
generally maintain consistency between the agencies' implementation of
the Clean Water Act and the U.S. Department of Agriculture's (USDA)
implementation of the Food Security Act, providing certainty to farmers
seeking to conserve and protect land and waters pursuant to federal
law.
The concept of prior converted cropland originates in the wetland
conservation provisions of the Food Security Act of 1985, 16 U.S.C.
3801 et seq. These provisions were intended to disincentivize the
conversion of wetlands to croplands. Under the Food Security Act
wetland conservation provisions, farmers who convert wetlands to make
possible the production of an agricultural commodity crop lose
eligibility for certain USDA program benefits. If a farmer had
converted wetlands to cropland prior to December 23, 1985, then the
land is considered prior converted cropland and the farmer does not
lose eligibility for benefits. USDA defines prior converted cropland
for Food Security Act purposes in its regulations at 7 CFR part 12. See
7 CFR 12.2(a) and 12.33(b).
In 1993, EPA and the Corps codified an exclusion for prior
converted croplands from the definition of ``waters of the United
States'' regulated pursuant to the Clean Water Act. The exclusion
stated, ``[w]aters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other Federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.'' 58 FR 45008, 45036; 33 CFR 328.3(a)(8)
(1994); 40 CFR 230.3(s) (1994). The preamble stated that EPA and the
Corps would interpret prior converted cropland consistent with the
definition in the National Food Security Act Manual (NFSAM) published
by the USDA Soil Conservation Service, now known as USDA's Natural
Resource Conservation Service (NRCS). 58 FR 45031. It cited USDA's
definition of prior converted cropland to mean ``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. PC [prior converted] cropland is inundated for no more than
14 consecutive days during the growing season and excludes pothole or
playa wetlands.'' Id.
The purpose of the exclusion, as EPA and the Corps explained in the
1993 preamble, was to ``codify existing policy,'' as the agencies had
not been implementing the Act to include prior converted cropland, and
to ``help achieve consistency among various federal programs affecting
wetlands.'' Id. The preamble further stated that excluding prior
converted cropland from ``waters of the United States'' was consistent
with protecting aquatic resources because ``[prior converted cropland]
has been significantly modified so that it no longer exhibits its
natural hydrology or vegetation. Due to this manipulation, [prior
converted] cropland no longer performs the functions or has values that
the area did in its natural condition. PC cropland has therefore been
significantly degraded through human activity and, for this reason,
such areas are not treated as wetlands under the Food Security Act.
Similarly, in light of the degraded nature of these areas, we do not
believe that they should be treated as wetlands for the purposes of the
CWA.'' Id. at 45032.
The 1993 preamble stated that, consistent with the NFSAM, an area
would lose its status as prior converted cropland if the cropland is
``abandoned,'' meaning that crop production ceases and the area reverts
to a wetland state. Id. at 45033. Specifically, the preamble states
that prior converted cropland that now
[[Page 69425]]
meets wetland criteria will be considered abandoned unless ``once in
every five years it 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. at
45034.
Three years later, the Federal Agriculture Improvement and Reform
Act of 1996 amended the Food Security Act and changed this
``abandonment'' principle, replacing it with a new approach referred to
as ``change in use.'' See Public Law 104-127, 110 Stat. 888 (1996).
Under the 1996 amendments, an area retains its status as prior
converted cropland for purposes of the wetland conservation provisions
so long as it continues to be used for agricultural purposes. H.R.
Conf. Rep. No. 104-494, at 380 (1996). EPA and the Corps did not
address the 1996 amendments in rulemaking. In 2005, the Corps and NRCS
issued a joint Memorandum to the Field in an effort to again align the
Clean Water Act section 404 program with the Food Security Act by
adopting the principle that a wetland can lose prior converted cropland
status following a ``change in use.'' \48\ The Memorandum stated, ``[a]
certified PC determination made by NRCS remains valid as long as the
area is devoted to an agricultural use. If the land changes to a non-
agricultural use, the PC determination is no longer applicable and a
new wetland determination is required for CWA purposes.'' It defined
``agricultural use'' as ``open land planted to an agricultural crop,
used for the production of food or fiber, used for haying or grazing,
left idle per USDA programs, or diverted from crop production to an
approved cultural practice that prevents erosion or other
degradation.''
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\48\ This 2005 joint Memorandum was rescinded on January 28,
2020. See https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/4288.
---------------------------------------------------------------------------
One district court set aside the Corps' adoption of change in use
on the grounds that it was a substantive change in Clean Water Act
implementation that the agencies had not issued through notice and
comment rulemaking. New Hope Power Co. v. U.S. Army Corps of Eng'rs,
746 F. Supp. 2d 1272, 1282 (S.D. Fla. 2010). The court explained,
``prior to issuance of the policy, prior converted cropland that was
shifted to non-agricultural use was treated as exempt. Following [its
issuance], the opposite was true.'' Id. Following New Hope Power, the
agencies did not implement change in use in areas subject to the
court's jurisdiction.
The NWPR provided a definition of prior converted cropland for
purposes of the Clean Water Act for the first time since 1993.
Generally speaking, the NWPR's approach to prior converted cropland
significantly reduced the likelihood that prior converted cropland will
ever lose its excluded status. The NWPR provided that an area remains
prior converted cropland for purposes of the Clean Water Act unless the
area is abandoned and has reverted to wetlands, defining abandonment to
occur when prior converted cropland ``is not used for, or in support
of, agricultural purposes at least once in the immediately preceding
five years.'' 85 FR 22339, April 21, 2020; 33 CFR 328.3(c)(9). The NWPR
then presented a broad interpretation of ``agricultural purposes,''
including but not limited to crop production, haying, grazing, idling
land for conservation uses (such as habitat; pollinator and wildlife
management; and water storage, supply, and flood management);
irrigation tailwater storage; crawfish farming; cranberry bogs;
nutrient retention; and idling land for soil recovery following natural
disasters such as hurricanes and drought. 85 FR 22321, April 21, 2020.
Under the NWPR, prior converted cropland maintained its excluded status
if it is used at least once in the five years preceding a
jurisdictional determination for any of these agricultural purposes.
Given the breadth of ``agricultural purposes'' under the NWPR, former
cropland that reverts to wetlands otherwise meeting the definition of
``waters of the United States'' could maintain its excluded prior
converted cropland status simply by, for example, being grazed or idled
for habitat conservation once in five years. These wetlands could then
be filled without triggering any Clean Water Act regulatory protection.
The NWPR's imprecise language in defining prior converted cropland
for purposes of the Clean Water Act potentially extended prior
converted cropland status far beyond those areas USDA considers prior
converted cropland for purposes of the Food Security Act. Specifically,
USDA's regulation defining prior converted cropland refers to
conversion that makes possible production of an ``agricultural
commodity,'' which provides for annual tilling of the soil, while the
NWPR defined prior converted cropland to encompass any area used to
produce an ``agricultural product,'' a term not used in the regulations
that therefore introduces significant ambiguity and further
distinguishes the Clean Water Act's prior converted cropland exclusion
from USDA's approach. Compare 7 CFR 12.2(a) with 33 CFR 328.3(c)(9).
The NWPR's definition provided that the agencies would recognize prior
converted cropland designations made by USDA, 33 CFR 328.3(c)(9), but
the list of examples that the NWPR provided for ``agricultural
product'' suggests the term is significantly broader than the USDA's
exclusion for land used for ``commodity crops.'' The absence of a
definition for the term ``agricultural product'' or any explanation as
to how it is different from a ``commodity crop'' undermined
transparency and the original purpose of the exclusion, which was to
help achieve consistency among various federal programs affecting
wetlands. See 58 FR 45031.
The proposed rule would restore the exclusion's original purpose of
maintaining consistency among federal programs addressing wetlands,
while furthering the objective of the Clean Water Act. Id. at 45031-32.
As was the case between 1993 and promulgation of the NWPR, the agencies
propose that, for purposes of the Clean Water Act exclusion, a
landowner may demonstrate that a water retains its prior converted
cropland status through a USDA prior converted cropland certification.
See id. at 45033 (``recognizing [NRCS]'s expertise in making these
[prior converted] cropland determinations, we will continue to rely
generally on determinations made by [NRCS].''). The agencies' proposal
would maintain the provision promulgated in 1993 that EPA retains final
authority to determine whether an area is subject to the requirements
of the Clean Water Act. Moreover, by limiting the implementation of the
exclusion to areas with a USDA prior converted cropland certification,
the exclusion would only encompass significantly degraded waters that
no longer perform the functions of the waters in their natural
condition. See id. at 45032. The proposal would therefore align the
exclusion with the objective of the Clean Water Act, to restore and
maintain the integrity of the nation's waters, consistent with the
agencies' intent in 1993.
The agencies request comment as to whether any other changes could
enhance consistency between the prior converted cropland status under
the Food Security Act and the exclusion of prior converted cropland
under the Clean Water Act, while effectuating the goals of the Clean
Water Act. One way of increasing consistency could be to implement the
text of the original prior
[[Page 69426]]
converted cropland exclusion consistent with USDA's current and
longstanding approach, outlined in USDA's final rule addressing the
Highly Erodible Land and Wetland Conservation provisions of the Food
Security Act of 1985. 85 FR 53137 (August 28, 2020). Pursuant to this
approach, cropland would lose its exclusion if it ``changes use,'' as
USDA interprets that term. See 61 FR 47036 (September 6, 1996); 7 CFR
12.30(c)(6) (``As long as the affected person is in compliance with the
wetland conservation provision of this part, and as long as the area is
devoted to the use and management of the land for production of food,
fiber, or horticultural crops, a certification made under this section
will remain valid and in effect until such time as the person affected
by the certification requests review of the certification by NRCS.'').
This approach would fulfill the exclusion's purpose of ensuring
consistency among federal programs affecting wetlands. See 58 FR 45031.
Alternatively, the agencies request comment as to whether to implement
the exclusion consistent with the interpretation in the 1993 preamble,
under which an area only loses its prior converted cropland status if
the cropland is ``abandoned,'' meaning that commodity crop production
ceases and the area reverts to a wetland state. See id. at 45033. Under
this approach, an area that has been designated as prior converted
cropland and has not reverted to a wetland state (meaning the area
would not meet the definition of wetland) would not become a ``water of
the United States'' regardless of agricultural activity. However, an
area which has been designated as prior converted cropland and has
reverted to a wetland state could be reviewed for a potential loss of
the exclusion status under the Clean Water Act. The following scenarios
provide examples of the way in which the exclusion could cease
following either ``abandonment'' or ``change in use.''
First, if the agencies were to apply the abandonment principle, the
reverted wetland area would only regain jurisdictional status if:
(1) The area had not been used for the production of an
agricultural commodity, or the area had not been used and would
continue to not be used for the production of an agricultural commodity
in a commonly used rotation with aquaculture, grasses, legumes, or
pasture production, at least once in every five years and
(2) the area reverts to a wetland that meets the definition of
``waters of the United States.''
Under the abandonment principle, if an agricultural producer with
an area designated as prior converted cropland fails to produce an
agricultural commodity, or the area fails to be used in rotation as
described above, for a period of six years, and the prior converted
cropland area reverts to wetland, the wetland would lose the benefit of
the exclusion and discharges of a pollutant to the wetland would be
subject to regulation under the Clean Water Act if it meets the
definition of ``waters of the United States'' and activities taking
place on it are not otherwise exempt. In a second example of
abandonment, if an agricultural producer with an area designated as
prior converted cropland produces an agricultural commodity two years
prior to selling its property for a residential development, the area
retains its prior converted cropland designation even if it reverts to
wetlands that would otherwise meet the definition of ``waters of the
United States.'' In this example, discharges of dredged or fill
material from the construction of the residential development into the
wetlands which occurred within the three years remaining out of the
five-year timeframe allowed before the abandonment provision would be
triggered would not require authorization under Clean Water Act section
404.
Alternatively, if the agencies were to apply the change in use
principle in the second example scenario above, the reverted wetland
area could regain jurisdictional status if it were subject to a change
in use, meaning the area is no longer available for production of an
agricultural commodity, and if the reverted wetland met the definition
of ``waters of the United States.'' In that scenario, if an
agricultural producer with an area certified by NRCS as prior converted
cropland produces an agricultural commodity two years prior to selling
their property for a residential development, the prior converted
cropland designation would no longer apply when the area is no longer
available for the production of an agricultural commodity crop. If the
prior converted cropland area reverts to wetlands and meets the
definition of ``waters of the United States'' the discharge of dredged
or fill material from the construction of the residential development
would require authorization under Clean Water Act section 404. The
agencies hope this discussion and set of examples will illuminate the
differences between interpreting the prior converted cropland
designation to cease upon abandonment as opposed to change in use, to
allow for input to best inform the agencies' path forward.
The agencies solicit comment on alternative approaches to the prior
converted cropland exclusion as well, including retaining the
definition of prior converted cropland in the NWPR. While the agencies
have concerns with that definition, as discussed above, the agencies
request comment with regard to those concerns and whether they should
nonetheless retain the NWPR's interpretation that prior converted
cropland retains its designation so long as it has been used for
agricultural purposes at least once in the preceding five years, and
that agricultural purposes include crop production, haying, grazing,
idling land for conservation uses (such as habitat; pollinator and
wildlife management; and water storage, supply, and flood management);
irrigation tailwater storage; crawfish farming; cranberry bogs;
nutrient retention; and idling land for soil recovery following natural
disasters like hurricanes and drought. Finally, the agencies request
comment as to whether certain specific types of documentation aside
from USDA certification should be considered sufficient to demonstrate
that an area is prior converted cropland.
b. Waste Treatment System Exclusion
The agencies are also proposing to retain the waste treatment
system exclusion from the 1986 regulations and return to the
longstanding version of the exclusion that the agencies have
implemented for decades. Specifically, the proposed rule provides that
``[w]aste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act are not waters
of the United States.'' This language is the same as the agencies' 1986
regulation's version of the waste treatment system exclusion, with a
ministerial change to delete the exclusion's cross-reference to a
definition of ``cooling ponds'' that no longer exists in the Code of
Federal Regulations, and the addition of a comma that clarifies the
agencies' longstanding implementation of the exclusion as applying only
to systems that are designed to meet the requirements of the Act.\49\
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\49\ The NWPR defined a waste treatment system as ``all
components, including lagoons and treatment ponds (such as settling
or cooling ponds), designed to either convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively,
from wastewater prior to discharge (or eliminating any such
discharge).'' 85 FR 22339, April 21, 2020.
---------------------------------------------------------------------------
EPA first promulgated the waste treatment system exclusion in a
1979
[[Page 69427]]
notice-and-comment rulemaking revising the definition of ``waters of
the United States'' in the agency's NPDES regulations. 44 FR 32854
(June 7, 1979). A ``frequently encountered comment'' was that ``waste
treatment lagoons or other waste treatment systems should not be
considered waters of the United States.'' Id. at 32858. EPA agreed,
except as to cooling ponds that otherwise meet the criteria for
``waters of the United States.'' Id. The 1979 revised definition of
``waters of the United States'' thus provided that ``waste treatment
systems (other than cooling ponds meeting the criteria of this
paragraph) are not waters of the United States.'' Id. at 32901 (40 CFR
122.3(t) (1979)).
The following year, EPA revised the exclusion, but again only in
its NPDES regulations, to clarify its application to treatment ponds
and lagoons and to specify the type of cooling ponds that fall outside
the scope of the exclusion. 45 FR 33290, 33298 (May 19, 1980). EPA
further decided to revise this version of the exclusion to clarify that
``treatment systems created in [waters of the United States] or from
their impoundment remain waters of the United States,'' while
``[m]anmade waste treatment systems are not waters of the United
States.'' Id. The revised exclusion read: ``[w]aste treatment systems,
including treatment ponds or lagoons designed to meet the requirements
of CWA (other than cooling ponds as defined in 40 CFR [section]
423.11(m) which also meet the criteria of this definition) are not
waters of the United States.'' The provision further provided that the
exclusion ``applies only to manmade bodies of water which neither were
originally created in waters of the United States (such as a disposal
area in wetlands) nor resulted from the impoundment of waters of the
United States.'' 45 FR 33424 (40 CFR 122.3).
Two months following this revision, EPA took action to ``suspend[ ]
a portion'' of the waste treatment system exclusion in its NPDES
regulations in response to concerns raised in petitions for review of
the revised definition of ``waters of the United States.'' 45 FR 48620
(July 21, 1980). EPA explained that industry petitioners objected to
limiting the waste treatment system exclusion to manmade features,
arguing that the revised exclusion ``would require them to obtain
permits for discharges into existing waste treatment systems, such as
power plant ash ponds, which had been in existence for many years.''
Id. at 48620. The petitioners argued that ``[i]n many cases, . . . EPA
had issued permits for discharges from, not into, these systems.'' Id.
Agreeing that the regulation ``may be overly broad'' and ``should be
carefully re-examined,'' EPA announced that it was ``suspending [the]
effectiveness'' of the sentence limiting the exclusion to manmade
bodies of water. Id. EPA then stated that it ``intend[ed] promptly to
develop a revised definition and to publish it as a proposed rule for
public comment,'' after which the agency would decide whether to
``amend the rule, or terminate the suspension.'' Id.
In 1983, EPA republished the waste treatment system exclusion in
its NPDES regulations with a note explaining that the agency's July
1980 action had ``suspended until further notice'' the sentence
limiting the exclusion to manmade bodies of water, and that the 1983
action ``continue[d] that suspension.'' 48 FR 14146, 14157 (April 1,
1983) (40 CFR 122.2) (1984). EPA subsequently omitted the exclusion's
suspended sentence altogether in revising the definition of ``waters of
the United States'' in other parts of the Code of Federal Regulations.
See, e.g., 53 FR 20764, 20774 (June 6, 1988) (revising EPA's section
404 program definitions at 40 CFR 232.2).
Separately, the Corps published an updated definition of ``waters
of the United States'' in 1986. This definition contained the waste
treatment system exclusion, but it likewise did not include the
exclusion's suspended sentence: ``Waste treatment systems, including
treatment ponds or lagoons designed to meet the requirements of CWA
(other than cooling ponds as defined in 40 CFR 123.11(m) which also
meet the criteria of this definition) are not waters of the United
States.'' 51 FR 41250 (November 13, 1986); 33 CFR 328.3 (1987).
Later revisions to the definition of cooling ponds rendered the
exclusion's cross-reference to 40 CFR 123.11(m) outdated. See 47 FR
52290, 52291, 52305 (November 19, 1982) (revising regulations related
to cooling waste streams and deleting definition of cooling ponds). In
this rulemaking, the agencies are proposing to delete this obsolete
cross-reference, consistent with other recent rulemakings addressing
the definition of ``waters of the United States.'' \50\
---------------------------------------------------------------------------
\50\ 85 FR 22250, 22325 (April 21, 2020) (``One ministerial
change [to the waste treatment system exclusion] is the deletion of
a cross-reference to a definition of ``cooling ponds'' that no
longer exists in the Code of Federal Regulations.''); 80 FR 37054,
37097 (June 29, 2015) (``One ministerial change [to the waste
treatment system exclusion] is the deletion of a cross-reference in
the current language to an EPA regulation that no longer exists.'').
