Revised Definition of “Waters of the United States”, 3004-3144 [2022-28595]
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Federal Register / Vol. 88, No. 11 / Wednesday, January 18, 2023 / Rules and Regulations
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–6027.4–01–
OW]
RIN 2040–AG19
Revised Definition of ‘‘Waters of the
United States’’
Department of the Army, Corps
of Engineers, Department of Defense;
and Environmental Protection Agency
(EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) and the Department of the
Army (‘‘the agencies’’) are finalizing a
rule defining the scope of waters
protected under the Clean Water Act. In
developing this rule, the agencies
considered the text of the relevant
provisions of the Clean Water Act and
the statute as a whole, the scientific
record, relevant Supreme Court case
law, and the agencies’ experience and
technical expertise after more than 45
years of implementing the longstanding
pre-2015 regulations defining ‘‘waters of
the United States.’’
This final rule advances the objective
of the Clean Water Act and ensures
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: This action is effective on March
20, 2023.
ADDRESSES: The agencies have
established a docket for this action
under Docket ID No. EPA–HQ–OW–
2021–0602. All documents in the docket
are listed on the https://
www.regulations.gov/ website. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available electronically
through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Whitney Beck, Oceans, Wetlands and
Communities Division, Office of Water
(4504–T), Environmental Protection
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SUMMARY:
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Agency, 1200 Pennsylvania Avenue
NW, Washington, DC 20460; telephone
number: (202) 564–2281; email address:
CWAwotus@epa.gov, 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:
usarmy.pentagon.hqda-asa-cw.mbx.asacw-reporting@army.mil.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. 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?
III. Background
A. Legal Background
1. The Clean Water Act
2. The 1986 Regulations Defining ‘‘Waters
of the United States’’
3. U.S. Supreme Court Decisions
4. Post-Rapanos Appellate Court Decisions
5. Post-Rapanos Implementation of the
1986 Regulations
B. The Agencies’ Post-Rapanos Rules
1. The 2015 Clean Water Rule
2. The 2019 Repeal Rule
3. The 2020 Navigable Waters Protection
Rule
4. Legal Challenges to the Rules
5. 2021 Executive Order and Review of the
Navigable Waters Protection Rule
C. Summary of Co-Regulator Engagement
and Stakeholder Outreach
IV. Revised Definition of ‘‘Waters of the
United States’’
A. Basis for This Rule
1. The Agencies Are Exercising the
Authority Granted by Congress To Define
‘‘Waters of the United States’’ Under the
Clean Water Act
2. This Rule Advances the Objective of the
Clean Water Act
3. The Scope of This Rule Is Limited
Consistent With the Law, the Science,
and Agency Expertise
4. This Rule is Both Generally Familiar and
Implementable
5. Public Comments Received and Agency
Responses
B. Alternatives to This Rule
1. 2015 Clean Water Rule
2. 2019 Repeal Rule
3. 2020 NWPR
C. This Rule
1. Summary of This Rule
2. Traditional Navigable Waters, the
Territorial Seas, and Interstate Waters
3. Impoundments
4. Tributaries
5. Adjacent Wetlands
6. Waters Not Identified in Paragraphs
(a)(1) Through (4)
7. Exclusions
8. Other Definitions
9. Significantly Affect
10. Guidance for Landowners on How To
Know When Clean Water Act Permits
Are Required
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D. Placement of the Definition of ‘‘Waters
of the United States’’ in the Code of
Federal Regulations
E. Severability
F. Jurisdictional Determinations Issued
Under Previous Rules
G. Implementation Tools
H. Publicly Available Jurisdictional
Information and Permit Data
V. 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
Risks 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
K. Congressional Review Act
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 then-existing statutory
framework, designed to ‘‘establish an
all-encompassing program of water
pollution regulation.’’ City of Milwaukee
v. Illinois, 451 U.S. 304, 317–18 (1981)
(citation omitted). 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 broadly in the Act as ‘‘the
waters of the United States, including
the territorial seas.’’ 33 U.S.C. 1362(7).
This term is relevant to the scope of
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 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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most Federal programs to protect water
quality under the Clean Water Act—for
example, water quality standards,
permitting to address discharges of
pollutants, including discharges of
dredged or fill material, processes to
address impaired waters, oil spill
prevention, preparedness and response
programs, and Tribal and State water
quality certification programs—because
the Clean Water Act uses the term
‘‘navigable waters’’ in establishing such
programs.
As a unanimous Supreme Court
concluded decades ago, Congress
delegated a ‘‘breadth of federal
regulatory authority’’ in the Clean Water
Act and expected the Environmental
Protection Agency (EPA) and the
Department of the Army (‘‘the
agencies’’) to tackle the ‘‘inherent
difficulties of defining precise bounds to
regulable waters.’’ United States v.
Riverside Bayview Homes, 474 U.S. 121,
134 (1985) (‘‘Riverside Bayview’’). The
Supreme Court noted that ‘‘[f]aced with
such a problem of defining the bounds
of its regulatory authority, an agency
may appropriately look to the legislative
history and underlying policies of its
statutory grants of authority.’’ Id. at 132.
The Court went on to state that
‘‘[p]rotection 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 (citations omitted). The
Supreme Court has twice more
addressed the complex 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’’).
This rule takes up that multi-faceted
challenge. In developing this rule, the
agencies considered the text of the
relevant provisions of the Clean Water
Act and the statute as a whole, the
scientific record, relevant Supreme
Court case law, and the agencies’
experience and technical expertise after
more than 45 years of implementing the
longstanding pre-2015 regulations
defining ‘‘waters of the United States.’’
The agencies’ experience includes more
than a decade of implementing those
regulations consistent with the Supreme
Court’s decisions in Riverside Bayview,
SWANCC, and Rapanos. The agencies
also considered the extensive public
comments on the proposed rule.
This rule establishes limits that
appropriately draw the boundary of
waters subject to Federal protection.
When upstream waters significantly
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affect the integrity of waters for which
the Federal interest is indisputable—the
traditional navigable waters, the
territorial seas, and interstate waters—
this rule ensures that Clean Water Act
programs apply to protect those
paragraph (a)(1) waters by including
such upstream waters within the scope
of the ‘‘waters of the United States.’’
Where waters do not significantly affect
the integrity of waters for which the
Federal interest is indisputable, this rule
leaves regulation exclusively to the
Tribes and States.2 Additionally, it is
important to note that the fact that a
water is one of the ‘‘waters of the United
States’’ does not mean that no activity
can occur in that water; rather, it means
that activities must comply with the
Clean Water Act’s permitting programs,
and those programs include numerous
statutory exemptions and regulatory
exclusions.
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). This rule
is founded on that familiar pre-2015
definition that has bounded the Clean
Water Act’s protections for decades, has
been codified multiple times, and has
been implemented by every
administration in the last 45 years.3 The
2 As explained in section IV.A.3.a.ii of this
preamble, the agencies find it appropriate to assert
Federal jurisdiction over waters meeting the
relatively permanent standard in addition to waters
meeting the significant nexus standard because—
though the relatively permanent standard identifies
only a subset of the ‘‘waters of the United States’’—
it provides important efficiencies and additional
clarity for regulators and the public by more readily
identifying a subset of waters that will virtually
always significantly affect paragraph (a)(1) waters;
i.e., those waters for which the Federal interest is
indisputable. By promulgating a rule interpreting
the Clean Water Act to cover waters that meet the
relatively permanent standard or the significant
nexus standard, the agencies have appropriately
construed the Act to protect those waters necessary
to protect the integrity of traditional navigable
waters, the territorial seas, and interstate waters,
while leaving regulatory authority over all the
waters that do not have the requisite connection to
paragraph (a)(1) waters exclusively to the Tribes
and States.
3 The Corps’ 1977 regulations (42 FR 37122,
37144 (July 19, 1977)), though organized differently
than their 1986 regulations, contained many of the
same categories as those later regulations, and its
definition of ‘‘adjacent’’ was identical to the
definition promulgated in 1986. EPA’s 1979
regulations (44 FR 32854, 32901 (June 7, 1979))
were substantially similar to the Corps’ 1977
regulations and added for the first time an
exclusion for waste treatment systems. In 1986 and
1988, the Corps and EPA, respectively, promulgated
nearly identical definitions of ‘‘waters of the United
States.’’ 51 FR 41206, 41217 (November 13, 1986);
53 FR 20764, 20765 (June 6, 1988). Besides the
addition of an exclusion for prior converted
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pre-2015 regulations are commonly
referred to as ‘‘the 1986 regulations,’’
and this preamble will refer to them as
such, but the agencies note that ‘‘the
1986 regulations’’ have largely been in
place since 1977 and were also
amended in 1993 to add an exclusion.4
Since 2015, the agencies have
finalized three rules revising the
definition of ‘‘waters of the United
States.’’ See 80 FR 37054 (June 29,
2015); 84 FR 56626 (October 22, 2019);
85 FR 22250 (April 21, 2020). The most
recent rule, the 2020 ‘‘Navigable Waters
Protection Rule’’ (‘‘2020 NWPR’’),
substantially departed from prior rules
defining ‘‘waters of the United States.’’
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,’’ directing all executive
departments and agencies to
immediately review and, as appropriate
and consistent with applicable law, take
action to address the promulgation of
Federal regulations and other actions
that conflict with national policies of
science-based decision making in order
to improve public health, protect our
environment, and ensure access to clean
air and water. 86 FR 7037 (published
January 25, 2021, signed January 20,
2021). After completing a review of and
reconsidering the record for the 2020
NWPR, on June 9, 2021, the agencies
announced their intention to revise or
replace the rule. The 2020 NWPR was
subsequently vacated by two district
courts, as discussed further below.
In this rule, consistent with the
general framework of the 1986
regulations, the agencies interpret the
term ‘‘waters of the United States’’ to
include:
• traditional navigable waters, the
territorial seas, and interstate waters
(‘‘paragraph (a)(1) waters’’);
• impoundments of ‘‘waters of the
United States’’ (‘‘paragraph (a)(2)
impoundments’’);
• tributaries to traditional navigable
waters, the territorial seas, interstate
waters, or paragraph (a)(2)
cropland in 1993 (58 FR 45008, 45031 (August 25,
1993)), the agencies’ regulations defining ‘‘waters of
the United States’’ remained unchanged until the
agencies finalized the 2015 Clean Water Rule (80 FR
37054, 37104 (June 29, 2015)). In 2019, the agencies
repromulgated their pre-2015 regulations (84 FR
56626, 56667 (October 22, 2019)).
4 For convenience, in this preamble the agencies
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.’’ These references
are inclusive of EPA’s comparable regulations that
were recodified in 1988 and of the exclusion for
prior converted cropland, which both agencies
added in 1993.
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impoundments when the tributaries
meet either the relatively permanent
standard or the significant nexus
standard (‘‘jurisdictional tributaries’’);
• wetlands adjacent to paragraph
(a)(1) waters, wetlands adjacent to and
with a continuous surface connection to
relatively permanent paragraph (a)(2)
impoundments, wetlands adjacent to
tributaries that meet the relatively
permanent standard, and wetlands
adjacent to paragraph (a)(2)
impoundments or jurisdictional
tributaries when the wetlands meet the
significant nexus standard
(‘‘jurisdictional adjacent wetlands’’);
and
• intrastate lakes and ponds, streams,
or wetlands not identified in paragraphs
(a)(1) through (4) that meet either the
relatively permanent standard or the
significant nexus standard (‘‘paragraph
(a)(5) waters’’).
The ‘‘relatively permanent standard’’
refers to the test to identify relatively
permanent, standing or continuously
flowing waters connected to paragraph
(a)(1) waters, and waters with a
continuous surface connection to such
relatively permanent waters or to
traditional navigable waters, the
territorial seas, or interstate waters. The
‘‘significant nexus standard’’ refers to
the test to identify 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, the
territorial seas, or interstate waters—i.e.,
the paragraph (a)(1) waters. The
regulatory text defines ‘‘significantly
affect’’ in order to increase the clarity
and consistency of implementation of
the significant nexus standard.
With respect to ‘‘adjacent wetlands,’’
the concept of adjacency and the
significant nexus standard create
separate, additive limitations that work
together to ensure that such wetlands
are covered (i.e., jurisdictional under
the Act) when they have the necessary
relationship to other covered waters.
The adjacency limitation focuses on the
relationship between the wetland and
the covered water to which it is
adjacent. Consistent with the plain
meaning of the term and the agencies’
45-year-old definition of ‘‘adjacent,’’ the
rule requires that an ‘‘adjacent wetland’’
be ‘‘bordering, contiguous, or
neighboring’’ to another covered water.5
Where a wetland is adjacent to a
traditional navigable water, the
5 The agencies have a longstanding, specific
definition of ‘‘adjacent,’’ and section IV.C.6 of this
preamble provides additional clarity by articulating
the criteria the agencies have long used to interpret
and implement that definition.
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territorial seas, or an interstate water,
consistent with longstanding regulations
and practice, no further inquiry is
required, and the wetland is
jurisdictional. But where a wetland is
adjacent to a covered water that is not
a traditional navigable water, the
territorial seas, or an interstate water,
such as a tributary, this rule requires an
additional showing for that adjacent
wetland to be covered: the wetland must
satisfy either the relatively permanent
standard or the significant nexus
standard. And that inquiry, under either
standard, fundamentally concerns the
adjacent wetland’s relationship to the
relevant paragraph (a)(1) water rather
than the relationship between the
adjacent wetland and the covered water
to which it is adjacent. In other words,
the adjacent wetland must have a
continuous surface connection to a
relatively permanent, standing or
continuously flowing water connected
to a paragraph (a)(1) water or must
either alone or in combination with
similarly situated waters significantly
affect the chemical, physical, or
biological integrity of a paragraph (a)(1)
water.
In addition, this rule codifies several
exclusions from the definition of
‘‘waters of the United States,’’ including
longstanding exclusions for prior
converted cropland and waste treatment
systems, and for features that were
generally considered non-jurisdictional
under the pre-2015 regulatory regime.6
This rule advances the Clean Water
Act’s statutory objective as it is
informed by the best available science
concerning the functions provided by
upstream tributaries, adjacent wetlands,
as well as intrastate lakes and ponds,
streams, and wetlands that do not fall
within the other jurisdictional
categories to restore and maintain the
water quality of traditional navigable
waters, the territorial seas, and interstate
waters (i.e., the paragraph (a)(1) waters).
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 7 (hereinafter,
‘‘Science Report’’) in 2015 synthesized
the peer-reviewed science. Since the
6 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.
7 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.
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release of the Science Report, additional
published peer-reviewed scientific
literature has strengthened and
supplemented the report’s conclusions.
The Technical Support Document for
the Final Rule: Revised Definition of
‘‘Waters of the United States’’
(hereinafter, ‘‘Technical Support
Document’’) provides additional
scientific and technical information
about issues raised in this rule.8 9
The agencies’ interpretation also
reflects consideration of the statute as a
whole, including both its objective in
section 101(a) and its policies, such as
that of section 101(b), which states in
part 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, [and] to plan the
development and use (including
restoration, preservation, and
enhancement) of land and water
resources.’’ 33 U.S.C. 1251(b). The
agencies find that the scope of Clean
Water Act jurisdiction established in
this final rule enhances States’ ability to
protect waters within their borders,
such as by participating in the section
401 certification process and by
providing input during the permitting
process for out-of-state section 402 and
404 permits that may affect their waters.
See 33 U.S.C. 1341, 1342(b),
1344(h)(1)(E). Indeed, in implementing
and participating in the Clean Water
Act’s regulatory requirements and
framework, States can have more
powerful and holistic tools for
addressing water quality than they
would have in implementing state-only
laws and regulations.
Further, this rule is based on the
agencies’ conclusion that the significant
nexus standard is consistent with the
statutory text and legislative history,
advances the objective of the Clean
Water Act, is informed by the scientific
record and Supreme Court case law, and
appropriately considers the policies of
the Act. The agencies have also
determined that the relatively
permanent standard is appropriate to
include in this rule because, while it
8 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
Science Report and that contain findings relevant
to the report’s conclusions.
9 Throughout this preamble, when the agencies
refer to ‘‘science,’’ that means foundational
principles related to chemical, physical, and
biological integrity, including biology, hydrology,
geology, chemistry, and soil science; the Science
Report; and the Technical Support Document for
this rule.
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identifies only a subset of the ‘‘waters of
the United States,’’ it also provides
important efficiencies and additional
clarity for regulators and the public by
more readily identifying a subset of
waters that will virtually always
significantly affect paragraph (a)(1)
waters. In addition, because this rule is
founded upon a longstanding regulatory
framework and reflects the agencies’
experience and expertise, as well as
updates in implementation tools and
resources, it is generally familiar to the
public and implementable. The
clarifications in this rule, including the
addition of exclusions that codify
longstanding practice, and review of the
advancements in implementation
resources, tools, and scientific support
(see section IV.G of this preamble)
address many of the concerns raised in
the past about timeliness and
consistency of jurisdictional
determinations under the Clean Water
Act.
By contrast, the agencies conclude
that the 2020 NWPR, which
substantially departed from prior rules
defining ‘‘waters of the United States,’’
is incompatible with the objective of the
Clean Water Act and inconsistent with
the text of relevant provisions of the
statute, the statute as a whole, relevant
case law, and the best available science.
The 2020 NWPR found jurisdiction
primarily under the relatively
permanent standard. The agencies have
concluded that while the relatively
permanent standard is administratively
useful by more readily identifying a
subset of waters that will virtually
always significantly affect paragraph
(a)(1) waters, it is insufficient as the sole
test for Clean Water Act jurisdiction.
Sole reliance on the relatively
permanent standard’s extremely limited
approach has no grounding in the Clean
Water Act’s text, structure, or history.
Limiting determinations to that standard
alone upends an understanding of the
Clean Water Act’s coverage that has
prevailed for nearly half a century. The
relatively permanent standard as the
exclusive jurisdictional test would
seriously compromise the Clean Water
Act’s comprehensive scheme by
denying any protection to tributaries
that are not relatively permanent and
adjacent wetlands that do not have a
continuous surface connection to other
jurisdictional waters. The exclusion of
these waters runs counter to the science
demonstrating how such waters can
affect the integrity of larger downstream
waters, including traditional navigable
waters, the territorial seas, and interstate
waters. The agencies have concluded
that the relatively permanent standard
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should still be included in the rule in
conjunction with the significant nexus
standard because the subset of waters
that meet the relatively permanent
standard will virtually always have the
requisite connection 10 to traditional
navigable waters, the territorial seas, or
interstate waters to properly fall within
the Clean Water Act’s scope. The
relatively permanent standard is also
administratively useful as it more
readily identifies a subset of waters that
will virtually always significantly affect
paragraph (a)(1) waters.
Following a Federal district court
decision vacating the 2020 NWPR on
August 30, 2021, the agencies halted
implementation of the 2020 NWPR and
began interpreting ‘‘waters of the United
States’’ consistent with the pre-2015
regulatory regime.11 For the reasons
discussed more fully below, the
agencies have decided that replacement
of the 2020 NWPR is vital.
Through the rulemaking process, the
agencies have considered all timely
public comments on the proposed rule,
including changes that improve the
clarity, implementability, and durability
of the definition. The regulations
established in this rule are founded on
the familiar framework of the 1986
regulations and are generally consistent
with the pre-2015 regulatory regime.
They are fully consistent with the
statute, informed by relevant Supreme
Court decisions, and reflect the record
before the agencies, including
consideration of the best available
science, as well as the agencies’
expertise and experience implementing
the pre-2015 regulatory regime. In
addition, this final rule increases clarity
and implementability by streamlining
and restructuring the 1986 regulations
and providing implementation guidance
10 Throughout this preamble, the agencies’
reference to a ‘‘connection’’ to traditional navigable
waters, the territorial seas, or interstate waters
(when used without qualification such as
‘‘continuous surface connection’’ or an ‘‘unbroken
surface or shallow subsurface connection’’)
includes all the types of connections relevant to
either the relatively permanent standard or the
significant nexus standard: physical (including
hydrological), chemical, biological, or functional
relationships (including where the water retains
floodwaters or pollutants that would otherwise flow
to the traditional navigable water, the territorial
seas, or an interstate water). See Technical Support
Document section III. A ‘‘requisite’’ connection is
one that satisfies either the relatively permanent or
significant nexus standard.
11 See Pascua Yaqui Tribe v. EPA, 557 F. Supp.
3d 949 (D. Ariz. 2021); U.S. EPA, Current
Implementation of Waters of the United States,
https://www.epa.gov/wotus/currentimplementation-waters-united-states; U.S. Army
Corps of Engineers, Navigable Waters Protection
Rule Vacatur (published January 5, 2022), https://
www.usace.army.mil/Media/Announcements/
Article/2888988/5-january-2022-navigable-watersprotection-rule-vacatur/.
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informed by sound science,
implementation tools including modern
assessment tools, and other resources.
II. General Information
A. What action are the agencies taking?
In this action, the agencies are
publishing a final 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?
The agencies prepared the Economic
Analysis for the Final ‘‘Revised
Definition of ‘Waters of the United
States’ ’’ Rule (hereinafter, ‘‘Economic
Analysis for the Final Rule’’), available
in the rulemaking docket, for
informational purposes to analyze the
potential costs and benefits associated
with this final action. This rule
establishing the definition of ‘‘waters of
the United States’’ does not by itself
impose costs or benefits. Potential costs
and benefits would only be incurred as
a result of actions taken under existing
Clean Water Act programs relying on
the definition of ‘‘waters of the United
States’’ (i.e., sections 303, 311, 401, 402,
and 404). The agencies analyze the
potential costs and benefits against two
baselines: the current status quo and the
vacated 2020 NWPR. The findings of
this analysis for the primary baseline of
the current status quo conclude that
there are de minimis costs and benefits
associated with this rulemaking. The
findings of this analysis for the
secondary baseline of the 2020 NWPR
conclude that within the ranges of
indirect costs and benefits considered,
benefits consistently outweigh the costs.
The analysis is summarized in section
V.A of this preamble.
III. 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. 911, 92d Cong., 2d Sess.
at 66 (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
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Nation’s waters.’’ 33 U.S.C. 1251(a). The
Clean Water 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. A centerpiece of that
comprehensive framework is the term
‘‘navigable waters,’’ which the Clean
Water Act broadly defines as ‘‘the
waters of the United States, including
the territorial seas.’’ 33 U.S.C. 1362(7).
Waters satisfying that definition are
often called ‘‘covered’’ or
‘‘jurisdictional’’ waters because the term
‘‘navigable waters’’ appears in most of
the Clean Water Act’s key programs,
including those for water quality
standards, oil-spill prevention, and
permits regulating the discharge of
pollutants.
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a. History of the Clean Water Act
Prior to 1972, the Federal
Government’s authority to control and
redress pollution in the nation’s waters
largely fell to the U.S. Army Corps of
Engineers (Corps) under the Rivers and
Harbors Act of 1899. 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
1965.12 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
12 The 1948 Act was enacted ‘‘in connection with
the exercise of jurisdiction over the waterways of
the Nation’’ and focused specifically on the
protection of water quality in interstate waters and
tributaries of interstate waters. See Public Law 80–
845, 62 Stat. 1155 (1948). Congress’s 1956
amendments to the Act strengthened measures for
controlling pollution of interstate waters and their
tributaries. Public Law 84–660, 70 Stat. 498 (1956).
In 1961, Congress amended the Act to substitute the
term ‘‘interstate or navigable waters’’ for ‘‘interstate
waters.’’ See Public Law 87–88, 75 Stat. 208 (1961).
Accordingly, beginning in 1961, the Act’s
provisions applied to all interstate waters and
navigable waters and to the tributaries of each. See
33 U.S.C. 466a, 466g(a) (1964). The 1965
amendments established the requirement that states
develop water quality standards for interstate
waters. Public Law 89–234, 79 Stat. 903, 908, 909
(1965).
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pollution. However, Congress
subsequently concluded 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)
(citing S. Rep. No. 92–414, p. 7 (1971)).
As a result, in 1972, Congress
performed ‘‘a ‘total restructuring’ and
‘complete rewriting’ of the existing’’
statutory framework. Id. 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 Act, 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. at 133; 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’’ has a broad,
specialized definition: ‘‘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
of ‘‘navigable waters’’ to encompass all
the ‘‘waters of the United States.’’ Id.
The relevant House bill would have
defined ‘‘navigable waters’’ as the
‘‘navigable waters of the United States,
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including the territorial seas.’’ H.R. Rep.
No. 911, 92d Cong., 2d Sess. 356 (1972)
(emphasis omitted). But in conference
the word ‘‘navigable’’ was deleted from
that definition, and the conference
report urged that the term ‘‘be given the
broadest possible constitutional
interpretation.’’ S. Conf. Rep. No. 1236,
92d Cong., 2d Sess. 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.
In 1977, Congress substantially
amended the Clean Water Act while
leaving unchanged the 1972 definition
of ‘‘navigable waters.’’ See Clean Water
Act of 1977 (1977 Act), Public Law 95–
217, 91 Stat. 1566. In the run-up to
those amendments, Congress considered
proposals to amend section 404, which
requires a permit for discharges of
dredged or fill material into ‘‘waters of
the United States,’’ and debate on those
proposals ‘‘centered largely on the issue
of wetlands preservation.’’ SWANCC,
531 U.S. at 170 (citation omitted). The
legislative proposal followed the Corps’
1975 rulemaking, which defined the
scope of ‘‘waters of the United States’’
to cover all of the following waters, but
phased Corps’ regulation of discharges
of dredged or fill material into these
waters in three phases: first, into
‘‘coastal waters and coastal wetlands
contiguous or adjacent thereto or into
inland navigable waters of the United
States and freshwater wetlands
contiguous or adjacent thereto;’’ second,
into ‘‘primary tributaries, freshwater
wetlands contiguous or adjacent to
primary tributaries, and lakes;’’ and
third, ‘‘into intrastate lakes, rivers and
streams landward to their ordinary high
water mark’’. 40 FR 31320, 31324, 31326
(July 25, 1975); see section III.A.2 of this
preamble infra for further discussion of
the phased rulemaking through which
the Corps established a definition of
‘‘waters of the United States’’ and the
dates when the Corps began regulating
activities under that definition. The
House passed a bill that would have
limited the waters and adjacent
wetlands to which section 404 applies.
H.R. 3199, 95th Cong., section 16 (1977).
Many legislators objected, with one
characterizing the proposed limitation
as an ‘‘open invitation’’ to pollute other
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wetlands. 123 Cong. Rec. 26,725 (1977)
(statement of Sen. Hart); see id. at
26,714–26,716. The Senate ultimately
rejected the proposal. Id. at 26,728; cf.
S. Rep. No. 370, 95th Cong., 1st Sess. 10
(1977).
Congress instead modified the Clean
Water Act in other respects. Rather than
alter the geographic reach of section 404
in 1977, Congress 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.13
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 to administer the section
404 permitting program. Id. at
1344(g)(1). In so doing, however,
Congress limited States’ potential
jurisdiction to waters ‘‘other than those
waters which are presently used, or are
susceptible to use in their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce shoreward to their
ordinary high water mark, including all
waters which are subject to the ebb and
flow of the tide shoreward to their mean
high water mark, or mean higher high
water mark on the west coast, including
wetlands adjacent thereto.’’ Id. The
Corps retains jurisdiction to issue
permits in those waters. See section
IV.A.2.b for additional analysis of the
Corps’ regulations, the text of the 1977
amendments, and their legislative
history for purposes of construing the
scope of ‘‘waters of the United States.’’
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b. Clean Water Act Programs
The term ‘‘navigable waters’’ is used
in most of the key programs established
by the Clean Water Act, including the
section 402 National Pollutant
Discharge Elimination System (NPDES)
permit program; the section 404 permit
program for dredged or fill material; the
section 311 oil spill prevention,
preparedness, and response program; 14
13 Whereas individual permits are issued directly
to an individual discharger, a ‘‘general permit’’ may
provide coverage for multiple dischargers. See also
preamble section III.A.1.b for additional discussion
of general permits.
14 While Clean Water Act section 311 uses the
phrase ‘‘navigable waters of the United States,’’ EPA
has interpreted it to have the same breadth as the
phrase ‘‘navigable waters’’ used elsewhere in
section 311, and in other sections of the Clean
Water Act. See United States v. Texas Pipe Line Co.,
611 F.2d 345, 347 (10th Cir. 1979); United States
v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1324–
25 (6th Cir. 1974). In 2002, EPA revised its
regulations defining ‘‘waters of the United States’’
in 40 CFR part 112 to ensure that the rule’s
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the water quality standards, impaired
waters, and total maximum daily load
programs under section 303; and the
section 401 Tribal and State water
quality certification process. While
there is only one definition of ‘‘waters
of the United States’’ for purposes of the
Clean Water Act, there may be other
statutory factors that define the reach of
a particular Clean Water Act program or
provision.15
EPA administers the Clean Water Act
except as otherwise explicitly provided.
33 U.S.C. 1251(d). The United States
Attorney General long ago determined
that the ‘‘ultimate administrative
authority to determine the reach of the
term ‘navigable waters’ for purposes of
§ 404’’ resides with EPA. 43 Op. Att’y
Gen. 197 (1979). The Act provides for
the Federal Government to implement
some Clean Water Act programs, and it
gives direct grants of authority to
authorized Tribes as well as States for
implementation and enforcement of
others. In some cases, the Act provides
authorized Tribes and States the option
to take on certain Clean Water Act
programs.16 Eligible Tribes or States
language was consistent with the regulatory
language used in other Clean Water Act programs.
Oil Pollution Prevention & Response; NonTransportation-Related Onshore & Offshore
Facilities, 67 FR 47042 (July 17, 2002). A district
court vacated the rule for failure to comply with the
Administrative Procedure Act and reinstated the
prior regulatory language. American Petroleum Ins.
v. Johnson, 541 F. Supp. 2d 165 (D.D.C. 2008).
However, EPA interprets ‘‘navigable waters of the
United States’’ in Clean Water Act section 311(b),
in both the pre-2002 regulations and the 2002 rule,
to have the same meaning as ‘‘navigable waters’’ in
Clean Water Act section 502(7).
15 For example, the Clean Water Act section 402
permit program regulates discharges of pollutants
from ‘‘point sources’’ to ‘‘navigable waters’’ whether
the pollutants reach jurisdictional waters directly or
indirectly. See Rapanos, 547 U.S. at 743 (plurality);
see also County of Maui, Hawaii v. Hawaii Wildlife
Fund, 140 S. Ct. 1462, 1476 (2020) (holding that the
statute also requires a permit ‘‘when there is the
functional equivalent of a direct discharge’’).
Section 402 also regulates ‘‘any addition of any
pollutant to the waters of the contiguous zone or the
ocean from any point source other than a vessel or
other floating craft.’’ See 33 U.S.C. 1362(12). As
another example, section 311 applies to ‘‘discharges
of oil or hazardous substances into or upon the
navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the
contiguous zone, or in connection with activities
under the Outer Continental Shelf Lands Act [43
U.S.C. 1331 et seq.] or the Deepwater Port Act of
1974 [33 U.S.C. 1501 et seq.], or which may affect
natural resources belonging to, appertaining to, or
under the exclusive management authority of the
United States (including resources under the
Magnuson-Stevens Fishery Conservation and
Management Act [16 U.S.C. 1801 et seq.]).’’ 33
U.S.C. 1321(b)(1).
16 The Clean Water Act defines ‘‘state’’ as ‘‘a
State, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, American
Samoa, the Commonwealth of the Northern Mariana
Islands, and the Trust Territory of the Pacific
Islands.’’ 33 U.S.C. 1362(3). Clean Water Act section
518(e), which is part of the 1987 amendments to the
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implement the section 401 program and
may request approval by EPA to
administer a Clean Water Act section
402 or 404 program.17 18 Moreover,
consistent with the Clean Water Act,
Tribes and States retain authority to
implement their own programs to
protect the waters in their jurisdiction
more broadly and more stringently than
the Federal Government. Section 510 of
the Clean Water Act provides that,
unless expressly stated, nothing in the
Clean Water Act precludes or denies the
right of any Tribe or State to establish
more protective standards or limits than
the Clean Water Act.19 For example,
many Tribes and States regulate
groundwater, and some others protect
vital wetlands that may be outside the
scope of the Clean Water Act.
In addition to section 301(a) which
regulates discharges of pollutants to
jurisdictional waters, many other
provisions of the Clean Water Act
operate based on the definition of
‘‘waters of the United States.’’ For
example, under section 303, water
quality standards and total maximum
daily loads are not required under the
Clean Water Act for waters that are not
‘‘waters of the United States,’’ and
Tribes and States have no authority to
provide certifications under section 401
Act, authorizes EPA to treat eligible federally
recognized Tribes in a similar manner as a State for
implementing and managing certain environmental
programs. 33 U.S.C. 1377(e).
17 All States and 79 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 47 Tribes have
established water quality standards pursuant to
section 303 of the Clean Water Act, which form a
legal basis for limitations on discharges of
pollutants to ‘‘waters of the United States.’’ Three
States are authorized to administer a section 404
program for certain waters in their boundaries.
18 As noted in section III.A.1.a of this preamble,
when a Tribe or State assumes a section 404
program, the Corps retains permitting authority
over certain waters. The scope of Clean Water Act
jurisdiction as defined by ‘‘waters of the United
States’’ is distinct from the scope of waters over
which the Corps retains authority following Tribal
or State assumption of the section 404 program.
Corps-retained waters are identified during
approval of a Tribal or State section 404 program,
and any modifications are approved through a
formal EPA process. 40 CFR 233.36. This rule does
not address the scope of Corps-retained waters, and
nothing in this rule should affect the process for
determining the scope of Corps-retained waters.
19 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 preamble may also
include eligible Tribes.
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with water quality conditions for a
permit or license issued by a Federal
agency for an activity that does not
result in a discharge to ‘‘waters of the
United States.’’
Under section 402 of the Clean Water
Act, an NPDES permit is required where
a point source discharges a pollutant to
‘‘waters of the United States.’’ 20 Clean
Water Act section 404 requires a permit
before dredged or fill material may be
discharged to ‘‘waters of the United
States,’’ with regulatory exemptions for
certain farming, ranching, and forestry
activities. No section 404 permits are
required for discharging dredged or fill
material into waters or features that are
not ‘‘waters of the United States.’’
Section 303(c) of the Clean Water Act
requires States to establish water quality
standards for ‘‘waters of the United
States.’’ States must periodically review
their water quality standards and
modify or adopt standards as required
by the Clean Water Act or as otherwise
appropriate. States must submit new or
revised standards for EPA review. Water
quality standards are the foundation for
a wide range of programs under the
Clean Water Act. They serve multiple
purposes including establishing the
water quality goals for a specific
waterbody, or portion thereof, and
providing the regulatory basis for
establishing water quality-based effluent
limits beyond the technology-based
levels of treatment required by the Clean
Water Act. Water quality standards also
serve as a target for Clean Water Act
restoration goals such as total maximum
daily loads.
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. For
waters identified on a 303(d) list, States
establish total maximum daily loads for
all pollutants preventing or expected to
prevent attainment of water quality
standards. Section 303(d) applies to
‘‘waters of the United States.’’ Nonjurisdictional waterbodies are not
required to be assessed or otherwise
identified as impaired. Total maximum
daily load restoration plans likewise
20 The term ‘‘point source’’ is defined in Clean
Water Act section 502(14) and 40 CFR 122.2 to
include ‘‘any discernible, confined and discrete
conveyance . . . from which pollutants are or may
be discharged.’’ This definition specifically
excludes return flows from irrigated agriculture and
agricultural stormwater runoff. See also supra note
15 (discussing discharges of pollutants subject to
the section 402 program).
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apply only 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 pay for or reimburse
costs of assessing and responding to oil
spills to ‘‘waters of the United States’’
or adjoining shorelines or the Exclusive
Economic Zone.21 The OSLTF allows an
immediate response to a spill, including
containment, countermeasures, cleanup,
and disposal activities. The OSLTF can
only reimburse Tribes or States for
cleanup costs and damages to
businesses and citizens (e.g., lost wages
and damages) for spills affecting waters
subject to Clean Water Act jurisdiction.
EPA also lacks authority under the
Clean Water Act to take enforcement
actions based on spills solely affecting
waters not subject to Clean Water Act
jurisdiction under section 311(b).
Moreover, section 311’s requirements
for oil spill and prevention plans only
apply to those facilities where there is
a reasonable expectation that an oil
discharge could reach a jurisdictional
water or adjoining shoreline or the
Exclusive Economic Zone.
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 22 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, 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 that facility could
reach a jurisdictional water or adjoining
shoreline or the Exclusive Economic
Zone.
Clean Water Act section 401 provides
authorized Tribes and States 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
and licenses are required and thus
21 See 33 U.S.C. 1321(b) for the full jurisdictional
scope of Clean Water Act section 311.
22 See supra note 14.
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where section 401 certification applies.
Section 401 prohibits Federal agencies
from issuing permits or licenses for
activities that may result in a discharge
to ‘‘waters of the United States’’ until
after the State or authorized Tribe where
the discharge would originate has
granted or waived water quality
certification.
The fact that a resource meets the
definition of ‘‘waters 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. For example, 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 33 U.S.C. 1342(l)(2),
1362(14). As discussed above, since
1977 the Clean Water Act in section
404(f) has exempted activities such as
many ‘‘normal farming, silviculture, and
ranching activities’’ from the section
404 permitting requirement, including
seeding, harvesting, cultivating,
planting, and soil and water
conservation practices. Id. at 1344(f)(1).
This rule does not affect these statutory
exemptions.
In addition, permits are routinely
issued under Clean Water Act sections
402 and 404 to authorize certain
discharges to ‘‘waters of the United
States.’’ Further, under both permitting
programs, the agencies have established
general permits for a wide variety of
activities that have minimal impacts to
waters. General permits provide
dischargers with knowledge about
applicable requirements before
dischargers may obtain coverage under
them. Furthermore, obtaining coverage
under a general permit is typically
quicker than obtaining coverage under
an individual permit, with coverage
under a general permit often occurring
immediately (depending on how the
permit is written) or after a short
waiting period. The permitting
authority 23 generally works with permit
applicants to ensure that activities can
occur without harming the integrity of
the nation’s waters. Thus, the permitting
programs allow for discharges to
‘‘waters of the United States’’ to occur
while also ensuring that those
discharges meet statutory and regulatory
requirements designed to protect water
quality.
23 Generally, the permitting authority is either
EPA or an authorized State for the NPDES program
and either the Corps or an authorized State for the
section 404 program. No eligible Tribes have
authority to administer a Clean Water Act section
402 or section 404 program at this time.
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In issuing section 404 permits, the
Corps or authorized State works with
the applicant to avoid, minimize, and
compensate for any unavoidable
impacts to ‘‘waters of the United
States.’’ For most discharges that ‘‘will
cause only minimal adverse
environmental effects,’’ a general permit
(e.g., a ‘‘nationwide’’ permit) may be
suitable. 33 U.S.C. 1344(e)(1). 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 or the State, others allow the
applicant to proceed with no formal
notification. The general permit process
allows certain activities to proceed with
little or no delay, provided 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 can be considered for a
general permit, where the activity meets
the threshold limits and only results in
minimal impacts, individually and
cumulatively. Tribes and States can also
have a role in Corps section 404 permit
decisions, through State Programmatic
General Permits (SPGPs), Regional
General Permits (RGPs), and water
quality certification.
Property owners may obtain a
jurisdictional determination from the
Corps.24 A jurisdictional determination
is a written Corps document indicating
whether a water is subject to regulatory
jurisdiction under section 404 of the
Clean Water Act (33 U.S.C. 1344) or
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. An approved jurisdictional
determination (AJD) is ‘‘a 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.’’ 33 CFR
331.2. An approved jurisdictional
determination is administratively
appealable and is a final agency action
subject to judicial review. U.S. Army
Corps of Engineers v. Hawkes Co., Inc.,
578 U.S. 590 (2016). A preliminary
jurisdictional determination (PJD) is a
non-binding ‘‘written indication that
there may be waters of the United States
on a parcel or indications of the
approximate location(s) of waters of the
24 When a Tribe, State, or territory is approved to
administer the Clean Water Act section 404
program for certain waters, it is responsible for
decisions on whether or not a section 404 permit
is required.
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United States on a parcel.’’ 3 CFR 331.2.
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. The Corps does
not charge a fee for these jurisdictional
determinations. See 33 CFR 325.1
(omitting mention of fees for
jurisdictional determinations);
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’’ 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’’ for purposes of
section 404 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’’).25
Around the same time, several
Federal courts found that limiting
‘‘waters of the United States’’ to those
that are navigable-in-fact is an unduly
restrictive reading of the Act. See, e.g.,
United States v. Holland, 373 F. Supp.
665, 670–676 (M.D. Fla. 1974)
(‘‘Holland’’); Natural Resources Defense
Council, Inc. v. Callaway, 392 F. Supp.
685, 686 (D.D.C. 1975) (‘‘Callaway’’).
EPA and the House Committee on
Government Operations agreed with the
decision in Holland.26 In Callaway, the
25 See Lance Wood, Don’t Be Misled: CWA
Jurisdiction Extends to All Non-Navigable
Tributaries of the Traditional Navigable Waters and
to Their Adjacent Wetlands, 34 Envtl. L. Rptr.
(Envtl. L. Inst.) 10,187 (2004) (explaining history
and limitations of the 1974 Corps regulation as an
interpretation of the scope of the Clean Water Act).
26 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
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3011
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.’’ Callaway, 392
F. Supp. at 686.
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), (e)(2) (1976). The court
required that the Corps put forth a new
definition within a short timeframe. The
regulatory phased-in approach was to
ensure enough time for the Corps to
build up their resources to implement
the expanded jurisdiction and
workload. Thus, the phases did not
mean all of the waters in the final
regulation were not ‘‘waters of the
United States,’’ but rather established
when the Corps would begin regulating
activities within each type of
jurisdictional water.27 The interim
regulations revised the definition of
‘‘waters of the United States’’ to include
waters not covered by the other
regulatory provisions. 33 CFR
209.120(d)(2)(i) (1976).28 On July 19,
1977, the Corps published its final
regulations, in which it revised the 1975
interim regulations to clarify many of
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. 1396, 93d Cong., 2d
Sess. 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).
27 See Wood, supra note 25.
28 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 after 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 after 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).
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the definitional terms for purposes of
section 404. 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).29
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 41206,
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, were
identical and remained largely
unchanged from 1977 to 2015. See 42
FR 37122, 37124, 37127 (July 19,
1977).30 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 including EPA’s comparable
regulations and the 1993 addition of the
exclusion for prior converted cropland.
The 1986 regulations define ‘‘waters
of the United States’’ as follows (33 CFR
328.3 (2014)): 31
(a) The term ‘‘waters of the United
States’’ means:
1. All waters which are currently
used, were used in the past, or may be
29 An explanatory footnote published in the Code
of Federal Regulations stated that this paragraph
‘‘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).
30 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).
31 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.
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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 would or could
affect interstate or foreign commerce
including any such waters:
i. Which are or could be used by
interstate or foreign travelers for
recreational or other purposes; or
ii. From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce; or
iii. Which are used or could be used
for industrial purposes by industries in
interstate commerce;
4. All impoundments of waters
otherwise defined as waters of the
United States under this definition;
5. Tributaries of waters identified in
paragraphs (a)(1) through (4) of this
section;
6. The territorial seas; and
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.
See section I.B of the Economic
Analysis for the Final Rule for a
comparison of regulatory categories
between the pre-2015 regulatory regime,
the 2020 NWPR, and this 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
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 reversed
the Sixth Circuit Court of Appeals and
held that court had erred when it
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imposed a limitation requiring
inundation or ‘‘frequent flooding’’ of
wetlands by the adjacent body of water
for the wetlands to be jurisdictional
when such a limitation was required by
neither the regulation nor the Clean
Water Act. Id. at 129, 134. The Supreme
Court then deferred to the Corps’
judgment that adjacent wetlands ‘‘that
form the border of or are in reasonable
proximity to’’ other ‘‘waters of the
United States’’ 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. The Court observed that the
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 ‘[water] 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
(1972)). 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
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wetlands may be defined as waters
under the Act.’’ Id. at 134. The Court
further stated, ‘‘[i]f 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.’’ Id. at 135 n.9. The Court
expressly reserved the question of
whether the Clean Water 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’’). A 5–
4 Court in SWANCC held that the use
of ‘‘nonnavigable, isolated, intrastate
waters’’ by migratory birds was not by
itself a sufficient basis for the exercise
of Federal authority under the Clean
Water Act. SWANCC, 531 U.S. at 172.
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 Riverside
Bayview 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 (‘‘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 nonnavigable 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.’’
(citations omitted)).
The Corps asserted authority in this
instance based on an interpretation of
the regulations (known as the
‘‘Migratory Bird Rule’’) that waters used
as habitat for migratory birds were
jurisdictional. The Court found that the
exercise of Clean Water Act regulatory
authority over discharges into the ponds
based on their use by migratory birds
raised ‘‘significant constitutional
questions.’’ Id. at 173. The Court
explained that ‘‘[w]here an
administrative interpretation of a statute
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invokes the outer limits of Congress’
power, we expect a clear indication that
Congress intended that result.’’ Id. at
172. 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 concluded that ‘‘the
‘Migratory Bird Rule’ is not fairly
supported by the CWA.’’ Id. at 167.
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
Clean Water Act had been applied to
wetlands adjacent to tributaries, that are
not themselves navigable-in-fact, of
traditional navigable waters. Although
the Court remanded the Court of
Appeals’ finding of Clean Water Act
jurisdiction, the plurality opinion and
Justice Kennedy’s concurrence
disagreed on the proper test to apply.
Despite this disagreement, all nine
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 waterbodies, 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, concluding
that ‘‘to constitute ‘‘ ‘navigable waters’ ’’
under the Act, a water or wetland must
possess a ‘significant nexus’ to waters
that are or were navigable in fact or that
could reasonably be so made.’’ Id. at 759
(citing SWANCC, 531 U.S. at 167, 172);
see also id. at 774 (‘‘As Riverside
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Bayview recognizes, the Corps’
adjacency standard is reasonable in
some of its applications. Indeed, the
Corps’ view draws support from the
structure of the Act.’’). 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 noted 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 or Justice
Kennedy’s test’’ and that in ‘‘future
cases the United States may elect to
prove jurisdiction under either test.’’ 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
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 (emphasis in original). The
Chief Justice observed that the Court’s
division over the proper standard
‘‘could have been avoided’’ had the
agencies conducted rulemaking more
clearly defining ‘‘its authority to
regulate wetlands.’’ Id.
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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.’ ’’ Marks, 430 U.S. at
193 (quoting Gregg v. Georgia, 428 U.S.
153, 169 n.15 (1976)). 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 the
plurality’s relatively permanent
standard is the sole basis that may be
used to establish jurisdiction. 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. Johnson,
467 F.3d 56 (1st Cir. 2006); United
States v. Gerke Excavating, Inc., 464
F.3d 723 (7th Cir. 2006). Some Courts of
Appeals have held that the government
may establish jurisdiction under either
standard. See, e.g., United States v.
Johnson, 467 F.3d 56, 62–64 (1st Cir.
2006); United States v. Bailey, 571 F.3d
791, 799 (8th Cir. 2009). The Eleventh
Circuit has held that only Justice
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Kennedy’s significant nexus standard
applies. United States v. Robison, 505
F.3d 1208 (11th Cir. 2007).
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 plurality’s relatively
permanent standard and Justice
Kennedy’s significant nexus standard—
informed by 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’’).
In the Rapanos Guidance,32 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. Rapanos Guidance
at 4–7. The guidance stated that the
agencies would determine jurisdiction
under the significant nexus standard for
the following waters: non-navigable
tributaries that are not relatively
permanent; wetlands adjacent to nonnavigable tributaries that are not
relatively permanent; and wetlands
adjacent to but not directly abutting a
relatively permanent non-navigable
tributary. Id. at 8–12. Under the
guidance, the agencies generally did not
assert jurisdiction over 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.
B. The Agencies’ Post-Rapanos Rules
Since 2015, EPA and the Army have
finalized three rules revising the
32 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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definition of ‘‘waters of the United
States.’’
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’’). 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. The rule
excluded the following (unless they
were traditional navigable waters, the
territorial seas, or interstate waters):
certain ditches; artificially irrigated
areas that would revert to dry land
should application of water to that area
cease; artificial, constructed lakes and
ponds created in dry land such as farm
and stock watering ponds, irrigation
ponds, settling basins, fields flooded for
rice growing, log cleaning ponds, or
cooling ponds; artificial reflecting pools
or swimming pools created in dry land;
small ornamental waters created in dry
land; water-filled depressions created in
dry land incidental to mining or
construction activity, including pits
excavated for obtaining fill, sand, or
gravel that fill with water; erosional
features, including gullies, rills, and
other ephemeral features that do not
meet the definition of tributary, nonwetland swales, and lawfully
constructed grassed waterways;
puddles; groundwater, including
groundwater drained through
subsurface drainage systems;
stormwater control features constructed
to convey, treat, or store stormwater that
are created in dry land; and wastewater
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recycling structures constructed in dry
land.
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 Clean Water 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 rulemaking, 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). The final rule
provided that the agencies would
implement the definition ‘‘consistent
with Supreme Court decisions and
longstanding practice, as informed by
applicable agency guidance documents,
training, and experience’’; i.e.,
consistent with the pre-2015 regulatory
regime. Id. at 56626.
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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’’’ (‘‘2020 NWPR’’)—that for the
first time defined ‘‘waters of the United
States’’ based primarily on Justice
Scalia’s plurality test from Rapanos.
The 2020 NWPR was published on
April 21, 2020, and went into effect on
June 22, 2020.33 85 FR 22250 (April 21,
2020). The 2020 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
33 The 2020 NWPR went into effect on June 22,
2020, in all jurisdictions except Colorado, where
the rule was subject to a preliminary injunction
issued by the U.S. District Court for the District of
Colorado. Colorado v. EPA, 445 F. Supp. 3d 1295
(D. Colo. 2020). After the Tenth Circuit reversed the
Colorado district court’s order on appeal, the 2020
NWPR went into effect in Colorado on April 26,
2021. Colorado v. EPA, 989 F.3d 874 (6th Cir. 2021);
Colorado v. EPA, No. 20–1238, ECF No.
010110512604 (Doc. 10825032) (10th Cir. Apr. 26,
2021).
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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.
The 2020 NWPR further 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 the
territorial seas 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 the
territorial seas 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 2020 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
was jurisdictional under the 2020
NWPR if it contributed surface water
flow to a downstream jurisdictional
water in a typical year through certain
artificial or natural features. A lake,
pond, or impoundment of a
jurisdictional water inundated by
flooding from a jurisdictional water in a
typical year was also jurisdictional. Id.
As for wetlands, the 2020 NWPR
interpreted ‘‘adjacent wetlands’’ to be
those wetlands that abut jurisdictional
waters and those non-abutting wetlands
that are (1) ‘‘inundated by flooding’’
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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 2020 NWPR expressly provided
that waters that do not fall into one of
these jurisdictional categories were not
considered ‘‘waters of the United
States.’’ Id. For the first time, interstate
waters were not included in the
definition of ‘‘waters of the United
States.’’ The rule also excluded
groundwater, including groundwater
drained through subsurface drainage
systems; ephemeral features, including
ephemeral streams, swales, gullies, rills,
and pools; diffuse stormwater run-off
and directional sheet flow over upland;
ditches that are not traditional navigable
waters, the territorial seas, or tributaries
as defined in the rule; and those
portions of ditches constructed in
adjacent wetlands as defined in the rule
that do not satisfy the conditions of an
adjacent wetland under the rule; prior
converted cropland; artificially irrigated
areas, including fields flooded for
agricultural production, that would
revert to upland should application of
irrigation water to that area cease;
artificial lakes and ponds, including
water storage reservoirs and farm,
irrigation, stock watering, and log
cleaning ponds, constructed or
excavated in upland or in nonjurisdictional waters, so long as those
artificial lakes and ponds are not
impoundments of jurisdictional waters
that meet the rule’s definition of lakes
and ponds, and impoundments of
jurisdictional waters; water-filled
depressions constructed or excavated in
upland or in non-jurisdictional waters
incidental to 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 nonjurisdictional waters to convey, treat,
infiltrate, or store stormwater runoff;
groundwater recharge, water reuse, and
wastewater recycling structures,
including detention, retention, and
infiltration basins and ponds,
constructed or excavated in upland or in
non-jurisdictional waters; and waste
treatment systems. While many of these
exclusions were based on the exclusions
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in the 2015 Clean Water Rule, new
exclusions were added and some were
substantially broadened in a number of
ways. For example, for the first time, all
ephemeral streams were excluded.
Moreover, waters within the 2020
NWPR’s jurisdictional categories,
including traditional navigable waters
and the territorial seas, were not ‘‘waters
of the United States’’ if they also fit
within the 2020 NWPR’s 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.’’).34 In addition, the rule
expanded the longstanding exclusion
for prior converted cropland. Generally
speaking, the 2020 NWPR’s approach to
prior converted cropland substantially
reduced the likelihood that prior
converted cropland would ever lose its
excluded status. The 2020 NWPR
definition extended prior converted
cropland status beyond those areas the
U.S. Department of Agriculture (USDA)
defines as prior converted cropland for
purposes of the Food Security Act.
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4. Legal Challenges to the Rules
The agencies’ rulemakings to revise
the definition of ‘‘waters of the United
States’’ have been subject to a series of
legal challenges.35
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
34 The 2020 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) (2022).
35 The agencies note that a Clean Water Act case
currently pending before the Supreme Court is not
a direct challenge to any of the rules defining
‘‘waters of the United States,’’ but instead presents
the question of the Act’s jurisdictional standard for
adjacent wetlands in the context of a challenge to
an EPA administrative compliance order for the
unauthorized discharge of a pollutant into ‘‘waters
of the United States.’’ Sackett v. EPA, No. 21–454.
Petitioners—who operated a commercial
construction and excavation business—dumped
approximately 1,700 cubic yards of gravel and sand
to fill wetlands adjacent to ‘‘waters of the United
States,’’ and EPA issued an administrative order in
light of the unauthorized discharge. The district
court and the Court of Appeals determined that,
under Ninth Circuit precedent, the Clean Water Act
covers at least those adjacent wetlands that satisfy
the significant nexus standard. The lower courts
held that the administrative record supports EPA’s
conclusion that the wetlands on petitioners’
property are adjacent to a jurisdictional tributary
and that, together with other similarly situated
adjacent wetlands, the adjacent wetlands have a
significant nexus to Priest Lake, a traditional
navigable water.
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cases remain pending in district court or
on appeal.36 While the 2015 Clean
Water Rule went into effect in some
parts of the country in August 2015, it
was never implemented nationwide due
to multiple injunctions and later
rulemakings. The day before the 2015
Clean Water Rule’s August 28, 2015
effective date, the U.S. District Court for
the District of North Dakota
preliminarily enjoined the rule in the 13
States challenging the rule in that court
at the time. North Dakota v. EPA, 127
F. Supp. 3d 1047 (D.N.D. 2015); Order,
North Dakota v. EPA, No. 3:15–cv–59,
Dkt. No. 79 (D.N.D. Sept. 4, 2015)
(limiting scope of preliminary
injunction to the parties before the
court). Shortly thereafter, on October 9,
2015, the Sixth Circuit issued an order
staying the 2015 Clean Water Rule
nationwide and directing the agencies to
resume implementing the ‘‘familiar, if
imperfect’’ pre-2015 regulatory regime.
In re EPA & Dep’t of Def. Final Rule, 803
F.3d 804, 806, 808 (6th Cir. 2015). In
2018, two other district courts issued
geographically limited preliminary
injunctions against the 2015 Clean
Water Rule. Georgia v. Pruitt, 326 F.
Supp. 3d 1356 (S.D. Ga. June 6, 2018)
(barring implementation of the 2015
Clean Water Rule in 11 States); Texas v.
EPA, No. 3:15–cv–162, 2018 WL
4518230 (S.D. Tex. Sept. 12, 2018)
(same as to three States). In 2019, prior
to issuance of the 2019 Repeal Rule, two
courts remanded the 2015 Clean Water
Rule to the agencies, but neither court
vacated the rule. See Texas v. EPA, 389
F. Supp. 3d 497 (S.D. Tex. 2019);
Georgia v. Wheeler, 418 F. Supp. 3d
1336 (S.D. Ga. 2019). As such, the 2015
Clean Water Rule remained in effect in
some parts of the country until the
effective date of the 2019 Repeal Rule.37
The 2019 Repeal Rule went into effect
on December 23, 2019, and though it
has been the subject of legal challenges,
no court has issued an adverse ruling
with respect to it. The 2019 Repeal Rule
was thus in effect until the effective date
of the 2020 NWPR.
36 See, e.g., North Dakota v. EPA, No. 15–00059
(D.N.D.); Ohio v. EPA, No. 15–02467 (S.D. Ohio)
(dismissed as moot), No. 22–3292 (6th Cir.) (appeal
stayed); Southeastern Legal Found. v. EPA, No. 15–
02488 (N.D. Ga.).
37 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, the
rule was vacated and enjoined nationwide. See
South Carolina Coastal Conservation League v.
Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018); see also
Order, Puget Soundkeeper All. v. Wheeler, No. 15–
01342 (W.D. Wash. Nov. 26, 2018) (vacating the
Applicability Date Rule nationwide).
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Multiple parties subsequently sought
judicial review of the 2020 NWPR,
which went into effect on June 22, 2020,
in all jurisdictions except Colorado,
where the rule was subject to a
preliminary injunction issued by the
U.S. District Court for the District of
Colorado. Colorado v. EPA, 445 F. Supp.
3d 1295 (D. Colo. 2020). The Tenth
Circuit later reversed the Colorado
district court’s order on appeal; as a
result, the 2020 NWPR went into effect
in Colorado on April 26, 2021. Colorado
v. EPA, 989 F.3d 874 (6th Cir. 2021);
Colorado v. EPA, No. 20–1238, ECF No.
010110512604 (Doc. 10825032) (10th
Cir. Apr. 26, 2021).
On August 30, 2021, the U.S. District
Court for the District of Arizona
remanded the 2020 NWPR and vacated
the rule. Pascua Yaqui Tribe v. EPA,
557 F. Supp. 3d 949 (D. Ariz. 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 956. On
September 27, 2021, the U.S. District
Court for the District of New Mexico
also issued an order vacating and
remanding the 2020 NWPR. Navajo
Nation v. Regan, 563 F. Supp. 3d 1164
(D.N.M. 2021). In vacating the rule, the
court agreed with the reasoning of the
Pascua Yaqui court that the 2020 NWPR
suffers from ‘‘fundamental, substantive
flaws that cannot be cured without
revising or replacing the NWPR’s
definition of ‘‘waters of the United
States.’’’ Id. at 1168. In six additional
cases, courts remanded the 2020 NWPR
without vacatur or without addressing
vacatur.38
At this time, 14 cases challenging the
2015 Clean Water Rule, 2019 Repeal
Rule, and/or the 2020 NWPR remain.39
38 Order, Pueblo of Laguna v. Regan, No. 1:21–cv–
277, Dkt. 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–3005, Dkt. No. 271 (N.D. Cal. Sept. 16, 2021)
(same); Order, Waterkeeper All. v. Regan, No. 3:18–
cv–3521, Dkt. No. 125 (N.D. Cal. Sept. 16, 2021)
(same); Order, Conservation Law Found. v. EPA,
No. 1:20–cv–10820, Dkt. No. 122 (D. Mass. Sept. 1,
2021) (same); Order, S.C. Coastal Conservation
League v. Regan, No. 2:20–cv–1687, Dkt. No. 147
(D.S.C. July 15, 2021) (remanding without vacating);
Order, Murray v. Wheeler, No. 1:19–cv–1498, Dkt.
No. 46 (N.D.N.Y. Sept. 7, 2021) (same).
39 Pascua Yaqui Tribe v. EPA, No. 4:20–cv–266
(D. Ariz.); Colorado v. EPA, No. 1:20–cv–1461 (D.
Colo.); Am. Exploration & Mining Ass’n v. EPA, No.
1:16–cv–1279 (D.D.C.); Envtl. Integrity Project v.
Regan, No. 1:20–cv–1734 (D.D.C.); Se. Stormwater
Ass’n v. EPA, No. 4:15–cv–579 (N.D. Fla.); Se. Legal
Found. v. EPA, No. 1:15–cv–2488 (N.D. Ga.);
Chesapeake Bay Found. v. Regan, Nos. 1:20–cv–
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All of these cases are administratively
closed, inactive, or being held in
abeyance as of the date this final rule
was signed. See ‘‘History of the Effects
of Litigation over Recent Definitions of
‘Waters of the United States’’’ in the
docket for this rule for more information
on how litigation has impacted the
status of the definition of ‘‘waters of the
United States’’ in effect at different
times across the country.
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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.’’ It 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,
section 1 (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. The
order specified that ‘‘[f]or 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. at
section 2(a). 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
1063 & 1:20–cv–1064 (D. Md.); Navajo Nation v.
Regan, No. 2:20–cv–602 (D.N.M.); N.M. Cattle
Growers’ Ass’n v. EPA, No. 1:19–cv–988 (D.N.M.);
North Dakota v. EPA, No. 3:15–cv–59 (D.N.D.);
Ohio v. EPA, No. 2:15–cv–2467 (S.D. Ohio)
(dismissed as moot), No. 22–3292 (6th Cir.) (appeal
stayed); Or. Cattlemen’s Ass’n v. EPA, No. 3:19–cv–
564 (D. Or.); Puget Soundkeeper All. v. EPA, No.
2:20–cv–950 (W.D. Wash.); Wash. Cattlemen’s Ass’n
v. EPA, No. 2:19–cv–569 (W.D. Wash.).
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States’’ Rule), which had initiated
development of the 2020 NWPR. Id. at
section 7(a).
In conformance with Executive Order
13990, the agencies reviewed the 2020
NWPR to determine its alignment with
three principles laid out in the
Executive Order: science, climate
change, and environmental justice.
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
IV.B.3 of this preamble, the 2020 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 2020 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
and continue to be extensively impacted
by climate change. Climate change can
have a variety of impacts on water
resources in particular. See section II.C
of the Technical Support Document. 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). Other areas are
experiencing more extreme cycles of
flood and drought (e.g., the Northern
Great Plains). Climate change can
increase the intensity of precipitation
events. Runoff from more intense storms
can impair water quality as pollutants
deposited on land wash into
waterbodies. 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. In addition,
climate change affects streamflow
characteristics, such as the magnitude
and timing of flows, in part due to
changes in snowpack magnitude and
seasonality. Many historically dry areas
are experiencing less precipitation and
an increased risk of drought associated
with more frequent and intense
heatwaves, which cause streams and
wetlands to become drier, negatively
affecting water supplies and water
quality. Heatwaves, associated drought,
and the loss of surface and soil moisture
associated with longer dry seasons,
lower streamflow, and lower
groundwater levels also affect the
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frequency, size, and duration of
wildfires, which alter water quality and
impact wetlands and their functions. A
changing climate can also result in
higher and more variable temperatures
in streams, killing fish and harming
other aquatic species that can live only
in colder water. Finally, rising sea levels
associated with climate change are
inundating low-lying streams and
wetlands and further contributing to
coastal flooding and erosion.
Although water resources are
vulnerable to climate change, when
their interconnectedness and extent are
maintained, streams and wetlands
perform a variety of functions that
contribute to climate resiliency by
mitigating negative effects on traditional
navigable waters, the territorial seas,
and interstate waters. For instance,
wetlands inside and outside of
floodplains store large volumes of
floodwaters, thereby reducing flood
peaks and protecting downstream
watersheds. As natural filters, wetlands
help purify and protect the quality of
other waterbodies, including drinking
water supplies—a function which is
more important than ever as intense
precipitation events spurred on by a
changing climate mobilize sediment,
nutrients, and other pollutants. Coastal
wetlands help buffer storm surges,
which may increase in frequency or
severity with sea-level rise and the
increasing size and intensity of coastal
storms. Additionally, small streams are
particularly effective at retaining and
attenuating floodwaters. Biological
communities and geomorphic processes
in small streams and wetlands break
down leaves and other organic matter,
sequestering a portion of that carbon
that could otherwise be released into the
atmosphere and continue to negatively
affect water resources.
The 2020 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 thirtyyear approach to determining a ‘‘typical
year’’ did not allow the agencies
flexibility to account for the effects of a
rapidly changing climate, including
upward trending temperatures,
increasing storm events, and extended
droughts (see section IV.B.3.c of this
preamble). The 2020 NWPR also
categorically excluded ephemeral
streams and their adjacent wetlands
from the definition of ‘‘waters of the
United States.’’ These exclusions, if in
effect, would disproportionately impact
the arid West. Aquatic systems
comprised largely of ephemeral streams
are increasingly critical to protecting
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and maintaining the integrity of
paragraph (a)(1) waters, for example by
contributing streamflow and organic
matter to those larger waters. This is
especially true in the Southwestern
United States, where climate change is
expanding the spatial extent of arid
conditions and increasing the risks of
more extreme drought. Some portions of
the arid West are experiencing altered
monsoon seasons that have fewer but
more intense storms that contribute to
so-called ‘‘flashy’’ stream hydrology
(i.e., higher runoff volume, leading to
more rapidly rising and falling
streamflow over shorter periods of
time).
Environmental Justice: While impacts
on communities with environmental
justice concerns are not a basis for
determining the scope of the definition
of ‘‘waters of the United States,’’ the
agencies recognize that the burdens of
environmental pollution and climate
change often fall disproportionately on
communities with environmental justice
concerns (e.g., minority (Indigenous
peoples and/or people of color) and
low-income populations, as specified in
Executive Order 12898). Numerous
groups have raised concerns that the
2020 NWPR had disproportionate
impacts on Tribes and Indigenous
communities.40 The 2020 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 Tribal or State law (see
section IV.B.3.d of this preamble). If the
2020 NWPR were in effect, without
regulations governing discharges of
pollutants into previously jurisdictional
waters, communities with
environmental justice concerns where
these waters are located could
experience increased water pollution
and impacts from associated increases
in health risk.
Further, the 2020 NWPR’s categorical
exclusion of ephemeral streams from
jurisdiction (and any wetlands adjacent
to those streams) disproportionately
impacted Tribes and communities with
environmental justice concerns in the
arid West. Many Tribes lack the
authority and resources to regulate
waters within their boundaries, and
they may also be affected by pollution
from adjacent jurisdictions.41 In
addition, under the 2020 NWPR,
increased water pollution due to the
elimination of Federal protection over
ephemeral streams and their adjacent
wetlands could lead to health impacts
and the reduction of clean water needed
for traditional agricultural, cultural, and
subsistence uses for communities with
environmental justice concerns.42
Therefore, if in effect, the 2020 NWPR
could disproportionately expose Tribes
to increased pollution and health risks.
After completing the review and
reconsidering the record for the 2020
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 were the text, structure,
and history of the Clean Water Act;
relevant Supreme Court case law; the
current and future harms to the
chemical, physical, and biological
integrity of the nation’s waters due to
implementation of the 2020 NWPR;
concerns raised by co-regulators and
stakeholders about the 2020 NWPR,
including implementation-related
41 See
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40 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
[‘‘waters of the United States’’] 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 (stating that 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 IV.B.3.d of this preamble
and Technical Support Document section II.B.D.
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supra note 40.
e.g., comments submitted by Navajo
Nation at 3 (February 7, 2022) (Docket ID No. EPA–
HQ–OW–2021–0602–0581), https://
www.regulations.gov/comment/EPA-HQ-OW-20210602-0581 (‘‘Nor did the NWPR consider
environmental justice concerns, including that
tribes, among other environmental justice
communities, ‘may experience increased water
pollution and impacts from associated increases in
health risk.’ ’’ (citation omitted)); comments
submitted by Amigos Bravos et al. at 2 (February
7, 2022) (Docket ID No. EPA–HQ–OW–2021–0602–
0600), https://www.regulations.gov/comment/EPAHQ-OW-2021-0602-0600 (‘‘Many New Mexican
farmers of color depend upon clean water flowing
from the ephemeral drainages in headwater systems
to water their crops and livestock. New Mexico
acequias (community irrigation ditches) help to
convey and distribute surface water to tens of
thousands of New Mexican acequia families and
over 100,000 acres of irrigable lands, primarily for
traditional agricultural and cultural uses. New
Mexico’s surface waters are the lifeblood of
numerous acequias, sustaining and enriching
centuries-old acequias and farming and ranching
traditions which depend upon clean water.
Protecting clean water in New Mexico is intricately
tied to environmental justice.’’).
42 See,
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issues; the principles outlined in the
Executive Order; and issues raised in
ongoing litigation challenging the 2020
NWPR. EPA and the Army concluded
that the 2020 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 it threatened
the loss or degradation of waters critical
to the protection of traditional navigable
waters, the territorial seas, and interstate
waters, among other concerns.
C. Summary of Co-Regulator
Engagement and Stakeholder Outreach
EPA and the Army held a series of
stakeholder meetings during the
agencies’ review of the 2020 NWPR,
including specific meetings in May 2021
with industry, environmental
organizations, agricultural
organizations, and State associations.
On July 30, 2021, the agencies signed a
Federal Register document that
announced a schedule for initial public
meetings to hear from interested
stakeholders on their perspectives on
defining ‘‘waters of the United States’’
and implementing 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 from August 4, 2021, to
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 No. EPA–HQ–OW–2021–
0328). Consistent with the August 4,
2021, Federal Register publication, the
agencies held six public meeting
webinars on August 18, August 23,
August 25 (specifically for small
entities), August 26, August 31, and
September 2, 2021.
The agencies also engaged State and
local governments over a 60-day
federalism consultation period during
development of the proposed rule,
beginning with an initial federalism
consultation meeting on August 5, 2021,
and concluding on October 4, 2021. A
total of thirty-eight letters were
submitted to the agencies as part of the
federalism consultation process from
State and local government agencies,
intergovernmental associations, and
State-level associations. 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. Additional
information about the federalism
consultation can be found in section V.E
of this preamble and the Summary
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Report of Federalism Consultation,
available in the docket for this rule.
The agencies initiated a Tribal
consultation and coordination process
during development of the proposed
rule which was conducted over a 66-day
period from July 30, 2021, until October
4, 2021, including two consultation
kick-off webinars. The agencies received
consultation comment letters from 27
Tribes and three Tribal organizations
and held three leader-to-leader
consultation meetings and four stafflevel meetings with Tribes at their
request. 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.
Additional information about Tribal
consultation and engagement can be
found in section V.F of this preamble
and the Summary of Tribal Consultation
and Coordination, which is available in
the docket for this rule.
The agencies signed a proposed rule
defining ‘‘waters of the United States’’
on November 18, 2021. On December 7,
2021, the agencies published the
proposed rulemaking in the Federal
Register, 86 FR 69372, which initiated
a 60-day public comment period that
lasted through February 7, 2022. EPA
and Army held three virtual public
hearings on January 11, 13, and 18,
2022. The Office of Advocacy of the
U.S. Small Business Administration
hosted EPA and Army staff in January
2022 to discuss the proposed rule with
small entities at its Small Business
Environmental Roundtables. The
agencies met with small agricultural
interests and their representatives for a
roundtable on January 7, 2022, and met
with other small entities on January 10,
2022. The agencies also engaged with
State and local governments during the
public comment period, including
through two virtual roundtables on
January 24 and 27, 2022. The agencies
continued to engage with Tribes during
the public comment period. On January
20, 2022, the agencies hosted a Tribal
virtual roundtable.
In developing this rule, the agencies
reviewed and considered approximately
114,000 comments received on the
proposed rulemaking from a broad
spectrum of interested parties.
Commenters provided a wide range of
feedback on the proposal, including: the
legal basis for the proposed rule; the
agencies’ proposed treatment of
categories of jurisdictional waters and
those features that would not be
jurisdictional; the Economic Analysis
and Technical Support Document for
the proposed rule; and the need for a
clear and implementable rule that is
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easy for the public to understand. The
agencies discuss comments received
and their responses in the applicable
sections of the preamble to this rule. A
complete response to comments
document is available in the docket for
this rule (Docket ID No. EPA–HQ–OW–
2021–0602).
The agencies also engaged with EPA’s
Science Advisory Board (SAB) on
several occasions during the
development of this rule. The SAB was
established in 1978 by the
Environmental Research, Development,
and Demonstration Authorization Act
(ERDDAA), to provide independent
scientific and technical advice to the
EPA Administrator on the technical
basis for agency positions and
regulations.
On January 28, 2022, during the
public comment period, the agencies
met with the SAB Work Group for
Review of Science Supporting EPA
Decisions to explain the proposed rule,
including its basis, and to address the
SAB Work Group’s initial questions. On
February 7, 2022, the SAB Work Group
signed a memorandum recommending
that the Chartered SAB should review
the adequacy of the science supporting
the proposed rule. SAB Memorandum:
Recommendations of the SAB Work
Group for Review of Science Supporting
EPA Decisions Regarding Two Planned
EPA Regulatory Actions (February 7,
2022). On March 7, 2022, during the
public meeting of the Chartered SAB,
the Chartered SAB unanimously voted
to review the scientific and technical
basis of the proposed rule. The SAB
formed a Work Group of its chartered
members which issued a draft review on
May 9, 2022, and the Chartered SAB
held public meetings on the matter on
May 31 and June 2, 2022. The SAB
issued their final review on July 5, 2022
(EPA–SAB–22–005, hereinafter, ‘‘2022
SAB Review’’). All materials related to
the SAB’s review are available in the
docket for this rule and on the SAB’s
website.
The SAB’s review of the proposed
rule was overall supportive of the
science underpinning the proposed rule,
including the Technical Support
Document, and the discussion of
shallow subsurface flow. The SAB made
some recommendations on the
discussion of climate change. The SAB’s
review was also generally favorable
towards the approaches taken in the
Economic Analysis supporting the
proposed rule. The SAB made
recommendations for improvement of
the Economic Analysis, particularly
regarding the environmental federalism
approach and the continued nonmonetization of certain benefits. The
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3019
SAB indicated that the agencies’ plans
for expanding the environmental justice
analysis for this rule were appropriate
and provided recommendations for
improving and clarifying the analysis. A
memorandum summarizing the
agencies’ interactions with the SAB and
the SAB’s review of the proposed rule
is available in the docket for this rule.
IV. Revised Definition of ‘‘Waters of the
United States’’
A. Basis for This Rule
In this rule, the agencies are
exercising their 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 the text of the relevant provisions of
the Clean Water Act and the statute as
a whole, the scientific record, relevant
Supreme Court precedent, and the
agencies’ experience and technical
expertise after more than 45 years of
implementing the longstanding pre2015 regulations defining ‘‘waters of the
United States.’’ 43 The agencies construe
the term ‘‘waters of the United States’’
to mean: (1) traditional navigable
waters, the territorial seas, and interstate
waters (‘‘paragraph (a)(1) waters’’); (2)
impoundments of ‘‘waters of the United
States’’ (‘‘paragraph (a)(2)
impoundments’’); (3) tributaries to
traditional navigable waters, the
territorial seas, interstate waters, or
paragraph (a)(2) impoundments when
the tributaries meet either the relatively
permanent standard or the significant
nexus standard (‘‘jurisdictional
tributaries’’); (4) wetlands adjacent to
paragraph (a)(1) waters; wetlands
adjacent to and with a continuous
surface connection to relatively
permanent paragraph (a)(2)
impoundments or jurisdictional
tributaries when the jurisdictional
tributaries meet the relatively
permanent standard; and wetlands
adjacent to paragraph (a)(2)
impoundments or jurisdictional
tributaries when the wetlands meet the
significant nexus standard
(‘‘jurisdictional adjacent wetlands’’);
43 For brevity, the agencies may refer to the
considerations that formed the basis of the agencies’
interpretation of ‘‘waters of the United States’’ in
the final rule as ‘‘the law, the science, and agency
expertise.’’ References to the agencies’
consideration of ‘‘the law, the science, and agency
expertise’’ throughout this preamble are intended to
encompass the agencies’ consideration of the text of
the relevant provisions of the Clean Water Act and
the statute as a whole, the scientific record, relevant
Supreme Court decisions, and the agencies’
experience and technical expertise implementing
the pre-2015 regulatory regime.
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and (5) intrastate lakes and ponds,
streams, or wetlands not identified in
paragraphs (a)(1) through (4) that meet
either the relatively permanent standard
or the significant nexus standard
(‘‘paragraph (a)(5) waters’’). This rule
also contains, at paragraph (b), the
longstanding exclusions in the 1986
regulations, as well as additional
exclusions based on well-established
practice, from the definition of ‘‘waters
of the United States’’ and, at paragraph
(c), definitions for terms used in this
rule.
This 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 informed
by the best available science concerning
the functions provided by upstream
tributaries, adjacent wetlands, and
paragraph (a)(5) waters to restore and
maintain the water quality of paragraph
(a)(1) waters. In developing the rule, the
agencies also considered the text of the
relevant statutory provisions of the
Clean Water Act and the statute as a
whole, relevant Supreme Court case
law, and the agencies’ experience and
technical expertise after more than 45
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
decisions in Riverside Bayview,
SWANCC, and Rapanos collectively.
This construction also reflects
consideration of provisions of the Clean
Water Act referencing the role of the
States. Section 101(b) provides 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.’’ The provisions in this rule
reflect consideration of the
comprehensive nature and objective of
the Clean Water Act and also avoid
assertions of jurisdiction that raise
federalism concerns. Determining where
to draw the boundaries of Federal
jurisdiction to ensure that the agencies
advance Congress’s objective while
preserving and protecting the
responsibilities and rights of the States
is assigned by Congress to the agencies.
This 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, the
territorial seas, and interstate waters,
Clean Water Act programs will apply to
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ensure that those downstream waters
have a baseline of protection established
by Federal law. Where they do not,
Tribes and States have authority. These
limitations are based on the agencies’
conclusion that the significant nexus
standard is consistent with the statutory
text and legislative history, advances the
objective of the Clean Water Act, is
informed by the scientific record and
Supreme Court case law, and
appropriately considers the policies of
the Act, and that, while the relatively
permanent standard, standing alone,
identifies only a subset of the ‘‘waters of
the United States,’’ including this
standard in the final rule facilitates ease
of implementation. In addition, this rule
reflects consideration of the agencies’
experience and expertise, as well as
updates in implementation tools and
resources, and its terms are generally
familiar and implementable.
For all these reasons, this rule will
achieve the agencies’ goals of effectively
and durably protecting the quality of the
nation’s waters. The effectiveness of this
rule is based, in part, on the familiarity
of the regulatory framework to the
agencies and stakeholders, with an array
of readily available tools and resources.
This rule also is durable because it is
founded on the familiar framework of
the longstanding 1986 regulations,
amended to reflect the agencies’
interpretation of appropriate limitations
on the geographic scope of the Clean
Water Act in light of the law, the
science, and agency expertise. This rule
also reflects the agencies’ consideration
of the extensive public comments. This
rule protects 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 Tribal and
State water quality certification
programs.
1. The Agencies Are Exercising the
Authority Granted by Congress To
Define ‘‘Waters of the United States’’
Under the Clean Water Act
The agencies are exercising the
authority granted to them by Congress
in the Clean Water Act to construe the
key term ‘‘navigable waters,’’ which
Congress broadly defined to mean ‘‘the
waters of the United States, including
the territorial seas.’’ 33 U.S.C. 1362(7)
(Clean Water Act section 502(7)). As
explained herein, the text of the statute,
including in particular sections 501 and
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502(7), and congressional intent provide
that delegation of authority. And the
Supreme Court has affirmed the
conclusion that the agencies have the
authority to define the bounds of
‘‘waters of the United States.’’ In this
rule, the agencies are using the
traditional tools of statutory
construction to exercise their delegated
authority. Further, the rule is founded
upon the longstanding 1986 regulations,
familiar to Congress and the Court,
while incorporating important
limitations based on the text of the
statute. Finally, it is well established
that 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.
Congress’s intent to delegate authority
to the agencies to construe the term
‘‘navigable waters’’ and its definition in
section 502(7), ‘‘the waters of the United
States, including the territorial seas,’’ is
clear from this text in the Clean Water
Act. First, Congress established a broad
definition of a term foundational to
advancing the Act’s clear objective that
requires additional interpretation to
implement that term by the expert
agencies charged with administering the
statute. Second, Congress explicitly
delegated such authority to EPA: ‘‘The
Administrator is authorized to prescribe
such regulations as are necessary to
carry out his functions under this Act.’’
33 U.S.C. 1361 (Clean Water Act section
501). Clearly, interpreting this key term
through regulation is necessary to carry
out the functions of the Act.
Congressional intent affirms this
delegation. The breadth of the definition
of ‘‘navigable waters’’ reflects a
deliberate choice by Congress to both
enact a statute with a broad scope of
waters protected by Federal law and to
delegate the authority to interpret the
specialized term and its definition to the
expert agencies. The relevant House bill
would have defined ‘‘navigable waters’’
as the ‘‘navigable waters of the United
States, including the territorial seas.’’
H.R. Rep. No. 911, 92d Cong., 2d Sess.
356 (1972) (emphasis omitted). But the
House was concerned that the definition
might be given an unduly narrow
interpretation. 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
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or may be made for administrative
purposes.’’ H.R. Rep. No. 92–911, at 131
(1972). The Senate Report also
expressed disapproval of the narrow
construction by the Corps of the scope
of waters protected under prior water
protection statutes, stating ‘‘[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). Thus, in
conference the word ‘‘navigable’’ was
deleted from that definition, and the
conference report again urged that the
term ‘‘be given the broadest possible
constitutional interpretation
unencumbered by agency
determinations which have been made
or may be made for administrative
purposes.’’ S. Conf. Rep. No. 1236, 92d
Cong., 2d Sess. 144 (1972). Congress
thus intended the agencies to which it
granted authority to implement the
Clean Water Act to interpret the scope
of the definition of ‘‘navigable waters’’
consistent with Congress’s intent and
objective in enacting the Act.
The Supreme Court has also affirmed
the conclusion that it is the agencies’
role to interpret the term ‘‘waters of the
United States.’’ As the 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.
In addition, any ambiguity in
Congress’s terms in Clean Water Act
section 502(7) further underscores the
role of the agencies in interpreting the
statutory language. The Riverside
Bayview Court deferred to and upheld
the agencies’ interpretation of the Clean
Water Act to protect wetlands adjacent
to navigable-in-fact bodies of water,
stating ‘‘[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
(citations omitted). All nine Justices in
Rapanos again recognized that there
was ambiguity in the terms of the Clean
Water Act. 547 U.S. at 752, 758, 780,
796, 811–12. In concurring with the
Rapanos plurality opinion, the Chief
Justice explained that, given the ‘‘broad,
somewhat ambiguous, but nonetheless
clearly limiting terms Congress
employed in the Clean Water Act, the
Corps and the EPA would have enjoyed
plenty of room to operate’’ if they had
addressed the relevant interpretive
questions through rulemaking. 547 U.S.
at 758 (Roberts, C.J., concurring). The
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Chief Justice emphasized the breadth of
the agencies’ discretion in defining
‘‘waters of the United States’’ through
rulemaking; indeed, the agencies’
interpretations under the Clean Water
Act, Chief Justice Roberts emphasized,
are ‘‘afforded generous leeway by the
courts.’’ Id. at 758.
In exercising their authority to
interpret the statute in this rule, the
agencies are ‘‘employing the traditional
tools of statutory interpretation,’’
American Hospital Association v.
Becerra, 142 S. Ct. 1896, 1906 (2022)
(per curiam), beginning with ‘‘the text
and structure of the statute,’’ id. at 1904,
as well as ‘‘with reference to the
statutory context, ‘structure, history,
and purpose,’ ’’ Abramski v. United
States, 573 U.S. 169, 179 (2014) (citation
omitted). As discussed further in this
section IV.A of the preamble, the
agencies have used additional tools of
statutory construction, including the
statutory history, the statute as a whole,
the objective of the Clean Water Act,
and the legislative history, which clears
up ambiguity, in construing the Act. See
Bostock v. Clayton County, Georgia, 140
S. Ct. 1731, 1749 (2020) (discussing use
of legislative history by the Supreme
Court ‘‘when interpreting ambiguous
statutory language’’ (emphasis in
original) and noting that ‘‘[l]egislative
history, for those who take it into
account, is meant to clear up ambiguity,
not create it’’ (citing Milner v.
Department of Navy, 562 U.S. 562, 574
(2011))).
The agencies have also properly
brought to bear their expertise and
experience in construing the Clean
Water Act. As the Supreme Court
concluded in Riverside Bayview, ‘‘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
addition, the agencies have more than
45 years of experience implementing the
longstanding pre-2015 regulations
defining ‘‘waters of the United States,’’
including more than a decade of
implementing those regulations
consistent with the Supreme Court’s
decisions in Riverside Bayview,
SWANCC, and Rapanos, and have
concluded this rule is also consistent
with the ‘‘longstanding practice of [the
agencies] in implementing the relevant
statutory authorities.’’ Biden v.
Missouri, 142 S. Ct. 647, 652 (2022).
Finally, Congress is aware of the
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agencies’ longstanding interpretation of
‘‘waters of the United States’’ and has
not acted to limit the agencies’
interpretation, but rather has
incorporated aspects of the agencies’
regulatory definition into the statute.
See section IV.A.2.b of this preamble.
Further, 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 IV.B.3 of this preamble, the
agencies have reviewed the 2020 NWPR
and determined that the rule should be
replaced. This rule properly considers
the objective of the Clean Water Act, is
consistent with the text and structure of
the Act, informed by relevant Supreme
Court precedent, and reflects the record
before the agencies, including
consideration of the best available
science, as well as the agencies’
expertise and experience implementing
the pre-2015 regulatory regime.
To be clear, in this rule the agencies
are exercising the authority granted to
them by Congress to construe and
implement the Clean Water Act and to
interpret an ambiguous term and its
statutory definition. Therefore, while
the agencies’ interpretation of the
statute is informed by Supreme Court
decisions, including Rapanos, it is not
an interpretation of the multiple
opinions in Rapanos, nor is it based on
an application of the Supreme Court’s
principles to derive a governing rule of
law from a decision of the Court in a
case such as Rapanos where ‘‘no
opinion commands a majority.’’
Rapanos, 547 U.S. at 758 (Roberts, C.J.,
concurring) (citing Marks v. United
States, 430 U.S. 188, 193 (1977)
(‘‘Marks’’)). Rather, this rule codifies the
agencies’ interpretation of ‘‘navigable
waters’’ informed by the text of the
relevant provisions of the Clean Water
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Act and the statute as a whole, as well
as the scientific record, relevant
Supreme Court case law, input from
public comment, and the agencies’
experience and technical expertise after
more than 45 years of implementing the
longstanding pre-2015 regulations
defining ‘‘waters of the United States,’’
including more than a decade of
implementing the regulations after
Rapanos. Based on these considerations,
the agencies have concluded that the
significant nexus standard in this rule is
the best interpretation of section 502(7)
of the Clean Water Act.
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2. This Rule Advances the Objective of
the Clean Water Act
This rule is grounded in the Clean
Water Act’s objective ‘‘to restore and
maintain the chemical, physical, and
biological integrity of the Nation’s
waters,’’ 33 U.S.C. 1251(a). This rule
advances the Clean Water 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, the
territorial seas, and interstate waters;
and waters that meet the relatively
permanent standard. The limitations in
the definition ensure that the agencies
will not assert jurisdiction where the
effect on traditional navigable waters,
the territorial seas, and interstate
waters—i.e., the paragraph (a)(1)
waters—is not significant. This rule is
informed by the best available science
on the functions provided by upstream
waters, including wetlands, to restore
and maintain the integrity of paragraph
(a)(1) waters because the rule recognizes
that upstream waters can have
significant effects on such waters and
enables the agencies to make scienceinformed decisions about such effects.
This rule thus defines ‘‘waters of the
United States’’ to include the familiar
types of waters in the 1986
regulations—traditional navigable
waters, interstate waters,
impoundments, tributaries, the
territorial seas, adjacent wetlands, and
waters that do not fall within the other
categories—while adding, 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., Gen. Dynamics Land
Sys., Inc. v. Cline, 540 U.S. 581 (2004).
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When considering the scope of the
Clean Water Act, the Supreme Court
often begins with the objective of the
Act and examines the relevant question
through that lens. 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.’’ Here, Congress made its
purpose crystal clear by stating its
objective in the first section of the
statute. 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 adequately consider
the Clean Water 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 Clean Water Act, supported by
legislative history and Supreme Court
decisions, make clear—protecting the
chemical, physical, and biological
integrity of the nation’s waters means
protecting their water quality.
The Clean Water 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. Section 102 of the
Clean Water Act requires the
Administrator to, after consultation,
develop comprehensive programs for
preventing, reducing, or eliminating the
pollution of the navigable waters.
One of the Clean Water Act’s
principal tools in protecting 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. Other
substantive provisions of the Clean
Water Act that use the term ‘‘navigable
waters’’ and are designed to meet the
statutory objective include the section
402 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
401Tribal and State water quality
certification process. Each of these
programs is designed to protect water
quality and, therefore, further the
objective of the Clean Water Act. The
question of Federal jurisdiction is
foundational to most programs
administered under the Clean Water
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Act. See section III.A.1 of this
preamble.44
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 Clean Water 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
(quoting 33 U.S.C. 1251(a)).45 Thus, in
accordance with Maui, in interpreting
the ‘‘specific definitional language’’ of
the Clean Water Act, the agencies must
ensure that they are advancing the
statutory purposes Congress sought to
achieve.
In National Association of
Manufacturers, the Court confirmed the
importance of considering the plain
language of the objective of the Clean
Water Act when interpreting the
44 Additional provisions are also designed to
achieve the Clean Water 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).
45 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). § 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.’ ’’ § 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.’ ’’ § 502(12),
id., at 886.
Maui, 140 S. Ct. at 1469.
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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
Clean Water Act’s principal tools for
achieving the objective and then
identified the definition of ‘‘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 Clean Water 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
Clean Water 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 Clean Water 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 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, 101 (1992)
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(reviewing the scope of EPA’s authority
to issue a permit affecting a downstream
State and finding that the Clean Water
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., on the quality of those
waters. The Supreme Court in Riverside
Bayview explained the inherent link
between the Clean Water 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).
The statutory structure further
confirms that ‘‘waters of the United
States’’ must be interpreted to account
for the Clean Water Act’s broader
objective of promoting water quality.
The Act is replete with 90 references to
water quality—from the goals set forth
to meet 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
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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 at 47 (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 objective of the Clean
Water Act is not the only factor relevant
to determining the scope of the Act.
Rather, in light of the precise language
of the definitions in the Act, the
importance of water quality to the
statute as a whole, and Supreme Court
decisions affirming that consideration of
the objective of the Act is of primary
importance in defining its scope, the
agencies conclude that a rule defining
‘‘waters of the United States’’ must
substantively consider the effects of a
revised definition on the integrity of the
nation’s waters and advance the
protection of the quality of those waters.
As discussed further below, this rule
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properly considers and advances the
objective of the Clean Water Act because
the science conclusively demonstrates
that upstream waters, including
wetlands, can affect the quality of
downstream waters and ensures
application of Clean Water Act water
quality programs to upstream waters
when their effect on downstream
traditional navigable waters, territorial
seas, and interstate waters is significant.
b. This Rule Is Founded on the 1986
Regulations, Which Advance the
Objective of the Clean Water 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. In
this rule, the agencies are exercising
their authority to construe ‘‘waters of
the United States’’ to mean the waters
defined by the familiar 1986 regulations,
with amendments to reflect the
agencies’ construction of limitations on
the scope of ‘‘waters of the United
States,’’ based on the law, the science,
and agency expertise. Of particular
import, the agencies are limiting the
scope of the longstanding regulatory
categories by adding a requirement that
tributaries, adjacent wetlands (that are
adjacent to waters other than paragraph
(a)(1) waters), and lakes and ponds,
streams, and wetlands that are not
identified in paragraphs (a)(1) through
(4) meet either the relatively permanent
standard or the significant nexus
standard as established in this rule. The
agencies also considered the extensive
public comment on the proposed rule in
developing this final rule.
The best available science 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 of the
preamble describes the agencies’
historic rationale for the 1986 regulation
and its regulatory categories and
describes the latest science that
supports the conclusion that the
categories of waters identified in the
1986 regulations provide functions that
restore and maintain the chemical,
physical, and biological integrity of
traditional navigable waters, the
territorial seas, and interstate waters.
The agencies’ historic regulations,
eventually promulgated and referred to
as the 1986 regulations, were based on
the agencies’ construction of the scope
of the Clean Water Act and their
scientific and technical judgment about
which waters needed to be protected to
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restore and maintain the chemical,
physical, and biological integrity of
traditional navigable waters, the
territorial seas, and interstate waters
(i.e., the paragraph (a)(1) waters). For
more than 45 years, the agencies
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.’’
See, e.g., 42 FR 37122, 37123 (July 19,
1977). The agencies have also long
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 Clean Water 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.
And, 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 (July 19, 1977).
Thus, this rule includes the categories
long identified by the agencies as
affecting the water quality of paragraph
(a)(1) waters, including tributaries,
adjacent wetlands, impoundments, and
waters that do not fall within any of the
more specific categories of the
definition (a category that has been
modified and codified in this rule as
paragraph (a)(5) waters).
As discussed below, however, while
these longstanding categories continue
to provide a reasonable foundation for
this rule, this rule codifies limitations
on these categories based on the
agencies’ interpretation of the Clean
Water Act. To be clear, this rule does
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not automatically include all tributaries,
adjacent wetlands, and waters assessed
under paragraph (a)(5) as jurisdictional
waters. Rather, the agencies conclude
that utilizing these longstanding,
familiar categories of waters, subject to
the relatively permanent or significant
nexus jurisdictional standards, is
consistent with the best available
science because the significant nexus
standard established in this rule is
based on an assessment of the effects of
waters in these categories on the water
quality of paragraph (a)(1) waters. In
addition, the agencies believe that
waters that meet the relatively
permanent standard individually and
cumulatively provide many functions
that benefit the integrity of paragraph
(a)(1) waters. See section IV.A.3.a.ii of
this preamble. This rule does
categorically include wetlands adjacent
to paragraph (a)(1) waters. Riverside
Bayview, 474 U.S. at 135; see also
Rapanos, 547 U.S. at 780 (Kennedy, J.,
concurring in the judgment) (‘‘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. That is the
holding of Riverside Bayview.’’). This
rule enables the agencies to make
science-informed determinations of
whether or not a water that falls within
these categories meets either
jurisdictional standard and therefore
satisfies the definition of ‘‘waters of the
United States’’ on a case-specific basis.
For a detailed discussion of
implementation of adjacent wetlands
under this rule, see section IV.A.4 of
this preamble; for additional guidance
to landowners on jurisdictional
determinations, see section IV.C.10 of
this preamble.
i. The Agencies’ Longstanding
Interpretation That Tributaries Can Be
‘‘Waters of the United States’’ Is a
Reasonable Foundation for This Rule
The agencies have long construed the
Clean Water Act to include tributaries as
‘‘waters of the United States.’’ In 1973,
EPA’s General Counsel issued an
opinion upon which the agency’s
subsequent rulemaking was based that
tributaries were included within the
term ‘‘navigable waters,’’ finding that
‘‘this broad interpretation is well
grounded in the language of the statute
and in the legislative history, and
comports with the expressed intent of
Congress to ‘restore and maintain the
chemical, physical, and biological
integrity of the Nation’s waters.’ ’’ Envtl.
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Prot. Agency, Off. Gen. Counsel,
Meaning of the Term ‘‘Navigable
Waters’’ (February 13, 1973), 1973 WL
21937. 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.’’ 42 FR 37123
(July 19, 1977).
The conclusion that the Clean Water
Act includes tributaries is consistent
with the structure and history of the
statute. The Clean Water Act was not
‘‘merely another law ‘touching interstate
waters,’ ’’ but rather ‘‘a ‘total
restructuring’ and ‘complete rewriting’
of [then] existing water pollution
legislation.’’ City of Milwaukee v.
Illinois, 451 U.S. 304, 317 (1981)
(citations omitted). Congress concluded
that prior measures had been
‘‘inadequate in every vital aspect,’’ and
it enacted a wholly new scheme of
point-source-based pollution controls.
EPA v. California ex rel. State Water
Res. Control Bd., 426 U.S. 200, 203
(1976) (citation omitted). The Clean
Water Act thus reflected Congress’s
fundamental dissatisfaction with prior
law.
Even before it enacted the 1972 Clean
Water Act amendments, Congress had
recognized, and had acted to address,
the danger that pollution of tributaries
may impair the quality of traditional
navigable waters downstream. Prior to
those amendments, the Federal Water
Pollution Control Act established
procedures for abatement of ‘‘(t)he
pollution of interstate or navigable
waters in or adjacent to any State or
States (whether the matter causing or
contributing to such pollution is
discharged directly into such waters or
reaches such waters after discharge into
a tributary of such waters).’’ 33 U.S.C.
1160(a) (1970) (emphasis added). Under
specified circumstances, the Attorney
General was authorized to bring suit on
behalf of the United States ‘‘to secure
abatement of the pollution.’’ 33 U.S.C.
1160(g) (1970). Indeed, the regulation of
tributaries as part and parcel of a
Federal effort to protect traditional
navigable waters has been a feature of
Federal law for over 100 years. Since its
enactment as section 13 of the Rivers
and Harbors Appropriation Act of 1899
(RHA), Ch. 425, section 13, 30 stat.
1152, the Refuse Act of 1899 has
prohibited the discharge of refuse
material into any ‘‘navigable water of
the United States or into any tributary
of any navigable water of the United
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States,’’ as well as depositing refuse
material ‘‘on the bank of any navigable
water, or on the bank of any tributary of
any navigable water.’’ 33 U.S.C. 407.
That provision does not limit the
covered ‘‘tributar[ies]’’ to those that are
themselves used or susceptible to use
for navigation.
Thus, well over a hundred years ago,
Congress understood the necessity of
protecting tributaries in order to protect
traditional navigable waters and
recognized its authority over those
tributaries, and in the Clean Water Act
Congress sought to expand protection of
the nation’s waters. It would therefore
be unreasonable for the agencies to
construe the Clean Water Act, with its
comprehensive focus on limiting
discharges of pollutants to ‘‘waters of
the United States’’ and restoring and
maintaining the chemical, physical, and
biological integrity of the nation’s
waters, to exclude tributaries to
traditional navigable waters, the
territorial seas, and interstate waters.
Section 404(g) of the Clean Water Act
further supports the agencies’
interpretation that the Act covers such
tributaries. Section 404(g) authorizes
States to administer their own permit
programs over certain waters. Section
404(g)(1) provides, in relevant part, that
any State ‘‘desiring to administer its
own individual and general permit
program for the discharge of dredged or
fill material into the navigable waters
(other than those waters which are
presently used, or are susceptible to use
in their natural condition or by
reasonable improvement as a means to
transport interstate or foreign commerce
. . . including wetlands adjacent
thereto)’’ may submit a description of
this proposed program to EPA. 33 U.S.C.
1344(g)(1).46 Section 404(g)(1)’s
reference to navigable waters ‘‘other
than those waters used or susceptible to
use’’ for transporting commerce and
their adjacent wetlands plainly
indicates that the Clean Water Act
covers more than the waters in this
parenthetical.
The Supreme Court has also
recognized the relevance of section
404(g) to interpreting the scope of Clean
Water Act jurisdiction. In Riverside
Bayview, while the Supreme Court
stated that section 404(g) ‘‘does not
conclusively determine the construction
to be placed on the use of the term
‘waters’ elsewhere in the Act,’’ the Court
went on to say with respect to the
significance of section 404(g) that ‘‘the
various provisions of the Act should be
46 The Corps retains permitting authority over the
‘‘waters of the United States’’ that States cannot or
do not assume.
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read in pari materia [i.e., construed
together],’’ ultimately concluding that
section 404(g) ‘‘suggest[s] strongly that
the term ‘waters’ as used in the Act’’
supports the Corps’ interpretation of
‘‘waters of the United States’’ to include
wetlands. 474 U.S. at 138 n.11
(emphasis added). While the Court in
SWANCC did not read section 404(g) to
definitively answer the question of the
scope of ‘‘waters of the United States,’’
the Court offered a hypothesis that
‘‘Congress simply wanted to include all
waters adjacent to ‘navigable waters,’
such as non-navigable tributaries and
streams.’’ 531 U.S. at 171. And all
members of the Supreme Court agreed
with the observation of the Rapanos
plurality that the 1977 Clean Water
Act’s authorization for States to
administer the section 404 program for
‘‘navigable waters . . . other than’’
those used or suitable for use ‘‘to
transport interstate or foreign
commerce,’’ 547 U.S. at 731 (quoting 33
U.S.C. 1344(g)(1)), ‘‘shows that the Act’s
term ‘navigable waters’ includes
something more than traditional
navigable waters.’’ Id. In light of the
history of the Act as well as Congress’s
clear understanding of the relationship
between tributaries and traditional
navigable waters, tributaries—whether
or not they themselves are traditional
navigable waters—are an obvious
candidate for the Clean Water Act’s
broader coverage. As noted above, even
long before 1972, Congress had
addressed the danger that pollution of
tributaries may impair the quality of
traditional navigable waters
downstream, and it is implausible to
suppose that Congress’s landmark 1972
legislation actually reduced the scope of
the prior statutes.
Construing ‘‘waters of the United
States’’ to include tributaries of
traditional navigable waters, the
territorial seas, interstate waters, or
impoundments of ‘‘waters of the United
States’’ is also consistent with the
discussion of tributaries in the Clean
Water 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. 92–414, at 77 (1971), as
reprinted in 1972 U.S.C.C.A.N. 3668,
3742 (emphasis added). 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).
In addition, this rule and the 1986
regulations construe the statute not to
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distinguish between human-made or
human-altered tributaries and natural
tributaries. This construction is
consistent with the text of the statute
and science. Most obviously, such a
distinction would render superfluous
section 404’s exception for ‘‘the
discharge of dredged or fill material . . .
for the . . . maintenance of drainage
ditches,’’ section 404(f)(1)(C), because if
human-made or human-altered
tributaries were not included, drainage
ditches would not be covered in the first
place. More broadly, many of the
nation’s urban waterways are
channelized, and the Clean Water Act
has long been understood to encompass
‘‘natural, modified, or constructed’’
tributaries of other covered waters. 80
FR 37078 (June 29, 2015). For example,
many of the streams in Houston, Texas,
have been channelized, culverted, or
otherwise altered over time, in part for
flood control purposes, and the Clean
Water Act protects many of these
human-modified streams. Removing the
Clean Water Act’s protections for these
tributaries could increase contributions
of nutrients, sediment, and other
pollutants downstream to paragraph
(a)(1) waters, such as the Trinity River.
Such an approach would also affect
millions of miles of other such
tributaries, undermining the integrity of
paragraph (a)(1) waters throughout the
country.
Moreover, the Clean Water Act’s
specialized definition of ‘‘navigable
waters’’ does not turn on any such
distinctions between natural and
human-made or -altered tributaries,
which have no bearing on a tributary’s
capacity to carry water (and pollutants)
to traditional navigable waters, the
territorial seas, or interstate waters. See,
e.g., Technical Support Document
section III.A.iv (explaining that
manmade ditches ‘‘perform many of the
same functions as natural tributaries,’’
including ‘‘convey[ing] water that
carries nutrients, pollutants, and other
constituents, both good and bad, to
downstream traditional navigable
waters, the territorial seas, and interstate
waters’’). Such a distinction would also
be inconsistent with Rapanos. That
decision addressed consolidated cases
involving wetlands connected to
traditional navigable waters by ‘‘ditches
or man-made drains.’’ Rapanos, 547
U.S. at 729 (plurality opinion). The
Rapanos plurality concluded that the
cases should be remanded for the lower
courts to determine whether the
channels at issue satisfied the plurality’s
jurisdictional standard, and those
further lower-court proceedings would
have been superfluous if the manmade
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character of the ditches and drains had
precluded their coverage as ‘‘waters of
the United States.’’
As discussed below and further in
section III.A of the Technical Support
Document, the best available science
supports the 1986 regulations’
conclusions, and the agencies’
construction of the Clean Water Act in
this rule, about the importance of
tributaries to the water quality of
downstream paragraph (a)(1) waters:
tributaries provide natural flood control,
help sustain flow downstream, recharge
groundwater, trap sediment, store and
transform pollutants, decrease high
levels of chemical contaminants, recycle
nutrients, create and maintain biological
diversity, and sustain the biological
productivity of downstream rivers,
lakes, and estuaries.
ii. The Agencies’ Longstanding
Interpretation of Adjacent Wetlands as
‘‘Waters of the United States’’ Is a
Reasonable Foundation for This Rule
For more than four decades, the
agencies have construed the ‘‘waters of
the United States’’ to include wetlands
adjacent to other jurisdictional waters.
Wetlands, such as swamps, bogs,
marshes, and fens, are ‘‘transitional
areas between terrestrial and aquatic
ecosystems’’ characterized by sustained
inundation or saturation with water.
Science Report at 2–5. Wetlands play a
critical role in regulating water quality.
Among other things, they provide flood
control and trap and filter sediment and
other pollutants that would otherwise
be carried to downstream waters. See
National Research Council, Wetlands:
Characteristics and Boundaries 35, 38
(1995) (NRC Report, available at https://
nap.nationalacademies.org/catalog/
4766/wetlands-characteristics-andboundaries; Technical Support
Document section III.B.
The Corps published regulations to
implement the section 404 permitting
program in 1974. 39 FR 12115 (April 3,
1974). At that time, the Corps took the
view that for purposes of section 404
‘‘navigable waters’’ was an established
term of art for waters that are subject to
Congress’s power to regulate interstate
channels of commerce, and that the
term should be given that meaning in
the Clean Water Act—notwithstanding
the specialized definition of ‘‘navigable
waters’’ in the Act. Id. The Corps
therefore asserted jurisdiction under
section 404 only over the waters subject
to section 10 of the Rivers and Harbors
Act of 1899. Id. at 12119.
Reviewing courts, members of
Congress, and EPA disagreed with the
Corps’ initial approach. See, e.g., United
States v. Ashland Oil & Transp. Co., 504
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F.2d 1317, 1325 (6th Cir. 1974); H.R.
Rep. No. 1396, 93d Cong., 2d Sess. 23–
27 (1974). In fact, EPA had previously
promulgated a rule defining ‘‘waters of
the United States’’ far more broadly than
the Corps’ regulations. 38 FR 13528
(May 22, 1973). Ultimately, the Corps
was ordered to adopt new regulations
recognizing the agency’s ‘‘full regulatory
mandate.’’ NRDC, Inc. v. Callaway, 392
F. Supp. 685, 686 (D.D.C. 1975).
The Corps responded by broadening
its definition of ‘‘navigable waters’’ in a
phased approach under which all of the
waters in the final regulation were
‘‘waters of the United States,’’ but the
Corps would begin regulating activities
within each type of ‘‘waters of the
United States’’ in phases: Phase I, which
was effective immediately, covered
‘‘coastal waters and coastal wetlands
contiguous or adjacent thereto or into
inland navigable waters of the United
States [a term for waters protected under
the Rivers and Harbors Act] and
freshwater wetlands contiguous or
adjacent thereto’’; Phase II, effective
after July 1, 1976, covered ‘‘primary
tributaries, freshwater wetlands
contiguous or adjacent to primary
tributaries, and lakes’’; and Phase III,
effective after July 1, 1977, covered
‘‘discharges . . . into any navigable
water’’ including intrastate lakes and
rivers and their adjacent wetlands. 40
FR 31320, 31324, 31326 (July 25, 1975).
The Corps defined ‘‘adjacent’’ to mean
‘‘bordering, contiguous, or
neighboring,’’ and specified that
‘‘[w]etlands 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.’ ’’ 42 FR 37122, 37144 (July
19, 1977). The regulations also defined
‘‘wetlands’’ to mean ‘‘those areas that
are inundated or saturated by surface or
ground water at a frequency and
duration sufficient to support, and that
under normal circumstances do support,
a prevalence of vegetation typically
adapted for life in saturated soil
conditions.’’ Id. The agencies have thus
interpreted the term ‘‘waters of the
United States’’ to include wetlands
since at least 1975.47
47 The agencies’ interpretation of ‘‘waters of the
United States’’ as including wetlands is consistent
not only with the history and text of Clean Water
Act section 404(g), but also with other parts of the
statute and of the United States Code. For example,
in the Lake Champlain Basin Program, Congress
referred to ‘‘streams, rivers, lakes, and other bodies
of water, including wetlands.’’ 33 U.S.C. 1270(g)(2)
(emphasis added). Congress has also referred to
‘‘streams, rivers, wetlands, other waterbodies, and
riparian areas,’’ 33 U.S.C. 2336(b)(2) (emphasis
added), and defined ‘‘coastal waters’’ to mean the
waters of the Great Lakes ‘‘including’’ portions of
other ‘‘bodies of water’’ with certain features,
‘‘including wetlands,’’ id. at 2802(5).
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Reacting to the Corps’ broadened
definition, leading up to the 1977
Amendments, Congress considered
proposals to limit the geographic reach
of section 404. ‘‘In both Chambers,
debate on the proposals to narrow the
definition of navigable waters centered
largely on the issue of wetlands
preservation.’’ SWANCC, 531 U.S. at
170. A version of that legislation, passed
by the House, would have redefined
‘‘navigable waters’’ for purposes of
section 404 to mean a limited set of
traditional navigable waters and their
adjacent wetlands. H.R. 3199, 95th
Cong. section 16 (1977). But many
legislators objected to the proposed
changes. When Congress rejected the
attempt to limit the geographic reach of
section 404, it was well aware of the
jurisdictional scope of EPA and the
Corps’ definition of ‘‘waters of the
United States.’’ For example, Senator
Baker stated:
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Interim final regulations were promulgated
by the [C]orps [on] July 25, 1975. . . .
Together the regulations and [EPA]
guidelines established a management
program that focused the decision-making
process on significant threats to aquatic areas
while avoiding unnecessary regulation of
minor activities. On July 19, 1977, the
[C]orps revised its regulations to further
streamline the program and correct several
misunderstandings. . . .
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.
Earlier jurisdictional approaches under the
[Rivers and Harbors Act] established artificial
and often arbitrary boundaries . . . .
123 Cong. Rec. 26,725 (1977).
Legislators were concerned the
proposed changes were an ‘‘open
invitation’’ to pollute waters. Id.
(remarks of Sen. Hart); see also, e.g., id.
at 26,714–26,716. The proposal was
ultimately voted down on the Senate
floor. Id. at 26,728; cf. S. Rep. No. 370,
95th Cong., 1st Sess. 10 (1977)
(hereinafter, ‘‘1977 Senate Report’’);
Riverside Bayview, 474 U.S. at 136–137
(noting that ‘‘efforts to narrow the
definition of ‘waters’ were abandoned;
the legislation as ultimately passed, in
the words of Senator Baker, ‘[retained]
the comprehensive jurisdiction over the
Nation’s waters’’ (citation omitted)).
Federal preservation of wetlands was at
the heart of the debate over passage of
the 1977 Act, with good reason. See
1977 Senate Report at 10 (‘‘There is no
question that the systematic destruction
of the Nation’s wetlands is causing
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serious, permanent ecological damage.
The wetlands and bays, estuaries and
deltas are the Nation’s most biologically
active areas. They represent a principal
source of food supply. They are the
spawning grounds for much of the fish
and shellfish which populate the
oceans, and they are passages for
numerous [ ] game fish. They also
provide nesting areas for a myriad of
species of bird and wildlife. The
unregulated destruction of these areas is
a matter which needs to be corrected
and which implementation of section
404 has attempted to achieve.’’). Earlier
Federal and State policy that
encouraged filling wetlands had led to
destruction of roughly 117 million acres
of wetlands in the contiguous United
States, or more than half the original
total. See T.E. Dahl & Gregory J. Allord,
‘‘History of Wetlands in the
Conterminous United States,’’ in
National Water Summary on Wetland
Resources at 19 (1996, available at
https://pubs.usgs.gov/wsp/2425/
report.pdf).
Congress instead modified the Clean
Water Act in other ways to respond to
concerns about the scope of Federal
authorities. Congress exempted certain
agricultural and silvicultural activities
from the section 404 permitting
program. See 1977 Act section 67(b), 91
Stat. 1600 (33 U.S.C. 1344(f)(1)(A)). In
addition, Congress authorized the Corps
to issue general permits to streamline
the permitting process. Id. (33 U.S.C.
1344(e)(1)). And importantly for
understanding the scope of ‘‘waters of
the United States,’’ Congress modified
section 404 in a way that incorporated
into the statutory text an explicit
endorsement of the Corps’ regulation
defining ‘‘waters of the United States,’’
including its inclusion of adjacent
wetlands. Specifically, the 1977 Act
section 67(b), 91 Stat. 1601, establishing
section 404(g), allowed Tribes and
States to assume responsibility for the
issuance of section 404 permits. As
Congress explained in the legislative
history, under section 404(g) States
could administer a permitting program
for the discharge of dredged or fill
material into ‘‘phase II and III waters’’
following EPA approval, but the Corps
would retain jurisdiction over ‘‘those
waters defined as the phase I waters in
the Corps . . . 1975 regulations, with
the exception of waters considered
navigable solely because of historical
use.’’ 123 Cong. Rec. 38,969 (December
15, 1977); H.R. Conf. Rep. No. 830, 95th
Cong., 1st Sess. 101 (1977), reprinted in
3 Legis. History 1977, at 185, 285.
Accordingly, through section 404(g),
Congress demonstrated its
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understanding of the Corps’ regulations
and endorsed the scope of their
coverage—allowing States to assume
authority to administer the Clean Water
Act as it pertained to the waters
contained in phase II and III of the
Corps’ regulations (Phase II, effective
after July 1, 1976, covered ‘‘primary
tributaries, freshwater wetlands
contiguous or adjacent to primary
tributaries, and lakes’’ and Phase III,
effective after July 1, 1977, covered
‘‘discharges . . . into any navigable
water’’ including intrastate lakes and
rivers and their adjacent wetlands. 40
FR 31320, 31324, 31326 (July 25, 1975)),
and reserving for the Corps alone
authority over the waters contained in
phase I of the Corps’ regulations.
With respect specifically to the
inclusion of adjacent wetlands,
Congress was explicit in the text of the
Clean Water Act. The text of section
404(g) authorizes States and Tribes to
administer the section 404 permitting
program covering ‘‘the discharge of
dredged or fill material into the
navigable waters (other than those
waters which are presently used, or are
susceptible to use in their natural
condition or by reasonable improvement
as a means to transport interstate or
foreign commerce . . . including
wetlands adjacent thereto).’’ 33 U.S.C.
1344(g)(1) (emphasis added); see 33
U.S.C. 1377(e) (extension to Tribes). The
italicized reservation of authority to the
Corps in section 404(g) presupposed
that ‘‘wetlands adjacent’’ to a subset of
traditional navigable waters were
subject to the section 404 program, since
otherwise the exclusion of those
wetlands from the Tribes’ and States’
potential permitting authority would
have been superfluous. Other language
in the 1977 legislative record confirms
that understanding. See 1977 Senate
Report 10 (stating that committee
wished to ‘‘maintain[ ]’’ coverage of
wetlands); H.R. Conf. Rep. No. 830, 95th
Cong., 1st Sess. 98, 104 (1977) (stating
that the Corps will ‘‘continue’’ to
exercise section 404 jurisdiction over
‘‘adjacent wetlands’’).
Moreover, with respect to which
wetlands are adjacent, by using the preexisting term ‘‘adjacent’’ wetlands from
the Corps’ 1977 regulations, Congress
signaled its intent to incorporate the
Corps’ regulatory conception of
adjacency. ‘‘When a statutory term is
‘obviously transplanted from another
legal source,’ it ‘brings the old soil with
it.’ ’’ Taggart v. Lorenzen, 139 S. Ct.
1795, 1801 (2019) (citation omitted).
Here, that soil includes the full breadth
of the agencies’ definition of ‘‘adjacent’’:
bordering, contiguous, or neighboring,
as well as wetlands behind a berm or
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barrier. That definition accords with the
term’s plain meaning. Contemporaneous
dictionaries defined the term ‘‘adjacent’’
in ways that do not require direct
abutment. See Black’s Law Dictionary at
62 (rev. 4th ed. 1968) (‘‘Lying near or
close to; sometimes, contiguous;
neighboring. Adjacent implies that the
two objects are not widely separated,
though they may not actually touch[.]’’
(capitalization altered; citation and
emphasis omitted)); The American
Heritage Dictionary of the English
Language at 16 (1975) (‘‘Close to; next
to; lying near; adjoining.’’); Webster’s
New International Dictionary of the
English Language at 32 (2d ed. 1958)
(‘‘Lying near, close, or contiguous;
neighboring; bordering on.’’ (emphasis
omitted)).
Congress has on a number of
additional occasions responded to
concerns about the breadth of the scope
of Federal authorities not by narrowing
the scope of ‘‘waters of the United
States,’’ but by excluding particular
types and sources of discharges of
pollutants from the NPDES program or
from Clean Water Act jurisdiction
altogether. For example, the 1987 Water
Quality Act (WQA) added section
402(l)(2) to the Clean Water Act. This
new section prohibits EPA and the
states from requiring NPDES permits for
uncontaminated stormwater discharges
from oil and gas exploration,
production, processing or treatment
operations, or transmission facilities.
Later, section 323 of the Energy Policy
Act of 2005 added a new provision to
Clean Water Act section 502 defining
the term ‘‘oil and gas exploration,
production, processing, or treatment
operations or transmission facilities.’’
The 1987 WQA also enacted a new
section 402(p) of the Act that
established a comprehensive new
program for stormwater regulation. In
that section, Congress made clear that
only some stormwater point source
discharges need NPDES permit
coverage—those from industrial activity,
from large and medium municipalities,
and that EPA or a State designates by
rulemaking or adjudication to protect
water quality or because the discharges
contribute to violations of water quality
standards or are significant contributors
of pollutants. Congress has also taken
numerous actions to amend the Clean
Water Act to address discharges from
vessels. The 1972 version of the Act
excluded ‘‘sewage from vessels’’ from
the definition of ‘‘pollutant’’ thus
exempting it from the permitting regime
in favor of regulatory standards of
performance. See 33 U.S.C. 1322(b),
1362(6). In 1996, Congress similarly
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excluded most discharges from vessels
of the Armed Forces and tasked EPA
and the Department of Defense to jointly
promulgate uniform national discharge
standards instead. See 33 U.S.C.
1322(n), 1362(6). In 2008, Congress
passed the Clean Boating Act, which
exempted discharges incidental to the
normal operation of recreational vessels
of all sizes from Clean Water Act
permitting requirements, in favor of
EPA regulations. See 33 U.S.C.
1322(o)(1)(B); see also 33 U.S.C. 1342(r).
And in 2018, Congress enacted the
Vessel Incidental Discharge Act which
exempted from NPDES routine
discharges from many other types of
vessels including small vessels, fishing
vessels, and commercial vessels larger
than 79 feet. See 33 U.S.C.
1322(p)(9)(C)(ii).
Case law also supports the agencies’
construction of the Clean Water Act to
cover adjacent wetlands as defined by
the agencies. In Riverside Bayview, the
Supreme Court considered the
‘‘language, policies, and history’’ of the
Clean Water Act, including the
amendments in the 1977 Act, and
unanimously upheld the Corps’ exercise
of Clean Water Act jurisdiction over
such adjacent wetlands. 474 U.S. at 139.
The Court held that the Corps’
regulation defining ‘‘the waters of the
United States’’ to include wetlands
adjacent to navigable waters ‘‘is valid as
a construction’’ of the Clean Water Act.
Id. at 131. The Court first observed that
‘‘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.’’ Id. at 132. To administer the
statute, the Corps therefore ‘‘must
necessarily choose some point at which
water ends and land begins.’’ Id. The
Court further explained that, in drawing
that jurisdictional line, the Corps may
take into account ‘‘the evident breadth
of congressional concern for protection
of water quality and aquatic
ecosystems.’’ Id. at 133. It quoted with
apparent approval the Corps’ statement
that ‘‘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.’’ Id. at 134
(quoting 42 FR 37128, July 19, 1977).
The Court concluded that ‘‘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.
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The Court also viewed the 1977 Act
as specifically approving the Corps’
assertion of jurisdiction over adjacent
wetlands—as considering those
wetlands to be ‘‘waters’’ themselves. Id.
at 137–139. The Court observed that
‘‘the scope of the Corps’ asserted
jurisdiction over wetlands was
specifically brought to Congress’
attention, and Congress rejected
measures designed to curb the Corps’
jurisdiction in large part because of its
concern that protection of wetlands
would be unduly hampered by a
narrowed definition of ‘navigable
waters.’’’ Id. at 137. The Court also cited
section 404(g)(1) as express textual
evidence ‘‘that the term ‘waters’
included adjacent wetlands.’’ Id. at 138.
Congress had good reason to approve
the inclusion of adjacent wetlands
within the ‘‘waters of the United
States.’’ In the 1986 regulations, the
agencies determined that wetlands
adjacent to navigable waters generally
play a key role in protecting and
enhancing water quality, explaining:
‘‘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 (July 19, 1977);
see also 38 FR 10834. See section
IV.C.8.b of this preamble for further
discussion of the definition of
‘‘adjacent.’’
As discussed below and further in
section III.B of the Technical Support
Document, the best available science
supports the 1986 regulations’
conclusion that adjacent wetlands are
part of the aquatic ecosystem, and the
agencies’ construction of the Clean
Water Act in this rule, that adjacent
wetlands that meet the relatively
permanent standard or the significant
nexus standard affect the chemical,
physical, and biological integrity of
paragraph (a)(1) waters by performing
essential functions, including providing
valuable flood control and water quality
functions such as 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. As Congress
understood when it rejected efforts to
narrow jurisdiction over wetlands in
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1977 and the Supreme Court recognized
in Riverside Bayview, allowing all
adjacent wetlands to be filled without
any permitting requirements would
deprive interconnected aquatic systems
of those benefits and thereby threaten
the integrity of traditional navigable
waters, the territorial seas, and interstate
waters. Wetlands are recognized as
‘‘among the most important ecosystems
on Earth.’’ 48 Among many other public
benefits, wetlands play an ‘‘integral
role’’ in maintaining the nation’s ‘‘water
supply and quality.’’ 16 U.S.C.
3901(a)(1). ‘‘Research has demonstrated
repeatedly that natural wetlands
enhance water quality.’’ 49 Through
chemical and biological processes,
wetlands trap and filter sediment,
nutrients, and other pollutants that
would otherwise be carried into
downstream waters.50 For example,
wetlands conservation is a crucial
feature of the New York City municipal
water system, which provides high
quality drinking water to millions of
people through watershed protection.
New York protects adjacent wetlands of
its source waters rather than investing
in extensive and costly treatment.
Wetlands also provide ‘‘cost-effective
flood control,’’ 51 capturing overflow
from rivers and streams during times of
high precipitation or snowmelt.52 For
example, during Hurricane Sandy in
2012, wetlands are estimated to have
helped prevent $625 million in damage
by protecting properties from
flooding.53
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iii. It Is Reasonable for the Agencies To
Continue To Include a Provision To
Cover Certain Waters That Do Not Fall
Within Other Jurisdictional Provisions
For more than 45 years the agencies’
regulations have included a provision to
address waters that did not fall within
the categories it established, such as
tributaries and adjacent wetlands,
because such waters could have effects
on water quality and on interstate
commerce. 42 FR 37128 (July 19, 1977).
This rule substantially revises this
provision by establishing that intrastate
48 William J. Mitsch & James G. Gosselink,
Wetlands (5th ed.) at 3 (2015).
49 National Research Council, Wetlands:
Characteristics and Boundaries (‘‘NRC Report’’) at
38 (1995).
50 Virginia Carter, ‘‘Wetlands Hydrology, Water
Quality, and Associated Functions,’’ in National
Water Summary, supra, at 44–45; Science Report at
ES–2 to ES–4.
51 Carter, supra note 5050, at 44.
52 See, e.g., NRC Report at 35; Mitsch & Gosselink,
supra, at 539–541; Science Report at ES–2 to ES–
4.
53 Narayan, Siddharth, et al. 2017. The Value of
Coastal Wetlands for Flood Damage Reduction in
the Northeastern USA. Scientific Reports 7: 9463;
Technical Support Document section II.C.
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lakes and ponds, streams, or wetlands
not identified elsewhere in the rule may
be determined to be ‘‘waters of the
United States’’ if they meet either the
relatively permanent standard or the
significant nexus standard. Therefore,
under this rule the agencies conclude
that it is not appropriate to assert
jurisdiction over non-navigable,
intrastate waters based solely on
whether the use, degradation, or
destruction of the water could affect
interstate or foreign commerce. See
section IV.C.6 of this preamble for
further discussion of the changes related
to this provision. This rule replaces the
interstate commerce test with the
relatively permanent standard and the
significant nexus standard.
For more than four decades, the
agencies’ regulations defining ‘‘waters of
the United States’’ have included
provisions authorizing case-specific
determinations of jurisdiction over
waters that did not fall within the other
jurisdictional provisions of the
definition. The Corps’ 1975 interim final
regulations addressed both ‘‘intrastate
lakes, rivers, and streams that are used
by interstate recreational travelers, for
the removal of fish sold in commerce,
for interstate industrial commercial
purposes, or for the production of
agricultural commodities sold in
commerce,’’ and ‘‘other waters that the
District Engineer determines necessitate
regulation for protection of water
quality.’’ 40 FR 31320, 31324 (July 25,
1975). As discussed above, Congress
was well-aware of the scope of the
Corps’ regulations when adopting the
1977 Act.
The rule properly authorizes casespecific consideration of certain waters
not covered by the categories
established in the rule. As discussed
below and further in section IV.D of the
Technical Support Document, the best
available science shows that some of
these waters—such as depressional
wetlands, open waters, and peatlands—
can provide important hydrologic (e.g.,
flood control), water quality, and habitat
functions which can have effects on
larger rivers, lakes, and estuaries,
including paragraph (a)(1) waters. The
functions that intrastate lakes and
ponds, streams, and wetlands not
identified in paragraphs (a)(1) through
(4) of this rule (i.e., paragraph (a)(5)
waters) can provide to paragraph (a)(1)
waters include storage of floodwater,
recharge of ground water that sustains
river baseflow, retention and
transformation of nutrients, metals, and
pesticides, export of organisms to
paragraph (a)(1) waters, and habitats
needed for aquatic and semi-aquatic
species that also utilize paragraph (a)(1)
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waters. In addition, the agencies have
never stated that the waterbody-specific
categories alone identify every
jurisdictional water under the Clean
Water Act because in an area as vast and
varied as the United States, it is not
possible to create an exhaustive list of
waters that provide these critical
functions to paragraph (a)(1) waters.
Indeed, a clear example of waters that
do not fall within any of the categories
are some lakes and ponds near
jurisdictional tributaries or paragraph
(a)(1) waters. They are not wetlands (so
do not fall within the adjacent wetlands
category), and many are not tributaries,
but they are very likely to meet either
the relatively permanent standard or the
significant nexus standard. A lake that
is not a tributary and is not a wetland
may have a continuous surface
connection to a traditional navigable
water. It would not make sense to
exclude such a lake from jurisdiction as
it would have many of the same effects
on the traditional navigable water as an
adjacent wetland with the same
continuous surface connection.
Likewise, a lake that is not a tributary
and is not a wetland may be near a
jurisdictional tributary and significantly
affect a paragraph (a)(1) water by
providing similar functions as an
adjacent wetland. Absent paragraph
(a)(5) of this rule, these lakes would
meet either the relatively permanent
standard or the significant nexus
standard, but would not fall within any
of the categories of waters established
by the definition. Thus, where waters do
not fall within one of the more specific
categories identified in paragraph (a)(1)
through (4) of this rule, the rule
provides for such waters to be evaluated
for jurisdiction under paragraph (a)(5)
and to be jurisdictional if they meet
either standard.
c. The Best Available Science
Demonstrates That This Rule Properly
Advances the Objective of the Clean
Water Act
This rule is informed by the best
available science on the functions
provided by waters, including wetlands,
that are important for the chemical,
physical, or biological integrity of
traditional navigable waters, the
territorial seas, and interstate waters.
The scientific literature extensively
illustrates the effects tributaries,
adjacent wetlands, as well as intrastate
lakes and ponds, streams, and wetlands
can and do have on the integrity of
traditional navigable waters, the
territorial seas, and interstate waters.
The relevant science on the relationship
and effects of streams, wetlands, and
open waters (such as lakes and ponds)
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on larger downstream waters has
continued to advance in recent years
and confirms the agencies’ longstanding
view that these waters should be
assessed for jurisdiction under the Clean
Water Act. The Science Report
synthesized the peer-reviewed science
regarding connectivity and effects of
streams, wetlands, and open waters to
larger downstream waters. 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 I.C. See also
Technical Support Document section III.
This section summarizes the best
available science in support of the
longstanding categories of the 1986
regulation, and in support of this rule
and the agencies’ conclusion that this
rule advances the objective of the Clean
Water Act. This section reflects the
scientific consensus on the strength of
the effects that tributaries, adjacent
wetlands, and paragraph (a)(5) waters
can and do have on traditional
navigable waters, the territorial seas,
and interstate waters. Note that for
purposes of this final rule, the agencies
have not made a categorical
determination that all tributaries,
adjacent wetlands, and paragraph (a)(5)
waters significantly affect paragraph
(a)(1) waters. See section IV.A.3.a.iii
(discussing the final rule’s reliance on a
case-specific approach to assessing
jurisdiction for certain types of waters)
of this preamble.
As the agencies charged with
construing the statute, EPA and the
Corps must develop the outer bounds of
the scope of the Clean Water Act.
Congress chose to delegate this
authority to the expert agency focused
on environmental protection and, for
the section 404 program, to the agency
with extensive permitting experience for
discharges to water. In section 501(a) of
the Clean Water Act, Congress explicitly
delegated regulatory authority to EPA:
‘‘The Administrator is authorized to
prescribe such regulations as are
necessary to carry out his functions
under this Act.’’ The Supreme Court in
Riverside Bayview recognized this
decision by Congress and deferred to the
agencies’ scientific expertise and
judgement, finding that ‘‘[i]n 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
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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. Science
alone cannot dictate where to draw the
line defining ‘‘waters of the United
States,’’ but science is critical to
understanding what scope of
jurisdiction furthers 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.
Because the definition of ‘‘waters of the
United States’’ should advance the
objective of the Clean Water Act and
that objective is focused on restoring
and maintaining water quality, the best
available science informs this rule. See
section IV.A.2 of this preamble; see also
section IV.B.3 of this preamble for the
agencies’ conclusion that the 2020
NWPR was inconsistent with the best
available science in important ways.
i. Tributaries Can Provide Functions
That Restore and Maintain the
Chemical, Physical, and Biological
Integrity of Downstream Traditional
Navigable Waters, the Territorial Seas,
and Interstate Waters
Tributaries play an important role in
the transport of water, sediments,
organic matter, nutrients, and organisms
to downstream paragraph (a)(1) waters.
See Technical Support Document
section III.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 paragraph (a)(1) waters.
Indeed, 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). Tributaries can provide
these functions whether they are
natural, modified, or constructed and
regardless of their flow regime.
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.
The agencies note that while the
Science Report concluded such
tributary streams were so connected, the
significant nexus standard is distinct
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from this scientific conclusion, and the
agencies are not in this rule concluding
that all tributary streams categorically
meet the significant nexus standard.
Streams, even where seasonally dry, are
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.54 Because of their abundance
and location in the watershed, small
streams offer the greatest opportunity
for exchange between the water and the
terrestrial environment.
In addition, compared with the humid
regions of the country, stream and river
networks in arid regions have a higher
proportion of channels that do not flow
perennially. 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 do not flow
constantly. 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.55 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
54 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.
55 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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through channels and providing
substrate and habitat for aquatic
organisms.
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 higher
concentrations and loads of nitrogen
and phosphorus in downstream
waterbodies. In freshwater ecosystems,
eutrophication, the enriching of waters
by excess nitrogen and phosphorus, sets
off a chain reaction of events that
reduces water quality in streams, lakes,
estuaries, and other downstream
waterbodies. The excess nutrients lead
to the overabundance of algae and
aquatic plants. 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, and therefore the amount
available to aquatic life, 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. Algal
blooms driven by excess nutrients also
can injure people and animals, as toxins
can kill native fish and other wildlife,
and endanger human health. Algal
blooms can also lead to beach closures.
The overabundance of plant growth and
alterations in water chemistry that occur
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in eutrophic waters also changes the
composition of natural communities of
aquatic ecosystems.
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.
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 leaf litter and other
decomposing matter for food and, in
turn, become food for other organisms.
For example, fungi that grow on leaf
litter become nutritious food for aquatic
insects that make their homes on the
bottom of streams, including mayflies,
stoneflies, and caddisflies. 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, the territorial seas,
and interstate waters 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 an
abandoned sand and gravel pit 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 consider
biological functions for purposes of
significant nexus determinations under
this rule only to the extent that the
functions provided by tributaries,
adjacent wetlands, and paragraph (a)(5)
waters significantly affect the biological
integrity of the traditional navigable
waters, the territorial seas, or interstate
waters. For example, salmon are a
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critical component of the biological
integrity in certain paragraph (a)(1)
waters, and they provide one of the
clearest illustrations of biological
connectivity. 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 Atlantic salmon
require both freshwater and marine
habitats over their life cycles and
therefore migrate along river networks.
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, demonstrating how the
upstream ephemeral waters can help to
maintain the biological integrity of the
downstream traditional navigable water.
Many other species of anadromous fish
(fish that are born in freshwater, spend
most of their lives in saltwater, and
return to freshwater to spawn) like
certain lamprey, species of catadromous
fish (fish that breed in the ocean but that
spend most of their lives in freshwater)
like American eels, and freshwater fish
like rainbow trout and brook trout also
require small headwater streams to carry
out life cycle functions. See Technical
Support Document sections III.A.iii and
III.E.iv.
ii. Adjacent Wetlands Can Provide
Functions That Restore and Maintain
the Chemical, Physical, and Biological
Integrity of Traditional Navigable
Waters, the Territorial Seas, and
Interstate Waters
Adjacent wetlands provide valuable
flood control and water quality
functions that affect the chemical,
physical, and biological integrity of
paragraph (a)(1) 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
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Technical Support Document section
III.B. The agencies note that, while the
Science Report concluded such adjacent
wetlands were so connected, the
significant nexus standard is distinct
from this scientific conclusion, and the
agencies are not concluding in this rule
that all adjacent wetlands categorically
meet the significant nexus standard.
Because adjacent wetlands retain
sediment and augment streamflow via
the gradual release of groundwater,
stormwater, or water flowing just
beneath the soil surface, wetland loss
correlates with increased need for
dredging and unpredictability of
adequate streamflow for navigation.
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,
the territorial seas, or interstate waters.
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 paragraph (a)(1) waters by retaining
stormwater and slowly releasing
floodwaters that could otherwise
negatively affect the condition or
function of those paragraph (a)(1)
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 impair water quality and
quickly drain 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. Moreover,
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, intact adjacent
wetlands, including headwater
wetlands, can contribute to maintaining
navigability on the nation’s rivers and
harbors and can reduce flooding in
paragraph (a)(1) waters.
Wetlands adjacent to tributaries of
navigable waters, the territorial seas,
and interstate waters can also help
promote improvements in drinking
water supply and quality. Over 228
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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.56 An estimated 61% of
water withdrawn for public water
supply came from surface water sources
in 2015.57 Adjacent wetlands have an
important role in mitigating the risk of
contamination to sources of drinking
water, and in water quality generally,
due to their strategic location as buffers
for other waterbodies and their filtration
of surface water. Retention of water and
its associated constituents by wetlands
allows the biochemical uptake and/or
breakdown of contaminants and the
destruction of pathogens. The water
retention 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 retention substantially improves
both the supply and quality of drinking
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 under
the Clean Water Act, as the quality of
the drinking water source is dependent
on the protection of its upstream waters.
Conserving wetlands in source water
protection areas can help protect water
quality, recharge aquifers, and maintain
surface water flow during dry periods.
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.
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
56 EPA data from 2022 Third Quarter Safe
Drinking Water Information System/Federal
Version.
57 Comments submitted by Association of
Metropolitan Water Agencies at 2 (February 4,
2022) (Docket ID No. EPA–HQ–OW–2021–0602–
0252), https://www.regulations.gov/comment/EPAHQ-OW-2021-0602-0252 (citing Dieter, C.A.,
Maupin, M.A., Caldwell, R.R., Harris, M.A.,
Ivahnenko, T.I., Lovelace, J.K., Barber, N.L., and
Linsey, K.S., 2018, Estimated use of water in the
United States in 2015: U.S. Geological Survey
Circular 1441. Retrieved from https://pubs.usgs.gov/
circ/1441/circ1441.pdf).
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contamination by pathogens as one of
the most important environmental
risks.58 Moreover, 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.
In sum, adjacent wetlands can
provide a variety of functions to
paragraph (a)(1) waters. Based on the
importance of these functions to
paragraph (a)(1) waters, the agencies’
interpretation of 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.
iii. Intrastate Lakes and Ponds, Streams,
or Wetlands Not Identified in
Paragraphs (a)(1) Through (4) of This
Rule Can Provide Functions That
Restore and Maintain the Chemical,
Physical, and Biological Integrity of
Traditional Navigable Waters, the
Territorial Seas, and Interstate Waters
Intrastate lakes and ponds, streams, or
wetlands not identified in paragraphs
(a)(1) through (4) of the rule—examples
of which could include, but are not
limited to, prairie potholes, playa lakes,
and vernal pools—can provide
important functions that affect the
chemical, physical, and biological
integrity of paragraph (a)(1) waters. See
Technical Support Document section
III.D. The agencies note that while the
Science Report concluded such
intrastate lakes and ponds, streams, and
wetlands can provide these functions,
the significant nexus standard is distinct
from this scientific conclusion, and the
agencies are not concluding in this rule
that all intrastate lakes and ponds,
streams, and wetlands categorically
meet the significant nexus standard.
These functions are particularly
valuable when considered cumulatively
across the landscape or across different
watershed or sub-watershed scales.
They 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
paragraph (a)(1) waters. For non58 U.S. Environmental Protection Agency/Science
Advisory Board. 1990. Reducing Risk: Setting
Priorities and Strategies for Environmental
Protection. SAB–EC–90–021. https://nepis.epa.gov/
Exe/ZyPURL.cgi?Dockey=2000PNG1.TXT.
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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. Accordingly, a
case-specific analysis of their effects on
paragraph (a)(1) waters is appropriate
from both a scientific and policy
perspective.
For example, oxbow lakes and other
lakes and ponds that are in close
proximity to the stream network, that
are 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’’ perform critical
chemical, physical, and biological
functions that affect paragraph (a)(1)
waters. Like adjacent wetlands, these
waters individually and collectively
affect the integrity of paragraph (a)(1)
waters by acting as sinks that retain
floodwaters, sediments, nutrients, and
contaminants that could otherwise
negatively impact the condition or
function of those paragraph (a)(1)
waters. They also provide important
habitat for aquatic species that utilize
both the lake and pond and the nearby
paragraph (a)(1) water to forage, breed,
and rest.
Intrastate lakes and ponds, streams,
and wetlands not identified in
paragraphs (a)(1) through (4) of the rule
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, the territorial seas,
and interstate waters (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 also be
connected to paragraph (a)(1) waters
through biological connections, such as
through the movement of aquatic and
semi-aquatic species for habitat or other
lifecycle needs and can serve as sources
of food for larger aquatic and semiaquatic animals that live in paragraph
(a)(1) waters. See section III.D of the
Technical Support Document. These
waters 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 paragraph
(a)(1) waters. The strength of functions
provided by intrastate lakes and ponds,
streams, and wetlands that are evaluated
under paragraph (a)(5) on paragraph
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(a)(1) waters will vary depending on the
type and degree of connection (i.e., from
highly connected to highly isolated) to
paragraph (a)(1) waters and landscape
features such as proximity to stream
networks and to such waters with
similar characteristics that function
together to influence paragraph (a)(1)
waters.
Since the publication of the Science
Report in 2015, the published literature
has expanded scientific understanding
and quantification of the functions of
these waters that affect the integrity of
larger waters, including traditional
navigable waters, the territorial seas,
and interstate waters, particularly in the
aggregate. 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.
Some intrastate lakes and ponds,
streams, and wetlands not identified in
paragraphs (a)(1) through (4) can, in
certain circumstances, have strong
chemical, physical, or biological
connections to and effects on paragraph
(a)(1) waters. However, some intrastate
lakes and ponds, streams, and wetlands
not identified in paragraphs (a)(1)
through (4) of this rule do not have
significant effects on paragraph (a)(1)
waters because of their distance from
paragraph (a)(1) waters, their landscape
position, climatological variables, or
other factors. The effect of distance on
a significant nexus analysis, for
example, may vary based on the
characteristics of the aquatic resources
being evaluated and other factors
affecting the strength of their
connectivity to paragraph (a)(1) waters.
Waters are less likely to have a
significant nexus if they are 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 59 and the waters in the
broader tributary network. However,
sometimes it is their lack of a hydrologic
surface connection that contributes to
the important effect that they have on
59 In this preamble, the agencies use ‘‘subject
waters’’ to mean the water or waters being assessed
for jurisdiction. ‘‘Subject waters evaluated pursuant
to the significant nexus standard’’ means the water
either alone or in combination with similarly
situated waters in the region.
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3033
paragraph (a)(1) waters; 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 or permeability of
the soils). Justice Kennedy’s insight that
‘‘[g]iven the role wetlands play in
pollutant filtering, flood control, and
runoff storage, it may well be the
absence of hydrologic connection (in the
sense of interchange of waters) that
shows the wetlands’ significance for the
aquatic system’’ is consistent with the
science. See Rapanos, 547 U.S. at 786
(Kennedy, J., concurring in the
judgment).
Based on the functions that can be
provided by intrastate lakes and ponds,
streams, and wetlands not identified in
paragraphs (a)(1) through (4) to
traditional navigable waters, the
territorial seas, and interstate waters,
assessing these waters to determine
whether they meet either the relatively
permanent standard or the significant
nexus standard reflects proper
consideration of the objective of the
Clean Water Act and the best available
science.
3. The Scope of This Rule Is Limited
Consistent With the Law, the Science,
and Agency Expertise
In this rule, the agencies are
exercising their authority to construe
‘‘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.’’ This
construction is supported by
consideration of the text of the relevant
provisions of the Clean Water Act and
the statute as a whole, the scientific
record, relevant Supreme Court
decisions, and the agencies’ experience
and technical expertise after more than
45 years of implementing the
longstanding pre-2015 regulations
defining ‘‘waters of the United States.’’
This rule’s limitations are based on the
agencies’ conclusion that the significant
nexus standard is consistent with the
statutory text and legislative history,
advances the objective of the Clean
Water Act, is informed by the scientific
record and Supreme Court case law, and
appropriately considers the policies of
the Act. The agencies have also
determined that the relatively
permanent standard should be included
in the rule because, while it identifies
only a subset of the ‘‘waters of the
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United States,’’ it provides important
efficiencies and additional clarity for
regulators and the public.
This section of the preamble first
explains the agencies’ conclusion that
utilization of both the relatively
permanent standard and the significant
nexus standard gives effect to the Clean
Water Act’s text, including its objective
as well as its limitations. The significant
nexus standard is consistent with the
text, objective, and legislative history of
the Clean Water Act, as well as relevant
Supreme Court case law and the best
available science. The relatively
permanent standard is administratively
useful as it more readily identifies a
subset of waters that will virtually
always significantly affect paragraph
(a)(1) waters, but standing alone the
standard is insufficient to meet the
objective of the Clean Water Act. This
section also explains that fact-based
standards for determining Clean Water
Act jurisdiction are appropriate and not
unusual under the Act. The agencies
have the discretion to consider defining
waters as jurisdictional on a categorical
basis where scientifically and legally
justified (for example in this rule,
paragraph (a)(1) waters and their
adjacent wetlands) or on a case-specific,
fact-based approach (for example, in
this rule, tributaries and their adjacent
wetlands that meet the relatively
permanent standard or significant nexus
standard). Finally, this section explains
how this rule reflects full and proper
consideration of the water quality
objective in section 101(a) and the
policies relating to responsibilities and
rights of Tribes and States under section
101(b) of the Clean Water Act. Based on
these considerations, the agencies have
concluded that the significant nexus
standard in this rule is the best
interpretation of section 502(7) of the
Act.
a. The Limitations Established by This
Rule Advance the Objective of the Clean
Water Act
This rule’s utilization of both the
relatively permanent standard and the
significant nexus standard gives effect to
the Clean Water Act’s text and
environmentally protective objective as
well as its limitations. See Rapanos, 547
U.S. at 767–69 (Kennedy, J., concurring
in the judgment) (observing ‘‘the evident
breadth of congressional concern for
protection of water quality and aquatic
ecosystems’’ and referring to the Clean
Water Act as ‘‘a statute concerned with
downstream water quality’’ (citations
omitted)); Riverside Bayview, 474 U.S. at
133 (‘‘Congress chose to define the
waters covered by the Act broadly.’’).
The agencies, however, have concluded
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that it is the significant nexus standard
that advances the objective of the Clean
Water Act because it is linked to effects
on the water quality of paragraph (a)(1)
waters while also establishing an
appropriate limitation on the scope of
jurisdiction by requiring that those
effects be significant. The relatively
permanent standard is administratively
useful as it more readily identifies a
subset of waters that will virtually
always significantly affect paragraph
(a)(1) waters, but, exclusive reliance on
the standard for all determinations is
inconsistent with the text of the statute
and Supreme Court precedent and is
insufficient to advance the objective of
the Clean Water Act.
With this rule, the agencies conclude
that if a water meets either the relatively
permanent standard or the significant
nexus standard, it falls within the
protections established by the Clean
Water Act. As discussed earlier, this
rule is not based on an application of
the Marks test for interpreting Supreme
Court decisions; rather, with this rule,
the agencies are interpreting the scope
of the definition of ‘‘navigable waters,’’
informed by relevant Supreme Court
precedent, but also based on the text of
the relevant provisions of the Clean
Water Act and the statute as a whole,
the scientific record, and the agencies’
experience and technical expertise after
more than 45 years of implementing the
longstanding pre-2015 regulations
defining ‘‘waters of the United States.’’
This section first discusses why the
significant nexus standard is consistent
with the text, objective, and legislative
history of the Clean Water Act, as well
as relevant Supreme Court case law and
the best available science; then explains
why the relatively permanent standard
is administratively useful but on its own
is insufficient; and, finally, explains that
fact-based standards for determining
Clean Water Act jurisdiction are
appropriate and not unique to the
definition of ‘‘waters of the United
States.’’
i. The Significant Nexus Standard Is
Consistent With the Text and Objective
of the Clean Water Act, Legislative
History, Case Law, and the Best
Available Science
The significant nexus standard, as the
agencies have established it in this rule,
is the best interpretation of the Clean
Water Act because it is consistent with
the text, including the Act’s statutory
objective and statutory structure, the
legislative history and case law, and is
supported by the best available science.
The standard is consistent with the
plain language of the Act’s objective
because it is based upon effects on the
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water quality of paragraph (a)(1) waters
and limits the scope of jurisdiction
based on the text of that objective.
Moreover, protection of waters that
significantly affect the paragraph (a)(1)
waters—i.e., traditional navigable
waters, the territorial seas, and interstate
waters—is consistent with the scope of
Commerce Clause authority that the
Supreme Court in SWANCC concluded
that Congress was exercising, while also
fulfilling Congress’s intent in exercising
that authority in enacting the Clean
Water Act.
The significant nexus standard
effectuates the text of Clean Water Act
section 502(7), which defines
‘‘navigable waters’’ as ‘‘the waters of the
United States, including the territorial
seas.’’ The standard is properly focused
on protecting paragraph (a)(1) waters,
which are the foundation of the Clean
Water Act: traditional navigable waters
(which ‘‘navigable waters’’ clearly
invokes but is not limited to); ‘‘the
territorial seas’’ (which are explicitly
listed in section 502(7)); and interstate
waters (which are unambiguously
waters ‘‘of the United States,’’ as they
are waters of the ‘‘several States,’’ U.S.
Const. section 8). Further, each of the
rule’s provisions identifies an aquatic
resource that meets the definition of
‘‘water’’ or ‘‘waters’’ in either the
Rapanos plurality’s preferred dictionary
or the dictionary most contemporaneous
with the passage of the Clean Water Act.