---------------------------------------------------------------------------
The proposed rule also deletes the suspended sentence in EPA's
NPDES regulations limiting application of the exclusion to manmade
bodies of water. The suspended sentence, which appeared only in the
version of the waste treatment system exclusion contained in EPA's
NPDES regulations (40 CFR 122.2) prior to the NWPR, states: ``This
exclusion applies only to manmade bodies of water which neither were
originally created in waters of the United States (such as disposal
area in wetlands) nor resulted from the impoundment of waters of the
United States.'' As discussed above, EPA suspended this sentence
limiting application of the exclusion in 1980. As a result, EPA has not
limited application of the waste treatment system exclusion to manmade
bodies of water for over four decades. The proposed rule maintains the
NWPR's deletion of the suspended sentence in EPA's NPDES regulations
and is thus consistent with the other versions of the exclusion found
in EPA's and the Corps' 1986 regulations and EPA's decades-long
practice implementing the exclusion under the 1986 regulations.
Indeed, for decades, both agencies have not limited application of
the exclusion to manmade bodies of water. This longstanding approach to
excluding waste treatment systems--including those that are not manmade
bodies of water--is a reasonable and lawful exercise of the agencies'
authority to determine the scope of ``waters of the United States,''
see Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 212
(4th Cir. 2009) (upholding the waste treatment system exclusion as a
lawful exercise of the agencies' ``authority to determine which waters
are covered by the CWA''). For all of these reasons, the agencies are
proposing to delete the suspended sentence referenced above. The
agencies solicit comment on this approach.
Further, consistent with the 1986 regulations, the proposed rule
provides that a waste treatment system must be ``designed to meet the
requirements of the Clean Water Act.'' A waste treatment system may be
``designed to meet the requirements of the Clean Water Act'' where, for
example, it is constructed pursuant to a Clean Water Act section 404
permit, Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177,
214-15 (4th Cir. 2009), or where it is ``incorporated in an NPDES
permit as part of a treatment system,'' N. Cal. River Watch v. City of
Healdsburg, 496 F.3d 993, 1001 (9th Cir. 2007).
To be clear, the exclusion does not free a discharger from the need
to comply with the Clean Water Act for pollutants discharged from a
waste treatment system to a water of the
[[Page 69428]]
United States; only discharges into the waste treatment system are
excluded from the Act's requirements. As such, any entity would need to
comply with the Clean Water Act by obtaining a section 404 permit for a
new waste treatment system constructed in ``waters of the United
States,'' and a section 402 permit for discharges of pollutants from a
waste treatment system into ``waters of the United States.'' Further,
consistent with the agencies' general practice implementing the
exclusion, under the proposed rule, a waste treatment system that is
abandoned or otherwise ceases to serve the treatment function for which
it was designed would not continue to qualify for the exclusion and
could be deemed jurisdictional if it otherwise meets the proposed
rule's definition of ``waters of the United States.''
The agencies are aware of concerns raised by some stakeholders that
features subject to the waste treatment system exclusion could be used
by any party to dispose waste or discharge pollutants with abandon. In
this proposal, the agencies are clarifying that for waters that would
otherwise meet the proposed rule's definition of ``waters of the United
States,'' the agencies' intent, consistent with prior practice, is that
the waste treatment system exclusion is generally available only to the
permittee using the system for the treatment function for which such
system was designed. Relatedly, the agencies are also clarifying that,
consistent with the agencies' longstanding practice, a waste treatment
system does not sever upstream waters from Clean Water Act
jurisdiction. In other words, discharges into those upstream waters
remain subject to Clean Water Act requirements and thus may require a
section 402 permit.\51\ The agencies request comment on whether to add
language to the regulatory text of the waste treatment system exclusion
clarifying these aspects of the exclusion.
---------------------------------------------------------------------------
\51\ See, e.g., Memorandum of Non-Concurrence with
Jurisdictional Determinations POA-1992-574 & POA-1992-574-Z (October
25, 2007), available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll5/id/1454 (``EPA and the Corps agree
that the agencies' designation of a portion of waters of the U.S. as
part of a waste treatment system does not itself alter CWA
jurisdiction over any waters remaining upstream of such system.'').
---------------------------------------------------------------------------
9. Other Definitions
The proposed rule contains a number of defined terms unchanged from
the 1986 regulations. Some of the terms appeared only in the Corps'
regulations, but in the 2019 Rule and the NWPR, the agencies included
these definitions in both agencies' regulations. The agencies are not
proposing to amend the definitions of ``wetland,'' ``high tide line,''
``ordinary high water mark,'' and ``tidal water'' from the 1986
regulations, but to provide additional clarity and consistency in
comparison to the 1986 regulations, the proposed rule would include all
the defined terms in EPA's regulations, where such definitions are not
already contained. Only the definition of the term ``adjacent'' was
amended in the NWPR; the agencies are proposing to define the term
unchanged from the 1986 regulations. This section briefly describes the
definitions and their history and implementation. See section V.D of
this preamble for further discussion on implementation.
a. Wetlands
The proposed rule makes no changes to the definition of
``wetlands'' contained in the NWPR, which made no changes to the 1986
regulations and defined ``wetlands'' as ``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 agencies are not proposing to amend this
definition.
b. Adjacent
The proposed rule defines the term ``adjacent'' with no changes
from the 1986 regulations as ``bordering, contiguous, or neighboring.
Wetlands separated from other `waters of the United States' by man-made
dikes or barriers, natural river berms, beach dunes and the like are
`adjacent wetlands.' '' This is a longstanding and familiar definition
that is supported by Supreme Court case law and science. See, e.g.,
Riverside Bayview, 474 U.S. 121, 134 (`` . . . the Corps' ecological
judgment about the relationship between waters and their adjacent
wetlands provides an adequate basis for a legal judgment that adjacent
wetlands may be defined as waters under the Act.''). The Supreme Court
has noted that adjacent wetlands under this definition are not limited
to only those that exist as a result of ``flooding or permeation by
water having its source in adjacent bodies of open water,'' and that
wetlands may affect the water quality in adjacent waters even when
those waters do not actually inundate the wetlands. Id. at 134-35. As
discussed in section V.C.7 of this preamble and consistent with the
pre-2015 regulatory regime, to be jurisdictional under the adjacent
wetlands provision of the proposed rule, wetlands must meet this
definition of adjacent and either be adjacent to a traditional
navigable water, interstate water, or territorial sea or otherwise fall
within the adjacent wetlands provision and meet either the relatively
permanent standard or the significant nexus standard. See section V.D
of this preamble for further discussion on implementation.
The NWPR substantially narrowed the definition of ``adjacent''
based primarily on the Rapanos plurality standard. The NWPR interprets
``adjacent wetlands'' to be those wetlands that abut jurisdictional
waters and those non-abutting wetlands that are (1) ``inundated by
flooding'' from a jurisdictional water in a typical year, (2)
physically separated from a jurisdictional water only by certain
natural features (e.g., a berm, bank, or dune), or (3) physically
separated from a jurisdictional water by an artificial structure that
``allows for a direct hydrologic surface connection'' between the
wetland and the jurisdictional water in a typical year. 85 FR 22251,
April 21, 2020. Wetlands that do not have these types of connections to
other jurisdictional waters are not jurisdictional under the NWPR. The
NWPR's limits on the scope of protected wetlands to those that touch or
demonstrate evidence of a regular surface water connection to other
jurisdictional waters are inconsistent with the scientific information
in the record demonstrating the effects of wetlands on the integrity of
downstream waters when they have other types of surface connections,
such as wetlands that overflow and flood jurisdictional waters or
wetlands with less frequent surface water connections due to long-term
drought; wetlands with shallow subsurface connections to other
protected waters; or other wetlands proximate to jurisdictional waters.
As discussed in section V.B.3.d of this preamble, within the first year
of implementation of the NWPR, 70% of streams and wetlands evaluated
were found to be non-jurisdictional, including 15,675 wetlands that did
not meet the NWPR's revised adjacency criteria. The agencies anticipate
that this increase in determinations of wetlands to be non-
jurisdictional as compared to prior regulations could reduce the
integrity of the nation's waters (see section V.B.3.d of this
preamble), particularly in the absence of comparable state, tribal, or
local regulations and associated efforts to avoid, minimize, or
compensate for impacts to aquatic resources regulated under such
programs.
[[Page 69429]]
Proposing the longstanding definition of ``adjacent'' is consistent
with Riverside Bayview and Justice Kennedy's opinion in Rapanos, as
well as with scientific information indicating that wetlands meeting
this definition provide important functions that contribute to the
integrity of traditional navigable waters, interstate waters, and
territorial seas. See section V.A of this preamble. The agencies are
proposing to retain the provision of this definition from the 1986
regulations that includes wetlands separated from other ``waters of the
United States'' by man-made dikes or barriers, natural river berms,
beach dunes and the like. The Supreme Court in Riverside Bayview
deferred to the agencies' interpretation of the Clean Water Act to
include adjacent wetlands. Riverside Bayview, 474 U.S. at 135 (``the
Corps has concluded that wetlands adjacent to lakes, rivers, streams,
and other bodies of water may function as integral parts of the aquatic
environment even when the moisture creating the wetlands does not find
its source in the adjacent bodies of water. . . . [W]e therefore
conclude 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''). Justice Kennedy stated: ``In many cases, moreover, filling in
wetlands separated from another water by a berm can mean that
floodwater, impurities, or runoff that would have been stored or
contained in the wetlands will instead flow out to major waterways.
With these concerns in mind, the Corps' definition of adjacency is a
reasonable one, for it may be the absence of an interchange of waters
prior to the dredge and fill activity that makes protection of the
wetlands critical to the statutory scheme.'' Rapanos at 775.
Wetlands separated from other ``waters of the United States'' by
man-made dikes or barriers, natural river berms, or beach dunes
generally continue to have a hydrologic connection to downstream
waters. This is because constructed dikes or barriers, natural river
berms, beach dunes, and the like typically do not block all water flow.
This hydrologic connection can occur via seepage or over-topping, where
water from the nearby traditional navigable water, interstate water,
the territorial seas, impoundment, or tributary periodically overtops
the berm or other similar feature. Water can also overtop a natural
berm or artificial dike and flow from the wetland to the water to which
it is adjacent.
River berms, natural levees, and beach dunes are all examples of
features that are formed by natural processes and do not isolate
adjacent wetlands from the streams, lakes, or tidal waters that form
them. River berms, natural levees, and the wetlands and waters behind
them are part of the floodplain. Natural levees are discontinuous,
which allows for a hydrologic connection to the stream or river via
openings in the levees and thus the periodic mixing of river water and
backwater. Beach dunes are formed by tidal or wave action, and the
wetlands that establish behind them experience a fluctuating water
table seasonally and yearly in synchrony with sea or lake level
changes. The terms earthen dam, dike, berm, and levee are used to
describe similar constructed structures whose primary purpose is to
help control flood waters. Such man-made levees and similar structures
also do not isolate adjacent wetlands.
In addition, adjacent wetlands separated from a jurisdictional
water by a natural or man-made berm serve many of the same functions as
other adjacent wetlands. There are also other important considerations,
such as chemical and biological functions provided by the wetland. For
instance, adjacent waters behind berms can still serve important water
quality functions, serving to filter pollutants and sediment before
they reach downstream waters. Wetlands behind berms, where the system
is extensive, can help reduce the impacts of storm surges caused by
hurricanes. Such adjacent wetlands, separated from waters by berms and
the like, maintain ecological connection with those waters. For
example, wetlands behind natural and artificial berms can provide
important habitat for aquatic and semi-aquatic species that utilize
both the wetlands and the nearby water, including for basic food,
shelter, and reproductive requirements. Though a berm may reduce
habitat functional value and may prevent some species from moving back
and forth from the wetland to the nearby jurisdictional water, many
species remain able to utilize both habitats despite the presence of
such a berm, and in some cases, the natural or artificial barrier can
serve the purpose of providing extra refuge from predators or for
rearing young or other life cycle needs.
Thus, the longstanding definition of ``adjacent'' reasonably
advances the objective of the Act. To be jurisdictional under the
proposed rule, however, wetlands must meet this definition of adjacent
and either be adjacent to a traditional navigable water, interstate
water, or territorial sea or otherwise fall within the adjacent
wetlands provision and meet either the relatively permanent standard or
the significant nexus standard.
c. High Tide Line
The proposed rule makes no changes to the definition of ``high tide
line'' contained in the NWPR, which made no changes to the 1986
regulations and defines the term ``high tide line'' as ``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.'' The agencies are not
proposing to amend this definition. This definition has been in place
since 1977 (see 42 FR 37144, July 19, 1977; and 33 CFR 323.3(c)
(1978)), and like the definitions discussed above, is a well-
established definition that is familiar to regulators, environmental
consultants, and the scientific community. This term defines the
landward limits of jurisdiction in tidal waters when there are no
adjacent non-tidal ``waters of the United States.'' 51 FR 41206, 41251
(November 13, 1986).
d. Ordinary High Water Mark
The proposed rule makes no changes to the definition of ``ordinary
high water mark'' (``OHWM'') contained in the NWPR, which made no
changes to the 1986 regulations and defines OHWM as ``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.'' This term, unchanged since 1977, see 41 FR 37144 (July 19,
1977) and 33 CFR 323.3(c) (1978), defines the lateral limits of
jurisdiction in non-tidal waters, provided the limits of jurisdiction
are not extended by adjacent wetlands. When adjacent wetlands are
present, Clean Water Act jurisdiction extends beyond the OHWM
[[Page 69430]]
to the limits of the adjacent wetlands. Id.; Regulatory Guidance Letter
(RGL) 05-05 (December 7, 2005) at 1. The agencies are not proposing to
amend this definition. Establishing the presence of a non-tidal
traditional navigable water's OHWM can be informed by remote sensing
and mapping information.
e. Tidal Water
The proposed rule makes no changes to the definition of ``tidal
water'' contained in the NWPR, which made no changes to the 1986
regulations, and defines the term ``tidal water'' as ``those waters
that rise and fall in a predictable and measurable rhythm or cycle due
to the gravitational pulls of the moon and sun. Tidal waters end where
the rise and fall of the water surface can no longer be practically
measured in a predictable rhythm due to masking by hydrologic, wind, or
other effects.'' Although the term ``tidal waters'' was referenced
throughout the Corps' 1977 regulations, including the preamble (e.g.,
see 42 FR 37123, 37128, 37132, 37144, 37161, July 19, 1977), it was not
defined in regulations until 1986. As explained in the preamble to the
1986 regulations, this definition is consistent with the way the Corps
has traditionally interpreted the term. 51 FR 41217, 41218 (November
13,1986). The agencies are not proposing to amend this definition.
10. Significantly Affect
The proposed rule defines the term ``significantly affect'' for
purposes of determining whether a water meets the significant nexus
standard to mean ``more than speculative or insubstantial effects on
the chemical, physical, or biological integrity of'' a traditional
navigable water, interstate water, or the territorial seas. Waters,
including wetlands, would be evaluated either alone, or in combination
with other similarly situated waters in the region,\52\ based on the
functions the evaluated waters perform. The proposal also identifies
specific ``factors'' that will be considered when assessing whether the
``functions'' provided by the water, alone or in combination, are more
than speculative or insubstantial. The factors include readily
understood criteria (e.g., distance, hydrologic metrics, and
climatological metrics) that influence the types and strength of
chemical, physical, or biological connections and associated effects on
those downstream foundational waters. The functions can include
measurable indicators (e.g., nutrient recycling, runoff storage) that
are tied to the chemical, physical, and biological integrity of
foundational waters. The definition of ``significantly affect'' is
derived from the objective of the Clean Water Act, and is informed by
and consistent with Supreme Court case law. It is also informed by the
agencies' technical and scientific judgment and supported by the best
available science regarding what waters must be protected to achieve
the Clean Water Act's objective. The proposed definition recognizes
that not all waters have the requisite connection to foundational
waters sufficient to be determined jurisdictional.
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\52\ For example, under the Rapanos Guidance, the agencies
consider the flow and functions of the reach of a tributary that is
the same stream order (i.e., from the point of confluence, where two
lower order streams meet to form the tributary, downstream to the
point such tributary enters a higher order stream) together with the
functions performed by all the wetlands adjacent to that tributary
in evaluating whether a significant nexus is present. Rapanos
Guidance at 10. The agencies are taking comment on other approaches
to ``similarly situated'' and ``in the region'' in section
V.D.2.b.ii of this preamble.
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The significant nexus standard that would be established by the
proposed rule is carefully constructed to fall within the bounds of the
Clean Water Act. First, the standard is limited to consideration of
effects on downstream traditional navigable waters, interstate waters,
and the territorial seas. Second, the standard is limited to effects
only on the three statutorily identified aspects of those foundational
waters: Chemical, physical, or biological integrity. Third, the
standard cannot be met by merely speculative or insubstantial effects
on those aspects of those foundational waters. Thus, the agencies must
assess a particular water and determine whether, based on the factual
record, relevant scientific data and information, and available tools,
the water, alone or combination, has a more than speculative or
insubstantial effect on the chemical, physical, or biological integrity
of a specific foundational water.
This section explains the proposed definition and its consistency
with the Rapanos Guidance, then explains how the proposed definition is
consistent with the best available science and case law, and, finally,
provides examples of functions that are not relevant to the significant
nexus standard and waters that have not met the significant nexus
standard under the pre-2015 regulatory regime.
The proposed definition is consistent with the pre-2015 regulatory
regime. Under the Rapanos Guidance, the agencies evaluate whether
waters ``are likely to have an effect that is more than speculative or
insubstantial on the chemical, physical, and biological integrity of a
traditional navigable water.'' Rapanos Guidance at 11.
In evaluating a water individually or in combination with other
similarly situated waters for the presence of a significant nexus to a
traditional navigable water, interstate water, or the territorial seas,
the agencies consider factors that influence the types and strength of
the chemical, physical, or biological connections and associated
effects on those downstream waters. The agencies are proposing to
include in the definition of ``significantly affect'' the factors to be
considered in assessing the strength of the effects: (1) The distance
from a jurisdictional water, (2) the distance from the downstream
traditional navigable water, interstate water, or territorial sea, (3)
hydrologic factors, including subsurface flow, (4) the size, density,
and/or number of waters that have been determined to be similarly
situated (and thus can be evaluated in combination), and (5)
climatological variables such as temperature, rainfall, and snowpack.
The agencies are seeking comment on this list of factors and whether
there are other factors that influence the types and strength of the
chemical, physical, or biological connections and associated effects on
those downstream waters the agencies should consider.