See section IV.A.3.a.ii of this preamble
for discussion of the plurality’s
dictionary-based analysis. The first
definition of ‘‘water’’ within Webster’s
Second (1.a. of the definition) is ‘‘[t]he
liquid which descends from the clouds
in rain and which forms rivers, lakes,
seas, etc.,’’ Webster’s New International
Dictionary 2882 (2d ed. 1954). The
definition of ‘‘waters,’’ plural, in the
most contemporaneous Webster’s, is:
‘‘the water occupying or flowing in a
particular bed.’’ Webster’s Third New
Intl. (1966). Even the Rapanos
plurality’s preferred definition includes
‘‘water as found in ‘streams,’ ’’ ‘‘water
‘[a]s found in streams and bodies
forming geographical features such as
oceans, rivers, [and] lakes,’ or ‘the
flowing or moving masses, as of waves
or floods, making up such streams or
bodies.’ ’’ Rapanos, 547 U.S. at 732–33
(quoting Webster’s New International
Dictionary 2882, definition 2.c).
Traditional navigable waters; interstate
waters; the territorial seas;
impoundments of waters; tributaries;
adjacent wetlands; and intrastate lakes
and ponds, streams, and wetlands are
‘‘water’’ or ‘‘waters’’ under these
definitions, as identified by hydrologists
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and other scientists, and in practice.
Moreover, with respect to whether
wetlands are waters, that question has
already been resolved by both science
and a unanimous Supreme Court in
Riverside Bayview. 474 U.S. at 137–39.
The requirement that a significant nexus
exist between upstream waters,
including wetlands, and ‘‘navigable
waters in the traditional sense’’ thus
clearly advances Congress’s stated
objective in the Act while fulfilling ‘‘the
need to give the term ‘navigable’ some
meaning.’’ Rapanos, 547 U.S. at 779
(Kennedy, J., concurring in the
judgment). See also section IV.C.2.b.iii
of this preamble for discussion of the
Clean Water Act’s jurisdiction over
interstate waters. Finally, the text and
focus of the rule’s significant nexus
standard are derived from and designed
to advance the text of the first sentence
in the statute setting forth the Act’s sole
statutory objective: ‘‘to restore and
maintain the chemical, physical, and
biological integrity of the Nation’s
waters.’’ See 33 U.S.C. 1251(a).
As noted above, a statute must be
interpreted in light of the purposes
Congress sought to achieve. See, e.g.,
Gen. Dynamics Land Sys., Inc. v. Cline,
540 U.S. 581 (2004). Thus, the agencies
must consider the objective of the Clean
Water Act to ‘‘restore and maintain the
chemical, physical, and biological
integrity of the Nation’s waters’’ in
interpreting the scope of the statutory
term ‘‘waters of the United States.’’ See
33 U.S.C. 1251(a). This consideration is
particularly important where, as here,
Congress used specific language in the
definitions in order to meet the
objective of the Act and the definition
of ‘‘waters of the United States’’ is
fundamental to meeting the objective of
the Act. See section IV.A.2 of this
preamble. Congress was focused on
water quality when it enacted the Clean
Water Act and established the Act’s
objective, and the significant nexus
standard is derived from the objective of
the Act to protect the water quality of
the paragraph (a)(1) waters. The
significant nexus standard is consistent
with foundational scientific
understanding about aquatic
ecosystems: waters can significantly
affect the chemical, physical, and
biological integrity of traditional
navigable waters, the territorial seas,
and interstate waters. Therefore,
assessing the effects that waters have on
paragraph (a)(1) waters when
considered, alone or in combination
with other similarly situated waters in
a region, is the best means of identifying
those waters that must be protected in
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order to advance the objective of the
Clean Water Act.
The agencies have also considered the
statute as a whole in construing the
scope of ‘‘waters of the United States.’’
The comprehensive nature of the Clean
Water Act and its pronounced change in
approach from precursor water
protection statutes is evident throughout
the statute, and the agencies have
considered the text of those provisions
in defining ‘‘waters of the United
States.’’ 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 use the term
‘‘navigable waters’’ and are designed to
meet the statutory objective include the
section 402 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
Tribal and State water quality
certification process. Each of these
programs is designed to protect water
quality and, therefore, further the
objective of the Clean Water Act. The
agencies have also carefully considered
the Act’s policies regarding the
responsibilities and rights of Tribes and
States. See section IV.A.3.b of this
preamble. The agencies have thus
construed ‘‘waters of the United States’’
to include waters that meet the
significant nexus standard based on the
text of the Clean Water Act’s
interlocking provisions designed to
restore and maintain the chemical,
physical, and biological integrity of the
nation’s waters.
A significant nexus analysis is also
consistent with the framework scientists
apply to assess a river system—
examining how the components of the
system (e.g., wetlands or tributaries),
alone or in the aggregate (in
combination), in a region, contribute
and connect to a river (significantly
affect the chemical, physical, or
biological integrity of paragraph (a)(1)
waters). Indeed, the significant nexus
standard in this rule reflects the analysis
in the Science Report by describing the
components of a river system and
watershed; the types of chemical,
physical, and biological connections
that link those components; the factors
that influence connectivity and
associated effects at various temporal
and spatial scales; and methods for
assessing downstream effects. The
structure and function of rivers are
highly dependent on the constituent
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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, including wetlands, 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 and marine ecology. See also
Technical Support Document sections
I.A.ii and III.E.
Connectivity is the degree to which
components of a system are joined or
linked 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 waterbodies
and traditional navigable waters, the
territorial seas, or interstate waters, and
variations in the degree of connectivity
influence the range of functions
provided by streams, wetlands, and
open waters and are critical to the
integrity and sustainability of paragraph
(a)(1) waters. For example, connections
with low values of one descriptor can
have important downstream effects
when considered in context of other
types of connections (e.g., a stream with
low-duration flow during a flash flood
can transfer large volumes of water and
woody debris downstream, affecting the
integrity of a paragraph (a)(1) water).
Indeed, the seasonal or longer-term
absence of surface connections can
provide numerous functions that
contribute to the chemical, physical,
and biological integrity of paragraph
(a)(1) waters: these wetlands can
attenuate stormflow; increase baseflow;
be a source of carbon and organic
matter; and be a sink for sediment,
nitrate, and other constituents that
degrade water quality. 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 upstream effects on the
chemical, physical, and biological
functioning of the downstream
waterbodies. The analysis in the
literature permits the agencies to judge
when an effect is significant such that a
water, either alone or in combination
with similar waters, 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
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connections and mechanisms discussed
in the Science Report include transport
of physical materials and chemicals
such as water, wood, sediment,
nutrients, pesticides, and metals (e.g.,
mercury); functions that streams,
wetlands, and open 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 to paragraph (a)(1) waters, 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 in that
case 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.
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.’’ Maui, 140 S. Ct. at 1471
(citing the definition of ‘‘water
pollution’’ from 3 Van Nostrand’s
Scientific Encyclopedia, at 5801). The
Court then enumerated a series of
factors, many of which are scientifically
based, relevant to determining whether
a discharge is jurisdictional under the
Clean Water Act, 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 text and
objective of the Clean Water Act and the
best available science, this rule’s
incorporation of the significant nexus
standard is also 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 Cnty.,
Ga., 140 S. Ct. 1731, 1749 (2020)
(emphasis in original). 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
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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
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 thus fulfills Congress’s intent
that the scope of the term ‘‘navigable
waters’’ be broader than the limitations
of earlier water pollution control
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statutes and agency determinations
under them (section 10 waters and their
tributaries, for example, under the
Rivers and Harbors Act of 1899). And,
because the significant nexus standard
is focused on protecting waters to meet
the objective of the Act, it also comports
with congressional intent.
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. Indeed,
the Court in Riverside Bayview
concluded that ‘‘significant effects’’ is
the relevant basis for asserting
jurisdiction over adjacent wetlands: ‘‘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.’’ Id.
at 135 n.9. In Rapanos, Justice
Kennedy—referencing the Court in
Riverside Bayview—stated that ‘‘the
Court indicated that ‘the term
‘‘navigable’’ as used in the Act is of
limited import,’ [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.’ ’’ 547 U.S. at 779 (Kennedy, J.,
concurring in the judgment) (citing
Riverside Bayview, 474 U.S. at 133, 135).
‘‘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.’’
Rapanos, 547 U.S. at 779 (emphasis
added); see also id. at 780 (‘‘[W]etlands’
ecological functions vis-a´-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
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‘‘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
wetland functions as 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. Scientific evidence indicates that
wetlands play a critical role in
controlling and filtering runoff’’ Id. at
777 (citing Brief for Association of State
Wetland Managers et al. 21–23; Brief for
Environmental Law Institute 23; 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)).
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—‘‘its
traditional jurisdiction over waters that
were or had been navigable in fact or
which could reasonably be so made’’—
and the Court’s guidance on avoiding an
administrative interpretation of a statute
that invokes the outer limits of
Congress’s power. 531 U.S. at 172; see
also id. (‘‘[W]e expect a clear indication
that Congress intended that result.’’).
With respect to section 404 authority
over an abandoned sand and gravel pit
based simply on whether it was used by
migratory birds (the ‘‘Migratory Bird
Rule’’), the SWANCC Court concluded
that there was not a clear statement from
Congress. Id. at 174. By placing
traditional navigable waters, the
territorial seas, and interstate waters at
the center of the agencies’ jurisdiction
and covering additional waters only
where those waters significantly affect
(a)(1) waters, this rule reflects the
Court’s guidance. Further, in construing
the statute in this rule, the agencies
have not only eschewed the ‘‘Migratory
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Bird Rule,’’ they have deleted the
provisions in the 1986 regulations that
authorized assertions of jurisdiction
under broader Commerce Clause
authority and replaced them with the
relatively permanent and significant
nexus standards.
Indeed, the provisions in the 1986
regulations authorized assertions of
jurisdiction far more broadly than under
the relatively permanent standard and
significant nexus standard in this rule.
First, the regulatory text authorized the
assertion of jurisdiction over ‘‘[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 use,
degradation or destruction of which
could affect interstate or foreign
commerce including any such waters:
Which are or could be used by interstate
or foreign travelers for recreational or
other purposes; or From which fish or
shellfish are or could be taken and sold
in interstate or foreign commerce; or
Which are used or could be used for
industrial purposes by industries in
interstate commerce.’’ 33 CFR
328.3(a)(3) (2014). This regulatory text
was based on all three categories of
activity that Congress may regulate
using its Commerce Clause authority: (1)
the channels of interstate commerce; (2)
persons or things in interstate
commerce; and (3) activities that
substantially affect interstate commerce.
See United States v. Lopez, 514 U.S.
549, 558–59 (1995). This approach thus
overall was a far broader definition of
‘‘waters of the United States’’ than this
rule, which recognizes that the Supreme
Court in SWANCC held that Congress
was not using all aspects of its
Commerce Clause authority. Moreover,
as discussed by the Court in SWANCC,
the agencies stated in the preamble to
the 1986 regulations that ‘‘waters of the
United States’’ at 33 CFR 328.3(a)(3)
also included waters that ‘‘are or would
be used as habitat by birds protected by
Migratory Bird Treaties; . . . [that] are
or would be used as habitat by other
migratory birds which cross state lines;
. . . [that] are or would be used as
habitat for endangered species; or . . .
[waters] [u]sed to irrigate crops sold in
interstate commerce.’’ 51 FR 41206,
41217 (November 13, 1986). This is the
1986 preamble language that became
known as the ‘‘Migratory Bird Rule’’ and
clearly established a far greater scope of
‘‘waters of the United States’’ than this
rule, as migratory birds use waters large
and small all over the United States
with no connection to a traditional
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3037
navigable water, the territorial seas, or
an interstate water.
The agencies also have carefully
amended other provisions of the 1986
regulations not only to add the
relatively permanent standard and the
significant nexus standard as limitations
on the scope of ‘‘waters of the United
States’’ but to add additional limitations
where the agencies were concerned
assertions of jurisdiction could push the
limits of the congressional authority
granted to the agencies or constitutional
limits. For example, in a change from
the 1986 regulations, tributaries to
intrastate lakes and ponds, streams, and
wetlands that do not fall within other
categories of the rule (paragraph (a)(5)
waters in this rule, which are analogous
to the ‘‘other waters’’ provision of the
1986 regulations) do not qualify as
tributaries under this rule, nor do
wetlands adjacent to such waters. As set
forth in this rule, the relatively
permanent standard and the significant
nexus standard allow the agencies to
fulfill the statute and Congress’s clearly
stated objective, while being carefully
crafted to fall well within the authority
granted to the agencies by Congress and
to Congress by the Constitution. As
noted above, the SWANCC Court itself
viewed ‘‘significant nexus’’ as the
touchstone for determining the scope of
‘‘waters of the United States’’ in its
decision in Riverside Bayview,
concluding the decision was informed
by the ‘‘significant nexus between the
wetlands and ‘navigable waters.’ ’’ 531
U.S. at 167. The agencies agree with the
analysis of Justice Kennedy, who
explicitly addressed these constitutional
concerns in Rapanos, stating: ‘‘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.
Moreover, the rule is consistent with
decades of interpretation and
implementation undisturbed by
Congress.
Moreover, the SWANCC Court noted
that the statement in the Conference
Report for the Clean Water 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. As the numerous
Supreme Court decisions discussed
above have found, Congress enacted the
Clean Water Act to establish a
comprehensive Federal law protecting
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water quality. The agencies’
construction of the statute must also
give effect to the clearly stated objective
of the Act and all the provisions of the
Act designed to achieve that objective.
See section IV.A.2 of this preamble.
Thus, while the agencies must be
mindful that Congress was utilizing an
aspect of its commerce power, they
must be similarly mindful that Congress
intended to fully exercise that authority
in order to comprehensively address
water pollution. The agencies have
concluded that the legislative history
concerning the intent of Congress
regarding the scope of the Clean Water
Act’s protections under its power over
navigation confirms the appropriateness
of the agencies’ construction of the
Clean Water Act in this rule. This rule
ensures that waters, which either alone
or in combination significantly affect
the integrity of traditional navigable
waters, the territorial seas, or interstate
waters, are protected by the Clean Water
Act, and thus this rule carefully
balances the limits on Congress’s
authority and on the agencies’ authority
under the Act, with congressional intent
to comprehensively protect water
quality and to delegate the authority to
do so to the agencies.
Finally, 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.’’). As
the United States Court of Appeals for
the Sixth Circuit observed 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
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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 this rule ensures
that the definition of ‘‘waters of the
United States’’ remains within the
bounds of the Clean Water Act and
addresses the concerns raised by the
Court in SWANCC while also fulfilling
the directive of Congress in enacting the
Clean Water Act.
ii. The Relatively Permanent Standard Is
Administratively Useful, But Exclusive
Reliance on the Standard for All
Determinations Is Inconsistent With the
Objective of the Act
The agencies conclude that Federal
protection is appropriate where a water
meets the relatively permanent
standard: waters that are relatively
permanent, standing or continuously
flowing waters connected to paragraph
(a)(1) waters, and waters with a
continuous surface connection to such
relatively permanent waters or to
paragraph (a)(1) waters. Waters that
meet this standard are a subset of the
‘‘waters of the United States’’ because
they will virtually always significantly
affect traditional navigable waters, the
territorial seas, or interstate waters and
therefore properly fall within the Clean
Water Act’s scope. However, limiting
the definition of ‘‘waters of the United
States’’ to the relatively permanent
standard on its own would be
inconsistent with the Act’s text and
objective and runs counter to scientific
principles. As discussed further below,
the agencies have included the
relatively permanent standard in this
rule because it provides efficiencies and
additional clarity for regulators and the
public.
Waters that meet the relatively
permanent standard are within the
scope of the Clean Water Act because
scientific evidence supports the
conclusion that tributaries of paragraph
(a)(1) waters with relatively permanent,
standing or continuously flowing water
perform important functions that either
individually, or cumulatively with
similarly situated waters in the region,
have significant effects on the chemical,
physical, or biological integrity of
paragraph (a)(1) waters. The same is true
of adjacent wetlands and relatively
permanent open waters with continuous
surface connections to tributaries that
meet the relatively permanent standard.
See Technical Support Document
sections III.A, III.B, and III.D.
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Tributaries that meet the relatively
permanent standard contribute
consistent flow to paragraph (a)(1)
waters and, with that flow, export
nutrients, sediment, food resources,
contaminants, and other materials that
can both positively (e.g., by contributing
to downstream baseflow, providing food
for aquatic species, and contributing to
downstream aquatic habitat) and
negatively (e.g., by exporting too much
sediment, runoff, or nutrients or
exporting pollutants) affect the integrity
of those paragraph (a)(1) waters. In
addition, wetlands with a continuous
surface connection to tributaries that
meet the relatively permanent standard
can and do attenuate floodwaters, trap
sediment, and process and transform
nutrients that might otherwise reach
traditional navigable waters, the
territorial seas, or interstate waters. If
the agencies assessed waters that meet
the relatively permanent standard (e.g.,
tributaries that meet the relatively
permanent standard or adjacent
wetlands with a continuous surface
connection to such tributaries) they
would virtually always find evidence of
strong factors, particularly hydrologic
factors like flow frequency and
duration, that lead to strong connections
and associated effects on paragraph
(a)(1) waters. Therefore, waters that
meet the relatively permanent standard
will virtually always meet the
significant nexus standard.
The relatively permanent standard is
useful for the agencies and the public
because it generally requires less
information gathering and assessment
than the significant nexus standard. The
significant nexus standard requires
evaluating whether waters, alone or in
combination, significantly affect the
chemical, physical, or biological
integrity of paragraph (a)(1) waters, i.e.,
traditional navigable waters, the
territorial seas, and interstate waters.
Such an assessment requires
considering the presence of functions
for one or more subject waters and
evaluating the strength of their effects
on paragraph (a)(1) waters. In contrast,
the relatively permanent standard has a
more limited focus that requires
considering the flow of a tributary or
considering the surface connection
between an adjacent wetland or open
water and a relatively permanent
covered water. As such, while both the
significant nexus and relatively
permanent standards require casespecific, fact-based inquiries before
determining whether a water meets the
definition of ‘‘waters of the United
States,’’ the relatively permanent
standard will generally require less
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assessment and thus can result in
administrative efficiencies.
Standing alone as the sole test for
Clean Water Act jurisdiction, however,
the relatively permanent standard has
no basis in the text of the statute and is
contrary to the statute. Rather than a
careful consideration of the Clean Water
Act’s specialized definitions in light of
the objective of the Act, 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 and adjacent
wetlands that do not have a continuous
surface connection to such relatively
permanent waters or to paragraph (a)(1)
waters, is inconsistent with the Act’s
text and objective. In addition, the
relatively permanent standard used
alone runs counter to the science
demonstrating how other categories of
waters can affect the integrity of
downstream waters, including
traditional navigable waters, the
territorial seas, and interstate waters.
For example, many tributaries that flow
for only a short duration in direct
response to precipitation, and thus do
not meet the relatively permanent
standard, are regular and direct sources
of freshwater for the sparse traditional
navigable waters in the arid Southwest,
such as portions of the Gila River. In
addition, many adjacent wetlands do
not have a continuous surface
connection to jurisdictional waters but
provide numerous flood protection and
water quality benefits to traditional
navigable waters, such as wetlands
behind the extensive levee systems
along the Mississippi River.
As discussed in section IV.A.2.c of
this preamble and sections III.A.v and
III.B of the Technical Support
Document, 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. The 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.60 There is thus no
60 Letter from SAB to Gina McCarthy,
Administrator, EPA (October 17, 2014) (‘‘2014 SAB
Review’’) at 22–23, 54 fig. 3.
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scientific basis for excluding waters
simply because they are not relatively
permanent.
The science is also clear that wetlands
may significantly affect paragraph (a)(1)
waters when they have other types of
surface or hydrologic connections, such
as wetlands that overflow across
uplands via sheetflow and flood
jurisdictional waters or wetlands with
less frequent surface water connections;
wetlands with shallow subsurface
connections to other protected waters;
wetlands behind a natural berm, a beach
dune, a manmade levee, or the like; 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 paragraph (a)(1) waters;
improving water quality in paragraph
(a)(1) waters 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 paragraph (a)(1)
waters. See, e.g., Science Report at 4–20
to 4–38.
The agencies have also concluded that
there is no basis in the text of the statute
to exclude waters from Clean Water Act
jurisdiction solely because they do not
meet the relatively permanent standard.
As discussed in section IV.A.2.a of this
preamble, the objective of the Clean
Water Act is to restore and maintain the
water quality of the nation’s waters. The
phrase ‘‘waters of the United States’’ is
by its terms expansive and not expressly
limited to relatively permanent,
standing or continuously flowing bodies
of water, or to wetlands with a
continuous surface connection. The
imposition of such limitations would
disregard the science demonstrating the
effects of upstream waters and wetlands
on downstream paragraph (a)(1) waters.
Taking science into account, 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 to
a paragraph (a)(1) water. Rapanos, 547
U.S. at 773–74 (Kennedy, J., concurring
in the judgment) (‘‘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.’’); 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
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3039
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.’’).
The agencies have concluded that
there is no sound basis in the text of the
statute to exclude tributaries solely on
the basis that they are not relatively
permanent, standing or continuously
flowing bodies of water from the Clean
Water Act. In interpreting the Clean
Water Act to be limited in such a
manner, the Rapanos plurality relied on
a strained reading of the Act that is
inconsistent with the text of the
statute—including the statute’s stated
objective—the structure of the statute,
the statutory history, and Supreme
Court precedent interpreting the Clean
Water Act.
First, the plurality stated that because
one entry in a dictionary defines
‘‘waters’’ to mean ‘‘water ‘[a]s found in
streams and bodies forming
geographical features such as oceans,
rivers, [and] lakes,’ or ‘the flowing or
moving masses, as of waves or floods,
making up such streams or bodies,’ ’’
Rapanos, 547 U.S. at 732 (quoting
Webster’s New International Dictionary
2882 (2d ed. 1954) (hereinafter,
‘‘Webster’s Second’’)), the phrase
‘‘navigable waters’’ permits Corps and
EPA to assert jurisdiction only over
‘‘relatively permanent, standing or
flowing bodies of water.’’ Rapanos, 547
U.S. at 732. The plurality leans heavily
on the fact that Congress defined
‘‘navigable waters’’ as ‘‘the waters of the
United States.’’ 33 U.S.C. 1362(7)
(emphasis added). But the article ‘‘the’’
and plural ‘‘waters’’ cannot bear this
weight. Congress used the term ‘‘the
waters’’ throughout the Clean Water Act
and in usages where it would be
illogical to swap in the plurality’s
preferred definition. For example,
throughout the Act, Congress frequently
refers to ‘‘the waters of the contiguous
zone’’ and even ‘‘the waters of the
territorial seas, the contiguous zone, and
the oceans.’’ 33 U.S.C. 1343(a), (c)
(emphasis added). Congress is not
making a careful distinction between
some of ‘‘the waters’’ of the contiguous
zone and other waters of the contiguous
zone based on a dictionary definition.
Nor did Congress intend to single out
some waters of the Great Lakes when it
instructed the Administrator to
‘‘conduct research and technical
development work, and make studies,
with respect to the quality of the waters
of the Great Lakes.’’ 33 U.S.C. 1254(f)
(emphasis added).
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The plurality relied on one particular
dictionary definition to limit the scope
of the ‘‘waters of the United States’’ in
a way that is neither compelled by, nor
consistent with, the text of the statute.
The plurality selected a dictionary,
Webster’s Second that was not even the
most recent edition as of passage of the
Clean Water Act, and thus not as
reflective of common usage, and then
selected a preferred definition within
that dictionary. See Rapanos, 547 U.S.
at 732. Webster’s Second does not have
a separate entry for ‘‘waters’’ (plural), so
the plurality relied on its entry for
‘‘water’’ (singular) and within that
skipped over several more apt
definitions to reach its preferred one.
The first definition of ‘‘water’’ within
Webster’s Second (1.a. of the definition)
is ‘‘[t]he liquid which descends from the
clouds in rain and which forms rivers,
lakes, seas, etc.,’’ a definition that is
substantially broader than the one
chosen by the plurality. The plurality’s
preferred definition, ‘‘water as found in
streams and bodies forming
geographical features such as oceans,
rivers, and lakes,’’ is halfway down the
column, definition 2.c. Moreover, the
definition of ‘‘waters,’’ plural, in the
most contemporaneous Webster’s, was
also substantially broader, providing the
following definition: ‘‘the water
occupying or flowing in a particular
bed.’’ Webster’s Third New Intl. (1966).
Even taking the plurality’s preferred
definition at face value, it does not
support the relatively permanent
standard. That definition includes
‘‘water as found in streams.’’ The
plurality concluded that the streams
referred to in the definition must be
relatively permanent and thereby
concluded that the ‘‘waters of the
United States’’ do not include
intermittent and ephemeral streams
(although the plurality did not use those
terms in the scientific sense and added
caveats to its stated textual reading of
the statute—stating 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 months’’). Rapanos, 547 U.S. at 732
n.5 (emphasis in original). Intermittent
and ephemeral streams are, of course,
‘‘streams’’—as they are defined in the
dictionary, understood in common
parlance, and defined by scientists.
The agencies thus agree with Justice
Kennedy that the limitations the
plurality imposes on the Clean Water
Act ‘‘are without support in the
language and purposes of the Act or in
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our cases interpreting it.’’ Rapanos, 547
U.S. at 768. The agencies also agree that
a permanent standing water or
continuous flow requirement ‘‘makes
little practical sense in a statute
concerned with downstream water
quality.’’ Id. at 769. And, as discussed
above, ‘‘a full reading of the dictionary
definition precludes the plurality’s
emphasis on permanence: The term
‘waters’ may mean ‘flood or inundation,’
events that are impermanent by
definition;’’ it follows that ‘‘the Corps
can reasonably interpret the Act to cover
the paths of such impermanent
streams.’’ Id. at 770 (quoting Webster’s
Second 2882).
The agencies also have concluded that
Riverside Bayview does not support the
plurality’s standard for tributaries. As
Justice Kennedy stated: ‘‘To be sure, the
Court there compared wetlands to
‘rivers, streams, and other hydrographic
features more conventionally
identifiable as ‘ ‘‘waters.’’ ’ Rapanos, 547
U.S. at 771 (citing Riverside Bayview,
474 U.S. at 131). ‘‘It is quite a stretch to
claim, however, that this mention of
hydrographic features ‘echoe[s]’ the
dictionary’s reference to ‘ ‘‘geographical
features such as oceans, rivers, [and]
lakes.’’ ’ Rapanos, 547 U.S. at 771
(citation omitted). ‘‘In fact, the Riverside
Bayview opinion does not cite the
dictionary definition on which the
plurality relies, and the phrase
‘hydrographic features’ could just as
well refer to intermittent streams
carrying substantial flow to navigable
waters.’’ Id. at 771 (citing Webster’s
Second 1221 (defining ‘‘hydrography’’
as ‘‘[t]he description and study of seas,
lakes, rivers, and other waters;
specif[ically] . . . [t]he measurement of
flow and investigation of the behavior of
streams, esp[ecially] with reference to
the control or utilization of their
waters’’)).
With respect to wetlands, the agencies
have also concluded there is no sound
basis in the text of the Clean Water Act
or in other Supreme Court precedent for
requiring that wetlands can be
jurisdictional only if they satisfy the
continuous surface connection
requirement of the relatively permanent
standard. The Rapanos plurality’s
rationale for adopting such a test rested
largely on a misreading of Riverside
Bayview. The plurality’s brief
discussion did not otherwise attempt to
ground its relatively permanent
standard in the text, history, or purpose
of the Clean Water Act. In concluding
that only wetlands with a continuous
surface connection to other covered
waters are protected by the Clean Water
Act, the Rapanos plurality relied
primarily on two related propositions
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that it viewed as implicit in Riverside
Bayview. First, the plurality suggested
that in Riverside Bayview the Clean
Water Act term ‘‘waters’’ cannot easily
be construed to cover wetlands, and that
discharges into wetlands therefore can
be regulated only when particular
wetlands ‘‘adjoined’’ waters of the
United States and were thus deemed
‘‘part of’’ the waters to which they are
adjacent. See 547 U.S. at 740. Second,
the plurality concluded that this
requirement will be satisfied only when
‘‘the wetland has a continuous surface
connection with [the adjacent] water.’’
Id. at 742. Those propositions are
unsound and rest on a misreading of
Riverside Bayview.
The Rapanos plurality quoted the
Riverside Bayview Court’s statement
that, ‘‘[o]n a purely linguistic level, it
may appear unreasonable to classify
‘lands,’ wet or otherwise, as ‘waters.’ ’’
547 U.S. at 740 (quoting Riverside
Bayview, 474 U.S. at 132). In the next
sentence of its opinion, however, the
Riverside Bayview Court continues, and
the Rapanos plurality omits, that
‘‘[s]uch a simplistic response . . . does
justice neither to the problem faced by
the Corps in defining the scope of its
authority under § 404(a) nor to the
realities of the problem of water
pollution that the Clean Water Act was
intended to combat.’’ 474 U.S. at 132.
The Riverside Bayview Court concluded
that ‘‘adjacent wetlands may be defined
as waters under the Act.’’ Id. at 134.
And, as explained above, the Clean
Water Act’s text, history, and purpose
likewise confirm that adjacent wetlands
are themselves ‘‘waters’’ covered by the
Act.
The Rapanos plurality read Riverside
Bayview as resting on the ‘‘inherent
ambiguity in drawing the boundaries of
any ‘waters.’’’ 547 U.S. at 740. The
plurality also described SWANCC as
having read Riverside Bayview to be
‘‘refer[ring] to the close connection
between waters and the wetlands that
they gradually blend into.’’ Rapanos,
547 U.S. at 741. The plurality concluded
that ‘‘only those wetlands with a
continuous surface connection to bodies
that are ‘waters of the United States’ in
their own right’’ can be protected by the
Clean Water Act, because only in that
circumstance is it ‘‘difficult to
determine where the ‘water’ ends and
the ‘wetland’ begins.’’ Id. at 742.
However, the Rapanos plurality
misconceived the nature of the linedrawing problem in Riverside Bayview.
The Riverside Bayview Court identified
‘‘shallows, marshes, mudflats, swamps,
[and] bogs’’ as examples of ‘‘areas that
are not wholly aquatic but nevertheless
fall far short of being dry land,’’ and it
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observed that ‘‘[w]here on this
continuum to find the limit of ‘waters’
is far from obvious.’’ 474 U.S. at 132.
The line-drawing problem in Riverside
Bayview did not involve identifying the
boundary between a jurisdictional
stream and an adjacent wetland. Rather,
the line-drawing problem involved the
criteria that should be used to determine
whether particular types of
hydrogeographic features should be
regarded as ‘‘waters’’ under the Clean
Water Act. That line-drawing problem—
in essence, determining how wet is wet
enough—can arise even when a
particular swamp or marsh is separated
by a barrier from a nearby lake or
stream. After discussing at some length
the regulatory definition of ‘‘wetlands’’
and its application to the property at
issue in that case, see id. at 129–131, the
Riverside Bayview Court upheld as
reasonable ‘‘the Corps’ approach of
defining adjacent wetlands as ‘waters’
within the meaning of’’ the Clean Water
Act. Id. at 132.
As further support for its relatively
permanent standard, the Rapanos
plurality invoked SWANCC’s holding
that certain isolated ponds were not
covered by the Clean Water Act. The
SWANCC Court had described Riverside
Bayview as resting on ‘‘the significant
nexus between the wetlands and’’ the
waters to which they are adjacent. 531
U.S. at 167. The Rapanos plurality in
turn described SWANCC as ‘‘reject[ing]
the notion that the ecological
considerations upon which the Corps
relied in Riverside Bayview . . .
provided an independent basis for
including entities like ‘wetlands’ . . .
within the phrase ‘the waters of the
United States.’ ’’ 547 U.S. at 741
(citation omitted). In the plurality’s
view, ‘‘SWANCC found such ecological
considerations irrelevant to the question
whether physically isolated waters
come within the Corps’ jurisdiction,’’
because the coverage inquiry for the
‘‘[i]solated ponds’’ at issue in that case
‘‘presented no boundary-drawing
problem that would have justified the
invocation of ecological factors.’’ Id. at
741–742. Contrary to the Rapanos
plurality’s suggestion, the Court in
SWANCC did not hold that the
particular ‘‘ecological considerations
upon which the Corps relied in
Riverside Bayview,’’ 547 U.S. at 741—
i.e., the potential importance of
wetlands to the quality of adjacent
waters—were irrelevant to Clean Water
Act jurisdiction. Rather, the Court held
that a different ecological concern,
namely the potential use of the isolated
ponds as habitat for migratory birds,
could not justify treating those ponds as
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‘‘waters of the United States.’’ See 531
U.S. at 164–165, 171–172. That
ecological concern was not cognizable
because it was unrelated to ‘‘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
(citation omitted).
Aside from its mistaken reliance on
Riverside Bayview and SWANCC, the
Rapanos plurality did not attempt to
ground the relatively permanent
standard in the Clean Water Act’s text
or history. See 547 U.S. at 739–742. And
limiting Clean Water Act coverage to
wetlands with a continuous surface
connection would affirmatively
undermine the Act’s purpose by
creating an illogical jurisdictional gap. It
would categorically exclude wetlands
separated from covered waters by a dike
or similar barrier, even if they are
closely connected by subsurface flow or
periodic floods, regardless of such
wetlands’ ecological importance to
covered waters nearby and downstream.
The agencies have concluded that
overwhelming scientific evidence shows
that such wetlands may significantly
affect paragraph (a)(1) waters. See
Science Report 4–20 to 4–38; Technical
Support Document section III.B.
Additionally, the relatively
permanent standard was not briefed in
Rapanos. See 547 U.S. at 800 (Stevens,
J., dissenting). And the plurality’s terse
discussion of the issue did not elaborate
on either aspect of that standard in any
detail. The plurality stated 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 months.’’ 547 U.S. at 732 n.5
(emphasis in original). The Rapanos
plurality distinguished a ‘‘continuous
surface connection’’ from ‘‘an
intermittent, physically remote
hydrologic connection,’’ but gave little
further guidance on the application of
its test. Id. at 742 (plurality opinion). As
long as the relatively permanent
standard is understood as a useful but
not exclusive standard for Clean Water
Act coverage, it has not created arbitrary
and harmful results.
If the relatively permanent standard
were the sole standard, a small surface
connection would suffice, but the
presence of a levee to protect a river and
its adjacent wetlands could strip the
wetlands of Clean Water Act coverage
since, under the relatively permanent
standard, a human-made barrier such as
a levee means that there is not a
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3041
continuous surface connection between
the river and the wetlands. This result
would be irrational and contrary to the
objectives of the statute. The Mississippi
River, for example, features an extensive
levee system built to prevent flooding.
The Upper Mississippi Valley alone
includes approximately 17,000
kilometers (more than 10,000 miles) of
levees. Technical Support Document
section III.B.ii.2. Those levees would
preclude Clean Water Act coverage
under the relatively permanent standard
even though adjacent wetlands are often
a necessary part of the flood-control
project—detaining floodwaters to
protect surrounding and downstream
communities—and even though the
wetlands maintain a hydrologic
connection to the river system. Cf. R.
Daniel Smith & Charles V. Klimas, Eng’r
Rsch. & Dev. Ctr., A Regional Guidebook
for Applying the Hydrogeomorphic
Approach to Assessing Wetland
Functions of Selected Regional Wetland
Subclasses, Yazoo Basin, Lower
Mississippi River Alluvial Valley 47,
48–49 (April 2002).
More broadly, the relatively
permanent standard’s continuous
surface connection requirement could
make loss of Clean Water Act
jurisdiction a consequence of building a
road, levee, or other barrier—even if the
construction had little or no effect on
the interdependent relationship
between a wetland and a neighboring
water. That could create perverse
incentives to build or modify such
barriers in a manner aimed either at
destroying or preserving Federal
jurisdiction.
Further, as discussed above, Congress
declined to narrow the scope of ‘‘waters
of the United States’’ when it amended
the Clean Water Act in 1977. The
relatively permanent standard amends
the Clean Water Act to limit its scope in
ways that Congress has considered
doing but has repeatedly declined to do,
including through legislation
introduced after the Rapanos decision
and after promulgation of the 2020
NWPR.61 As Justice Kennedy stated:
61 See, e.g., Navigable Waters Protection Act, S.
2567, 117th Cong. (2021) (proposing to codify the
2020 NWPR as Federal legislation); Define WOTUS
Act, S. 2356, 116th Cong. (2019) (proposing to
revise the Clean Water Act to define ‘‘navigable
waters’’ to include the territorial seas, interstate
waters used in the transport of interstate or foreign
commerce, and waters meeting the Rapanos
plurality’s standard); S.J. Res. 22, 114th Cong.
(2015) (proposing to nullify the 2015 Clean Water
Rule); Defense of Environment and Property Act,
H.R. 3377, 113th Cong. (2013) (proposing to revise
the Clean Water Act to limit ‘‘waters of the United
States’’ to navigable-in-fact waters and ‘‘permanent
or continuously flowing bodies of water that form
geographical features commonly known as streams,
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‘‘To be sure, Congress could draw a line
to exclude irregular waterways, but
nothing in the statute suggests it has
done so. Quite the opposite.’’ 547 U.S.
at 770.
Finally, 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 2020
NWPR, however, interpreted the statute
to primarily find waters jurisdictional
only if they met the relatively
permanent standard, as that standard
was specifically interpreted in the 2020
NWPR. The 2020 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 22250, 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 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 2020 NWPR. See 85 FR
22338–39; see also 2020 NWPR
regulatory text at 33 CFR 328.3(a), (c)(1),
(c)(6), (c)(12). The 2020 NWPR
disregards the significant nexus
standard, see generally 85 FR 22270,
22338–39 (April 21, 2020); 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. For the reasons articulated
throughout sections IV.A and IV.B of
oceans, rivers, and lakes that are connected to
waters that are navigable-in-fact’’); Amendment
2177, S. 3240, 112th Cong. (2012) (proposing to
amend an appropriations bill to limit the Clean
Water Act’s definition of ‘‘waters of the United
States’’ to navigable-in-fact waters and ‘‘permanent,
standing or continuously flowing bodies of water
that form geographical features commonly known
as streams, oceans, rivers, and lakes that are
connected to waters that are navigable-in-fact’’).
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this preamble, the agencies reject the
2020 NWPR’s interpretation of ‘‘waters
of the United States’’ as inconsistent
with the objective of the Clean Water
Act, the science, and the case law.
While the relatively permanent
standard is administratively useful and
includes waters that have important
effects on the water quality of paragraph
(a)(1) waters, the standard excludes
waters that properly fall within the
Clean Water Act’s protections. As a
result, this rule’s incorporation of
jurisdictional limitations based upon
the relatively permanent standard and
the significant nexus standard reflects
the text of the statute as a whole. Thus,
with this rule, the agencies properly
fulfill their congressionally delegated
responsibility to construe ‘‘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 Appropriate
The agencies have the discretion to
consider defining waters as
jurisdictional on a categorical basis
where scientifically and legally justified
(for example in this rule, paragraph
(a)(1) waters and their adjacent
wetlands) or a case-specific, fact-based
approach (for example, in this rule,
tributaries and their adjacent wetlands
that meet the significant nexus standard
or relatively permanent standard).
While the latter does not necessarily
provide the same certainty as defining
waters as jurisdictional by category,
case-specific determinations of the
scope of Clean Water Act jurisdiction
are not unusual—in fact, they are the
norm. 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
determining jurisdiction that does not
establish bright lines marking the
bounds of Federal jurisdiction. Instead,
like the significant nexus standard, the
standard in Maui requires an inquiry
focused on the specific facts at issue and
is guided by the purposes Congress
sought to achieve under the Clean Water
Act. In Maui, the Supreme Court
considered whether discharges to
groundwater that reach navigable waters
are jurisdictional under the Clean Water
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
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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 this rule. Both
standards require an analysis focused on
the specific facts at issue in a particular
instance. Under the ‘‘functional
equivalent’’ standard, factors that may
be relevant, depending on the
circumstances of a particular case,
include transit time, distance traveled,
the geologic substrate through which the
discharges travels, the location and
nature of the receiving water, and other
factors. Similarly, the significant nexus
standard requires consideration of
scientific principles of upstream
functions and effects on the integrity of
paragraph (a)(1) waters and facts related
to the specific waters at issue. Indeed,
this rule includes a list of factors that
would be considered when assessing
whether waters significantly affect
paragraph (a)(1) waters that is similar in
nature to the factors identified by the
Court that may be relevant to making a
‘‘functional equivalent’’ assessment. See
section IV.C.9 of this preamble. The
relatively permanent standard also
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requires inquiry into specific facts about
particular tributaries, wetlands, and
open waters, although the inquiry
generally requires less informationgathering 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. The Maui Court’s
analysis underscores the agencies’
concerns about the 2020 NWPR, which
categorically excluded all ephemeral
tributaries and wetlands that did not
meet its very narrow definition in spite
of their impact on the chemical,
physical, and biological integrity of
paragraph (a)(1) waters. In this rule, the
agencies are rejecting that approach and
resuming the use of the significant
nexus standard to determine which
waters have a sufficient impact on
traditional navigable waters, the
territorial seas, or interstate waters.
Finally, both the functional
equivalent standard and the significant
nexus standard should be applied while
keeping in mind the purposes of the
Clean Water 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. With this rule, the agencies have
established limits that appropriately
draw the boundary of ‘‘waters of the
United States’’ by ensuring that, where
upstream waters significantly affect the
integrity of waters and the Federal
interest is indisputable—the traditional
navigable waters, the territorial seas,
and interstate waters—Clean Water Act
programs apply to ensure that the
downstream waters are adequately
protected (by protecting those upstream
waters). This rule continues the use of
case-specific jurisdictional tests but also
provides needed clarity by establishing
regulations that include definitions of
key terms and specific exclusions.
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Moreover, the agencies have extensive
experience making jurisdictional
determinations using the relatively
permanent standard and the significant
nexus standard. Field staff have gained
extensive familiarity and practical
experience with the national and
regionally specific field methods,
literature, datasets, models, and tools
that are required to make such
determinations, resulting in increased
efficiencies over time. See section
IV.C.10 of this preamble. In addition,
this rule increases clarity and
implementability by streamlining and
restructuring the 1986 regulations, and
this preamble provides implementation
guidance informed by sound science,
implementation tools (including
modern assessment tools), and other
resources.
b. This Rule Reflects Full and
Appropriate Consideration and
Balancing of the Water Quality
Objective in Section 101(a) and the
Policies Relating to Responsibilities and
Rights of Tribes and States Under
Section 101(b) of the Clean Water Act
This rule reflects consideration of the
statute as a whole, including the
objective of the Clean Water Act and the
policies of the Act with respect to the
role of Tribes and States. As discussed
in section IV.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 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 in 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
ensure that the agencies advance
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 this rule both
advances the objective of the Clean
Water Act in section 101(a) and respects
the role of Tribes and States in section
101(b).62 The rule appropriately draws
62 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
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3043
the boundary of waters subject to
Federal protection by limiting the scope
to the protection of upstream waters that
significantly affect the integrity of
waters where the Federal interest is
indisputable—the traditional navigable
waters, the territorial seas, and interstate
waters. Waters that do not implicate the
Federal interest in these paragraph (a)(1)
waters are not included within the
scope of Federal jurisdiction. The scope
and boundaries of the definition
therefore reflect the agencies’
considered judgment of both the Clean
Water Act’s objective in section 101(a)
and the congressional policy relating to
States’ rights and responsibilities under
section 101(b).
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 2020 NWPR. In
several key respects, the agencies’
consideration and weighing of these
provisions in this rulemaking differs
from the agencies’ approach in the 2020
NWPR. The agencies explained in the
preamble to the proposed rule why the
agencies’ revised approach represents a
fuller and more appropriate
consideration of these provisions than
reflected in the 2020 NWPR, and the
agencies reaffirm those positions. 86 FR
69399 (December 7, 2021). As discussed
below, based on the text of section
101(b), the structure of section 101 and
the Clean Water Act as a whole,
Supreme Court precedent, and the
history of Federal water pollution laws
enacted by Congress up through the
1972 amendments, the construction of
the Act in this rule fully and
appropriately considers sections 101(a)
and 101(b).
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 paragraph (a)(1)
waters—i.e., traditional navigable
waters, the territorial seas, and interstate
waters. And consistent with the section
101(b) policy, where protection (or
degradation) of waters does not
implicate this Federal interest, such
waters fall exclusively within Tribal or
authority of Tribes to address pollution and plan
the development and use of Tribal land and water
resources.
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State regulatory authority should they
choose to exercise it. However, there is
no indication in any text of the statute
that Congress established section 101(b)
as the lynchpin of defining the scope of
‘‘waters of the United States.’’ Rather,
the Clean Water Act’s objective—
restoring and maintaining the chemical,
physical, and biological integrity of the
nation’s waters—is set forth in the first
words of the first section of the statute.
And the statute is designed to address
that objective through a
‘‘comprehensive’’ Federal program of
pollution control. Indeed, the text of
section 101(b) is actually a recognition
of States’ authority to ‘‘prevent, reduce,
and eliminate pollution’’ and provide
support for the Administrator’s exercise
of his or her authority to advance the
objective of the Clean Water Act.
The text of section 101(b) also
expressly recognizes States’ role in
administering the Federal permitting
programs under section 402 of the Clean
Water Act:
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It is the policy of Congress that the States
manage the construction grant program under
this chapter and implement the permit
programs under sections 1342 [402] and 1344
[404] of this title. 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, the text of section 101(b) as a
whole does not reflect a general policy
of deference to State regulation to the
exclusion of Federal regulation, which
would be inconsistent with Congress’s
enactment of the Clean Water Act
because of the failures of a statutory
scheme that relied primarily on State
enforcement of State water quality
standards. S. Rep. No. 92–414, 92d
Cong., 1st Sess. 7 (1971) (observing that
prior statutes had been ‘‘inadequate in
every vital aspect’’). Instead, section
101(b) sets forth a policy focused on
preserving the responsibilities and
rights of States to work to achieve the
objective of the Act. Those rights and
responsibilities are to prevent, reduce,
and eliminate 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 or her Clean Water Act
authority, and implementing the Act’s
regulatory permitting programs, in
partnership and with technical and
financial support from the Federal
Government.
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The agencies’ interpretation and
consideration of section 101(b) in this
rule 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,
e.g., Arkansas v. Oklahoma, 503 U.S.
91, 101 (1992) (stating that the Act
‘‘anticipates a partnership between the
States and the Federal government’’ to
meet the ‘‘shared objective’’ in section
101(a), with the Federal Government
setting pollutant discharge limitations
and States implementing water quality
standards for their respective
waterbodies); Int’l Paper Co. v.
Ouellette, 479 U.S. 481, 489–90 (1987)
(describing section 101(b) as allowing
the Federal Government to delegate
administration of point source pollution
permits to States and allowing States to
establish more stringent discharge
limitations than Federal requirements);
Train v. Colo. Pub. Interest Grp., 426
U.S. 1, 16 & n.13 (1976) (describing
section 101(b) as providing States
authority to develop permit programs
and establish standards more stringent
than those under the Clean Water Act);
see also City of Milwaukee v. Illinois,
451 U.S. 304, 341 (1981) (Blackmun, J.,
dissenting) (describing section 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). While this rule does
not directly establish or alter a Clean
Water Act program, these decisions
informed the agencies’ deliberations
because the definition of ‘‘waters of the
United States’’ affects the scope of Clean
Water Act programs.
The agencies have also carefully
considered the policy in section 101(b)
as it relates to the Clean Water Act’s
objective in section 101(a). The Clean
Water Act’s structure makes clear that
section 101(a) sets forth 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 Clean
Water Act. The agencies interpret its
placement and its simple, declarative,
and overarching statement as a powerful
expression by Congress that merits
substantial 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
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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), (g). Just as none
of those policies plays a central role in
defining the scope of the Clean Water
Act, neither should section 101(b) be
given such prominence as to undermine
Congress’s stated objective. The
prominently placed and single
expression of the Clean Water Act’s
overarching objective in section 101(a)
merits greater weight in the agencies’
decision-making than any of the four
congressional policies expressed in
section 101 which, while important,
appear subordinate to the objective—
particularly given the statutory text and
structure. To the extent there is
ambiguity, the agencies have been
delegated the authority to define
‘‘waters of the United States’’ and again
conclude based on the statutory text and
structure, and confirmed by the
legislative history, that the overarching
objective of the Act merits greater
weight. The agencies have also
thoroughly considered the other policies
in section 101 of the Act, especially
section 101(b) as discussed in this
section of the preamble.
The remainder of the Clean Water
Act’s text also demonstrates how
important this objective was to
Congress. In the Clean Water Act itself,
Congress refers to the objective of the
Act approximately a dozen times,
including in sections 104, 105, 117, 120,
217, 301, 303, 304, 305, 308, 319, 402,
516, 518, and 603. The repeated
reference to the objective highlights the
importance of the Clean Water Act’s
objective to the statute as a whole,
supporting the agencies’ giving
substantial weight to this provision.
Section 101(b), in contrast, is not
referred to elsewhere in the Clean Water
Act.
Congress itself defined the contours of
how it expected the agencies to both
achieve its objective in section 101(a)
and implement its policy in section
101(b) through the rest of the provisions
of the Clean Water Act. Notably, a
narrow definition of ‘‘waters of the
United States’’ would not uniformly
boost State authority as that definition
is foundational to the scope of all of the
Clean Water Act’s programs, including
those in which the States are assigned
authority. Indeed, in implementing
Clean Water Act regulatory
requirements, States can have more
powerful and holistic tools than they
would have in implementing State-only
laws and regulations. For example,
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section 401 requires State certification
for federally licensed projects within a
State’s borders. A narrow definition of
‘‘waters of the United States’’ would
thus actually limit States’ ability to
protect waters within their borders.
Similarly, a narrow definition would
limit the ability of a State to provide
input during the permitting process for
out-of-state section 402 and 404 permits
that may affect its waters. See 33 U.S.C.
1341, 1342(b), 1344(h)(1)(E).
The agencies’ careful balancing of
section 101(a) and 101(b) in this rule is
also informed by and consistent with
the Court’s decision in SWANCC,
wherein the Court stated: ‘‘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. . . .’ We thus read the
statute as written to avoid the
significant constitutional and federalism
questions.’’ 531 U.S. at 174 (citing 33
U.S.C. 1251(b)). 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, this
rule—by limiting jurisdiction only to
those waters that significantly affect the
integrity of waters where the Federal
interest is indisputable (traditional
navigable waters, the territorial seas,
and interstate waters)—avoids
constitutional and federalism concerns.
Under the Commerce Clause,
Congress can regulate: (1) the channels
of interstate commerce; (2) persons or
things in interstate commerce; and (3)
activities that substantially affect
interstate commerce. United States v.
Lopez, 514 U.S. 549, 558–59 (1995).
Regulation of ‘‘waters of the United
States’’ as interpreted by this rule is a
valid exercise of Congress’s power
under at least the first Lopez category.
It is a well-settled proposition that
Congress’s power to regulate channels of
interstate commerce also includes the
power to adopt ‘‘appropriate and
needful control of activities and
agencies which, though intrastate, affect
that commerce.’’ Rapanos, 547 U.S. at
782–83 (citing Oklahoma ex rel. Phillips
v. Guy F. Atkinson Co., 313 U.S. 508,
525–26 (1941)). Traditional navigable
waters are squarely within Congress’s
power to regulate under its authority
over the channels of interstate
commerce. And ‘‘[i]t has long been
settled that Congress has extensive
authority over this Nation’s waters
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under the Commerce Clause’’ as
channels of interstate commerce. See
Kaiser Aetna v. United States, 444 U.S.
164, 173 (1979). Indeed, Congress has
enacted ‘‘numerous laws touching
interstate waters.’’ City of Milwaukee,
406 U.S. at 101. Congress has broad
power to keep the channels of
commerce free from injurious uses. See,
e.g., Pierce Cnty. v. Guillen, 537 U.S.
129, 146–47 (2003); Lopez, 514 U.S. at
558; Perez v. United States, 402 U.S.
146, 150 (1971); Caminetti v. United
States, 242 U.S. 470, 491 (1917); The
Lottery Case (Champion v. Ames), 188
U.S. 321, 346–47 (1903). Thus, courts
have recognized that the power over
traditional navigable waters as channels
of commerce includes ‘‘the power to
regulate waters to limit pollution,
prevent obstructions to navigation,
reduce flooding, and control watershed
development.’’ United States v.
Hubenka, 438 F.3d 1026, 1032 (10th Cir.
2006) (citations omitted). As noted
earlier, Congress directed that the Clean
Water Act ‘‘be given the broadest
possible constitutional interpretation,’’
S. Conf. Rep. No. 92–1236, 92d Cong.,
2d Sess. 144 (1972), and 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. Va. Surface Mining & Reclamation
Ass’n, 452 U.S. 264, 282 (1981). The
Supreme Court has stated that the term
‘‘navigable’’ must be given some
meaning in defining ‘‘waters of the
United States.’’ SWANCC, 531 U.S. at
172; Rapanos, 547 U.S. at 779
(Kennedy, J., concurring in the
judgment). The agencies’ construction of
the Clean Water Act does that by
defining ‘‘waters of the United States’’
to include traditional navigable waters,
the territorial seas, and interstate waters,
and those waters that significantly affect
those waters. But while Congress was
utilizing only one prong of its
Commerce Clause authority, that prong
is nevertheless broad. Indeed, ‘‘there is
no reason to believe Congress has less
power over navigable waters than over
other interstate channels,’’ such that
Congress cannot regulate non-navigable
waters in order to protect water quality
in traditional navigable waters. United
States v. Deaton, 332 F.3d 698, 707 (4th
Cir. 2003). This rule and the significant
nexus standard are squarely within the
prong of Commerce Clause authority
that Congress utilized in enacting the
Clean Water Act and within the
authority Congress delegated to the
agencies under the Act. Both the rule
and the standard are based on protecting
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3045
traditional navigable waters, the
territorial seas, and interstate waters
from the effects of upstream pollution.
Finally, in considering sections 101(a)
and 101(b) for purposes of interpreting
the scope of ‘‘waters of the United
States,’’ the agencies conclude that 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 (1971) at
5. 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 Clean Water 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. With effluent
limits, the Administrator can require the
best control technology.’’ S. Rep. 92–414
at 8. 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. Tribes
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and States play a vital role in the
implementation and enforcement of the
Clean Water Act, and this rule does not
change that framework. Instead, this
rule reinforces that framework by
establishing limitations that reflect
careful consideration of how best to
identify those waters for which Federal
regulation is necessary to ensure the
protection of the waters at the core of
Congress’s authority and interest and
those for which it is not.
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. at 133.
More recently, the Supreme Court in
Maui also noted that: ‘‘Prior to the Act,
Federal and State Governments
regulated water pollution in large part
by setting water quality standards. 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.’’ 140 S. Ct. at 1468 (citations
omitted).
With respect to States’ responsibilities
and rights under section 101(b), Justice
Kennedy in Rapanos cited State amici
briefs that ‘‘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 City of Milwaukee 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., including a ‘‘uniform
system of interstate water pollution
regulation,’’ Arkansas v. Oklahoma, 503
U.S. 91, 110 (1992).
An overly narrow definition of
jurisdictional waters would threaten a
return to pre-1972 regime, would
exclude from Federal protection waters
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that significantly affect paragraph (a)(1)
waters, and would risk removing from
the statutory scheme instances of
interstate pollution the 1972
amendments were designed in part to
address. Nationwide pollution controls
are critical to protecting water quality in
downstream States because downstream
States have limited ability to control
water pollution sources in upstream
States. See Int’l Paper Co. v. Ouellette,
479 U.S. at 490–91. Several commenters
stated that, under the 2020 NWPR,
certain States were subject to harm from
increased pollution flowing through
interstate waters from upstream States.
In addition, commenters noted that the
water quality in States bordering the
Great Lakes depended on adequate
protection in other Great Lakes States,
some of which removed clean water
regulations following promulgation of
the 2020 NWPR. The consequences of
water pollution discharged in one State
and flowing to another are also
economic in nature. Such pollution also
destroys or diminishes the value of
water to ‘‘public water supplies,
propagation of fish and wildlife,
recreational purposes, and agricultural,
industrial, and other purposes’’
protected by the Clean Water Act. 33
U.S.C. 1313(c)(2)(A).
Moreover, an overly narrow definition
of ‘‘waters of the United States’’ would
substantially impinge upon States’
responsibilities and rights under section
401 of the Clean Water Act. It is only
through that provision of the Act that
States have the authority to grant, deny,
or waive certification of proposed
Federal licenses or permits that may
discharge into waters of the United
States.
By promulgating a rule interpreting
the Clean Water Act to cover waters that
meet the relatively permanent standard
or the significant nexus standard, the
agencies have appropriately construed
the Act to protect those waters
necessary to protect the integrity of
traditional navigable waters, the
territorial seas, and interstate waters,
while leaving regulatory authority over
all the waters that do not have the
requisite connection to paragraph (a)(1)
waters exclusively to the Tribes and
States. This construction respects the
statutory history that gave rise to the
Clean Water Act and gives effect to the
comprehensive nature of the Act, its
objective, and the many programs and
policies affected by the scope of ‘‘waters
of the United States’’ designed to meet
that objective. This definition also
ensures that States have sole authority
over waters that do not significantly
affect the paragraph (a)(1) waters clearly
protected by the Act.
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As discussed elsewhere, this rule
defines ‘‘waters of the United States’’ to
include tributaries, adjacent wetlands,
and paragraph (a)(5) waters that meet
the relatively permanent or significant
nexus standards (see section IV.C of this
preamble). This rule advances the Clean
Water Act’s objective by helping restore
and maintain the chemical, physical,
and biological integrity of traditional
navigable waters, the territorial seas,
and interstate waters—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), this
rule recognizes, preserves, and protects
the rights and responsibilities of Tribes
and States by leaving within their
purview all waters that do not
significantly affect the paragraph (a)(1)
waters of paramount Federal interest.
The specific jurisdictional standards in
this rule therefore bear a relationship to
the nature and extent of the Federal and
Tribal and State interests at play. This
line-drawing highlights the agencies’
deliberate and due consideration of
sections 101(a) and 101(b) in developing
this rule.
4. This Rule Is Both Generally Familiar
and Implementable
As described above in section IV.A of
this preamble, the agencies in this rule
are interpreting ‘‘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 ‘‘waters of the United
States’’ informed by the text of the
relevant provisions of the Clean Water
Act and the statute as a whole, the
scientific record, relevant Supreme
Court precedent, and the agencies’
experience and technical expertise after
more than 45 years of implementing the
longstanding pre-2015 regulations
defining ‘‘waters of the United States.’’
It also reflects consideration of
extensive public comment.
The agencies have extensive
experience implementing the pre-2015
regulatory regime, as described further
below in this section, and this
experience will assist the agencies in
implementing this rule. The agencies’
approach to implementation of the
relatively permanent and significant
nexus standards is broadly consistent
with the pre-2015 regulatory regime, but
the agencies have clarified and refined
both the regulatory text and the
guidance on how the agencies intend to
implement these standards in order to
promote consistent Clean Water Act
protections for waters. For additional
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clarity, this rule includes a definition of
‘‘significantly affect’’ for purposes of
applying the significant nexus standard.
See section IV.C of this preamble.
Additionally, the agencies are
codifying the two familiar and
longstanding exclusions from the
definition of ‘‘waters of the United
States’’ for prior converted cropland and
waste treatment systems and adding
exclusions for features that were
generally considered non-jurisdictional
under the pre-2015 regulatory regime
(see section IV.C.7 of this preamble).
The features excluded under this rule
were excluded by regulation or
generally considered non-jurisdictional
in practice under the pre-2015
regulatory regime and each of the
subsequent rules defining ‘‘waters of the
United States.’’
The agencies have extensive
experience implementing the 1986
regulations. Moreover, the scientific and
technical information available to
inform the significant nexus analysis
and identify waters that meet the
relatively permanent standard has also
markedly improved over time and
become more readily available since the
agencies first started implementing both
standards. See section IV.G of this
preamble. 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. The agencies have continued to
implement the 1986 regulations
consistent with the Rapanos Guidance
in response to court decisions.
The agencies repromulgated the 1986
regulations in the 2019 Repeal Rule and
implemented those rules nationwide
until June 22, 2020, when the 2020
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 this
approach ‘‘will provide greater
regulatory certainty and national
consistency while the agencies consider
public comments on the proposed [2020
NPWR].’’ Id. at 56660. To further justify
a return to the 1986 framework, the
agencies noted that ‘‘[t]he agencies, their
co-regulators, and the regulated
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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, in their
comments to the 2019 Repeal Rule
proposal, 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.63
Further, in responding to comments
on the 2019 Repeal Rule proposal
asserting that the agencies should not
return to the pre-2015 regulatory regime
because that regime would reduce
regulatory certainty 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.’’ 64 84 FR 56660 (October 22,
2019). Even after the 2020 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
63 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.’’).
64 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.
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implementation of the 2020 NWPR in
that State.
Like the past three presidential
Administrations, courts have also found
that the 1986 regulations, implemented
consistent with the Rapanos standards,
provide an appropriate regulatory
framework to implement the Clean
Water Act. Indeed, in staying the 2015
Clean Water 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 Clean Water
Rule. In re EPA & Dep’t of Def. Final
Rule, 803 F.3d 804, 808 (6th Cir. 2015),
vacated, 713 Fed. Appx. 489 (6th Cir.
2018). In doing so, the court recognized
that returning to the status quo meant
returning to the pre-2015 regulatory
regime—not the 1986 regulations. See
id. at 806 (finding that ‘‘the status quo
at issue is the pre-[2015 Clean Water
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 2020 NWPR,
the Arizona district court found that
returning to the pre-2015 regulatory
regime would provide for a regime that
‘‘is familiar to the Agencies and
industry alike.’’ See Pascua Yaqui Tribe
v. EPA, 557 F. Supp. 3d 949, 956 (D.
Ariz. 2021).
The agencies acknowledge that the
need for case-specific analyses will
continue under this rule 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. The agencies’
experience suggests that the number of
these analyses will be limited.
Historically, only approximately 12% of
resources assessed in approved
jurisdictional determinations using the
Rapanos Guidance required a
significant nexus analysis.65 And those
significant nexus assessments often
resulted in a conclusion that the
resource, either alone or in combination
with similarly situated waters, did not
meet the significant nexus standard.
Moreover, the agencies have provided
more clarity in this rule by: adding
limitations to the scope of the definition
to the rule text; adding a definition of
‘‘significantly affect’’ that identifies the
65 It is the agencies’ expectation that the number
of significant nexus analyses will increase under
this rule due to the assessment of paragraph (a)(5)
waters under the significant nexus standard, but the
agencies do not expect a corresponding increase in
positive jurisdictional determinations. See section
IV.C.6 of this preamble for discussion of the
agencies’ intentions for implementation of
paragraph (a)(5).
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functions and factors to be evaluated as
part of a significant nexus analysis;
adding exclusions to the rule;
restructuring and streamlining the 1986
regulations; and drawing on more than
a decade of post-Rapanos
implementation experience to provide
additional implementation guidance
and resources. These improvements,
taken together, substantially reduce any
inefficiencies that may be presented by
the rule’s case-specific approach.
Finally, as discussed above, the nature
of the Clean Water Act’s requirements in
general can be a fact-based, case-specific
inquiry and is not limited to whether a
water meets the definition of ‘‘waters of
the United States.’’ The inquiry is an
important one, for both discharges and
the environment.
This rule is both consistent with the
Clean Water Act’s statutory text and
purposes and its framework is
longstanding and familiar to regulated
parties and regulators alike. Moreover,
all definitions of ‘‘waters of the United
States,’’ including the 2020 NWPR,
require some level of case-specific
analysis. Implementation of this 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 IV.G of
this preamble). Accordingly, the
agencies have concluded that this rule
is consistent with the Clean Water Act
and that its clarity and familiar
regulatory framework improve its
implementability.
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, learning as they
did so. 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
Rapanos Guidance. Of those, tens of
thousands 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 pre-2015 regulatory regime
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consistent with the relatively permanent
standard and the significant nexus
standard. Significant nexus
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 adjacent to a
perennial tributary and separated by a
levee, to a non-relatively permanent
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.
Through this experience, the agencies
developed wide-ranging technical
expertise in assessing the hydrologic
flowpaths along which water and
materials are transported and
transformed and that determine the
degree of chemical, physical, or
biological connectivity and effects to
paragraph (a)(1) waters. The agencies
have also become deeply familiar with
the variations in climate, geology, and
terrain within and among watersheds
that affect the functions (such as the
transformation or filtering of pollutants)
performed by streams, open waters, and
wetlands for paragraph (a)(1) waters.
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, gage data, soil surveys,
National Wetlands Inventory maps,
floodplain maps, watershed studies,
modeling tools, scientific literature and
references, and field work. As discussed
further in section IV.G of this preamble,
these tools have undergone important
technological advances and have
become increasingly available since the
Rapanos decision. For example, USGS,
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 flow
contributions of tributaries, including
intermittent and ephemeral streams, to
downstream traditional navigable
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waters, the territorial seas, or interstate
waters. 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 paragraph (a)(1) 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
IV.C.8.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 over more than a decade of
case-specific determinations across the
country, 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 substantial
experience with the 1986 regulations
and the two Rapanos standards. As the
agencies have developed their expertise
in implementing this regime, so have
State and Tribal co-regulators and
regulated entities, as well as interested
citizens who may play an important role
in the Act’s permitting process.
Individuals uncertain about the status of
waters on their property may obtain a
jurisdictional determination from the
Corps. The Corps does not charge a fee
for this service. See 33 CFR 325.1;
Regulatory Guidance Letter 16–01
(2016).
Due in part to the familiarity of this
regime, this rule will not undermine
serious reliance interests in an
alternative regime, including the 2020
NWPR, which the agencies have not
implemented for over a year following
the Arizona district court’s August 30,
2021 vacatur order. 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 (2009). The Court
acknowledged that if an agency’s ‘‘prior
policy has engendered serious reliance
interests,’’ id. at 515, those interests
cannot be ignored. However, the Court
emphasized that even in the case of
‘‘serious reliance interests,’’ ‘‘further
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justification’’ beyond a ‘‘reasoned
explanation . . . for disregarding facts
and circumstances that underlay or
were engendered by the prior policy’’ is
not needed. Id. at 515–16. This rule
does not implicate serious reliance
interests because, first, the agencies are
codifying a rule similar to the definition
currently being implemented
nationwide. As discussed in section V.A
of this preamble, this rule will establish
a regime that is generally comparable to
current practice, and this rule is
expected to generate de minimis costs
and benefits as compared to the pre2015 regulatory regime that the agencies
are currently implementing. Second,
members of the public, Tribes, and
States have been aware that the agencies
might reconsider the 2020 NWPR since
January 2021 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 2020 NWPR and deciding whether
to revise or replace the rule. See section
III.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
federalism and Tribal consultations. See
section III.C of this preamble. The
agencies received over 32,000
recommendation letters from the public
during pre-proposal outreach and over
114,000 comments on the proposed rule
during the public comment period. The
agencies also held a public hearing and
multiple listening sessions with Tribal,
State, and local governments during the
public comment period to listen to
feedback on the proposed rule from coregulators and a variety of stakeholders.
Third, the 2020 NWPR was only in
effect for approximately 14 months
before it was vacated by the Arizona
district court on August 30, 2021. See
Pascua Yaqui Tribe v. EPA, 557 F.
Supp. 3d 949 (D. Ariz. 2021). Less than
a month later, another district court
issued an order vacating the 2020
NWPR on September 27, 2021. Navajo
Nation v. Regan, 563 F. Supp. 3d 1164
(D.N.M. 2021). And several other
district courts remanded the 2020
NWPR without vacatur or without
addressing vacatur in six additional
cases, starting in July 2021.66 Following
66 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); Order, Waterkeeper All., Inc. v.
Regan, No. 3:18–cv–03521, ECF No. 125 (N.D. Cal.
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the vacatur orders, the agencies clarified
that the Corps will no longer rely on
approved jurisdictional determinations
issued under the 2020 NWPR in making
new permit decisions—although socalled ‘‘stand-alone’’ approved
jurisdictional determinations (i.e., those
that are not associated with a permit
action) will not be reopened prior to
their expiration date unless one of the
criteria for revision is met or if the
recipient requests that the Corps
provide a new approved jurisdictional
determination. See section IV.F of this
preamble for further discussion of the
status of approved jurisdictional
determinations issued under prior rules.
Interested parties have thus had over
a year to adapt to operating under the
pre-2015 regulatory regime in the
absence of the 2020 NWPR, including
ample notice of the implications of the
2020 NWPR’s vacatur on the validity of
approved jurisdictional determinations
issued thereunder. Moreover, as
discussed in this section, members of
the public are familiar with this rule’s
regulatory framework thereby
minimizing the potential disruption of a
change. Finally, even if serious reliance
interests were at issue, which they are
not, this rule provides a thorough and
reasoned explanation for the changed
definition of ‘‘waters of the United
States.’’
5. Public Comments Received and
Agency Responses
The agencies received numerous
comments on the basis for the proposed
rule, including comments about the
proposal’s consistency with the statute
and Supreme Court decisions and about
the proposal’s approach to various
categories of waters. The agencies have
fully considered these timely comments
and made changes to the rule to reflect
the comments, as discussed below. This
section contains summaries of these
comments and the agencies’ general
responses; a more comprehensive
response to these comments is in the
response to comments document
available in the docket for this rule at
Docket ID No. EPA–HQ–OW–2021–
0602.
Sept. 16, 2021) (same); Order, Conservation L.
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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a. Comments Regarding Consistency of
the Proposed Rule With the Text of the
Clean Water Act
Many commenters stated that the
proposed rule is consistent with the
Clean Water Act’s objective in section
101(a) to restore and maintain the
chemical, physical, and biological
integrity of the nation’s waters and
provided multiple reasons to support
that view, including the statutory text,
legislative history, and science. Some
commenters further asserted that the
statute requires the agencies to regulate
waters in addition to traditional
navigable waters, the territorial seas,
and interstate waters.
The agencies agree that the definition
of ‘‘waters of the United States’’ must be
designed to advance the objective of the
Clean Water Act. For the reasons
discussed in section IV.A.2 and IV.A.3
of this preamble, the agencies also
interpret the Act based on factors other
than the science and connectivity of
waters, including the text of the statute
as a whole and relevant Supreme Court
decisions. Further, while the definition
of ‘‘waters of the United States’’ is
designed to advance the objective of
restoring and maintaining the chemical,
physical, and biological integrity of
traditional navigable waters, the
territorial seas, and interstate waters—
i.e., the paragraph (a)(1) waters—this
rule covers additional waters that must
be protected to safeguard paragraph
(a)(1) waters. All ‘‘waters of the United
States’’ receive the full protections of
the Clean Water Act.
Commenters expressed various views
on the import of the word ‘‘navigable’’
in the statutory term ‘‘navigable
waters.’’ Some commenters asserted that
the proposed rule did not give enough
effect to the word ‘‘navigable,’’ while
others suggested that the agencies’
jurisdiction over ‘‘waters of the United
States’’ is limited to traditional
navigable waters. Further, some
commenters stated that Congress
intended to exercise only its traditional
commerce power over navigation rather
than the full extent of its authority
under the Commerce Clause. In contrast,
other commenters asserted that
legislative history demonstrates
Congress’s intent to assert broad
jurisdiction under the Clean Water Act
beyond navigable-in-fact waters.
The agencies agree that while the
Clean Water Act applies to ‘‘navigable
waters,’’ Congress also broadly defined
that term to include ‘‘the waters of the
United States.’’ 33 U.S.C. 1362(7). The
breadth of that definition reflects a
deliberate choice. The relevant House
bill would have defined ‘‘navigable
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waters’’ as the ‘‘navigable waters of the
United States, including the territorial
seas.’’ H.R. Rep. No. 92–911, 92d Cong.,
2d Sess. 356 (1972). But in conference
the word ‘‘navigable’’ was deleted from
that definition, and the conference
report urged that the term ‘‘be given the
broadest possible constitutional
interpretation.’’ S. Conf. Rep. No. 92–
1236, 92d Cong., 2d Sess. 144 (1972).
Additionally, the agencies disagree that
Clean Water Act jurisdiction is limited
to traditional navigable waters, as this
interpretation would render the Clean
Water Act narrower than the Rivers and
Harbors Act of 1899. Limiting Clean
Water Act jurisdiction to traditional
navigable waters is also contrary to the
views of all nine Supreme Court Justices
in Rapanos and would undo Congress’s
considered and deliberate choice to
expand Clean Water Act jurisdiction
beyond traditional navigable waters
because it found the prior statutes
limited to those waters insufficient.
Indeed, the Rapanos plurality
recognized that a wetland may be
treated as a covered water if it has a
continuous surface connection to a
‘‘relatively permanent’’ tributary that
‘‘connect[s] to’’ traditional navigable
waters, without any further inquiry into
the tributary’s navigability or status as a
link in a channel of commerce. 547 U.S.
at 742. The plurality further observed
that the 1977 Clean Water Act’s
authorization for States to administer
the section 404 program for ‘‘navigable
waters . . . other than’’ those used or
suitable for use ‘‘to transport interstate
or foreign commerce,’’ id. at 731
(quoting 33 U.S.C. 1344(g)(1)), ‘‘shows
that the Act’s term ‘navigable waters’
includes something more than
traditional navigable waters.’’ Id. (citing
SWANCC, 531 U.S. at 167; Riverside
Bayview, 474 U.S. at 133). And neither
Justice Kennedy nor the dissenting
Justices in Rapanos endorsed such a
jurisdictional limitation. See id. at 782–
83 (Kennedy, J., concurring in the
judgment); id. at 807–08 (Stevens, J.,
dissenting).
The agencies are mindful of the
Supreme Court’s decision in SWANCC
regarding the specific Commerce Clause
authority Congress exercised in enacting
the Clean Water Act. The SWANCC
Court observed that Congress signified
its intent to exercise its commerce
power over navigation with the
statement in the Conference Report for
the Clean Water Act that the conferees
‘‘intend that the term ‘navigable waters’
be given the broadest possible
constitutional interpretation.’’ 531 U.S.
at 168 n.3 (citing S. Conf. Rep. No. 92–
1236, at 144 (1972)). This rule ensures
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that waters that either alone or in
combination significantly affect the
integrity of traditional navigable waters,
the territorial seas, or interstate waters
are protected under the Clean Water
Act, and 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 Court has found that
‘‘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
Elec. Power Co., 311 U.S. 377, 426
(1940); see also Oklahoma ex rel.
Phillips v. Guy F. Atkinson Co., 313 U.S.
508, 525–26 (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.’’
(citations omitted)). The significant
nexus standard included in this final
rule ensures that the definition of
‘‘waters of the United States’’ remains
well within the bounds of the
Commerce Clause, consistent with the
text of the statute and the intent of
Congress, and informed by the decision
in SWANCC.
Some commenters suggested that the
agencies cannot rely on the Clean Water
Act’s statutory objective or on science to
expand Federal jurisdiction beyond the
authority granted to the agencies by
Congress. However, this final rule does
not establish jurisdiction beyond the
scope of the Clean Water Act. Indeed, as
discussed in section IV.A of this
preamble, the agencies conclude that
the objective of the Clean Water Act
must be considered in defining ‘‘waters
of the United States’’ and 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. And since the
objective of the Clean Water Act is to
protect the water quality of the nation’s
waters, this rule must be informed by
science relevant to water quality, as
discussed in section IV.A.2.a of this
preamble. At the same time, the
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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, the limitations established
in this rule are based on the agencies’
consideration of the text of the relevant
provisions of the Clean Water Act and
the statute as a whole, the scientific
record, relevant Supreme Court case
law, and the agencies’ experience and
technical expertise after more than 45
years of implementing the longstanding
pre-2015 regulations defining ‘‘waters of
the United States.’’ The agencies thus
have established a definition of ‘‘waters
of the United States’’ within the
authority granted to the agencies by
Congress.
Commenters also expressed various
views about the import of Clean Water
Act section 101(b). Some commenters
asserted that the agencies must read
sections 101(a) and 101(b) of the Clean
Water Act together in a manner that
recognizes States’ traditional authority
over their water resources and
contended that the agencies did not
adequately consider section 101(b) in
developing the proposed rule. In
contrast, other commenters asserted that
section 101(b) is not intended to serve
as a limit on Federal jurisdiction, and
some of these commenters further
suggested that the agencies improperly
relied on section 101(b) to limit the
scope of ‘‘waters of the United States’’
in the proposed rule. As discussed in
section IV.A of this preamble and
section V.A of the preamble to the
proposed rule, the agencies have
carefully, and appropriately, balanced
consideration of sections 101(a) and
101(b) in deciding in the rulemaking
which waters are subject to Clean Water
Act jurisdiction.
Additionally, multiple commenters
asserted that a water that is not subject
to Federal jurisdiction does not
necessarily lack environmental
protections because such waters may be
subject to Tribal, State, or local
regulations. Relatedly, some
commenters suggested that improving
and maintaining water quality is best
achieved through partnerships and that
the agencies should work with State and
local governments in developing a
definition of ‘‘waters of the United
States.’’ The agencies recognize that
waters that are not jurisdictional under
the Clean Water Act do not necessarily
lack environmental protections under
potential Tribal, State, or local laws.
However, Congress enacted the Clean
Water Act precisely because of the
failures of a statutory scheme that relied
primarily on State water quality
standards. In 1948, Congress enacted the
Federal Water Pollution Control Act, ch.
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758, 62 Stat. 1155 (June 30, 1948),
which focused on State water quality
standards rather than the conduct of
individual polluters. See EPA v.
California ex rel. State Water Res.
Control Bd., 426 U.S. 200, 202–03
(1976). In 1972, Congress enacted the
Clean Water Act after concluding that
these prior efforts had been ‘‘inadequate
in every vital aspect.’’ S. Rep. No. 414,
92d Cong., 1st Sess. 7 (1971). The Clean
Water Act was a ‘‘ ‘complete rewriting’ ’’
of existing law, designed to ‘‘establish
an all-encompassing program of water
pollution regulation.’’ City of
Milwaukee, 451 U.S at 317–18 (1981)
(citation omitted).
More recently, the Supreme Court in
Maui identified a key dividing line
between the areas where Congress
intended to create a comprehensive
floor of Federal water quality
protections and those areas generally
left to the States, observing that ‘‘the
structure of the [Clean Water Act]
indicates that, as to groundwater
pollution and nonpoint source
pollution, Congress intended to leave
substantial responsibility and autonomy
to the States.’’ 140 S. Ct. at 1471 (citing
Clean Water Act section 101(b)). The
Clean Water Act thus sets a baseline of
Federal protection for waters that meet
the definition of ‘‘waters of the United
States’’ and authorizes States to be more
protective than the Act while also
leaving substantial responsibility and
autonomy to the States over those
waters that do not have a significant
nexus to the core waters covered by the
Act. The agencies also agree that
partnerships with Tribes, States, and
local governments are important and
can help facilitate meeting the objective
of the Act and have coordinated with
these entities over the course of this
rulemaking to ensure that they had
opportunities to provide input on this
rule and will continue to work with
Tribes and States to implement this
rule.
b. Comments Regarding Supreme Court
Case Law and the Significant Nexus and
Relatively Permanent Standards
Many commenters addressed the legal
standard for determining the controlling
opinion in Rapanos. In particular, many
commenters cited Marks v. United
States, 430 U.S. 188 (1977) to support
assertions around what controlling legal
principles may be derived from the
opinion of five or more Supreme Court
Justices when there is no majority.
Relying on Marks, some of these
commenters asserted that the Rapanos
plurality opinion should control the
definition of ‘‘waters of the United
States,’’ while other commenters stated
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that Marks allows for use of either the
plurality’s relatively permanent
standard or Justice Kennedy’s
significant nexus standard to assess
Clean Water Act jurisdiction. As
discussed above, the applicability of
Marks is not the relevant inquiry for
purposes of this rule. Rather, this rule
reflects the agencies’ interpretation of
the statute, informed by Supreme Court
precedent, not an interpretation of the
Rapanos decision.
The agencies received many
comments on the proposed rule’s
reliance on and approach to the
significant nexus standard. As
explained in section IV.A.3.a of this
preamble, the agencies have concluded
that the significant nexus standard is
consistent with the statutory text and
legislative history, advances the
objective of the Clean Water Act, is
informed by the scientific record and
Supreme Court case law, and
appropriately considers the policies of
the Act. The agencies have the authority
to define the scope of the term
‘‘navigable waters,’’ and they are
exercising that authority in this rule. A
principal advantage of the significant
nexus standard is that it focuses directly
and specifically on protecting the
integrity of those waters in which the
Federal interest is indisputable—
traditional navigable waters, the
territorial seas, and interstate waters.
Further, while the agencies disagree that
this rule’s significant nexus standard is
inconsistent with Justice Kennedy’s
concurring opinion in Rapanos (as some
commenters had suggested), this rule
represents the agencies’ interpretation of
the statute, not an interpretation of
Rapanos. The agencies have concluded
that the significant nexus standard as
established in this rule is the best
interpretation of the statute and that the
relatively permanent standard in the
rule provides important efficiencies and
additional clarity for regulators and the
public. Thus, the rule gives effect to the
Clean Water Act’s broad terms and
environmentally protective aim as well
as its limitations.
Some commenters suggested that the
significant nexus standard is unclear or
produces inconsistent results. In
response to this concern, the agencies
have established a definition of
‘‘significantly affect’’ in this rule,
provided additional guidance on
applying the significant nexus standard,
and identified implementation tools and
resources that will work together to
provide clarity and further consistency
in implementing the significant nexus
standard (see section IV.C.9 and section
IV.G of this preamble). The agencies
have concluded that these actions, along
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with the agencies’ extensive experience
making determinations under the
significant nexus standard, will increase
the clarity and consistency of
determinations of jurisdiction.
Several commenters discussed
whether the proposed rule is consistent
with Justice Scalia’s plurality opinion in
Rapanos and expressed various views
about the proper interpretation of that
opinion. As discussed in section
IV.A.3.a of this preamble, the agencies
have concluded that use of the
plurality’s approach alone has no
grounding in the Clean Water Act’s text,
structure, or history and would upend
an understanding of the Act’s coverage
that has prevailed for decades.
Similarly, no Court of Appeals has held
that the plurality’s relatively permanent
standard is the sole test that may be
used to establish Clean Water Act
jurisdiction. Additionally, requiring a
continuous surface water connection, as
suggested by some commenters, would
add a requirement and language that do
not exist in the text of the plurality
opinion. The plurality opinion states
that ‘‘continuous surface connection’’ is
a ‘‘physical-connection requirement.’’
Rapanos, 547 U.S. at 742, 751 n.13
(referring to ‘‘our [the plurality’s]
physical-connection requirement’’ and
asserting that Riverside Bayview does
not reject ‘‘the physical-connection
requirement’’). The plurality does not
state that this standard is a continuous
surface water requirement. Therefore,
the agencies disagree that their
longstanding implementation of the
continuous surface connection
requirement (see Rapanos Guidance at 7
n.28), which does not require a
continuous flow of water between the
wetland and the jurisdictional water, is
inconsistent with the plurality opinion.
In addition, a continuous surface water
connection for wetlands is illogical
when many wetlands have surface water
only seasonally or intermittently or
meet the wetland hydrology factor
through saturated soils, a high water
table, or other indicators of hydrology,
and no scientific or regulatory definition
of wetlands demands year-round surface
water. See, e.g., 33 CFR 328.3(b) (2008);
NRC Report 3–5; see also 85 FR 22309
(explaining that ‘‘not all abutting
wetlands display surface water as the
wetland hydrology factor but rather may
have saturated soils, a high water table,
or other indicators of hydrology’’). See
section IV.C.5.c.ii of this preamble for
further discussion of the basis for the
agencies’ implementation of the
continuous surface connection
requirement in this rule.
Additionally, multiple commenters
suggested that the relatively permanent
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standard is easier to apply than the
significant nexus standard. While the
agencies recognize that the relatively
permanent standard can be easier to
apply in many instances, that is not
always the case. For example, in the
case of a tributary that flows directly
into a traditional navigable water, it may
be easier to demonstrate that the
tributary significantly affects the
chemical, physical, or biological
integrity of that paragraph (a)(1) water
due to its direct contribution of flow,
woody debris, and other materials and
its close distance to the traditional
navigable water than it would be to
demonstrate that the flow in that
tributary meets the relatively permanent
standard. More importantly, greater
simplicity that comes at the expense of
a profound mismatch with the Clean
Water Act’s design is not a valid basis
for determining the jurisdictional scope
of the Act. Cf. Maui, 140 S. Ct. at 1470,
1476 (rejecting similar arguments about
a need for bright-line certainty in favor
of a fact-specific test). Further, treating
the relatively permanent standard as the
exclusive criterion for Clean Water Act
coverage would lead to arbitrary and
illogical results. The 2020 NWPR did
rely primarily on the relatively
permanent standard and, in doing so,
introduced new implementation
uncertainties, including uncertainties
related to the rule’s case-specific typical
year analysis, which the 2020 NWPR
required for most categories of
jurisdictional waters and that proved
challenging to implement and yielded
arbitrary results (see section III.B.3 and
IV.B.3 of this preamble). In contrast, as
discussed above, the agencies now have
over a decade of nationwide experience
with the significant nexus standard, and
it has proven to be eminently
administrable. Moreover, the agencies
have made changes to this rule to
increase the ease of implementation of
the significant nexus standard.
Commenters also provided a variety
of views on the consistency of the
proposed rule with the SWANCC
Supreme Court decision. Some
commenters expressed concern that the
proposed rule would expand Federal
jurisdiction over potentially all State
waters, contrary to the Supreme Court’s
holding in SWANCC that—absent a
clear statement from Congress—the
Clean Water Act must be construed in
a manner that avoids federalism and
constitutional questions. The agencies
disagree that this rule is contrary to the
Supreme Court’s holding in SWANCC
and note that a principal advantage of
the significant nexus standard is that it
focuses directly and specifically on
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protecting traditional navigable waters,
the territorial seas, and interstate waters.
By design, the significant nexus
standard thereby permits jurisdiction
over waters only if they significantly
affect the waters over which Congress
has unquestioned authority. See, e.g.,
United States v. Lopez, 514 U.S. 549,
558–59 (1995); Hodel v. Va. Surface
Mining & Reclamation Ass’n, 452 U.S.
264, 282 (1981). Thus, an affirmative
finding under the significant nexus
standard is, by definition, a finding that
Congress’s core purpose is implicated.
Commenters’ constitutional concerns
are therefore fully addressed by this
rule.
In addition, a few commenters
asserted that the Supreme Court in
SWANCC rejected the notion that a
biological or ecological connection
alone is sufficient to support a finding
of significant nexus. This reading of
SWANCC is not correct. The Court in
SWANCC did not hold that the
particular ‘‘ecological considerations
upon which the Corps relied in
Riverside Bayview,’’ Rapanos, 547 U.S.
at 741—i.e., the potential importance of
wetlands to the quality of adjacent
waters—were irrelevant to Clean Water
Act jurisdiction. Rather, the Court held
that a different ecological concern—
namely, the potential use of the isolated
ponds as habitat for migratory birds—
could not justify treating those ponds as
‘‘waters of the United States.’’ See
SWANCC, 531 U.S. at 164–65, 171–72.
The Court found that this specific
ecological concern was not cognizable
because it was unrelated to ‘‘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. In
contrast, in this rule, the agencies,
through application of the significant
nexus standard, provide Federal
protections for adjacent wetlands and
other categories of waters based on their
importance to the chemical, physical, or
biological integrity of traditional
navigable waters, the territorial seas,
and interstate waters. In addition, 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)
(emphasis added). Among the means to
achieve the Clean Water Act’s objective,
Congress established an interim national
goal to achieve wherever possible
‘‘water quality which provides for the
protection and propagation of fish,
shellfish, and wildlife and provides for
recreation in and on the water.’’ 33
U.S.C. 1251(a)(2). Therefore, the
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agencies disagree that consideration of
biological effects on paragraph (a)(1)
waters is inconsistent with the Clean
Water Act.
Finally, several commenters asserted
that the Clean Water Act requires
broader protections than those afforded
by the significant nexus standard and
relatively permanent standard. The
agencies agree that the Clean Water Act
requires broader protection than the
relatively permanent standard, but have
concluded, as explained in section
IV.A.3 of this preamble, that the
significant nexus standard is the best
construction of the scope of the Clean
Water Act.
c. Comments Regarding Categories of
Waters in This Rule
Multiple commenters expressed
concern that the proposed rule would
exceed the agencies’ statutory authority
by providing for jurisdiction over broad
categories of waters (for example,
tributaries) that the commenters
asserted are not within the limits of the
Clean Water Act pursuant to Rapanos.
The agencies disagree. As explained
above, this rule reflects the agencies’
independent judgment on the scope of
‘‘waters of the United States’’ based on
the text of the relevant provisions of the
Clean Water Act and the statute as a
whole, the objective and history of the
Clean Water Act, the scientific record,
the agencies’ experience and technical
expertise, and other relevant Supreme
Court cases. This rule reflects carefully
tailored modifications to the 1986
regulations to incorporate both the
relatively permanent standard and the
significant nexus standard such that the
waters covered by the definition are
within the limits of the Clean Water Act.
Many commenters discussed the
agencies’ legal authority to assert
jurisdiction over tributaries, including
specific types of tributaries (e.g.,
ephemeral, intermittent, and perennial).
Some commenters asserted that
providing for jurisdiction over
ephemeral and intermittent streams in
the definition of ‘‘waters of the United
States’’ is not supported by Rapanos. In
this rule, the agencies are neither
categorically including nor categorically
excluding ephemeral and intermittent
tributaries. Nor are the agencies
codifying the opinions in Rapanos.
Rather, the agencies are interpreting the
phrase ‘‘waters of the United States’’ to
include tributaries that meet either the
significant nexus standard or the
relatively permanent standard based on
their conclusions in section IV.A of this
preamble. Further, there is nothing in
the text of the statute or its legislative
history that excludes some categories of
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tributaries based on their flow regime.
Indeed, as discussed further below, the
best available science demonstrates that
ephemeral and intermittent streams can
significantly affect the chemical,
physical, and biological integrity of
paragraph (a)(1) waters—i.e., traditional
navigable waters, the territorial seas,
and interstate waters.
Multiple commenters suggested that,
pursuant to Supreme Court precedent
and the Clean Water Act, jurisdiction
over non-navigable tributaries should be
limited to tributaries (1) containing
clearly discernible features and
contributing consistent flow into
traditional navigable waters; or (2) that
carry a volume of water needed for
navigable capacity of a traditional
navigable water; or (3) of a quality
needed for interstate commerce, where
impairment of water quality would have
a negative effect on interstate commerce.
The agencies disagree that the case law,
the statute, or the Constitution provide
these precise limitations on the scope of
tributaries covered by the Clean Water
Act. The text of ‘‘navigable waters,’’ and
of its specialized definition, does not
include particular flow requirements.
As discussed further below, the agencies
have concluded that tributaries that
meet either the relatively permanent
standard or the significant nexus
standard are ‘‘waters of the United
States,’’ and flow is a consideration
under both standards. These limitations
are informed by Supreme Court case law
and designed to be well within
constitutional limits.
In contrast, other commenters
asserted that tributaries should be
categorically jurisdictional rather than
subject to a case-specific analysis and
that the Rapanos decision supports a
categorical approach. The agencies agree
that Justice Kennedy’s concurring
opinion in Rapanos did not reject the
agencies’ then-existing regulations
governing tributaries, which were more
categorical than this rule. 547 U.S. at
781; see also id. at 761. More broadly,
it is a well-established principle of
administrative law that agencies may
choose to proceed via rulemaking or
adjudication. NLRB v. Bell Aerospace
Co. Div. of Textron, Inc., 416 U.S. 267,
294 (1974) (‘‘[T]he choice between
rulemaking and adjudication lies in the
first instance within the [agency’s]
discretion.’’). With respect to the
significant nexus standard in particular,
Justice Kennedy stated that the agencies
could proceed to determine tributaries
and their adjacent wetlands
jurisdictional through regulations or
adjudication. See Rapanos, 547 U.S. at
780–81. As explained in section
IV.A.3.a.iii of this preamble, the
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agencies have concluded that
adjudication of which tributaries are
within Clean Water Act protections,
through case-specific application of the
significant nexus standard or the
relatively permanent standard under
this rule, is appropriate. See section
IV.C.10 of this preamble for additional
guidance to landowners on
determinations of jurisdiction and the
appeals process for such
determinations.
Many commenters also discussed the
agencies’ legal authority to assert
jurisdiction over adjacent wetlands.
Some commenters stated that the
proposed rule’s relatively permanent
standard was inconsistent with the
Rapanos plurality opinion, asserting
that the plurality opinion requires a
continuous surface connection for
adjacent wetlands to be jurisdictional.
As stated elsewhere, the agencies
disagree that the relatively permanent
standard as applied in this rule is
inconsistent with the plurality opinion.
Under this rule, an adjacent wetland is
jurisdictional if there is a continuous
surface connection between that
adjacent wetland and a paragraph (a)(2)
impoundment or jurisdictional tributary
when the paragraph (a)(2) impoundment
or jurisdictional tributary is relatively
permanent.
In addition, some commenters
expressed concern that the proposed
rule’s aggregation of wetlands and the
relevant reach approach would be
contrary to Justice Kennedy’s significant
nexus standard, which the commenters
suggested requires that each wetland be
judged in its own right. The agencies
disagree that aggregation of wetlands
and their tributaries is inconsistent with
the significant nexus standard. First,
Justice Kennedy explicitly stated that
similarly situated waters should be
assessed for a significant nexus ‘‘alone
or in combination.’’ Rapanos, 547 U.S.
at 780. Justice Kennedy understood that
waters provide critical functions to
downstream waters in combination,
explaining: ‘‘With respect to wetlands,
the rationale for Clean Water Act
regulation is, as the Corps has
recognized, that wetlands can perform
critical functions related to the integrity
of other waters—functions such as
pollutant trapping, flood control, and
runoff storage. Accordingly, wetlands
possess the requisite nexus, and thus
come within the statutory phrase
‘navigable waters,’ if the wetlands,
either alone or in combination with
similarly situated lands in the region,
significantly affect the chemical,
physical, and biological integrity of
other covered waters more readily
understood as ‘navigable.’ ’’ Id. at 779–
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3053
780 (citing 33 CFR 320.4(b)(2)). And
Justice Kennedy’s understanding is
scientifically correct—though filling in a
single wetland might not on its own
materially influence a paragraph (a)(1)
water, its impact is more likely to be
significant when evaluated in
combination with other similarly
situated waters. Second, the agencies
interpret ‘‘waters of the United States’’
to include waters that meet the
significant nexus standard as codified in
this rule because the agencies have
determined, informed by the best
available science and the text, structure,
and legislative history of the Clean
Water Act, that this standard, including
the aggregation of waters authorized by
it, advances the objective of the Act. The
agencies have also established a
definition of ‘‘significantly affect’’ in
this rule that identifies the factors and
the functions for determining whether
the significant nexus standard is met,
thus ensuring that the agencies’
determinations of jurisdiction are based
on consistent application of sound
scientific principles.
Further, several commenters stated
that the agencies should assert
jurisdiction only over those wetlands
that directly abut other ‘‘waters of the
United States.’’ These commenters
asserted that doing otherwise would
exceed the constitutional limits of the
agencies’ Clean Water Act jurisdiction.
For the reasons discussed above, the
agencies disagree that only wetlands
that directly abut other ‘‘waters of the
United States’’ should be jurisdictional.
Moreover, as discussed elsewhere in
this preamble, the addition of the
significant nexus standard in this rule
ensures that the definition of ‘‘waters of
the United States’’ does not exceed
constitutional limits.
In contrast, several commenters
asserted that all adjacent wetlands—not
just those adjacent to the paragraph
(a)(1) waters—should be categorically
jurisdictional. Some of these
commenters suggested that providing
categorical protection for such wetlands
is necessary to achieve the Clean Water
Act’s statutory objective. The agencies
agree that providing categorical
protection of adjacent wetlands can be
a means of achieving the Act’s objective
but disagree that it is the only means. As
noted by Justice Kennedy, the agencies
can reasonably proceed to determine
which tributaries and their adjacent
wetlands are jurisdictional through
regulations or adjudication, see 547 U.S.
at 780–81; see also NLRB v. Bell
Aerospace Co. Div. of Textron, Inc., 416
U.S. at 294. With respect to wetlands
adjacent to tributaries, the agencies are
requiring case-specific determinations
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of whether such wetlands meet the
relatively permanent standard or the
significant nexus standard to be
jurisdictional under this rule.
Many commenters also addressed the
agencies’ legal authority to assert
jurisdiction over paragraph (a)(5) waters
(the category of waters described in
paragraph (a)(3) of the proposed rule).
Some commenters suggested that, per
the Supreme Court’s decision in
SWANCC, the agencies lack authority to
assert jurisdiction over paragraph (a)(5)
waters or that, under Rapanos, the
significant nexus standard should be
applied only to tributaries or wetlands
adjacent to tributaries, not to paragraph
(a)(5) waters. First, as explained further
in section IV.A.1 of this preamble, in
this rule the agencies are exercising the
authority granted to them by Congress to
construe and implement the Clean
Water Act and to interpret an
ambiguous term and its statutory
definition. Therefore, while the
agencies’ interpretation of the statute is
informed by Supreme Court decisions,
including Rapanos, it is not an
interpretation of SWANCC or the
multiple opinions in Rapanos, nor is it
based on an application of the Supreme
Court’s principles as set forth in Marks
to derive a governing rule of law from
a decision of the Court in a case such
as Rapanos where no opinion
commands a majority. Furthermore, the
agencies disagree that asserting
jurisdiction over any waters that meet
the significant nexus standard,
including any paragraph (a)(5) waters, is
inconsistent with SWANCC or Rapanos.
Based on the law, the science, and
agency expertise, the agencies conclude
that the significant nexus standard
applies to tributaries, adjacent wetlands,
and intrastate lakes and ponds, streams,
or wetlands not covered by other
categories (i.e., paragraphs (a)(3), (a)(4),
and (a)(5) waters under this rule).
Justice Kennedy’s explication of the
significant nexus standard applies to
each of these types of waters. 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’’—‘‘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 further explained that ‘‘[t]he
required nexus must be assessed in
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terms of the statute’s goals and
purposes. Congress enacted the law to
‘restore and maintain the chemical,
physical, and biological integrity of the
Nation’s waters,’ and it pursued that
objective by restricting dumping and
filling in ‘navigable waters’.’’ Id. at 779
(citing 33 U.S.C. 1251(a), 1311(a),
1362(12)). Justice Kennedy then
concluded that the term ‘‘waters of the
United States’’ encompasses wetlands
and other waters that ‘‘possess a
‘significant nexus’ to waters that are or
were navigable in fact or that could
reasonably be so made.’’ Id. at 759
(citation omitted). While Justice
Kennedy’s discussion of the application
of the significant nexus standard
focused on adjacent wetlands in light of
the facts of the cases before him, his
opinion is clear that he does not
conclude that the significant nexus
analysis applies only to adjacent
wetlands. As he explicitly states, ‘‘the
connection between a nonnavigable
water or wetland and a navigable water
may be so close, or potentially so close,
that the Corps may deem the water or
wetland a ‘navigable water’ under the
Act.’’ Id. at 767 (emphasis added).
Fundamentally, Justice Kennedy’s
significant nexus analysis is about the
fact, long acknowledged by Supreme
Court case law, that protection of waters
from pollution can be achieved only by
controlling pollution of upstream
waters. In addition, the Court in
SWANCC did not hold that ‘‘other
waters’’ (a category that has been
modified and codified in this rule as
paragraph (a)(5) waters) could never be
jurisdictional; rather it held that the
potential use of isolated ponds as
habitat for migratory birds could not be
used as the sole basis to justify treating
those ponds as ‘‘waters of the United
States.’’ See 531 U.S. at 164–65, 171–72.
Indeed, the SWANCC Court in
describing Riverside Bayview stated that
‘‘it was the significant nexus between
the wetlands and ‘navigable waters’ that
informed our reading of the CWA’’ in
that case. Id. at 167. In this rule, the
agencies are not protecting paragraph
(a)(5) waters based on their potential use
as habitat for migratory birds or based
on their use broadly in interstate
commerce as the 1986 regulations did.
Instead, this rule includes paragraph
(a)(5) waters on a case-specific basis
based on their importance to the
integrity of traditional navigable waters,
the territorial seas, and interstate waters
because they meet either the relatively
permanent standard or the significant
nexus standard.
Other commenters stated that the
proposed rule does not go far enough in
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protecting paragraph (a)(5) waters. The
agencies have concluded that this rule’s
reliance on the relatively permanent
standard and significant nexus standard
properly balances the Clean Water Act’s
broad statutory objective, while giving
meaning to the word ‘‘navigable.’’
Accordingly, the agencies are not
asserting jurisdiction over waters and
wetlands simply where ‘‘the use,
degradation or destruction of [such
waters] could affect interstate or foreign
commerce.’’ Cf. 33 CFR 328.3(a)(3)
(1999).
B. Alternatives to This Rule
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); see also FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009).
As discussed below, the agencies have
thoroughly considered alternatives to
this rule and have concluded that this
final rule best accomplishes the
agencies’ goals to promulgate a rule that
advances the objective of the Clean
Water Act, is consistent with Supreme
Court decisions, is informed 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
2020 NWPR. Although the 2020 NWPR
has been vacated, it is the text currently
in the Code of Federal Regulations. For
the reasons articulated in this preamble,
the agencies are changing their
approach from that of the 2020 NWPR
to interpreting the scope of ‘‘waters of
the United States.’’
1. 2015 Clean Water Rule
The agencies are not repromulgating
the 2015 Clean Water Rule. Unlike
aspects of the 2015 Clean Water Rule,
this rule is not based on categorical
significant nexus determinations.
Rather, this rule generally restores the
longstanding and familiar categories of
the 1986 regulations and establishes
jurisdictional limitations based on casespecific application of the relatively
permanent standard and the significant
nexus standard to certain categories of
waters in the rule.
Many commenters expressed support
for the 2015 Clean Water Rule because
they viewed it as informed by science,
and because under that rule certain
types of waters were categorically
jurisdictional, which eliminated the
need for extensive case-by-case
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jurisdictional determinations. Many
other commenters asserted that they did
not support the 2015 Clean Water Rule
because they viewed that rule as
expanding Federal jurisdiction over
waters that should not be jurisdictional.
The agencies have concluded that 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
quickly promulgate a durable rule that
retains the protections of the
longstanding regulatory framework and
avoids harms to important aquatic
resources, informed by the best
available science and consistent with
the agencies’ determination of the
statutory limits on the scope of the
‘‘waters of the United States,’’ informed
by relevant Supreme Court case law.
Moreover, agencies may choose to
proceed via rulemaking or adjudication.
NLRB v. Bell Aerospace Co., 416 U.S.
267, 294 (1974) (‘‘[T]he choice between
rulemaking and adjudication lies in the
first instance within the [agency’s]
discretion.’’). With respect to the
significant nexus standard in particular,
Justice Kennedy also stated that the
agencies could proceed to determine
tributaries and their adjacent wetlands
jurisdictional through regulations or
adjudication. See 547 U.S. at 780–81. As
explained in section IV.A.3.a.iii of this
preamble, the agencies have concluded
that the approach in this rule—i.e.,
providing categorical jurisdiction for
paragraph (a)(1) waters and for wetlands
adjacent to paragraph (a)(1) waters, and
adjudicating which waters in
paragraphs (a)(2) through (5) are ‘‘waters
of the United States’’ through casespecific application of the significant
nexus standard or the relatively
permanent standard under this rule—is
appropriate and fulfills the goals of the
agencies and the objective of the Clean
Water Act.
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2. 2019 Repeal Rule
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,67 but find
that this rule is preferable to the 2019
Repeal Rule for several reasons. As an
initial matter, like the 2019 Repeal Rule,
this rule seeks to return generally to the
67 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.’’).
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longstanding regulatory framework that
existed prior to the 2015 Clean Water
Rule, but this rule also restores 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 relevant
Supreme Court decisions. Additionally,
compared to the 2019 Repeal Rule, this
rule provides greater clarity by adding a
new definition of ‘‘significantly affect’’
and by streamlining and restructuring
the 1986 regulations, including by
consolidating certain provisions. This
rule also codifies a number of
exclusions for features that were
generally considered non-jurisdictional
under the pre-2015 regulatory regime
and thus provides more clarity and
certainty than the 2019 Repeal Rule.
Moreover, the agencies have
substantial 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 approach to the
significant nexus standard in 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 this
rule.
3. 2020 NWPR
The agencies have also evaluated the
2020 NWPR as an alternative to this
rule. After carefully considering the
2020 NWPR in light of the text,
objective, and legislative history of the
Clean Water Act, Supreme Court case
law, the best available scientific
information, and the agencies’
experience in implementing it for over
a year, the agencies do not find that the
2020 NWPR is a suitable alternative to
this rule.
a. The 2020 NWPR Failed To Advance
the Objective of the Clean Water Act
The agencies do not consider the 2020
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. at 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
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provisions use specific definitional
language to achieve this result,’’
including the phrase ‘‘navigable
waters’’). One critical example of the
2020 NWPR’s failure to advance the
Clean Water Act’s objective is its
removal of the significant nexus
standard without considering an
alternative approach to protecting
waters that significantly affect
paragraph (a)(1) waters. To be clear,
while the agencies view the significant
nexus standard as the best interpretation
of section 502(7) of the Clean Water Act,
the agencies do not view the Supreme
Court’s interpretations of the scope of
‘‘waters of the United States’’ as
requiring adoption of that approach.
Rapanos, 547 U.S. at 758 (Roberts, C.J.,
concurring). Yet the 2020 NWPR’s
rejection of the significant nexus
standard while failing to adopt any
alternative standard for jurisdiction that
adequately addresses the effects of
degradation of upstream waters on
paragraph (a)(1) waters, fails to advance
the Clean Water Act’s objective.
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 types of waters on
paragraph (a)(1) waters. For that reason,
evolving forms of this inquiry are
present in Riverside Bayview, SWANCC,
and Justice Kennedy’s concurring
opinion in Rapanos. The 2020 NWPR
rejected this scientific approach and
instead, for example, categorically
excluded ephemeral features without
appropriately considering scientific
information about their important
effects on the integrity of paragraph
(a)(1) waters. In addition, in limiting the
scope of protected wetlands to those
that touch other jurisdictional waters or
demonstrate evidence (which could
include a natural berm, bank, dune, or
similar natural feature) of a regular
surface water connection to other
jurisdictional waters, the 2020 NWPR
failed to appropriately consider the
many effects of other categories of
wetlands on paragraph (a)(1) waters. For
example, ephemeral streams that flow
directly into the Rio Grande (a
traditional navigable water) and
wetlands separated from the Mississippi
River (a traditional navigable water) by
artificial levees and that lack a direct
hydrologic surface connection to the
river in a typical year, would be nonjurisdictional under the 2020 NWPR, yet
both can have significant effects on
these traditional navigable waters.
The 2020 NWPR contended that the
drastic reduction in the scope of Clean
Water Act jurisdiction ‘‘pursues’’ the
objective of the Act because it would be
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supplemented by the Act’s nonregulatory programs as well as Tribal,
State, and local efforts. The 2020 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 disagree with the
2020 NWPR’s assertion that such
‘‘collective pursuit’’ of the objective of
the Clean Water Act based on these
programs and measures appropriately
considers the objective of the Act and
have concluded that the 2020 NWPR
did not advance the objective of the Act,
the proper measure under the statute
and Supreme Court case law of a rule
defining ‘‘waters of the United States.’’
The agencies agree with the 2020
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
Clean Water Act. The non-regulatory
Clean Water Act programs cited by the
2020 NWPR complement and support
the permitting programs at the core of
the Act, rather than limiting their
geographic scope. For example, the 2020
NWPR cited the Clean Water 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 Clean
Water Act, but they do not limit the
regulatory programs’ scope. To the
extent there is ambiguity as to the
effects of these non-regulatory programs
on the scope of the ‘‘waters of the
United States,’’ the agencies have
concluded based on the text and
structure of the statute that they are
complementary, rather than limiting.
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As discussed in section III.A 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 find that it is appropriate to
consider whether the definition of the
scope of waters to which the Clean
Water Act’s water pollution regulations
apply helps to achieve that objective.
Thus, the 2020 NWPR’s statement that
this 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 the 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 Clean
Water Act by assessing the water quality
effects of revising the definition of
‘‘waters of the United States.’’
The preamble to the 2020 NWPR also
cited the introductory policy provision
of the Clean Water Act in section 101(b),
to protect the ‘‘primary responsibilities
and rights of States to prevent, reduce,
and eliminate pollution’’ as a
justification, in part, for its linedrawing. For example, one of the most
environmentally significant decisions in
the 2020 NWPR was its categorical
exclusion of all ephemeral features from
Clean Water Act jurisdiction. The
agencies cited section 101(b) as a basis
for this exclusion, because the exclusion
would ‘‘respect[] State and Tribal land
use authority over features that are only
episodically wet during and/or
following precipitation events.’’ 85 FR
22319. Nothing in the agencies’
explanation, however, links 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
features and the nature or extent of State
authorities referenced in section 101(b).
Indeed, as discussed in section IV.A.c.i
of this preamble, available science
unequivocally demonstrates that
ephemeral features can implicate the
important Federal interest in the
protection of the integrity of traditional
navigable waters, the territorial seas,
and interstate waters. Likewise, the
2020 NWPR cited section 101(a) as
support for categorically excluding
ephemeral features, but again did not
explain how this decision relates to or
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advances the Clean Water Act’s
objective. 85 FR 22277 (April 21, 2020).
The 2020 NWPR similarly relied upon
the policy provision in section 101(b) as
a basis for its definition of adjacent
wetlands, in particular the decision to
exclude from consideration subsurface
hydrologic connections between a
wetland and an adjacent water when
determining jurisdiction. It stated,
‘‘balancing 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
2020 NWPR did not explain how
excluding consideration of subsurface
hydrologic connections relates to or
derives from the text of section 101(b),
and the agencies do not now discern
such a linkage. And as with the
definition of ‘‘tributaries,’’ the 2020
NWPR did not explain how this choice
relates to or advances the objective of
the Clean Water Act.
In sum, based on the text and
structure of the statute and Supreme
Court case law, the agencies have
determined that the 2020 NWPR is not
a suitable alternative to this rule
because it fails to advance the objective
of the Clean Water Act. The 2020 NWPR
does not establish either the significant
nexus standard or an alternative
standard that similarly advances the
objective of the Clean Water Act by
protecting waters, including ephemeral
features, wetlands, and paragraph (a)(5)
waters where they have a significant
effect on the chemical, physical, or
biological integrity of traditional
navigable waters, the territorial seas,
and interstate waters. Nor does the 2020
NWPR appropriately value the
importance of Federal programs in
achieving the objective of the Clean
Water Act.
b. The 2020 NWPR Was Inconsistent
With the Best Available Scientific
Information
The 2020 NWPR’s exclusion of major
categories of waters from the protections
of the Clean Water 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, as
many commenters on the proposed rule
noted, its categorical exclusion of
ephemeral features and large categories
of wetlands was inconsistent with the
scientific record before the agencies. In
addition, the 2020 NWPR’s limits on the
scope of protected wetlands to those
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that touch or demonstrate evidence of a
regular surface water connection to
other jurisdictional waters run counter
to the ample scientific information
demonstrating the effects of wetlands on
downstream waters, including
paragraph (a)(1) waters, when they have
other types of connections.
First, the definition of the term
‘‘tributary’’ in the 2020 NWPR
categorically excluded ephemeral
features from the regulatory protections
of the Clean Water Act, contrary to
scientific information conclusively
demonstrating the vital role these
streams can play in protecting the
integrity of downstream waters,
including paragraph (a)(1) 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.
2014 SAB Review at 22–23, 54 fig. 3.
While in the arid Southwest, streams
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 6–9. 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 2014 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. 2014 SAB Review
at 22.
Similarly, the 2020 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 paragraph (a)(1) waters. In
defining ‘‘adjacent wetlands,’’ the 2020
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.
Specifically, the rule 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
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evidence of a direct hydrologic surface
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 2020 NWPR stated that
the definition of ‘‘adjacent wetlands’’ is
‘‘informed by science.’’ Id. at 22314. Yet
the 2020 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 contradicted the
ample scientific information before the
agencies conclusively 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; 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) (‘‘Given 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.’’). As commenters
noted, under the 2020 NWPR’s
approach, if a river were surrounded by
hundreds of acres of wetland, building
a road or levee between a river and a
wetland complex could potentially
sever Clean Water Act protections for
the entire wetland complex.
The overwhelming scientific
information before the agencies weighs
decisively against the limited definition
of ‘‘adjacent wetlands’’ in the 2020
NWPR. Available scientific information
demonstrates the significant effects of
categories of wetlands excluded by the
2020 NWPR on the chemical, physical,
and biological integrity of paragraph
(a)(1) waters. For example, whereas the
2020 NWPR provided that wetlands
flooded by jurisdictional waters are only
protected if the flooding occurs in a
‘‘typical year,’’ the Science Report states
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 notes 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
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SAB Draft Commentary on the proposed
2020 NWPR states that the narrow
definition of ‘‘adjacent wetlands’’ in the
2020 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, have
concluded that excluding wetlands that
lack the limited types of surface water
connections to other jurisdictional
waters required by the 2020 NWPR
lacks scientific support.
The SAB’s assessment of the 2020
NWPR proposal recognizes that the
proposal 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) (hereinafter, ‘‘SAB
Commentary’’). The SAB Commentary
emphasizes 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 2020 NWPR stated that the
‘‘agencies’ decisions in support of this
rule have been informed by science.’’ 85
FR 22288 (April 21, 2020). For example,
the 2020 NWPR cited the concept of a
‘‘connectivity gradient’’ as a basis for
excluding ephemeral features. Id. (citing
the SAB Commentary). The 2020 NWPR
referred to the SAB Commentary’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
Commentary at 3). The 2020 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. 85 FR
22288 (April 21, 2020).
Upon careful review, the agencies
have concluded that the 2020 NWPR’s
reliance on the SAB’s recommendation
is out of context and is inconsistent
with the information in the SAB
Commentary as a whole. The
connectivity gradient the 2020 NWPR
cited was just a hypothetical example 68
68 The figure cited is captioned in part as
‘‘Hypothetical illustration of connectivity gradient
and potential consequences to downstream waters.’’
2014 SAB Review at 54 (emphasis added). Nowhere
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meant to illustrate a single 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
scientific information the agencies
provided in support of categorically
excluding ephemeral features does not
fully represent the discussion in the
cited SAB Commentary and runs
counter to key elements of the scientific
record before the agencies. SAB
Commentary at 2.
The 2020 NWPR also stated that the
line it drew between regulated and nonregulated wetlands, which excluded
large categories of wetlands covered by
previous regulatory regimes is
‘‘informed by science.’’ 85 FR 22314
(April 21, 2020). The 2020 NWPR cited
statements from the 2014 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 2014 SAB Review at 55); see
also id. at 22314 (citing the 2014 SAB
Review at 60 (stating ‘‘[s]patial
proximity is one important determinant
[influencing the connections] between
wetlands and downstream waters’’)). In
addition, the 2020 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).
Despite these citations, the 2020
NWPR’s definition of ‘‘adjacent
wetlands’’ was not based on proximity,
but instead on a ‘‘direct hydrologic
surface connection,’’ a factor that is
distinct from proximity. See id. at
22340. The 2020 NWPR’s definition of
‘‘adjacent wetlands’’ may exclude
wetlands fifteen feet away from
jurisdictional waters 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. Therefore, neither of the two
scientific rationales the 2020 NWPR
cited for its conclusions actually
support the lines drawn in that rule.
Many commenters agreed with the
agencies that the 2020 NWPR was
inconsistent with the best available
science. Some commenters asserted,
however, that the definition of ‘‘waters
of the United States’’ is a policy
interpretation that may be informed by
in its review does the 2014 SAB Review indicate
that this is the actual or only connectivity gradient.
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science but cannot be based on science
alone. As discussed in section IV.A.2 of
this preamble, the agencies agree that
science alone cannot dictate where to
draw the line defining ‘‘waters of the
United States.’’ But science is critical to
determining how to attain Congress’s
plainly stated objective to restore and
maintain the chemical, physical, and
biological integrity of the nation’s
waters and properly evaluating which
waters are the subject of Federal
jurisdiction due to their effects on
paragraph (a)(1) 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. The 2020
NWPR is not a suitable alternative to
this rule because it cannot advance the
objective of the Act given its lack of
scientific support.
c. The 2020 NWPR Was Difficult To
Implement and Yielded Inconsistent
Results
In addition to the above concerns, the
agencies’ experience implementing the
2020 NWPR for over a year made clear
that foundational concepts underlying
much of the 2020 NWPR were confusing
and difficult to implement. While any
rule that draws lines between
jurisdictional waters and nonjurisdictional waters will involve some
implementation challenges, the agencies
have found the challenges imposed by
the 2020 NWPR to be impracticable in
important respects.
Many commenters stated that the
agencies should retain the 2020 NWPR
because it was clear, pragmatic, and
easy to implement. For example,
commenters stated that the rule
provided ‘‘bright lines,’’ was based on
readily observable surface features, and
categorically excluded certain categories
of waters. The agencies recognize that
the regulatory text of the 2020 NWPR
contained categorical language and
referred to observable surface features.
However, the ‘‘bright lines’’ and surface
feature tests relied upon the concept of
‘‘typical year,’’ which, as other
commenters pointed out, and as
discussed further below, was extremely
challenging to implement and led to
arbitrary results. As a commenter
emphasized, contrary to statements
often made about the 2020 NWPR,
under that rule landowners could not
determine whether a stream or wetland
is jurisdictional by standing on their
property. Rather, the commenter stated
that property owners would need to
determine the source and timing of
flow, whether the stream flowed into a
navigable water off-property, whether
wetlands abutted a jurisdictional water,
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and whether a downstream segment
lacked sufficient flow or otherwise
broke jurisdiction. The commenter
asserted that many of these inquiries
would require the decision-maker to
trespass onto properties of others, or
guess. Furthermore, the commenter
stated that in many cases, critical
information that the rule required the
property owner to know—such as
whether a wetland is inundated by
flooding from a jurisdictional water in a
typical year—is not normally recorded.
This comment is consistent with the
agencies’ experience that the 2020
NWPR did not ‘‘provide[ ] clarity and
predictability for Federal agencies,
States, Tribes, the regulated community,
and the public.’’ See 85 FR 22252 (April
21, 2020). With respect to categorical
exclusions, this rule retains and codifies
a list of categorical exclusions, as did
the 2020 NWPR and the 2015 Clean
Water Rule. See further discussion in
section IV.C.7 of this preamble. The
challenges that the 2020 NWPR imposed
to establish jurisdiction for features that
it appears to define as jurisdictional,
and that significantly affect the integrity
of paragraph (a)(1) waters, further
undermine the 2020 NWPR’s viability as
an alternative to this rule.
i. ‘‘Typical Year’’ Metric
The ‘‘typical year’’ is a concept
fundamental to many of the 2020
NWPR’s definitions. 85 FR 22273 (April
21, 2020). Under the rule, tributaries
and lakes, ponds, and impoundments of
jurisdictional waters were only
jurisdictional if they had certain surface
water connections with a traditional
navigable water or the territorial seas at
least once in a typical year. 33 CFR
328.3(c)(6), (12). Two categories of
wetlands only met the adjacency test for
jurisdiction if they had a surface water
connection with other jurisdictional
waters once in a typical year. 33 CFR
328.3(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 2020
NWPR recommended, 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 2020 NWPR. For example, a recent
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study by the Corps found that
precipitation normalcy (as calculated
based on the methodology described in
the preamble to the 2020 NWPR) was
neither a reliable predictor of
streamflow normalcy, nor was it a
precise predictor of streamflow
percentiles, in an analysis of watersheds
across the United States.69 These
challenges undermine the 2020 NWPR’s
claim that it enhanced the
‘‘predictability and consistency of Clean
Water Act programs.’’ See 85 FR 22250
(April 21, 2020).
One of the significant implementation
challenges of the typical year metric is
that it can be difficult and sometimes
impossible to identify the presence of a
surface water connection in a typical
year. 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 surface water flows
connecting to a downstream
jurisdictional water. Similarly, though
many ponds or wetlands may be
frequently inundated by flooding from
another water, in arid areas those
features 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 2020 NWPR’s
jurisdictional test, agency staff would
probably not be able to determine that
they do, given how unlikely they would
be to observe these infrequent
connections. The difficulty of finding
the direct hydrologic connections
required by the typical year concept
during a field visit is exacerbated by the
fact that the 2020 NWPR discouraged
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 2020 NWPR, under that rule agency
staff often needed to 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
69 Sparrow, K.H, Gutenson, J.L., Wahl, M.D. and
Cotterman, K.A. 2022. Evaluation of Climatic and
Hydroclimatic Resources to Support the US Army
Corps of Engineers Regulatory Program. Engineer
Research and Development Center (U.S.) Technical
Report no. ERDC/CHL TR–22–19.
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are available, but often data needed to
conduct such analyses 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. Moreover, ‘‘typical year
conditions’’ are often irrelevant to the
extent of flow in human-altered streams,
including effluent-dependent streams.
The 2020 NWPR did not explain why
human-altered hydrology should be
subject to the same typical year
requirement as natural streams.
For the same reasons that agency staff
are unlikely to witness the specific
surface water connections required
under the 2020 NWPR during a site visit
in dry regions or during the dry season,
they are also unlikely to capture
evidence of a surface water connection
between a stream and a downstream
traditional navigable water or the
territorial seas using available aerial
photographs taken during typical year
conditions. Aerial photographs are often
taken just once per year or once every
other year and staff have no way of
ensuring that they were taken during a
typical year. High-resolution satellite
imagery can serve as a reliable source to
demonstrate specific surface water
connections. But the availability and
usability of such imagery varies 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), so that such tools
may be unlikely to demonstrate that
specific surface water connections are
occurring in a typical year. Moreover, as
the 2020 NWPR acknowledged,
‘‘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).
Commenters on the proposed rule stated
that Tribes and States lacked sufficient
data, aerial photography and access to
other tools required to support the use
of the typical year test in many
locations. They expressed concern that
under-resourced communities suffer a
particular lack of data necessary to
support this test. 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
jurisdiction based on the requirements
in the 2020 NWPR. Remote tools, such
as aerial or satellite imagery, are often
useful in implementing any definition
of ‘‘waters of the United States,’’ but the
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2020 NWPR’s typical year criteria made
use of these resources particularly
challenging.
The same difficulties created
challenges in detecting surface
hydrologic connections that occurred in
a typical year to meet the 2020 NWPR’s
definition of ‘‘adjacent wetlands’’ or
‘‘lakes and ponds, and impoundments
of jurisdictional waters.’’ The 2020
NWPR’s standard of inundation by
flooding in a typical year was not tied
to any commonly calculated flood
interval, such as flood recurrence
intervals, and the agencies are not aware
of a tool capable of collecting the type
of inundation data the 2020 NWPR
required. 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 flooding occurs from a
tributary to a wetland, lake, pond, or
impoundment, as well as being able to
demonstrate that this flooding occurred
in a typical year. Determining that
inundation by flooding occurs in a
typical year was 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 posed similar
obstacles, requiring either auspiciously
timed field visits, aerial photography,
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 2020 NWPR suggested 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 2020
NWPR preamble for determining
precipitation in a typical year made it
difficult to use these data to inform
jurisdiction. NOAA precipitation totals
over the three months prior to a site
observation are compared to
precipitation totals observed over the
preceding 30 years to determine if
conditions were wetter than normal,
drier than normal, or normal (‘‘typical’’).
Using the methodology in the preamble
of the 2020 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
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surface water flow was observed during
normal or dry conditions, the agencies
could have higher confidence that the
surface water observations represented
flow in a ‘‘typical year.’’ However, if
flow was observed during the 30% of
conditions that are ‘‘wetter than
normal,’’ the surface water observations
did not reveal whether flow would
occur during a typical year. And if flow
was not observed, precipitation data
from the previous three months did 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 was conducted when surface water
flow was not present, the agencies’
suggested approach for evaluating
whether a feature meets the typical year
test often did not provide meaningful
and relevant information for the
agencies to make accurate
determinations of jurisdiction. Indeed, a
commenter on the proposed rule
emphasized that Tribes and States have
found the ‘‘typical year’’ requirement to
require extensive hydrologic modeling
and advanced statistical analyses in
complex conditions. Under any
regulatory regime, the agencies use a
weight of evidence approach to
determine jurisdiction, but the 2020
NWPR typical year requirement placed
onerous and, in many instances,
arbitrary constraints on the data that can
be used as evidence.
Furthermore, the typical year concept
as applied to the 2020 NWPR does not
account for the increasing number of
recurrent heat waves, droughts, storms,
and other extreme weather events in
many parts of the country. These events
can have profound impacts on local and
regional hydrology, including
streamflow. Commenters noted that
determining what is ‘‘typical’’ under the
2020 NWPR in light of increased
drought and floods was not simple for
Tribal or State agencies; such
determinations required expert analysis
and left much to interpretation,
undermining the assertion by the
agencies that the 2020 NWPR would
establish a clear, predictable regulatory
framework that can be implemented in
the field.
The concept of ‘‘typical year’’ in the
2020 NWPR sought to factor in longterm climatic changes over time to some
degree by considering a thirty-year
rolling period of data, see 33 CFR
328.3(c)(13). However, the 2020 NWPR
did 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
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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 rigid rolling thirty-year
approach to determining typical year in
the 2020 NWPR did not allow the
agencies to use these updated methods.
The 2020 NWPR noted 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 identified
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). These methods, which
provide information useful in many
other contexts, often only look at
climate-related conditions generally and
often did not answer the jurisdictional
questions posed by the 2020 NWPR. For
example, they did not address whether
surface water flow might connect a
particular stream to a downstream
traditional navigable water or the
territorial seas, whether a particular
wetland was inundated by or connected
to a jurisdictional water as required
under the 2020 NWPR, or how
uncertainties at different locations and
in different months affected the
accuracy of condition estimates. While
precipitation is an important factor,
other information is also relevant to
streamflow and surface water
connections in a typical year, including
the 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. While the
agencies have substantial experience
using a weight of evidence approach to
determine jurisdiction, for example as
part of the significant nexus analysis,
the typical year requirement makes it
substantially 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 the
territorial seas. Even streams that flow
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perennially or intermittently often travel
many miles prior to reaching the closest
traditional navigable water or the
territorial seas, meaning many
downstream reaches may need to be
assessed. Under the 2020 NWPR, any
ephemeral reaches along that pathway
that did not carry surface water flow
once in a typical year would render all
upstream waters non-jurisdictional. 85
FR 22277 (April 21, 2020). The need to
assess lengthy tributary systems
imposed an extraordinarily high burden
of proof on the agencies to evaluate
surface water flow in a typical year
along the flow path from a stream of
interest to a downstream traditional
navigable water or the territorial seas.
The longer the pathway, the more
challenging the analysis. As a
commenter noted, in adopting the test,
the 2020 NWPR inserted case-by-case
analyses for every jurisdictional
determination despite the rule’s claim
that it ‘‘provide[s] a predictable
framework in which to establish federal
jurisdiction.’’ Id. at 22273–22274. The
uncertainty and implementation
challenges generated by the 2020
NWPR’s foundational typical year test
are yet another basis to replace that rule.
ii. Determining Adjacency
The 2020 NWPR provided that
wetlands are ‘‘adjacent’’ when they: (1)
abut a traditional navigable water or the
territorial seas; 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. 85 FR 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.
The artificial barrier provision led to
arbitrary 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
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hydrological surface connection in a
typical year through a culvert (assuming
the wetland did not meet another
criterion for adjacency). The 2020
NWPR therefore established 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 is not supported by science
or the agencies’ experience.
Moreover, the provision establishing
that a wetland is ‘‘adjacent’’ if a
jurisdictional water inundates it by
flooding in a typical year was 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, and the
agencies would typically be unable to
demonstrate that these indicators reflect
typical year conditions. Indeed, the
2020 NWPR acknowledged 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. Given the absence
of existing records of inundation by
flooding, determining whether
inundation by flooding has occurred in
a typical year is challenging in many
circumstances.
Compounding the challenge, the 2020
NWPR provided 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
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 adds to
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
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jurisdiction over these features. 85 FR
22338–39 (April 21, 2020); 33 CFR
328.3(c)(vi).
iii. Ditches
Among other requirements, the 2020
NWPR provided that a ditch 70 is
jurisdictional as a tributary if it was
originally built in a tributary or adjacent
wetland, as those terms are defined in
the 2020 NWPR, and emphasized 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. In other words, in order to
find a ditch jurisdictional, the agencies
had to 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 the territorial seas (4) in a ‘‘typical
year.’’ Alternatively, the agencies had to
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 at the time the ditch
was constructed (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. And while under earlier guidance
and practice, the agencies generally
assessed whether a ditch was excavated
in dry land when making a
jurisdictional determination, that
involved an assessment simply of
whether the ditch was excavated in a
stream, a wetland, or other aquatic
resource. By contrast, to determine
whether a ditch was jurisdictional
under the 2020 NWPR, the agencies had
to determine if it was originally built in
a tributary or adjacent wetland that
would have been jurisdictional under
the 2020 NWPR, and therefore had to
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 twenty, one hundred,
or even 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
70 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,
the territorial seas, and interstate waters.
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3061
when looking so far back in time. States
approached the agencies seeking
assistance in assessing the jurisdictional
status of ditches, but the agencies were
often unable to provide meaningful help
given the burdens imposed by the 2020
NWPR’s ditch definition.
The 2020 NWPR also provided that
ditches are jurisdictional if they relocate
a tributary, as that term was defined in
the rule, 85 FR 22341 (April 21, 2020);
33 CFR 328.3(a)(2), (c)(12), but this
standard as defined by the 2020 NWPR
was also often extremely difficult to
assess. The 2020 NWPR explained 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) (emphasis
added). In other words, the 2020 NWPR
appeared 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 substantial
implementation challenges. As a
practical matter, when a tributary is
relocated it often reroutes just a portion
of its flow to the ditch. Assessing
whether a ditch relocated 100% of a
tributary’s flow, as opposed to 80% or
50% of its flow, is extremely difficult
and may not be possible in some
circumstances. The scientific literature
indicates that features like ditches that
convey water continue to connect to and
affect downstream waters. See section
III.A.iv of the Technical Support
Document for additional information.
By establishing a jurisdictional standard
that is extremely difficult to meet, the
2020 NWPR effectively removed 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, the
territorial seas, and interstate waters. As
is the case with tributaries, lakes and
ponds, impoundments, and wetlands,
the 2020 NWPR’s impracticable
approach to ditches made it extremely
difficult to implement. In the agencies’
judgment, any efficiencies the 2020
NWPR may have achieved through
categorical exclusions are outweighed
by the challenges the agencies
encountered in implementing the rule,
coupled with its failure to implement
the objective of the Clean Water Act by
removing protections for waters that are
properly within the statute’s scope.
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d. The 2020 NWPR Substantially
Reduced Clean Water Act Protections
Over Waters
The failure of the 2020 NWPR to
advance the objective of the Clean Water
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 were
protected by the Clean Water Act under
the 2020 NWPR compared to under
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 section
402 NPDES and section 404 dredged
and fill permitting programs, but also
water quality standards under section
303, identification of impaired waters
and total maximum daily loads under
section 303, section 311 oil spill
prevention, preparedness, and response
programs, and the section 401 Tribal
and State water quality certification
programs—because the Clean Water Act
provisions establishing such programs
use the term ‘‘navigable waters’’ or
‘‘waters of the United States.’’ While the
2020 NWPR was promulgated with the
expressed intent to decrease the scope
of Federal jurisdiction, the agencies now
are concerned that the actual decrease
in water resource protections was more
pronounced than the qualitative
predictions in the 2020 NWPR preamble
and supporting documents anticipated
and acknowledged to the public. These
data support the agencies’ conclusion
that the 2020 NWPR is not a suitable
alternative to this rule.
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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 2021,71
71 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 that are not
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EPA and the Army have identified
consistent indicators of a substantial
reduction in waters protected under the
Clean Water Act by the 2020 NWPR (see
Technical Support Document section
II.B.i 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 2020 NWPR’s
definitions. Additionally, the agencies
find that these indicators likely account
for only a fraction of the 2020 NWPR’s
impacts, because many project
proponents did not seek any form of
jurisdictional determination for waters
that the 2020 NWPR categorically
excluded, such as ephemeral features,
and the Corps would not have
knowledge of or ability to track such
projects. A closer look at each of these
indicators will help demonstrate some
of the more pronounced impacts of the
2020 NWPR on paragraph (a)(1) waters
than were identified for the public in
the 2020 NWPR and its supporting
documents. As explained in detail
above, when a water falls outside the
scope of the Clean Water 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, including dredged or fill
material, into such waters unless the
pollutants reach jurisdictional waters.
And since many entities did not believe
that they would need to seek a
associated with 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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jurisdictional determination under the
2020 NWPR, it is impossible to fully
understand the scope of degradation the
2020 NWPR’s definition caused to
paragraph (a)(1) waters.
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,72 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
2020 NWPR, the probability of finding
resources to be non-jurisdictional
increased precipitously. Of the 9,399
AJDs completed by the Corps under the
2020 NWPR during the first 12 months
in which that rule was in effect,73 the
agencies found approximately 75% of
AJDs completed had identified nonjurisdictional water resources and
approximately 25% of AJDs completed
identified jurisdictional waters.74
Conversely, when the 1986 regulations
and applicable guidance were in effect
(including following the 2019
recodification of those regulations),
substantially more jurisdictional waters
were identified in AJDs on average per
year than compared to the first twelve
months of the 2020 NWPR.75 During
similar one-year calendar intervals
when the 1986 regulations and
applicable guidance were in effect,
approximately 28% to 45% of AJDs
completed identified non-jurisdictional
aquatic resources, and 56% to 72% of
AJDs identified jurisdictional resources.
72 See
supra note 71.
AJDs were completed by the Corps
between the 2020 NWPR’s effective date of June 22,
2020, and June 21, 2021.
74 This excludes dryland AJDs and waters
identified as jurisdictional only under section 10 of
the Rivers and Harbors Act. In addition, under the
2020 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 2020 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 the
agencies’ analysis can be found in the Technical
Support Document section II.B.i.
75 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. 2015 Clean
Water Rule determinations were not part of this
analysis.
73 These
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The change from a range of 28% to 45%
non-jurisdictional AJD findings prior to
the 2020 NWPR to 75% nonjurisdictional findings after issuance of
the 2020 NWPR indicates that
substantially fewer waters were
protected by the Clean Water Act under
the 2020 NWPR (see Technical Support
Document section II.B.i for additional
discussion). Again, as commenters on
the proposed rule noted, these numbers
do not account for the many entities that
did not seek AJDs because they believed
their features were excluded under the
2020 NWPR.
When evaluating the effect of the 2020
NWPR on the number of individual
aquatic resources (as opposed to the
AJDs completed), the agencies found a
similar substantial reduction in
protections provided by the Clean Water
Act. Within the first twelve months of
implementation of the 2020 NWPR,
between June 22, 2020, and June 21,
2021, the Corps documented the
jurisdictional status of 48,313
individual aquatic resources or water
features through AJDs completed; 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. Ditches were also
frequently found to be nonjurisdictional (4,706 individual
exclusions), which is likely the result of
the narrowed definition of tributary
under the 2020 NPWR and the
requirement that a ditch was only
jurisdictional as a tributary if it was
originally built in a tributary or adjacent
wetland, as those terms are defined in
the 2020 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 pre-2015
regulatory regime.76 This increase in
non-jurisdictional determinations, so
that approximately 75% of water bodies
are non-jurisdictional under the 2020
NWPR as opposed to only 45% under
the prior regulations, undermined the
agencies’ ability to provide a baseline of
Federal protection for the integrity of
the nation’s waters.
Of particular concern to the agencies
is the 2020 NWPR’s disproportionate
effect on arid regions of the country, as
the aquatic resources in these regions
predominantly consist of ephemeral
features. Under the 2020 NWPR, more
permittees across the country, including
76 Based on the average annual percentage of nonjurisdictional findings.
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in the arid West, sought AJDs rather
than PJDs, particularly for ephemeral
features. Many more streams were
evaluated and determined to be nonjurisdictional through AJDs in the arid
West, while the number of individual
stream reaches considered under PJDs
declined precipitously. As mentioned
previously, project proponents who
request an AJD obtain an official Corps
document that states either that there
are no ‘‘waters of the United States’’
present on a parcel, or a statement that
‘‘waters of the United States’’ are
present, accompanied by a map
identifying their extent. 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. A decline in the proportion
of PJDs being requested under the 2020
NWPR indicates that fewer project
proponents requested that aquatic
resources on their project site be treated
as if they were 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 2020
NWPR in 2020–2021 it was only 45.77
Compared to pre-2015 regulatory
practice, under the 2020 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.
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 2020
NWPR.
The number of stream reaches
assessed in Arizona under AJDs
compared to the number of evaluations
completed nationwide was
disproportionately high under the 2020
NWPR. 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
77 The AJD values associated with the 2020
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 2020
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 II.B.i for more analysis.
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twelve months in which the 2020
NWPR was implemented.78 This
increase in the number of AJDs sought
in Arizona under the 2020 NWPR
compared to the number of AJDs sought
in Arizona between 2016 and 2020
likely reflects the desire of landowners
to confirm that features on their
property were ephemeral or otherwise
excluded under that rule, though it is
possible the pace of landowners seeking
AJDs would have slowed to some extent
over time. The agencies understand the
drastic decline in the number of PJDs
requested compared to AJDs in the arid
West, and the simultaneous increase in
the number of AJD non-jurisdictional
findings in the arid West, to have been
driven largely by the categorical
exclusion of ephemeral streams from
jurisdiction. PJDs assume jurisdiction,
and under the 2020 NWPR project
proponents were less likely to assume
that ephemeral streams were
jurisdictional.
The Corps’ data show that in New
Mexico, of the 263 streams assessed via
AJDs in the first twelve months of
implementation of the 2020 NWPR (i.e.,
between June 22, 2020, to June 21,
2021), 100% were found to be nonjurisdictional ephemeral features.79 In
Arizona, of the 1,525 streams assessed
in AJDs in the first year of
implementation of the 2020 NWPR,
1,518, or 99.5%, were found to be nonjurisdictional ephemeral resources.
Eliminating these streams from
jurisdiction under the 2020 NWPR also
typically eliminated jurisdiction over
wetlands which otherwise might meet
adjacency criteria.
Some commenters asserted that the
low percentage of jurisdictional AJD
findings in Arizona under the 2020
NWPR does not have a statistically
significant difference from the
percentages of jurisdictional findings
under the pre-2015 regulatory regime.
The agencies agree that of Corps AJDs
completed between 2016 and 2020, high
percentages of streams in Arizona were
found to be non-jurisdictional between
2016 and 2020. Proportionally, the nonjurisdictional findings via AJDs between
2016–2020 and the 2020 NWPR are
similar. However, because the volume of
streams assessed under AJDs in the arid
West increased so substantially, there
was a 10-fold increase in nonjurisdictional findings for streams in
Arizona and a 36-fold increase in nonjurisdictional findings for streams in
78 There were a total of 16,787 stream reaches
assessed via AJDs nationwide between June 22,
2020 and June 21, 2021.
79 These non-jurisdictional ephemeral resources
are predominantly ephemeral streams, but a small
portion may be swales, gullies, or pools.
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New Mexico following implementation
of the 2020 NWPR. 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 2020 NWPR (of
which 1,521 were determined nonjurisdictional accounting for all
exclusions). Assessed together, the
statistically significant increase in
overall resources assessed via AJD
combined with the shift away from
requests for PJDs, as well as the
consistent proportion of AJDs with nonjurisdictional findings indicates that
many more project proponents viewed
resources on their land as no longer
‘‘waters of the United States’’ under the
2020 NWPR. The agencies’ analysis also
reflects the scope of the streams that the
2020 NWPR left unprotected, which in
many cases are vitally important to
desert aquatic ecosystems and to the
hydrologic integrity of watersheds. See
section IV.A.2.c.i of this preamble.
The Corps 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 prior to the 2020
NWPR, but no longer did under the
2020 NWPR’s definition of ‘‘waters of
the United States.’’ 80 Moreover, in
comparing 2020–2021 to similar annual
data from 2016–2020 from
implementation of the 1986 regulations
consistent with Supreme Court case
law, there was an average 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 2020 NWPR. The number of
projects that did not require a section
404 permit under the 2020 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 would
not have sought a jurisdictional
determination or applied for a permit at
80 This tracking method only applies when 100%
of jurisdiction is lost under the 2020 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 was a new database feature, which was not
yet implemented uniformly across the United
States, and is likely under-representative even for
those cases in which 100% of jurisdiction was lost
under the 2020 NWPR.
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all if they believed their aquatic
resources were non-jurisdictional under
the 2020 NWPR. Many projects could
have occurred without consultation
with the Corps due to the 2020 NWPR’s
narrow definition of ‘‘waters of the
United States’’ and expansive nonjurisdictional categories. Therefore,
while the Corps’ ORM2 data shed light
on the trend and magnitude of impacts
to the scope of jurisdiction under the
2020 NWPR, it is fair to assume that
these impacts are an underestimate.81
Many commenters cited the impacts
referenced above as reasons to reject the
2020 NWPR’s definition of ‘‘waters of
the United States.’’ In addition, many
commenters cited national-scale
assessments of the number of
waterbodies that lost protection under
the 2020 NWPR as evidence of
environmental harm. Some commenters
noted that 51% of wetlands and 18% of
streams lost protections.82 Other
commenters stated that 4.8 million
miles of streams and 16.3 million acres
of non-floodplain wetlands would be
left without Federal level protections
under the 2020 NWPR.83
Commenters provided many potential
examples of the harms caused by the
2020 NWPR around the country. One
commenter stated that in the Northwest,
an estimated 9,165 miles of ephemeral
streams in Oregon’s Rogue River Basin
that provide drinking water for the
region, as well as habitat and spawning
grounds for Federal threatened Southern
Oregon/Northern California Coast coho
81 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 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 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.
82 Contained in the Resource and Programmatic
Assessment for the Proposed Revised Definition of
‘‘Waters of the United States’’ (Docket ID No. EPA–
HQ–OW–2021–0602–0039).
83 Commenters cited to the following scientific
paper as support: C.R. Lane and E. D’Amico.
Identification of putative geographically isolated
wetlands of the conterminous United States, 52 J
Am Water Resource Association 705(2016); K.
Fesenmyer et al., Large portion of USA streams lose
protection with new interpretation of Clean Water
Act. February 2021. Freshwater Science 40(1).
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salmon and steelhead, would have lost
protection under the 2020 NWPR.
Another commenter stated that in the
Midwest, protection would have been
lost for an estimated 500 to 1,000 miles
of ephemeral and ditched streams that
flow into the Niagara River, the channel
that connects Lake Erie and Lake
Ontario. The commenter also noted that
following promulgation of the 2020
NWPR, two Great Lakes states finalized
legislative action to further reduce
protections under State law for waters
excluded by the 2020 NWPR. One
commenter asserted that up to 202,244
acres of wetlands located behind levees
in Missouri would have been excluded
from jurisdiction under the 2020 NWPR
because they are separated from
jurisdictional waters by ‘‘upland or by
dikes, barriers, or similar structures.’’
The commenter stated that these
wetlands provide flood control, habitats,
and improve water quality. In the
Mountain West, a commenter stated that
over half of Colorado’s streams and 22%
of that State’s remaining wetlands
would have been excluded from
jurisdiction under the 2020 NWPR.
With respect to the Southeast, a
commenter cited analyses
demonstrating that 162,149 acres of
wetlands in Georgia’s Chattahoochee
watershed were vulnerable to losing
protection under the 2020 NWPR. The
same commenter noted that, in the MidAtlantic, over 100,000 acres of wetlands
would have lost protection under the
2020 NWPR in Virginia’s James River
and Rappahannock River watersheds,
which are vital to water quality in the
Chesapeake Bay. Finally, in the
Southwest, comments from the State of
New Mexico estimated that under the
2020 NWPR, 25–45% of its Clean Water
Act stormwater general permits and
50% of its individual permits would no
longer be required. In Arizona, a
commenter stated that 94% of all
wetlands and flowlines in Arizona’s
Upper San Pedro Watershed would have
lost protection under the 2020 NWPR.
The agencies have not conducted an
independent analysis to verify each of
these comments but have carefully
reviewed the concerns identified and
the underlying analyses that
commenters cited and found them
generally consistent with the agencies’
own findings about the impacts of the
2020 NWPR. These examples illustrate
the quality and importance of the waters
that lost protection under the 2020
NWPR. As commenters emphasized,
waters that the 2020 NWPR
categorically excluded, such as
ephemeral streams and their associated
wetlands and wetlands that did not
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meet the 2020 NWPR’s adjacency
criteria, provide critical ecosystem
services. The absence of Clean Water
Act protections for such resources and
any subsequent unregulated and
unmitigated impacts to such resources
would have caused cascading,
cumulative, and substantial downstream
harm. Commenters stated that,
specifically, the 2020 NWPR would
have reduced the extent to which waters
filter out pollutants before they reach
traditional navigable waters; reduced
flood protections and water storage
services, and increased flooding;
harmed fisheries and hunting sites;
destroyed bird and wildlife habitat,
including habitats relied on by
endangered species; and reduced the
quality of drinking water. Commenters
also stated that the reduction in
federally protected waters under the
2020 NWPR could increase water
pollution near low-income communities
and communities of color in particular
and that they could experience
associated increases in health risk.
The 2020 NWPR’s removal of Federal
protections from the nation’s waters,
and the resulting detriment to the
services they provide, undermines the
objective of the Clean Water Act, as
discussed in section IV.A.2 of this
preamble.
ii. Tribes and States Did Not Fill the
Regulatory Gap Left by the 2020 NWPR
Some commenters asserted that the
diminished scope of ‘‘waters of the
United States’’ would not necessarily
reduce protections for waters because
Tribes, States, and local entities may
regulate discharges even in the absence
of Clean Water Act regulation. See
section IV.A.3.b of this preamble. This
perspective is consistent with the 2020
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 Clean Water Act. 85 FR 22259 (April
21, 2020). Yet while some Tribes and
States regulate ‘‘waters of the Tribe’’ or
‘‘waters of the State’’ more broadly than
the Federal Government under their
own laws, many newly nonjurisdictional waters under the 2020
NWPR were on Tribal lands or in States
that do not regulate waters beyond those
covered by the Clean Water Act. Under
the 2020 NWPR, discharges into these
waters could have occurred without any
restriction.
As discussed in the Economic
Analysis for the Final Rule, many Tribes
and States do not regulate waters more
broadly than the Clean Water Act. See
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Economic Analysis for the Final Rule,
Chapter II; 2020 NWPR Economic
Analysis at 30–31. Contrary to the
predictions made in the 2020 NWPR
Economic Analysis, during the year in
which the 2020 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, and no States
that lacked these broader protections
established them. See 2020 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 Final Rule,
Chapter II (indicating that two of those
States reduced the scope of State clean
water protections after the 2020 NWPR
was finalized, and none of them
formally expanded protections as a
direct result of the 2020 NWPR).
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 2020
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 2020 NWPR
Federal floor would have established
them. Indeed, the External
Environmental Economics Advisory
Committee has stated that the model
that the 2020 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’’ (e.g., only three States directly
increased protective 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’
resulting change in implementation of
the Act).84 Moreover, commenters,
84 Prior to the 2016 Trump Administration, EPA’s
Science Advisory Board (SAB) had a subcommittee
on environmental economics known as the
Environmental Economics Advisory Committee
(EEAC). When this committee was disbanded under
the 2016 Administration, its members created an
ad-hoc external committee. This External
Environmental Economics Advisory Committee (E–
EEAC) carried out an assessment of the economic
analysis associated with the 2020 NWPR. See
Keiser, D., S. Olmstead, K. Boyle, V. Flatt, B. Keeler,
D. Phaneuf, J. Shapiro, and J. Shimshack (2020).
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). December 2020. As of today, the
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including State entities, asserted that
the Federal Government provided no
assistance or support for overburdened
State agencies trying to compensate for
the sudden suspension in Federal
protections under the 2020 NWPR.