These factors influence the strength of the connections and
associated effects that streams, wetlands, and open waters have on the
chemical, physical, and biological integrity of traditional navigable
waters, interstate waters, and territorial seas and are not the
functions themselves that the agencies might consider as part of a
significant nexus standard. These factors also cannot be considered in
isolation, but rather must be considered together and in the context of
the case-specific analysis. For example, the likelihood of a connection
with associated significant effects is generally greater with
increasing number and size of the aquatic resource or resources being
considered and decreasing distance from the identified foundational
water as well as with increased density of the waters that can be
considered in combination as similarly situated waters. However, the
agencies also recognize that in watersheds with fewer aquatic
resources, even a small number or low density of similarly situated
waters can have disproportionate effects on downstream foundational
waters. Hydrologic factors include volume (or magnitude), duration,
timing, rate, and frequency of flow, size of the watershed or
subwatershed, and surface and shallow subsurface hydrologic
connections. The presence of a surface
[[Page 69431]]
or shallow subsurface hydrologic connection, as well as increased
frequency, volume, or duration of such connections, can increase the
chemical, physical (i.e., hydrologic), or biological impact that a
water has on downstream foundational waters. In other situations,
streams with low duration but a high volume of flow can significantly
affect downstream foundational waters by transporting large volumes of
water, sediment, and woody debris that help maintain the integrity of
those larger downstream waters. The lack of hydrologic connections can
also contribute to the strength of effects for certain functions such
as floodwater attenuation or the retention and transformation of
pollutants. Climatological factors like temperature, rainfall, and
snowpack in a given region can influence the agencies' consideration of
the effects of subject waters on downstream foundational waters by
providing information about expected hydrology and the expected
seasonality of connections and associated effects. The agencies are
seeking comment on whether these factors are sufficiently clear or if
further explanation or examples would be useful.
The agencies are also taking comment on whether it would be useful
to add to the definition of ``significantly affect'' a specific list of
functions of upstream waters to assess when making a significant nexus
determination. The Rapanos Guidance identified some relevant functions
upstream waters can provide including temperature regulation, sediment
trapping and transport, nutrient recycling, pollutant trapping,
transformation, filtering and transport, retention and attenuation of
floodwaters and runoff, contribution of flow, provision of habitat for
aquatic species that also live in foundational waters (e.g., for
refuge, feeding, nesting, spawning, or rearing young), and provision
and export of food resources for aquatic species located in
foundational waters. Evaluation of such functions is consistent with
the agencies' implementation of the pre-2015 regulatory regime. See
Rapanos Guidance at 8, 9. Under the pre-2015 regulatory regime, a water
did not need to perform all of the listed functions. See U.S. Army
Corps of Engineers Jurisdictional Determination Form Instructional
Guidebook. If a water, either alone or in combination with similarly
situated waters, performs one function, and that function has a more
than speculative or insubstantial impact on the integrity of a
traditional navigable water, interstate water, or the territorial seas,
that water would have a significant nexus.
These functions identified in the Rapanos Guidance that can be
provided by tributaries, wetlands, and open waters are keyed to the
chemical, physical, and biological integrity of traditional navigable
waters, interstate waters, and the territorial seas. Water temperature
is a critical factor governing the distribution and growth of aquatic
life in downstream waters. Sediment storage and export via streams to
downstream waters is important for maintaining the physical river
network, including the formation of channel features. Nutrient
recycling results in the uptake and transformation of large quantities
of nitrogen and other nutrients that otherwise would be transported
directly downstream, thereby decreasing impairments of downstream
waters. Streams, wetlands, and open waters improve water quality
through the assimilation and sequestration of pollutants, including
chemical contaminants such as pesticides and metals that can degrade
downstream water integrity. Small streams and wetlands are particularly
effective at retaining and attenuating floodwaters. This function can
reduce flood peaks downstream and can also maintain downstream river
baseflows. Streams, wetlands, and open waters are the dominant sources
of water in most rivers. Streams, wetlands, and open waters supply
downstream waters with organic matter which supports biological
activity throughout the river network and provide life-cycle dependent
aquatic habitat for species located in foundational waters.
Consistent with the pre-2015 regulatory regime, the agencies are
also proposing that a water may be determined to be a ``water of the
United States'' when it ``significantly affects'' any one form of
chemical, physical, or biological integrity of a downstream traditional
navigable water, interstate water, or the territorial seas. Congress
intended the Clean Water Act to ``restore and maintain'' all three
forms of ``integrity,'' section 101(a), so if any one is compromised
then that is contrary to the statute's stated objective. It would
contravene the plain language of the statute and subvert the objective
if the Clean Water Act only protected waters upon a showing that they
had effects on every attribute of the integrity of a traditional
navigable water, interstate water, or the territorial sea. As the
agencies stated in the Rapanos Guidance: ``Consistent with Justice
Kennedy's instruction, EPA and the Corps will apply the significant
nexus standard in a manner that restores and maintains any of these
three attributes of traditional navigable waters.'' Rapanos Guidance at
10, n.35 and surrounding text.
The proposed rule's definition of ``significantly affect'' also is
consistent with the conclusions of the Science Report. See Technical
Support Document section IV.E. The Science Report concluded that
watersheds are integrated at multiple spatial and temporal scales by
flows of surface water and ground water, transport and transformation
of physical and chemical materials, and movements of organisms.
Further, the Science Report stated, although all parts of a watershed
are connected to some degree--by the hydrologic cycle or dispersal of
organisms, for example--the degree and downstream effects of those
connections vary spatially and temporally, and are determined by
characteristics of the physical, chemical, and biological environments
and by human activities. Those spatial and temporal variations are
reflected in the agencies' proposed requirement that ``significantly
affect'' means more than speculative or insubstantial, in the functions
the agencies evaluate, and in the factors they use to evaluate those
functions. The proposed rule's provision for waters to be assessed
either alone, or in combination with other similarly situated waters in
the region is consistent with the Science Report, which gave as an
example that the amount of water or biomass contributed by a specific
ephemeral stream in a given year might be small, but the aggregate
contribution of that stream over multiple years, or by all ephemeral
streams draining that watershed in a given year or over multiple years,
can have substantial consequences on the integrity of the downstream
waters. Similarly, the downstream effect of a single event, such as
pollutant discharge into a single stream or wetland, might be
negligible but the cumulative effect of multiple discharges could
degrade the integrity of downstream waters. The agencies are seeking
comment on how to implement this aspect of the proposed rule in section
V.D.2.b of this preamble.
The agencies' definition of the term ``significantly affect'' in
the proposed rule is also informed by and consistent with Supreme Court
case law. The definition reflects that not all waters have a requisite
connection to foundational waters sufficient to be determined
jurisdictional. Under the significant nexus standard, to be
jurisdictional, waters, alone or in combination with other similarly
situated waters in the region, must
[[Page 69432]]
significantly affect the chemical, physical, or biological integrity of
a downstream traditional navigable water, interstate water, or
territorial sea, and significantly affect means more than ``speculative
or insubstantial.'' Rapanos, at 780. The agencies propose to define
``significantly affect'' in precisely those terms.
The facts in the cases before the justices further inform the scope
of the proposed definition. Justice Kennedy was clear that ``[m]uch the
same evidence should permit the establishment of a significant nexus
with navigable-in-fact waters, particularly if supplemented by further
evidence about the significance of the tributaries to which the
wetlands are connected.'' Id. at 784. The agencies recognize that
``more than speculative or insubstantial'' is not a bright line
definition, but as the Supreme Court has recently recognized in Maui,
the scope of Clean Water Act jurisdiction does not always lend itself
to bright lines: ``In sum, we recognize that a more absolute position .
. . may be easier to administer. But, as we have said, those positions
have consequences that are inconsistent with major congressional
objectives, as revealed by the statute's language, structure, and
purposes.'' Maui, 140 S Ct. at 1477. Because of the factual nature of
the connectivity inquiry, any standard will require some case-specific
factual determinations. The NWPR acknowledged that ``[a]s to simplicity
and clarity, the agencies acknowledge that field work may frequently be
necessary to verify whether a feature is a water of the United
States.'' 85 FR 22270, April 21, 2020. But, like the Court in Maui, the
agencies have proposed factors to be used in assessing the strength of
the effects on downstream foundational waters and have identified the
functions they will consider in making significant nexus determinations
under the proposed rule. This approach is consistent with major
congressional objectives, as revealed by the statute's language,
structure, and purposes.\53\
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\53\ Through rulemaking the agencies could make some categorical
jurisdictional determination based on standards and factors that are
consistent with the Act's objective. See Riverside Bayview at 135,
n.9 (``If it is reasonable for the Corps to conclude that in the
majority of cases, adjacent wetlands have significant effects on
water quality and the aquatic ecosystem, its definition can
stand.''); see also Rapanos at 780-81 (Kennedy, J.) (``Through
regulations or adjudication, the Corps may choose to identify
categories of tributaries that . . . are significant enough that
wetlands adjacent to them are likely, in the majority of cases, to
perform important functions for an aquatic system incorporating
navigable waters.'').
---------------------------------------------------------------------------
It is also important to note that the agencies' significant nexus
standard in the proposed rule is carefully tailored so that only
particular types of functions provided by upstream waters can be
considered. Wetlands, streams, and open waters are well-known to
provide a wide variety of functions that translate into ecosystem
services. A significant nexus analysis, however, is limited to an
assessment of only those functions that have a nexus to the chemical,
physical, or biological integrity of traditional navigable waters,
interstate waters, or the territorial seas. Therefore, there are some
very important functions provided by wetlands, tributaries, and ``other
waters'' that will not be considered by the agencies when making
jurisdictional decisions under the proposed rule because they do not
have a sufficient nexus to downstream waters.
For example, for purposes of a jurisdictional analysis under the
significant nexus standard, the agencies will not be taking into
account the carbon sequestration benefits that aquatic resources like
wetlands provide. Provision of habitat for non-aquatic species, such as
migratory birds, and endemic aquatic species would not be considered as
part of a significant analysis under the proposed rule.\54\
Furthermore, the agencies would not consider soil fertility in
terrestrial systems, which is enhanced by processes in stream and
wetland soils and non-floodplain wetlands that accumulate sediments,
prevent or reduce soil erosion, and retain water on the landscape,
benefiting soil quality and productivity in uplands. There are also a
wide variety of functions that streams, wetlands, and open waters
provide that translate into ecosystem services that benefit society
that would not be considered in a significant nexus analysis under the
proposed rule. These include recreation (e.g., fishing, hunting,
boating, and birdwatching), production of fuel, forage, and fibers,
extraction of materials (e.g., biofuels, food, such as shellfish,
vegetables, seeds, nuts, rice), plants for clothes and other materials,
and medical compounds from wetland and aquatic plants or animals. While
these ecosystem services can contribute to the economy, they are not
relevant to a significant nexus analysis that the agencies would
conduct under the proposed rule.
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\54\ As the agencies have discussed, consideration of biological
functions such as provision of habitat is relevant for purposes of
significant nexus determinations under the proposed rule only to the
extent that the functions provided by tributaries, adjacent
wetlands, and ``other waters'' significantly affect the biological
integrity of a downstream foundational water.
---------------------------------------------------------------------------
The agencies have more than a decade of experience implementing the
significant nexus standard by making determinations of whether a water
alone or in combination with similarly situated waters has a more than
speculative or insubstantial effect. In their experience many waters
under the proposed rule will not have a significant nexus to downstream
foundational waters, and thus will not be jurisdictional under the Act,
and the agencies under current practice routinely conclude that there
is no significant nexus. The following are examples of waters that the
agencies found to not have a significant nexus and determined to be
non-jurisdictional under the pre-2015 regulatory regime. The agencies
are citing these samples to provide an indication of waters that would
likely not be jurisdictional under the proposed rule, though they
recognize that the significant nexus determination is case-specific.
Examples of waters that were determined not to have a significant
nexus to downstream foundational waters and that were non-
jurisdictional under the pre-2015 regulatory regime, and which
therefore would likely not be jurisdictional under the proposed rule,
are a linear stream in Ohio, hundreds of feet long, which is miles from
a traditional navigable water and does not provide any significant
functions for that water; an ephemeral stream in Ohio in an
agricultural field, which loses bed and bank and flows into an upland
swale; and ditches in California that were created from uplands, drain
only uplands, and that do not carry a relatively permanent flow of
water.
Examples of wetlands that have been determined not to meet the
significant nexus standard and therefore to be non-jurisdictional under
the pre-2015 regulatory regime and would likely not be jurisdictional
under the proposed rule include wetlands or open waters that drain into
upland areas, such as emergent wetlands in Idaho that drain into upland
swales that terminate in a closed basin upland area; wetlands in
Wisconsin surrounded by uplands that do not exchange surface water or
have ecological connections with the nearest tributary; wetlands in
Ohio surrounded by upland that have no connections to any apparent
surface water channel or to a jurisdictional water; and a non-navigable
lake in Oregon contained within a valley and that lacks surface
hydrologic connections to the river network. Other wetlands determined
not meet the significant nexus standard include an emergent wetland in
Alaska
[[Page 69433]]
surrounded by development that severed any hydrologic connections
between the wetland and a nearby wetland complex and lake; wetlands in
Washington separated by potential jurisdictional waters by thousands of
feet of well-drained soils as well as impervious surfaces; a large
forested wetland in Washington separated by the nearest jurisdictional
waters by residential and commercial developments on a topography that
would preclude flows into these waters and with no identified
ecological connections; a wetland in Oregon surrounded by a concrete
and cinder block wall, preventing any flows into downstream waters; and
a wetland in Arkansas separated from other wetlands and surrounded by
uplands.
While in most of these examples, the tributary, wetland, or lake
may well have had some effect on traditional navigable waters,
interstate waters, or the territorial seas, the agencies concluded that
those effects were not significant and so concluded that jurisdiction
did not lie under the Clean Water Act. See implementation section V.D
of this preamble for more information on significant nexus
determinations.
D. Implementation of Proposed Rule
The agencies are proposing to return to the longstanding definition
of ``waters of the United States'' that two other Administrations have
codified over the years, updated to reflect consideration of the
intervening Supreme Court decisions. This section first discusses
features over which the agencies generally did not assert jurisdiction
under the preambles, guidance, and practice of the pre-2015 regulatory
regime. The agencies intend to continue generally not asserting
jurisdiction over such features. Then the agencies explain the Rapanos
Guidance and how they have determined jurisdiction under the two
Rapanos standards for various categories of waters under the pre-2015
regulatory regime and solicit comment on potential alternative
approaches for applying the Rapanos standards. The agencies then
discuss the implementation tools and resources available for making
such determinations. The agencies welcome comment on all of these
topics, including the availability and efficacy of all of the tools and
resources discussed. The agencies intend to issue an updated ``Approved
Jurisdictional Determination'' form and instruction manual upon
promulgating a final rule to aid the public and field staff in
determining which waters are ``waters of the United States'' under the
final rule. The agencies may provide additional guidance in the final
rule based on public input received on this proposal.
1. Generally Not Considered ``waters of the United States''
Under the pre-2015 regulatory regime, the waters described below
were generally not considered ``waters of the United States'' even
though they were not explicitly excluded by regulation. The agencies
intend to continue this longstanding approach and are soliciting
comment on this approach for the proposed rule. The preamble to the
1986 regulations states that the agencies ``generally do not consider
[these] waters to be `Waters of the United States.' '' 51 FR 41217. The
preamble further stated that ``the Corps reserves the right on a case-
by-case basis to determine that a particular waterbody within these
categories of waters is a water of the United States. EPA also has the
right to determine on a case-by-case basis if any of these waters are
`waters of the United States.' '' Id. In practice, the agencies have
not generally asserted jurisdiction over such waters and would continue
to implement the proposed rule consistent with this practice.
Even when not themselves considered jurisdictional waters subject
to the Clean Water Act, the features described below (e.g., certain
ditches, swales, gullies, erosional features) may either be relevant to
a ``water of the United States'' jurisdictional analysis or otherwise
be subject to the Clean Water Act. The features may still contribute to
a surface hydrologic connection relevant for asserting jurisdiction
(e.g., between an adjacent wetland and a jurisdictional water). Rapanos
Guidance at 12. In addition, these waters may function as point sources
(i.e., ``discernible, confined, and discrete conveyances''), such that
discharges of pollutants to other waters through these features could
require a Clean Water Act section 402 or 404 permit. Discharges to
these waters may be subject to other Clean Water Act regulations (e.g.,
Clean Water Act section 311). Id.
a. Certain Ditches
Under the agencies' longstanding approach to determining which
waters are ``waters of the United States,'' certain ditches are
generally not considered ``waters of the United States.'' The preamble
to the 1986 regulations explains that ``[n]on-tidal drainage and
irrigation ditches excavated on dry land'' are generally not considered
``waters of the United States.'' 51 FR 41217. The agencies shifted this
approach slightly in the Rapanos Guidance and explained that ``ditches
(including roadside ditches) excavated wholly in and draining only
uplands and that do not carry a relatively permanent flow of water are
generally not waters of the United States.'' Rapanos Guidance at 11-12.
The agencies explained that these features are generally not considered
``waters of the United States'' ``because they are not tributaries or
they do not have a significant nexus to downstream traditional
navigable waters.'' Id.
The agencies intend to continue implementing the approach to
ditches described in the Rapanos Guidance. This approach is more
consistent with the relatively permanent standard than the approach in
the preamble to the 1986 regulations. Consistent with previous
practice, ditches constructed wholly in uplands and draining only
uplands with ephemeral flow would generally not be considered ``waters
of the United States.''
Also consistent with previous practice, the agencies would
typically assess a ditch's jurisdictional status based on whether it
could be considered a tributary (and, consistent with previous
practice, would not assess whether the ditch was jurisdictional under
the ``other waters'' provision). The implementation section below
includes discussion on the application of relevant reach under the
Rapanos Guidance, and the agencies solicit comment on potential
alternative approaches (see section V.D.2.b.ii.1.b of this preamble),
such as whether relevant reaches can be distinguished based on a change
from relatively permanent flow to non-relatively permanent flow. The
agencies acknowledge that for ditches in particular there may be
scenarios that make identification of relevant reach especially
challenging and encourage stakeholders to identify and discuss these
situations in their comments on relevant reach. The agencies
specifically request comment regarding whether the interpretation of
relevant reach for ditches should consider any particular factors for
situations where ditches are tidal, are treated as tributaries, or
contain wetlands.
In some situations, ditches with wetland characteristics have been
considered jurisdictional as adjacent wetlands. In most cases, such
ditches have been constructed in adjacent wetlands and would be
considered part of that larger adjacent wetland. However, consistent
with previous practice, wetlands that develop entirely within the
confines of a ditch that was excavated in and wholly draining only
uplands that does not carry a relatively permanent flow would be
considered
[[Page 69434]]
part of that ditch and generally would not be considered ``waters of
the United States.''
Where a ditch is jurisdictional, the agencies have historically
taken the position that the ditch can be both a ``water of the United
States'' and a point source and are proposing to reinstate this
position. For example, in 1975, the General Counsel of EPA issued an
opinion interpreting the Clean Water Act: ``it should be noted that
what is prohibited by section 301 is `any addition of any pollutant to
navigable waters from any point source.' It is therefore my opinion
that, even should the finder of fact determine that any given
irrigation ditch is a navigable water, it would still be permittable as
a point source where it discharges into another navigable water body,
provided that the other point source criteria are also present.'' In re
Riverside Irrigation District, 1975 WL 23864 at *4 (emphasis in
original). The opinion stated that ``to define the waters here at issue
as navigable waters and use that as a basis for exempting them from the
permit requirement appears to fly directly in the face of clear
legislative intent to the contrary.'' Id. Further, in Rapanos, Justice
Kennedy and the dissent rejected the conclusion that because the word
``ditch'' was in the definition of ``point source'' a ditch could never
be a water of the United States: ``certain water bodies could
conceivably constitute both a point source and a water.'' 547 U.S. at
772 (Kennedy, J., concurring); see also id. at 802 (Stevens, J.,
dissenting) (``The first provision relied on by the plurality--the
definition of ``point source'' in 33 U.S.C. [section] 1362(14)--has no
conceivable bearing on whether permanent tributaries should be treated
differently from intermittent ones, since `pipe[s], ditch[es],
channel[s], tunnel[s], conduit[s], [and] well[s]' can all hold water
permanently as well as intermittently.'').
The agencies recognize that this position is different than the
position in the NWPR, which stated that a ditch is either a water of
the United States or a point source. 85 FR 22297, April 21, 2020. The
NWPR justified this position by noting that the Clean Water Act defines
``point sources'' to include ditches and that the plurality opinion in
Rapanos stated that ``[t]he definitions thus conceive of `point
sources' and `navigable waters' as separate and distinct categories.
The definition of `discharge' would make little sense if the two
categories were significantly overlapping.'' 547 U.S. at 735-36
(Scalia, J., plurality), NWPR Response to Comments, section 6 at 12-13.
The NWPR, however, did not address that even this statement in the
plurality opinion in Rapanos acknowledges that there may be some
overlap between point sources and ``waters of the United States'' as
indicated by its finding that the two categories should not be
``significantly'' overlapping. Id. Moreover, there is no indication in
the text of the Clean Water Act that ditches that meet that plain
language definition of a point source cannot also be a ``water of the
United States.'' The agencies therefore believe that their
longstanding, historic view that a ditch can be both a point source and
a water of the United States is the better interpretation.
b. Certain Other Features
In addition to the ditches described above, the agencies have
generally not asserted jurisdiction over certain other features under
the pre-2015 regulatory regime and the agencies intend to continue the
practice for these features. The preamble to the 1986 regulations
explains that these other waters include: Artificially irrigated areas
which would revert to upland if the irrigation ceased; artificial lakes
or ponds created by excavating and/or diking dry land to collect and
retain water and which are used exclusively for such purposes as stock
watering, irrigation, settling basins, or rice growing; artificial
reflecting or swimming pools or other small ornamental bodies of water
created by excavating and/or diking dry land to retain water for
primarily aesthetic reasons; and waterfilled depressions created in dry
land incidental to construction activity and pits excavated in dry land
for the purpose of obtaining fill, sand, or gravel unless and until the
construction or excavation operation is abandoned and the resulting
body of water meets the definition of ``waters of the United States.''
51 FR 41217. In the Rapanos Guidance, the agencies added an additional
category to this list, explaining that ``[s]wales or erosional features
(e.g., gullies, small washes characterized by low volume, infrequent,
or short duration flow) are generally not waters of the United
States.'' Rapanos Guidance at 11-12. The agencies explained that these
features are generally not ``waters of the United States'' ``because
they are not tributaries or they do not have a significant nexus to
downstream traditional navigable waters.'' Id.
Swales and gullies are generally not jurisdictional, and these
features differ from ephemeral streams because they lack indicators of
an OHWM, whereas ephemeral streams typically have at least one
indicator of an OHWM. Ephemeral streams are jurisdictional where they
are tributaries and have a significant nexus to downstream waters.
Colloquial terminology may differ across the country; for example, some
streams in the arid West are known as ``gullies'' but are in fact
ephemeral streams because they have at least one indicator of an OHWM.
2. Determining Jurisdiction Under the Relatively Permanent Standard and
the Significant Nexus Standard
In this section, the agencies explain how they have determined
jurisdiction under the relatively permanent standard and significant
nexus standard for various categories of waters under the pre-2015
regulatory regime. The agencies describe how each standard has been
implemented consistent with the Rapanos Guidance, SWANCC Guidance, and
other aspects of longstanding practice where not addressed explicitly
by the guidances. The agencies then solicit comment on implementing the
standards consistent with the pre-2015 regulatory regime as well as
potential alternative approaches for applying the relatively permanent
and significant nexus standards. Additionally, the agencies solicit
comment on whether the implementation approaches adequately account for
expected changes in climate, and whether alternative approaches to
implementing the relatively permanent standard and significant nexus
standard should be considered.
a. ``Waters of the United States'' Under the Relatively Permanent
Standard
i. Approaches Under the Pre-2015 Regulatory Regime
(1) Background
Under the relatively permanent standard, relatively permanent
tributaries and adjacent wetlands that have a continuous surface
connection to such tributaries are jurisdictional under the Clean Water
Act as ``waters of the United States.'' Under the Rapanos Guidance, the
agencies assert jurisdiction over tributaries as ``relatively
permanent'' waters where the waters typically (e.g., except due to
drought) flow year-round or have a continuous flow at least seasonally
(e.g., typically three months). Rapanos Guidance at 6-7 (citing 126 S
Ct. at 2221 n.5 (Justice Scalia, plurality opinion) (explaining that
``relatively permanent'' does not necessarily exclude waters ``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
[[Page 69435]]
months'')). The agencies also assert jurisdiction over adjacent
wetlands that have a continuous surface connection to a relatively
permanent, non-navigable tributary. Id. at 6-7.
(2) Tributaries
Under the Rapanos Guidance, ``relatively permanent'' tributaries
include perennial streams that typically flow year-round and
intermittent streams that have continuous flow at least seasonally.
However, ``relatively permanent'' tributaries do not include ephemeral
streams that flow only in response to precipitation and intermittent
streams which do not have continuous flow at least seasonally.
Importantly, under the Rapanos Guidance, some intermittent streams are
considered ``relatively permanent'' and some are not. Scientists,
including agency staff, have used the terms ``perennial,''
``intermittent,'' and ``ephemeral'' for decades to characterize
tributary flow classifications.
Under the Rapanos Guidance, a ``tributary'' includes ``the entire
reach of the stream that is of the same order (i.e., from the point of
confluence, where two lower order streams meet to form the tributary,
downstream to the point such tributary enters a higher order stream).''
Id. at 6, n. 24. The flow characteristics of a particular tributary
generally are evaluated at the farthest downstream limit of such
tributary (i.e., the point the tributary enters a higher order stream).
Id. However, for purposes of determining whether the tributary is
relatively permanent, where data indicate the flow regime at the
downstream limit is not representative of the entire tributary (e.g.,
where data indicate the tributary is relatively permanent at its
downstream limit but not for the majority of its length, or vice
versa), the flow regime that best characterizes the entire tributary is
used. A primary factor in making this determination is the relative
lengths of segments with differing flow regimes. Id. The agencies
stated that it is reasonable to characterize the entire tributary in
light of the Supreme Court's observation that the phrase ``navigable
waters'' generally refers to ``rivers, streams, and other hydrographic
features.'' Citing Rapanos at 734, quoting Riverside Bayview, 474 U.S.
at 131. The entire reach of a stream is a reasonably identifiable
hydrographic feature.
(3) Wetlands
Under the pre-2015 regime, the agencies utilize the Rapanos
Guidance to determine where adjacent wetlands have a continuous surface
connection with a relatively permanent, non-navigable tributary. The
Rapanos Guidance notes that these wetlands are a subset of the broader
definition of ``adjacent'' wetlands. The plurality opinion indicates
that ``continuous surface connection'' is a ``physical connection
requirement.'' Rapanos Guidance at 6, citing Rapanos at 754.
Accordingly, under the Rapanos Guidance, a continuous surface
connection exists between a wetland and a relatively permanent, non-
navigable tributary where the wetland directly abuts the tributary
(e.g., they are not separated by uplands, a berm, dike, or similar
feature). Rapanos Guidance at 7, citing Rapanos at 751, n. 13
(referring to ``our physical-connection requirement''). A continuous
surface connection does not require surface water to be continuously
present between the wetland and the tributary. Rapanos Guidance at 7,
n.28, citing 33 CFR 328.3(b) and 40 CFR 232.2 (defining wetlands as
``those areas that are inundated or saturated by surface or ground
water at a frequency and duration sufficient to support a prevalence of
vegetation typically adapted for life in saturated soil conditions'').
In some circumstances, the United States has determined that a
continuous surface connection can include a physical connection such as
a non-jurisdictional ditch that connects the adjacent wetland to the
relatively permanent tributary. United States v. Cundiff, 555 F.3d at
213 (holding wetlands were jurisdictional under the plurality where
plaintiff created a continuous surface connection by digging ditches to
enhance the acid mine drainage into the creeks and away from his
wetlands; ``it does not make a difference whether the channel by which
water flows from a wetland to a navigable-in-fact waterway or its
tributary was manmade or formed naturally''). Generally, the agencies
completed significant nexus analyses on adjacent wetlands with such
connections.
The term ``adjacent'' has been defined in agency regulations since
1986 to mean ``bordering, contiguous, or neighboring.'' Wetlands
separated from other ``waters of the United States'' by man-made dikes
or barriers, natural river berms, beach dunes and the like are
``adjacent wetlands'' (see section V.C.7 of this preamble). Under the
Rapanos Guidance, the agencies consider wetlands ``adjacent'' if one of
following three criteria is satisfied. First, there is an unbroken
surface or shallow subsurface connection to jurisdictional waters and
this hydrologic connection maybe intermittent. Second, they are
physically separated from jurisdictional waters by man-made dikes or
barriers, or natural breaks (e.g., river berms, beach dunes). Or third,
their proximity to a jurisdictional water is reasonably close,
supporting the science-based inference that such wetlands have an
ecological interconnection with jurisdictional waters and therefore,
will not generally require a case-specific demonstration of an ecologic
interconnection. Rapanos Guidance at 5-6.
As stated above, under the Rapanos Guidance the agencies assert
jurisdiction over wetlands that have a continuous surface connection
with a relatively permanent, non-navigable tributary. These wetlands
are a subset of adjacent wetlands previously discussed that must have a
continuous surface connection with the tributary. This physical
connection requires that the wetland not be separated from the
relatively permanent, non-navigable tributary by uplands, a berm, dike,
or other similar feature. Although a constant hydrologic connection is
not required, there must be a continuous surface connection on the
landscape for these wetlands to be jurisdictional under this standard.
It is important to note that under the pre-2015 regulatory regime,
features such as uplands, a berm, dike, or similar feature that
separate a wetland from a relatively permanent, non-navigable tributary
may not be continuous. For example, an upland levee that separates a
wetland from a relatively permanent, non-navigable tributary may have
gaps along the length of the levee that provide for a connection
between the wetlands and the tributary. In such cases under the pre-
2015 regulatory regime, this type of connection would satisfy the
physical connection requirement.
ii. Other Potential Approaches To Implementing the Relatively Permanent
Standard
The agencies are seeking comment on whether they should implement
the relatively permanent standard in the proposed rule consistent with
the pre-2015 regulatory regime described above and if so whether there
are clarifications or other issues to be addressed. In addition, the
agencies are seeking comment on other options for making jurisdictional
determinations under the relatively permanent standard.
(1) Tributaries
The Rapanos Guidance limits the scope of relatively permanent
tributaries to perennial tributaries and certain
[[Page 69436]]
intermittent tributaries. The agencies could interpret relatively
permanent waters more generally to include perennial tributaries and
all intermittent tributaries. With such an interpretation, the agencies
could use an approach to ``perennial,'' ``intermittent,'' and
``ephemeral'' as the NWPR did and could specify that the agencies
generally intend to consider perennial and intermittent tributaries as
relatively permanent waters in light of their characteristics and flow,
but ephemeral tributaries would not be considered relatively permanent.
Such an approach would not limit intermittent tributaries under the
relatively permanent standard to only those that have continuous flow
at least seasonally (e.g., typically three months). The agencies could
clarify that intermittent streams under the relatively permanent
standard may flow less than three months (e.g., streams that flow
``continuously during certain times of the year,'' similar to the
language in the NWPR), as certain intermittent streams may flow for
shorter periods of time but are still distinct from ``ephemeral''
streams.
The Rapanos Guidance does not explicitly address whether
intermittent flow must come from particular sources (e.g., groundwater,
snowpack melt, effluent flow, or upstream contributions of flow) under
the relatively permanent standard. The agencies solicit comment about
whether the final rule should clarify the required sources of
intermittent flow, and what those sources of flow should be. For
instance, the NWPR clarified that intermittent flow must occur more
than in direct response to precipitation, and the NWPR explained that
could mean, for example, seasonally when the groundwater table is
elevated or when snowpack melts. The NWPR differentiated between
ephemeral flows driven by ``snowfall,'' and intermittent flows driven
by ``snowpack melt,'' where snowpack was defined as ``layers of snow
that accumulate over extended periods of time in certain geographic
regions or at high elevation (e.g., in northern climes or mountainous
regions).'' Alternatively, the final rule could allow for regionally
specific interpretations of intermittent flow sources to allow for
flexible implementation of the rule.
This proposed rule does not provide specific definitions for
tributary flow classifications, including the terms ``perennial,''
``intermittent,'' and ``ephemeral.'' The agencies are seeking comment
on whether they should define these flow classifications in the final
rule. Any specific definitions would depend in part on how the agencies
describe intermittent tributaries under the relatively permanent
standard in the final rule, including the scope of intermittent
tributaries and any description of required sources of flow. For
example, if the agencies interpret the relatively permanent standard to
include all perennial and intermittent tributaries and decide to
include groundwater and snowpack melt as appropriate sources of
intermittent flow, the agencies could use the same definitions as the
NWPR:
The term ``perennial'' means surface water flowing
continuously year-round.
The term ``intermittent'' means surface water flowing
continuously during certain times of the year and more than in direct
response to precipitation (e.g., seasonally when the groundwater table
is elevated or when snowpack melts).
The term ``ephemeral'' means surface water flowing or
pooling only in direct response to precipitation (e.g., rain or snow
fall).
Alternatively, the agencies could interpret the relatively
permanent standard using modified definitions of these terms.
(2) Wetlands
In some circumstances, the United States has concluded that a non-
jurisdictional ditch or other such feature can serve as a physical
connection that maintains a continuous surface connection between a
wetland and a relatively permanent water. See United States v. Cundiff.
The agencies seek comment on whether to provide guidance on when
specific features (e.g., ditches, culverts, pipes, or swales) can serve
as physical connections that can maintain a continuous surface
connection between a wetland and a relatively permanent water.
(3) Open Waters
The agencies do not discuss in the Rapanos Guidance the assessment
of open waters such as lakes and ponds under the relatively permanent
waters standard. As discussed above, the agencies' longstanding
position, reflected in the U.S. Army Corps of Engineers Jurisdictional
Determination Instructional Guidebook, is that tributaries for purposes
of the definition of ``waters of the United States'' include lakes and
ponds that flow directly or indirectly to downstream traditional
navigable waters, interstate waters, or the territorial seas. See U.S.
Army Corps of Engineers Jurisdictional Determination Form Instructional
Guidebook, at 8, 9. In practice, the agencies have asserted
jurisdiction over relatively permanent tributary lakes and ponds. The
agencies are soliciting comment on whether they should explicitly
explain this implementation approach in the final rule.
The agencies do not address the ``other waters'' category in the
Rapanos Guidance with respect to either the relatively permanent
standard or the significant nexus standard. The proposed rule adds both
standards to the ``other waters'' category. The agencies are soliciting
comment on whether they should take an approach to assessing
jurisdiction over non-tributary open waters under the relatively
permanent standard that is similar to the approach described in the
Rapanos Guidance for assessing jurisdiction over adjacent wetlands with
a continuous surface connection to relatively permanent waters. Under
such an approach, the agencies would assert jurisdiction over
relatively permanent open waters that have a continuous surface
connection with a relatively permanent, non-navigable tributary. The
agencies note that some such lakes and ponds are jurisdictional under
the NWPR when they are inundated by flooding from a jurisdictional
water in a typical year.
b. ``Waters of the United States'' Under the Significant Nexus Standard
ii. Approaches Under the Pre-2015 Regulatory Regime
(1) Background
The significant nexus standard as clarified by Justice Kennedy's
opinion in Rapanos is: ``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.''' Rapanos at 780. The agencies in the Rapanos Guidance use
the significant nexus standard for determining jurisdiction over
certain adjacent wetlands and tributaries. As discussed above, the
proposed rule would add the significant nexus standard to the ``other
waters,'' tributary, and adjacent wetland categories in the 1986
regulations. In the Rapanos Guidance, the agencies explain: ``While
Justice Kennedy's opinion discusses the significant nexus standard
primarily in the context of wetlands adjacent to non-navigable
tributaries, his opinion also addresses Clean Water Act jurisdiction
over tributaries themselves. Justice Kennedy states that, based on the
Supreme Court's decisions in Riverside Bayview
[[Page 69437]]
and SWANCC, `the connection between a non-navigable water or wetland
may be so close, or potentially so close, that the Corps may deem the
water or wetland a ``navigable water'' under the Act.''' Rapanos
Guidance at 9, citing Rapanos at 767 (emphasis added in Rapanos
Guidance).
(2) Scope of Significant Nexus Analysis
In the Rapanos Guidance, the agencies assess tributaries and their
adjacent wetlands together and state: ``In considering how to apply the
significant nexus standard, the agencies have focused on the integral
relationship between the ecological characteristics of tributaries and
those of their adjacent wetlands, which determines in part their
contribution to restoring and maintaining the chemical, physical and
biological integrity of the Nation's traditional navigable waters. The
ecological relationship between tributaries and their adjacent wetlands
is well documented in the scientific literature and reflects their
physical proximity as well as shared hydrological and biological
characteristics. The flow parameters and ecological functions that
Justice Kennedy describes as most relevant to an evaluation of
significant nexus result from the ecological inter-relationship between
tributaries and their adjacent wetlands.'' Rapanos Guidance at 9.
Under the Rapanos Guidance, when performing a significant nexus
analysis, the first step is to determine the relevant reach of the
tributary being assessed, even when the subject water may only include
a wetland. Under the guidance, a tributary is the entire reach of the
stream that is of the same order (i.e., from the point of confluence,
where two lower order streams meet to form the tributary, downstream to
the point such tributary enters a higher order stream). The guidance
states that for purposes of demonstrating a connection to traditional
navigable waters, it is appropriate and reasonable to assess the flow
characteristics of the tributary at the point at which water is in fact
being contributed to a higher order tributary or to a traditional
navigable water. As discussed above, the agencies' longstanding
position is that tributaries for purposes of the definition of ``waters
of the United States'' include lakes and ponds that flow directly or
indirectly to downstream traditional navigable waters, interstate
waters, or the territorial seas. See ``U.S. Army Corps of Engineers
Jurisdictional Determination Form Instructional Guidebook,'' at 8, 9.