Finally, States asserted that in the
absence of robust Federal protections,
even if they were to expend substantial
resources addressing discharges within
their borders, they would not be able to
limit pollutants flowing in from other
States that may not have established
such controls.
The agencies are also not aware of any
Tribes that expanded their clean water
protections to compensate for a
reduction in protections under the 2020
NWPR. During the agencies’ Tribal
consultation and coordination for this
rulemaking process, Tribes
overwhelmingly indicated they lack the
independent resources and expertise to
protect their waters and therefore rely
on Clean Water Act protections. See
Summary of Tribal Consultation and
Coordination, available in the docket for
this rule. This feedback is consistent
with the concerns expressed during the
2020 NWPR rulemaking process. See,
e.g., 85 FR 22336–22337, April 21, 2020
(‘‘[M]any Tribes may lack the capacity
to create a [T]ribal water program under
[T]ribal 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 capacity of many
Tribes and States to regulate waters
more broadly than the Federal
Government and limited authority
under Tribal and State law, the
narrowing of Federal jurisdiction would
mean that many discharges into the
newly non-jurisdictional waters would
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 coregulators and stakeholders, including
Tribes, States, scientists, and nongovernmental organizations, that
corroborated the agencies’ data and
indicated that the 2020 NWPR’s
reduction in the jurisdictional scope of
the Clean Water Act would cause
substantial environmental harms,
including to the quality of paragraph
(a)(1) waters, that Tribes and States lack
the authority or resources to address.
EPA’s SAB has reinstated the EEAC, which assessed
the proposed rule’s economic analysis as part of the
SAB’s review of the rule.
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In conclusion, the agencies do not
find that the 2020 NWPR is a suitable
alternative to this rule.
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C. This Rule
1. Summary of This Rule
This rule establishes the definition of
‘‘waters of the United States’’ for
purposes of the Clean Water Act. For
clarity, this rule is divided into three
parts: jurisdictional waters, exclusions,
and definitions. This section of the
preamble addresses each provision of
the rule and provides an explanation of
the rule text, a response to significant
comments, and the agencies’
interpretation and implementation of
the provisions of the rule.
The ‘‘waters of the United States’’ are
defined in paragraph (a) of this rule: (1)
traditional navigable waters, the
territorial seas, and interstate waters
(‘‘paragraph (a)(1) waters’’); (2)
impoundments of ‘‘waters of the United
States’’ (‘‘paragraph (a)(2)
impoundments’’); (3) tributaries to
traditional navigable waters, the
territorial seas, interstate waters, or
paragraph (a)(2) impoundments when
the tributaries meet either the relatively
permanent standard or the significant
nexus standard (‘‘jurisdictional
tributaries’’); (4) wetlands adjacent to
paragraph (a)(1) waters; wetlands
adjacent to and with a continuous
surface connection to relatively
permanent paragraph (a)(2)
impoundments or to jurisdictional
tributaries when the jurisdictional
tributaries meet the relatively
permanent standard; and wetlands
adjacent to paragraph (a)(2)
impoundments or jurisdictional
tributaries when the wetlands meet the
significant nexus standard
(‘‘jurisdictional adjacent wetlands’’);
and (5) intrastate lakes and ponds,
streams, or wetlands not identified in
paragraphs (a)(1) through (4) that meet
either the relatively permanent standard
or the significant nexus standard
(‘‘paragraph (a)(5) waters’’).
The ‘‘relatively permanent standard’’
means relatively permanent, standing or
continuously flowing waters connected
to paragraph (a)(1) waters, and waters
with a continuous surface connection to
such relatively permanent waters or to
paragraph (a)(1) 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, the
territorial seas, or interstate waters.
Paragraph (b) of this rule contains the
longstanding exclusions from the pre-
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2015 regulations, as well as additional
exclusions based on well-established
practice, from the definition of ‘‘waters
of the United States.’’ Paragraph (c) of
this rule provides definitions for terms
used in this rule.
Paragraph (a): Jurisdictional Waters
Paragraph (a)(1). This rule defines
‘‘waters of the United States’’ to include
traditional navigable waters, the
territorial seas, and interstate waters.
The agencies are not making changes to
the text or substance of the provisions
of the 1986 regulations covering
traditional navigable waters, the
territorial seas, and interstate waters.
The agencies are consolidating these
three categories of waters into one
paragraph at the beginning of the
regulatory text. While combined into
one paragraph, each category will
remain distinct in separate
subparagraphs. The agencies have
concluded that this non-substantive
change streamlines the regulatory text
and increases clarity. This streamlining
is not a substantive change and does not
alter the agencies’ longstanding
interpretation and implementation of
these provisions.
Paragraph (a)(2). This rule defines
‘‘waters of the United States’’ to include
impoundments of ‘‘waters of the United
States.’’ Impoundments are created by
discrete structures (often human-built)
like dams or levees that typically have
the effect of raising the water surface
elevation, creating or expanding the area
of open water, or both. In this rule, the
paragraph (a)(2) impoundments category
provides that ‘‘waters of the United
States’’ do not lose their jurisdictional
status simply because they are
impounded. In a change from the 1986
regulations, waters that are
jurisdictional under paragraph (a)(5)
and that are subsequently impounded
do not retain their jurisdictional status
by rule under the paragraph (a)(2)
impoundments provision, but may still
be determined to be jurisdictional if
they meet the requirements of a category
of ‘‘waters of the United States’’ other
than paragraph (a)(2) at the time of
assessment (i.e., as a traditional
navigable water, the territorial seas,
interstate water, jurisdictional tributary,
jurisdictional adjacent wetland, or
paragraph (a)(5) water).
Paragraph (a)(3). This rule defines
‘‘waters of the United States’’ to include
tributaries of traditional navigable
waters, the territorial seas, interstate
waters, or paragraph (a)(2)
impoundments when the tributaries
meet either the relatively permanent
standard or the significant nexus
standard. As compared to the 1986
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regulations, this rule adds the territorial
seas to the list of waters to which a
water may be a tributary and deletes
intrastate lakes and ponds, streams, or
wetlands not identified in paragraphs
(a)(1) through (4) (the (a)(3) ‘‘other
waters’’ provision under the 1986
regulations) from the list.
Paragraph (a)(4). Aquatic resources
that meet this rule’s definitions of
‘‘wetlands’’ and ‘‘adjacent’’ with regard
to another jurisdictional water are
assessed under this provision. The rule
defines ‘‘waters of the United States’’ to
include: (1) wetlands adjacent to
traditional navigable waters, the
territorial seas, or interstate waters; (2)
wetlands adjacent to and with a
continuous surface connection to
relatively permanent paragraph (a)(2)
impoundments or jurisdictional
tributaries when the jurisdictional
tributaries meet the relatively
permanent standard; or (3) wetlands
adjacent to paragraph (a)(2)
impoundments or jurisdictional
tributaries when the wetlands meet the
significant nexus standard
(‘‘jurisdictional adjacent wetlands’’).
Paragraph (a)(5). This rule defines
‘‘waters of the United States’’ to include
intrastate lakes and ponds, streams, or
wetlands not identified in paragraphs
(a)(1) through (4) that meet either the
relatively permanent standard or the
significant nexus standard. In this
paragraph, the agencies are retaining the
category from the 1986 regulations
sometimes referred to as ‘‘(a)(3) waters’’
or ‘‘other waters,’’ but with changes to
reflect the agencies’ determination of
the statutory limits on the scope of
‘‘waters of the United States’’ informed
by the law, the science, and agency
expertise, in addition to consideration
of extensive public comment on the
proposed rule. Of particular importance,
the agencies have replaced the 1986
regulation’s broad Commerce Clause
basis for jurisdiction for waters not
identified in other provisions of the
definition, with the relatively
permanent standard and the significant
nexus standard. In addition, the
agencies have deleted the non-exclusive
list of ‘‘other waters’’ in the 1986
regulation. Under this provision in the
rule, only ‘‘intrastate lakes and ponds,
streams, or wetlands not identified in
paragraphs (a)(1) through (4)’’ can be
assessed for jurisdiction under the
relatively permanent standard or
significant nexus standard.
Paragraph (b): Exclusions
The agencies are promulgating a
number of exclusions from the
definition of ‘‘waters of the United
States,’’ including longstanding
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exclusions for prior converted cropland
and waste treatment systems, and
exclusions for features that were
generally considered non-jurisdictional
under the pre-2015 regulatory regime.
The agencies are listing these exclusions
in the regulatory text in a new
paragraph (b), which consolidates the
exclusions together in a single
regulatory section. Under this rule,
where a feature satisfies the terms of an
exclusion, it is excluded from
jurisdiction even where the feature
would otherwise be jurisdictional under
paragraphs (a)(2) through (5) of this rule.
Paragraph (a)(1) waters are not subject to
the exclusions. The exclusions are:
(1) Waste treatment systems,
including treatment ponds or lagoons,
designed to meet the requirements of
the Clean Water Act;
(2) Prior converted cropland
designated by the Secretary of
Agriculture. The exclusion would cease
upon a change of use, which means that
the area is no longer available for the
production of agricultural commodities.
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;
(3) Ditches (including roadside
ditches) excavated wholly in and
draining only dry land and that do not
carry a relatively permanent flow of
water;
(4) Artificially irrigated areas that
would revert to dry land if the irrigation
ceased;
(5) Artificial lakes or ponds created by
excavating 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;
(6) Artificial reflecting or swimming
pools or other small ornamental bodies
of water created by excavating or diking
dry land to retain water for primarily
aesthetic reasons;
(7) 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; and
(8) Swales and erosional features (e.g.,
gullies, small washes) characterized by
low volume, infrequent, or short
duration flow.
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Paragraph (c): Definitions
Paragraph (c) of this rule provides
definitions for purposes of the rule. This
rule contains several defined terms
unchanged from the 1986 regulations:
the definitions of ‘‘wetlands,’’
‘‘adjacent,’’ ‘‘high tide line,’’ ‘‘ordinary
high water mark,’’ and ‘‘tidal water.’’
This rule defines the term ‘‘significantly
affect’’ for purposes of determining
whether a water meets the significant
nexus standard to mean ‘‘a material
influence on the chemical, physical, or
biological integrity of’’ a paragraph
(a)(1) water. Under this rule, waters,
including wetlands, are evaluated either
alone, or in combination with other
similarly situated waters in the region,
based on the functions the evaluated
waters perform. This rule identifies
specific functions that will be assessed
and identifies specific factors that will
be considered when determining
whether the functions provided by the
water, either alone or in combination,
have a material influence on the
integrity of a traditional navigable
water, the territorial seas, or an
interstate water. These factors include
the distance from a paragraph (a)(1)
water; hydrologic factors, such as the
frequency, duration, magnitude, timing,
and rate of hydrologic connections,
including shallow subsurface flow; the
size, density, or number of waters that
have been determined to be similarly
situated; landscape position and
geomorphology; and climatological
variables such as temperature, rainfall,
and snowpack. The functions in this
rule are indicators that are tied to the
chemical, physical, or biological
integrity of paragraph (a)(1) waters,
including contribution of flow; trapping,
transformation, filtering, and transport
of materials (including nutrients,
sediment, and other pollutants);
retention and attenuation of floodwaters
and runoff; modulation of temperature
in paragraph (a)(1) waters; or provision
of habitat and food resources for aquatic
species located in paragraph (a)(1)
waters.
Section IV.C of this preamble also
provides guidance on implementation of
each provision of this rule. In
implementing this rule, the agencies
generally will consider first if a water
qualifies as a paragraph (a)(1) water (i.e.,
a traditional navigable water, the
territorial seas, or an interstate water). If
a waterbody is determined to be a
paragraph (a)(1) water, then it is
jurisdictional with no need for further
evaluation. If a water is not a paragraph
(a)(1) water, the agencies generally will
consider next whether any of the
exclusions in paragraph (b) of this rule
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3067
apply to the water. The exclusions in
this rule do not apply to paragraph (a)(1)
waters, and therefore, a traditional
navigable water, the territorial seas, or
an interstate water cannot be excluded
under this rule, even if the water would
otherwise meet the criteria for an
exclusion.85 If a water does not qualify
as a paragraph (a)(1) water and the
agencies determine that an exclusion is
applicable (e.g., waters that meet the
waste treatment system exclusion,
wetlands that qualify as prior converted
cropland), the water would not be
jurisdictional under this rule. If the
water is not a paragraph (a)(1) water,
and an exclusion under paragraph (b)
does not apply, then the agencies
generally will determine next if the
water can be assessed under paragraphs
(a)(2) through (4) of this rule. If the
water does not meet the criteria for
paragraphs (a)(1) through (4), the
agencies generally will assess next if the
water is jurisdictional under paragraph
(a)(5) of this rule. When assessing the
jurisdictional status of waters after the
effective date of the final rule, regulators
and the public should use the definition
of ‘‘waters of the United States’’
established by this rule. For example,
when assessing whether a stream is a
jurisdictional tributary, regulators and
the public should consider the
provisions related to tributaries in the
final rule.86 If a water is not
jurisdictional under paragraphs (a)(1)
through (5) of this rule, then the water
does not meet the definition of ‘‘waters
of the United States.’’
It is important to note that some
aquatic resources can potentially be
assessed for jurisdiction under multiple
categories of this rule. For example,
certain streams, rivers, lakes, ponds,
wetlands, and impoundments can be
assessed as traditional navigable waters
or interstate waters under paragraph
(a)(1)(i) or (a)(1)(iii) of this rule. Other
streams, rivers, lakes, ponds, and
impoundments are situated such that
they are part of the tributary system and
can be assessed under paragraph (a)(3)
of this rule. The agencies will assess
intrastate lakes and ponds, streams, and
85 See also discussion of the waste treatment
system exclusion in section IV.C.7.b of this
preamble, infra.
86 The agencies will continue to evaluate
potential enforcement actions using the regulations
in place when the alleged violation occurred. For
example, if a person excavated a ditch while the
pre-2015 regulatory regime was in effect and the
person complied with the terms of the pre-2015
regulatory regime, today’s final rule does not create
new liability. See United States v. Lucero, 989 F.3d
1088 (9th Cir. 2021) (explaining that the 2020
NWPR did not apply retroactively to the
defendant’s violations, which occurred before the
2020 NWPR became effective).
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wetlands under paragraph (a)(5) of this
rule only if they do not fall within
paragraphs (a)(1) through (4). In any
case, the agencies will identify the
provision or provisions of the rule
under which a determination of
jurisdiction is made.
Section IV.C of this preamble
provides increased clarity and
substantial guidance to assist in
implementing the relatively permanent
standard and significant nexus standard.
See sections IV.C.4, IV.C.5, and IV.C.6 of
this preamble for additional information
on how the agencies will implement
these standards for tributaries, adjacent
wetlands, and waters assessed under
paragraph (a)(5) (these sections include
guidance on identifying waterbodies on
the landscape, determining which
waters are ‘‘relatively permanent,
standing or continuously flowing,’’
identifying waters with a ‘‘continuous
surface connection’’ under the relatively
permanent standard, and identifying
which waters are ‘‘similarly situated’’
and ‘‘in the region’’ under the
significant nexus standard).
As is typical after a rule is
promulgated, the agencies have entered
into a joint agency coordination
memorandum to ensure the consistency
and thoroughness of the agencies’
implementation of this rule, which is
available in the docket for the final rule.
See Docket ID No. EPA–HQ–OW–2021–
0602. As part of these coordination
procedures, EPA and Corps field staff
will coordinate on all draft approved
jurisdictional determinations based on
the significant nexus standard, and the
agencies will follow a process for
elevating a subset of these
determinations to EPA and Corps
headquarters for review as necessary.
That coordination will be enhanced for
waters assessed under paragraph (a)(5),
and headquarters at the agencies will
review all draft approved jurisdictional
determinations 87 for paragraph (a)(5)
waters based on the significant nexus
standard. After nine months, the
agencies will reevaluate this
requirement and assess the
implementation and coordination
memorandum approach. See section
IV.C.6 of this preamble for additional
discussion.
The agencies note that Congress
exempted or excluded certain
discharges from the Clean Water Act or
from specific permitting requirements.
This rule will not affect any of the
87 An approved jurisdictional determination is a
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. See 33
CFR 331.2.
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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. This rule
will also 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 122.2,
122.3(f). 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 other
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.
Finally, with respect to determining
whether a water meets the definition of
‘‘waters of the United States,’’ under
case law and the Corps’ existing
regulations ‘‘[u]nauthorized discharges
into waters of the United States do not
eliminate Clean Water Act jurisdiction,
even where such unauthorized
discharges have the effect of destroying
waters of the United States.’’ 33 CFR
323.2 (1987). Thus, for example, an
unpermitted discharge of fill material
into a jurisdictional adjacent wetland
that destroys all wetland characteristics
does not render that water no longer
jurisdictional. Nor does an authorized
discharge, filling in a part of a tributary,
for example, sever jurisdiction
upstream, provided that the upstream
waters meet the definition of ‘‘waters of
the United States’’ absent the
unauthorized discharge.
2. Traditional Navigable Waters, the
Territorial Seas, and Interstate Waters
a. This Rule
The agencies are not making changes
to the text or substance of the provisions
of the 1986 regulations covering
traditional navigable waters, the
territorial seas, and interstate waters.
The agencies are consolidating these
three categories of waters into one
paragraph at the beginning of the
regulatory text. While combined into
one paragraph, each category will
remain distinct in separate
subparagraphs. The agencies have
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concluded that this non-substantive
change streamlines the regulatory text
and increases clarity. This consolidation
requires corresponding changes to cross
references and the numbering of other
provisions in the rule. These changes
increase clarity by reducing the number
of cross references necessary and make
practical sense because the
jurisdictional status of other categories
of waters relies on their connection to
traditional navigable waters, the
territorial seas, or interstate waters. For
example, the definition of ‘‘significantly
affect’’ refers simply to ‘‘the chemical,
physical, or biological integrity of
waters identified in paragraph (a)(1) of
this section’’ rather than requiring
multiple cross-references to three
separate paragraphs. This streamlining
is not a substantive change and does not
alter the agencies’ longstanding
interpretation and implementation of
these provisions.
b. Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
The agencies have concluded that the
non-substantive change consolidating
traditional navigable waters, the
territorial seas, and interstate waters
into paragraph (a)(1) streamlines the
regulatory text and increases clarity.
These changes increase clarity by
reducing the number of cross references
necessary and make practical sense
because the jurisdictional status of other
categories of waters relies on their
connection to traditional navigable
waters, the territorial seas, or interstate
waters. The rationale for retaining each
of these three water types is provided in
the relevant subsections below.
Some commenters expressed support
for the categorical protection and
consolidation of traditional navigable
waters, the territorial seas, and interstate
waters. One commenter stated that the
consolidation is ‘‘consistent with the
history and text of the law.’’ Several
commenters opposed the consolidation
of the traditional navigable waters, the
territorial seas, and interstate waters
provisions into one jurisdictional
category, arguing that the categories of
waters are distinct and therefore should
remain separate. The agencies agree that
each of these provisions is a distinct
category but disagree that consolidating
them into one paragraph has any effect
on distinguishing the types of waters
which fall within each category.
Further, the agencies have kept the text
of each category the same as in the 1986
regulations and have established
separate subparagraphs for each
category to ensure there is no confusion.
The jurisdictional standards for each of
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the three categories are different, so the
agencies will clearly identify the
subparagraph under which a particular
water is jurisdictional. A water which
meets the test for traditional navigable
waters under the Clean Water Act, for
example, will be identified as
jurisdictional under paragraph (a)(1)(i).
Note that some waters may fall into
more than one category of paragraph
(a)(1) waters (e.g., a water may be both
a traditional navigable water and an
interstate water, such as Lake Tahoe, or
a water may be both a traditional
navigable water and part of the
territorial seas, such as the Pacific
Ocean).
A commenter stated that the
protection of traditional navigable
waters, the territorial seas, and interstate
waters should not be affected by any
exclusions that the agencies may
include in this rule. The agencies agree
and the text of this rule is clear that the
exclusions do not apply to paragraph
(a)(1) waters. See also section IV.C.7 of
this preamble. The Clean Water Act
fundamentally protects these three
categories of waters: traditional
navigable waters are clearly
encompassed within the defined term
‘‘navigable waters’’; the territorial seas
are explicitly mentioned in the
definition of ‘‘navigable waters’’; and, as
discussed further below, interstate
waters, by definition, are waters of the
‘‘several States’’ and are unambiguously
‘‘waters of the United States.’’ While the
agencies have authority to draw lines
excluding some aquatic features from
the definition of ‘‘waters of the United
States,’’ the Clean Water Act provides
no such authority to the agencies to
exclude waters in these three
unambiguous types of ‘‘waters of the
United States’’ under the statute. Even
if jurisdiction over one or all of these
categories of waters were ambiguous,
the agencies have concluded that since
these are the fundamental waters that
Congress intended to protect under the
Clean Water Act, and that have had
longstanding and unequivocal
protection, with the exception of the
2020 NWPR, it is reasonable to establish
unequivocal jurisdiction over these
waters. Further, the agencies have
concluded that there are no policy,
practical, or technical bases to apply the
exclusions to these paragraph (a)(1)
waters given their crucial role in the
statutory regime.
Some commenters expressed support
for consolidating just traditional
navigable waters and territorial seas into
a single category of jurisdictional
waters. A commenter added that this
approach is logical because these two
types of waters are the only types of
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waters that are explicitly referenced in
the operative sections of the Clean
Water Act. The commenter asserted that
combining these waters into one
category would make the rule clearer
and easier to administer. Similarly, a
couple of commenters expressed
concerns that the proposed rule too
broadly categorized what is considered
a ‘‘foundational’’ water. The 2020
NWPR consolidated the categories of
traditional navigable waters and the
territorial seas in the definition of
‘‘waters of the United States’’ into a
single paragraph in the regulatory text
in order to streamline the text but
deleted the interstate waters category.
85 FR 22280, 22338, 22340 (April 21,
2020). The agencies agree that
combining these waters into one
category makes the rule clearer and
easier to administer. However, the
agencies have also combined interstate
waters into the same paragraph because,
as discussed above, protecting all three
categories of waters is a fundamental
aim of the Clean Water Act. See section
IV.C.2.b.iii of this preamble (discussing
protection under the Clean Water Act of
interstate waters in the same manner as
traditional navigable waters and the
territorial seas). Under this rule, the
jurisdictional status of the other
categories of waters relies on their
connection to any one of these three
categories of waters—a traditional
navigable water, the territorial seas, or
an interstate water (and, where required,
meeting either the relatively permanent
standard or the significant nexus
standard). Therefore, the agencies have
concluded that streamlining the rule by
including all three categories of these
waters in one paragraph is reasonable
and appropriate.
A commenter suggested that the
agencies provide a definition of
‘‘foundational waters.’’ The commenter
suggested that ‘‘if the common
shorthand is that the waters used for
commerce, the interstate waters[,] and
the territorial seas are the ‘foundational
waters[,]’ then the additional term
‘foundational waters’ should be defined
as such.’’ The commenter asserted that
this would make the rule text easier to
understand and use. The agencies are
not providing a definition for
‘‘foundational waters’’ because they are
not using the term ‘‘foundational
waters’’ in the rule text. The agencies
used the phrase ‘‘foundational waters’’
in the preamble to the proposed rule
simply for convenience and readability
rather than writing the phrase
‘‘traditional navigable waters, the
territorial seas, and interstate waters’’
repeatedly. As discussed above in this
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3069
preamble, in light of the new
consolidated paragraph that groups
those three categories of waters together,
the agencies will simply refer to those
waters as ‘‘paragraph (a)(1) waters’’ in
this preamble.
i. Traditional Navigable Waters
(1) This Rule
The Clean Water Act, the 1986
regulations, the 2015 Clean Water Rule,
the 2019 Repeal Rule, and the 2020
NWPR all include within the scope of
‘‘waters of the United States’’ traditional
navigable waters, defined by regulation
as ‘‘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.’’ E.g., 33 CFR 328.3(a)(1) (2014).
With respect to traditional navigable
waters, the text of the 1986 regulations
and the text of the 2020 NWPR are
identical. The agencies did not propose
to amend the longstanding text defining
‘‘traditional navigable waters’’ and are
not making changes to the text in this
rule. As discussed above, the agencies
are consolidating three categories of
waters into one paragraph at the
beginning of the regulatory text, and
with this consolidation, ‘‘traditional
navigable waters’’ are identified in
paragraph (a)(1)(i) of this rule.
The agencies also are not making
changes to their longstanding
interpretation of traditional navigable
waters for purposes of Clean Water Act
jurisdiction. Thus, these paragraph
(a)(1)(i) waters include all of the
‘‘navigable waters of the United States,’’
defined in 33 CFR part 329 and by
numerous decisions of the Federal
courts, plus all other waters that are
navigable-in-fact (e.g., the Great Salt
Lake, Utah and Lake Minnetonka,
Minnesota). To determine whether a
waterbody constitutes a paragraph
(a)(1)(i) water under the regulations,
relevant considerations include the
agencies’ regulations; prior
determinations by the Corps, by EPA,
and by the Federal courts; and case law.
The agencies will determine whether a
particular waterbody is a traditional
navigable water based on application of
those considerations to the specific facts
in each case.
As noted above, the paragraph (a)(1)(i)
waters include, but are not limited to,
the ‘‘navigable waters of the United
States.’’ A water body qualifies as a
‘‘navigable water of the United States’’
if it meets any of the tests set forth in
33 CFR part 329 (e.g., the waterbody is
(a) subject to the ebb and flow of the
tide, and/or (b) the waterbody is
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presently used, or has been used in the
past, or may be susceptible for use (with
or without reasonable improvements) to
transport interstate or foreign
commerce).
Traditional navigable waters also
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.’’ Some examples of waters that
will be considered traditional navigable
waters, and thus jurisdictional under
this provision of this rule include:
waters currently being used for
commercial navigation, including
commercial waterborne recreation (for
example, boat rentals, guided fishing
trips, or water ski tournaments); waters
that have historically been used for
commercial navigation, including
commercial waterborne recreation; or
waters that are susceptible to being used
in the future for commercial navigation,
including commercial waterborne
recreation. See ‘‘Waters that Qualify as
Traditional Navigable Waters Under
Section (a)(1) of the Agencies’
Regulations,’’ 88 available at https://
www.epa.gov/wotus/waters-qualify88 ‘‘Waters that Qualify as Traditional Navigable
Waters Under Section (a)(1) of the Agencies’
Regulations,’’ began as ‘‘Waters that Qualify as
Waters of the United States Under Section (a)(1) of
the Agencies’ Regulations’’ in Appendix D to the
U.S. Army Corps of Engineers Jurisdictional
Determination Form Instructional Guidebook
(available at https://usace.contentdm.oclc.org/utils/
getfile/collection/p16021coll11/id/2316) that was
published in 2007 concurrently with the 2007
Rapanos Guidance and thus is often simply referred
to as ‘‘Appendix D.’’ The Rapanos Guidance was
updated in 2008, but Appendix D has remained
unchanged since 2007. Paragraph (a)(1)(i) of this
rule was paragraph (a)(1) of the regulations in place
when the guidance was issued, but the text of that
provision has not changed through the various
rulemakings defining ‘‘waters of the United States,’’
and the agencies have continued to use the
guidance for determining whether a water is a
‘‘traditional navigable water.’’ See 80 FR 37054,
37074 (June 29, 2015) (2015 Clean Water Rule); 85
FR 22250, 22281 (April 21, 2020) (2020 NWPR).
There have been no substantive changes to the
guidance since it was issued on May 30, 2007. In
2021, EPA and the Army established ‘‘Waters that
Qualify as Waters of the United States Under
Section (a)(1) of the Agencies’ Regulations,’’ as a
standalone guidance document when rescinding a
memorandum on traditional navigable waters
finalized after the 2020 NWPR. However, for clarity
the agencies have updated the title to ‘‘Waters that
Qualify as Traditional Navigable Waters Under
Section (a)(1) of the Agencies’ Regulations’’ and
deleted references to the Rapanos Guidance. The
agencies will continue to use this guidance to
determine whether a water is a ‘‘traditional
navigable water’’ for the purposes of the Clean
Water Act and the agencies’ implementing
regulations. This document is available at https://
www.epa.gov/wotus/waters-qualify-traditionalnavigable-waters-under-section-a1-agenciesregulations.
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traditional-navigable-waters-undersection-a1-agencies-regulations.
2) Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
Supreme Court decisions have not
questioned the inclusion of traditional
navigable waters in the definition of
‘‘waters of the United States.’’ See, e.g.,
SWANCC, 531 U.S. at 172 (‘‘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.’’).
Some commenters voiced support for
the agencies’ decision to interpret the
scope of traditional navigable waters
consistent with the agencies’
longstanding approach in the document
known as ‘‘Waters that Qualify as
Waters of the United States Under
Section (a)(1) of the Agencies’
Regulations.’’ A commenter added that
such an interpretation is consistent with
the agencies’ longstanding guidance and
is familiar to Tribal and State coregulators as well as the general public.
Another commenter stated that the
agencies’ reference to ‘‘Waters that
Qualify as Waters of the United States
Under Section (a)(1) of the Agencies’
Regulations’’ would create additional
confusion during the implementation of
this rule. The agencies are maintaining
their longstanding approach to
traditional navigable waters for
purposes of the Clean Water Act as
reflected in this well-established
document. The agencies have used this
guidance since 2007 and through a
number of rulemakings. The 2020
NWPR continued use of this guidance,
stating, ‘‘because the agencies have not
modified the definition of ‘traditional
navigable waters,’ the agencies are
retaining [‘Waters that Qualify as Waters
of the United States Under Section (a)(1)
of the Agencies’ Regulations’] to help
inform implementation of that provision
of this final rule.’’ 85 FR 22281 (April
21, 2020). Given the longstanding use of
the guidance, the agencies do not think
it will cause confusion to continue to
use it. To provide additional clarity,
however, the agencies are maintaining
this document as standalone guidance
titled ‘‘Waters that Qualify as
Traditional Navigable Waters Under
Section (a)(1) of the Agencies’
Regulations,’’ with minor edits to the
title and to reflect that the Rapanos
Guidance is no longer in effect,
simultaneously with this rule.
After the 2020 NWPR was
promulgated, the agencies issued a
coordination memorandum that created
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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 Memorandum’’). The
memorandum established an
implementation process by which the
agencies elevate to their headquarters
certain case-specific and stand-alone
Clean Water Act traditional navigable
water determinations concluding that a
water is ‘‘susceptible to use’’ solely
based on evidence of recreation-based
commerce. Id. The TNW Coordination
Memorandum merely required
enhanced coordination for such
determinations and did not state that a
‘‘susceptible to use’’ determination
could not be solely based on evidence
of recreation-based commerce. On
November 17, 2021, the agencies
rescinded the TNW Coordination
Memorandum but kept in place the
‘‘Waters that Qualify as Waters of the
United States Under Section (a)(1) of the
Agencies’ Regulations.’’ 89 A few
commenters asserted that recreational
activities are sufficient evidence to
demonstrate that a water is susceptible
to being used in the future for
commercial navigation, thereby
qualifying waters supporting
recreational activities as traditional
navigable waters for purposes of the
Clean Water Act. Alternatively, several
commenters asserted that recreational
activities are not sufficient evidence to
demonstrate that a water is a traditional
navigable water. 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); id. at 601
(‘‘[P]ersonal or private use by boats
demonstrates the availability of the
stream for the simpler types of
commercial navigation.’’ (quoting
United States v. Appalachian Elec.
Power Co., 311 U.S. 377, 416 (1940)));
id. (noting that the ‘‘fact that actual use
has ‘been more of a private nature than
of a public, commercial sort . . . cannot
be regarded as controlling’’’ (quoting
United States v. Utah, 283 U.S. 64, 82
89 U.S. Environmental Protection Agency and
U.S. Department of the Army. ‘‘Recission of June
30, 2020 Memorandum ‘U.S. Environmental
Protection Agency (EPA) and U.S. Army Corps of
Engineers (Corps) Process for Elevating and
Coordination Specific Draft Determinations under
the Clean Water Act (CWA).’’ November 17, 2021.
Available at https://www.epa.gov/system/files/
documents/2021-11/nwpr-tnw-coordinationrescission-memo_signed-11.17.2021.pdf.
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(1931))). Therefore, the agencies are
maintaining their longstanding position
that commercial waterborne recreation
(for example, boat rentals, guided
fishing trips, or water ski tournaments)
can be considered when determining if
a water is a traditional navigable water.
Some commenters stated that the
agencies must ensure that traditional
navigable waters are not limited to just
the waters that the agencies have
determined to be ‘‘navigable waters of
the United States’’ under section 10 of
the Rivers and Harbors Act of 1899.
Other commenters stated that the
agencies should limit the scope of
traditional navigable waters to the
section 10 waters under the Rivers and
Harbors Act of 1899. The agencies are
not changing their longstanding position
that the traditional navigable waters for
purposes of the Clean Water Act
include, but are not limited to, the
section 10 waters under the Rivers and
Harbors Act of 1899, and include any of
the waters that constitute traditional
navigable waters under relevant judicial
decisions. See ‘‘Waters that Qualify as
Waters of the United States Under
Section (a)(1) of the Agencies’
Regulations.’’ 90 The scope of the Rivers
and Harbor Act of 1899 is generally
narrower than the scope of the Clean
Water Act. See, e.g., 1902 Atlantic Ltd.
v. Hudson, 574 F. Supp. 1381, 1392–93
(E.D. Va. 1983) (explaining that ‘‘[t]he
term ‘navigable waters of the United
States’ as used in the Rivers and Harbors
Act of 1899 has a substantially different,
and more limited, meaning than the
term as used in the Clean Water Act’’
and that ‘‘the term has a more limited
meaning, consistent with the concepts
of ‘navigation’ and ‘navigability’ as of
1899’’). The scope of ‘‘navigable waters
of the United States’’ under the Rivers
and Harbors Act of 1899 is thus more
limited than the scope of traditional
navigable waters for purposes of the
Clean Water Act and as established in
paragraph (a)(1)(i) of this rule. The
Corps’ regulations reflect the difference
and under the Corps’ regulations,
‘‘navigable waters of the United States’’
(i.e., waters that are subject to section 10
of the Rivers and Harbors Act of 1899)
are limited to ‘‘those waters that are
subject to the ebb and flow of the tide
and/or are presently used, or have been
used in the past, or may be susceptible
for use to transport interstate or foreign
commerce.’’ 33 CFR 329.4. Therefore,
there are numerous waters that have
been determined to be traditional
navigable waters for purposes of the
Clean Water Act, or navigable for other
purposes under Federal law, but which
90 See
supra note 88.
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are not ‘‘navigable waters of the United
States’’ under section 10 of the Rivers
and Harbors Act of 1899. For example,
the Supreme Court has found that the
Great Salt Lake met the test for
navigability for purposes of the
ownership of the bed of the Lake at the
time of Utah’s statehood, even though it
was not part of a continuous waterborne
highway of interstate commerce, but the
Court of Appeals for the Tenth Circuit
found that evidence insufficient to
establish that the Lake is covered by the
Rivers and Harbors Act of 1899. See
Utah v. United States, 403 U.S. 9 (1971);
Hardy Salt Co. v. Southern Pacific
Trans. Co., 501 F.2d 1156 (10th Cir.
1974). The Corps has determined the
lake to be a traditional navigable water
for purposes of the Clean Water Act
based on the Supreme Court’s finding
that the water in the past met the test
for navigability. The distinction the
agencies have drawn between section 10
waters and traditional navigable waters
for purposes of the Clean Water Act is
entirely consistent with Supreme Court
case law. The Supreme Court in Kaiser
Aetna rejected the notion ‘‘that the
concept of ‘navigable waters of the
United States’ has a fixed meaning that
remains unchanged in whatever context
it is being applied.’’ Kaiser Aetna v.
United States, 444 U.S. 164, 170 (1979).
Instead, the Court cautioned that ‘‘any
reliance upon judicial precedent must
be predicated upon a careful appraisal
of the purpose for which the concept of
‘navigability’ was invoked in a
particular case.’’ Id. at 171 (internal
quotation marks omitted) (emphasis in
original). The Supreme Court further
stated that the ‘‘cases that discuss
Congress’ paramount authority to
regulate waters used in interstate
commerce are consequently best
understood when viewed in terms of
more traditional Commerce Clause
analysis than by reference to whether
the stream, in fact, is capable of
supporting navigation or may be
characterized as [a] ‘navigable water of
the United States.’’’ Id. at 174. More
recently, the Supreme Court has
cautioned ‘‘that the test for navigability
is not applied in the same way in
[different] types of cases[,]’’ referring,
for example, to cases arising under the
Federal Power Act, Clean Water Act,
and title disputes. PPL Montana v.
Montana, 565 U.S. 576, 592 (2012).
A number of commenters stated that
the agencies’ interpretation of
traditional navigable waters was
inconsistent with the test for
navigability in The Daniel Ball, 77 U.S.
557 (1870), with the discussion of
navigability in SWANCC, and with the
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3071
plurality and Justice Kennedy’s
opinions in Rapanos. The agencies
disagree. None of the opinions in
Rapanos addressed the test for
traditional navigable waters; rather, they
simply cited to The Daniel Ball—the
beginning of a long line of cases
addressing navigability. As the Supreme
Court has explained: ‘‘The Daniel Ball
formulation has been invoked in
considering the navigability of waters
for purposes of assessing federal
regulatory authority under the
Constitution, and the application of
specific federal statutes, as to the waters
and their beds.’’ PPL Montana, 565 U.S.
at 592 (citing The Montello, 20 Wall.
430, 439 (1874); United States v.
Appalachian Elec. Power Co., 311 U.S.
377, 406 & n.21 (1940) (Federal Power
Act); Rapanos, 547 U.S. at 730–31
(plurality opinion) (Clean Water Act);
id. at 761 (Kennedy, J., concurring in
judgment) (same)). In PPL Montana, the
Supreme Court was clear that the test
for navigability has evolved since The
Daniel Ball; it depends upon the
authority being exercised by the Federal
Government and is a case-specific
inquiry. ‘‘It should be noted, however,
that the test for navigability is not
applied in the same way in these
distinct types of cases.’’ 565 U.S. at 592.
Of particular relevance for traditional
navigable waters for the Clean Water
Act, ‘‘federal regulatory authority
encompasses waters that only recently
have become navigable, see, e.g.,
Philadelphia Co. v. Stimson, 223 U.S.
605, 634–635, 32 S.Ct. 340, 56 L.Ed. 570
(1912), were once navigable but are no
longer, see Economy Light & Power Co.
v. United States, 256 U.S. 113, 123–124,
41 S.Ct. 409, 65 L.Ed. 847 (1921), or are
not navigable and never have been but
may become so by reasonable
improvements, see Appalachian Elec.
Power Co., supra, at 407–408, 61 S.Ct.
291. With respect to the Federal
commerce power, the inquiry regarding
navigation historically focused on
interstate commerce. See The Daniel
Ball, supra, at 564. And, of course, the
commerce power extends beyond
navigation. See Kaiser Aetna v. United
States, 444 U.S. 164, 173–174, 100 S.Ct.
383, 62 L.Ed.2d 332 (1979). . . .
Indeed, ‘[e]ach application of [the
Daniel Ball] test . . . is apt to uncover
variations and refinements which
require further elaboration.’
Appalachian Elec. Power Co., supra, at
406, 61 S.Ct. 291.’’ PPL Montana, 565
U.S. at 592–93. Thus, the agencies’
interpretation of traditional navigable
waters for purposes of the Clean Water
Act is consistent with The Daniel Ball
as applied by the Supreme Court.
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as separate categories of jurisdictional
waters.
ii. Territorial Seas
(1) This Rule
The Clean Water Act defines
‘‘navigable waters’’ to include ‘‘the
territorial seas’’ in 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.’’ The territorial
seas establish the seaward limit of
‘‘waters of the United States’’ and are
clearly jurisdictional under the Clean
Water Act.
The Clean Water Act, the 1986
regulations, the 2015 Clean Water Rule,
the 2019 Repeal Rule, and the 2020
NWPR all included ‘‘the territorial seas’’
as ‘‘waters of the United States.’’ This
rule makes no changes to ‘‘the territorial
seas’’ provision and retains the
provision in the regulatory text,
consolidated in paragraph (a)(1).
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(2) Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
As described above, the Clean Water
Act explicitly defines the agencies’
jurisdiction to include ‘‘the territorial
seas.’’ This rule confirms the agencies’
jurisdiction over these waters,
consistent with Congress’s direction. A
commenter stated that if the agencies
combine traditional navigable waters,
the territorial seas, and interstate waters
into one category of waters in this rule,
the agencies should clarify that the
territorial seas represent a distinct basis
for jurisdiction and are not a type of
traditional navigable water. The
agencies agree with this commenter that
the territorial seas are an independent
category of jurisdictional waters.
However, in the preamble to the
proposed rule, the agencies also stated
that the territorial seas are a type of
traditional navigable water. While most
portions of the territorial seas are also
traditional navigable waters, the
agencies are clarifying in this rule that
portions of the territorial seas that may
not be navigable or capable of being
used in interstate or foreign commerce
are still jurisdictional if they meet the
definition of the ‘‘territorial seas’’ in the
Clean Water Act. The agencies did not
intend to exclude any portion of the
territorial seas as the term is defined in
Clean Water Act section 502(8), 33
U.S.C. 1362(8). To avoid any confusion,
this rule continues to list traditional
navigable waters and the territorial seas
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iii. Interstate Waters
(1) This Rule
This rule retains 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 except
during the time period the 2020 NWPR
was in effect. Interstate waters are, by
definition, waters of the ‘‘several
States,’’ U.S. Const. Article I, section 8,
and are unambiguously ‘‘waters of the
United States.’’ In addition, categorical
protection of interstate waters is the
construction 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.
The agencies interpret interstate
waters under this rule to mean ‘‘all
rivers, lakes, and other waters that flow
across, or form a part of, State
boundaries’’ based on precursor water
protection statutes and practice. See 33
U.S.C. 466i(e) (1952) (codifying Pub. L.
80–845 section 10(e), 62 Stat. 1161
(1948)). Interstate waters thus include
waters that cross or form a part of State
boundaries with other States and with
other countries (Canada and Mexico).
Examples of such waters include
portions of the Amargosa River, which
flows from Nevada into a dry playa in
Death Valley, California, and the Great
Dismal Swamp, a wetland which
crosses the border between Virginia and
North Carolina. The Amargosa River is
not a traditional navigable water and
does not otherwise flow to a traditional
navigable water or the territorial seas,
but under the agencies’ pre-2015
regulations and the final rule, the
portion of the Amargosa River that
crosses the California/Nevada border is
an interstate water. Tributaries to
interstate waters like the Amargosa
River and wetlands adjacent to
interstate waters and their tributaries are
critical sources of life in desert climates.
Interstate waters also include waters
that meet the definition of a traditional
navigable water or are tributaries of
traditional navigable waters or the
territorial seas, such as the portions of
the Ohio River and Mississippi River
that cross or serve as State boundaries;
the portions of the Rio Grande that cross
State boundaries (Colorado/New
Mexico) or that cross the border or serve
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as the border between the United States
and Mexico; and Lake Champlain,
which crosses the New York/Vermont
border and crosses the border between
the United States and Canada.
Because, as explained below, the
Clean Water Act unambiguously
includes interstate waters, they are
fundamental to the Act in the same
manner as traditional navigable waters
and the territorial seas. Even if the text
of the Clean Water Act does not
unambiguously resolve the question of
jurisdiction over interstate waters, the
agencies have concluded that it is
reasonable to construe the statute to
protect interstate waters without need
for further assessment based on the
history of the statute, Supreme Court
case law interpreting the Act, the
legislative history, and the objective of
the Act to restore and maintain the
integrity of the nation’s waters.
Therefore, this rule, like the 1986
regulations, provides Clean Water Act
protections for interstate waters in the
same manner as for traditional navigable
waters and the territorial seas, and the
following waters that meet the relatively
permanent standard or significant nexus
standard based on their connection to
interstate waters are ‘‘waters of the
United States’’: tributaries to interstate
waters, wetlands adjacent to interstate
waters or to their jurisdictional
tributaries, and paragraph (a)(5) waters.
Interstate waters may be streams,
lakes or ponds, or wetlands. The
longstanding definition of ‘‘waters of the
United States’’ includes interstate
wetlands. As discussed in section
IV.A.2.b.ii of this preamble, the Clean
Water Act’s statutory text, structure, and
history establish that adjacent wetlands
are ‘‘waters of the United States’’
covered by the Act. And, while the
Supreme Court’s focus in Riverside
Bayview was on adjacent wetlands, the
Court’s unanimous conclusion that
section 404(g)(1) provides express
textual evidence ‘‘that the term ‘waters’
included adjacent wetlands,’’ 474 U.S at
138, is informative for interstate
wetlands as well. For more than 45
years the agencies have concluded that
waters, for purposes of the Clean Water
Act, include wetlands. The agencies
have also, for more than 45 years,
concluded that some of those wetlands
are ‘‘waters of the United States,’’ and
among those wetlands are interstate
wetlands. Because the agencies consider
wetlands to be waters, the rationale for
covering interstate waters based on the
history of the statute, Supreme Court
case law interpreting the Act, legislative
history, and the objective of the Act
applies with full force to interstate
wetlands.
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Under this provision of the rule,
consistent with the pre-2015 regulatory
regime, lakes, ponds, impoundments,
and similar lentic (or still) water
resources, as well as wetlands, crossing
State boundaries are jurisdictional as
interstate waters through the entirety of
their delineated extent.
For streams and rivers, the agencies
will 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’’ using
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’’ extends upstream and
downstream of the State boundary for
the entire length that the water is of the
same stream order. See section
IV.C.4.c.ii.1 of this preamble for
additional information about stream
order.
(2) Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
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, 908 (1965)); see also 33 U.S.C.
1173(e) (1970) (retaining definition of
‘‘interstate waters’’). In the 1972 Clean
Water Act, Congress abandoned the
‘‘abatement’’ approach initiated in the
1948 statute in favor of a focus on
permitting for discharges of pollutants.
While the term ‘‘navigable waters’’ is
ambiguous in some respects, interstate
waters are waters that are clearly
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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.’’ Interstate
waters are, by definition, waters of the
‘‘several States,’’ U.S. Const. section 8,
and consequently, are unambiguously
‘‘waters of the United States.’’ The 1972
Clean Water Act thus reflects Congress’s
recognition that the degradation of
water resources in one State may cause
substantial harms in other States. 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).
In addition, the text of the 1972 Clean
Water Act specifically addresses
‘‘interstate waters’’ regardless of their
navigability. Namely, section 303(a) of
the 1972 Clean Water Act uses the term
‘‘interstate waters’’ and 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. 33 U.S.C. 1313(a)(1). That plain
language is a clear indication that
Congress 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 would
disregard the plain language of section
303(a).
The Supreme Court has concluded
that the 1972 Clean Water Act was ‘‘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) (‘‘City of
Milwaukee’’). 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 Clean Water Act do not
unambiguously resolve the issue, the
situation addressed by the Supreme
Court in the City of Milwaukee case
highlights the reasonableness of the
agencies’ interpretation that the Act
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3073
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. However, the Clean Water Act
replaced this unpredictable and
inefficient approach with ‘‘a
comprehensive regulatory program
supervised by an expert administrative
agency.’’ Id. The Court reiterated that
view in Arkansas v. Oklahoma, stating
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. 91, 106 (1992) (emphasis in
original).
The potential for interstate harm, and
the consequent need for Federal
regulation, is particularly clear with
respect to waterbodies 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. Parties in different States
would need to resolve concerns about
upstream discharges in nonjurisdictional waters through litigation
using ‘‘often vague and indeterminate
nuisance concepts and maxims of equity
jurisprudence.’’ City of Milwaukee, 451
U.S. at 317; see also 85 FR 22286 (April
21, 2020) (acknowledging in the 2020
NWPR that ‘‘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’’
(citations omitted)). Restoration of
longstanding protections for interstate
waters, regardless of whether they are
navigable-in-fact, enables the agencies
to address interstate water quality issues
efficiently and effectively. The agencies
interpret interstate waters to encompass
all waters that Congress has sought to
protect since 1948: all rivers, lakes, and
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other waters that flow across, or form a
part of, State boundaries. Public Law
80–845, sec. 10, 62 Stat. 55, at 1161
(1948). These waters need not meet the
relatively permanent standard or
significant nexus standard to be
jurisdictional under the final rule.
EPA has interpreted the Clean Water
Act to cover interstate waters, with the
exception of the 2020 NWPR, since
1973. 38 FR 13528 (May 22, 1973)
(providing that the term ‘‘waters of the
United States’’ includes ‘‘interstate
waters and their tributaries, including
adjacent wetlands’’). In the final rule
promulgated in 1977, the Corps adopted
EPA’s definition and included
‘‘interstate waters and their tributaries,
including adjacent wetlands’’ within the
definition of ‘‘waters of the United
States.’’ The preamble to that rule
provided an explanation for the
inclusion of interstate waters: ‘‘The
affects [sic] of water pollution in one
state can adversely affect the quality of
the waters in another, particularly if the
waters involved are interstate. Prior to
the FWPCA amendments of 1972, most
federal statutes pertaining to water
quality were limited to interstate waters.
We have, therefore, included this third
category consistent with the Federal
government’s traditional role to protect
these waters from the standpoint of
water quality and the obvious effects on
interstate commerce that will occur
through pollution of interstate waters
and their tributaries.’’ 42 FR 37122,
37127 (July 19, 1977).
Because the Clean Water Act
unambiguously includes interstate
waters, they are fundamental to the Act
in the same manner that traditional
navigable waters and the territorial seas
are. Traditional navigable waters, the
territorial seas, and interstate waters
cannot be protected without also
protecting the waters that have a
significant nexus to those waters. This
rule protects interstate waters in the
same manner as it protects traditional
navigable waters and the territorial seas.
Thus, the following waters that meet the
relatively permanent standard or
significant nexus standard based on
their connection to interstate waters are
‘‘waters of the United States’’:
tributaries to interstate waters, wetlands
adjacent to interstate waters or to their
jurisdictional tributaries, and paragraph
(a)(5) waters. The agencies received
multiple comments on the proposed
rule in favor of the categorical inclusion
of interstate waters as ‘‘waters of the
United States,’’ as well as multiple
comments arguing that categorical
inclusion of interstate waters is
inconsistent with the Clean Water Act.
Several commenters asserted that
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asserting categorical jurisdiction over
interstate waters is legally permissible,
with some arguing that the statutory
language unambiguously demonstrates
that the Clean Water Act protects all
interstate waters. One commenter stated
that the agencies’ failure to protect all
interstate waters in the 2020 NWPR
‘‘was an abdication of a core premise of
the Clean Water Act’s cooperative
federalism.’’ One commenter added that
Federal jurisdiction over interstate
waters protects State sovereignty, rather
than threatening it, and quoted Justice
Scalia’s plurality opinion in Rapanos
that ‘‘the Act protects downstream
States from out-of-state pollution that
they cannot themselves regulate.’’ 547
U.S. at 777. Several of the commenters
discussed downstream pollution to
demonstrate their general support for
including interstate waters as a
jurisdictional category. Many of these
commenters added that including
interstate waters in the definition of
‘‘waters of the United States’’ helps
reduce the burden of increased
pollutants from out-of-state, upstream
discharges.
Commenters opposed to the
categorical inclusion of interstate waters
stated that such an approach unlawfully
reads the notion of navigability out of
the Clean Water Act. A few commenters
asserted that pursuant to SWANCC,
Riverside Bayview, and Rapanos,
interstate waters or interstate wetlands
can only be jurisdictional if they are
navigable or connected to navigable
waters. In support of their arguments,
some commenters cited the 2020 NWPR
and the order of the U.S. District Court
for the Southern District of Georgia
remanding the 2015 Clean Water Rule.
Georgia v. Wheeler, 418 F. Supp. 3d
1336, 1358–59 (S.D. Ga. 2019)
(concluding that the categorical
inclusion of interstate waters exceeds
the agencies’ statutory authority because
it ‘‘reads the term navigability out of the
CWA’’). For the reasons articulated
above, the agencies conclude that the
interpretation of the agencies’ authority
over interstate waters articulated in the
2020 NWPR and in Georgia v. Wheeler
is inconsistent with both the text and
the history of the Clean Water Act, as
well as Supreme Court case law.
A few commenters disagreed with the
agencies’ proposal to determine
jurisdiction over tributaries to interstate
waters, wetlands adjacent to interstate
waters or their jurisdictional tributaries,
and paragraph (a)(5) waters, by applying
the relatively permanent or significant
nexus standards to analyze their
connection to the interstate water.
Alternatively, a few commenters
supported interstate waters being
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treated like traditional navigable waters
and the territorial seas for purposes of
determining the jurisdictional status of
tributaries to interstate waters, wetlands
adjacent to interstate waters or their
jurisdictional tributaries, and paragraph
(a)(5) waters. The agencies have
concluded that, since interstate waters
are clearly jurisdictional under the
statute, the statute requires the same
protections for them as the Clean Water
Act does for traditional navigable waters
and the territorial seas. As the scientific
support for protecting tributaries,
adjacent wetlands, and paragraph (a)(5)
waters that satisfy the relatively
permanent or significant nexus standard
is the same for interstate waters as it is
for traditional navigable waters and the
territorial seas, the agencies have
reasonably defined ‘‘waters of the
United States’’ to protect such
tributaries, adjacent wetlands, and
paragraph (a)(5) waters.
In the proposed rulemaking, the
agencies requested comment on
approaches for implementing the
interstate waters provision, including
approaches for determining the
upstream and downstream extent of a
stream or river crossing a State
boundary or serving as a State boundary
that should be considered the
‘‘interstate water.’’ Several commenters
stated that the entire length of a
waterbody that is of the same stream
order as the point that crosses State
lines should be considered an interstate
water, and therefore jurisdictional.
These commenters added that where a
river or stream itself forms the
boundary, the entire length of stream
forming the boundary should be
considered an interstate water, and
therefore jurisdictional. These
commenters also added that any
additional reach of the stream that is the
same stream order as the portion
forming the boundary should also be
jurisdictional. One commenter stated
that this stream order approach is wellunderstood and consistent with the
longstanding pre-2015 regulatory regime
and stated that it is also consistent with
longstanding accepted scientific
practice. Alternatively, a few
commenters voiced opposition or
concern for using stream order to
determine the reach of an interstate
water, with one commenter stating that
the approach is restrictive and another
stating that it could be too expansive.
The agencies agree with commenters
who stated that stream order is an
appropriate approach for determining
the upstream and downstream limits of
an interstate water that is a stream or
river. The agencies conclude that this
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approach is reasonable and provides a
method that is transparent, wellunderstood, predictable, and easy to
implement. This approach is consistent
with longstanding practice under the
pre-2015 regulatory regime and thus is
familiar to the agencies and the public.
Additionally, this method is consistent
with the agencies’ approach to
characterizing tributary reaches based
on stream order for purposes of
applying the relatively permanent
standard in this rule (see section
IV.C.4.c.ii of this preamble), and the
agencies’ approach to characterizing
tributary reaches based on stream order
to delineate the catchment for purposes
of applying the significant nexus
standard in this rule (see section
IV.C.4.c.iii of this preamble).
(3) Waters That Cross a State-Tribal
Bundary
The agencies requested comment in
the proposed rule on whether interstate
waters should encompass waters that
flow across, or form a part of,
boundaries of federally recognized
Tribes where these waters
simultaneously flow across, or form a
part of, State boundaries. See Public
Law 80–845, sec. 10, 62 Stat. 1155, at
1161 (1948). The agencies also sought
comment on how to identify ‘‘Tribal
boundaries’’ for purposes of
implementing the interstate waters
provision, such as boundaries
associated with a Tribe’s reservation or
boundaries associated with the term
‘‘Indian country’’ as defined at 18 U.S.C.
1151.
Multiple commenters expressed
support for treating waters that cross or
serve as State/Tribal boundaries as
interstate waters, with some
commenters stating that waters that
cross or serve as boundaries between the
lands of different Tribes (i.e., Tribal/
Tribal boundaries) should also be
deemed interstate waters under the rule.
Other commenters did not support
treating waters that cross or serve as
State/Tribal boundaries as interstate
waters. Some commenters provided
input on which boundary should be
considered a Tribal boundary for
purposes of the interstate waters
category, with many of those
commenters expressing a preference for
using ‘‘Indian country’’ as defined at 18
U.S.C. 1151 to delineate Tribal
boundaries. A few commenters
suggested that a category broader than
‘‘Indian country’’ should be used to
adequately reflect Tribal interests and
rights.
As evidenced by the feedback the
agencies have received, the issue of how
to address ‘‘Tribal boundaries’’ for
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purposes of implementing the interstate
waters provision is of great importance
to Tribes as well as various
stakeholders. The agencies recognize the
range of views expressed on this issue
to date, including support for
interpreting Tribal boundaries to
include all waters that flow across, or
form a part of, Indian country
boundaries; support for finding that
interstate waters include waters outside
of Indian country that flow into areas
where Tribes exercise treaty or other
rights; opposition to interstate waters
generally including waters that flow
across, or form part of, Tribal
boundaries; and views in between. The
agencies also acknowledge commenters
who raised questions regarding
implementation of potential
interpretations of interstate waters as
applied to Tribal boundaries.
The agencies have considered the
input received during pre-proposal
Tribal consultation and the public
comment period for the proposed rule
and, at this time, are continuing to
evaluate the issue of interstate waters
and Tribal boundaries, including what
should appropriately be considered
‘‘Tribal boundaries’’ for purposes of
identifying interstate waters under the
Clean Water Act. The agencies have
weighed the benefits of addressing this
issue now, based on the record currently
before them, versus undertaking
additional analysis and outreach to
Tribes to gain a better understanding of
Tribal boundaries as related to interstate
waters and related implications via a
separate process, described below, to
avoid delaying the entire rule.
Based on the agencies’ evaluation of
the comments received and the benefits
of further analysis and outreach, the
agencies have decided to conduct
additional analysis and outreach to
inform a future action related to
considering designating waters that
cross a State/Tribal boundary as
interstate waters under the definition of
‘‘waters of the United States.’’ The
agencies recognize the importance of
this issue to Tribes and are fully
committed to directly engaging with
Tribal governments as the agencies
continue to evaluate this aspect of the
scope of ‘‘waters of the United States.’’
Accordingly, the agencies will
address this issue in a subsequent action
after completing additional analysis and
essential outreach and engagement
activities with Tribes and interested
stakeholders. Although the agencies are
not taking a position on this specific
issue at this time, a water that crosses
a State/Tribal boundary may be
jurisdictional if it otherwise falls within
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this rule’s definition of ‘‘waters of the
United States.’’
3. Impoundments
a. This Rule
Consistent with the proposal, this rule
retains the provision in the 1986
regulations that defines ‘‘waters of the
United States’’ to include
impoundments of ‘‘waters of the United
States.’’ Impoundments are
distinguishable from natural lakes and
ponds because they are created by
discrete structures (often human-built)
like dams or levees that typically have
the effect of raising the water surface
elevation, creating or expanding the area
of open water, or both. Impoundments
can be natural (like beaver ponds) or
artificial (like reservoirs).
The agencies’ implementation of the
paragraph (a)(2) impoundments
category 91 is based on two primary
principles. First, as a matter of policy,
law, and science, impoundments do not
render ‘‘waters of the United States’’ no
longer ‘‘waters of the United States.’’
Second, as a matter of policy and
science, if an impounded water has the
characteristics of another jurisdictional
water, then the impoundment is
jurisdictional. Based on these
principles, in implementing this rule
the agencies consider paragraph (a)(2)
impoundments to include (1)
impoundments created by impounding
one of the ‘‘waters of United States’’ that
was jurisdictional under this rule’s
definition at the time the impoundment
was created, and (2) impoundments of
waters that at the time of assessment
meet the definition of ‘‘waters of the
United States’’ under paragraph (a)(1),
(a)(3), or (a)(4) of this rule, regardless of
the water’s jurisdictional status at the
time the impoundment was created.
Waters that are jurisdictional under
paragraph (a)(5) are the exception to
these two implementing principles. The
text of this regulation states that they are
not covered by paragraph (a)(2).
Therefore, waters that are jurisdictional
under paragraph (a)(5) do not
categorically retain their jurisdictional
status as ‘‘waters of the United States’’
91 Impounded waters may be jurisdictional under
provisions other than the paragraph (a)(2)
impoundments provision. For example, they may
be impoundments that are traditional navigable
waters and would be jurisdictional under paragraph
(a)(1), or they may be impounded adjacent wetlands
and meet the requirements to be jurisdictional
under the paragraph (a)(4) adjacent wetlands
provision. To provide clarity in this preamble,
when the agencies are discussing the subsection of
impoundments that are jurisdictional under
paragraph (a)(2) because they are impoundments of
‘‘waters of the United States,’’ the agencies will
refer to ‘‘paragraph (a)(2) impoundments.’’
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under paragraph (a)(2).92 However, a
subsequently impounded jurisdictional
paragraph (a)(5) water may still be
determined to be jurisdictional if it
meets the requirements of a category of
‘‘waters of the United States’’ other than
paragraph (a)(2) at the time of
assessment (i.e., as a traditional
navigable water, the territorial seas, an
interstate water, a jurisdictional
tributary, a jurisdictional adjacent
wetland, or a paragraph (a)(5) water).93
Consistent with the 1986 regulations,
under this rule tributaries may be
tributaries to paragraph (a)(1) or (a)(2)
waters. Tributaries to paragraph (a)(2)
impoundments, and wetlands adjacent
to such tributaries, are jurisdictional if
they meet either the relatively
permanent standard or the significant
nexus standard. Additionally, wetlands
adjacent to paragraph (a)(2)
impoundments are jurisdictional if they
meet either the relatively permanent
standard or the significant nexus
standard. In order for a tributary to a
paragraph (a)(2) impoundment to meet
the relatively permanent standard, the
agencies must be able to trace evidence
of a flowpath (e.g., physical features on
the landscape, such as a channel, ditch,
pipe, or swale) directly or indirectly
through another water or waters,
downstream from the structure that
creates the paragraph (a)(2)
impoundment to a paragraph (a)(1)
water. When evaluating a wetland
adjacent to a paragraph (a)(2)
impoundment under the relatively
permanent standard, field staff would
assess whether the impounded water is
relatively permanent, standing or
continuously flowing, and then
determine whether the wetland has a
continuous surface connection to the
impoundment. When evaluating a
wetland adjacent to a jurisdictional
tributary to a paragraph (a)(2)
impoundment when the jurisdictional
tributary meets the relatively permanent
standard, field staff would determine
92 When an approved jurisdictional determination
does not exist for an impounded water that the
agencies conclude based on its characteristics could
only be jurisdictional under paragraph (a)(5), the
paragraph (a)(2) impoundments provision does not
apply and the water will be assessed under another
jurisdictional category.
93 For example, if a stream that is not part of the
tributary system of a paragraph (a)(1) water, but
which is assessed under paragraph (a)(5) and is
determined to meet the significant nexus standard,
is lawfully impounded subsequent to the
jurisdictional determination, the stream is not
automatically jurisdictional as a paragraph (a)(2)
water under this rule. However, the impounded
stream may still meet the significant nexus standard
under paragraph (a)(5) or the impounded stream
may develop the characteristics of a traditional
navigable water and become jurisdictional under
paragraph (a)(1).
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whether the wetland has a continuous
surface connection to the tributary. See
section IV.C.4.c and section IV.C.5.c of
this preamble for additional information
on evaluations under the relatively
permanent standard for tributaries and
adjacent wetlands. For a tributary to a
paragraph (a)(2) impoundment, a
wetland adjacent to a paragraph (a)(2)
impoundment, or a wetland adjacent to
a tributary to a paragraph (a)(2)
impoundment, that is assessed under
the significant nexus standard, the
significant nexus must be to a paragraph
(a)(1) water. See sections IV.C.4.c and
IV.C.5.c of this preamble for additional
information on significant nexus
evaluations for tributaries and adjacent
wetlands.
b. Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
The agencies have determined that as
a matter of law, science, and policy,
impoundments do not de-federalize a
water, and therefore impoundments of
‘‘waters of the United States’’ remain
‘‘waters of the United States.’’ The
Supreme Court has confirmed that
damming or impounding ‘‘waters of the
United States’’ does not make those
waters non-jurisdictional. See S.D.
Warren Co. v. Maine Bd. of Envtl. Prot.,
547 U.S. 370, 379 n.5 (2006) (‘‘S.D.
Warren’’) (‘‘[N]or can we agree that one
can denationalize national waters by
exerting private control over them.’’).
While S.D. Warren addressed the
meaning of the word ‘‘discharge’’ rather
than the definition of ‘‘waters of the
United States,’’ the Court’s conclusion
regarding the jurisdictional status of a
dammed river supports the agencies’
longstanding interpretation of the Clean
Water Act that ‘‘waters of the United
States’’ remain ‘‘waters of the United
States’’ even if impounded, as reflected
in the 1986 regulations and continued
in this rule. Essentially, the action of
creating an impoundment cannot on its
own render ‘‘waters of the United
States’’ no longer jurisdictional.94 The
Court of Appeals for 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
94 Note that a Clean Water Act section 404 permit
may authorize impoundment of a water such that
the water is no longer jurisdictional, for example,
to create a waste treatment system that is excluded
from the definition of ‘‘waters of the United States.’’
In such circumstances, the water is analyzed under
the regulatory exclusion where applicable, not
under the impoundments provision of the
definition.
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F.3d 984, 988 (9th Cir. 2007), cert.
denied, 554 U.S. 918 (2008).
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. As discussed in section
III.C of the Technical Support
Document, impoundments are typically
built to maintain some level of
hydrologic connection between the
water that is being impounded and the
downstream tributary network. For
example, water may pass from a
reservoir to the downstream side of an
impoundment by passing through a
main spillway or outlet works, passing
over an auxiliary spillway, or
overtopping the impoundment. 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, 2003, ‘‘Investigating Leaks in
Dams & Reservoirs.’’ INIS–XA–616.
Vienna, Austria (‘‘All dams are designed
to lose some water through seepage.’’);
U.S. Bureau of Reclamation, ‘‘Safety of
Dams.’’ Provo Area Office (last updated
July 1, 2017) (‘‘All dams seep, but the
key is to control the seepage through
properly designed and constructed
filters and drains.’’); Federal Energy
Regulatory Commission, 2005, ‘‘Chapter
14: Dam Safety Performance Monitoring
Program.’’ Engineering Guidelines for
the Evaluation of Hydropower Projects.
(‘‘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 section III.C of the
Technical Support Document.
Paragraph (a)(2) waters include
impoundments created in waters that
were jurisdictional under this rule’s
definition at the time the impoundment
was created, as well as impoundments
of waters that at the time of assessment
are jurisdictional under paragraph (a)(1),
(a)(3), or (a)(4) of this rule regardless of
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the water’s jurisdictional status at the
time the impoundment was created.95
This is generally consistent with the
agencies’ longstanding approach to
impoundments. See U.S. Army Corps of
Engineers Jurisdictional Determination
Form Instructional Guidebook (2007) at
58, available at https://
www.usace.army.mil/Missions/CivilWorks/Regulatory-Program-andPermits/Related-Resources/CWAGuidance/ (hereinafter, ‘‘2007 Corps
Instructional Guidebook’’). The agencies
have concluded that it is appropriate
based on relevant case law, science, and
as a practical matter to interpret ‘‘waters
of the United States’’ to include both
impoundments of waters that qualified
as ‘‘waters of the United States’’ under
this rule’s definition at the time of
impoundment, and impoundments of
waters that at the time of assessment
meet the definition of ‘‘waters of the
United States’’ (other than waters
jurisdictional under paragraph (a)(5)).
As discussed above, waters that
qualified as ‘‘waters of the United
States’’ at the time of impoundment
(other than waters jurisdictional under
paragraph (a)(5)) remain ‘‘waters of the
United States.’’ And impoundments of
waters that at the time of assessment fall
within one of the other categories of
‘‘waters of the United States’’ in this
rule (other than waters jurisdictional
under paragraph (a)(5)) are
jurisdictional under paragraph (a)(2).
The agencies received a variety of
comments on impoundments during the
public comment period. Some
commenters supported the agencies’
inclusion of impoundments of ‘‘waters
of the United States’’ as a separate
category of jurisdictional waters. A few
commenters stated that the relatively
permanent standard and significant
nexus standard should also apply to
impoundments for the purposes of
jurisdiction. Some commenters agreed
with the proposed rule’s approach to
not include impounded paragraph (a)(5)
waters in the impoundments category.
Many commenters requested the
agencies provide greater clarity about
the definition of impoundments.
After consideration of public
comments and for the reasons described
above and in section III.C of the
Technical Support Document, the
agencies affirm in this rule that
impoundments of ‘‘waters of the United
States’’ remain ‘‘waters of the United
States,’’ except for impoundments of
paragraph (a)(5) waters, which the
95 See
infra for a discussion of impoundments of
waters that are jurisdictional as paragraph (a)(5)
waters, which are treated differently under this
rule.
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agencies find are better assessed under
other categories of this rule. As
discussed above, paragraph (a)(2)
impoundments of ‘‘waters of the United
States’’ legally remain ‘‘waters of the
United States,’’ so the agencies are not
requiring an additional determination of
their jurisdiction under this rule. While
the agencies are not defining
‘‘impoundment’’ in this rule, in this
preamble the agencies are providing
additional clarity below about the types
of impoundments that are and that are
not considered ‘‘waters of the United
States’’ under paragraph (a)(2).
Additionally, section IV.C.3.c of this
preamble provides implementation
guidance for identifying impoundments
on the landscape.
As in the proposed rule,
impoundments of waters that are
determined to be jurisdictional under
paragraph (a)(5) are not included in this
rule as paragraph (a)(2) impoundments.
As discussed above, impoundments of
paragraph (a)(5) waters would need to
be assessed for jurisdiction in their
current state under paragraph (a)(1),
(a)(3), (a)(4), or (a)(5) of this rule. Thus,
if a water is determined to be
jurisdictional under paragraph (a)(5)
and is then later lawfully impounded, it
is not jurisdictional by rule under the
paragraph (a)(2) impoundments
provision. Instead, the impoundment of
a paragraph (a)(5) water would itself
need to be assessed in its current state
to determine whether it is jurisdictional
under one of the provisions of the rule
besides paragraph (a)(2). Impounded
paragraph (a)(5) waters will most likely
continue to not meet any of the other
categories of jurisdictional waters and
will therefore need to be re-assessed
under paragraph (a)(5). However, if,
once impounded, such a water became,
for example, a traditional navigable
water, it would be jurisdictional under
paragraph (a)(1) of this rule. This
approach in this rule is consistent with
the agencies’ careful approach to
jurisdiction over paragraph (a)(5)
waters. For example, as discussed in
sections IV.C.4 and IV.C.5 of this
preamble below, the ‘‘tributaries’’
category does not include tributaries to
paragraph (a)(5) waters and the adjacent
wetlands category does not include
wetlands adjacent to paragraph (a)(5)
waters. This change from the 1986
regulations reflects the agencies’
consideration of the jurisdictional
concerns and limitations of the statute
as informed by SWANCC and Rapanos.
c. Implementation
Under this rule, for the reasons
discussed above, impounding a water
that meets the definition of ‘‘waters of
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the United States’’ generally does not
affect such water’s jurisdictional status,
consistent with pre-2015 practice. See
2007 Corps Instructional Guidebook at
58. A water can be found to be a
jurisdictional impoundment under
paragraph (a)(2) of this rule if (1) the
impounded water met the definition of
‘‘waters of the United States’’ based on
this rule’s definition at the time the
impoundment was created 96 (other than
an impoundment of a paragraph (a)(5)
water) or (2) the water that is being
impounded, at the time of assessment,
meets the definition of ‘‘waters of the
United States’’ under paragraph (a)(1),
(a)(3), or (a)(4), regardless of the water’s
jurisdictional status when the
impoundment was created. The
agencies also note that over time an
impoundment of a water that does not
initially meet the definition of ‘‘waters
of the United States’’ can become
jurisdictional under another provision
of the regulation; for example, an
impounded water could become
navigable-in-fact and covered under
paragraph (a)(1)(i) of this rule. This
approach to implementation of
impoundments is generally consistent
with pre-2015 practice. This section of
the preamble provides information for
determining jurisdiction for
impoundments under paragraph (a)(2)
and for determining jurisdiction for
tributaries of impoundments, wetlands
adjacent to impoundments, and
wetlands adjacent to tributaries of
impoundments.
i. Determining the Presence of a
Paragraph (a)(2) Impoundment
Impoundments are distinguishable
from natural lakes and ponds because
they are created by discrete structures
(often human-built) like dams or levees
that typically have the effect of raising
the water surface elevation, creating or
expanding the area of open water, or
both. Impoundments can vary in size,
with some being very small and others
being very large, like Lake Mead, a
reservoir on the Colorado River that is
created by the Hoover Dam. Paragraph
(a)(2) impoundments under this rule can
include both natural impoundments
(like beaver ponds) and artificial
impoundments (like reservoirs).
Paragraph (a)(2) impoundments under
this rule can be located off-channel (i.e.,
96 Note, however, if an impoundment is a waste
treatment system constructed prior to the 1972
Clean Water Act amendments, it is eligible for the
exclusion under paragraph (b) of this rule so long
as the system is in compliance with currently
applicable Clean Water Act requirements, such as
treating water such that discharges, if any, from the
system meet the Act’s requirements. See section
IV.C.7.b of this preamble.
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an impoundment with no outlet or
hydrologic connection to the tributary
network) or in-line with the channel
(i.e., an impoundment with a hydrologic
connection to the tributary network).
An impoundment is jurisdictional
under paragraph (a)(2) of this rule if the
impounded water met the definition of
‘‘waters of the United States’’ based on
this rule’s definition when the
impoundment was created (other than
impoundments of paragraph (a)(5)
waters). To determine if an
impoundment meets this criterion, the
water would be assessed to see if the
water was jurisdictional as a paragraph
(a)(1) water, tributary, or adjacent
wetland based on this rule’s definition
at the time it was impounded. Tools that
can be used for such assessment are
discussed further in sections IV.C.4.c
and IV.C.5.c of this preamble. Historic
aerial photographs, maps, and
geospatial datasets may be particularly
useful in helping to determine if a water
was jurisdictional under paragraph
(a)(1), (a)(3), or (a)(4) of this rule at the
time the impoundment was created,
especially where such materials depict
the aquatic system before and after the
impoundment was created. Similarly,
planning, engineering, and design
documents, if available, may provide
useful information.