In practice, the agencies have asserted jurisdiction over tributary
lakes and ponds that meet the significant nexus standard.
After establishing the relevant reach of the tributary, under the
Rapanos Guidance the agencies then determine if the tributary has any
adjacent wetlands. Where a tributary has no adjacent wetlands, the
agencies consider the flow characteristics and functions of only the
tributary itself in determining whether such tributary has a
significant effect on the chemical, physical and biological integrity
of downstream traditional navigable waters, interstate waters, or the
territorial seas. Rapanos Guidance at 10. If the tributary has adjacent
wetlands, the significant nexus evaluation needs to recognize the
ecological relationship between tributaries and their adjacent
wetlands, and their closely linked role in protecting the chemical,
physical, and biological integrity of downstream traditional navigable
waters. Id. at 10.
Under the Rapanos Guidance the agencies consider the flow and
functions of the tributary together with the functions performed by all
the wetlands adjacent to the tributary in evaluating whether a
significant nexus is present. This approach reflects the agencies'
interpretation in the Rapanos Guidance of Justice Kennedy's term
``similarly situated'' to include all wetlands adjacent to the same
tributary. Under this approach, where it is determined that a tributary
and its adjacent wetlands collectively have a significant nexus with
traditional navigable waters, the tributary and all of its adjacent
wetlands are jurisdictional. Id. at 10.
In addition, the Rapanos Guidance states that certain ephemeral
waters in the arid West are distinguishable from the geographic
features like non-jurisdictional swales and erosional features, where
such ephemeral waters are tributaries and they have a significant nexus
to downstream traditional navigable waters. For example, in some cases
these ephemeral tributaries may serve as a transitional area between
the upland environment and the traditional navigable waters. The
guidance explains that during and following precipitation events,
ephemeral tributaries collect and transport water and sometimes
sediment from the upper reaches of the landscape downstream to the
traditional navigable waters. These ephemeral tributaries may provide
habitat for wildlife and aquatic organisms in downstream traditional
navigable waters. These biological and physical processes may further
support nutrient cycling, sediment retention and transport, pollutant
trapping and filtration, and improvement of water quality, functions
that may significantly affect the chemical, physical, and biological
integrity of downstream traditional navigable waters. Id. at 12. In
practice, the agencies have regulated some but not all ephemeral
tributaries evaluated under the significant nexus standard under the
pre-2015 regulatory regime.
(3) Assessment of a Significant Nexus
To implement the Rapanos Guidance, the agencies instruct field
staff evaluating the significant nexus of a tributary and its adjacent
wetlands to evaluate all available hydrologic information (e.g., gage
data, precipitation records, flood predictions, historic records of
water flow, statistical data, personal observations/records, etc.) and
physical indicators of flow including the presence and characteristics
of a reliable OHWM when assessing significant nexus. Rapanos Guidance
at 10. The use of relevant geographic water quality data in conjunction
with site-specific data produced from improved field sampling
methodology and hydrologic modelling are important for understanding
the chemical, physical, and biological functions provided by
tributaries and their adjacent wetlands and their effects on downstream
traditional navigable waters.
While EPA regions and Corps districts must exercise judgment to
identify the OHWM on a case-by-case basis, the regulations identify the
factors to be applied. These regulations have been further explained in
RGL 05-05, and the Corps continues to improve regulatory practices
across the country through ongoing research and the development of
regional and national OHWM delineation procedures. The agencies will
apply the regulations, RGL 05-05, and applicable OHWM delineation
manuals and take other steps as needed to ensure that the OHWM
identification factors are applied consistently nationwide. Rapanos
Guidance at 10-11, n. 36.
In the Rapanos Guidance, the agencies identify numerous functions
provided by tributaries and wetlands that are relevant to the
significant nexus determination. The duration, frequency, and volume of
flow in a tributary, and subsequently the flow in downstream
traditional navigable waters, is directly affected by the presence of
adjacent wetlands that hold floodwaters, intercept sheet flow from
uplands, and then release waters to tributaries in a more even and
constant manner. Wetlands may also help to maintain more consistent
water temperature in tributaries, which is important for some
[[Page 69438]]
aquatic species; adjacent wetlands trap and hold pollutants that may
otherwise reach tributaries (and downstream traditional navigable
waters) including sediments, chemicals, and other pollutants.
Tributaries and adjacent wetlands provide habitat (e.g., refuge,
feeding, nesting, spawning, or rearing young) for many aquatic species
that also live in traditional navigable waters. Id. at 9. Under the
Rapanos Guidance, the agencies take into account other relevant
considerations, including the functions performed by the tributary
together with the functions performed by any adjacent wetlands.
Another specific consideration from the Rapanos Guidance is the
extent to which the tributary and adjacent wetlands have the capacity
to carry pollutants (e.g., petroleum wastes, toxic wastes, sediment) or
flood waters to traditional navigable waters, or to reduce the amount
of pollutants or flood waters that would otherwise enter traditional
navigable waters. Id. at 11; citing Rapanos at 782, citing Oklahoma ex
rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 524-25 (1941)
(``Just as control over the non-navigable parts of a river may be
essential or desirable in the interests of the navigable portions, so
may the key to flood control on a navigable stream be found in whole or
in part in flood control on its tributaries.'').
The agencies under the Rapanos Guidance also evaluate ecological
functions performed by the tributary and any adjacent wetlands which
affect downstream traditional navigable waters, such as the capacity to
transfer nutrients and organic carbon vital to support downstream
foodwebs (e.g., macroinvertebrates present in headwater streams convert
carbon in leaf litter making it available to species downstream),
habitat services such as providing spawning areas for recreationally or
commercially important species in downstream waters, and the extent to
which the tributary and adjacent wetlands perform functions related to
maintenance of downstream water quality such as sediment trapping.
Rapanos Guidance at 11. In the context of the Rapanos Guidance,
ecological functions were meant to represent the suite of chemical,
physical, and biological functions performed by the waters being
assessed that affect downstream traditional navigable waters.
To demonstrate effects on physical integrity of downstream waters,
the agencies have used evidence of physical connections, such as flood
water or sediment retention (flood prevention). Indicators of
hydrologic connections between the water being evaluated and
jurisdictional waters may also provide evidence of a physical
connection. In addition, relevant considerations for physical
connectivity could include rain intensity, duration of rain events or
wet season, soil permeability, distance of hydrologic connection
between the water and the traditional navigable water, and depth from
surface to water table, all of which may indicate evidence of
connection to stream baseflows, and any preferential flowpaths.
Evidence of a significant effect on the chemical integrity of
foundational waters has been found by identifying the properties of the
water(s) under evaluation in comparison to the traditional navigable
water; signs of retention, release, or transformation of nutrients or
pollutants; and the effect of landscape position on the strength of the
connection to the nearest jurisdictional water and through those waters
to a traditional navigable water. Relevant considerations for chemical
connectivity could include hydrologic connectivity, surrounding land
use and land cover, the landscape setting, and deposition of chemical
constituents (e.g., acidic deposition).
To determine whether a water has a significant effect on the
biological integrity of traditional navigable waters, interstate
waters, or territorial seas, the agencies have identified biological
factors or uses present in the relevant stream reach, and then
evaluated the effects of these factors or uses on the downstream
waters. Examples of biological factors and uses include: Resident
aquatic or semi-aquatic species present in the water being evaluated,
the tributary system, and downstream traditional navigable waters
(e.g., fish, amphibians, aquatic and semi-aquatic reptiles, aquatic
birds, benthic macroinvertebrates); whether those species show life-
cycle dependency on the identified aquatic resources (foraging,
feeding, nesting, breeding, spawning, use as a nursery area, etc.); and
whether there is reason to expect presence or dispersal around the
water being evaluated, and if so, whether such dispersal extends to the
tributary system or beyond or from the tributary system to the water
being evaluated. In addition, relevant factors influencing biological
connectivity and effects could include species' life history traits,
species' behavioral traits, dispersal range, population sizes, timing
of dispersal, distance between the water being evaluated and a
traditional navigable water, the presence of habitat corridors or
barriers, and the number, area, and spatial distribution of habitats.
Under such an approach, non-aquatic species or species such as non-
resident migratory birds do not demonstrate a life cycle dependency on
the identified aquatic resources and are not evidence of a significant
nexus.
As discussed in section V.C.10 of this preamble, the agencies'
proposed definition of ``significantly affect'' at paragraph (g)
includes a list of factors that the agencies will consider when
assessing the significance of the effect of a function. These factors
are consistent with the approach the agencies used in assessing
significant nexus under the Rapanos Guidance, and the agencies are
soliciting comment on whether to include these or other factors, as
well as whether to include functions identified in the Rapanos Guidance
or other functions in the proposed rule or in approaches for
implementing the rule.
ii. Other Potential Approaches To Implementing the Significant Nexus
Standard
The agencies solicit comment on how to apply the significant nexus
standard in the field, including whether they should implement the
significant nexus standard in the proposed rule consistent with the
Rapanos Guidance for all waters under the proposed rule that require a
significant nexus evaluation--i.e., certain ``other waters,'' non-
relatively permanent tributaries, and certain adjacent wetlands (i.e.,
waters identified in paragraphs (a)(3)(ii), (a)(5)(ii), (a)(7)(iii) of
the proposed rule). Should the agencies implement the significant nexus
standard consistent with the Rapanos Guidance, the agencies are seeking
comment on whether there are clarifications or other issues to be
addressed to improve that implementation approach. The agencies are
also seeking comment on other approaches to implementing the
significant nexus standard, such as a broader, science-based approach
to some aspects of a significant nexus analysis or an approach that
tailors the scope of a significant analysis based on facts like the
geographic region or type of water being assessed, as discussed below.
(1) Scope of Significant Nexus Analysis for Adjacent Wetlands and
Tributaries
Under the significant nexus standard, waters possess the requisite
significant nexus if they ``either alone or in combination with
similarly situated [wet]lands in the region, significantly affect the
chemical, physical, and biological integrity of other covered waters
more readily understood as `navigable.''' Rapanos at 780. These
significant nexus analyses underpin
[[Page 69439]]
determinations of jurisdiction for certain categories of waters under
the proposed rule. However, several terms in this standard were not
defined in Rapanos. The agencies are soliciting comment on approaches
for implementing the proposed rule, including regarding (1) which
waters are ``similarly situated,'' and thus should be analyzed in
combination, in (2) the ``region,'' for purposes of a significant nexus
analysis, and (3) the types of functions that should be analyzed to
determine if waters significantly affect the chemical, physical, or
biological integrity of traditional navigable waters, interstate
waters, or the territorial seas. Discussion of the alternative
approaches regarding relevant functions is in section V.D.2.b.ii.2 of
this preamble.
a. Similarly Situated Waters
As discussed above, the Rapanos Guidance interpreted ``similarly
situated'' to mean a tributary and its adjacent wetlands. The agencies
could implement the final rule consistent with this approach or take an
approach that interprets which waters are ``similarly situated''
differently than the Rapanos Guidance. One such approach would be to
interpret ``similarly situated'' in terms of particular waters that are
providing common, or similar, functions for downstream waters such that
it is reasonable to consider their effect together. Such an approach
could consider tributaries to be similarly situated with other
tributaries, adjacent wetlands to be similarly situated with adjacent
wetlands, and ``other waters'' to be similarly situated with ``other
waters'' (e.g., lakes and ponds with similar functions and geographic
position on the landscape). Another approach would be to consider
similarly situated waters to be tributaries of the same flow regime
(for example, assessing an ephemeral stream in combination with other
ephemeral streams in the region). The agencies could also consider
tributaries of the same stream order to be similarly situated (for
example, assessing all first order streams in combination with other
first order streams in the region).
The agencies note that the best available science supports
evaluating the connectivity and effects of streams, wetlands, and open
waters to downstream waters in a cumulative manner in context with
other streams, wetlands, and open waters. See Technical Support
Document.
b. In the Region
The agencies could implement the scope of the significant nexus
analysis (what is considered ``in the region'') consistent with the
Rapanos Guidance, which relied on a concept of a relevant ``reach'' of
a tributary--defined as the entire reach of the stream that is of the
same order (i.e., from the point of confluence, where two lower order
streams meet to form the tributary, downstream to the point such
tributary enters a higher order stream). Rapanos Guidance at 10.
Alternatively, the agencies could implement what is considered ``in
the region'' for significant nexus evaluations with an approach
different from that in the Rapanos Guidance. For example, the relevant
reach for purposes of considering what is ``in the region'' for a
significant nexus evaluation could be implemented the way the term
``reach'' was interpreted in the NWPR, meaning a section of a stream or
river along which similar hydrologic conditions exist, such as
discharge, depth, area, and slope. 85 FR 22290, April 21, 2020. Under
the NWPR's approach, a reach can be any length of a stream or river,
but for implementation purposes that length is bounded by similar flow
characteristics. Similarly, the agencies could implement the ``relevant
reach'' to incorporate the entire length of the stream that is of the
same flow regime (i.e., relatively permanent and non-relatively
permanent flow, or perennial, intermittent, and ephemeral flow). For
example, if a perennial tributary becomes intermittent and then
ephemeral and then perennial again, it may be viewed as four separate
relevant reaches (e.g., perennial reach, intermittent reach, ephemeral
reach, perennial reach). Alternatively, the agencies could use an
approach that is substantially similar to the Rapanos Guidance but that
identifies the relevant reach based on certain hydrologic or geomorphic
characteristics. For instance, the relevant reach of a tributary could
rely on factors identified in stream field assessments and monitoring
protocols such as the similarity of the channel's substrate or
geomorphic classification. Additional factors identified through field
observations or remote-sensing could also be used to determine the
extent of a tributary's relevant reach such as the presence of natural
features like bedrock outcrops or valley confinements, and non-natural
features like culverts or road crossings, which can modify or influence
hydrologic characteristics and geomorphic processes. Aerial and
satellite imaging, National Hydrography Dataset (NHD) Plus High
Resolution data, and high resolution digital elevation models could be
used to evaluate whether hydrologic and geomorphic conditions within a
channel are similar enough to be defined as the relevant reach of a
tributary. Another option is for the agencies to interpret a tributary
for purposes of the significant nexus analysis to be the entire length
of a stream based on maps or best professional judgment.
There are also a range of approaches for determining the ``region''
in which waters to be assessed lie and which could allow for a more
regionalized approach to significant nexus assessments. For example,
the region could be sub-watersheds or the watershed defined by where a
tributary and its upstream tributaries drain into a traditional
navigable water, interstate water, or the territorial seas. If the
watershed draining to the traditional navigable water, interstate
water, or territorial sea is too large, the watershed could be
evaluated at a subwatershed scale (e.g., at the hydrologic unit code
(HUC) 8, 10, or 12 watershed scale). Alternatively, the watershed could
be considered just the watershed of the relevant reach (i.e.,
catchment), and the relevant reach could be determined using the
options described above. Another option is for the watershed to be
delineated from the downstream-most point of the relevant reach--that
is, the region would be the watershed that drains to and includes the
relevant reach in question. Many existing spatial analysis tools based
on watershed frameworks and elevation models can be used to delineate
watersheds quickly and reliably in most parts of the country.
Other options for determining a ``region'' in which similarly
situated waters would be considered cumulatively could include a
narrower interpretation such as waters within a contiguous area of land
with relatively homogeneous soils, vegetation, and landform (e.g.,
plain, mountain, valley, etc.) providing similar functions such as
habitat, water storage, sediment retention, and pollution
sequestration. This approach would be highly case specific and rely on
the use of resources such as soil surveys and possibly watershed
assessment reports to determine those waters that are similarly
situated within a region.
More broadly, ``region'' could be interpreted to mean an ecoregion
which serves as a spatial framework for the research, assessment,
management, and monitoring of ecosystems and ecosystem components.
Ecoregions are areas where ecosystems (and the type, quality, and
quantity of environmental resources) are generally similar (see https://www.epa.gov/eco-research/ecoregions). Ecoregions are identified by
[[Page 69440]]
analyzing the patterns and composition of biotic and abiotic phenomena
that affect or reflect differences in ecosystem quality and
integrity.\55\ \56\ These phenomena include geology, landforms, soils,
vegetation, climate, land use, wildlife, and hydrology. Under the
ecoregion approach, similarly situated waters would be considered
cumulatively within an ecoregion (see, e.g., https://www.epa.gov/eco-research/ecoregions-north-america). The scale of ecoregion (e.g., Level
I, Level II, Level III, or Level IV ecoregions identified by EPA in
North America) used for determining the ``region'' could be quite
broad, such as the 12 different Level I ecological regions in the
continental United States or narrower like the 105 different Level III
ecological regions in the continental United States or the 967 Level IV
ecoregions in the conterminous United States. Because Level I
ecoregions are quite large, considerations of similarly situated waters
at the Level I ecoregion scale could potentially obscure the measurable
effects of a single aquatic resource on a downstream traditional
navigable water, interstate water, or territorial sea. However, the
scale of the similarly situated analysis within an ecoregion could be
refined using the smaller Level III or Level IV ecoregions which allow
local characteristics to be identified and are more specifically
oriented towards environmental management strategies. Under this
approach in a jurisdictional analysis, scientific literature describing
or studying characteristics of the Level III or Level IV ecoregions
could be used to inform the evaluation of specific ecological functions
performed by similarly situated waters. A benefit of using this
approach is that ecoregions are spatial datasets which have been, or
could be, incorporated into many existing spatial analysis tools and
mapping platforms. In addition, stakeholders have called for
acknowledging regional differences in the definition of ``waters of the
United States,'' and an ecoregion approach could allow for such
consideration in implementation.
---------------------------------------------------------------------------
\55\ Omernik, J.M. 1987. Ecoregions of the conterminous United
States. Map (scale 1:7,500,000). Annals of the Association of
American Geographers 77(1):118-125.
\56\ Omernik, J.M. 1995. Ecoregions: A spatial framework for
environmental management. In: Biological Assessment and Criteria:
Tools for Water Resource Planning and Decision Making. Davis, W.S.
and T.P. Simon (eds.), Lewis Publishers, Boca Raton, FL. p. 49-62.
---------------------------------------------------------------------------
In addition to ecoregions, other methods of mapping boundaries
where similarly situated waters could be considered cumulatively for a
significant nexus analysis would be to rely on hydrologic landscape
regions or physiographic groupings. Hydrologic landscape regions are
groups of watersheds that are clustered together on the basis of
similarities in land-surface form, geologic texture, and climate
characteristics.\57\ Hydrologic landscape regions are based on a
concept that reflects fundamental hydrologic processes that are
expected to affect water quality and other environmental
characteristics. Based on a commonly used method to delineate
hydrologic landscape regions that was developed by the USGS, there are
20 regions that cover the entire United States.\58\ This method could
present similar challenges as the Level I ecoregion approach described
above, whereby the hydrologic landscape region scale obscures the
measurable effects of single aquatic resources. Alternatively, the
agencies could rely on well-established physiographic divisions based
on topography, geology, and geomorphology, including the eight
physiographic regions across the contiguous United States, the 25
physiographic provinces within those regions, or the 85 physiographic
sections within those regions (available at https://water.usgs.gov/GIS/metadata/usgswrd/XML/physio.xml).
---------------------------------------------------------------------------
\57\ Winter, T.C., 2001. The concept of hydrologic landscapes:
Journal of the American Water Resources Association, v. 37, p. 335-
349.
\58\ Wolock, D.M. 2003. Hydrologic landscape regions of the
United States (No. 2003-145). US Geological Service.
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(2) Other Waters
The agencies seek comment on potential approaches to address a
significant nexus analysis for waters under the ``other waters''
provision of the proposed rule. As discussed in section V.C.3 of this
preamble, ``other waters'' were not addressed by the Rapanos Guidance.
The agencies could adopt the approach used in the SWANCC Guidance,
whereby field staff were directed to seek approval from agency
headquarters before asserting jurisdiction over isolated waters that
are intrastate and non-navigable. See 68 FR at 1996, January 15, 2003.
As a matter of practice since the issuance of the SWANCC Guidance, the
Corps has not asserted jurisdiction over such ``other waters.'' The
agencies would not be precluded as a legal matter from asserting
jurisdiction over ``other waters'' under this proposed rule, which
would retain the ``other waters'' provision from the 1986 regulations
and add the relatively permanent and significant nexus standards, but
following the SWANCC Guidance approach would require an additional
approval process before the agencies asserted jurisdiction. The
agencies could also modify the prior approach by identifying a
subsection of ``other waters'' that could be determined jurisdictional
without headquarters' authorization, such as lakes and ponds which meet
the definition of ``adjacent,'' but do not fall within the adjacent
wetlands provision because they are open waters, not wetlands (e.g.,
oxbow lakes and ponds).
``Other waters'' that meet the definition of ``adjacent'' could be
treated like adjacent wetlands under the Rapanos Guidance. Under such
an approach, the agencies could adopt the same interpretation of
``similarly situated'' that is used to complete a significant nexus
determination for adjacent wetlands (see section V.D.2.b.ii.1 of this
preamble), or the agencies could adopt a different interpretation of
``similarly situated'' that is specifically applicable to ``other
waters.''
The various options for implementing significant nexus are not
mutually exclusive and the agencies are interested in any other
approaches for assessing significant nexus under the proposed rule,
particularly approaches that utilize existing science-based tools and
resources to assist in predictability and ease of implementation for
the public and the agencies.
3. Resources for Making Jurisdictional Determinations
Many field-based and remote tools and sources of data are available
to determine Clean Water Act jurisdiction under the proposed rule. In
some cases, a property owner may be able to determine whether a
property includes a ``water of the United States'' based on observation
or experience. In other cases, a property owner may seek assistance
from a consultant to assess the jurisdictional status of features on
their property. Property owners may also seek a jurisdictional
determination from the Corps, which provides jurisdictional
determinations as a public service. When conducting a jurisdictional
determination, the Corps will review any documentation that a property
owner, or consultant, provides to assist in making a jurisdictional
determination. EPA staff also regularly assess the jurisdictional
status of waters in implementing Clean Water Act programs. The agencies
expect that EPA and Corps staff, as well as private consultants, would
be the primary users of the tools and sources of remote data described
below, and they have ample
[[Page 69441]]
experience in using them from prior regulatory regimes.
The resources covered in this section include tools for identifying
relatively permanent tributaries (section V.D.3.a of this preamble);
tools for identifying wetlands adjacent to traditional navigable
waters, interstate waters, the territorial seas, impoundments of
jurisdictional waters, or tributaries (section V.D.3.b of this
preamble); and tools for applying a significant nexus standard (section
V.D.3.c of this preamble). This section presents a non-exclusive list
of tools that the agencies have used in the past and will continue to
use to assist in making jurisdictional decisions, but other tools could
also be used to determine jurisdiction. The agencies have also
identified a number of recent advancements in the data, tools, and
methods that can be used to make jurisdictional decisions (section
V.D.3.d of this preamble).
a. Identifying Relatively Permanent Tributaries
Relatively permanent tributaries include rivers, streams, and other
hydrographic features with standing or flowing bodies of water, and may
also include certain lakes and ponds. These features can be identified
on the landscape using various remote sensing resources such as USGS
stream gage data (available at https://waterdata.usgs.gov/nwis/rt),
USGS topographic maps (available at https://www.usgs.gov/core-science-systems/ngp/tnm-delivery/topographic-maps), high-resolution elevation
data and associated derivatives (e.g., slope or curvature metrics),
Federal Emergency Management Agency (FEMA) flood zone maps (available
at https://msc.fema.gov/portal/home), NRCS soil maps (available at
https://websoilsurvey.sc.egov.usda.gov/App/WebSoilSurvey.aspx), NHD
data, National Wetland Inventory (NWI) data, maps and geospatial
datasets from state, tribal, or local governments, and/or aerial or
satellite imagery. For example, tributaries are observable in aerial
imagery and high-resolution satellite imagery by their topographic
expression, characteristic linear and curvilinear patterns, dark
photographic tones, or the presence of riparian vegetation. USGS
topographic maps often include different symbols to indicate mapped
hydrographic features such as perennial and intermittent tributaries
(see ``Topographic Map Symbols,'' available at https://pubs.usgs.gov/gip/TopographicMapSymbols/topomapsymbols.pdf). Due to limitations
associated with some remote tools, field verification for accuracy may
be necessary, and some examples of field indicators will be discussed
in more detail below.
Under the Rapanos Guidance, tributaries may be considered
relatively permanent if they typically flow year-round or have
continuous flow at least seasonally (e.g., typically three months). A
key factor that the agencies typically consider when assessing the
length and timing of expected ``seasonal'' flows is the geographic
region. The time period, including length, constituting ``seasonal''
varies across the country due to many relevant factors including
climate, hydrology, topography, soils, and other conditions. For
example, in parts of the southeastern United States (Southeast),
precipitation is distributed somewhat uniformly throughout the year,
but increased evapotranspiration during the growing season can reduce
surficial ground water levels and lead to reduced or absent surface
flows late in the growing season (e.g., late summer or early autumn).
Consequently, ``seasonal'' flows in the Southeast may typically occur
in the winter or early spring. In other areas, snowmelt drives
streamflow more than rainfall, with seasonal flow coinciding with
warming temperatures typically in the spring or early summer. In
addition, the agencies have found that two months of continuous flow,
for example, is considered ``seasonal'' flow in certain regions of the
country and can be sufficient to support a relatively permanent
designation.\59\ Sources of information that can facilitate the
evaluation of seasonal flow from snowmelt are NOAA national snow
analyses maps (available at https://www.nohrsc.noaa.gov/nsa/), NRCS
sources (available at https://www.wcc.nrcs.usda.gov/snow/), or use of
hydrographs to indicate a large increase in stream discharge due to the
late spring/early summer thaws of melting snow. The agencies have
experience evaluating seasonal flow and will continue to use multiple
tools, including remote and field-based indicators to inform decisions.
---------------------------------------------------------------------------
\59\ See, e.g., Memorandum to Assert Jurisdiction for NWP-2007-
945 (January 23, 2008), available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll5/id/1437.
---------------------------------------------------------------------------
While not providing explicit flow classifications (e.g., perennial,
intermittent, or ephemeral), various remote or desktop tools can help
the agencies and the public better understand streamflow and inform
determinations of flow classifications. These tools include local maps,
StreamStats by the USGS (available at https://streamstats.usgs.gov/ss/
), Probability of Streamflow Permanence (PROSPER) by the USGS, which
provides streamflow permanence probabilities during the summer for
stream reaches in the Pacific Northwest (available at https://www.usgs.gov/centers/wy-mt-water/science/probability-streamflowpermanence-prosper), and NRCS hydrologic tools and soil maps.
Other tools include regional desktop tools that provide for the
hydrologic estimation of a discharge sufficient to generate
intermittent or perennial flow (e.g., a regional regression analysis or
hydrologic modeling), or modeling tools using drainage area,
precipitation data, climate, topography, land use, vegetation cover,
geology, and/or other publicly available information. Some models that
are developed for use at the reach scale may be localized in their
geographic scope.
Remote or desktop tools can also illustrate the relative permanence
of flow. Aerial photographs showing visible water on multiple dates can
provide evidence of the sufficient frequency and duration of surface
flow to facilitate a potential flow classification. Aerial photographs
may also show other indicators commonly used to identify the presence
of an OHWM (see definition of OHWM in section V.C.9.d of this preamble
and https://www.erdc.usace.army.mil/Media/Fact-Sheets/Fact-Sheet-Article-View/Article/486085/ordinary-high-water-mark-ohwm-research-development-and-training/). These may include the destruction of
terrestrial vegetation, the absence of vegetation in a channel, and
stream channel morphology with evidence of scour, material sorting, and
deposition. These indicators from aerial photographs can be correlated
to the presence of USGS stream data to support a potential flow
classification for a tributary. In addition to aerial photographs,
desktop tools, such as a regional regression analysis and the
Hydrologic Modeling System (HEC-HMS), provide for the hydrologic
estimation of stream discharge in tributaries under regional
conditions. The increasing availability of light detection and ranging
(LIDAR) derived data can also be used to help implement this proposed
rule. Where LIDAR data have been processed to create elevation data
such as a bare earth model, detailed depictions of the land surface are
available and subtle elevation changes can indicate a tributary's bed
and banks and channel morphology. Visible linear and curvilinear
incisions on a bare earth model can help inform the potential
[[Page 69442]]
flow regime of a water in greater detail than aerial photography
interpretation alone. Several tools (e.g., TauDEM, Whitebox, GeoNet)
can assist in developing potential stream networks based on
contributing areas, curvature, and flowpaths using GIS. Potential
LIDAR-indicated tributaries can be correlated with aerial photography
or high-resolution satellite imagery interpretation and USGS stream
gage data, to reasonably conclude the presence of an OHWM and shed
light on the potential flow regime.
Field indicators for the region can be used to verify desktop
assessments of the relative permanence of a tributary, when necessary.
Geomorphic indicators could include active/relict floodplain, substrate
sorting, clearly defined and continuous bed and banks, depositional
bars and benches, and recent alluvial deposits. Hydrologic indicators
might include wrack/drift deposits, hydric soils, or water-stained
leaves. Biologic indicators could include aquatic mollusks, crayfish,
benthic macroinvertebrates, algae, and wetland or submerged aquatic
plants. Regionalized streamflow duration assessment methods (SDAMs)
that use physical and biological field indicators, such as the presence
of hydrophytic vegetation and benthic macroinvertebrates, can also be
used to determine the flow duration class of a tributary as perennial,
intermittent, or ephemeral (e.g., the Streamflow Methodology for
Identification of Intermittent and Perennial Streams and Their Origins,
developed by the North Carolina Division of Water Quality, available at
http://portal.ncdenr.org/c/document_library/get_file?uuid=0ddc6ea1-d736-4b55-8e50-169a4476de96&groupId=38364). EPA, the Corps, and the
State of Oregon developed a regionalized SDAM that has been validated
for use throughout the Pacific Northwest (available at http://www.epa.gov/measurements/streamflow-duration-assessment-method-pacific-northwest). EPA and the Corps have also developed a beta SDAM for the
arid West (available at https://www.epa.gov/streamflow-duration-assessment/beta-streamflow-duration-assessment-method-arid-west) and
are working to develop additional regionalized SDAMs in other parts of
the country. Flow duration classifications can then be used to assist
in determining the relative permanence of the tributary. Ultimately,
multiple indicators, data points, and sources of information may be
used to determine flow classification.
b. Identifying Wetlands Adjacent to Traditional Navigable Waters,
Interstate Waters, Territorial Seas, Impoundments, or Tributaries
Before determining if a wetland is jurisdictional, the agencies
first determine if the wetland in question meets the definition of
``wetlands'' (see section V.C.9.a of this preamble). As under prior
regimes, wetlands are identified in the field in accordance with Corps'
1987 Wetland Delineation Manual and applicable regional delineation
manuals. Field work is often necessary to confirm the presence of a
wetland and to accurately delineate its boundaries. However, in
addition to field observations on hydrology, vegetation, and soils,
remote tools and resources can be used to support the identification of
a wetland, including USGS topographic maps (available at https://www.usgs.gov/core-science-systems/ngp/tnm-delivery/topographic-maps),
NRCS soil maps and properties of soils including flood frequency and
duration, ponding frequency and duration, hydric soils, and drainage
class (available at https://websoilsurvey.sc.egov.usda.gov/App/WebSoilSurvey.aspx or via the NRCS Soil Survey Geographic Database
(SSURGO) available at https://catalog.data.gov/dataset/soil-survey-geographic-database-ssurgo), aerial or high-resolution satellite
imagery, high-resolution elevation data (e.g., https://apps.nationalmap.gov/downloader/#/), and NWI maps (available at https://www.fws.gov/wetlands/data/mapper.html).
Once a feature is identified as a wetland, if the wetland itself is
not a traditional navigable water (i.e., it is not a tidal wetland) or
an interstate water, the agencies assess whether it is adjacent to a
traditional navigable water, interstate water, territorial sea,
jurisdictional impoundment, or jurisdictional tributary. A variety of
remote tools can help to assess adjacency, including maps, high-
resolution elevation data, aerial photographs, and high-resolution
satellite imagery. For example, USGS topographic maps, elevation data,
and NHD data may identify a physical barrier or illustrate the location
of the traditional navigable water, interstate water, territorial sea,
jurisdictional impoundment, or jurisdictional tributary; the wetland's
proximity to the jurisdictional water; and the nature of topographic
relief between the two aquatic resources. Aerial photographs or high-
resolution satellite imagery may illustrate hydrophytic vegetation from
the boundary (e.g., ordinary high water mark for non-tidal waters or
high tide line for tidal waters) of the traditional navigable water,
interstate water, territorial sea, jurisdictional impoundment, or
jurisdictional tributary to the wetland boundary, or the presence of
water or soil saturation. NRCS soil maps may identify the presence of
hydric soil types, soil saturation, or potential surface or subsurface
hydrologic connections. Additionally, methods that overlay depressions
on the landscape with hydric soils and hydrophytic vegetation can be
used to identify likely wetlands and hydrologic connections. NWI maps
may identify that the wetlands are near the traditional navigable
water, interstate water, territorial sea, jurisdictional impoundment,
or jurisdictional tributary. Field work can help confirm the presence
and location of the OHWM or high tide line of the traditional navigable
water, interstate water, territorial sea, jurisdictional impoundment,
or jurisdictional tributary and can provide additional information
about the wetland's potential adjacency to that water (e.g., by
traversing the landscape from the traditional navigable water,
interstate water, territorial sea, jurisdictional impoundment, or
jurisdictional tributary to the wetland and examining topographic and
geomorphic features, as well as hydrologic and biologic indicators).
Wetlands adjacent to traditional navigable waters, interstate waters,
or the territorial seas do not need further analysis to determine if
they are ``waters of the United States.''
For a wetland adjacent to relatively permanent, non-navigable
tributaries and relatively permanent impoundments of jurisdictional
waters, similar remote tools and resources as those described above may
be used to identify if the wetland has a continuous surface connection
to such waters. The tools and resources most useful for addressing this
standard are those that reveal breaks in the surface connection between
the wetland and the relatively permanent water, such as separations by
uplands, or a berm, dike, or similar feature. For example, USGS
topographic maps may show topographic highs between the two features,
or simple indices can be calculated based on topography to indicate
where these connectivity breaks occur. FEMA flood zone or other
floodplain maps may indicate constricted floodplains along the length
of the tributary channel with physical separation of flood waters that
could indicate a break. High-resolution elevation data can illustrate
topographic highs between the two features that
[[Page 69443]]
extend along the tributary channel. Aerial photographs or high-
resolution satellite imagery may illustrate upland vegetation along the
tributary channel between the two features, or bright soil signatures
indicative of higher ground. NRCS soil maps may identify mapped linear,
upland soil types along the tributary channel. Field work may help to
confirm the presence and location of the relatively permanent, non-
navigable tributary's OHWM. In addition, field work may confirm whether
there is a continuous physical connection between the wetland and the
relatively permanent, non-navigable tributary, or identify breaks that
may sever the continuous surface connection (e.g., by traversing the
landscape from the tributary to the wetland and examining topographic
and geomorphic features, as well as hydrologic and biologic
indicators).
For adjacent wetlands that lack a continuous surface connection to
jurisdictional relatively permanent tributaries or jurisdictional
relatively permanent impoundments or that are adjacent to non-
relatively permanent tributaries, the agencies will conduct a
significant nexus analysis to assess if the wetlands are
jurisdictional. Tools to assess if the adjacent wetlands significantly
affect foundational waters are discussed in section V.D.3.c of this
preamble.
c. Applying the Significant Nexus Standard
The agencies have used many tools and sources of information to
assess significant effects on the chemical, physical, and biological
integrity of downstream traditional navigable waters, interstate
waters, or the territorial seas. Some tools and resources that the
agencies have used to provide and evaluate evidence of a significant
effect on the physical integrity of foundational waters include USGS
stream gage data, floodplain maps, statistical analyses, hydrologic
models and modeling tools such as USGS's StreamStats (available at
https://streamstats.usgs.gov/ss/) or the Corps' Hydrologic Engineering
Centers River System Analysis System (HEC-RAS), physical indicators of
flow such as the presence and characteristics of a reliable OHWM with a
channel defined by bed and banks, or other physical indicators of flow
including such characteristics as shelving, wracking, water staining,
sediment sorting, and scour, information from NRCS soil surveys,
precipitation and rainfall data, and NRCS snow telemetry (SNOTEL) data
or NOAA national snow analyses maps.
To evaluate the evidence of a significant effect on the biological
integrity of foundational waters, the agencies and practitioners have
used tools and resources such as: population survey data and reports
from federal, state, and tribal resource agencies, natural history
museum collections databases, bioassessment program databases, fish
passage inventories, U.S. Fish and Wildlife Service (FWS) Critical
Habitat layers, species distribution models, and scientific literature
and references from studies pertinent to the distribution and natural
history of the species under consideration.