Paragraph (a)(2) waters also include
impoundments of waters that at the time
of assessment are jurisdictional under
paragraph (a)(1), (a)(3), or (a)(4) of this
rule regardless of the water’s
jurisdictional status at the time the
impoundment was created. This
approach is consistent with pre-2015
practice. See 2007 Corps Instructional
Guidebook at 58. A water that is
impounded may not meet this rule’s
jurisdictional criteria at the time the
water was originally impounded, but
the water may meet this rule’s
jurisdictional criteria at the time of the
assessment (in some cases, many years
later). This is because aquatic resources
generally can evolve over time as
aquatic landscapes, precipitation and
other climatic patterns, and other
environmental conditions change, or
due to human-caused changes (e.g.,
stream modification, filling in of
wetlands, water withdrawals, or effluent
discharges). Impounded waters may be
particularly likely to evolve as the
surface waters are raised or expanded
behind the impoundment. To determine
if an impoundment is jurisdictional
based on such changes, the impounded
water would be assessed to see if it is
a traditional navigable water, the
territorial seas, an interstate water, a
jurisdictional tributary, or a
jurisdictional adjacent wetland. Tools
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that can be used for such assessment are
discussed further in sections IV.C.4.c
and IV.C.5.c of this preamble.
In assessing if an impoundment of a
paragraph (a)(1) water is jurisdictional
under paragraph (a)(2), the agencies
would assess whether the water that is
being impounded met the requirements
to be a paragraph (a)(1) water under this
rule either at the time of impoundment
or at the time of assessment.
Impoundments of paragraph (a)(1)
waters that continue to meet the
requirements under paragraph (a)(1)
remain paragraph (a)(1) waters.
In assessing whether an
impoundment of a tributary is
jurisdictional under paragraph (a)(2),
the agencies would first assess if the
tributary either met this rule’s definition
of ‘‘waters of the United States’’ at the
time the impoundment was created or if
the tributary meets this rule’s definition
of ‘‘waters of the United States’’ at the
time of assessment. For impoundments
of tributaries that met this rule’s
definition of ‘‘waters of the United
States’’ at the time the impoundment
was created, the agencies must be able
to demonstrate that at the time the
impoundment was created, there was
evidence of a flowpath (e.g., physical
features on the landscape, such as a
channel, ditch, pipe, or swale) directly
or indirectly through another water or
waters, downstream from the structure
that created the impoundment to a
paragraph (a)(1) water. Thus, an
impoundment of a tributary that met
this rule’s definition of ‘‘waters of the
United States’’ at the time the
impoundment was created could
currently be located off-channel (e.g.,
due to changes in hydrology) or in-line
with the channel, but the flowpath
would only need to be traceable at the
time the impoundment was created. For
impoundments of tributaries that meet
this rule’s definition of ‘‘waters of the
United States’’ at the time of
assessment, the agencies must be able to
at the time of assessment trace a
flowpath directly or indirectly through
another water or waters, downstream
from the structure that creates the
impoundment to a paragraph (a)(1)
water. Thus, impoundments of
tributaries that meet the definition of
‘‘waters of the United States’’ at the time
of assessment will always be in-line
with the channel due to the flowpath
requirement. This is consistent with the
agencies’ approach to tributaries under
the final rule. See section IV.C.4. of this
preamble. As with assessment of
tributaries under this rule, while the
physical flowpath from the paragraph
(a)(2) impoundment to the paragraph
(a)(1) water must be traceable, there is
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not a need to demonstrate that flow
from the impoundment reaches the
paragraph (a)(1) water. For an offchannel impoundment (i.e., an
impoundment with no outlet to the
tributary network), such as an
impoundment of a jurisdictional
adjacent wetland, such a flowpath is not
required. Under the final rule, adjacent
wetlands do not require a flowpath to
the tributary network, and similarly,
impoundments of such adjacent
wetlands do not require a flowpath. The
agencies would only need to determine
that the impoundment was created in a
water that is currently jurisdictional
under paragraphs (a)(1) through (4) or
that the impoundment was created in a
water that was jurisdictional under
paragraphs (a)(1) through (4) at the time
the impoundment was created.
In assessing whether an
impoundment of an adjacent wetland is
jurisdictional under paragraph (a)(2),
the agencies would need to determine
that the impoundment was created in an
adjacent wetland that was jurisdictional
at the time the impoundment was
created or that is currently jurisdictional
at the time of assessment. Such
impoundments of adjacent wetlands
may be located either off-channel or inline with the channel, and do not
require a traceable flowpath that is
required for impoundments of
tributaries. This is because under the
final rule, adjacent wetlands do not
require a flowpath to the tributary
network, and similarly, impoundments
of such adjacent wetlands do not require
a flowpath.
Because impoundments can be
jurisdictional under other categories of
‘‘waters of the United States’’ under this
rule, field staff may document that the
impoundment is jurisdictional under
other categories. For example, if an
impoundment is itself a traditional
navigable water, part of the territorial
seas, or an interstate water, the agencies
would typically determine that the
impoundment is a paragraph (a)(1)
water, rather than asserting jurisdiction
under paragraph (a)(2) of this rule. Field
staff may document any such waters as
jurisdictional under the relevant
provision of the rule rather than
documenting that it is jurisdictional as
a paragraph (a)(2) impoundment.
Finally, as discussed above in section
IV.C.3.b of this preamble, waters that are
jurisdictional under paragraph (a)(5)
and that are subsequently impounded
do not categorically retain their
jurisdictional status as ‘‘waters of the
United States’’ under paragraph (a)(2). If
the impoundment of the paragraph
(a)(5) water does not meet the
jurisdictional standards under one of
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the other categories of ‘‘waters of the
United States’’ in this rule (i.e., as a
paragraph (a)(1) water, jurisdictional
tributary, or jurisdictional adjacent
wetland), the impoundment would be
re-assessed as a paragraph (a)(5) water.
Implementation of waters assessed
under paragraph (a)(5) is discussed in
section IV.C.6.c of this preamble.
ii. Determining Jurisdiction for
Tributaries of Impoundments, Wetlands
Adjacent to Impoundments, and
Wetlands Adjacent to Tributaries of
Impoundments
Tributaries of paragraph (a)(2)
impoundments are jurisdictional, as
with all tributaries under this rule,
when they meet either the relatively
permanent standard or the significant
nexus standard. In order to determine if
a water is a tributary of a paragraph
(a)(2) impoundment, the same tools and
methods can be used that are discussed
in section IV.C.4.c.i of this preamble to
trace the flowpath to the impoundment.
Field staff would then determine if the
tributary should be evaluated under the
relatively permanent standard or the
significant nexus standard. For
tributaries assessed under the relatively
permanent standard, the agencies must
be able to trace evidence of a flowpath
downstream from the structure that
creates the impoundment to a paragraph
(a)(1) water. To meet the latter standard,
the significant nexus must be to a
paragraph (a)(1) water. Implementation
of the relatively permanent standard for
tributaries is discussed in more detail in
section IV.C.4.c.ii of this preamble.
Implementation of the significant nexus
standard for tributaries is discussed in
section IV.C.4.c.iii of this preamble.
For tributaries of paragraph (a)(2)
impoundments that are evaluated under
the relatively permanent standard, field
staff would determine if the tributary
has flowing or standing water yearround or continuously during certain
times of the year, see section IV.C.4.c.ii
of this preamble, and then determine
whether there is evidence of a flowpath
downstream from the structure that
creates the impoundment to a paragraph
(a)(1) water. As with all tributaries
under the rule, there is no requirement
under the relatively permanent standard
for relatively permanent flow for the
entirety of a tributary’s flowpath to a
downstream paragraph (a)(1) water. See
id. Thus, under the relatively permanent
standard for tributaries of paragraph
(a)(2) impoundments, field staff would
not need to determine that flow occurs
over, through, around, or underneath
the structure that creates the
impoundment. Instead, the agencies
will document that flow occurs from the
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tributary to the impoundment, either
directly or indirectly through another
water or waters, including nonjurisdictional features, as described in
section IV.C.4 of this preamble, and that
there is evidence of a flowpath
downstream of the structure (e.g.,
physical features on the landscape, such
as a channel, non-jurisdictional ditch,
pipe, or swale) to a paragraph (a)(1)
water, either directly or indirectly
through another water or waters. For
example, a tributary may flow through
another stream that flows infrequently,
and only in direct response to
precipitation, and the presence of that
stream is sufficient to demonstrate that
the tributary flows to a paragraph (a)(1)
water.
If a wetland is adjacent to a paragraph
(a)(2) impoundment and that wetland is
evaluated under the relatively
permanent standard, field staff would,
only for purposes of determining
whether the adjacent wetland meets the
relatively permanent standard, assess
whether the impounded water is
relatively permanent, standing or
continuously flowing. Next, field staff
would determine whether the wetland
has a continuous surface connection to
the paragraph (a)(2) impoundment,
consistent with section IV.C.5 of this
preamble. If the paragraph (a)(2)
impoundment is not relatively
permanent, standing or continuously
flowing, then field staff will assess the
adjacent wetland under the significant
nexus standard.
If a wetland is adjacent to a tributary
to a paragraph (a)(2) impoundment, and
the tributary meets the relatively
permanent standard, the wetland would
be assessed for whether it has a
continuous surface connection to the
tributary, consistent with section IV.C.5
of this preamble. If the adjacent wetland
does not have a continuous surface
connection, it will be assessed under the
significant nexus standard. If the
tributary does not meet the relatively
permanent standard, then field staff will
assess the adjacent wetland under the
significant nexus standard. To apply the
significant nexus standard to tributaries
of paragraph (a)(2) impoundments,
wetlands adjacent to those tributaries, or
wetlands adjacent to paragraph (a)(2)
impoundments, the agencies will assess
if the waters of interest significantly
affect the chemical, physical, or
biological integrity of paragraph (a)(1)
waters using the tools and approaches
described in sections IV.C.4.c.iii and
IV.C.5.c.iii of this preamble. As part of
that analysis, the agencies will
determine if there is a surface or
subsurface hydrologic connection
downstream that is maintained over,
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through, around, or underneath the
structure that creates the impoundment.
Such a hydrologic connection can occur
in a variety of ways, such as
overtopping of the structure or through
features like dam spillways, drainage
and other galleries, sluiceways, culverts,
pipes, diversion tunnels, or conduits
that are built to maintain a hydrologic
connection through the dam or levee.
Subsurface hydrologic connectivity can
also occur via seepage through or
underneath the dam or similar structure.
Field staff can document that surface or
subsurface hydrologic connectivity
occurs using direct observation of
overtopping or a feature that is
constructed to maintain a hydrologic
connection, through review of
construction plans for the structure,
through other field observations (e.g.,
dye tests or tracer studies, or
observations of flow within the spillway
such as bent over vegetation or water
staining where the spillway is concrete,
soil saturation, changes in vegetation
above and below the structure), or
through remote tools (e.g., aerial
photography interpretation that
provides indications of wetter
signatures below the dam). As stated in
section IV.C.9 of this preamble, a
hydrologic connection to a paragraph
(a)(1) water is not necessary to
determine that the water being
evaluated significantly affects the
integrity of paragraph (a)(1) waters,
though it is one of the factors that is
considered. Where such a hydrologic
connection exists at the surface or
subsurface, it can help to facilitate the
functions that the tributary of the
paragraph (a)(2) impoundment performs
that impact the downstream paragraph
(a)(1) water, such as contribution of
flow, pollutants, sediment, and organic
material. In the rare circumstances
where such a hydrologic connection
does not exist, the lack of such a
connection can facilitate other
functions, such as holding back
floodwaters that could otherwise harm
paragraph (a)(1) waters. See preamble
section IV.C.9 for additional information
on implementing the significant nexus
standard more generally.
4. Tributaries
a. This Rule
Consistent with the proposal, this rule
retains the tributary provision of the
1986 regulations, updated to reflect
consideration of the law, the science,
and agency expertise. The 1986
regulations defined ‘‘waters of the
United States’’ to include tributaries of
traditional navigable waters, interstate
waters, paragraph (a)(3) ‘‘other waters’’
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(a category that has been modified and
codified in this rule as paragraph (a)(5)
waters) and impoundments. With this
rule, the agencies are adding the
territorial seas to the list of waters to
which tributaries may connect to
constitute a jurisdictional tributary and
removing paragraph (a)(3) waters from
the list. This rule defines ‘‘waters of the
United States’’ to include tributaries of
traditional navigable waters, the
territorial seas, interstate waters, or
paragraph (a)(2) impoundments if the
tributaries meet either the relatively
permanent standard or the significant
nexus standard.
The 1986 regulations do not contain
a definition of ‘‘tributary,’’ and the
agencies similarly are not including a
definition in this rule. However, for
more than 45 years, the agencies have
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 (July 19, 1977).
Accordingly, the agencies are
maintaining their interpretation of
tributary for purposes of the definition
of ‘‘waters of the United States.’’ See
Rapanos Guidance at 6 n.24. A tributary
for purposes of this rule includes rivers,
streams, lakes, ponds, and
impoundments, regardless of their flow
regime, that flow directly or indirectly
through another water or waters to a
traditional navigable water, the
territorial seas, or an interstate water.
Waters through which a tributary may
flow indirectly include, for example,
impoundments, wetlands, lakes, ponds,
and streams. A tributary may flow
through a number of downstream
waters, including a non-jurisdictional
tributary or non-jurisdictional features,
such as a ditch excluded under
paragraph (b) of this rule or an excluded
waste treatment system, and
jurisdictional waters that are not
tributaries, such as an adjacent wetland.
But to be jurisdictional, the tributary
must be part of a tributary system that
eventually flows to a traditional
navigable water, the territorial seas, or
an interstate water. The agencies will
utilize the Corps’ well-established
definition of an ordinary high water
mark (OHWM) to assist in identifying
tributaries for purposes of this rule. See
section IV.C.4.c.i of this preamble for
information on using the OHWM to
assist in identifying a water as a
tributary for purposes of this rule. To be
a jurisdictional tributary under this
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provision of the rule, the tributary must
meet either the relatively permanent
standard or the significant nexus
standard.
Like the 1986 regulations, this rule
includes tributaries of interstate waters
since interstate waters, like traditional
navigable waters and the territorial seas,
are waters clearly protected by the Clean
Water Act. In this rule, the agencies are
adding 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.
Because the territorial seas are explicitly
covered by the Clean Water Act, it is
reasonable and appropriate to protect
tributaries to the territorial seas that
meet either the relatively permanent
standard or the significant nexus
standard for the same reasons that
tributaries to traditional navigable
waters are protected. In practice, the
agencies recognize that most tributaries
will reach a traditional navigable water
before they reach the territorial seas.
Finally, consistent with the 1986
regulations, this rule includes
tributaries that flow directly or
indirectly through another water or
waters to paragraph (a)(2)
impoundments.97
The agencies’ longstanding
interpretation of the Clean Water Act
includes tributaries that are natural,
modified, or constructed waters. The
Clean Water Act, in defining ‘‘navigable
waters,’’ does not turn on any such
distinctions, which have no bearing on
a tributary’s capacity to carry water (and
pollutants) to paragraph (a)(1) waters.
See, e.g., Technical Support Document
section II.B.iv.3 (explaining that humanmade ditches ‘‘perform many of the
same functions as natural tributaries,’’
including ‘‘convey[ing] water that
carries nutrients, pollutants, and other
constituents, both good and bad, to
downstream traditional navigable
waters’’). Given the extensive human
modification of watercourses and
hydrologic systems throughout the
country, it is often difficult to
distinguish, as a practical or scientific
matter, between natural watercourses
and watercourses that are wholly or
partly modified or constructed. For
example, tributaries that have been
channelized in concrete or otherwise
have been modified would still be
tributaries for purposes of this rule so
long as they contribute flow to a
traditional navigable water, the
territorial seas, or an interstate water,
and so long as they are not excluded
97 See discussion of tributaries to paragraph (a)(2)
impoundments in section IV.C.3 of this preamble.
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under paragraph (b) of this rule. Thus,
tributaries can include ditches and
canals.
Under this rule, swales and erosional
features (e.g., gullies, small washes)
characterized by low volume,
infrequent, or short duration flow are
not tributaries and are not jurisdictional.
See section IV.C.7 of this preamble.
Once a water is determined to be a
tributary, under this rule, the tributary
must meet either the relatively
permanent or significant nexus standard
to be jurisdictional. The relatively
permanent standard encompasses
tributaries that have flowing or standing
water year-round or continuously
during certain times of the year.
Relatively permanent waters do not
include tributaries with flowing or
standing water for only a short duration
in direct response to precipitation. In
evaluating tributaries under the
significant nexus standard, the agencies
will determine whether the tributaries,
either alone or in combination with
similarly situated waters in the region,
significantly affect the chemical,
physical, or biological integrity of
paragraph (a)(1) waters. Implementation
of each of those standards for purposes
of determining jurisdiction over
tributaries is discussed below in section
IV.C.4.c of this preamble.
b. Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
Commenters expressed a range of
views on the agencies’ proposed
treatment of tributaries. This section of
the preamble provides a summary of the
major comments received on the
regulatory text and the agencies’
consideration of the comments. The
preamble to the proposed rule also
provided information about the
agencies’ longstanding interpretation of
practice for identifying tributaries for
purposes of the definition of ‘‘waters of
the United States,’’ and this section also
summarizes and addresses major
comments received on those topics.
i. Comments on the Tributaries
Provision of This Rule
Some commenters requested that the
agencies include a definition of
‘‘tributary’’ in this rule. A subset of
these commenters stated that the
definition should include waters with a
bed, bank, or other evidence of flow that
contribute flow directly or indirectly to
downstream paragraph (a)(1) waters.
Other commenters maintained that the
lack of a formal definition makes it
unclear which features are tributaries
and which are not. Some of these
commenters stated that the lack of a
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definition left too much discretion to
the agencies to identify tributaries based
on physical features, which they
asserted would lead to confusion. Some
commenters supported the proposed
approach for assessing tributaries,
stating that the longstanding
interpretation and practice would allow
for regionalized implementation.
Although the agencies are not
promulgating a new definition of
‘‘tributary’’ the agencies have decades of
experience implementing the 1986
regulations (which also did not include
a definition of ‘‘tributary’’) and have
concluded that a new regulatory
definition of tributary is not required.
To provide further clarity, the agencies
have been careful in this preamble to
articulate and explain the agencies’
well-established interpretation and
practices for identifying tributaries. In
addition, the agencies note that while
the first step under this provision of the
regulation is to identify whether a water
is a tributary under longstanding
practice, that is not the end of the
inquiry under this rule, in contrast to
the 1986 regulations. A water must not
only be a tributary but must also meet
either the relatively permanent standard
or the significant nexus standard to be
jurisdictional under this provision.
These standards provide important
limitations that also help define the
scope of the tributaries that are
jurisdictional under the rule.
Commenters on the proposed rule
expressed a variety of perspectives on
the appropriate scope of jurisdiction for
tributaries. Some commenters supported
the proposal that tributaries are
jurisdictional if they meet either the
relatively permanent or significant
nexus standard. Other commenters
asserted that tributaries should meet
both standards. Some commenters
stated that this rule should include
categorical protections for all tributaries
(e.g., features with an OHWM), rather
than requiring case-by-case analysis,
asserting that such an interpretation is
supported by the science and Supreme
Court case law. For the reasons
described in section IV.A of this
preamble, this rule defines ‘‘waters of
the United States’’ to include tributaries
that meet either the relatively
permanent standard or the significant
nexus standard on a case-specific basis.
Some commenters criticized the
definition of ‘‘tributary’’ from the 2020
NWPR, while others supported that
definition, stating that it was clear and
logical. The 2020 NWPR defined
‘‘tributary’’ as a river, stream, or similar
naturally occurring surface water
channel that contributes surface water
flow to the territorial seas or a
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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
definition of ‘‘tributary’’ in the 2020
NWPR failed to advance the objective of
the Clean Water Act and was
inconsistent with scientific information
about the important effects of many
types of tributaries on the integrity of
downstream paragraph (a)(1) waters.
The key limitations that the 2020
NWPR created in its definition of
‘‘tributary,’’ which this rule does not
adopt, are the categorical exclusion of
ephemeral streams and the requirement
that streams contribute flow to a
traditional navigable water or territorial
sea in a ‘‘typical year.’’ With respect to
ephemeral streams, commenters
provided a wide variety of perspectives
on whether they should be
jurisdictional under this rule. Some
commenters asserted that the agencies’
interpretation of tributary should
exclude ephemeral streams. Some
commenters asserted that ephemeral
streams should be categorically
jurisdictional under this rule. These
commenters referenced the importance
of ephemeral streams for providing
functions like nutrient and materials
transport, erosion and flood control,
water quality maintenance downstream,
drinking water and irrigation
provisioning, groundwater recharge, and
wildlife habitat. Other commenters
asserted that ephemeral streams are
important for buffering against the
impacts of climate change, supporting
Tribal communities, and providing
functions in specific regions like arid
areas. Another group of commenters
stated that all ephemeral streams should
be non-jurisdictional across the country,
or non-jurisdictional in certain regions
such as the arid West. These
commenters asserted that ephemeral
streams do not flow frequently enough
or provide sufficiently important
functions to impact the integrity of
downstream paragraph (a)(1) waters. As
discussed further in section IV.A of this
preamble, the agencies are not
categorically including or excluding
streams as jurisdictional based on their
flow regime in this rule. The agencies
agree that ephemeral streams can
provide many important functions for
paragraph (a)(1) waters.
With respect to the ‘‘typical year
requirement’’ in the 2020 NWPR
definition of ‘‘tributary,’’ the agencies
found it challenging and sometimes
impossible to implement, for the
reasons discussed in section IV.B.3.c of
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this preamble. The ‘‘typical year’’
requirement for tributaries was also not
supported by science. Scientific
information does not demonstrate that
only those streams that contribute
intermittent or perennial flow to a
traditional navigable water or territorial
sea in a ‘‘typical year’’ have significant
effects on the chemical, physical, and
biological integrity of larger downstream
waters, including paragraph (a)(1)
waters. See sections IV.B.3.a and
IV.B.3.b of this preamble. Because the
limitations in the 2020 NWPR’s
definition of ‘‘tributary’’ are inconsistent
with science and created substantial
implementation difficulties, the
agencies are not adopting this
definition. See section III.A of the
Technical Support Document for more
information on the agencies’ rationale
for the scope of tributaries covered by
this rule. Streams that are tributaries,
regardless of their flow regime, will be
assessed under the relatively permanent
or significant nexus standard per
paragraph (a)(3) of this rule, and streams
that are not tributaries will be assessed
under the relatively permanent or
significant nexus standard per
paragraph (a)(5) of this rule.
Some commenters opposed as
arbitrary and unsupported by the law or
science the agencies’ proposed approach
to delete the category for intrastate lakes
and ponds, streams, or wetlands that do
not meet another jurisdictional category
(the (a)(3) ‘‘other waters’’ provision from
the 1986 regulations) as a category of
waters to which tributaries may connect
to be determined ‘‘waters of the United
States.’’ Some of these commenters
requested clarification as to how
tributaries to intrastate lakes and ponds,
streams, or wetlands that do not meet
another jurisdictional category would be
assessed. One commenter asserted that
the agencies were ‘‘excluding’’
tributaries to paragraph (a)(5) waters.
Streams that flow to paragraph (a)(5)
waters are not excluded in this rule.
Deleting the cross reference to the
category for intrastate lakes and ponds,
streams, or wetlands that do not meet
another jurisdictional category (the
(a)(3) ‘‘other waters’’ provision from the
1986 regulations) as a category of waters
to which tributaries may connect
reflects the agencies’ consideration of
the statute as a whole and 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 such waters would have
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too tenuous a connection to paragraph
(a)(1) waters. However, in this rule any
such streams that flow to jurisdictional
paragraph (a)(5) waters could be
assessed themselves under the
paragraph (a)(5) waters category to
determine if they meet the relatively
permanent or significant nexus
standard. For example, a stream that
flows to a lake that meets the significant
nexus standard under the paragraph
(a)(5) waters provision could itself be
assessed under the paragraph (a)(5)
waters provision to determine whether
it significantly affects the chemical,
physical, or biological integrity of a
paragraph (a)(1) water.
ii. Comments on the Interpretation and
Implementation of the Tributaries
Provision of This Rule
As discussed further above, the
agencies interpret tributary for purposes
of this rule to include rivers, streams,
lakes, ponds, and impoundments that
flow directly or indirectly through
another water or waters to a traditional
navigable water, the territorial seas, an
interstate water, or a paragraph (a)(2)
impoundment. The agencies received
comments on elements of this
longstanding interpretation of tributary
for purposes of the ‘‘waters of the
United States.’’
Some commenters disagreed with the
agencies’ interpretation that tributaries
include certain lakes and ponds. Some
of these commenters stated that lakes
and ponds should comprise a separate
jurisdictional category. Several
commenters asserted that considering
certain lakes and ponds to be tributaries
could lead to overly broad jurisdiction,
and one commenter requested
clarification in this rule that not every
feature that might be considered a lake
or a pond is necessarily jurisdictional.
Other commenters agreed with the
agencies’ longstanding approach. Lakes,
ponds, and impoundments function as
part of the tributary system where they
contribute flow to downstream waters,
and therefore it is reasonable to assess
them for jurisdiction as tributaries
under this rule. The agencies will
continue to interpret the regulations to
address lakes, ponds, and
impoundments with both an inlet and
outlet connected to the tributary
network, as well as lakes, ponds, and
impoundments with an outlet
connected to the tributary network as
tributaries if they contribute flow
directly or indirectly through one or
more waters or features that lie along
the flowpath to a paragraph (a)(1) water.
The agencies have extensive experience
implementing this approach under pre2015 practice. The agencies disagree
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that this approach will lead to overly
broad jurisdiction, as these lakes, ponds,
and impoundments that are tributaries
must meet either the relatively
permanent standard or significant nexus
standard to be jurisdictional. Therefore,
not every lake, pond, or impoundment
is jurisdictional as a tributary or under
other provisions of this rule.
Some commenters supported the
agencies’ longstanding interpretation
that tributaries include waterbodies that
flow ‘‘directly or indirectly’’ to a
paragraph (a)(1) water, while other
commenters asserted that tributaries
must flow ‘‘directly’’ into a paragraph
(a)(1) water. There is no text in the
Clean Water Act supporting this
limitation, and the agencies have never
interpreted the Act to cover only such
tributaries. Even the Rapanos plurality
opinion did not so limit the scope of
tributaries covered by the Act. 547 U.S.
at 742. Moreover, the science is clear
that the chemical, physical, and
biological integrity of paragraph (a)(1)
waters depends on the many tributaries,
including headwater streams, that feed
such waters. It would be impossible to
restore and maintain the chemical,
physical, and biological integrity as
required by the Clean Water Act with a
definition of ‘‘waters of the United
States’’ that included solely the last
tributary that flows ‘‘directly’’ into a
paragraph (a)(1) water. Tributaries
upstream provide key functions that
support the chemical, physical, and
biological integrity of paragraph (a)(1)
waters. If protections for tributaries
ended just above the very last one,
functions like habitat for salmon
spawning, baseflow to maintain water
levels, and nutrient replenishment
would all be at risk. See Technical
Support Document sections I.A and
III.E.ii.
A tributary may contribute flow
through a number of downstream waters
or features, including both nonjurisdictional features, such as a ditch
excluded under paragraph (b) of this
rule, and jurisdictional waters that are
not tributaries, such as an adjacent
wetland. However, the tributary must be
part of a system that eventually flows to
a paragraph (a)(1) water. Waters that are
part of a system that never reaches a
paragraph (a)(1) water, for example, a
small system of streams that ultimately
flow to a non-navigable stream in an
intrastate basin with no outlet, are not
jurisdictional under this provision of
this rule.
Some commenters asserted that the
agencies’ approach to interpreting
‘‘tributary’’ would potentially allow the
agencies to include wetlands as
tributaries. The agencies disagree. While
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wetlands may be a water through which
a tributary flows directly or indirectly to
a paragraph (a)(1) water, the agencies do
not consider that wetland to be a
tributary itself. This is consistent with
pre-2015 practice. Only when a wetland
lies entirely below the OHWM, will it be
identified as part of the tributary
consistent with current practice; even
then, the wetland is not identified as a
tributary itself. Otherwise, such
wetlands are considered adjacent
wetlands and will be evaluated under
paragraph (a)(4) of this final rule.
Some commenters supported the
agencies’ longstanding interpretation
that there is no meaningful distinction
among natural, human-altered, or
human-made tributaries in terms of
their functions, values, and influence on
the integrity of downstream waters.
Some commenters requested
clarification as to whether both humanmade and natural tributaries would be
regulated in this rule. Some commenters
asserted that the agencies’ proposed
approach to interpreting ‘‘tributary’’ is
overly broad and expansive because it
would potentially allow the agencies to
include ditches and human-made
conveyances as tributaries. The agencies
disagree with commenters who asserted
that the agencies’ approach to humanmade tributaries is overly broad and
expansive. The approach is consistent
with the agencies’ decades-long practice
and the scientific record, and such
tributaries must still meet either the
relatively permanent standard or the
significant nexus standard to be
jurisdictional under this rule. As noted
above, 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 human-made or
human-altered. Because natural, humanaltered, and human-made tributaries
provide many of the same functions,
especially as conduits for the movement
of water and pollutants to other
tributaries or directly to paragraph (a)(1)
waters, the agencies have interpreted
the 1986 regulations to cover such
tributaries. Ditches, for example, are
tributaries under this rule if they flow
directly or indirectly to paragraph (a)(1)
waters and they are jurisdictional
tributaries if they also meet the
relatively permanent standard or
significant nexus standard and are not
excluded from jurisdiction under this
rule. See section IV.C.7 of this preamble
for additional discussion on excluded
ditches.
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c. Implementation
A tributary for purposes of this rule
includes rivers, streams, lakes, ponds,
and impoundments that flow directly or
indirectly through another water or
waters to a traditional navigable water,
the territorial seas, an interstate water,
or a paragraph (a)(2) impoundment. A
tributary may flow through a number of
downstream waters, including nonjurisdictional features. This section of
the preamble provides additional
information on the agencies’
interpretation and implementation of
the tributary provision of this rule. This
section first explains how to determine
whether a water is a tributary for
purposes of this rule. The section next
explains how to determine whether a
tributary is jurisdictional under the
relatively permanent standard or under
the significant nexus standard.
i. Determining Whether a Water Is a
Tributary for Purposes of This Rule
This section describes how to (1)
identify a tributary for purposes of this
rule and (2) determine whether the
tributary is part of the tributary system
of a traditional navigable water, the
territorial seas, an interstate water, or a
paragraph (a)(2) impoundment.
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(1) Identifying a Water as a Tributary
In implementing this rule, the
agencies are maintaining their
longstanding interpretation that
tributaries for purposes of Clean Water
Act jurisdiction include rivers, streams,
lakes, ponds, and impoundments. See
2007 Corps Instructional Guidebook at
8, 9. As discussed above, although
tributaries are required to flow directly
or indirectly through another water or
waters to certain downstream waters,
tributaries are not required to have a
specific flow regime to meet the
agencies’ interpretation of ‘‘tributary.’’
However, flow characteristics like
duration and timing of flow will be
considered in determining whether
tributaries meet the relatively
permanent or significant nexus
standard, as described further below in
sections IV.C.4.c.ii and IV.C.4.c.iii of
this preamble. Lakes, ponds, and
impoundments may be at the
headwaters of the tributary network
(e.g., a lake with only an outlet to the
tributary network) or farther
downstream from the headwaters (e.g., a
lake with both an inlet and outlet
connected to the tributary network).
Even though such waters are considered
to be lentic or ‘‘still’’ systems, such
waters still contribute flow downstream
at the point that they outlet to the
tributary network and therefore the
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agencies have long concluded it is
appropriate to consider such waters to
be tributaries.
As discussed above in this section of
the preamble, the agencies’ longstanding
interpretation of ‘‘tributary’’ for
purposes of the definition of ‘‘waters of
the United States’’ includes natural,
human-altered, or human-made
waterbodies that flow directly or
indirectly through another water or
waters to a traditional navigable water,
the territorial seas, or an interstate
water. See Rapanos Guidance at 6.
The agencies will utilize the Corps’
well-established definition of an
ordinary high water mark (OHWM) to
assist in identifying tributaries for
purposes of this rule. See section IV.C.8
of this preamble (adding the definition
of OHWM to EPA’s regulation).
Tributaries typically have at least one
indicator of an OHWM and, consistent
with pre-2015 practice, physical OHWM
characteristics are used to identify
waterbodies including streams, lakes,
ponds, and ditches that are present on
the landscape. See, e.g., ‘‘Final Notice of
Issuance and Modification of
Nationwide Permits,’’ 65 FR 12818,
12823–24 (March 9, 2000); 2007 Corps
Instructional Guidebook; RGL 05–05
(December 7, 2005). The OHWM, a term
unchanged since 1977, defines the
lateral limits of jurisdiction in non-tidal
‘‘waters of the United States,’’ provided
the limits of jurisdiction are not
extended by adjacent wetlands. See 42
FR 37144 (July 19, 1977); 33 CFR
323.3(c) (1978). The regulations at 33
CFR 328.3(e) and 329.11(a)(1) list the
factors to be applied. RGL 05–05 further
explains these regulations. Delineation
of an OHWM in tributaries relies on the
identification and interpretation of
physical features, including topographic
breaks in slope, changes in vegetation
characteristics (e.g., destruction of
terrestrial vegetation and change in
plant community), and changes in
sediment characteristics (e.g., sediment
sorting and deposition). Field
indicators, remote sensing, and mapping
information can also help identify an
OHWM. The Corps continues to
improve regulatory practices across the
country through ongoing research and
the development of regional and
national OHWM delineation
procedures, as described further in
section IV.A.ii of the Technical Support
Document. For example, the Corps has
developed field indicators to help field
staff identify the OHWM in common
stream types in the arid West.
Consistent with longstanding practice,
the agencies will apply the regulations
and use RGL 05–05 and applicable
OHWM delineation manuals, as well as
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take other steps as needed to ensure that
the OHWM identification factors are
applied consistently nationwide. See
Rapanos Guidance at 10–11 n.36.
The agencies will assess any
discontinuity in the OHWM and,
consistent with pre-2015 practice, a
natural or human-made discontinuity in
the OHWM does not necessarily sever
jurisdiction upstream. A discontinuity
may exist where the stream temporarily
flows underground. Tributaries may
temporarily flow underground in
regions with karst geology or lava tubes,
for example, maintaining similar flow
characteristics underground and at the
downstream point where they return to
the surface. The agencies will also
continue their familiar practice that a
discontinuity in the OHWM also does
not typically sever jurisdiction upstream
where the OHWM has been removed by
development, agriculture, or other land
uses. For example, tributaries can be
relocated below ground to allow
reasonable development to occur. In
urban areas, surface waters are often
rerouted through an artificial tunnel
system to facilitate development. See,
e.g., Science Report at 3–3, and sections
III.A and IV.A.ii of the Technical
Support Document. Underground
streams are distinct from groundwater
due to their very direct hydrologic
connection to the portions of the
tributaries that are or re-surface above
ground. Typically, groundwater
connections would be much slower than
connections via underground streams.
Tributaries that have been rerouted
underground are contained within a
tunnel system or other similar
channelized subsurface feature, while
naturally occurring subterranean
streams flow within natural conduits
like karst formations or lava tubes. The
agencies will look for indicators of flow
both above and below the discontinuity.
For example, a discontinuity in the
OHWM may exist due to constructed
breaks (e.g., culverts, pipes, or dams) 98
or natural breaks (e.g., debris piles or
boulder fields). Site specific conditions
will continue to determine the distance
up the tributary network that is
evaluated to see if the feature creates a
temporary break or if it severs the
upstream connection and constitutes the
start of the tributary system.
98 Under past practice, the agencies have
sometimes characterized bridges as artificial breaks,
such as under the 2015 Clean Water Rule. See 80
FR 37106 (June 29, 2015). However, bridges do not
necessarily create discontinuity in the OHWM, and
the agencies recognize that tributaries flowing
under bridges may still show evidence of an
OHWM and in such circumstances would continue
to be jurisdictional where they meet either the
relatively permanent or significant nexus standard.
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Under this rule, swales and erosional
features (e.g., gullies, small washes)
characterized by low volume,
infrequent, or short duration flow are
not tributaries and are not jurisdictional.
See section IV.C.7 of this preamble.
Because swales and erosional features
were considered to be generally nonjurisdictional features under pre-2015
practice, the agencies have extensive
experience differentiating between these
features and tributaries on the
landscape. See Rapanos Guidance at
11–12. Streams are waterbodies that are
typically characterized by the presence
of a channel and an OHWM, and lakes
and ponds are waterbodies that are also
typically characterized by the presence
of an OHWM, in the absence of adjacent
wetlands. In contrast, erosional features
like gullies and rills are typically more
deeply incised than streams and lack an
OHWM. Similarly, swales do not have
an OHWM and typically lack a more
defined channel that a stream exhibits.
See section IV.C.7 of this preamble and
section III.A.v of the Technical Support
Document for additional discussion on
how to distinguish between tributaries,
erosional features, and swales; see
section IV.A.ii of the Technical Support
Document for additional discussion on
how to identify tributaries based on an
OHWM.
A variety of field and remote tools can
be used to determine whether a water is
a tributary.99 Due to limitations
associated with some remote tools, field
verification for accuracy may be
necessary (e.g., due to scale or
vegetation cover, not all tributaries may
be visible in satellite imagery and aerial
photographs or mapped in the NHD).
Examples of field indicators will be
discussed in more detail below.
99 Direct observation or 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/the-national-map-data-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),
National Hydrography Dataset (NHD) data, National
Wetlands Inventory (NWI) data, maps and
geospatial datasets from Tribal, State, or local
governments, and/or aerial or satellite imagery can
also be used. Tributaries are often 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 (see
‘‘Topographic Map Symbols,’’ available at https://
pubs.usgs.gov/gip/TopographicMapSymbols/
topomapsymbols.pdf).
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(2) Identifying Whether the Water Is Part
of the Tributary System of a Paragraph
(a)(1) Water
The next step in determining whether
a waterbody is a tributary is to identify
whether the waterbody is part of the
tributary system of a paragraph (a)(1)
water. The tributary must flow directly
or indirectly through another water or
waters to a traditional navigable water,
the territorial seas, or interstate water.
Waters through which a tributary may
flow indirectly include, for example,
impoundments, wetlands, lakes, ponds,
and streams. A tributary may flow
through a number of downstream
waters, including non-jurisdictional
features, such as a ditch excluded under
paragraph (b) of this rule or an excluded
waste treatment system, and
jurisdictional waters that are not
tributaries, such as an adjacent wetland.
But, the tributary must be part of a
tributary system that eventually flows to
a traditional navigable water, the
territorial seas, or an interstate water to
be jurisdictional. A tributary may flow
through another stream that flows
infrequently, and only in direct
response to precipitation, and the
presence of that stream is sufficient to
demonstrate that the tributary flows to
a paragraph (a)(1) water. Tributaries are
not required to have a surface flowpath
all the way down to the paragraph (a)(1)
water. For example, tributaries can
contribute flow through certain natural
and artificial breaks (including certain
non-jurisdictional features), some of
which may involve subsurface flow as
described above in section IV.C.4.b of
this preamble.
In evaluating the flowpath from a
water feature, the agencies can use
USGS maps; NWI data; Tribal, State,
and local knowledge or maps; dye tests,
tracers, or other on the ground tests;
field observations; aerial photography;
or other remote sensing information.
The agencies can also use available
models, including models developed by
Federal, Tribal, State, and local
governments, academia, and the
regulated community.100 These tools
could be used in conjunction with field
observations, data, and other desktop
tools to evaluate whether a tributary
flows directly or indirectly to a
100 One such model includes the USGS
StreamStats ‘‘Flow (Raindrop) Path’’ GIS tool which
allows the user to click a point on a map, after
which a flowpath is drawn to estimate where water
may flow from that point to the stream network,
eventually making its way to the ocean if the
tributary network allows for it available at https://
streamstats.usgs.gov/ss/. The StreamStats tool may
potentially be used to identify the flowpath from
the subject waters to the downstream paragraph
(a)(1) water using the ‘‘Flow (Raindrop) Path’’
component of the tool.
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paragraph (a)(1) water. For tributaries to
paragraph (a)(2) impoundments, a
flowpath to the impoundment and to a
paragraph (a)(1) water can be identified
using these same tools.
ii. Determining Whether a Tributary
Meets the Relatively Permanent
Standard
Under this rule, tributaries that meet
the relatively permanent standard are
jurisdictional under the Clean Water Act
as ‘‘waters of the United States.’’ In
implementing the relatively permanent
standard, the agencies draw key
concepts from the 2020 NWPR’s
interpretation, but modify that rule’s
approach to ensure the term can be
practically implemented. Specifically,
under this rule the relatively permanent
standard encompasses surface waters
that have flowing or standing water
year-round or continuously during
certain times of the year. Relatively
permanent waters do not include
surface waters with flowing or standing
water for only a short duration in direct
response to precipitation. The approach
in this rule would encompass tributaries
considered relatively permanent under
the 2020 NWPR, as well as those
considered relatively permanent under
the Rapanos Guidance, providing
continuity in approach for the regulated
community and other stakeholders.
Tributaries that do not meet the
relatively permanent standard must be
assessed under the significant nexus
standard. See section IV.C.4.c.iii of this
preamble.
The agencies’ interpretation of
relatively permanent tributaries to
include surface waters that have flowing
or standing water year-round or
continuously during certain times of the
year is consistent with the Rapanos
plurality’s interpretation of ‘‘waters of
the United States.’’ The Rapanos
plurality interpreted ‘‘waters of the
United States’’ as encompassing
‘‘relatively permanent, standing or
continuously flowing bodies of water,’’
including streams, rivers, oceans, lakes,
and other bodies of waters that form
geographical features. 547 U.S. at 739,
742. The 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); see also 85 FR 22289 (April
21, 2020) (citing the same language from
the plurality in support of the 2020
NWPR’s interpretation of relatively
permanent waters).
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The agencies have decided to
implement this approach because it is
consistent with the Rapanos plurality
opinion, it reflects and accommodates
regional differences in hydrology and
water management, and it can be
implemented using available, easily
accessible tools. It will therefore be a
straightforward approach for the
agencies and the regulated community
to implement. In addition, maintaining
an interpretation that encompasses the
tributaries considered relatively
permanent under the pre-2015
regulatory regime and the 2020 NWPR
addresses the many comments from
stakeholders emphasizing the need for
clarity and certainty in the scope of
‘‘waters of the United States.’’
‘‘Flowing water’’ under this rule is
meant to encompass not just streams
and rivers, but also lakes, ponds, and
impoundments that are part of the
tributary system, as such waters outlet
to the tributary network and contribute
flow downstream at the outlet point. In
addition, ‘‘flowing water’’ under this
rule is meant to encompass those
tributaries that are frozen for parts of the
year. Such tributaries typically have
flowing water underneath the frozen
surface.
The phrase ‘‘certain times of the year’’
is intended to include extended periods
of standing or continuously flowing
water occurring in the same geographic
feature year after year, except in times
of drought. The defining characteristic
of relatively permanent waters with
flowing or standing water continuously
during only certain times of the year is
a temporary lack of surface flow, which
may lead to isolated pools or dry
channels during certain periods of the
year. The phrase ‘‘direct response to
precipitation’’ is intended to distinguish
between episodic periods of flow
associated with discrete precipitation
events versus continuous flow for
extended periods of time.
A number of commenters suggested
that the agencies interpret relatively
permanent tributaries to include those
that flow year-round or at least
seasonally (e.g., typically three months),
consistent with the approach in the
Rapanos Guidance. This rule
encompasses tributaries that are
‘‘relatively permanent’’ under the
Rapanos Guidance. However, the
agencies have decided not to use the
term ‘‘seasonal’’ from the Rapanos
Guidance for several reasons. First, the
agencies have determined that directly
describing the scenarios in which
waters would be ‘‘relatively permanent’’
is clearer than using the term
‘‘seasonal,’’ the meaning of which can
vary and could be misunderstood to
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establish a specific required flow
duration. See section IV.C.4.c.ii.1 of this
preamble for further discussion of the
challenges of requiring a specific flow
duration. Relatively permanent flow
may occur seasonally, but the phrase is
also intended to encompass tributaries
in which extended periods of standing
or continuously flowing water are not
linked to naturally recurring annual or
seasonal cycles. Specifically, relatively
permanent waters may include
tributaries in which flow is driven more
by various water management regimes
and practices, such as tributaries with
extensive flow alteration (e.g.,
diversions, bypass channels, water
transfers) and effluent-dependent
streams. For example, in areas of the
West where water withdrawals or
groundwater pumping can substantially
modify flow characteristics, onset and
cessation of streamflow in some
tributaries may be more closely tied to
changes in water use associated with
irrigation than with seasons of the year.
In such flow-altered tributaries,
streamflow may change abruptly
throughout the year due to adjustments
in facility operations or may vary from
year to year due to changes in water
rights or water management regimes. In
addition, tributaries that typically flow
throughout the spring may run dry in
years following a drought while storage
reservoirs are being refilled. When
evaluating these types of artificially
manipulated regimes, the agencies may
consider information about the regular
manipulation schedule and may
potentially consider other remote
resources or on-site information to
assess flow frequency.
Other commenters recommended
defining relatively permanent tributaries
using the 2020 NWPR’s terms
‘‘perennial’’ and ‘‘intermittent.’’
Relatively permanent tributaries under
this rule encompass tributaries that
were jurisdictional under the 2020
NWPR. However, the agencies have
decided to explain directly the way that
the relatively permanent standard
should be implemented, rather than
defining the phrase with these terms. As
evidenced by the variety of comments
proposing definitions for ‘‘perennial’’
and ‘‘intermittent,’’ adding these terms
to this rule could cause confusion and
uncertainty. Moreover, many definitions
of intermittent incorporate ‘‘seasonal’’
flow, a concept that the agencies
decided not to employ in this rule for
the reasons discussed above. Other
definitions of ‘‘perennial’’ and
‘‘intermittent’’ that commenters
suggested would require specific
sources of flow, which the agencies also
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decided not to establish in this rule
because such requirements cannot
readily apply to hydrologically altered
waters, and for the reasons discussed in
section IV.C.4.c.ii.2 of this preamble.
While this rule implements the scope
of relatively permanent tributaries
consistent with the approach in the
2020 NWPR, it does not retain the 2020
NWPR’s requirement that the tributaries
contribute surface water flow to a
paragraph (a)(1) water in a ‘‘typical
year.’’ See 85 FR 22251 (April 21, 2020).
The 2020 NWPR defined a ‘‘typical
year’’ as when ‘‘precipitation and other
climatic variables are within the normal
periodic range (e.g., seasonally,
annually) for the geographic area of the
applicable aquatic resource based on a
rolling thirty-year period.’’ As discussed
in section IV.B.3 of this preamble and
section II.B.iv.1 of the Technical
Support Document, the typical year
analysis proved difficult to implement
and yielded arbitrary and potentially
outdated results. Moreover, it is not
required by the plurality opinion in
Rapanos, which simply required a
‘‘connect[ion]’’ to paragraph (a)(1)
waters. See 547 U.S. at 742 (describing
a ‘‘‘wate[r] of the United States’’’ as ‘‘i.e.,
a relatively permanent body of water
connected to traditional interstate
navigable waters’’). This rule’s
requirement that jurisdictional
tributaries flow directly or indirectly to
downstream paragraph (a)(1) waters or
paragraph (a)(2) impoundments
implements the plurality’s
‘‘connect[ion]’’ requirement. See also
section IV.C.4.b of this preamble.
(1) Duration and Timing of Flow for
Relatively Permanent Tributaries
Many commenters recommended that
the agencies establish a particular flow
duration for relatively permanent
waters. Suggestions ranged from a
minimum of three months to 290 days.
The agencies decided not to establish a
minimum duration because flow
duration varies extensively by region.
Establishing a uniform number equally
applicable to the deserts in the arid
West, the Great Lakes region, and New
England forests would not be
scientifically sound. The agencies
instead have chosen to establish a more
flexible approach to implementing this
rule that accounts for specific
conditions in each region. Moreover, it
would often be infeasible for the
regulated community or agency staff to
determine whether a stream ordinarily
flows or whether a lake contains
standing water, for example, 12 weeks
as opposed to 11 weeks per year. Even
if this determination was possible, such
a bright line cutoff would not reflect
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hydrological diversity among different
regions and alterations in flow
characteristics. The agencies’
conclusion that a minimum duration is
not feasible is consistent with the pre2015 regulatory regime, which did not
establish a bright line cutoff (though
provided three months as an example of
seasonal flow) and with the approach of
the 2020 NWPR. See 85 FR 22292 (April
21, 2020) (‘‘The agencies are not
providing a specific duration (e.g., the
number of days, weeks, or months) of
surface flow that constitutes
intermittent flow, as the time period
that encompasses intermittent flow can
vary widely across the country based
upon climate, hydrology, topography,
soils, and other conditions.’’).
Many factors, including climate,
hydrology, topography, soils, and other
conditions, may affect the period in
which relatively permanent flow may
occur for those relatively permanent
waters that do not have continuously
flowing or standing water year-round.
The factors which affect streamflow and
flow cessation are climatically and
geographically specific and therefore the
periods during which a tributary might
have relatively permanent flow vary by
region. Non-relatively permanent
tributaries are similarly diverse, and the
mechanisms which differentiate
relatively permanent flow from nonrelatively permanent flow also vary by
region.
For example, in parts of the
Southeastern United States,
precipitation is distributed somewhat
uniformly throughout the year, but
increased evapotranspiration during the
growing season can reduce surficial
ground water levels and reduce or
remove surface flows late in the growing
season (e.g., late summer or early
autumn). Consequently, certain streams
in the Southeast may flow primarily in
the winter or early spring. Nonrelatively permanent tributaries in the
Southeast may often be characterized by
the repeated sequence of streamflow,
flow cessation, and channel drying
throughout the year, where the onset of
streamflow coincides with distinct
rainfall events and is driven primarily
by storm runoff. Streamflow in these
systems may persist anywhere from a
few hours to days at a time, where the
cessation of flow is most often
associated with termination of overland
flow, hillslope runoff recession, and the
depletion of water in saturated soils.
Although streamflow in these tributaries
may occur regularly, off and on, over the
duration of a season or longer, they do
not exhibit continuously flowing water
for an extended period at any point
during the year. In other areas of the
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United States, snowpack melt drives
streamflow more than rainfall, and
relatively permanent flow may therefore
coincide with warming temperatures in
the spring or early summer.
Many headwater streams in
mountainous regions flow through
channels incised in bedrock with no
groundwater interface with the bed of
the stream. Instead, these streams are
often fed primarily by high elevation
snowpack melt. The same scenario may
also exist in Northern regions, where
flows could be fed almost exclusively
through melting snowpack absent
elevated groundwater tables. In these
regions, relatively permanent flows
coincide with warming temperatures in
the spring or early summer and may
persist well into the summer until there
are no longer enough inputs to sustain
surface water, or later into autumn
when more permanent sources of
meltwater (e.g., glaciers or snowfields)
begin to freeze. Non-relatively
permanent flows in these regions may
occur in basins with thin layers of snow,
where snow melts rapidly at the onset
of spring thaw, and the snowmelt
produced is not sufficient to sustain
flows for an extended period and into
the summer.
To determine the flow characteristics
of a tributary for purposes of
implementing this rule, the agencies
will evaluate the entire reach of the
tributary that is of the same Strahler 101
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; see
Technical Support Document section
IV.A.ii.1). The flow characteristics of
lakes, ponds, and impoundments that
are part of the tributary network will be
assessed in conjunction with the stream
they connect to. Consistent with the pre2015 regulatory regime, the agencies
will assess the flow characteristics of a
particular tributary at the farthest
downstream limit of such tributary (i.e.,
the point the tributary enters a higher
order stream). Rapanos Guidance at 6
n.24. Where data indicate the flow
characteristics at the downstream limit
are not representative of the entire reach
of the tributary, the flow characteristics
that best characterize the entire tributary
reach will be used.
(2) Source of Flow for Relatively
Permanent Tributaries
Implementation of the relatively
permanent standard for tributaries in
101 Strahler, A.N. 1957. ‘‘Quantitative analysis of
watershed geomorphology.’’ American Geophysical
Union Transactions 38: 913–920.
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this rule does not require that relatively
permanent flow come from particular
sources. This rule’s approach is
consistent with the plurality opinion in
Rapanos, which lays out the relatively
permanent standard and does not
require that relatively permanent waters
originate from any particular source.
See, e.g., 547 U.S. at 739. This rule’s
approach is also science-based, as the
source of a tributary’s flow does not
influence its effect on downstream
waters, including paragraph (a)(1)
waters. This rule’s approach is similar
to the familiar approach taken in the
Rapanos Guidance and the 2020 NWPR,
which also did not specify that
relatively permanent flow come from
particular sources.
Sources of flow in relatively
permanent tributaries may include an
elevated groundwater table that
provides baseflow to a channel bed.
Relatively permanent flow could also
result from upstream contributions of
flow, effluent flow, or snowpack that
melts slowly over time in certain
geographic regions or at high elevations.
In addition, in certain regions relatively
permanent flow could result from a
concentrated period of back-to-back
precipitation events that leads to
sustained flow through a combination of
runoff and upstream contributions of
flow or an elevated groundwater table
that provides baseflow to the channel
bed. In contrast, non-relatively
permanent tributaries may flow only
during or shortly after individual
precipitation events (including rainfall
or snowfall events). Non-relatively
permanent flow may occur simply
because it is raining or has very recently
rained, or because a recent snow has
melted.
Streamflow that occurs during the
monsoon season in certain parts of the
country (typically June through
September in the arid West) may be
relatively permanent or non-relatively
permanent, depending on the
conditions at the location. Many
tributaries in the arid West are
dominated by coarse, alluvial sediments
and exhibit high transmission losses,
resulting in streams that often dry
rapidly following a storm event (e.g.,
within minutes, hours, or days). These
streams are not relatively permanent
under this rule. However, relatively
permanent flow may occur as a result of
multiple back-to-back storm events
throughout a watershed, during which
the combination of runoff and upstream
contributions of flow is high enough to
exceed rates of transmission loss for an
extended period of time. Relatively
permanent flow may also follow one or
more larger storm events, when
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floodwaters locally recharge the riparian
aquifer through bank infiltration, which
supplies sustained baseflow throughout
the monsoon season.
Similar to the 2020 NWPR’s approach,
the agencies will consider tributaries
that flow in direct response to
‘‘snowfall’’ for only a short duration
during or shortly after that snowfall
event to be non-relatively permanent
waters under this rule. Streams that
flow as a result of ‘‘snowpack melt’’ will
be considered relatively permanent
waters under this rule, where snowpack
is 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).’’ See 85 FR
22275 (April 21, 2020). Tributaries that
receive effluent flow that is relatively
permanent will also be assessed under
the relatively permanent standard.
(3) Tools Available To Determine
Whether a Tributary Meets the
Relatively Permanent Standard
Section IV.C.4.c.i of this preamble
discusses how to determine if features
on the landscape are tributaries. Direct
observations and various remote tools
and resources can be used to identify
tributary reaches based on stream order,
and topographic characteristics can
assist in determining stream order.
USGS topographic map blue line
symbology and contour line patterns
can be used to interpret the connectivity
and contribution of flow within a river
network, as well as topography within
an evaluation area. Elevation models,
including those based on light detection
and ranging (LIDAR) derived data, may
also illustrate tributary connectivity and
flow patterns, as well as topography. In
addition, aerial and satellite imagery
along with maps or geospatial mapping
products (e.g., NHD, NWI, soil maps,
and Tribal, State, or local maps) can be
used to help identify tributary reaches
based on stream order. In addition to
remote tools and resources, factors
identified through field observations
can be used to help determine the extent
of a tributary reach. For example,
tributary systems can be traversed to
identify and characterize the branches
of the network that contribute flow to a
particular evaluation area. Certain
geographic features (e.g., nonjurisdictional ditches, swales) may also
be found to contribute to a tributary’s
surface hydrology.
Many available resources and tools
can assist in determining whether
tributaries are relatively permanent. For
instance, the agencies have been
working to develop regionalized
streamflow duration assessment
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methods (SDAMs, available at https://
www.epa.gov/streamflow-durationassessment), which are rapid field-based
assessment methods that can be used to
classify streamflow duration and assist
in determining whether tributaries are
‘‘relatively permanent.’’ These methods
rely on physical and/or biological field
indicators, such as the presence of
hydrophytic vegetation and benthic
macroinvertebrates, that can be
collected or observed in a single site
visit to determine the flow duration of
a tributary in a reliable and rapid way.
EPA, the Corps, and the State of Oregon
developed a regionalized SDAM that
has been validated for use throughout
the Pacific Northwest (available at
https://www.epa.gov/measurements/
streamflow-duration-assessmentmethod-pacific-northwest). EPA and the
Corps have also developed a beta SDAM
for the arid West (available at https://
www.epa.gov/streamflow-durationassessment/beta-streamflow-durationassessment-method-arid-west) and the
Western Mountains (available at https://
www.epa.gov/streamflow-durationassessment/beta-streamflow-durationassessment-method-westernmountains). EPA and the Corps are
working to develop additional
regionalized SDAMs in other parts of
the country. Other agencies have
developed similar tools that may be
useful in implementing this rule.102 The
agencies, co-regulators, and
stakeholders can use the regionalized
field indicators from SDAMs to quickly
and easily identify tributaries that are
relatively permanent as interpreted by
the agencies under this rule.
Remote or desktop tools can also help
the agencies and the public better
understand streamflow and whether
tributaries have continuously flowing or
standing water year-round or during
certain times of the year for more than
for a short duration in direct response
to precipitation.103 Satellite imagery and
102 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 https://
files.nc.gov/ncdeq/Water%20Quality/Surface%20
Water%20Protection/401/Policies_Guides_
Manuals/StreamID_v_4point11_Final_sept_01_
2010.pdf.
103 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/wyoming-montana-water-science-center/
science/probability-streamflow-permanenceprosper), 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
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3087
aerial photographs showing visible
water on multiple dates can provide
evidence as to whether tributaries have
relatively permanent flow. Aerial
photographs may show other indicators
commonly used to identify the presence
of an OHWM.104 These indicators 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 an assessment of
flow characteristics for a tributary.
In addition to satellite imagery and
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 LIDARderived data can also be used to help
implement this rule.105 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 flow characteristics.
Regional field observations can be
used to verify desktop assessments of
the relative permanence of a tributary,
when necessary. Geomorphic indicators
could include active/relict floodplains,
substrate sorting, clearly defined and
continuous bed and banks, depositional
bars and benches, and recent alluvial
deposits. Hydrologic indicators might
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. NOAA national
snow analyses maps can facilitate the evaluation of
seasonal flow from snowmelt (available at https://
www.nohrsc.noaa.gov/nsa/), as can NRCS sources
(available at https://www.wcc.nrcs.usda.gov/snow/),
and hydrographs that may indicate a large increase
in stream discharge due to the late spring/early
summer thaws of melting snow.
104 See definition of OHWM in section IV.C.8.d of
this preamble and https://
www.erdc.usace.army.mil/Media/Fact-Sheets/FactSheet-Article-View/Article/486085/ordinary-highwater-mark-ohwm-research-development-andtraining/.
105 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 identify the flow
characteristics 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.
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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. As noted
above, the agencies are developing
SDAMs for use throughout the country
which evaluate and interpret these
indicators and can show whether
tributaries have continuously flowing or
standing water year-round or during
certain times of the year for more than
a short duration in direct response to
precipitation. Ultimately, multiple
indicators, data points, and sources of
information may be used to determine
whether a water, including a tributary,
is relatively permanent.
iii. Determining Whether a Tributary
Meets the Significant Nexus Standard
In evaluating tributaries under the
significant nexus standard, the agencies
will determine whether the tributaries,
either alone or in combination with
similarly situated waters in the region,
significantly affect the chemical,
physical, or biological integrity of
paragraph (a)(1) waters. See section
IV.C.9 of this preamble for additional
discussion on the definition of
‘‘significantly affect’’ in this rule,
including the factors that will be
evaluated and the functions that will be
assessed as part of a significant nexus
analysis. The agencies consider
tributaries and their adjacent wetlands
to be ‘‘similarly situated’’ waters. The
agencies consider similarly situated
waters to be ‘‘in the region’’ when they
lie within the catchment area of the
tributary of interest. Identifying the
catchment area for purposes of this
significant nexus analysis is described
below. The agencies developed this
updated evaluation method from the
current pre-2015 implementation
approach informed by their experience,
the best available science, Supreme
Court decisions, and public comments.
Accordingly, in implementing the
significant nexus standard under this
rule, all tributaries and adjacent
wetlands within the catchment area of
the tributary of interest will be analyzed
as part of the significant nexus
analysis.106
For purposes of a significant nexus
analysis, the agencies will identify the
‘‘region’’ as the catchment that drains to
and includes the tributary of interest. A
catchment is the area of the land surface
that drains to a specific location for a
106 This implementation approach to the region
for purposes of the significant nexus standard is a
change from the Rapanos Guidance. See section
IV.C.9.c of this preamble for additional discussion
on implementing the significant nexus analysis.
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specific hydrologic feature. Catchments
will be delineated from the
downstream-most point of the tributary
reach of interest and include the land
uphill that drains to that point. For
example, if the tributary of interest is a
second order stream, the catchment
would be delineated from the point that
the second order stream enters a third
order stream. See discussion of stream
order in section IV.C.4.c.ii.1 of this
preamble. Topography and landscape
position influence the size and
configuration of a catchment.
There are many existing spatial
analysis tools that can be used to
delineate catchments quickly and
reliably in most parts of the country.
USGS topographic maps can be
manually interpreted to delineate
catchments based on the location of the
outlet point (the downstream-most point
of the tributary of interest where the
tributary enters a higher order stream),
using calculations informed by
topographic contours, the alignment of
topographic high spots, and grouping of
lower, valley bottoms. Various GIS
tools, web applications, and automated
modeling systems can also delineate
catchments based on one or more of the
many factors that can influence
drainage, including surface topography,
climate, land use, the presence of
hydrologic sinks, topology of sewer
systems, and design of wastewater
treatment plant service areas.107
After identifying the catchment, the
next step is to identify the tributaries
within the catchment under the
agencies’ longstanding interpretation of
tributary, see section IV.C.4.a of this
preamble above, and any of their
adjacent wetlands within the catchment
area. See section IV.C.5 of this preamble
for additional discussion on how to
identify adjacent wetlands. The
agencies’ longstanding practice in
conducting the significant nexus
analysis is to assess a tributary in
combination with wetlands that meet
the definition of ‘‘adjacent’’ under the
regulations. Rapanos Guidance at 10.
This approach to the significant nexus
analysis recognizes the ecological
107 NHDPlus provides delineated catchments for
individual stream segments by linking the mapped
stream network to the landscape. In addition,
StreamStats by the USGS (available at https://
streamstats.usgs.gov/ss/) is a map-based web tool
that can delineate drainage areas for streams and
estimate flow characteristics for selected sites based
on stream gage data, basin characteristics, climate,
etc. EPA’s EnviroAtlas Interactive Map (available at
https://www.epa.gov/enviroatlas/enviroatlasinteractive-map) has a wide variety of tools that can
help delineate catchments, including a tool that
illustrates how precipitation will flow over the land
surface, mapped elevation profiles for selected
tributaries, and designations of upstream and
downstream watersheds within a stream network.
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relationship between the tributaries and
their adjacent wetlands, and the role
those similarly situated waters have in
influencing the chemical, physical, or
biological integrity of paragraph (a)(1)
waters. See section III.E.iii of the
Technical Support Document. For
purposes of this rule, the agencies will
therefore assess the tributaries and their
adjacent wetlands in a catchment. If the
tributaries in the region, including the
tributary under assessment, have no
adjacent wetlands, the agencies consider
only the factors and functions of the
tributaries in determining whether there
is a significant effect on the chemical,
physical, or biological integrity of
downstream paragraph (a)(1) waters. If
any of the tributaries in the region,
including the tributary under
assessment, have adjacent wetlands, the
agencies will consider the factors and
functions of the tributaries, including
the tributary under assessment, together
with the functions performed by the
wetlands adjacent to the tributaries in
the catchment, in evaluating whether a
significant nexus is present.
In conducting a significant nexus
analysis under this rule, the agencies
will evaluate 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. To
understand the chemical, physical, and
biological functions provided by
tributaries and their adjacent wetlands,
and the effects those functions have on
paragraph (a)(1) waters, it is important
to use relevant geographic water quality
data in conjunction with site-specific
data from field sampling and hydrologic
modeling. See section IV.C.9.c of this
preamble for additional discussion on
implementing the significant nexus
analysis; see also section IV.C.10 of this
preamble.
5. Adjacent Wetlands
a. This Rule
Consistent with the proposal, this rule
retains the adjacent wetlands provision
of the 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 the law, the
science, and agency expertise. Aquatic
resources that meet this rule’s
definitions of ‘‘wetlands’’ and
‘‘adjacent’’ are assessed under this
provision where they are adjacent to
traditional navigable waters, the
territorial seas, interstate waters,
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impoundments of jurisdictional waters,
and tributaries.
As discussed further in section
IV.C.8.a of this preamble, in this rule the
agencies are retaining their longstanding
definition of ‘‘wetlands’’ from the 1986
regulations: ‘‘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.’’
Additionally, as discussed further in
section IV.C.8.b of this preamble, in this
rule the agencies are retaining their
longstanding definition of ‘‘adjacent’’
unchanged for most of the past 45 years,
which provides: ‘‘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.’ ’’ Under this definition,
adjacency is focused on the distance
between the wetland and the
jurisdictional water. Whether the
distance between the wetland and the
jurisdictional water qualifies the
wetland as bordering, contiguous, or
neighboring (and therefore ‘‘adjacent’’)
depends on the factual circumstances.
The agencies have three wellestablished criteria to determine
adjacency; if any one of the criteria is
met, the wetland is ‘‘adjacent,’’ but may
require further analysis to determine if
it is ‘‘waters of the United States.’’ See
Rapanos Guidance at 5–8. First, there is
an unbroken surface or shallow
subsurface connection to a jurisdictional
water, which can be established, for
example, where the wetland directly
abuts the jurisdictional water or by a
non-jurisdictional physical feature that
provides the direct connection between
the wetland and a jurisdictional water,
such as a pipe, culvert, nonjurisdictional ditch, or flood gate, that
has at least periodic flow. Second, the
wetland is physically separated from a
jurisdictional water by human-made
dikes or barriers, or natural landforms
(e.g., river berms, beach dunes). Or
third, the wetland’s proximity to a
jurisdictional water is reasonably close
such that ‘‘adjacent wetlands have
significant effects on water quality and
the aquatic ecosystem.’’ Riverside
Bayview, 474 U.S. at 135 n.9. The
agencies conclude that close proximity
between an adjacent wetland and a
jurisdictional water means the wetland
can modulate water quantity or water
quality in the jurisdictional water, and
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the jurisdictional water can modulate
water quantity or quality in the wetland.
See section IV.C.5.c of this preamble for
further discussion on the
implementation of this provision and
the three criteria. The agencies have not
established a specific distance
limitation in the rule beyond which
wetlands are never adjacent because
whether a wetland is reasonably close
such that the wetland can modulate
water quantity or quality in the
jurisdictional water or the jurisdictional
water can modulate water quantity or
quality in the wetland as part of the
same aquatic ecosystem, depends on
regional variations in climate,
landscape, and geomorphology. But the
agencies can state based on nearly 45
years of implementation of this
definition that in a substantial number
of cases, adjacent wetlands abut (touch)
a jurisdictional water. And, on the
whole, nationwide, adjacent wetlands
are within a few hundred feet from
jurisdictional waters (and in the
instances where the distance is greater
than a few hundred feet, adjacency is
likely supported by a pipe, nonjurisdictional ditch, karst geology, or
some other feature that connects the
wetland directly to the jurisdictional
water). Because of regional variability
and its effects on proximity for purposes
of adjacency, wetlands in the arid
West—where rainfall is generally lower,
evaporation rates are higher, and
riparian areas and floodplains do not
extend far from the tributary network—
are likely to be much closer than a few
hundred feet to be considered adjacent
under this rule. On the other hand,
where the jurisdictional water is wide,
topography is flat lending to larger
floodplains and riparian areas, and
rainfall is higher, wetlands are more
likely to be determined to be reasonably
close where they are a few hundred feet
from that tributary because the sitespecific conditions contribute to the
close relationship between the wetland
and the jurisdictional water, including
any unbroken surface or shallow
subsurface hydrologic connections
between the waters.
While bright-line rules (for example,
wetlands that are more than a specific
number of feet from a jurisdictional
water are not ‘‘adjacent’’) are easiest to
understand and implement,
convenience is not the only goal the
agencies must consider in administering
the Clean Water Act. Because the
relationship between a wetland and a
proximate jurisdictional water can
depend upon a number of site-specific
factors, like climate, geomorphology,
landscapes, hydrology, and size of the
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jurisdictional water (e.g., the ocean
compared to a headwater stream), and
because the central purpose of the Act
is to protect the integrity of the nation’s
waters, a more nuanced analysis is
required. While science says that all
things being equal, distance, location in
a riparian area or floodplain, or discrete
hydrologic connections are more likely
to strengthen the relationship between a
wetland and a nearby water, science
does not provide bright lines on
appropriate distances to determine
adjacency. In implementing this
provision over the years, the agencies
have worked hard to balance the desire
for clarity and predictability with the
agencies’ scientific understanding of the
resources Congress has charged the
agencies with protecting. The agencies
have carefully considered options for
nationally applicable bright lines with
respect to adjacency, such as
establishing that any wetland within a
certain number of feet from a
jurisdictional tributary is per se
jurisdictional, in order to facilitate
implementation of the Clean Water Act
and to minimize the burden on both
landowners and the agencies to evaluate
the scope of ‘‘waters of the United
States.’’ However, the United States is a
vast country with many different types
of waters, watersheds, landscapes, and
hydrology. In fact, in the 2015 Clean
Water Rule the agencies sought to
establish a distance-based bright line for
determining adjacency. As discussed in
section IV.B.1 of this preamble, that rule
was immediately challenged, and the
distance-based limitations were a
substantial factor in many of the
challenges. As the Supreme Court itself
has recognized, the scope of Clean
Water Act jurisdiction does not easily
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. Ultimately, for purposes of
this rule, the agencies concluded that
there was not a reasoned basis,
consistent with the text of the statute, to
establish such a regulatory bright line.
The adjacent wetlands provision in
the 1986 regulations defined ‘‘waters of
the United States’’ to include wetlands
adjacent to traditional navigable waters,
interstate waters, paragraph (a)(3) ‘‘other
waters,’’ impoundments of ‘‘waters of
the United States,’’ tributaries, and the
territorial seas. This rule provides
additional constraints on jurisdiction
relative to the 1986 regulatory text by
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defining ‘‘waters of the United States’’
to include: (1) wetlands adjacent to
traditional navigable waters, the
territorial seas, and interstate waters; (2)
wetlands adjacent to and with a
continuous surface connection to
relatively permanent paragraph (a)(2)
impoundments or jurisdictional
tributaries when the jurisdictional
tributaries meet the relatively
permanent standard; and (3) wetlands
adjacent to paragraph (a)(2)
impoundments or jurisdictional
tributaries when the wetlands meet the
significant nexus standard. In other
words, for wetlands adjacent to waters
that are not paragraph (a)(1) waters, an
additional showing of a continuous
surface connection to a relatively
permanent water or of a significant
nexus to a paragraph (a)(1) water is
required. The determination of whether
a wetland is ‘‘adjacent’’ is distinct from
whether an ‘‘adjacent’’ wetland meets
the relatively permanent standard;
however, wetlands that have a
continuous surface connection to a
relatively permanent water meet the
definition of ‘‘adjacent’’ and thus are a
subset of adjacent wetlands. See section
IV.C.5.c of this preamble for further
information related to implementing the
final rule’s adjacent wetlands provision.
Under this rule, the relatively
permanent standard and the significant
nexus standard are independent
jurisdictional standards. Under the
relatively permanent standard for
adjacent wetlands, wetlands meet the
continuous surface connection
requirement if they physically abut, or
touch, a relatively permanent paragraph
(a)(2) impoundment or a jurisdictional
tributary when the jurisdictional
tributary meets the relatively permanent
standard, or if the wetlands are
connected to these waters by a discrete
feature like a non-jurisdictional ditch,
swale, pipe, or culvert. A natural berm,
bank, dune, or similar natural landform
between an adjacent wetland and a
relatively permanent water does not
sever a continuous surface connection
to the extent it provides evidence of a
continuous surface connection. Again,
the determination of whether a wetland
is ‘‘adjacent’’ under the rule is distinct
from whether an ‘‘adjacent’’ wetland has
a continuous surface connection. See
section IV.C.5.c of this preamble, below,
for further discussion of implementation
of the final rule’s adjacent wetlands
provision.
The agencies have amended the
regulatory text from the proposed rule to
be clearer that a wetland adjacent to but
lacking a continuous surface connection
to a tributary that is relatively
permanent must be assessed under the
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significant nexus standard. For example,
if a wetland is ‘‘neighboring’’ to a
tributary that is relatively permanent,
and thus ‘‘adjacent,’’ but lacks a
continuous surface connection to that
tributary, the wetland would need to be
assessed under the significant nexus
standard in order to determine its
jurisdictional status. This is consistent
with pre-2015 practice under the
Rapanos Guidance for wetlands
adjacent to relatively permanent
tributaries and was the agencies’ intent
under the proposed rule language. See
Rapanos Guidance at 8; 86 FR 69423
(‘‘Wetlands adjacent to relatively
permanent tributaries but that lack a
continuous surface connection to such
waters would then be assessed under
the significant nexus [standard], along
with the tributary.’’).
In addition, under this rule, wetlands
adjacent only to paragraph (a)(5) waters
cannot be considered for jurisdiction
under the paragraph (a)(4) adjacent
wetlands category, which represents a
change from the 1986 regulations.
Instead, such wetlands could be
considered for jurisdiction solely under
paragraph (a)(5) of this rule.
Further, in this rule, the agencies are
deleting the parenthetical from the 1986
regulations that limited the scope of
jurisdictional adjacent wetlands to
wetlands adjacent to waters ‘‘(other than
waters that are themselves wetlands)’’
for the reasons discussed below.
b. Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
The agencies received numerous
comments on the scope and
implementation of the adjacent
wetlands provision.
i. Comments on the Adjacent Wetlands
Provision
The agencies received a wide range of
comments on adjacent wetlands. Some
commenters stated that they agreed with
the agencies’ approach in the proposed
rule for adjacent wetlands, with several
adding that they believed the proposed
rule’s approach to adjacency was
consistent with prior practice, the
relevant case law, the statute, the
Constitution, or congressional intent.
Other commenters disagreed and stated
that the agencies’ approach was not
consistent with case law, the statute, the
Constitution, or congressional intent.
Many of those commenters stated that
wetlands should only be jurisdictional if
they meet the relatively permanent
standard. Other commenters requested
greater jurisdictional protections for
wetlands due to the many functions that
they provide that benefit downstream
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waters, with some commenters
requesting that adjacent wetlands be
treated as categorically jurisdictional,
similar to the 2015 Clean Water Rule.
After careful consideration of public
comments and for the reasons described
in this preamble, the agencies are
promulgating the adjacent wetlands
provision of this rule with minimal
changes to the proposed rule. For
wetlands adjacent to paragraph (a)(1)
waters, adjacency alone supports
jurisdiction. For wetlands that are
adjacent to waters that are not paragraph
(a)(1) waters, like tributaries, this rule
establishes an additional limitation on
jurisdiction. In that case, the adjacent
wetlands are jurisdictional only if they
meet either the relatively permanent
standard or the significant nexus
standard. The agencies agree with
commenters who stated that the
proposed rule’s approach to adjacent
wetlands was generally consistent with
prior practice and consistent with the
relevant case law, the statute, the
Constitution, and congressional intent,
and thus disagree with commenters who
took the contrary view. This rule defines
‘‘waters of the United States’’ to include
adjacent wetlands and reflects the
agencies’ interpretation of the statutory
limits on the scope of the ‘‘waters of the
United States’’ informed by the text of
the relevant provisions of the Clean
Water Act and the statute as a whole,
relevant Supreme Court decisions, the
scientific record, the agencies’
experience and technical expertise, and
consideration of public comments on
the proposed rule. The agencies disagree
with commenters who stated that only
adjacent wetlands that meet the
relatively permanent standard should be
considered jurisdictional. As discussed
further in section IV.A.3.a.ii of this
preamble, the agencies have concluded
that the relatively permanent standard is
administratively useful but is
insufficient as the sole standard for
geographic jurisdiction under the Clean
Water Act because it is inconsistent
with the Act’s text and objective.
Protecting only waters that meet the
relatively permanent standard also runs
counter to the scientific principles
underlying protection of water quality.
The agencies thus are promulgating an
approach to adjacent wetlands that
includes, but that is not limited to, the
relatively permanent standard. The
ecological relationship between
jurisdictional waters 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 scientific literature
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also supports the conclusion that
adjacent wetlands, either alone or in
combination with similarly situated
waters, provide many important
functions that can significantly affect
the chemical, physical, and biological
integrity of paragraph (a)(1) waters. See
Technical Support Document section
III.B. Section IV.A of this preamble
provides additional information about
the legal basis for the agencies’
conclusions in this rule and the
scientific support for the rule’s
provisions regarding adjacent wetlands.
The agencies are not making additional
categorical determinations of
jurisdiction based on the significant
nexus standard, as described further in
section IV.A of this preamble. Even
under the 2020 NWPR, which purported
to enhance clarity, a landowner could
not tell simply by looking at their
property whether it contained ‘‘waters
of the United States’’ because, in the
case of adjacent wetlands, it was
necessary to determine (1) whether the
property contained a wetland as defined
in the regulations, (2) whether there was
evidence of a continuous surface
connection between the wetland and a
water that was part of the tributary
network of a traditional navigable water
or the territorial seas, (3) whether there
was evidence that the continuous
surface connection occurred in a
‘‘typical year,’’ as the rule defined that
term, and (4) in the case of a continuous
surface connection based on inundation,
whether the inundation originated in
the jurisdictional water (relevant to
adjacency under that rule) or the
wetland (irrelevant to adjacency under
that rule).
The challenge inherent in establishing
bright lines to address the complex and
variable ways in which waters move in
different regions across the country is
longstanding. As the Supreme Court
itself has recognized, the scope of Clean
Water Act jurisdiction does not easily
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. Further, as early Supreme
Court decisions recognized, the Clean
Water Act replaced a system whereby
water quality protection had to be
resolved through litigation in which
courts had to apply ‘‘often vague and
indeterminate nuisance concepts and
maxims of equity jurisprudence.’’ City
of Milwaukee, 451 U.S. at 317. The
Clean Water Act replaced this
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unpredictable and inefficient approach
with ‘‘a comprehensive regulatory
program supervised by an expert
administrative agency,’’ id., including a
‘‘uniform system of interstate water
pollution regulation,’’ Arkansas v.
Oklahoma, 503 U.S. 91, 110 (1992).
Shrinking Federal jurisdiction, as the
2020 NWPR did, for example, would
place many waters back within the
‘‘vague and indeterminate’’ legal regime
that the Supreme Court recognized the
Clean Water Act was designed to
replace. See 451 U.S. at 317.
The agencies also received a variety of
comments critiquing or supporting
various past practice and rulemaking
approaches to adjacency including the
pre-2015 regulatory regime, the 2015
Clean Water Rule, and the 2020 NWPR.
The agencies are retaining their
longstanding definition of adjacency
and establishing an approach to
adjacency that is generally consistent
with the pre-2015 regulatory regime,
with some changes to implementation
discussed below. The agencies are
rejecting certain aspects of the 2020
NWPR’s approach to adjacent wetlands
for the reasons discussed in this section
and section IV.B.3 of this preamble. The
definition of ‘‘adjacent wetlands’’ in the
2020 NWPR failed to advance the
objective of the Clean Water Act. It also
was inconsistent with scientific
information about the important effects
of wetlands that do not abut
jurisdictional waters and that lack
evidence of specific surface water
connections to such waters on the
integrity of paragraph (a)(1) waters. In
addition, key elements of the 2020
NWPR’s definition of ‘‘adjacent
wetlands’’ were extremely difficult to
implement. These deficiencies are
reflected in substantial losses of Federal
protections on the ground. See section
IV.B.3 of this preamble. The agencies
are maintaining the approach of the pre2015 regulatory regime and the 2015
Clean Water Rule under which wetlands
adjacent to traditional navigable waters,
the territorial seas, and interstate waters
are jurisdictional without need for
further determinations, but the agencies
are not determining that any additional
adjacent wetlands are categorically
jurisdictional in this rule. The agencies
have authority to determine which
tributaries and their adjacent wetlands
are jurisdictional either through
regulations or adjudication. See
Rapanos, 547 U.S. at 780–81 (Kennedy,
J., concurring in the judgment); see also
NLRB v. Bell Aerospace Co., 416 U.S.
267, 294 (1974). With respect to
wetlands adjacent to waters other than
paragraph (a)(1) waters, the agencies
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have decided to proceed through casespecific jurisdictional determinations
under this rule, rather than through
categorical determinations by rule.
The agencies will continue to assert
jurisdiction over wetlands adjacent to
traditional navigable waters, the
territorial seas, and interstate waters
without need for further assessment, as
they did under the 1986 regulations and
the Rapanos Guidance. Indeed, in
Rapanos, at least five Justices agreed
that wetlands adjacent to traditional
navigable waters are ‘‘waters of the
United States.’’ See Rapanos, 547 U.S.
at 780 (Kennedy, J., concurring in the
judgment) (‘‘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. at 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 paragraph (a)(1) waters,
depends upon the functions provided
by upstream tributaries, adjacent
wetlands, and paragraph (a)(5) waters.
Under this rule, the agencies also define
‘‘waters of the United States’’ to include
wetlands adjacent to the territorial seas
without need for further assessment, as
they did under the 1986 regulations, as
the territorial seas are categorically
protected under the Clean Water Act.
Additionally, under this rule the
agencies continue to define ‘‘waters of
the United States’’ to include wetlands
adjacent to interstate waters without
need for further assessment since
interstate waters, like traditional
navigable waters and the territorial seas,
are waters clearly protected by the Clean
Water Act. See section IV.C.2 of this
preamble for further discussion of
traditional navigable waters, the
territorial seas, and interstate waters.
The agencies are retaining the 1986
regulations’ coverage of wetlands
adjacent to paragraph (a)(2)
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impoundments and wetlands adjacent
to tributaries to paragraph (a)(2)
impoundments, updated to include the
requirement that the wetlands also meet
either the relatively permanent or
significant nexus standard. As discussed
above in section IV.C.3 of this preamble,
the agencies’ longstanding
interpretation of the Clean Water Act is
that ‘‘waters of the United States’’
remain ‘‘waters of the United States’’
even if impounded. Since the
impoundment does not ‘‘denationalize’’
the ‘‘waters of the United States,’’ see
S.D. Warren, 547 U.S. at 379 n.5, the
agencies similarly interpret the Clean
Water Act to continue to protect
wetlands adjacent to the paragraph
(a)(2) impoundment and adjacent to
jurisdictional tributaries to the
impoundment where those wetlands
meet the relatively permanent standard
or the significant nexus standard. See
section IV.C.3 of this preamble for
additional discussion of impoundments
under this rule.
The agencies are also deleting the
cross reference to paragraph (a)(5)
waters as waters to which wetlands may
be adjacent to be determined ‘‘waters of
the United States’’ under the adjacent
wetlands category of this rule. This
change reflects the agencies’
consideration of the jurisdictional
concerns and limitations of the statute,
informed by 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
paragraph (a)(5) waters would have too
tenuous a connection to paragraph (a)(1)
waters. Rather, any such wetlands that
are adjacent only to paragraph (a)(5)
waters would be assessed themselves
under paragraph (a)(5) of this rule to
determine if they meet the relatively
permanent or significant nexus
standard. For example, a wetland
adjacent to a lake that meets the
significant nexus standard under
paragraph (a)(5) would itself need to be
assessed under paragraph (a)(5) to
determine whether it significantly
affects the chemical, physical, or
biological integrity of a paragraph (a)(1)
water. See section IV.C.6.c of this
preamble for further discussion on
implementation of paragraph (a)(5)
waters.
The agencies have removed the
parenthetical ‘‘(other than waters that
are themselves wetlands)’’ from the
regulatory text because it has caused
confusion for the public and the
regulated community and is
unnecessary. The parenthetical from the
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1986 regulations limited the scope of
jurisdictional adjacent wetlands to
wetlands adjacent to waters ‘‘(other than
waters that are themselves wetlands).’’
Under that provision, a wetland was not
jurisdictional simply because it was
adjacent to another adjacent wetland or
to a wetland jurisdictional under
paragraph (a)(3) of the 1986 regulations.
The provision has created confusion
under the pre-2015 regulatory regime, as
some have asserted that a wetland that
is indeed adjacent to a jurisdictional
tributary, but that is separated from that
tributary by another adjacent wetland,
should not be determined to be a
jurisdictional adjacent wetland because
of that parenthetical. Several
commenters discussed the parenthetical
in the 1986 regulation’s ‘‘adjacent
wetlands’’ category. Most of those
commenters were in favor of removing
the parenthetical, claiming that it
created ‘‘confusion’’ and citing concerns
that the parenthetical could improperly
limit jurisdiction of wetlands. Other
commenters voiced support for keeping
the parenthetical. Some 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. See Universal
Welding & Fabrication, Inc. v. U.S.
Army Corps of Eng’rs, 708 Fed. Appx.
301, 303 (9th Cir. 2017) (observing that
‘‘[d]espite 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’’ and
holding that the Corps’ interpretation is
‘‘the most reasonable reading of the
regulation’s text’’). Therefore, to
streamline the regulation and provide
additional clarity, the agencies have
deleted the text of the parenthetical in
this rule. In addition, wetlands adjacent
to interstate wetlands or wetlands
adjacent to tidal wetlands (which are
traditional navigable waters) are
jurisdictional under this rule, consistent
with the 1986 regulations and
longstanding practice.
ii. Comments on the Interpretation and
Implementation of the Adjacent
Wetlands Provision
The agencies will continue to
implement a number of longstanding
interpretations of ‘‘adjacent’’ based on
scientific principles and practical
administration of the definition with
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this rule. As stated previously, the
agencies consider wetlands ‘‘adjacent’’
if one of the following three criteria is
satisfied. First, there is an unbroken
surface or shallow subsurface
connection to jurisdictional waters. All
wetlands that directly abut
jurisdictional waters have an unbroken
surface or shallow subsurface
connection because they physically
touch the jurisdictional water. Wetlands
that do not directly abut a jurisdictional
water may have an unbroken surface or
shallow subsurface connection to
jurisdictional waters. Water does not
need to be continuously present in the
surface or shallow subsurface
connection. Second, they are physically
separated from jurisdictional waters by
human-made dikes or barriers, or
natural landforms (e.g., river berms,
beach dunes). Or third, their proximity
to a jurisdictional water is reasonably
close. Wetlands that meet one of these
three criteria are considered bordering,
contiguous, or neighboring for purposes
of this rule.
Several commenters provided input
on these three criteria. Some
commenters stated that shallow
subsurface hydrologic connections are
appropriate to consider for adjacency,
while others stated that such
connections should not be considered.
Several commenters stated that there are
regional differences in proximity
relevant to adjacency. Some
commenters stated that wetlands should
be considered adjacent even if they are
separated by human-made dikes or
barriers, natural river berms, beach
dunes and the like, while other
commenters did not support that view.
The agencies agree with commenters
who stated that shallow subsurface
connections can be relevant to
adjacency and will continue to use the
criteria from pre-2015 practice that an
unbroken shallow subsurface
connection between a wetland and
another water can demonstrate
adjacency.
While this rule does not explicitly
identify regional factors that influence
what is ‘‘reasonably close’’ for purposes
of adjacency, the agencies recognize
there may be site-specific factors (e.g.,
topography) that influence what is
‘‘reasonably close.’’ This rule does not
establish specific distance limitations
for adjacency, which helps ensure that
site-specific and regional factors can be
considered when a wetland is being
evaluated (see section IV.C.5.c of this
preamble, below).
The agencies agree with commenters
who supported the 1986 regulation’s
definition of ‘‘adjacent’’ to include
wetlands even if they are separated by
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natural landforms or human-made
barriers for the reasons discussed in
sections IV.A.2.b.ii (explaining that the
agencies’ longstanding definition of
‘‘adjacent,’’ which includes such
wetlands, is a reasonable foundation for
this rule), and IV.C.8.b of this preamble,
and section III.B.ii of the Technical
Support Document.
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c. Implementation
Under this provision of the rule,
wetlands adjacent to traditional
navigable waters, the territorial seas, or
interstate waters are jurisdictional and
do not need further analysis to
determine if they are ‘‘waters of the
United States.’’ Further, wetlands
adjacent to paragraph (a)(2)
impoundments and to jurisdictional
tributaries are assessed for jurisdiction
under the relatively permanent standard
or significant nexus standard. Wetlands
adjacent to but lacking a continuous
surface connection with tributaries that
are relatively permanent must be
assessed under the significant nexus
standard.
i. Determining the Presence of an
Adjacent Wetland
Before determining if a wetland is
jurisdictional, the agencies first
determine if the wetland in question
meets the definition of ‘‘wetlands’’
under this rule (see section IV.C.8.a of
this preamble).
In identifying wetlands, the agencies
will ordinarily consider all wetlands
within a wetland mosaic collectively.
The agencies have long considered
wetland mosaics to be delineated as one
wetland. Wetland mosaics are
landscapes where wetland and nonwetland components are too closely
associated to be easily delineated or
mapped separately, and the wetlands in
the mosaic generally act as a single
ecological unit. In certain regions where
wetland mosaics are common, Corps
regional wetland delineation manuals
address how to delineate such wetlands.
Longstanding practice is that wetlands
in the mosaic are not individually
delineated, but that the agencies
consider the entire mosaic and estimate
percent wetland in the mosaic. See
Technical Support Document section
IV.A.iii. These longstanding
implementation approaches for
purposes of jurisdictional
determinations are supported by the
science (see Technical Support
Document section IV.A.iii) and the
technical expertise the agencies have
developed through years of performing
these assessments.
Once a feature is identified as a
wetland, if the wetland itself is not
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jurisdictional under paragraph (a)(1) of
this rule as a traditional navigable water
(such as a tidal wetland) or an interstate
water, the agencies assess whether it is
adjacent to a traditional navigable water,
territorial sea, interstate water,
paragraph (a)(2) impoundment, or
jurisdictional tributary. Wetlands are
‘‘adjacent’’ if they are ‘‘bordering,
contiguous, or neighboring.’’ The
agencies consider the entire wetland to
be ‘‘adjacent’’ if any part of the wetland
is ‘‘adjacent.’’
Under this rule’s definition and
consistent with the agencies’
longstanding definition, adjacency is
focused on the distance between the
wetland and the jurisdictional water.
Whether the distance between the
wetland and the jurisdictional water
qualifies the wetland as bordering,
contiguous, or neighboring (and
therefore ‘‘adjacent’’) depends on the
factual circumstances, so the agencies
will assess adjacency using the three
criteria noted above in section IV.C.5.a
of this preamble. This section of the
preamble explains each of the criteria in
further detail. These criteria are
consistent with the text of the
regulation, the underlying scientific
rationale for defining ‘‘waters of the
United States’’ to include adjacent
wetlands, and pre-2015 practice. See
Rapanos Guidance at 5–6.
The longstanding definition, by its
terms, does not require flow from the
wetland to the jurisdictional water or
from the jurisdictional water to the
wetland (although such flow in either
direction can be relevant to the
determination of adjacency). The
Supreme Court in Riverside Bayview in
deferring to the Corps’ ecological
judgment about the relationship
between waters and their adjacent
wetlands as an ‘‘adequate basis for a
legal judgment that adjacent wetlands
may be defined as waters under the
Act,’’ rejected an argument that such
wetlands had to be the result of flow in
a particular direction to be adjacent:
‘‘This holds true even for wetlands that
are not the result of flooding or
permeation by water having its source
in adjacent bodies of open water. The
Corps has concluded that wetlands may
affect the water quality of adjacent
lakes, rivers, and streams even when the
waters of those bodies do not actually
inundate the wetlands. For example,
wetlands that are not flooded by
adjacent waters may still tend to drain
into those waters. In such
circumstances, the 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
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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.’ ’’ 447 U.S at 134
(citing 33 CFR 320.4(b)(2)(iv), (v), (vii)
(1985)).
Wetlands with an unbroken surface or
shallow subsurface connection to
jurisdictional waters are adjacent,
including those wetlands that directly
abut a jurisdictional water (i.e., they are
not separated by uplands, a berm, dike,
or similar barrier from the OHWM of the
water to which they are adjacent). All
wetlands that directly abut
jurisdictional waters have an unbroken
surface or shallow subsurface
connection because they physically
touch the jurisdictional water. An
unbroken surface or shallow subsurface
connection to jurisdictional waters can
also be established by a nonjurisdictional physical feature or
discrete conveyance that supports at
least periodic flow between the wetland
and a jurisdictional water, such as a
pipe, culvert, non-jurisdictional ditch,
or flood gate. Water does not have to be
continuously present in this hydrologic
connection and the flow between the
wetland and the jurisdictional water
may move in either or both directions.
A shallow subsurface hydrologic
connection is predominantly lateral
water flow through a shallow subsurface
layer. Such flows may be found, for
example, in wetlands on slopes, where
water seeps through surface soils to
downstream waters, in soils with a
restrictive horizon, in the hyporheic
zone, or in karst systems. A shallow
subsurface connection also exists, for
example, when the adjacent wetland
and the water to which it is adjacent are
in contact with the same shallow aquifer
or with the same shallow water table
which fluctuates within the soil profile,
sometimes rising to or near the ground
surface. Shallow subsurface connections
can also be maintained as water moves
through karst topography, and through
confined human-made subsurface
conveyance systems such as drain tiles
and storm sewers. Shallow subsurface
connections may be found below the
ordinary root zone (below 12 inches),
where other wetland delineation factors
may not be present. A variety of factors
may reflect the presence of a shallow
subsurface connection, including
position of the wetland in the landscape
(for example, on a slope above the
jurisdictional waters), stream
hydrographs, soil surveys (for example,
exhibiting indicators of high
transmissivity over an impermeable
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layer), and information indicating that
the water table in the stream is lower
than the shallow subsurface. The
agencies may also utilize direct
observations in the field or tracer
studies to demonstrate shallow
subsurface flow. Shallow subsurface
connections convey water quickly
through the soil and impact surface
water directly within hours or days
rather than the months or years it may
take long pathways to reach surface
waters. However, neither shallow
subsurface connections nor any type of
groundwater, shallow or deep, are
themselves ‘‘waters of the United
States.’’ Some examples of wetlands that
are adjacent under the final rule due to
an unbroken surface or shallow
subsurface connection include wetlands
that are connected to a tributary via
karst topography, which provide a
direct subsurface hydrologic connection
between the wetlands and the tributary
and that is traceable via a dye test, even
if those wetlands are more than several
hundred feet from the tributary; and
wetlands within a couple of hundred
feet of a tributary, where the subsurface
hydrologic connection is demonstrated
via soil maps which demonstrate
continuous hydric soils with indicators
of high transmissivity over an
impermeable layer between the tributary
and the proximate wetlands. See
Technical Support Document section
III.B.ii for additional information on
surface and shallow subsurface
hydrologic connections.
If a wetland is separated from a
jurisdictional water by man-made dikes
or barriers, natural river berms, beach
dunes, and the like, then the wetlands
are adjacent under this rule, consistent
with the 1986 regulations. No additional
identification of a hydrologic
connection between the wetland and the
jurisdictional water is required for such
wetlands to be considered adjacent. For
example, a wetland that is separated
from a jurisdictional tributary simply by
a 40-foot road meets the longstanding
definition of adjacent. It is also
important to note that natural river
berms are formed by sediment deposits
accumulating at or near stream banks
during flood events. Such berms vary in
height from inches to feet, and also can
be quite wide. With respect to beach
dunes and similar natural landforms,
more than one dune may exist between
an adjacent wetland and jurisdictional
water (including primary and secondary
dunes), because beach dunes typically
function as an interdunal system
(particularly on barrier islands). For
example, interdunal wetlands which are
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located between dune ridges would be
adjacent.
In some cases, a wetland may be
separated from a jurisdictional water by
more than one human-made dike or
barrier or multiple types of barriers and
landforms (e.g., a wetland separated by
a human-made barrier and a natural
river berm). The agencies will assess
such wetlands consistent with the other
adjacency criteria previously described
(i.e., by identifying the presence of an
unbroken surface or shallow subsurface
connection or determining that their
proximity to a jurisdictional water is
reasonably close).
For purposes of determining whether
a wetland is ‘‘adjacent,’’ artificial
structures do not divide a wetland if a
hydrologic connection is maintained
between the divided portions of the
wetland. Rather, the wetland is treated
as one wetland. For example, if a
wetland is divided by a road, a culvert
could maintain a hydrologic connection.
The agencies may also consider if a
subsurface hydrologic connection is
maintained, using indicators such as
hydric soils, the permeability of the
artificial structure, and/or the
permeability of the soils below the
artificial structure.
Wetlands are also adjacent when their
proximity to a jurisdictional water is
reasonably close. The Supreme Court in
Riverside Bayview deferred to the Corps’
judgment that adjacent wetlands ‘‘that
form the border of or are in reasonable
proximity to’’ other ‘‘waters of the
United States’’ ‘‘may be defined as
waters under the Act.’’ Riverside
Bayview, 474 U.S. at 134. Where the
wetland is reasonably close to the
jurisdictional water, the agencies have
concluded that ‘‘adjacent wetlands have
significant effects on water quality and
the aquatic ecosystem.’’ Id. at 135 n.9.
The close proximity between an
adjacent wetland and a jurisdictional
water means the wetland can modulate
water quantity and water quality in the
jurisdictional water, and the
jurisdictional water can modulate water
quantity and water quality in the
wetland. For example, wetlands
typically help to store floodwaters,
pollutants, and sediments that could
otherwise reach the jurisdictional water
to which they are adjacent. They can
also provide flow contributions to the
jurisdictional waters to which they are
adjacent during high hydroperiods,
where water spills from the wetland to
the nearby jurisdictional water, and
such contributions of flow are facilitated
by the wetland’s close proximity to the
jurisdictional water. The proximate
jurisdictional waters can serve as
important sources of water for adjacent
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wetlands, for example, through
overtopping events where flow from the
jurisdictional waters is stored in the
wetlands. While under this rule the
agencies are not establishing distance
limits for adjacency, the agencies
recognize that as the distance between
the wetland and jurisdictional water
increases, the reasonableness of the
connection between the waters will
generally decrease, particularly in the
absence of the type of surface or shallow
subsurface connections described above,
and a finding of adjacency is less likely.
The distance between a jurisdictional
water and its adjacent wetlands may
vary by region, as well as based on sitespecific factors within regions. In
practice, under this criterion, the
agencies have found that adjacent
wetlands are on the whole, nationwide,
within a few hundred feet of
jurisdictional waters. This can vary from
site to site and region to region due to
differences in climate, geomorphology,
landscape setting, hydrology, soils,
vegetation, elevation, size of the
jurisdictional water, and other sitespecific variables.
Field data, including visual
observations, can assist with
determining if a wetland is adjacent. In
addition, 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, visual
observation, NWI and USGS
topographic maps, elevation data, and
NHD data may identify a physical
barrier or illustrate the location of the
traditional navigable water, territorial
sea, interstate water, paragraph (a)(2)
impoundment, or jurisdictional
tributary; the wetland’s proximity to the
jurisdictional water; and the nature of
topographic relief between the two
aquatic resources. Visual observations,
aerial photographs, or high-resolution
satellite imagery may illustrate
hydrophytic vegetation from the
boundary (e.g., OHWM for non-tidal
waters or high tide line for tidal waters)
of the traditional navigable water, the
territorial seas, the interstate water, the
paragraph (a)(2) impoundment, or the
jurisdictional tributary to the wetland
boundary, or the presence of water or
soil saturation. Soil samples or 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. Field work can help
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confirm the presence and location of the
OHWM or high tide line of the
jurisdictional water and can provide
additional information about the
wetland’s potential adjacency to that
water.108
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ii. Determining Whether an Adjacent
Wetland Meets the Relatively
Permanent Standard
Wetlands that are adjacent to
paragraph (a)(1) waters are jurisdictional
without the need for further analysis.
Wetlands adjacent to paragraph (a)(2)
impoundments and wetlands adjacent
to jurisdictional tributaries must meet a
second requirement to be jurisdictional
as ‘‘waters of the United States’’ under
this rule—they must satisfy either the
relatively permanent standard or the
significant nexus standard.
Under this rule, adjacent wetlands
meet the relatively permanent standard
if they have a continuous surface
connection to a relatively permanent
paragraph (a)(2) impoundment or a
jurisdictional tributary when the
jurisdictional tributary meets the
relatively permanent standard. As
discussed previously in this section of
this preamble, wetlands that have a
continuous surface connection to such
waters are a subset of adjacent wetlands.
Wetlands that do not have a continuous
surface connection but are adjacent to
paragraph (a)(2) impoundments or
jurisdictional tributaries will be
evaluated for jurisdiction under the
significant nexus standard. See also
section IV.C.5.c.iii of this preamble.
A continuous surface connection does
not require a constant hydrologic
connection. Rather, the agencies will
identify a continuous surface
connection consistent with the Rapanos
plurality opinion, which indicates that
the continuous surface connection
requirement is a ‘‘physical-connection
requirement.’’ 547 U.S. at 751 n.13; see
also Rapanos Guidance at 7. Wetlands
meet the continuous surface connection
requirement if they physically abut or
touch a relatively permanent paragraph
(a)(2) impoundment or a jurisdictional
tributary when the jurisdictional
tributary meets the relatively permanent
standard. Wetlands also meet the
continuous surface connection
requirement if they are connected to
relatively permanent waters by a
discrete feature like a non-jurisdictional
ditch, swale, pipe, or culvert. This is
108 Field work may include, e.g., traversing the
landscape from the traditional navigable water,
territorial sea, interstate water, paragraph (a)(2)
impoundment, or jurisdictional tributary to the
wetland and examining topographic and
geomorphic characteristics, as well as hydrologic
and biologic indicators.
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because a ditch or other such feature
can serve as a physical connection that
maintains a continuous surface
connection between an adjacent
wetland and a relatively permanent
water. This approach to the continuous
surface connection is supported by the
scientific literature, case law, and the
agencies’ technical expertise and
experience. As the Court of Appeals for
the Sixth Circuit has explained, ‘‘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.’’ United States v. Cundiff, 555
F.3d 200, 213 (6th Cir. 2009) (‘‘Cundiff’’)
(holding wetlands were jurisdictional
under the Rapanos 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).
Similarly, a natural berm, bank, dune,
or similar natural landform between an
adjacent wetland and a relatively
permanent water does not sever a
continuous surface connection to the
extent it provides evidence of a
continuous surface connection. This
approach is consistent with the
agencies’ interpretation in the 2020
NWPR that natural berms and similar
natural landforms ‘‘are indicators of a
direct hydrologic surface connection as
they are formed through repeated
hydrologic events.’’ 85 FR 22311 (April
21, 2020). As the 2020 NWPR explained,
‘‘a natural river berm can be created by
repeated flooding and sedimentation
events when a river overtops its banks
and deposits sediment between the river
and a wetland.’’ Id. (citing Science
Report at A–7). The 2020 NWPR noted
that the adjacent wetland could have
been formed at the same time as or after
the formation of the natural river berm
due to repeated flooding and the
impeded return flow created by the
berm. Natural banks can also provide
evidence of a continuous surface
connection because the processes that
result in their formation can also be
representative of the interconnected
relationship between the wetlands and
the relatively permanent water.
Adjacent wetlands may be separated by
a bank from a relatively permanent
water due to an elevation difference
between the bank and the water (e.g.,
when the stream is incised). The surface
water flow of a tributary over time can
erode a channel, which creates a bank
separating the tributary from the
adjacent wetland. See 85 FR 22311
(April 21, 2020). In addition, the
presence of a beaver dam between a
wetland and a relatively permanent
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water can be evidence of a continuous
surface connection between the two
features, even if the dam itself blocks
surface hydrologic flow for periods of
time. Beach dunes may also separate
adjacent wetlands and relatively
permanent waters. Beach dunes are
sometimes formed through wind erosion
which results in the sand surface
interacting with the water table,
providing enough hydrology to create
wetlands. Beach dunes may also be
formed when water levels drop in lakes
or from historic glacial retreat. Many
interdunal wetlands have seasonally
variable hydroperiods where they may
be dry during periods of low rainfall.
All of these processes and the resulting
natural berm, bank, dune, or similar
natural landform indicate that the
wetlands are integrated and
‘‘inseparably bound up’’ with the
relatively permanent waters. See 85 FR
22280 (April 21, 2020) (citing Rapanos,
547 U.S. at 732 (Scalia, J., plurality
opinion)). The agencies recognize that
not all natural berms, banks, dunes, and
similar natural landforms demonstrate
evidence of a continuous surface
connection. For example, an adjacent
wetland may be separated from a
relatively permanent water by a relict
landform like a natural berm that no
longer interacts hydrologically with the
tributary network. Such relict barriers
do not demonstrate evidence of a
continuous surface connection and may
in fact sever the continuous surface
connection.
While natural barriers may at times
occur within a floodplain, the existence
of a floodplain (and other land masses
similar to a floodplain, such as a
riparian area or fluvial terrace) generally
is not sufficient to indicate a continuous
surface connection. Wetlands separated
from jurisdictional waters by cliffs,
bluffs, or canyon walls also typically do
not have a continuous surface
connection, and thus would be assessed
under the significant nexus standard.
However, if these cliffs, bluffs, or
canyon walls have gaps or built
structures (e.g., culverts, pipes, or
waterfalls) that provide for a continuous
surface connection between the adjacent
wetlands and the relatively permanent
water, this type of connection would
satisfy the physical connection
requirement for a continuous surface
connection. The same is true for dikes
or other artificial barriers with gaps or
structural components that allow for a
continuous surface connection. For
example, an upland levee that separates
an adjacent wetland from a tributary
that is relatively permanent may have
gaps along the length of the levee that
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provide for a physical connection
between the wetlands and the tributary
that satisfies the requirement for a
continuous surface connection.
Some commenters asserted that the
agencies’ use of the relatively
permanent standard in the proposed
rule is inconsistent with the Rapanos
plurality opinion because it does not
require a continuous hydrologic
connection for adjacent wetlands to be
jurisdictional, with one commenter
referencing the agencies’ statement in
the proposed rule that a continuous
surface connection ‘‘does not require
surface water to be continuously present
between the wetland and the tributary.’’
Another commenter asserted that the
proposed rule’s approach to adjacent
wetlands is inconsistent with the
Rapanos plurality opinion because it
allows for the continuous surface
connection requirement to be satisfied
by physical connections such as nonjurisdictional ditches with an irregular
flow surface connection requirement.
The agencies disagree that the approach
in this rule is inconsistent with the
plurality opinion. The plurality opinion
indicates that ‘‘continuous surface
connection’’ is a ‘‘physical connection
requirement.’’ Rapanos, 547 U.S. at 751
n.13 (referring to ‘‘our physicalconnection requirement’’ and later
stating that Riverside Bayview does not
reject ‘‘the physical-connection
requirement’’). This approach to the
continuous surface connection
requirement is consistent with the
Rapanos Guidance. Rapanos Guidance
at 7 & n.28. A continuous surface
connection is not the same as a
continuous surface water connection, by
its terms and in effect. Therefore,
because the plurality opinion requires
only a ‘‘continuous surface connection,’’
the relatively permanent standard in
this rule, consistent with the plurality
opinion, does not require surface water
to be continuously present between the
wetland and the tributary. The agencies
also disagree that it is inconsistent with
the plurality opinion for adjacent
wetlands to be considered to meet the
continuous surface connection
requirement if they are connected to
relatively permanent waters by a
discrete feature like a non-jurisdictional
ditch, swale, pipe, or culvert. This is
because a ditch or other such feature
can serve as a physical connection that
maintains a continuous surface
connection between an adjacent
wetland and a relatively permanent
water. This approach to the continuous
surface connection is supported by the
scientific literature, case law, and the
agencies’ technical expertise and
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experience. See Cundiff, 555 F.3d at
213.
The agencies agree with commenters
who stated that a continuous surface
connection does not require the
continuous presence of surface water
between the adjacent wetland and
relatively permanent paragraph (a)(2)
impoundment or jurisdictional tributary
when the jurisdictional tributary meets
the relatively permanent standard, and
the agencies continue this longstanding
approach in this rule. The agencies’
approach is consistent with science, as
well as the longstanding regulatory
definition of ‘‘wetlands,’’ which does
not require such aquatic resources to
contain surface water. See 33 CFR
328.3(b)(2014) and 40 CFR 232.2
(2014)(defining wetlands as ‘‘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’’ (emphasis added)); see also
Technical Support Document section
III.B. Since wetlands frequently do not
contain surface water, a requirement for
continuous surface water between a
relatively permanent water and adjacent
wetlands would be illogical as a
scientific and practical matter.
The agencies have a variety of tools
for determining whether adjacent
wetlands have a continuous surface
connection to relatively permanent
waters, or if they are separated from
them by natural landforms or artificial
barriers, including the same tools used
to establish adjacency. Visual
observations, high-resolution satellite
imagery, NRCS soil maps, USGS
topographic maps, and NHD data may
show soil saturation, surface flow
patterns and infrastructure crossings
(e.g., roads) that can be used to indicate
possible culvert locations. Visual
observations, high-resolution satellite
imagery, elevation data such as LIDARbased topographic models, and USGS
topographic maps may identify the
presence of swales that are located
between a wetland and a relatively
permanent water. Similar tools
(described below) and visual
observations can be used to identify the
potential presence of natural landforms
that can maintain a continuous surface
connection and the potential presence
of breaks that may sever a continuous
surface connection. Distinguishing
between landforms like upland breaks
and natural berms can be facilitated by
assessing their linear extent and
continuity, or observations on how they
hydrologically interact with an
associated relatively permanent water.
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To assess whether wetlands are
separated from relatively permanent
waters by natural landforms or artificial
barriers, the agencies can rely upon a
variety of tools. For example, USGS
topographic maps may show
topographic highs between the wetland
and relatively permanent water, or
simple indices can be calculated based
on topography to indicate where these
separations occur and their linear
extent. FEMA flood zone or other
floodplain maps may indicate
constricted floodplains along the length
of the tributary channel with physical
separation of flood waters. Highresolution elevation data can illustrate
topographic highs between a wetland
and tributary channel that extend along
the length of a tributary’s channel.
Aerial photographs or high-resolution
satellite imagery may illustrate upland
vegetation along the tributary channel
between the wetland and tributary
channel, 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
OHWM of a tributary that is relatively
permanent. In addition, field work may
confirm whether there is a continuous
physical connection between the
wetland and the tributary, or identify
breaks that may sever the continuous
surface connection.109
iii. Determining Whether an Adjacent
Wetland Meets the Significant Nexus
Standard
The agencies note again that the
determination of adjacency and the
determination of a significant nexus are
different and that there are two key
differences. First, adjacency is about the
relationship between a wetland and a
jurisdictional water and is based on
reasonable proximity, whereas
significant nexus is about the functions
provided by an adjacent wetland to a
paragraph (a)(1) water–the significant
nexus assessment is not to the
jurisdictional water to which the
wetland is adjacent (if the jurisdictional
water is a paragraph (a)(1) water, it is
jurisdictional without a case-specific
significant nexus assessment). Second, a
wetland must meet the adjacency
standard on its own, whereas a
significant nexus assessment is based on
whether an adjacent wetland alone or in
combination with other similarly
situated waters significantly affects the
109 Field work may include, e.g., traversing the
landscape from the tributary to the wetland and
examining topographic and geomorphic
characteristics, the linear extent of those features,
as well as hydrologic and biologic indicators.
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integrity of a paragraph (a)(1) water.
Once a wetland has been determined to
be ‘‘adjacent,’’ if the adjacent wetland
does not meet the relatively permanent
standard, the agencies will conduct a
significant nexus analysis to assess if
the wetland is jurisdictional.
Under the regulations, the adjacent
wetlands which do not meet the
relatively permanent standard and for
which a significant nexus analysis must
be conducted are: (1) adjacent wetlands
that lack a continuous surface
connection to a relatively permanent
paragraph (a)(2) impoundment or a
jurisdictional tributary when the
jurisdictional tributary meets the
relatively permanent standard, and (2)
wetlands adjacent to a paragraph (a)(2)
impoundment or a tributary when the
paragraph (a)(2) impoundment or the
tributary is not relatively permanent. In
evaluating such adjacent wetlands
under the significant nexus standard,
the agencies will determine whether the
wetlands, either alone or in combination
with similarly situated waters in the
region, significantly affect the chemical,
physical, or biological integrity of
paragraph (a)(1) waters. See section
IV.C.9 of this preamble for additional
discussion on the definition of
‘‘significantly affect’’ in this rule,
including the factors that will be
evaluated and the functions that will be
assessed as part of a significant nexus
analysis. The agencies consider
tributaries and their adjacent wetlands
to be ‘‘similarly situated’’ waters. The
agencies consider similarly situated
waters to be ‘‘in the region’’ when they
lie within the catchment area of the
tributary of interest. Therefore, in
implementing the significant nexus
standard under this rule, all tributaries
and adjacent wetlands within the
catchment area of the tributary of
interest will be analyzed as part of the
significant nexus analysis.
For a significant nexus analysis, the
region would be the catchment that
drains to and includes the tributary to
which the wetland in question is
adjacent. A catchment is the area of the
land surface that drains to a specific
location for a specific hydrologic
feature, such as a tributary. Catchments
will be delineated from the
downstream-most point of the tributary
reach to which the wetland is adjacent
and include the land uphill that drains
to that point, as discussed in further
detail in section IV.C.4.c of this
preamble and its subsections.
After identifying the catchment, the
next step is to identify the tributaries
within the catchment under the
agencies’ longstanding interpretation of
tributary, see section IV.C.4.a of this
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preamble, and their adjacent wetlands
within the catchment area, see section
IV.C.5.c.i of this preamble. When
evaluating whether an adjacent wetland
meets the significant nexus standard,
the agencies will consider the factors in
the final rule, along with the functions
of the tributaries in the catchment
together with the functions performed
by the wetlands adjacent to the
tributaries in the catchment, including
the subject wetland, in relation to the
chemical, physical, or biological
integrity of the paragraph (a)(1) water.
This approach to the significant nexus
analysis recognizes the ecological
relationship between wetlands and the
tributaries to which they are adjacent,
and the role those similarly situated
waters have in influencing the chemical,
physical, or biological integrity of
paragraph (a)(1) waters. See Technical
Support Document section III.E.
Section IV.C.9.c of this preamble
discusses a variety of tools and sources
of information that can be used to assess
significant effects on the chemical,
physical, and biological integrity of
paragraph (a)(1) waters. Remote tools,
field indicators and observational
methods, and datasets can all assist in
determining whether adjacent wetlands
meet the significant nexus standard. In
addition, a variety of modeling
approaches can be used to quantify the
connectivity and cumulative effects of
wetlands, including non-floodplain
wetlands, on other waters, as discussed
further in section IV.A.v of the
Technical Support Document.110
6. Waters Not Identified in Paragraphs
(a)(1) Through (4)
a. This Rule
Paragraph (a)(5) of this rule defines
‘‘waters of the United States’’ to include
‘‘intrastate lakes and ponds, streams, or
wetlands not identified in paragraphs
(a)(1) through (4)’’ that meet either the
relatively permanent standard or the
significant nexus standard. Waters in
this category in the 1986 regulations
were sometimes referred to as ‘‘(a)(3)
waters’’ or ‘‘other waters.’’ With this
110 Some examples include the Soil and Water
Assessment Tool (SWAT, available at https://
swat.tamu.edu/), the Hydrologic Simulation
Program in Fortran (available at https://
www.epa.gov/ceam/hydrological-simulationprogram-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/modflowand-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).
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3097
rule, the agencies have made important
changes to the 1986 regulations to
reflect the agencies’ construction of the
statutory limits on the scope of ‘‘waters
of the United States’’ informed by the
relevant provisions of the Clean Water
Act and the statute as a whole, the
scientific record, relevant Supreme
Court precedent, and the agencies’
experience and technical expertise after
more than 45 years of implementing the
longstanding pre-2015 regulations
defining ‘‘waters of the United States.’’
Of particular importance, the agencies
have replaced the broad Commerce
Clause basis for jurisdiction from the
1986 regulations for waters not
identified in other provisions of the
definition with the relatively permanent
standard and the significant nexus
standard. Because the relatively
permanent standard and the significant
nexus standard require connections to a
paragraph (a)(1) water, and the
significant nexus standard further
requires that waters significantly affect
paragraph (a)(1) waters, this provision of
the rule is substantially narrower than
the 1986 regulations. The 1986
regulations, for example, authorized the
assertion of jurisdiction over waters
from which fish or shellfish are or could
be taken and sold in interstate or foreign
commerce.
The agencies are including a
provision for intrastate lakes and ponds,
streams, or wetlands not identified in
paragraphs (a)(1) through (4) of the rule
because such waters can provide
functions that restore and maintain the
chemical, physical, and biological
integrity of traditional navigable waters,
the territorial seas, and interstate waters.
See section IV.A.2.c.iii of this preamble.
For example, a large lake that is very
close to a tributary or paragraph (a)(1)
water, but that is not part of the
tributary system, would be nonjurisdictional if the agencies did not
include the category for assessing such
waters under paragraph (a)(5) in this
rule, even if that lake provides many
functions that significantly affect a
traditional navigable water.
The agencies have streamlined and
clarified the provision for paragraph
(a)(5) waters as compared to the 1986
regulations. The agencies have added
the requirement that these waters must
meet either the relatively permanent
standard or significant nexus standard
to be ‘‘waters of the United States.’’ In
addition, the agencies have deleted the
non-exclusive list of ‘‘other waters’’ that
was featured in paragraph (a)(3) of the
1986 regulations. Under the final rule’s
new paragraph (a)(5) provision, only
‘‘intrastate lakes and ponds, streams, or
wetlands not identified in paragraphs
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(a)(1) through (4)’’ can be assessed for
jurisdiction under the relatively
permanent standard or significant nexus
standard. As discussed further below,
however, the agencies have concluded
that the more specific water types
previously listed in paragraph (a)(3) of
the 1986 regulations nonetheless
generally fall within one of the four
water types listed in paragraph (a)(5) of
this rule.
Finally, the agencies have moved the
provision for paragraph (a)(5) waters to
the end of the section of the regulation
which defines the categories of
jurisdictional waters, since paragraph
(a)(5) waters are those that are not
covered by the preceding categories. As
a result, ‘‘other waters’’ are now in
paragraph (a)(5) of this rule. In light of
these changes to the regulatory text, the
agencies refer to these waters as ‘‘those
not identified in paragraphs (a)(1)
through (4)’’ or ‘‘paragraph (a)(5)
waters’’ for purposes of this rule.
Waters assessed under paragraph
(a)(5) meet the relatively permanent
standard if they are relatively
permanent, standing or continuously
flowing bodies of water with a
continuous surface connection to a
paragraph (a)(1) water or a tributary that
is relatively permanent. The agencies
will assess waters under paragraph
(a)(5) to determine if they are relatively
permanent using a similar approach to
the one described for tributaries in
section IV.C.4 of this preamble, and the
agencies will assess a continuous
surface connection between waters
assessed under paragraph (a)(5) and a
paragraph (a)(1) water or a tributary that
is relatively permanent using the
approach described for adjacent
wetlands in section IV.C.5 of this
preamble. Waters assessed under
paragraph (a)(5) meet the significant
nexus standard if they significantly
affect the chemical, physical, or
biological integrity of a traditional
navigable water, the territorial seas, or
an interstate water. See section IV.C.6.c
of this preamble for further discussion
on implementation of these standards
for waters assessed under paragraph
(a)(5). The agencies also note that the
characteristics of a water considered for
jurisdiction under paragraph (a)(5) can
change over time such that it meets the
requirements for consideration under
another category of ‘‘waters of the
United States.’’ For example, a river that
does not drain to a paragraph (a)(1)
water could potentially become a
traditional navigable water, for instance,
if it is impounded and becomes a
navigable-in-fact reservoir. Such water
would then be assessed as a traditional
navigable water under paragraph
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(a)(1)(i) of the final rule. Similarly, a
wetland that historically was not
adjacent can become an adjacent
wetland, for example, if a ditch is
constructed that connects the wetland to
a jurisdictional tributary. Such a
wetland would then be considered
under paragraph (a)(4) of the final rule
due to the unbroken surface connection
to a jurisdictional water via the ditch.
b. Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
The agencies received numerous
comments on whether to include a
category for waters that do not fall
within one of the more specific
categories in the definition of ‘‘waters of
the United States’’ and the standard
upon which to base jurisdiction over
such waters, as well as on
implementation of this provision of the
rule.
i. Comments on the Provision for Waters
That Do Not Fall Within One of the
More Specific Categories
Some commenters expressed general
support for including a category for
waters that do not fall within one of the
more specific categories in this rule,
while others opposed including such a
category. Many commenters requested
clarification of the category for waters
that do not fall within one of the more
specific categories. Many commenters
addressed the agencies’ legal authority
to assert jurisdiction over waters that do
not fall within one of the more specific
categories. Some commenters asserted
that following the Supreme Court’s
decisions in SWANCC and Rapanos, the
agencies lack authority to assert
jurisdiction over such waters. Other
commenters stated that the proposed
rule’s approach to such waters is legally
defensible. Several commenters further
stated that the proposed rule does not go
far enough in protecting waters that do
not fall within one of the more specific
categories and asserted that broader
protection would be consistent with
Rapanos, SWANCC, and Maui.
The agencies disagree that the
agencies lack authority to assert
jurisdiction over waters that do not fall
within one of the more specific
categories. The agencies’ regulations
have long had provisions for casespecific determinations of jurisdiction
over waters that did not fall within the
other jurisdictional categories. See
section IV.A.2.b of this preamble. Such
waters under this rule can be assessed
under paragraph (a)(5), and they are
only jurisdictional if they meet the
relatively permanent standard or
significant nexus standard. The agencies
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have thus established limits on the
scope of these waters consistent with
the law, the science, and agency
expertise. See section IV.A of this
preamble. In addition, the agencies have
carefully considered the limitations on
their authority under the Clean Water
Act, especially concerning paragraph
(a)(5) waters. The agencies have made a
number of changes to the 1986
regulations that collectively ensure the
definition of ‘‘waters of the United
States’’ remains well within statutory
and constitutional limits. Those changes
include replacing the broad Commerce
Clause basis for jurisdiction over
paragraph (a)(5) waters with the
narrower relatively permanent and
significant nexus standards, eliminating
jurisdiction over tributaries and
adjacent wetlands based on their
connection to paragraph (a)(5) waters,
and eliminating jurisdiction by rule over
impoundments of paragraph (a)(5)
waters. See sections IV.A.3.a.i, IV.C.3,
IV.C.4, and IV.C.5 of this preamble. In
addition, as discussed further in the
implementation section below, the
agencies are intending to continue a
thoughtful, careful approach to
implementation and coordination for
paragraph (a)(5) waters.
The agencies also received numerous
comments on the standard to be used for
determining jurisdiction over waters
that do not fall within one of the more
specific categories. Some commenters
supported the proposed rule’s
requirement that such waters meet
either the relatively permanent standard
or the significant nexus standard.
However, other commenters did not
support this approach. One commenter
recommended that the agencies not
apply the relatively permanent standard
to waters that do not fall within one of
the more specific categories because it
would be duplicative. Specifically, the
commenter asserted that waters that
meet the relatively permanent standard
as described in the proposed rule would
always meet the jurisdictional criteria
for another rule category. A few
commenters disagreed with applying
the significant nexus standard to waters
that do not fall within one of the more
specific categories, asserting that it goes
beyond the scope of jurisdiction
contemplated by Justice Kennedy in
Rapanos. Many other commenters
opposed the proposed rule’s removal of
the interstate and foreign commerce
jurisdictional basis for protecting waters
that do not fall within one of the more
specific categories. Commenters
expressed that this basis would protect
many important waterways which
provide valuable public health,
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agricultural, recreational, drinking
water, ecological, and economic services
important to local, regional, and
national interests.
Under the 1986 regulations, ‘‘other
waters’’ (such as intrastate rivers, lakes,
and wetlands that were 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. This
rule amends the 1986 regulations to
delete all the provisions referring to
authority over activities that ‘‘could
affect interstate or foreign commerce’’
and replaces them with the relatively
permanent and significant nexus
standards. Thus, this 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
States’’ under the relatively permanent
or significant nexus standards.
The text of the 1986 regulations
reflected the agencies’ interpretation at
the time, based primarily on the
legislative history of the Clean Water
Act, that the jurisdiction of the Act
extended to the maximum extent
permissible under the Commerce Clause
of the Constitution. While 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,’’ the
Court cautioned that that it ‘‘assum[es]
that Congress does not casually
authorize administrative agencies to
interpret a statute to push the limit of
congressional authority.’’ 531 U.S. at
172–73. Therefore, the agencies
conclude that asserting jurisdiction over
non-navigable, intrastate waters based
solely on whether the use, degradation,
or destruction of the water could affect
interstate or foreign commerce pushes
the limit of the Clean Water Act where
those waters do not significantly affect
paragraph (a)(1) waters. This rule thus
replaces the interstate commerce test
with the relatively permanent and
significant nexus standards. As
discussed in section IV.A of this
preamble, the agencies have concluded
that the significant nexus standard is
consistent with the statutory text and
legislative history, advances the
objective of the Clean Water Act, is
informed by the scientific record and
Supreme Court case law, and
appropriately considers the policies of
the Act. The relatively permanent
standard is included in the rule because
it provides important efficiencies and
additional clarity for regulators and the
public by more readily identifying a
subset of waters that will virtually
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always significantly affect paragraph
(a)(1) waters. Thus, this rule gives effect
to the Clean Water Act’s broad terms
and environmentally protective aim as
well as its limitations.
Accordingly, waters that do not fall
within one of the more specific
categories identified in paragraphs (a)(1)
through (4) of this rule may still be
jurisdictional. This is consistent with
the text of the statute, relevant Supreme
Court case law, and the science. See
section IV.A of this preamble and
Technical Support Document section
III.D. 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. Without
paragraph (a)(5), a relatively permanent
lake that is not a tributary and is not a
wetland, but which nonetheless has a
continuous surface connection to a
traditional navigable water, could not be
evaluated for jurisdiction. Justice
Kennedy concluded that 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).
Many lakes and ponds that are not part
of the tributary system and that do not
qualify as a paragraph (a)(1) water can
only be assessed under paragraph (a)(5)
of this rule. There is no basis in the
statute or the science for excluding a
lake or pond from the definition of
‘‘waters of the United States’’ that is
situated on the landscape in a similar
manner as an adjacent wetland, solely
because it is a lake and not a wetland.
Multiple commenters stated that the
proposed rule’s inclusion of waters that
do not fall within one of the more
specific categories would impermissibly
assert jurisdiction over a wide range of
features that are far from traditional
navigable waters and that have only
minor volumes of flow. A few
commenters suggested that although the
proposed rule recognizes the
importance of the strength of
connection, particularly the distance of
such waters to navigable waters, it
suggests that the agencies may rely too
much on scientific principles when
making jurisdictional determinations in
a manner that improperly expands the
scope of the agencies’ authority.
Another commenter asserted that the
agencies should not consider water
functions that indicate isolation
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3099
between water features as a basis for
finding a significant nexus for waters
that do not fall within one of the more
specific categories.
The agencies disagree that this rule’s
category for waters that do not fall
within one of the more specific
categories, paragraph (a)(5), improperly
expands the scope of their authority.
The agencies have not only narrowed
this category from the 1986 regulations
by replacing the broad Commerce
Clause provisions with the relatively
permanent standard and the significant
nexus standard, but they have also made
additional changes from the 1986
regulations in order to ensure that they
are not pushing the outer limits of the
authority granted to them by Congress
under the Clean Water Act. See section
IV.A.3.a.i of this preamble.
Impoundments of waters jurisdictional
under paragraph (a)(5) no longer remain
jurisdictional by rule. Tributaries to
waters jurisdictional under paragraph
(a)(5) are not tributaries under
paragraph (a)(3) of this rule and must
themselves be assessed under paragraph
(a)(5). Wetlands adjacent to waters
jurisdictional under paragraph (a)(5) are
not adjacent wetlands under paragraph
(a)(4) of this rule and must themselves
be assessed under paragraph (a)(5). In
addition, as discussed further below, the
agencies have established enhanced
coordination procedures for waters
assessed under the significant nexus
standard under paragraph (a)(5) in order
to ensure that such jurisdictional
determinations are consistent with this
rule. The agencies have also carefully
defined ‘‘significantly affect,’’ and have
drawn upon the scientific literature to
identify the factors and functions that
will be used to make significant nexus
determinations. See section IV.C.9 of
this preamble. In addition, the agencies
will be appropriately relying on both
scientific principles and requirements of
the relatively permanent standard or the
significant nexus standard when
assessing jurisdiction under this
provision of the rule. As described in
section IV.A.2.c.iii of this preamble,
paragraph (a)(5) waters can provide
functions that restore and maintain the
chemical, physical, and biological
integrity of paragraph (a)(1) waters.
Therefore, the agencies have determined
that including the category for
paragraph (a)(5) waters in this rule best
advances the objective of the Clean
Water Act. The agencies disagree with
the commenter that asserted that the
agencies should not consider water
functions that indicate isolation
between water features as a basis for
finding a significant nexus. That
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position is contrary to Justice Kennedy’s
opinion on the role the absence of a
hydrologic connection should play in a
significant nexus analysis. See Rapanos,
547 U.S. at 786 (Kennedy, J., concurring
in the judgment) (‘‘Given the role
wetlands play in pollutant filtering,
flood control, and runoff storage, it may
well be the absence of hydrologic
connection (in the sense of interchange
of waters) that shows the wetlands’
significance for the aquatic system.’’).
That argument is also inconsistent with
the science regarding the functions that
waters that do not fall within one of the
more specific categories provide to
paragraph (a)(1) waters. See Technical
Support Document section III.D.
Many commenters stated that certain
types of wetlands should be
categorically protected in the rule
category for waters that do not fall
within one of the more specific
categories, such as Carolina and
Delmarva bays, pocosins, prairie
potholes, vernal pools, and other nonfloodplain wetlands, because they
provide functions that protect the
chemical, physical, or biological
integrity of paragraph (a)(1) waters.
These commenters also stated that these
waters provide valuable public health,
agricultural, recreational, drinking
water, ecological, and economic services
important to local, regional, and
national interests. The agencies
acknowledge commenters who
discussed the functions that these
waters can provide. Agencies may
choose to proceed via rulemaking or
adjudication. NLRB v. Bell Aerospace
Co., 416 U.S. 267, 294 (1974) (‘‘[T]he
choice between rulemaking and
adjudication lies in the first instance
within the [agency’s] discretion.’’). With
respect to the significant nexus standard
in particular, Justice Kennedy stated
that the agencies could proceed to
determine waters jurisdictional through
regulations or adjudication. See 547
U.S. at 780–81. The agencies have
concluded that adjudication of which
waters assessed under paragraph (a)(5)
are within Clean Water Act protections
through case-specific application of the
significant nexus standard or the
relatively permanent standard under
this rule, is appropriate. Therefore, the
agencies are not categorically including
or excluding waters that do not fall
within one of the more specific
categories as jurisdictional under this
rule. See also section III.D of the
Technical Support Document for more
information on the agencies’ rationale
for evaluating waters under paragraph
(a)(5). Waters assessed under paragraph
(a)(5) will be evaluated using the
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relatively permanent standard or
significant nexus standard to determine
their jurisdictional status.
Some commenters expressed that the
category for waters that do not fall
within one of the more specific
categories is too ambiguous or too
inclusive of waters that they believed
should not be protected. The agencies
disagree with commenters who asserted
that the category for waters that do not
fall within one of the more specific
categories should be removed, or that
the category is too confusing or overly
broad. Waters assessed under paragraph
(a)(5) in this rule are only jurisdictional
if they meet the relatively permanent
standard or the significant nexus
standard. The agencies have also
amended this provision of the rule to
more clearly identify the types of waters
addressed by this provision of the rule.
Additionally, a category for waters that
do not fall within one of the more
specific categories is a longstanding and
generally familiar category of waters
included in the definition of ‘‘waters of
the United States’’ under the 1986
regulations. The agencies have extensive
experience implementing the relatively
permanent standard and significant
nexus standard for wetlands, streams,
lakes, and ponds, which are the types of
resources that are assessed under
paragraph (a)(5) of this rule, and so will
be able to use their experience and
implementation resources to ensure
consistency of jurisdictional
determinations.
The 1986 regulations contained a nonexclusive list of water types that could
be jurisdictional if they were 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
sought comment in the proposed rule 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.
Commenters provided a variety of
perspectives on the specific list of
waters in the 1986 regulations. Several
commenters recommended that the
agencies clarify that the example list of
waters is illustrative and not exhaustive.
Commenters requested additions to the
example list of waters, such as Delmarva
bays, vernal pools, and seepage lakes.
Other commenters requested that
certain features be excluded from the
example list of waters, such as prairie
potholes. Some commenters expressed
confusion as to why the example list
from the 1986 regulations included
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‘‘intermittent streams’’ but not
‘‘ephemeral streams.’’
In this rule, the agencies have made
changes to the 1986 regulations to
clarify the list of water types that can be
jurisdictional under this provision, and
to clarify that waters assessed under
paragraph (a)(5) include waters that do
not meet the requirements under
paragraphs (a)(1) through (4) of this rule.
The list of water types in the 1986
regulations led to confusion as 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 the requisite water types
but which under the 1986 regulations
could affect interstate commerce and
under the proposed rule could meet the
significant nexus standard). The list was
not meant to imply that intermittent
streams were not jurisdictional under
the tributary provision of the 1986
regulations. In addition, a flowing
aquatic feature that is human-made or
human-altered but which is neither a
jurisdictional tributary nor an excluded
ditch would be assessed as a stream
under paragraph (a)(5).
Paragraph (a)(5) of this rule identifies
as ‘‘waters of the United States’’
‘‘intrastate lakes and ponds, streams, or
wetlands not identified in paragraphs
(a)(1) through (4)’’ that meet either the
relatively permanent standard or
significant nexus standard. Removing
the list of water types from the 1986
regulations is not meant to imply that
any of the water types listed in the 1986
regulations are not potentially subject to
jurisdiction; rather, the revised list of
water types is intended to more clearly
inform the public of the types of waters
that can be assessed for jurisdiction
under paragraph (a)(5), and in this rule
the list is intended to be exclusive. The
revised list is also streamlined for
clarity. The agencies have concluded
that the more specific water types
previously listed in paragraph (a)(3) of
the 1986 regulations fall within one of
the four water types in the rule. For
example, prairie potholes were in the
list of water types in the 1986
regulations and, depending upon the
characteristics of a particular prairie
pothole, they may fall within the
wetlands water type on the list (where
they meet the regulatory definition of
wetlands) or they may be lakes or
ponds. Other examples include sloughs,
as they typically fall within the
wetlands water type or the streams
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water type, and playa lakes, which may
fall within the lakes or ponds water type
depending upon their size. Finally, the
list of water types included in paragraph
(a)(5) does not reflect a conclusion that
these waters are categorically
jurisdictional; rather, these waters are
only jurisdictional if the subject waters
meet either the relatively permanent
standard or the significant nexus
standard.
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ii. Comments on Interpretation and
Implementation of Paragraph (a)(5)
Waters
The agencies received many
comments supporting, opposing, or
recommending changes related to the
implementation of the category for
waters that do not fall within one of the
more specific categories. Some
commenters asserted that the proposed
rule lacked sufficient implementation
guidance, and one commenter
specifically stated that the proposed
rule lacked sufficient guidance as to
how the agencies will apply the
significant nexus standard to waters that
do not fall within one of the more
specific categories. A few commenters
recommended an approach for
including waters that do not fall within
one of the more specific categories as
jurisdictional in a manner similar to
adjacent wetlands, with some arguing
that this approach would streamline the
permitting process, and others stating
general support for this approach. A
number of commenters recommended
that the agencies adopt regionalized
implementation approaches for certain
types of waters that do not fall within
one of the more specific categories, such
as prairie potholes, Carolina Bays, and
Indiana dune and swale wetland
complexes. The agencies acknowledge
commenters who requested additional
implementation guidance in the final
rule, and additional guidance has been
added to this rule including for the
significant nexus standard. See section
IV.C.6.c of this preamble for additional
discussion on implementation of the
significant nexus standard for waters
assessed under paragraph (a)(5). While
the agencies’ intended implementation
approach for paragraph (a)(5) waters has
some differences from the
implementation approach for adjacent
wetlands, as described further below,
the agencies have determined that the
approach is reasonable and
implementable. This rule does not
preclude the agencies from taking into
account regional considerations as part
of the significant nexus analysis, but the
agencies are not explicitly including
regional criteria in the rule to ensure
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they have the flexibility to address local
conditions.
Under the pre-2015 regulatory regime,
the agencies established coordination
procedures for paragraph (a)(3) ‘‘other
waters.’’ See 68 FR 1991, 1995 (January
15, 2003) (‘‘SWANCC Guidance’’)
(‘‘[F]ield staff should seek formal
project-specific Headquarters approval
prior to asserting jurisdiction over such
waters, including permitting and
enforcement actions.’’). Several
commenters stated that the agencies
should retain the requirement for field
staff to request headquarters review of
approved jurisdictional determinations
for waters that do not fall within one of
the more specific categories in this rule.
These commenters stated that review of
the scientific justification for a
conclusion under the significant nexus
standard must be conducted by senior
officials for accuracy and thoroughness,
and agency headquarters should provide
such oversight. In contrast, several
commenters stated that the agencies
should abandon the requirement for
field staff to request headquarters
review of approved jurisdictional
determinations for waters that do not
fall within one of the more specific
categories. These commenters stated
that headquarters review should not be
necessary because agency field staff
have considerable experience with and
expertise regarding the significant nexus
standard. The commenters also stated
that requiring headquarters review
would equate to continued exclusion of
waters that do not fall within one of the
more specific categories but should be
provided Clean Water Act protection.
Finally, commenters asserted that
reducing the number of approved
jurisdictional determinations needing
review by agency headquarters would
streamline the permitting process.
As discussed further below, the
agencies have established coordination
procedures under which the agencies’
headquarters will review all draft
approved jurisdictional determinations
for waters assessed under paragraph
(a)(5) based on the significant nexus
standard. This approach represents
enhanced oversight by headquarters
staff over approved jurisdictional
determinations for waters assessed
under paragraph (a)(5) to ensure
implementation consistency and to
gather more robust data about the
number and types of waters under
paragraph (a)(5) evaluated by the
agencies, any regional or geographic
issues, and the information and
implementation resources needed to
make approved jurisdictional
determinations for this category.
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c. Implementation
This rule provides for case-specific
analysis of waters not addressed by any
other provision of the definition to
determine whether they are ‘‘waters of
the United States’’ under the relatively
permanent or significant nexus
standards. Waters assessed under
paragraph (a)(5) meet the relatively
permanent standard if they are
relatively permanent, standing or
continuously flowing bodies of water
with a continuous surface connection to
a paragraph (a)(1) water or tributary that
is relatively permanent. Waters assessed
under paragraph (a)(5) meet the
significant nexus standard if they
‘‘significantly affect’’ the chemical,
physical, or biological integrity of a
paragraph (a)(1) water.
The agencies will generally assess
jurisdiction over aquatic resources
based on the requirements in paragraphs
(a)(1) through (4) under this rule before
assessing jurisdiction over aquatic
resources based on paragraph (a)(5).
Examples of aquatic resources that
could be assessed for jurisdiction under
paragraph (a)(5) include a stream that
does not meet the agencies’
interpretation of a tributary because it
does not contribute flow directly or
indirectly to a paragraph (a)(1) water or
a paragraph (a)(2) impoundment; a
wetland that does not meet this rule’s
definition of ‘‘adjacent’’; or a lake or
pond that does not meet the agencies’
interpretation of a tributary because it is
not connected to the tributary network.
A ditch that does not meet the agencies’
interpretation of tributary could also be
assessed for jurisdiction under
paragraph (a)(5), so long as the ditch
does not meet the terms of the
paragraph (b)(3) exclusion. The
preamble to the proposed rule stated
that consistent with previous practice,
the agencies would not assess whether
a ditch was jurisdictional under the
paragraph (a)(3) ‘‘other waters’’
provision. 86 FR 69433 (December 7,
2021). However, the agencies have
reconsidered this statement and
determined that under previous
practice, the agencies did in fact assess
whether ditches were jurisdictional
under the paragraph (a)(3) ‘‘other
waters’’ provision, and the agencies will
continue to assess ditches that are not
excluded under paragraph (b)(3) under
the relevant jurisdictional categories in
this final rule. The following sections of
the preamble cover how to identify
waters assessed under paragraph (a)(5)
on the landscape, implementation of the
relatively permanent standard for waters
assessed under paragraph (a)(5), and
implementation of the significant nexus
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standard for waters assessed under
paragraph (a)(5).
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i. Identifying Waters Assessed Under
Paragraph (a)(5) on the Landscape
Under this rule, waters that will be
assessed for jurisdiction under
paragraph (a)(5) are: intrastate lakes and
ponds, streams, and wetlands that do
not meet the requirements to be
considered under paragraphs (a)(1)
through (4) of this rule. The agencies
will identify waters assessed under
paragraph (a)(5) on the landscape using
the implementation tools that have
previously been described for these
aquatic resources (see sections IV.C.4
and IV.C.5 of this preamble). The
agencies can draw upon a variety of
remote- and field-based methods,
including a variety of mapping
resources for identifying aquatic
resources.
ii. Implementing the Relatively
Permanent Standard for Waters
Assessed Under Paragraph (a)(5)
Waters assessed under paragraph
(a)(5) meet the relatively permanent
standard if they are relatively
permanent, standing or continuously
flowing bodies of water with a
continuous surface connection to a
paragraph (a)(1) water or a tributary that
is relatively permanent. The agencies
have decided to implement this
approach consistent with the Rapanos
plurality opinion, and it reflects and
accommodates regional differences in
hydrology and water management and
can be implemented using available,
easily accessible tools. See sections
IV.C.4.c and IV.C.5.c of this preamble.
The agencies intend to identify
relatively permanent waters under
paragraph (a)(5) using a similar
approach to the one described for
relatively permanent tributaries in
section IV.C.4.c.ii of this preamble. In
summary, relatively permanent waters
under paragraph (a)(5) include surface
waters that have flowing or standing
water year-round or continuously
during certain times of the year.
Relatively permanent waters under
paragraph (a)(5) include certain rivers
and streams that have ‘‘flowing water.’’
The phrase ‘‘standing water’’ is
intended to describe waters that are
lentic or ‘‘still’’ systems, such as lakes,
ponds, and impoundments, which are
characterized by standing water and do
not have a flowing outlet to the tributary
system. In the context of waters assessed
under paragraph (a)(5), the phrase
‘‘standing water’’ can also describe
certain wetlands that are characterized
by standing water (e.g., many swamps).
Relatively permanent waters under
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paragraph (a)(5) do not include features
with flowing or standing water for only
a short duration in direct response to
precipitation. These features may
include, for example, certain wetlands
that are not characterized by standing
water (e.g., many pocosin wetlands). See
section IV.C.4.c.ii of this preamble for a
description of implementation tools that
can be used to identify relatively
permanent waters under paragraph
(a)(5).
The agencies intend to identify a
continuous surface connection between
waters assessed under paragraph (a)(5)
and a paragraph (a)(1) water or a
tributary that is relatively permanent
using the approach described for
adjacent wetlands in section IV.C.5.c of
this preamble (although waters assessed
under paragraph (a)(5) are not subject to
the adjacency requirement for
jurisdictional adjacent wetlands). In
summary, there must be a continuous
surface connection on the landscape for
waters assessed under paragraph (a)(5)
to be jurisdictional under the relatively
permanent standard. However, a
continuous surface connection does not
require a constant hydrologic
connection. Waters assessed under
paragraph (a)(5) can meet the
continuous surface connection
requirement if they are connected to a
paragraph (a)(1) water or a tributary that
is relatively permanent by a discrete
feature like a non-jurisdictional ditch,
swale, pipe, or culvert. Similarly, a
natural berm, bank, dune, or similar
natural landform between a water
assessed under paragraph (a)(5) and a
paragraph (a)(1) water or a tributary that
is relatively permanent does not sever a
continuous surface connection to the
extent it provides evidence of a
continuous surface connection. See
section IV.C.5.c of this preamble for a
description of implementation tools that
can be used to assess a continuous
surface connection for a water assessed
under paragraph (a)(5).
Under this rule, certain aquatic
resources that do not meet the
jurisdictional requirements for
tributaries or adjacent wetlands could
be jurisdictional as paragraph (a)(5)
waters under the relatively permanent
standard. For example, lakes and ponds
that are not connected to a tributary
system but are relatively permanent
waters and have a continuous surface
connection to a paragraph (a)(1) water or
a tributary that is relatively permanent,
could be jurisdictional as paragraph
(a)(5) waters. To illustrate, a relatively
permanent lake that is located near a
tributary that meets the relatively
permanent standard, but is separated by
a natural berm, to the extent the berm
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provides evidence of a continuous
surface connection, is jurisdictional as a
paragraph (a)(5) water under the
relatively permanent standard. See
section IV.C.4.c.ii of this preamble.
Similarly, a relatively permanent oxbow
pond located near a traditional
navigable water and connected to that
traditional navigable water via a swale
that provides a continuous surface
connection between the pond and the
traditional navigable water is
jurisdictional as a paragraph (a)(5) water
under the relatively permanent
standard.
iii. Implementing the Significant Nexus
Standard for Waters Assessed Under
Paragraph (a)(5)
Waters assessed under paragraph
(a)(5) that do not meet the relatively
permanent standard may be found
jurisdictional under the significant
nexus standard. Waters assessed under
paragraph (a)(5) meet the significant
nexus standard if they significantly
affect the chemical, physical, or
biological integrity of a traditional
navigable water, the territorial seas, or
an interstate water. Examples of waters
assessed under paragraph (a)(5) include
familiar types of waters like lakes and
ponds, streams, and wetlands that have
been the subject of significant nexus
analyses under the tributaries and
adjacent wetlands provisions of the pre2015 regulations since the Rapanos
Guidance was issued. See section IV.C.9
of this preamble for additional
discussion on the definition of
‘‘significantly affect’’ in this rule,
including the factors that will be
considered and the functions that will
be assessed as part of a significant nexus
analysis. Consistent with longstanding
practice, the agencies will assess these
waters based on best professional
judgment informed by the best available
information.
In implementing the significant nexus
standard, the agencies generally intend
to analyze waters under paragraph (a)(5)
individually to determine if they
significantly affect the chemical,
physical, or biological integrity of a
paragraph (a)(1) water. This approach
reflects the agencies’ consideration of
public comments, as well as
implementation considerations for
waters assessed under paragraph (a)(5).
While the agencies’ regulations have
long authorized the assertion of
jurisdiction on a case-specific basis over
waters that do not fall within the other
jurisdictional provisions, since
SWANCC and the issuance of the
SWANCC Guidance with its
requirement of headquarters approval
over determinations under that
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provision, the agencies have not in
practice asserted jurisdiction over
paragraph (a)(3) ‘‘other waters’’ under
the pre-2015 regulatory regime.111
Some commenters specifically
addressed implementation of the
significant nexus standard for waters
that do not fall within one of the more
specific categories, with commenters
supporting and opposing aggregation of
such waters as part of a significant
nexus analysis. Commenters opposing
aggregation requested that the agencies
assess water features individually to
determine their significance to
chemical, physical, or biological
integrity of downstream paragraph (a)(1)
waters. Commenters supporting
aggregation of waters that do not fall
within one of the more specific
categories stated that such an approach
was consistent with Rapanos and the
science. The agencies addressed such
waters individually on a case-by-case
basis under pre-2015 practice and have
concluded at this time that individual
assessments are practical and
implementable for significant nexus
determinations for waters assessed
under paragraph (a)(5).