Tools and resources that provide and evaluate evidence of a
significant effect on the chemical integrity of foundational waters
include data from USGS water quality monitoring stations, state,
tribal, and local water quality reports, water quality monitoring and
assessment databases, EPA's How's My Waterway (available at https://www.epa.gov/waterdata/hows-my-waterway), which identifies Clean Water
Act section 303(d) listed waters, water quality impairments, and total
maximum daily loads, watershed studies, stormwater runoff data or
models, EPA's NEPAssist (available at https://www.epa.gov/nepa/nepassist), which provides locations and information on wastewater
discharge facilities and hazardous-waste sites, the National Land Cover
Database (NLCD), and scientific literature and references from studies
pertinent to the parameters being reviewed. EPA has developed a web-
based interactive water quality and quantity modeling system
(Hydrologic and Water Quality System, HAWQS; available at https://www.epa.gov/waterdata/hawqs-hydrologic-and-water-quality-system) that
is being used to assess cumulative effects of wetlands on other waters
they may drain into. Additional approaches to quantifying the
hydrologic storage capacity of wetlands include statistical models,
such as pairing LIDAR-based topography with precipitation totals. Both
statistical and process-based models have been used to quantify the
nutrient filtering capabilities of non-floodplain wetlands, and in some
cases to assess the effects of non-floodplain wetland nutrient removal,
retention, or transformation on downstream water quality. Evaluations
of a significant effect on the chemical integrity of a traditional
navigable water, interstate water, or territorial sea may include
qualitative reviews of available information or incorporate
quantitative analysis components including predictive transport
modeling.
A variety of modeling approaches can be used to quantify the
connectivity and cumulative effects of wetlands, including non-
floodplain wetlands, on other waters. Some examples include the Soil
and Water Assessment Tool (SWAT, available at https://swat.tamu.edu/),
the Hydrologic Simulation Program in Fortran (see https://www.epa.gov/ceam/hydrological-simulation-program-fortran-hspf), and DRAINMOD for
Watersheds (DRAINWAT, available at https://www.bae.ncsu.edu/agricultural-water-management/drainmod/). Other examples of models
applicable to identifying effects of wetlands on downstream waters
include the USGS hydrologic model MODFLOW (available at https://www.usgs.gov/mission-areas/water-resources/science/modflow-and-related-programs?qt-science_center_objects=0#qt-science_center_objects) and the
USGS flow simulation model VS2DI (available at https://www.usgs.gov/software/vs2di-version-13).
d. Advancements in Implementation Data, Tools, and Methods
Since the Rapanos decision, there have been dramatic advancements
in the data, tools, and methods used to make jurisdictional
determinations, including in the digital availability of information
and data. In 2006, when the agencies began to implement the Rapanos and
Carabell decisions, there were fewer implementation tools and support
resources to guide staff in defensible jurisdictional decision-making
under the relatively permanent and significant nexus standards. Agency
staff were forced to heavily rely on information provided in applicant
submittals and available aerial imagery to make jurisdictional
decisions or to schedule an in-person site visit to review the property
themselves. The U.S. Army Corps of Engineers Jurisdictional
Determination Form Instructional Guidebook encouraged practitioners to
utilize maps, aerial photography, soil surveys, watershed studies,
scientific literature, previous jurisdictional determinations for the
review area, and local development plans to complete accurate
jurisdictional decisions or analysis. For more complicated situations
or decisions involving significant nexus evaluations, the Guidebook
encouraged practitioners to identify and evaluate the functions
relevant to the significant nexus by incorporating literature citations
and/or references from studies pertinent to the parameters being
reviewed. For significant nexus decisions specifically, the Guidebook
[[Page 69444]]
instructed Corps field staff to consider all available hydrologic
information (e.g., gage data, precipitation records, flood predictions,
historic records of water flow, statistical data, personal
observations/records, etc.) and physical indicators of flow including
the presence and characteristics of a reliable OHWM.
The Corps also issued Regulatory Guidance Letter (RGL) No. 07-01
\60\ in 2007 that laid out principal considerations for evaluating the
significant nexus of a tributary and its adjacent wetlands which
included the volume, duration, and frequency of flow of water in the
tributary, proximity of the tributary to a traditional navigable water,
and functions performed by the tributary and its adjacent wetlands.
This RGL highlighted wetland delineation data sheets, delineation maps,
and aerial photographs as important for adequate information to support
all jurisdictional decision-making. Gathering the data necessary to
support preliminary or approved jurisdictional decisions was often time
consuming for staff and the regulated public, and there were not many
nationally available repositories for much of the information that the
agency staff utilized in decision-making, particularly during the first
years of implementing of the guidance. Despite these challenges, the
agencies and others in the practitioner community gained significant
collective experience implementing the relatively permanent and
significant nexus standards from 2006 to 2015.
---------------------------------------------------------------------------
\60\ It should be noted that RGL No. 07-01 was later superseded
by RGL 08-02 and RGL 16-01, neither of which addressed significant
nexus evaluations.
---------------------------------------------------------------------------
Since 2015, there have been dramatic improvements to the quantity
and quality of water resource information available on the internet.
The agencies can use online mapping tools to determine whether waters
are connected or sufficiently close to a water of the United States,
and new user interfaces have been developed that make it easier and
quicker to access information from a wide variety of sources.
Furthermore, some information used to only be available in hard-copy
paper files, including water resource inventories and habitat
assessments, and many of these resources have been made available
online or updated with new information. An overview of several tools
and data that have been developed or improved since 2015 can help
demonstrate how the agencies are now able to make case-specific
evaluations more quickly and consistently than ever before.
Advancements in geographic information systems (GIS) technology and
cloud-hosting services have led to an evolution in user interfaces for
publicly available datasets frequently used in jurisdictional decision-
making such as the NWI, USGS NHD, soil surveys, aerial imagery and
other geospatial analysis tools like USGS StreamStats. Not only are the
individual datasets more easily accessible to users, but it has also
become much easier for users to quickly integrate these various
datasets using desktop or online tools like map viewers to consolidate
and evaluate the relevant data in one visual platform. The EPA
Watershed Assessment, Tracking, and Environmental Results System
(WATERS) GeoViewer is an example of a web mapping application that
provides accessibility to many spatial dataset layers like NHDPlus and
watershed reports for analysis and interpretation. Other websites like
the Corps' Jurisdictional Determinations and Permits Decision site and
webservices like EPA's Enforcement and Compliance History Online (ECHO)
Map Services allow users to find geospatial and technical information
about Clean Water Act section 404 and NPDES permitted discharges.
Information on approved jurisdictional determinations finalized by the
Corps is also available on the Corps' Jurisdictional Determinations and
Permit Decisions site and EPA's Clean Water Act Approved Jurisdictional
Determinations website.
The data that are available online have increased in quality as
well as quantity. The NHD has undergone extensive improvements in data
availability, reliability, and resolution since 2015, including the
release of NHDPlus High Resolution datasets for the conterminous U.S.
and Hawaii, with Alaska under development. One notable improvement in
NHD data quality is that the flow-direction network data is much more
accurate than in the past. Improvements have also been made to the NWI
website and geospatial database, which has served as the primary source
of wetland information in the United States for many years. In 2016,
NWI developed a more comprehensive dataset (NWI Version 2) that is
inclusive of all surface water features in addition to wetlands. The
agencies can use this dataset to help assess potential hydrologic
connectivity between waterways and wetlands in support of
jurisdictional decisions. For example, the NWI Version 2 dataset can be
used in part to help the agencies identify wetlands that do not meet
the definition of adjacent (``other waters''). This NWI Version 2
dataset provides more complete geospatial data on surface waters and
wetlands than has been available in the past and provides a more
efficient means to make determinations of flow and water movement in
surface water basins and channels, as well as in wetlands.
The availability of aerial and satellite imagery has improved
dramatically since 2015, which is used to observe the presence or
absence of flow and identify relatively permanent flow in tributary
streams and hydrologic connections to waters. The agencies often use a
series of aerial and satellite images, spanning multiple years and
taken under normal climatic conditions, to determine the flow
classification for a tributary, as a first step to determine if
additional field-based information is needed to determine the flow
classification. The growth of the satellite imagery industry through
services such as DigitalGlobe (available at https://discover.digitalglobe.com/) in addition to resources for aerial
photography and imagery, such as USGS EarthExplorer (available at
https://earthexplorer.usgs.gov/) and National Aeronautics and Space
Administration (NASA) Earth Data (available at https://earthdata.nasa.gov/) have reduced the need to perform as many field
investigations to verify Clean Water Act jurisdiction, though some of
these services charge a fee for use. The USGS Landsat Level-3 Dynamic
Surface Water Extent (DSWE) product (available at https://www.usgs.gov/core-science-systems/nli/landsat/landsat-dynamic-surface-water-extent?qt-science_support_page_related_con=0#qt-science_support_page_related_con) is a specific example of a tool that
may be useful for identifying surface water inundation on the landscape
in certain geographic areas.
Similarly, the availability of LIDAR data has increased in
availability and utility for determining Clean Water Act jurisdiction.
Where LIDAR data have been processed to create a bare earth model,
detailed depictions of the land surface reveal subtle elevation changes
and characteristics of the land surface, including the identification
of tributaries. LIDAR-indicated tributaries can be correlated with
aerial photography interpretation to reasonably conclude the presence
of a channel with relatively permanent flow in the absence of a field
visit. The agencies have been using such remote sensing and desktop
tools to assist with identifying jurisdictional tributaries for many
years, and such tools are particularly critical where data from the
[[Page 69445]]
field are unavailable or a field visit is not possible. High-resolution
LIDAR data are becoming more widespread for engineering and land use
planning purposes.
Since 2015, tools have been developed that automate some of the
standard practices the agencies rely on to assist in determinations.
One example of this automation is the Antecedent Precipitation Tool
(APT), which was released to the public in 2020 and had been used
internally by the agencies prior to its public release. The APT is a
desktop tool developed by the Corps and is commonly used by the
agencies to help determine whether field data collection and other
site-specific observations occurred under normal climatic conditions.
In addition to providing a standardized methodology to evaluate normal
precipitation conditions (``precipitation normalcy''), the APT can also
be used to assess the presence of drought conditions, as well as the
approximate dates of the wet and dry seasons for a given location. As
discussed in section V.B.3 of this preamble, above, precipitation data
are often not useful in providing evidence as to whether a surface
water connection exists in a typical year, as required by the NWPR.
However, the agencies have long used the methods employed in the APT to
provide evidence that wetland delineations are made under normal
circumstances or to account for abnormalities during interpretation of
data. The development and public release of the APT has accelerated the
speed at which these analyses are completed, standardized methods,
which reduces errors, and enabled more people to perform these analyses
themselves, including members of the public. The APT will continue to
be an important tool to support jurisdictional decision-making.
Site visits are still sometimes needed to perform on-site
observations of surface hydrology or collect field-based indicators of
relatively permanent flow (e.g., the presence of riparian vegetation,
or certain aquatic macroinvertebrates). The methods and instruments
used to collect field data have also improved since 2015, such as the
development of rapid, field-based SDAMs that use physical and
biological indicators to determine the flow duration class of a stream
reach. The agencies have previously used existing SDAMs developed by
federal and state agencies to identify perennial, intermittent, or
ephemeral streams, and will continue to use these tools whenever they
are determined to be a reliable source of information for the specific
water feature of interest. The agencies are currently working to
develop region-specific SDAMs for nationwide coverage, which will
promote consistent implementation across the United States in a manner
that accounts for differences between each ecoregion. Additional
information on the agencies' efforts to develop SDAMs is available at
https://www.epa.gov/streamflow-duration-assessment.
E. Publicly Available Jurisdictional Information and Permit Data
The agencies intend to work to enhance information that is already
available to the public on jurisdictional determinations. The Corps
maintains a website at https://permits.ops.usace.army.mil/orm-public
that presents information on the Corps' approved jurisdictional
determinations and Clean Water Act section 404 permit decisions.
Similarly, EPA maintains a website at https://watersgeo.epa.gov/cwa/CWA-JDs/ that presents information on approved jurisdictional
determinations made by the Corps under the Clean Water Act since August
28, 2015. These websites will incorporate approved jurisdictional
determinations made under the revised definition of ``waters of the
United States.'' EPA also maintains on its website information on
certain dischargers permitted under Clean Water Act section 402,
including the Permit Compliance System and Integrated Compliance
Information System database (https://www.epa.gov/enviro/pcs-icis-overview), as well as the EnviroMapper (https://enviro.epa.gov/enviro/em4ef.home), and How's My Waterway (https://www.epa.gov/waterdata/hows-my-waterway). The agencies also intend to provide links to the public
to any guidance, forms, or memoranda of agreement relevant to the
definition of ``waters of the United States.''
EPA and the Army have also been working with other federal agencies
on improving aquatic resource mapping and modeling, including working
with the Department of Interior (DOI) to better align their regulatory
needs with DOI's existing processes and national mapping capabilities.
EPA, USGS, and FWS have a long history of working together to map the
nation's aquatic resources. The agencies will continue to collaborate
with DOI to enhance the NHD, NWI, and other products to better map the
nation's water resources while enhancing the utility of such geospatial
products to the Clean Water Act programs that EPA and the Corps
implement.
F. Placement of the Definition of ``Waters of the United States'' in
the Code of Federal Regulations
The definition of ``waters of the United States'' had historically
been placed in eleven locations in the Code of Federal Regulations
(CFR). For the sake of simplicity, in the NWPR, the agencies codified
the definition of ``waters of the United States'' in only two places in
the CFR--in Title 33 of the CFR, which implements the Corps' statutory
authority, at 33 CFR 328.3, and in Title 40, which generally implements
EPA's statutory authority, at 40 CFR 120.2. In the sections of the CFR
where EPA's definition previously existed, 40 CFR 110.1, 112.2, 116.3,
117.1, 122.2, 230.3, 232.2, 300.5, 302.3, 401.11, and Appendix E to 40
CFR part 300, the NWPR cross-references the newly created section of
the regulations containing the definition of ``waters of the United
States.'' The agencies placed EPA's definition of ``waters of the
United States'' in a previously unassigned part of 40 CFR and stated
that the change in placement had no implications on Clean Water Act
program implementation; rather, the placement made it clearer to
members of the public that there is a single definition of ``waters of
the United States'' applicable to the Clean Water Act and its
implementing regulations. 85 FR 22328-29, April 21, 2020. The agencies
agree with this approach and propose no change to the placement of the
definition of ``waters of the United States.'' As the agencies
indicated in the NWPR, the placement of the definition in two
locations, at 33 CFR 328.3 and 40 CFR 120.2, increases convenience for
the reader but has no substantive implications for the scope of Clean
Water Act jurisdiction. 85 FR 22328, April 21, 2020.
The agencies are proposing to delete the definition of ``navigable
waters'' at 120.2 and to add it to the ``purpose and scope'' of part
120 at 40 CFR 120.1. The agencies are also proposing to add additional
clarifying text to the ``purpose and scope'' at 40 CFR 120.1. The
agencies intend this to be an editorial and clarifying change and not a
substantive change from EPA's regulations at 40 CFR 120. The agencies
believe that this minor revision adds consistency between EPA's
regulations at 40 CFR 120 and the Corps' regulations defining ``waters
of the United States'' at 33 CFR 328.3. As a result of this non-
substantive revision, the agencies' definitions would have parallel
numerical and alphabetical subsections, providing clarity for the
public. The Corps similarly includes the
[[Page 69446]]
definition of ``navigable waters'' within 33 CFR 328.1, which contains
the purpose of the Corps' regulations at part 328. The agencies propose
to retain the same definition of ``navigable waters'' within 40 CFR
120.1 as the term is defined at section 502(7) of the Clean Water Act
and as it was defined in the NWPR at 40 CFR 120.2, which is ``the
waters of the United States, including the territorial seas.''
The agencies solicit comment on their deletion of the definition of
``navigable waters'' at 40 CFR 120.2 and adding it instead with the
``purpose and scope'' at 40 CFR 120.1.
VI. Summary of Supporting Analyses
This section provides an overview of the supporting analyses for
the proposed rule. Additional detail on these analyses is contained in
and described more fully in the Economic Analysis for the Proposed Rule
and the Technical Support Document for the Proposed Rule. Copies of
these documents are available in the docket for this proposed action.
This proposed rule establishing the definition of ``waters of the
United States'' by itself imposes no costs or benefits. Potential costs
and benefits would only be incurred as a result of actions taken under
existing Clean Water Act programs (i.e., sections 303, 311, 401, 402,
and 404) that would not otherwise be modified by this proposed rule.
Entities currently are, and would continue to be, regulated under these
programs that protect ``waters of the United States'' from pollution
and destruction. Each of these programs may subsequently impose costs
as a result of implementation of their specific regulations.
While the rule imposes no costs and generates no benefits under the
primary baseline, the agencies nonetheless analyzed its benefits and
costs relative to a secondary baseline and have prepared an
illustrative economic analysis to provide the public with information
on the potential benefits and costs associated with various Clean Water
Act programs that could result under a state of the world without the
proposed rule that would have the NWPR still in effect. The agencies
prepared this economic analysis pursuant to the requirements of
Executive Orders 12866 and 13563 to provide information to the public.
Two courts have vacated the NWPR and since then, the agencies have
been implementing the pre-2015 regulatory regime, which is very similar
to the proposed rule. While the NWPR has been vacated, the agencies
have chosen to provide additional information to the public and have
considered two baselines in the Economic Analysis for the Proposed
Rule: A primary baseline of the pre-2015 regulatory regime, and a
secondary baseline of the NWPR. Because the agencies are not currently
implementing the NWPR, the proposed rule would not depart in material
respects from current practice; as such, the agencies find that the
proposed rule generally maintains the legal status quo such that there
would be no appreciable costs or benefits in comparison to the primary
baseline of the pre-2015 regulatory regime.
The agencies use the NWPR as a secondary baseline to provide
information to the public on the estimated differential effects of the
proposed rule in comparison to the NWPR. The agencies estimated that
the NWPR would result in an increase in non-jurisdictional findings in
jurisdictional determinations compared to prior regulations and
practice, and that compared to the NWPR, the proposed rule would define
more waters as within the scope of the Clean Water Act.
Under the primary baseline, there are no costs or benefits as the
regulatory scope between the presently implemented pre-2015 regulatory
regime is approximately the same as the proposed rule. Comparatively,
under the secondary NWPR baseline, quantified benefits for the 404
program are estimated to be between $376 and $590 million annually,
while costs are estimated to be between $109 and $276 million annually.
The analysis of estimated costs and benefits of the proposed rule is
contained in the Economic Analysis for the Proposed Rule and is
available in the docket for this action.
The agencies recognize that the burdens of environmental pollution
and climate change often fall disproportionately on population groups
of concern (e.g., minority, low-income, and indigenous populations as
specified in Executive Order 12898) and are quantifying impacts to
these groups in the Economic Analysis for the Proposed Rule. Compared
to the average population, these groups are more likely to experience
water-related environmental and social stressors like contaminated
drinking water, limited access to clean water, and inadequate water
infrastructure--all of which increase their likelihood of being exposed
to pollutants. In addition to external stressors, behavioral and
cultural characteristics of these groups, like engaging in subsistence
fishing and consuming higher rates of fish from polluted waters,
increases their vulnerability to pollution. Taken together, these
environmental, social, and behavioral factors often increase these
groups' risk of experiencing negative health outcomes because of their
exposure to environmental contaminants.
Climate change will exacerbate the existing risks faced by
population groups of concern as identified by Executive Order 12898, in
addition to giving rise to new risks and challenges, and such impacts
are generally greater for disadvantaged communities. In particular,
risks like sea level rise, flooding, and drought can all have
disproportionate effects on these communities. Because of existing
environmental and social stressors and their reliance on natural
resources that may be negatively impacted by climate change (e.g., fish
and other aquatic life that provide income or food), these communities
may be less able to mitigate and adapt to the effects of climate
change.
The NWPR decreased the scope of Clean Water Act jurisdiction across
the country, including in geographic regions where regulation of waters
beyond those covered by the Act is not authorized under current state
or tribal law (see section V.B.3 of this preamble). Absent regulations
governing discharges of pollutants into previously jurisdictional
waters, communities composed of groups of concern where these waters
are located may experience increased water pollution and impacts from
associated increases in health risk. Further, the NWPR categorically
excluded ephemeral streams from jurisdiction, which disproportionately
impacts tribes and communities of concern in the arid West. Tribes may
lack the authority and often the resources to regulate waters within
their boundaries, and may also be affected by pollution from adjacent
jurisdictions. Therefore, the change in jurisdiction under the NWPR may
have disproportionately exposed tribes to increased pollution and
health risks. In this proposed rule the agencies affirm their
commitment to assessing the impacts of a revised definition of ``waters
of the United States'' on population groups of concern.
For the proposed rule, consistent with Executive Order 12898 and
Executive Order 14008 on ``Tackling the Climate Crisis at Home and
Abroad'' (86 FR 7619; January 27, 2021), the agencies examined whether
the change in benefits from the reinstatement of the pre-2015 practice
may be differentially distributed among population groups of concern in
the affected areas when compared to the secondary baseline of
[[Page 69447]]
the NWPR. In determining the potential for concerns in affected areas,
the agencies considered the following factors in this analysis:
Population characteristics, proximity to effects of the proposed rule,
and selected indicators of vulnerability to environmental risk. The
results of the agencies' analysis are presented in the Economic
Analysis for the Proposed Rule. The change between the pre-2015
regulatory regime and NWPR in the number of impacted waters was
approximated using Corps AJD and permit data. The analysis showed that
for most of the HUC 12 wetlands and affected waters impacted by the
proposed rule, there was no evidence of potential environmental justice
concerns warranting further analysis; for a select set of HUC 12
wetlands and impacted waters, potential environmental justice concerns
may exist, and additional analyses may be warranted. Additionally,
analyses assessing the potential for impacts on tribes found an overlap
in several states between tribal land and HUC 12 watersheds with
relatively large wetland and affected waters changes, warranting
further analysis. In the final rule, the agencies plan to expand upon
the environmental justice analysis by including additional indicators
of vulnerability to environmental risk in screening for potential
environmental justice concerns and by adding illustrative case studies
to evaluate localized impacts for areas where the need for additional
analyses was identified.
The Technical Support Document provides additional legal,
scientific, and technical discussion for issues raised in this proposed
rule. Appendix A of the Technical Support Document contains a glossary
of terms used in the document. Appendix B of the Technical Support
Document contains the references cited in the document. Appendix C of
the Technical Support Document is a list of citations that have been
published since the 2015 Science Report and that contain findings
relevant to the report's conclusions. Appendix D is the legal
definition of ``traditional navigable waters'' (Appendix D from the
U.S. Army Corps of Engineers Jurisdictional Determination Form
Instructional Guidebook).
VII. 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 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a 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. The agencies prepared an economic analysis of
the potential costs and benefits associated with this action. This
analysis, the Economic Analysis for the Proposed ``Revised Definition
of `Waters of the United States' '' Rule, is available in the docket
for this action and briefly summarized in section VI of this preamble.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities. However, this action may change terms and concepts used by
EPA and Army to implement certain programs. The agencies thus may need
to revise some of their collections of information to be consistent
with this action.
C. Regulatory Flexibility Act (RFA)
The agencies certify that this proposed rule will not have a
significant economic impact on a substantial number of small entities
under the RFA. This rule would codify a regulatory regime generally
comparable to the one currently being implemented nationwide due to the
vacatur of the 2020 definition of ``waters of the United States.'' On
this basis alone, the proposed rule would not impose any requirements
on small entities. Additionally, the agencies note that the proposed
rule does not ``subject'' any entities of any size to any specific
regulatory burden. It is designed to clarify the statutory term
``navigable waters,'' defined as ``waters of the United States,'' which
defines the scope of Clean Water Act jurisdiction 33 U.S.C. 1362(7).
The scope of Clean Water Act jurisdiction is informed by the text,
structure and history of the Clean Water Act and Supreme Court case
law, including the geographical and hydrological factors identified in
Rapanos v. United States, 547 U.S. 715 (2006). None of these factors
are readily informed by the RFA. See, e.g., Cement Kiln Recycling Coal.
v. EPA, 255 F.3d 869 (D.C. Cir. 2001) (``[T]o require an agency to
assess the impact on all of the nation's small businesses possibly
affected by a rule would be to convert every rulemaking process into a
massive exercise in economic modeling, an approach we have already
rejected.''); Michigan v. EPA, 213 F.3d 663, 688-89 (D.C. Cir. 2000)
(holding that the RFA imposes ``no obligation to conduct a small entity
impact analysis of effects'' on entities which it regulates only
``indirectly''); Am. Trucking Ass'n v. EPA, 175 F.3d 1027, 1045 (D.C.
Cir. 1999) (``[A]n agency may justify its certification under the RFA
upon the ``factual basis'' that the rule does not directly regulate any
small entities.''); Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327,
343 (D.C. Cir. 1985) (``Congress did not intend to require that every
agency consider every indirect effect that any regulation might have on
small businesses in any stratum of the national economy.'').
Nevertheless, the agencies recognize that the scope of the term
``waters of the United States'' is of great national interest,
including within the small business community. In light of this
interest, the agencies sought early input from representatives of small
entities while formulating a proposed definition of this term,
including holding a public meeting dedicated to hearing feedback from
small entities on August 25, 2021 (see https://www.epa.gov/wotus/2021-waters-united-states-public-meeting-materials). A variety of small
entities such as farmers and ranchers, environmental and conservation
non-profits, as well as building, consulting, and brewing businesses
provided their input on both the policies under discussion in the
proposed rulemaking and their interest in additional outreach and
engagement with small entities, including their desire for a SBREFA
panel. The agencies have addressed this feedback in the preamble
relating to these topics and in the discussion above.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
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 Clean Water Act programs. The action
imposes no enforceable duty on any state, local, or tribal governments,
or the private sector.
E. Executive Order 13132: Federalism
Under the technical requirements of Executive Order 13132 (64 FR
43255, August 10, 1999), the agencies have determined that this
proposed rule may have federalism implications but believe that the
requirements of the Executive Order will be satisfied, in any event.
[[Page 69448]]
The agencies believe that a revised definition of ``waters of the
United States'' may be of significant interest to state and local
governments. Consistent with the agencies' policies to promote
communications between the Federal government and state and local
governments, EPA and the Army consulted with representatives of state
and local governments early in the process of developing the proposed
rule to permit them to have meaningful and timely input into its
development.
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 federalism
implications under the terms of Executive Order 13132. The agencies
engaged state and local governments over a 60-day federalism
consultation period during development of this proposed rule, beginning
with the initial federalism consultation meeting on August 5, 2021, and
concluding on October 4, 2021. Twenty intergovernmental organizations,
including eight of the ten organizations identified in EPA's 2008
Executive Order 13132 Guidance, attended the initial Federalism
consultation meeting, as well as 12 associations representing state and
local governments. Organizations in attendance included the following:
National Governors Association, National Conference of State
Legislatures, United States Conference of Mayors, National League of
Cities, National Association of Counties, National Association of Towns
and Townships, County Executives of America, Environmental Council of
the States, Association of State Wetland Managers, Association of State
Drinking Water Administrators, National Association of State
Departments of Agriculture, Western States Water Council, National
Association of Clean Water Agencies, National Rural Water Association,
National Association of Attorneys General, National Water Resources
Association, National Municipal Stormwater Alliance, Western Governors'
Association, American Water Works Association, and Association of
Metropolitan Water Agencies. All letters received by the agencies
during this consultation may be found in the docket (Docket ID No. EPA-
HQ-OW-2021-0602) for this proposed rule.
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-2021-0602)
for this proposed rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action may have tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law.
EPA and the Army consulted with tribal officials under the EPA
Policy on Consultation and Coordination with Indian Tribes and the
Department of the Army American Indian and Alaska Native Policy early
in the process of developing this regulation to permit them to have
meaningful and timely input into its development.
The agencies initiated a tribal consultation and coordination
process before proposing this rule by sending a ``Notification of
Consultation and Coordination'' letter on July 30, 2021, to all 574
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 engaged
tribes over a 66-day tribal consultation period during development of
this proposed rule, including via two webinars on August 19, 2021, and
August 24, 2021, in which the agencies answered questions directly from
tribal representatives and heard their initial feedback on the
agencies' rulemaking effort. The agencies met with two tribes at a
staff-level and with two tribes at a leader-to-leader level. Additional
consultations may be requested and scheduled after the rule is
proposed. All letters received by the agencies during this consultation
may be found in the docket (Docket ID. No. EPA-HQ-OW-2021-0602) for
this proposed rule. The agencies have prepared a report summarizing the
consultation and further engagement with tribal nations. This report
(Docket ID. No. EPA-HQ-OW-2021-0602) is available in the docket for
this proposed rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA and Army believe that this action does not have
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 (59 FR 7629,
February 16, 1994).
The documentation for this decision is contained in in the Economic
Analysis for the Proposed Rule, which can be found in the docket for
this action.
List of Subjects
33 CFR Part 328
Administrative practice and procedure, Environmental protection,
Navigation (water), Water pollution control, Waterways.
40 CFR Part 120
Environmental protection, Water pollution control, Waterways.
Jaime A. Pinkham,
Acting Assistant Secretary of the Army (Civil Works), Department of the
Army.
Michael S. Regan,
Administrator, Environmental Protection Agency.
Title 33--Navigation and Navigable Waters
For the reasons set out in the preamble, title 33, chapter II of
the Code of Federal Regulations is proposed to be amended as follows:
PART 328--DEFINITION OF WATERS OF THE UNITED STATES
0
1. The authority citation for part 328 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
[[Page 69449]]
0
2. Revise Sec. 328.3 to read as follows:
Sec. 328.3 Definitions.
For the purpose of this regulation these terms are defined as
follows:
(a) Waters of the United States means:
(1) All waters which are currently used, or were used in the past,
or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds:
(i) That are relatively permanent, standing or continuously flowing
bodies of water with a continuous surface connection to the waters
identified in paragraph (a)(1), (a)(2), (a)(5)(i), or (a)(6) of this
section; or
(ii) That either alone or in combination with similarly situated
waters in the region, significantly affect the chemical, physical, or
biological integrity of waters identified in paragraph (a)(1), (2), or
(6) of this section;
(4) All impoundments of waters otherwise defined as waters of the
United States under the definition, other than impoundments of waters
identified under paragraph (a)(3) of this section;
(5) Tributaries of waters identified in paragraph (a)(1), (2), (4),
or (6) of this section:
(i) That are relatively permanent, standing or continuously flowing
bodies of water; or
(ii) That either alone or in combination with similarly situated
waters in the region, significantly affect the chemical, physical, or
biological integrity of waters identified in paragraph (a)(1), (2), or
(6) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to the following waters (other than waters
that are themselves wetlands):
(i) Waters identified in paragraph (a)(1), (2), or (6) of this
section; or
(ii) Relatively permanent, standing or continuously flowing bodies
of water identified in paragraph (a)(4) or (a)(5)(i) of this section
and with a continuous surface connection to such waters; or
(iii) Waters identified in paragraph (a)(4) or (a)(5)(ii) of this
section when the wetlands either alone or in combination with similarly
situated waters in the region, significantly affect the chemical,
physical, or biological integrity of waters identified in paragraph
(a)(1), (2), or (6) of this section;
(8) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act are not waters
of the United States; and
(9) Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other Federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
(b) Wetlands means those areas that are inundated or saturated by
surface or ground water at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.
(c) Adjacent means bordering, contiguous, or neighboring. Wetlands
separated from other waters of the United States by man-made dikes or
barriers, natural river berms, beach dunes and the like are ``adjacent
wetlands.''
(d) High tide line means the line of intersection of the land with
the water's surface at the maximum height reached by a rising tide. The
high tide line may be determined, in the absence of actual data, by a
line of oil or scum along shore objects, a more or less continuous
deposit of fine shell or debris on the foreshore or berm, other
physical markings or characteristics, vegetation lines, tidal gages, or
other suitable means that delineate the general height reached by a
rising tide. The line encompasses spring high tides and other high
tides that occur with periodic frequency but does not include storm
surges in which there is a departure from the normal or predicted reach
of the tide due to the piling up of water against a coast by strong
winds such as those accompanying a hurricane or other intense storm.
(e) Ordinary high water mark means that line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.
(f) Tidal waters means those waters that rise and fall in a
predictable and measurable rhythm or cycle due to the gravitational
pulls of the moon and sun. Tidal waters end where the rise and fall of
the water surface can no longer be practically measured in a
predictable rhythm due to masking by hydrologic, wind, or other
effects.
(g) Significantly affect means more than speculative or
insubstantial effects on the chemical, physical, or biological
integrity of waters identified in paragraph (a)(1), (2), or (6) of this
section. When assessing whether the effect that the functions waters
have on waters identified in paragraph (a)(1), (2), or (6) of this
section is more than speculative or insubstantial, the agencies will
consider:
(1) The distance from a water of the United States;
(2) The distance from a water identified in paragraph (a)(1), (2),
or (6) of this section;
(3) Hydrologic factors, including shallow subsurface flow;
(4) The size, density, and/or number of waters that have been
determined to be similarly situated; and
(5) Climatological variables such as temperature, rainfall, and
snowpack.
Title 40--Protection of Environment
For reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 120--DEFINITION OF WATERS OF THE UNITED STATES
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3. The authority citation for part 120 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
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4. Revise Sec. 120.1 to read as follows:
Sec. 120.1 Purpose and scope.
This part contains the definition of ``waters of the United
States'' for purposes of the Clean Water Act, 33 U.S.C. 1251 et seq.
and its implementing regulations. EPA regulations implementing the
Clean Water Act use the term ``navigable waters,'' which is defined at
section 502(7) of the Clean Water Act as ``the waters of the United
States, including the territorial seas,'' or the term ``waters of the
United States.'' In light of the statutory definition, the definition
in this section establishes the scope of the terms ``waters of the
United States'' and ``navigable waters'' in EPA's regulations.
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5. Revise Sec. 120.2 to read as follows:
Sec. 120.2 Definitions.
For the purposes of this part, the following terms shall have the
meanings indicated:
(a) Waters of the United States means:
(1) All waters which are currently used, or were used in the past,
or may
[[Page 69450]]
be susceptible to use in interstate or foreign commerce, including all
waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams
(including intermittent streams), mudflats, sandflats, wetlands,
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds:
(i) That are relatively permanent, standing or continuously flowing
bodies of water with a continuous surface connection to the waters
identified in paragraph (a)(1), (a)(2), (a)(5)(i), or (a)(6) of this
section; or
(ii) That either alone or in combination with similarly situated
waters in the region, significantly affect the chemical, physical, or
biological integrity of waters identified in paragraph (a)(1), (2), or
(6) of this section;
(4) All impoundments of waters otherwise defined as waters of the
United States under the definition, other than impoundments of waters
identified under paragraph (a)(3) of this section;
(5) Tributaries of waters identified in paragraph (a)(1), (2), (4),
or (6) of this section:
(i) That are relatively permanent, standing or continuously flowing
bodies of water; or
(ii) That either alone or in combination with similarly situated
waters in the region, significantly affect the chemical, physical, or
biological integrity of waters identified in paragraph (a)(1), (2), or
(6) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to the following waters (other than waters
that are themselves wetlands):
(i) Waters identified in paragraph (a)(1), (2), or (6) of this
section; or
(ii) Relatively permanent, standing, or continuously flowing bodies
of water identified in paragraph (a)(4) or (a)(5)(i) of this section
and with a continuous surface connection to such waters; or
(iii) Waters identified in paragraph (a)(4) or (a)(5)(ii) of this
section when the wetlands either alone or in combination with similarly
situated waters in the region, significantly affect the chemical,
physical, or biological integrity of waters identified in paragraph
(a)(1), (2), or (6) of this section;
(8) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act are not waters
of the United States; and
(9) Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status as
prior converted cropland by any other Federal agency, for the purposes
of the Clean Water Act, the final authority regarding Clean Water Act
jurisdiction remains with EPA.
(b) Wetlands means those areas that are inundated or saturated by
surface or ground water at a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, and similar areas.
(c) Adjacent means bordering, contiguous, or neighboring. Wetlands
separated from other waters of the United States by man-made dikes or
barriers, natural river berms, beach dunes and the like are ``adjacent
wetlands.''
(d) High tide line means the line of intersection of the land with
the water's surface at the maximum height reached by a rising tide. The
high tide line may be determined, in the absence of actual data, by a
line of oil or scum along shore objects, a more or less continuous
deposit of fine shell or debris on the foreshore or berm, other
physical markings or characteristics, vegetation lines, tidal gages, or
other suitable means that delineate the general height reached by a
rising tide. The line encompasses spring high tides and other high
tides that occur with periodic frequency but does not include storm
surges in which there is a departure from the normal or predicted reach
of the tide due to the piling up of water against a coast by strong
winds such as those accompanying a hurricane or other intense storm.
(e) Ordinary high water mark means that line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as clear, natural line impressed on the bank,
shelving, changes in the character of soil, destruction of terrestrial
vegetation, the presence of litter and debris, or other appropriate
means that consider the characteristics of the surrounding areas.
(f) Tidal waters means those waters that rise and fall in a
predictable and measurable rhythm or cycle due to the gravitational
pulls of the moon and sun. Tidal waters end where the rise and fall of
the water surface can no longer be practically measured in a
predictable rhythm due to masking by hydrologic, wind, or other
effects.
(g) Significantly affect means more than speculative or
insubstantial effects on the chemical, physical, or biological
integrity of waters identified in paragraph (a)(1), (2), or (6) of this
section. When assessing whether the effect that the functions waters
have on waters identified in paragraph (a)(1), (2), or (6) of this
section is more than speculative or insubstantial, the agencies will
consider:
(1) The distance from a water of the United States;
(2) The distance from a water identified in paragraph (a)(1), (2),
or (6) of this section;
(3) Hydrologic factors, including shallow subsurface flow;
(4) The size, density, and/or number of waters that have been
determined to be similarly situated; and
(5) Climatological variables such as temperature, rainfall, and
snowpack.
[FR Doc. 2021-25601 Filed 12-6-21; 8:45 am]
BILLING CODE 6560-50-P