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iv. Joint Agency Coordination on Waters
Assessed Under Paragraph (a)(5)
As is typical after a rule is
promulgated, the agencies have entered
into an agreement via a joint agency
coordination memorandum to ensure
the consistency and thoroughness of the
agencies’ implementation of this rule.
As part of these coordination
procedures, EPA and Corps field staff
will coordinate on all draft approved
jurisdictional determinations 112 based
on the significant nexus standard, and
the agencies will follow a process for
elevating a subset of these
determinations to headquarters for
review as necessary. That coordination
will be enhanced for waters assessed
under paragraph (a)(5) to ensure this
provision is carefully implemented and
to gather more robust data about the
number and types of waters assessed
under paragraph (a)(5) by the agencies,
111 Note that when the 2015 Clean Water Rule
was in effect, the agencies did assert jurisdiction
over waters that would have been known as
paragraph (a)(3) ‘‘other waters’’ by rule if they were
adjacent waters as defined by that rule and on a
case-specific basis if they fell within the provisions
requiring case-specific significant nexus
determinations. The 2020 NWPR also asserted
jurisdiction over certain lakes and ponds that
would have been jurisdictional as paragraph (a)(3)
‘‘other waters.’’
112 An approved jurisdictional determination is
‘‘a 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.’’ 33 CFR
331.2.
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any regional or geographic issues, and
the information and implementation
resources needed to complete approved
jurisdictional determinations for this
category. As part of these coordination
procedures, headquarters at the agencies
will review all draft approved
jurisdictional determinations for waters
assessed under paragraph (a)(5) based
on the significant nexus standard. The
agencies do not intend for this
coordination to result in the exclusion
of paragraph (a)(5) waters that meet the
significant nexus standard and are thus
jurisdictional under this rule, but rather
to serve as an additional check as to
whether one of the jurisdictional
standards is met. In addition, the
agencies have established timelines for
the review of certain draft approved
jurisdictional determinations to ensure
that there will not be unnecessary delay.
Moreover, the coordination will enable
the agencies to quickly address any
potential inconsistencies, and that will
enhance the efficiency of the approved
jurisdictional determination process
under this rule. Finally, after the
memorandum is in effect for nine
months, the agencies will reevaluate
this requirement and assess the
implementation and coordination
approach, including assessing the scope
and need for the coordination process.
7. Exclusions
The agencies are including in the final
rule regulatory text several exclusions
from the definition of ‘‘waters of the
United States,’’ including longstanding
exclusions for prior converted cropland
and waste treatment systems, and
exclusions for features that were
generally considered non-jurisdictional
under the pre-2015 regulatory regime.
The regulatory text for this rule
excludes the following features:
• waste treatment systems, including
treatment ponds or lagoons, designed to
meet the requirements of the Clean
Water Act;
• prior converted cropland;
• ditches (including roadside ditches)
excavated wholly in and draining only
dry land and that do not carry a
relatively permanent flow of water;
• artificially irrigated areas that
would revert to dry land if the irrigation
ceased;
• artificial lakes or ponds created by
excavating 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 or diking
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dry land to retain water for primarily
aesthetic reasons;
• 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; and
• swales and erosional features (e.g.,
gullies, small washes) characterized by
low volume, infrequent, or short
duration flow.
These features were excluded by
regulation or general practice under the
pre-2015 regulatory regime and each of
the subsequent rules defining ‘‘waters of
the United States.’’ These exclusions
from the definition provide important
clarity on which features are and are not
jurisdictional. As described in more
detail below, to provide further clarity
and certainty to the public, the agencies
are codifying exclusions in the
regulatory text for the features described
in the proposed rule preamble as
generally non-jurisdictional. Note that
the word ‘‘features’’ when used in
section IV.C.7 of this preamble refers
broadly to landscape elements that may
be evaluated in a determination of
jurisdiction, e.g., streams, ponds,
swales, wetlands, and depressions.
The agencies are listing these
exclusions in the regulatory text in a
new paragraph (b) which consolidates
the exclusions together in a single
regulatory section. With this change, the
regulatory text now identifies
jurisdictional waters in paragraph (a),
exclusions in paragraph (b), and
definitions in paragraph (c). This change
is consistent with the 2015 Clean Water
Rule and 2020 NWPR, which both
organized the regulatory text into these
three paragraphs. This organizational
structure clearly delineates waters that
are jurisdictional from those waters and
features that are excluded and provides
a familiar and clear framework for the
regulations. This reorganization does
not affect the substance of the definition
of ‘‘waters of the United States.’’
As explained in this rule’s regulatory
text, where a feature satisfies the terms
of an exclusion, it is excluded from
jurisdiction even where the feature
would otherwise be jurisdictional under
any of paragraphs (a)(2) through (5) of
this rule. In such an instance, the
feature is not considered ‘‘waters of the
United States.’’ However, where a
feature satisfies the terms of an
exclusion but would otherwise be
jurisdictional under paragraph (a)(1) of
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this rule, the feature is not excluded.113
For example, where applicable, the
exclusion in this rule for ditches
excludes a ditch that is excavated
wholly in dry land, drains only dry
land, and does not carry a relatively
permanent flow of water. However, all
tidally-influenced ditches are
jurisdictional under paragraph (a)(1)(i)
of the rule because they are ‘‘subject to
the ebb and flow of the tide,’’ and
therefore the exclusion is not applicable
to those ditches. In addition, if a ditch
was excavated in dry land very close to
a territorial sea and, over time due to
erosion, sea level rise, or other factors,
the ditch develops a hydrologic
connection to the territorial sea and
becomes tidally-influenced, the ditch
would then be considered jurisdictional
under paragraph (a)(1) of this rule and
would no longer be excluded. This is
consistent with the agencies’
longstanding position that a feature is
not excluded where it would otherwise
be jurisdictional as a traditional
navigable water, territorial sea, or
interstate water. See 51 FR 41217
(November 13, 1986) (explaining that
‘‘[n]on-tidal drainage and irrigation
ditches excavated on dry land’’ are
generally not considered ‘‘waters of the
United States’’ under the 1986
regulations but not including similar
language for tidally-influenced ditches).
The Clean Water Act fundamentally
protects these three categories of waters:
traditional navigable waters are clearly
encompassed within the defined term
‘‘navigable waters’’; the territorial seas
are explicitly mentioned in the statutory
definition of ‘‘navigable waters’’; and, as
discussed further in section IV.C.2.b.iii
of this preamble, interstate waters are,
by definition, waters of the ‘‘several
States’’ and are unambiguously ‘‘waters
of the United States.’’ While the
agencies have authority to draw lines
excluding some aquatic features from
the definition of ‘‘waters of the United
States,’’ the Clean Water Act provides
no such authority to the agencies to
exclude waters in these three
unambiguous types of ‘‘waters of the
United States’’ under the statute. Even
if jurisdiction over one or all of these
categories of waters were ambiguous,
the agencies have concluded that since
these are the fundamental waters that
Congress intended to protect under the
Clean Water Act, and that have had
longstanding and unequivocal
protection, with the exception of the
2020 NWPR, it is reasonable to establish
unequivocal jurisdiction over these
113 See also discussion of the waste treatment
system exclusion in section IV.C.7.b of this
preamble, infra.
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waters. Further, the agencies have
concluded that there are not policy,
practical, or technical bases to apply the
exclusions to these paragraph (a)(1)
waters given their crucial role in the
statutory regime. The agencies recognize
that the 2020 NWPR allowed certain
traditional navigable waters and the
territorial seas to be excluded from
jurisdiction if they satisfied the terms of
certain exclusions. The 2020 NWPR did
not provide a rationale for this aspect of
the final rule. The agencies are restoring
historic practice and, consistent with
the Clean Water Act and as discussed
above, are ensuring the protection of all
paragraph (a)(1) waters in this rule.
The exclusions reflect the agencies’
longstanding practice and technical
judgment that certain waters and
features are not subject to the Clean
Water Act. The exclusions are also
guided by Supreme Court precedent.
The plurality opinion in Rapanos noted
that there were certain features that
were not primarily the focus of the
Clean Water Act. See 547 U.S. at 734.
In this section of the rule, the agencies
are promoting regulatory certainty by
expressly stating that certain waters and
features are not subject to jurisdiction
under the Clean Water Act. Based on
decades of implementation experience,
the agencies have determined that
waters that satisfy the terms of an
exclusion are not ‘‘waters of the United
States.’’ Clearly identifying these
exclusions in this rule is an important
aspect of the agencies’ policy goal of
providing clarity and certainty. The
categorical exclusions in this rule will
simplify the process of determining
jurisdiction, and they reflect the
agencies’ determinations of the lines of
jurisdiction based on case law, policy
determinations, and the agencies’
experience and expertise.
In addition, even when the features
described below are not ‘‘waters of the
United States’’ because they are
excluded (e.g., certain ditches, swales,
gullies, erosional features), these and
other non-jurisdictional features may be
relevant to the analysis of whether
another water meets the final rule’s
definition of ‘‘waters of the United
States.’’ For example, consistent with
longstanding practice, excluded surface
features may still contribute to a
hydrologic connection relevant for
asserting jurisdiction (e.g., between an
adjacent wetland and a jurisdictional
water). See section IV.C.5 of this
preamble; Rapanos Guidance at 12.
Discharges to these non-jurisdictional
features may also be subject to certain
Clean Water Act regulations. For
example, a discharge from a point
source to a non-jurisdictional ditch that
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connects to a jurisdictional water may
require a Clean Water Act section 402
permit. See Rapanos Guidance at 12. In
addition, non-jurisdictional ditches may
themselves function as point sources
(i.e., ‘‘discernible, confined, and
discrete conveyances’’), such that
discharges of pollutants from these
features could require a Clean Water Act
permit. See also Rapanos, 547 U.S. at
743–44. While not the focus of this
section, subsurface features that are
non-jurisdictional may also be relevant
to assessing jurisdiction of water
features. See sections IV.C.4 and IV.C.5
of this preamble.
Several commenters requested that
the agencies exclude features from the
definition of ‘‘waters of the United
States’’ beyond those longstanding
exclusions and historically nonjurisdictional features identified in the
proposed rule. For example, several
commenters requested that the agencies
exclude stormwater control features,
wastewater and drinking water
treatment systems, and water recycling
structures from the definition of ‘‘waters
of the United States.’’ The agencies are
not excluding these or other additional
features in this rule. The proposed
additional exclusions would not achieve
the agencies’ goal of maintaining
consistency with the pre-2015
regulatory regime while continuing to
advance the objective of the Clean Water
Act. This approach is consistent with
the agencies’ intent in this rule to
interpret ‘‘waters of the United States’’
to mean the waters defined by the
longstanding 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 the text of the
relevant provisions of the Clean Water
Act and the statute as a whole, the
scientific record, relevant Supreme
Court case law, and the agencies’
experience and technical expertise, in
addition to consideration of extensive
public comment on the proposed rule.
However, even for features that are not
explicitly excluded, the agencies will
continue to assess jurisdiction under
this rule on a case-specific basis. As part
of this case-specific assessment, the
agencies will continue to consider
whether the feature in question is
excavated or created in dry land, the
flow of water in the feature, and other
factors. In addition, some of the features
that commenters asked the agencies to
exclude may already be covered by one
or more of the exclusions the agencies
are including in this rule. For example,
certain features that convey stormwater
may be excluded as ditches under this
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rule. Similarly, some of the features that
commenters mentioned, like sheetflow,
are not waters at all and would not be
considered ‘‘waters of the United
States.’’ Even though certain features
may not be explicitly excluded, the
agencies will not assert Clean Water Act
jurisdiction over features that do not
satisfy the definition of ‘‘waters of the
United States’’ articulated in paragraph
(a) of this rule.
Several commenters requested that
the agencies explicitly exclude
groundwater in this rule’s regulatory
text while other commenters requested
that the agencies not exclude
groundwater from jurisdiction under
this rule. In this rule, the agencies are
not adding an exclusion for
groundwater to the regulatory text
because groundwater is not surface
water and therefore does not fall within
the possible scope of ‘‘navigable
waters.’’ There is thus no need for a
regulatory exclusion. This position is
longstanding and consistent with
Supreme Court case law. The agencies
have never taken the position that
groundwater falls within the scope of
‘‘navigable waters’’ under the Clean
Water Act. See, e.g., 80 FR 37099–37100
(June 29, 2015) (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). This
position 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 statespecific 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
jurisdictional as ‘‘waters of the United
States,’’ discharges of pollutants to
groundwater that reach a jurisdictional
surface water 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. Groundwater
that is not jurisdictional includes both
shallow and deep groundwater, even
where such shallow subsurface water
serves as a hydrologic connection that is
assessed in determining if another water
is jurisdictional. Groundwater drained
through subsurface drainage systems
also is not jurisdictional. When
groundwater emerges on the surface, for
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example when it becomes baseflow in
streams or joins spring fed ponds, it is
no longer considered to be groundwater
under this rule.
While groundwater is not
jurisdictional under the statute or this
rule, many States include groundwater
in their definitions of ‘‘waters of the
State’’ and therefore may subject
groundwater to State regulation. Indeed,
the Clean Water Act incentivizes State
protection of groundwater. For example,
grants to States under Clean Water Act
section 319 may support management
programs that include groundwater
quality protection activities as part of a
comprehensive nonpoint source
pollution control program. 33 U.S.C.
1329(h)(5)(D). In addition, groundwater
quality is regulated and protected
through several other legal mechanisms,
including the Safe Drinking Water Act,
the Resource Conservation and
Recovery Act, and various Tribal, State,
and local laws.
Several commenters suggested that
wetlands that develop entirely within
the confines of a non-jurisdictional
feature should be considered part of the
excluded feature and not be considered
‘‘waters of the United States.’’ The
agencies agree with these commenters
and find that wetlands that develop
entirely within the confines of an
excluded feature are not jurisdictional.
This interpretation is consistent with
the agencies’ longstanding approach to
this issue and with the agencies’
rationale for excluding these features.
This approach also provides
environmental benefits because it
removes the incentive for parties to
clear vegetation from an excluded
feature to prevent that vegetation from
developing into a wetland and
becoming jurisdictional, thus allowing
vegetation within the confines of an
excluded feature to provide water
quality benefits for the duration of its
existence.
However, a wetland may be located
both within and outside the boundaries
of a non-jurisdictional feature or
entirely outside the boundaries of nonjurisdictional feature. In these
circumstances, the wetland will be
evaluated under this rule’s provisions
for ‘‘adjacent wetlands’’ and paragraph
(a)(5) ‘‘intrastate lakes and ponds,
streams, or wetlands’’ and not
considered as part of the nonjurisdictional feature. It is important to
note, however, that although some low
gradient depressional areas are
colloquially referred to as ‘‘swales,’’
these areas do not meet the regulatory
exclusion’s criteria for swales that are
discrete topographic features
‘‘characterized by low volume,
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infrequent, or short duration flow.’’ As
such, the agencies would not consider
wetlands forming within low gradient
depressional areas to be ‘‘within the
confines of a non-jurisdictional feature,’’
and such wetlands would be assessed to
determine if they meet any of the
provisions of this rule.
While the agencies evaluate whether
any exclusions apply when making
approved jurisdictional determinations
for purposes of efficiency, the person
asserting that the water at issue is
excluded under the Clean Water Act or
that the person’s activities at issue in
the case are exempt under the Act, may
have information that is material to
proving that the exclusion or exemption
applies. There are circumstances where,
absent this information from the
requestor, the agency will be unable to
determine that an exclusion applies.
While the requestor is not required to
provide information regarding
applicability of the exclusions to the
agencies during the jurisdictional
determination process, it is to their
benefit to do so because the person
asserting that a water is excluded or that
a person’s activities are exempt under
the Clean Water Act bears the burden of
proving that the exclusion or exemption
applies. See, e.g., United States v. Akers,
785 F.2d 814, 819 (9th Cir. 1986)
(‘‘Akers must establish that his activities
are exempt.’’). Where the agencies,
based on the information that they have
in the record, are unable to conclude
that an exclusion applies, the agencies
will assess the water to see if it meets
the jurisdictional criteria of this rule
under paragraphs (a)(1) through (5).
a. Prior Converted Cropland
i. This Rule
This rule repromulgates the regulatory
exclusion for prior converted cropland
first codified in 1993, which provided
that prior converted cropland is ‘‘not
‘waters of the United States.’’’ This rule
restores longstanding and familiar
practice under the pre-2015 regulatory
regime. The rule maintains consistency
and compatibility between the agencies’
implementation of the Clean Water Act
and the U.S. Department of
Agriculture’s (USDA) implementation of
the Food Security Act by providing that
prior converted cropland under the
Clean Water Act encompasses areas
designated by USDA as prior converted
cropland. Areas USDA has not so
designated are not eligible for this Clean
Water Act exclusion. The Clean Water
Act exclusion for prior converted
cropland only covers wetlands and does
not exclude other types of non-wetland
aquatic resources (e.g., tributaries,
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ponds, ditches) that are located within
the prior converted cropland area.
The exclusion would cease upon a
change in use that renders the area no
longer available for the production of
agricultural commodities. For example,
areas used for any agricultural purposes,
including agroforestry, as well as areas
left idle, generally remain available for
the production of agricultural
commodities. In response to requests
from commenters to increase the clarity
of the exclusions through the regulatory
text, the agencies are noting in the
regulations that this exclusion
encompasses areas that USDA has
designated as prior converted cropland,
and that the exclusion will cease when
the area has changed use so that it is no
longer available for the production of
agricultural commodities, such as when
it has been filled for development.
The agencies are also retaining the
longstanding provision that ‘‘for
purposes of the Clean Water Act, the
final authority regarding Clean Water
Act jurisdiction remains with EPA.’’
This categorical exclusion for prior
converted cropland will simplify the
process of determining jurisdiction
while providing certainty to farmers
seeking to conserve and protect land
and waters pursuant to Federal law. It
reflects the agencies’ determinations of
the lines of jurisdiction based on the
case law, policy determinations, and the
agencies’ experience and expertise.
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ii. Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
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 may lose eligibility for
certain USDA program benefits, unless
an exemption applies. If a farmer had
converted wetlands to cropland prior to
December 23, 1985, however, then the
land is considered prior converted
cropland and the farmer does not lose
eligibility for benefits if the area is
further manipulated.114 USDA defines a
prior converted cropland for Food
Security Act purposes in its regulations
as ‘‘converted wetland where the
114 A farmer that ‘‘commenced conversion’’ of a
wetland prior to December 23, 1985, could also be
eligible for a prior converted cropland designation,
subject to certain limitations. 7 CFR 12.2, 12.5(b)(2).
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conversion occurred prior to December
23, 1985, an agricultural commodity had
been produced at least once before
December 23, 1985, and as of December
23, 1985, the converted wetland did not
support woody vegetation and did not
meet the hydrologic criteria for farmed
wetland.’’ 7 CFR 12.2. USDA defines an
agricultural commodity, in turn, as ‘‘any
crop planted and produced by annual
tilling of the soil, including tilling by
one-trip planters, or sugarcane.’’ Id. at
12.2; see also 16 U.S.C. 3801(a)(1).
In 1993, EPA and the Corps codified
an exclusion for prior converted
cropland 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 (August 25,
1993); 33 CFR 328.3(a)(8) (1994); 40 CFR
230.3(s) (1994). The 1993 preamble
stated that EPA and the Corps would
interpret the prior converted cropland
exclusion 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 (August 25, 1993). It cited the
NFSAM definition of prior converted
cropland as ‘‘areas that, prior to
December 23, 1985, were drained or
otherwise manipulated for the purpose,
or having the effect, of making
production of a commodity crop
possible. [Prior converted] cropland is
inundated for no more than 14
consecutive days during the growing
season and excludes pothole or playa
wetlands.’’ Id. The agencies chose not to
codify USDA’s definition of prior
converted cropland, ensuring that they
would retain flexibility to accommodate
changes USDA might make. Id. at
45033.
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 Clean Water Act to
regulate prior converted cropland, and
to ‘‘help achieve consistency among
various federal programs affecting
wetlands.’’ Id. The 1993 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
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longer exhibits its natural hydrology or
vegetation. . . . [Prior converted]
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.’’ Id. at 45032. The
agencies explained that ‘‘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.
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 45034.
Specifically, the 1993 preamble stated
that prior converted cropland that now
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 clarified that this
‘‘abandonment’’ principle did not apply
to prior converted cropland. See Public
Law 104–127, 110 Stat. 988–89 (1996).
Additional amendments clarified that
any certification by the Secretary,
including those of prior converted
cropland, remain valid and in effect as
long as it continues to be available for
agricultural purposes, a new approach
referred to as ‘‘change in use.’’ 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.’’ The Memorandum stated, ‘‘[a]
certified [prior converted] determination
made by NRCS remains valid as long as
the area is devoted to an agricultural
use. If the land changes to a nonagricultural use, the [prior converted]
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
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programs, or diverted from crop
production to an approved cultural
practice that prevents erosion or other
degradation.’’ The agencies rescinded
the 2005 Memorandum on January 28,
2021, following publication of the 2020
NWPR.
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). Following New Hope Power,
the agencies did not implement ‘‘change
in use’’ in areas subject to the court’s
jurisdiction.
The 2015 Clean Water Rule
repromulgated the exclusion for prior
converted cropland without any
changes from the 1993 regulations, as
did the 2019 Repeal Rule. The 2020
NWPR also repromulgated the exclusion
but defined prior converted cropland for
purposes of the Clean Water Act for the
first time since 1993. The 2020 NWPR
provided that an area is prior converted
cropland if ‘‘prior to December 23, 1985,
[it] was drained or otherwise
manipulated for the purpose, or having
the effect, of making production of an
agricultural product possible.’’ 85 FR
22339 (April 21, 2020); 33 CFR
328.3(c)(9). The 2020 NWPR’s term
‘‘agricultural product’’ 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,’’ a defined term, while the
2020 NWPR defined prior converted
cropland to encompass any area used to
produce an ‘‘agricultural product,’’ a
term not used in the regulations that
introduced ambiguity and further
distinguished the Clean Water Act’s
prior converted cropland exclusion from
USDA’s approach. Compare 7 CFR 12.2
with 33 CFR 328.3(c)(9). The absence of
a definition in the 2020 NWPR for the
term ‘‘agricultural product’’ or any
explanation as to how it may differ from
an ‘‘agricultural commodity’’ was
unclear and undermined the original
purpose of the exclusion, which was to
help achieve consistency among Federal
programs affecting wetlands. See 58 FR
45031 (August 25, 1993).
Furthermore, the 2020 NWPR’s
approach to prior converted cropland
substantially reduced the likelihood that
prior converted cropland would lose its
excluded status because it provided that
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an area would remain prior converted
cropland for purposes of the Clean
Water Act unless the area is abandoned
and reverts to wetlands, and defined
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 22320 (April 21,
2020). The 2020 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. Id. at 22321. Under the 2020
NWPR, prior converted cropland
maintained its excluded status if it was
used at least once in the five years
preceding a jurisdictional determination
for any of these agricultural purposes.
These wetlands could then have been
filled and paved over during that fiveyear term without triggering any Clean
Water Act regulatory protection.
This rule restores the exclusion’s
original purpose of maintaining
consistency among Federal programs
addressing wetlands while furthering
the objective of the Clean Water Act. 58
FR 45031–32 (August 25, 1993). Some
commenters asserted that prior
converted cropland should not be
categorically excluded because there is
no legal or scientific basis to exclude
areas from the protections of the Clean
Water Act that maintain some wetland
characteristics or could be restored to be
wetlands. The agencies disagree. As the
agencies explained in 1993, ‘‘effective
implementation of the wetlands
provisions of the Act without unduly
confusing the public and regulated
community is vital to the environmental
protection goals of the Clean Water
Act.’’ Id. at 45031. The 1993 preamble
emphasized that statutes other than the
Clean Water Act have become essential
to the Federal Government’s effort to
protect wetlands. The wetlands
protection effort will be most effective if
the agencies administering these other
statutes have, to the extent possible,
‘‘consistent and compatible approaches
to insuring wetlands protection.’’ Id. at
45031–32. This rule’s return to
implementing USDA’s approach to prior
converted cropland will help enhance
the consistency and compatibility of the
Federal Government’s multi-pronged
wetlands protection efforts, thereby
enhancing their effectiveness.
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Some commenters asked that the
agencies codify a particular definition of
prior converted cropland; some
recommended codifying USDA’s
definition and others advocated
codifying the definition in the 2020
NWPR. The agencies instead decided to
clarify that the exclusion encompasses
prior converted cropland designated by
USDA, and no additional areas. This
clarification provides certainty and
transparency as well as flexibility. The
agencies chose not to codify the 2020
NWPR’s definition because that
interpretation does not carry out the
original purpose of the exclusion, which
is to ensure consistency among Federal
wetland protection programs while
protecting the integrity of the nation’s
waters.
iii. Implementation
This rule will implement the prior
converted cropland exclusion so that it
encompasses all areas designated by
USDA, and no additional areas. USDA
interprets prior converted cropland to
be a ‘‘converted wetland where the
conversion occurred prior to December
23, 1985, an agricultural commodity had
been produced at least once before
December 23, 1985, and as of December
23, 1985, the converted wetland did not
support woody vegetation and did not
meet the hydrologic criteria for farmed
wetland.’’ 7 CFR 12.2. The 2020 NWPR
introduced ambiguity by saying that
prior converted cropland applies to
certain areas used for ‘‘agricultural
products,’’ as opposed to ‘‘agricultural
commodities.’’ In addition, the 2020
NWPR was unclear regarding the extent
to which the agencies should designate
areas not subject to a USDA designation
as prior converted cropland under the
Clean Water Act. The agencies are
restoring clarity and consistency with
USDA’s approach by implementing the
exclusion as only applying to areas
USDA has designated, which include
areas where commodity crops were
produced prior to December 23, 1985,
and that meet the other applicable
criteria. This is consistent with the
agencies’ longstanding approach to the
exclusion. See 58 FR 45033 (August 25,
1993) (‘‘[R]ecognizing [NRCS]’s
expertise in making these [prior
converted] cropland determinations, we
will continue to rely generally on
determinations made by [NRCS].’’).
USDA defines agricultural commodity
crops to mean ‘‘any crop planted and
produced by annual tilling of the soil,
including tilling by one-trip planters, or
sugarcane.’’ 7 CFR 12.2.
The agencies have also decided to
enhance consistency between prior
converted cropland under the Food
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Security Act and under the Clean Water
Act, without undermining the goals of
the Clean Water Act, by implementing
the exclusion as ceasing upon the area’s
‘‘change in use.’’ The agencies view a
‘‘change in use’’ as an action that would
make the prior converted cropland no
longer available for the production of an
agricultural commodity. In response to
requests from commenters to clarify the
scope of exclusions in the regulatory
text, the regulation specifies that the
exclusion will cease upon change in
use, and that a change in use means that
the prior converted cropland is no
longer available for the production of an
agricultural commodity.
Consistent with USDA’s
interpretation, a ‘‘change in use’’ would
not occur ‘‘[a]s long as the area is
devoted to the use and management of
the land for production of food, fiber, or
horticultural crops.’’ 7 CFR 12.30(c)(6).
The agencies do not interpret changes in
use to include discharges associated
with agricultural uses identified in the
Corps’ and NRCS’s 2005 Memorandum
to the Field, such as planting of
agricultural crops, production of food or
fiber, haying or grazing, idling
consistent with USDA programs, or
diversion from crop production for
purposes of preventing erosion or other
degradation, as these uses keep the land
available for future production of
agricultural commodities. Similarly, an
area may retain its prior converted
cropland status if it is used for any of
the agricultural purposes identified in
the 2020 NWPR preamble, which
‘‘includ[e] but [are] not limited to idling
land for conservation uses (e.g., 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,’’
as well as ‘‘crop production, haying, and
grazing,’’ so long as the area remains
available for the production of
agricultural commodities. See 85 FR
22321 (April 21, 2020). Consistent with
USDA practice, an area has not
experienced a change in use if, for
example, it transitions into a long-term
rotation to agroforestry or perennial
crops, such as vineyards or orchards, or
if it lies idle and the landowner
passively preserves the area for wildlife
use. Generally speaking, idling the land
retains its availability for the production
of an agricultural commodity.
Implementing ‘‘change in use’’
consistent with USDA’s implementation
of the Food Security Act fulfills the
exclusion’s purpose of promoting
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consistency among Federal programs
affecting wetlands. See 58 FR 45031
(August 25, 1993). Under the Food
Security Act, a wetland certification
made by the Secretary is only valid so
long as the area is devoted to an
agricultural use. 16 U.S.C. 3822(a)(4).
Because the wetland conservation
provisions of the Food Security Act only
apply to the production of agricultural
commodities, a prior converted
cropland designation becomes moot for
USDA purposes once land is removed
from agricultural use.
A ‘‘change in use’’ is a proposed or
planned modification of prior converted
cropland for filling and development, so
that the area would no longer be
available for commodity crop
production after development. For
example, if prior converted cropland is
left idle for several years and reverts to
wetland, and the property is then sold
for conversion to a residential
development, the discharge of dredged
or fill material from development would
require prior authorization under Clean
Water Act section 404. Plans or
proposals for development may include
applications for Clean Water Act section
404 permits or other Federal, State, or
local permits for residential,
commercial, or industrial development;
energy infrastructure; mining; or other
non-agricultural uses. On the one hand,
the agencies recognize that plans and
proposals do not themselves change the
characteristics of a wetland, and that
some do not come to fruition. On the
other hand, the agencies would like to
provide certainty and fair notice to
landowners and other persons about the
status of the areas under their control
while they are in the planning stage.
Interpreting a change in use as only
occurring when heavy machinery begins
actually dredging and filling a wetland,
and potentially violating the Clean
Water Act, would not provide the
certainty and fair notice necessary to
appropriately plan development. To
address these considerations, the
agencies will interpret the prior
converted cropland designation to
continue to apply to a farmer’s use of
prior converted cropland for agricultural
purposes even after development plans
or proposals have been developed, and
even after land has been sold. However,
the prior converted cropland
designation would not be available to
the developer for the same parcel once
proposals or plans for development
have begun, even prior to a discharge
occurring in the wetland.
Some commenters stated that, for
example, building houses in an area
should not constitute a ‘‘change in use,’’
because the houses could potentially be
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removed and the area returned to
commodity crop production. The
agencies disagree. A ‘‘change in use’’
includes areas that have undergone soil
disturbance such that substantial effort,
such as the removal of concrete or other
permanent structures, would be
required to enable the production of
agricultural commodities. The agencies
interpret availability for commodity
crop production to mean that it is
reasonably conceivable that the area in
its current condition could be returned
to crop production. Areas that will be
developed for residential, commercial,
or industrial use; energy infrastructure;
mining; or other non-farming related
activities will not meet this standard of
availability for commodity crop
production.
The agencies will not implement the
exclusion using the ‘‘abandonment’’
approach, which the 2020 NWPR
implemented instead of ‘‘change in
use,’’ as ‘‘abandonment’’ is not
consistent with USDA’s approach or
with the purposes of the Clean Water
Act. Generally speaking, under the 2020
NWPR’s approach to abandonment, an
area would only regain jurisdictional
status if the area has not been used for
agricultural purposes at least once in
every five years and the area reverts to
a wetland that meets the definition of
‘‘waters of the United States.’’ For
example, under abandonment, if prior
converted cropland is used for an
agricultural purpose, such as grazing,
two years prior to being sold for
conversion to a residential
development, discharges of dredged or
fill material from the construction of the
residential development into the
wetlands during the three years
remaining in the five-year abandonment
time frame would not require
authorization under Clean Water Act
section 404, even though those
discharges have nothing to do with
farming. In contrast, under the ‘‘change
in use’’ approach that the agencies will
implement under this rule, the reverted
wetland area would regain jurisdictional
status if it meets the definition of
‘‘waters of the United States’’ and is
subject to a ‘‘change in use,’’ meaning
that it is no longer available for
production of an agricultural
commodity.
The abandonment approach
implemented in the 2020 NWPR
presents three key concerns. First, it
incentivizes disturbance of the area by
a farmer once every five years to retain
the exclusion. Second, it creates a
substantial loophole in Clean Water Act
section 404 protections by allowing any
form of development of otherwise
jurisdictional wetlands without
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authorization, so long as it occurs
within five years of use of the area for
agricultural purposes. Third, it
undermines governmental coordination
and efficiency because it is not
consistent with USDA’s approach to
prior converted cropland.
A number of commenters urged the
agencies to maintain the 2020 NWPR’s
approach to implementing prior
converted cropland, emphasizing that
on a national scale, developing
wetlands, such as for purposes of
mining or other industrial uses, could
provide billions of dollars to farmers.
The agencies have concluded that this
potential financial benefit to farmers
does not effectuate the original purpose
of the exclusion, which was to promote
consistency among Federal clean water
protection programs in order to help
restore and maintain the nation’s
waters. Moreover, the exclusion was
originally intended to allow farmers to
farm their land. The financial benefit
the commenters cite comes from selling
farmland to be developed. Further
facilitating these sales does nothing to
support farmers who seek to continue to
farm and could even undermine their
incentives to do so. By contrast, the
agencies’ approach in this rule strikes
an appropriate balance between
effectuating the goals of the Clean Water
Act and the purposes of the exclusion.
It aligns implementation of the Food
Security Act and the Clean Water Act as
much as possible while providing
farmers with clarity that routine farming
and related activity conducted in prior
converted croplands will not require
Clean Water Act authorization.
The agencies’ approach to prior
converted cropland under this rule also
imposes less of a burden on farmers
than the approach under the 2020
NWPR. Under the 2020 NWPR, an area
was not considered abandoned so long
as it is used for or in support of
agricultural purposes at least once in the
immediately preceding five years. The
2020 NWPR’s preamble explained that
prior converted cropland would not be
considered abandoned if it were idled or
lay fallow ‘‘for conservation or
agricultural purposes.’’ 85 FR 22320
(April 21, 2020). By contrast, under
‘‘change in use,’’ the land will not lose
its prior converted cropland status so
long as it remains available for crop
production, regardless of whether the
purpose for idling the land was related
to conservation or agricultural purposes.
In other words, under this rule, a farmer
could maintain prior converted
cropland status without needing to
demonstrate that the area was used for
in support of agricultural purposes at
least once in the immediately preceding
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five years or had been idled for
conservation or agricultural purposes.
The exclusion for prior converted
cropland does not apply to areas
designated by USDA as meeting other
Food Security Act exemptions,
including exemptions for farmed
wetlands, or areas that meet the USDA
definition of wetlands and do not have
a valid prior converted cropland
designation. This rule 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.
The presence of a jurisdictional
wetland, or any jurisdictional water in
an agricultural setting, in no way affects
the availability of exemptions for
discharges associated with many
farming activities pursuant to Clean
Water Act section 404(f).
b. Waste Treatment System
i. This Rule
This rule in paragraph (b)(1) retains
the agencies’ longstanding waste
treatment system exclusion, with no
changes from the proposed rule.
Specifically, this 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
waste treatment system exclusion,115
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.
ii. Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
EPA first promulgated the waste
treatment system exclusion in a 1979
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
115 51 FR 41250 (November 13, 1986); 53 FR
20764 (June 6, 1988).
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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 also 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
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 (May 19, 1980) (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
reexamined,’’ EPA announced that it
was ‘‘suspending [the] effectiveness’’ of
the sentence limiting the waste
treatment system 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.
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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 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 rule, the agencies
have deleted this obsolete crossreference, consistent with other recent
rulemakings addressing the definition of
‘‘waters of the United States.’’ 116
This rule also deletes the suspended
sentence in EPA’s NPDES regulations
limiting application of the waste
treatment system exclusion to manmade
bodies of water. The suspended
sentence, which since 1980 has only
ever appeared in the version of the
waste treatment system exclusion
contained in EPA’s NPDES regulations
(40 CFR 122.2), provides: ‘‘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
116 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.’’).
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States.’’ Because EPA suspended this
sentence limiting application of the
exclusion in 1980, EPA has not limited
application of the waste treatment
system exclusion to manmade bodies of
water for over four decades. Removing
the suspended sentence in this rule thus
aligns with EPA’s decades-long practice
implementing the exclusion—in
addition to ensuring consistency with
the text of other versions of the
exclusion found in the agencies’
regulations (both past and present)—and
maintains the 2020 NWPR’s deletion of
the suspended sentence as well.
Some commenters expressed support
for deleting the suspended sentence,
stating that doing so in this rule would
be consistent with the agencies’
longstanding approach to implementing
the waste treatment system exclusion.
Other commenters asserted that the
agencies should limit application of the
exclusion to human-made features, with
some expressing concern that the
agencies have not provided a
meaningful opportunity to comment on
this aspect of the rulemaking. The
agencies agree that removing the
suspended sentence—which has not
been in effect for over 40 years—ensures
that this rule will continue the agencies’
longstanding approach to excluding
waste treatment systems, while
providing additional clarity. Indeed, for
decades, both agencies have not limited
application of the exclusion to
manmade bodies of water. The agencies
disagree that they did not satisfy noticeand-comment requirements with respect
to this aspect of the rulemaking. The
preamble to the proposed rule explained
that the agencies were considering
deleting the suspended sentence and
explicitly solicited comment on that
approach. See 86 FR 69427.
Multiple commenters expressed
concern over the agencies’ proposed
addition of a comma after the word
‘‘lagoons’’ in the text of the exclusion,
which provides: ‘‘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.’’ In
particular, many of these commenters
asserted that the new comma would
narrow the exclusion such that a system
constructed prior to the enactment of
the Clean Water Act could not qualify
for the exclusion because it was not
‘‘designed’’ to meet the requirements of
the Act. As explained in the preamble
to the proposed rule, the purpose of
adding a comma after ‘‘lagoons’’ is to
clarify that the exclusion is available
only to systems meeting the
requirements of the Clean Water Act,
thereby continuing the agencies’
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longstanding approach to implementing
the exclusion. Under this approach, a
waste treatment system constructed
prior to the 1972 Clean Water Act
amendments is eligible for the exclusion
so long as the system is in compliance
with currently applicable Clean Water
Act requirements, such as treating water
such that discharges, if any, from the
system meet the Act’s requirements. A
waste treatment system constructed
after passage of the 1972 Clean Water
Act amendments is similarly eligible for
the exclusion if it was constructed and
is operating in a manner that is
consistent with the Act, such as by
treating water so that discharges, if any,
from the system meet the Act’s
requirements, and it was constructed in
compliance with the Act’s requirements
(e.g., where the system was lawfully
created pursuant to a section 404
permit). A waste treatment system that
was created after the 1972 amendments
but was constructed in violation of the
Clean Water Act—for example, a system
constructed without a section 404
permit when one was necessary—is not
eligible for the exclusion, regardless of
whether the system is currently treating
discharges to meet the Act’s
requirements.
Finally, several commenters asserted
that the waste treatment system
exclusion violates the Clean Water Act.
The agencies disagree that the waste
treatment system exclusion is contrary
to the Clean Water Act. Waste treatment
systems have been excluded from the
definition of ‘‘waters of the United
States’’ since 1979, and the waste
treatment system exclusion 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’’).
iii. Implementation
Consistent with the 1986 regulations,
this 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
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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,
including any effluent limitations
guidelines and new source performance
standards requirements applicable to
the waste treatment system, and
requirements applicable to the
pollutants discharged from a waste
treatment system to ‘‘waters of the
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 that will be
constructed in ‘‘waters of the United
States,’’ and a section 402 permit if
there are discharges of pollutants from
a waste treatment system into ‘‘waters of
the United States.’’ Under the section
402 permit, discharges from the waste
treatment system would need to meet
the requirements of applicable effluent
limitations guidelines and new source
performance standards, as well as any
required water quality-based effluent
limitations. Further, consistent with the
agencies’ general practice implementing
the exclusion, under this rule, a waste
treatment system that 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 this
rule’s definition of ‘‘waters of the
United States.’’
Moreover, as explained in section
IV.C.7 of this preamble, the exclusions
in this rule—including the waste
treatment system exclusion—do not
apply to features that, at the time they
are assessed, are jurisdictional under
paragraph (a)(1). Note, however, that an
excluded waste treatment system—such
as a cooling pond—may over time take
on the characteristics of a jurisdictional
water, such as a paragraph (a)(1)
traditional navigable water.117 In this
scenario, the exclusion continues to
apply and the waste treatment system
does not become a jurisdictional water
under paragraph (a)(1) or any other
provision of the rule, unless or until the
system ceases to serve the treatment
function for which it was designed (as
discussed in the immediately preceding
paragraph).
With respect to the scope of the waste
treatment system exclusion in this rule,
the agencies do not interpret the
117 This
situation may arise where, for example,
a manmade cooling pond constructed in uplands
takes on the characteristics of a traditional
navigable water.
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exclusion to allow any party to dispose
of waste or discharge pollutants into the
excluded feature without authorization.
Rather, for waters that would otherwise
meet this rule’s definition of ‘‘waters of
the United States,’’ the agencies’ intent,
consistent with prior application of the
NPDES program, is that the waste
treatment system exclusion is generally
available only for discharges associated
with the treatment function for which
the system was designed. Relatedly,
consistent with the agencies’
longstanding practice, a waste treatment
system does not itself sever upstream
waters from Clean Water Act
jurisdiction.118 In other words, if those
upstream waters were ‘‘waters of the
United States,’’ they remain ‘‘waters of
the United States’’ and discharges to
them thus may require a section 402 or
404 permit.
c. Other Exclusions
In this rule, the agencies are codifying
exclusions for several features that they
generally considered non-jurisdictional
under the pre-2015 regulatory regime
and the 2019 Repeal Rule and expressly
excluded by regulation in the 2015
Clean Water Rule and 2020 NWPR.
These features are: ditches (including
roadside ditches) excavated wholly in
and draining only dry land and that do
not carry a relatively permanent flow of
water; artificially irrigated areas that
would revert to dry land if the irrigation
ceased; artificial lakes or ponds created
by excavating 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 or diking dry land
to retain water for primarily aesthetic
reasons; 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; and swales and
erosional features (e.g., gullies, small
washes) characterized by low volume,
infrequent, or short duration flow.
118 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.’’).
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Under the pre-2015 regulatory regime,
the features listed above were generally
not considered ‘‘waters of the United
States’’ even though they were not
explicitly excluded by regulation. The
preamble to the 1986 regulations
explained that the agencies ‘‘generally
do not consider [these] waters to be
‘Waters of the United States.’ ’’ 51 FR
41217 (November 13, 1986). 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. The Rapanos
Guidance expanded on the list of
features that were generally considered
non-jurisdictional. Rapanos Guidance at
11–12. In practice, the agencies did not
generally assert jurisdiction over such
waters. To provide clarity on which
waters are jurisdictional and which are
not, and to enhance certainty for the
public, the agencies are codifying
exclusions for these features in the
regulatory text and removing the
possibility that these waters could be
found jurisdictional on a case-by-case
basis. Because the agencies did not
generally assert jurisdiction over these
features in practice, codifying
exclusions for these features is not a
substantial change from the pre-2015
regulatory regime or the 2019 Repeal
Rule. Many commenters supported
codifying exclusions for these features.
This approach is generally consistent
with the 2015 Clean Water Rule and
2020 NWPR and will be familiar to the
public.
In the final regulatory text for these
exclusions, the agencies are consistently
using the term ‘‘dry land,’’ rather than
‘‘upland.’’ The proposed rule and the
pre-2015 regulatory regime used the
phrases ‘‘dry land’’ and ‘‘upland’’
interchangeably in their description of
features that the agencies considered to
be generally non-jurisdictional. To
provide additional clarity, the agencies
are consistently using the term ‘‘dry
land’’ throughout the regulatory text.119
The term ‘‘dry land’’ refers to areas of
the geographic landscape that do not
include waters such as streams, rivers,
wetlands, lakes, ponds, tidal waters,
ditches, and the like. It is important to
note that jurisdictional and nonjurisdictional waters are not considered
‘‘dry land’’ just because they lack water
119 While the agencies consistently use the phrase
‘‘dry land’’ in the regulatory text to provide clarity
to the public, this preamble and documents
supporting this rule use the phrases ‘‘dry land’’ and
‘‘upland’’ interchangeably.
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at a given time. Similarly, an area may
remain ‘‘dry land’’ even if it is wet after
a precipitation event.
The agencies recognize that for certain
longstanding exclusions, the 2020
NWPR replaced the word ‘‘upland’’ in
the regulatory text with the word
‘‘upland’’ and a reference to nonjurisdictional features. For example, the
2020 NWPR regulatory text excluded
‘‘[w]ater-filled depressions constructed
or excavated in upland or in nonjurisdictional waters.’’ 85 FR 22338
(April 21, 2020) (emphasis added). This
approach was a deviation from
longstanding practice as both the pre2015 regulatory regime and the 2015
Clean Water Rule limited the exclusions
to features constructed in upland. The
distinction between ‘‘upland’’ or ‘‘dry
land’’ and ‘‘non-jurisdictional features’’
is important because ‘‘non-jurisdictional
features’’ can include features like
certain ephemeral streams and wetlands
that are not jurisdictional but are not
‘‘dry.’’ This change in the 2020 NWPR
resulted in an expansion of the
exclusion as compared to the pre-2015
regulatory regime. The agencies disagree
with the approach in the 2020 NWPR.
It deviated from the longstanding
concept of limiting certain exclusions to
instances where features are constructed
in dry land. Limiting the exclusions in
this rule to features constructed in dry
land more appropriately captures the
agencies’ intent to exclude features
associated with areas that are commonly
understood as ‘‘dry.’’ Limiting the
exclusions in this way also puts
reasonable bounds on these categorical
exclusions and ensures that features
constructed in land that is not dry are
examined more closely to determine
whether they are jurisdictional.
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i. Ditches
(1) This Rule
In this rule, the agencies are codifying
an exclusion for ditches (including
roadside ditches) excavated wholly in
and draining only dry lands and that do
not carry a relatively permanent flow of
water. Excluding these ditches from
jurisdiction is consistent with the scope
of ditches that were generally nonjurisdictional under the pre-2015
regulatory regime and the 2019 Repeal
Rule. 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 (November 13,
1986). The agencies shifted this
approach slightly in the Rapanos
Guidance and explained that ‘‘ditches
(including roadside ditches) excavated
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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. Excluding
certain ditches from jurisdiction is also
consistent with the 2015 Clean Water
Rule and the 2020 NWPR. While these
rules took different approaches to
determining which ditches should be
excluded, due in part to different overall
constructs for the definition of ‘‘waters
of the United States’’ under those rules,
both rules excluded some ditches. The
agencies, in this rule, are continuing the
approach described in the Rapanos
Guidance and are codifying that
approach in the regulatory text to
provide clarity and certainty. As
discussed above, the agencies are also
maintaining their longstanding position
that paragraph (a)(1) waters are not
subject to the exclusions and, most
relevant to the exclusion for ditches and
consistent with the 1986 preamble, tidal
ditches will continue to be
jurisdictional under paragraph (a)(1).
Continuing the approach described in
the Rapanos Guidance is consistent
with the agencies’ intent with this rule
to interpret ‘‘waters of the United
States’’ to mean the waters defined by
the longstanding 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 the text of the
relevant provisions of the Clean Water
Act and the statute as a whole, the
scientific record, relevant Supreme
Court case law, public comment, and
the agencies’ experience and technical
expertise after more than 45 years of
implementing the longstanding pre2015 regulations defining ‘‘waters of the
United States.’’
(2) Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
Consistent with the Rapanos
Guidance, this rule excludes ‘‘ditches
(including roadside ditches) that are
excavated wholly in and draining only
dry land and that do not carry a
relatively permanent flow of water.’’
Rapanos Guidance at 8. The scope of
the ditch exclusion is consistent with
the agencies’ longstanding practice and
technical judgment that certain waters
and features are not subject to regulation
under the Clean Water Act. The
exclusion is also informed by Rapanos.
The agencies have concluded that the
relatively permanent standard in
Rapanos on its own is insufficient to
achieve the objective of the Act. See
section IV.A of this preamble. However,
the relatively permanent standard is
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generally consistent with the agencies’
longstanding practice of finding certain
ditches that lack important
hydrogeomorphic features to be nonjurisdictional. The ditches excluded
under this rule and longstanding
practice are often part of Tribal, State,
and local land use planning and can
also be subject to Tribal or State
jurisdiction, as the Clean Water Act
recognizes that Tribes and States can
regulate more broadly than the Federal
Government. Excluding certain ditches
from jurisdiction under this rule also
improves administrative efficiency and
provides certainty and clarity to the
public. This exclusion simplifies the
approved jurisdictional determination
process and makes it more
straightforward for agency staff to
implement the rule and for the public to
determine whether certain features are
subject to Federal jurisdiction.
Several commenters requested that
the agencies exclude a broader set of
ditches from the definition of ‘‘waters of
the United States.’’ The agencies find
that it would not be appropriate to
exclude a broader set of ditches from the
definition of ‘‘waters of the United
States’’ in this rule. Congress clearly
intended that some ditches are
jurisdictional under the Clean Water
Act. The Clean Water Act states that,
with some exceptions, the discharge of
dredge or fill material ‘‘for the purpose
of construction or maintenance of farm
or stock ponds or irrigation ditches, or
the maintenance of drainage ditches’’ is
not prohibited by or otherwise subject to
regulation under the Clean Water Act.
33 U.S.C. 1344(f)(1)(C). Because this
exemption only applies to discharges of
dredged or fill material into ‘‘waters of
the United States,’’ there would be no
need for such a permitting exemption if
all ditches were considered nonjurisdictional under the Clean Water
Act. The agencies in the 2020 NWPR
similarly interpreted section 404(f) as an
indication that Congress intended that
ditches could in some instances be
jurisdictional under the Clean Water
Act. 85 FR 22297 (April 21, 2020). The
agencies’ approach in this rule—which
finds that some ditches are
jurisdictional while others are not—
reflects full and appropriate
consideration of section 404(f), the
water quality objective in Clean Water
Act section 101(a), and the policies
relating to responsibilities and rights of
Tribes and States under section 101(b).
The approach of finding certain ditches
jurisdictional while excluding others
from jurisdiction is also consistent with
the 2015 Clean Water Rule and the 2020
NWPR, as well as the pre-2015
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regulatory regime and the 2019 Repeal
Rule. Human-made tributaries like
ditches can provide functions that
restore and maintain the chemical,
physical, and biological integrity of
downstream paragraph (a)(1) waters.
The scientific literature indicates that
structures like ditches that convey water
continue to connect to and effect
downstream waters, though the
connectivity and effects can be different
than that of natural streams. Indeed,
ditches can enhance the extent of
connectivity by more effectively
conveying the water downstream. See
section III.A of the Technical Support
Document for additional information;
see also section IV.A.2.b.i of this
preamble for further discussion of these
issues.
Several commenters asked for
additional explanation of terms and
phrases used in the exclusion for certain
ditches. The phrase ‘‘excavated wholly
in and draining only dry land’’ means
that at the time the ditch was
constructed, it was excavated in dry
land as that term is described above. It
further means that at the time of
construction, the ditch was excavated
entirely, or wholly, in dry land. Finally,
it means that the ditch is not situated
close enough to a water feature,
including wetlands, to drain that water
feature. For example, a ditch that is
constructed in dry land and receives
water from runoff and other ditches
constructed in dry land and draining
only dry land, or from groundwater
intercepted as the ditch was dug, would
be considered a ditch ‘‘excavated
wholly in and draining only dry land.’’
In contrast, a ditch that is constructed
in dry land but also drains a wetland
would not be considered a ditch that
drains only dry land, and a ditch
constructed in both a wetland and in
dry land would not be considered to be
excavated wholly in dry land. The
jurisdictional status of a ditch is
assessed on a case-by-case basis by
considering the specific characteristics
of the site at issue.
The phrase ‘‘do not carry a relatively
permanent flow of water’’ means that
the ditch is not a relatively permanent
water as that term is explained in this
rule. Relatively permanent flow, as
discussed in section IV.C.4.c.ii of this
preamble, means the ditch contains
flowing or standing water year-round or
continuously during certain times of the
year for more than a short duration in
direct response to precipitation. The
language ‘‘do not carry a relatively
permanent flow of water’’ is consistent
with the language in the Rapanos
Guidance.
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The use of the word ‘‘and’’ in the
exclusion for ditches indicates that all
three criteria (excavated wholly in dry
land, draining only dry land, and not
carrying a relatively permanent flow of
water) must be satisfied for the ditch to
be excluded. However, even where a
ditch is not excluded, it is only
jurisdictional if it satisfies the terms of
the categories of waters that are
considered jurisdictional under this
rule. For example, a ditch that is not
excluded, but does not satisfy either the
relatively permanent or significant
nexus standard would not be
jurisdictional under this rule.
In addition, the agencies’
longstanding interpretation of the Clean
Water Act is that it is not relevant
whether a water has been constructed or
altered by humans for purposes of
determining whether a water is
jurisdictional under the Clean Water
Act. In S.D. Warren v. Maine Board of
Envt’l Protection, Justice Stevens,
writing for a unanimous Court, stated:
‘‘nor can we agree that one can
denationalize national waters by
exerting private control over them.’’ 547
U.S. 370, 379 n.5 (2006). In Rapanos, all
members of the Court generally agreed
that ‘‘highly artificial, manufactured,
enclosed conveyance systems—such as
‘sewage treatment plants,’ . . . and the
‘mains, pipes, hydrants, machinery,
buildings, and other appurtenances and
incidents’ . . . likely do not qualify as
‘waters of the United States,’ despite the
fact that they may contain continuous
flows of water.’’ 547 U.S. at 737 (Scalia,
J., plurality opinion). But there was also
agreement that certain waters that are
human-made or man-altered, such as
canals with relatively permanent flow,
are ‘‘waters of the United States.’’ Id. at
736 n.7. 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
‘‘waters of the United States’’: ‘‘certain
water bodies could conceivably
constitute both a point source and a
water.’’ Id. at 772 (Kennedy, J.,
concurring in the judgment); 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. 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.’’). While the plurality,
Justice Kennedy, and the dissent
formulated different standards for
determining what are ‘‘waters of the
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United States,’’ none of the standards
qualified jurisdiction on a distinction
between ‘‘natural’’ versus ‘‘humanmade’’ or ‘‘human-altered’’ waters or
excluded ditches in their entirety.
Further, no Federal Court of Appeals
has interpreted Rapanos to exclude
ditches from the Clean Water Act. This
case law demonstrates that certain
ditches have long been subject to
regulation as ‘‘waters of the United
States.’’
Several commenters suggested that
certain types of ditches, including
roadside ditches, ditches associated
with railroad operations, and
agricultural ditches, should be excluded
in this rule. This rule does not explicitly
exclude these types of ditches, but the
exclusions included in this rule address
many ditches of these types. Moreover,
since the exclusion for ditches in this
rule focuses on the physical (e.g.,
constructed in dry land) and flow
characteristics of ditches, the exclusion
addresses all ditches that the agencies
have concluded should not be subject to
jurisdiction, including certain ditches
on agricultural lands and ditches
associated with modes of transportation,
such as roadways, airports, and rail
lines.
(3) Implementation
When assessing the jurisdictional
status of a ditch, the agencies will
evaluate the entire reach of the ditch to
determine if it has relatively permanent
flow, consistent with the reach
approach for tributaries described in
section IV.C.4.c of this preamble. As
described for tributaries, the agencies
will assess the flow characteristics of a
particular ditch reach at the farthest
downstream limit of the ditch reach
(i.e., the point the ditch enters a higher
order in the network). Where data
indicate the flow characteristics at the
downstream limit is not representative
of the entire reach of the ditch, the flow
characteristics that best characterizes
the entire ditch reach will be used. For
example, if the majority of the ditch
reach lacks relatively permanent flow
but some portions of the reach contain
isolated pools of standing water, that
reach of the ditch likely would not be
considered to have relatively permanent
flow. As a result, such a ditch could be
excluded from jurisdiction if it satisfies
the other requirements of the ditch
exclusion. Additionally, a situation
could arise where there is one reach of
a ditch with relatively permanent flow
that is jurisdictional and is connected to
downstream waters via a separate reach
of the ditch that is non-jurisdictional.
This approach to evaluating jurisdiction
of each reach of a ditch separately is
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consistent with the agencies’ approach
for evaluating jurisdiction over
tributaries, which evaluates each reach
of a tributary separately. See section
IV.C.4.c.ii of this preamble for further
discussion of applying the relatively
permanent standard to tributary reaches.
Questions have sometimes arisen
regarding the distinctions between
ditches and human-altered natural
streams and rivers. Alteration or
modification of a natural stream or river
for flood control, erosion control,
development, agriculture, and other
reasons does not convert the stream or
river to an excluded ditch. A stream or
river that has been channelized or
straightened because its natural
sinuosity has been altered, cutting off
the meanders, is not a ditch. A stream
that has banks stabilized through use of
concrete or rip-rap (e.g., rocks or stones)
is not a ditch. In these instances, the
altered or modified streams and rivers
are not ditches and would also not
satisfy the exclusion for ditches because
they are not ‘‘excavated wholly in and
draining only dry land.’’ See section
IV.A.2.b.i of this preamble for further
discussion of this rule’s coverage of
human-made or human-altered
tributaries.
Questions have also arisen regarding
relocated streams and rivers. A stream
or river that has been relocated is not a
ditch and would also not satisfy the
exclusion for ditches because it is not
‘‘excavated wholly in and draining only
dry land.’’ A stream or river that is
relocated should be evaluated as a
tributary when it contributes flow
directly or indirectly to a paragraph
(a)(1) water. A stream or river is
considered relocated either when at
least a portion of its original channel
has been physically moved, or when the
majority of its flow has been redirected.
Even where the stream or river has been
relocated (i.e., the majority of its flow
has been redirected), the remnant
portions of the former stream may still
be jurisdictional where it satisfies the
terms of paragraph (a) of this rule.
The agencies note that an excluded
ditch that connects downstream to a
jurisdictional tributary would not be
jurisdictional merely because of its
downstream connection to the
jurisdictional tributary. Furthermore,
wetlands that develop entirely within
the confines of an excluded ditch are
not jurisdictional, as discussed further
in section IV.C.5.b of this preamble.
Certain excluded ditches (such as
roadside and agricultural ditches that
satisfy the requirements of the ditch
exclusion) may receive backflow from a
jurisdictional water, such as a perennial
river that overflows into the ditch and
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extends the OHWM of the contributing
water into the ditch. In these
circumstances, the agencies will
continue the practice of extending the
OHWM of the jurisdictional
contributing water up to the location of
its OHWM within the otherwise nonjurisdictional ditch, as required by
Corps regulations. See 33 CFR 328.4(c).
In these instances, the ditch is not
necessarily jurisdictional; the feature
extending into the ditch is
jurisdictional. For example, an excluded
ditch may connect with a relatively
permanent river, and at times, high
flows from the river may extend into the
excluded ditch such that the OHWM of
the jurisdictional river also extends into
the ditch. The agencies will continue to
treat the portion of the relatively
permanent river that extends into the
excluded ditch, up to the OHWM of the
river, as part of the jurisdictional river.
The ditch remains excluded, but the
flow in the ditch that is from the
relatively permanent river will be
jurisdictional as part of the river.
The agencies will use the most
accurate and reliable resources to
support their decisions regarding
whether a feature is an excluded ditch.
This will typically involve the use of
multiple sources of information and
those sources may differ depending on
the resource in question or the region in
which the resource is located. Along
with field data and other current
information on the subject waters,
historic tools and resources may be used
to determine whether a feature is an
excluded ditch. Several sources of
information may be required to make
such determination. Information sources
may include historic and current
topographic maps, historic and recent
aerial photographs, Tribal, State, and
local records and surface water
management plans (such as county
ditch or drainage maps and datasets),
NHD or NWI data, agricultural records,
street maintenance data, precipitation
records, historic permitting and
jurisdictional determination records,
certain hydrogeomorphological or soil
indicators, wetlands and conservation
programs and plans, and functional
assessments and monitoring efforts. For
example, when a USGS topographic
map displays a tributary located
upstream and downstream of a potential
ditch, this may indicate that the
potential ditch was constructed in or
relocated a tributary. As another
example, an NRCS soil survey
displaying the presence of specific soil
series which are linear in nature and
generally parallel to a potential ditch
may be indicative of alluvial deposits
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formed by a tributary in which the
potential ditch was constructed.
Additionally, the presence of a pond in
a historic aerial photograph that lies
along the flowpath of the potential
ditch, for example, may provide an
indication that the potential ditch was
not constructed wholly in and drained
only dry land.
This rule does not affect the
permitting exemptions for certain
activities described in Clean Water Act
section 404(f), including the exemption
in section 404(f)(1)(C) for the
construction and maintenance of
irrigation ditches and the maintenance
of drainage ditches. The agencies have
historically taken the position that a
ditch can be both ‘‘waters of the United
States’’ and a point source. The 2020
NWPR, however, changed the agencies’
longstanding position and stated that a
ditch is either ‘‘waters of the United
States’’ or a point source. 85 FR 22297
(April 21, 2020). The 2020 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.’’ See 547 U.S.
at 735–36 (Scalia, J., plurality opinion);
NWPR Response to Comments, Section
6 at 12–13.
The agencies have further evaluated
this question and concluded that the
better reading of the statute is the
agencies’ historic position that a ditch
can be both a point source and ‘‘waters
of the United States.’’ That position
dates back to 1975 in an opinion of the
General Counsel of EPA interpreting the
Clean Water Act. That opinion stated:
‘‘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 (June 27,
1975) (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.
In addition, in Rapanos, Justice
Kennedy and the dissent rejected the
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conclusion that because the word
‘‘ditch’’ was in the definition of ‘‘point
source’’ a ditch could never be ‘‘waters
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 in
the judgment); 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.’’).120 Even the plurality
opinion in Rapanos, which was relied
upon by the agencies in the 2020 NWPR
for its change in position, left room for
some ditches to both point sources and
‘‘waters of the United States,’’ finding
that the two categories should not be
‘‘significantly’’ overlapping. 547 U.S. at
735–36 (Scalia, J., plurality opinion).
There is simply no indication in the
text of the Clean Water Act that ditches
that meet the definition of a point
source cannot also be ‘‘waters of the
United States.’’ To the contrary, the fact
that Congress provided an exemption
for discharges of dredged or fill material
for construction or maintenance of
certain types of ditches from permitting
in Clean Water Act section 404(f) is
further evidence that under the plain
language of the statute ditches can, at
least in some cases, be both point
sources and ‘‘waters of the United
States.’’ The agencies therefore find that
their longstanding, historic view that a
ditch can be both a point source and
‘‘waters of the United States’’ is the
better interpretation.
ii. Other Features
(1) This Rule
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In this rule, the agencies are codifying
exclusions for certain other features that
were not generally considered
jurisdictional under the pre-2015
regulatory regime. Consistent with the
120 The agencies considered that a district court
has reached a contrary conclusion, but the agencies
decline to adopt the decision’s reasoning in this
rule, including because it relies on the change in
interpretation articulated for the first time in the
2020 NWPR and which the agencies reject in this
rule, and is inconsistent with the position of five
Justices in Rapanos. See Toxics Action Center, Inc.
& Conservation Law Found. v. Casella Waste
Systems, Inc., 2021 WL 3549938, *8 (D.N.H. Aug.
11, 2021) (‘‘If a waterway can simultaneously be a
navigable water (that is, a water of the United
States) and a point source, the distinction the
statute draws between the two categories using the
prepositions ‘from’ and ‘to’ would be rendered
meaningless.’’).
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features listed in the preamble to the
1986 regulations, the agencies are
codifying exclusions for: artificially
irrigated areas that would revert to dry
land 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.’’ See 51 FR 41217
(November 13, 1986). In addition,
consistent with the Rapanos Guidance,
the agencies are excluding swales and
erosional features (e.g., gullies, small
washes) characterized by low volume,
infrequent, or short duration flow. See
Rapanos Guidance at 11–12. Excluding
these features from jurisdiction is
consistent with the 2015 Clean Water
Rule and the 2020 NWPR, as well as the
pre-2015 regulatory regime and the 2019
Repeal Rule, which considered these
features to be generally nonjurisdictional. The agencies are
codifying exclusions for these features
in the regulatory text to provide clarity
and certainty.
The agencies are finalizing two minor
changes to the exclusion for swales and
erosional features in this rule as
compared to the language in the
Rapanos Guidance. The Guidance
explained that the agencies generally
found ‘‘[s]wales or erosional features
(e.g., gullies, small washes characterized
by low volume, infrequent, or short
duration flow)’’ to be non-jurisdictional.
Rapanos Guidance at 11–12. First, this
rule’s regulatory text excludes ‘‘swales
and erosional features’’ rather than
‘‘swales or erosional features.’’ The
agencies find that the use of ‘‘or’’ in this
phrase in the Rapanos Guidance was
confusing because swales are
substantively different from erosional
features and thus should not be referred
to in the alternative. To provide
additional clarity, the agencies are using
the connector ‘‘and’’ in this rule’s
regulatory text for this exclusion.
Second, the agencies are moving the
parentheses in this provision so that
only the phrase ‘‘e.g., gullies, small
washes’’ is included in parentheses.
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This change clarifies that the rest of the
language in this exclusion,
‘‘characterized by low volume,
infrequent, or short duration flow’’
applies to both swales and erosional
features. This change ensures that the
exclusion more accurately describes
those swales and erosional features
which are discrete topographic features
on the landscape, rather than low
gradient depressional areas that convey
only overland sheetflow and which are
not included within this exclusion. The
agencies are making these two
ministerial changes from the Rapanos
Guidance to provide additional clarity
in this rule, but the agencies’
application of the exclusion for these
features as compared to the pre-2015
regulatory regime remains substantively
and operationally unchanged.
(2) Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
As described at the beginning of this
section, codifying exclusions for these
features is consistent with the agencies’
longstanding practice that certain waters
and features are not subject to the Clean
Water Act. The exclusions are also
guided by Supreme Court cases that
recognized that there are certain features
that were not primarily the focus of the
Clean Water Act. See, e.g., Rapanos 547
U.S. at 734. The exclusions are an
important aspect of the agencies’ policy
goal of providing clarity, certainty, and
predictability for the regulated public
and regulators. The categorical
exclusions will simplify the process of
determining jurisdiction, and they
reflect the agencies’ determinations of
the lines of jurisdiction based on the
case law, policy determinations, and the
agencies’ experience and expertise.
Many commenters generally
supported adding the exclusions in the
regulatory text. Several of these
commenters stated that adding the
exclusions to the regulatory text would
provide clarity and certainty and avoid
time and cost burdens. The agencies
agree with these commenters and have
added these exclusions, along with the
exclusion for ditches, to the regulatory
text. Other commenters stated that
exclusions of certain waterbodies were
not based on science or the significant
nexus standard. Determinations about
the scope of ‘‘waters of the United
States’’ are informed by science but also
informed by the agencies’ decades of
implementation experience. This rule
reflects the judgment of the agencies in
balancing the science, the agencies’
expertise, and the regulatory goals of
providing clarity to the public while
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protecting the integrity of paragraph
(a)(1) waters, consistent with the law.
(3) Implementation
This section addresses
implementation of the exclusions for
certain other features that were not
generally considered jurisdictional
under the pre-2015 regulatory regime in
the order in which the relevant
provision appears in the regulatory text.
In this rule, the agencies clarify their
longstanding view that the exclusion for
certain artificially irrigated areas applies
only to the specific land being directly
irrigated that would reasonably revert to
dry land should irrigation cease. The
exclusion does not apply to all waters
within watersheds where irrigation
occurs.
Questions have arisen in the past
regarding whether a feature that initially
satisfied the terms of an exclusion but
no longer satisfies those terms continues
to be excluded from jurisdiction. For
example, if an artificial pond created by
excavating land to collect and retain
water is initially used exclusively for
stock watering, irrigation, settling
basins, or rice growing but is
subsequently used for a different
purpose, the question has arisen
whether that pond is still excluded from
jurisdiction. Consistent with the
agencies’ longstanding practice, if a
previously excluded feature no longer
meets the terms of the exclusion, it is no
longer excluded. If it no longer satisfies
the terms of an exclusion, it would be
jurisdictional if it otherwise meets the
definition of ‘‘waters of the United
States’’ under this rule.
The agencies recognize that artificial
lakes and ponds are often used for more
than one purpose and can have other
beneficial purposes, such as animal
habitat, water retention, or recreation.
For example, artificial lakes and ponds
that are created by excavating dry land
to collect and retain water for stock
watering are often extensively used by
waterfowl and other wildlife. The
agencies’ historic practice, which the
agencies intend to continue under this
rule, is to consider these features as
excluded even when there is another
incidental beneficial use of the feature.
The artificial lakes and ponds
exclusion applies only to those lakes
and ponds that satisfy the terms of the
exclusion. Paragraph (a)(2)
impoundments are not covered under
this exclusion. This exclusion only
applies to features that were excavated
in dry land or were diked in dry land.
Paragraph (a)(2) impoundments are not
excavated in dry land or diked in dry
land. However, consistent with the
agencies’ longstanding practice, when
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an applicant receives a permit to
impound ‘‘waters of the United States’’
to construct a waste treatment system,
the resulting waste treatment system is
subject to that exclusion as long as it is
used for this permitted purpose. See the
discussion above regarding waste
treatment systems.
Artificial lakes and ponds that satisfy
the terms of the exclusion would not be
jurisdictional under this rule even if
they have a hydrologic surface
connection to ‘‘waters of the United
States.’’ Non-jurisdictional conveyances
created in dry land that are physically
connected to and are a part of the
excluded feature remain excluded.
Swales and erosional features are
excluded when characterized by low
volume, infrequent, or short duration
flow. Swales are generally shallow
features in the landscape that may
convey water across dry land areas
during and following storm events and
typically have grass or other low-lying
vegetation throughout the swale. While
a swale is a discrete topographic feature,
it does not have a defined channel, nor
an OHWM. This distinguishes a swale
from an ephemeral stream because
ephemeral streams typically have a
channel and at least one indicator of an
OHWM. See section IV.A.ii of the
Technical Support Document for
additional discussion of swales.
Erosional features can typically be
distinguished from swales because
erosional features are generally deeper
than swales and have an absence of
vegetation. Erosional features can be
distinguished from tributaries by the
absence of a channel and an OHWM.
Concentrated surface runoff can occur
within erosional features without
creating the permanent physical
characteristics associated with a
channel and OHWM. Some ephemeral
streams are colloquially called ‘‘gullies’’
or the like even when they exhibit a
channel and an OHWM. Regardless of
the name they are given locally, waters
that are tributaries under this rule are
not excluded erosional features. See
Technical Support Document section
IV.A.ii for additional discussion on how
to distinguish between tributaries,
swales, and erosional features.
Erosional features like rills and gullies
also typically lack a defined channel
and an OHWM. Rills are very small
incisions formed by overland water
flows eroding the soil surface during
rainstorms. Rills are less permanent on
the landscape than streams. Gullies tend
to be much smaller than streams, and
are often deeper than they are wide,
with very steep banks. Gullies are
commonly found in areas without much
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vegetation or with soils that are prone
to erosion.
8. Other Definitions
The final rule regulatory text defines
the terms ‘‘wetlands,’’ ‘‘high tide line,’’
‘‘ordinary high water mark,’’ and ‘‘tidal
water.’’ The definitions of these four
terms in the final rule are identical to
the definitions of these terms in the
1986 regulations, 2019 Repeal Rule, and
2020 NWPR. While the 1986 regulations
included these definitions only in the
Corps’ regulations, not EPA’s
regulations, the 2015 Clean Water Rule
and 2020 NWPR included these
definitions in both agencies’ regulations.
To provide additional clarity and
consistency in comparison to the 1986
regulations, the final rule includes these
definitions in both agencies’ regulations.
The agencies are not amending the
definitions of these terms from the 1986
regulations.
The regulatory text in the final rule
also defines the term ‘‘adjacent.’’ The
agencies amended the definition of
‘‘adjacent’’ in the 2020 NWPR but are
returning to the longstanding definition
of that term in the 1986 regulations.
Returning to the definition of ‘‘adjacent’’
from the 1986 regulations is consistent
with the agencies’ intent to return to the
pre-2015 regulatory regime’s approach
to ‘‘waters of the United State.’’ This
section briefly describes these five
definitions and their history and
implementation. See section IV.G of this
preamble and previous sections of IV.C
of this preamble above for further
discussion on implementation.
Many commenters suggested that the
agencies include additional definitions
in this rule, including definitions for
‘‘navigable’’; ‘‘similarly situated’’;
‘‘tributary’’; and ‘‘physical integrity,’’
‘‘chemical integrity,’’ and ‘‘biological
integrity.’’ The agencies find that the
regulatory text in this rule and the
preamble’s explanation of the regulatory
text clearly present the agencies’
definition of ‘‘waters of the United
States’’ and that additional definitions
are not needed. Moreover, the agencies
seek to avoid regulatory language that is
overly detailed or prescriptive, as
interpretations of some of these terms
could vary depending on the region or
evolve over time with scientific
advances.
a. Wetlands
This rule makes no changes to the
definition of ‘‘wetlands’’ contained in
the 1986 regulations (and in the 2020
NWPR, which made no changes to the
1986 regulation). ‘‘Wetlands’’ are
defined as ‘‘those areas that are
inundated or saturated by surface or
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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.’’ Wetlands have been defined in
the Corps’ regulations since 1975 and in
EPA’s regulations since 1979, with only
minor differences from the 1986
regulations. The agencies are not
amending this longstanding definition
in this rule.
Wetlands, including ‘‘the classic
swamplands in the Southeast, such as
the great Okefenokee, the Great Swamp
of New Jersey, . . . the majestic,
sweeping marshes of the Everglades, the
remote Alakai in Hawaii, and the tiny
bogs of New England,’’ Senate Debate,
August 4, 1977, Comments of Mr.
Chafee at 13560, are ‘‘transitional areas
between terrestrial and aquatic
ecosystems.’’ Science Report at 2–5.
Scientific systems for classifying areas
as wetlands vary but typically include
three components: ‘‘the presence of
water, either at the surface or within the
root zone,’’ ‘‘unique soil conditions,’’
and the presence of vegetation ‘‘adapted
to the wet conditions.’’ 121 The agencies’
longstanding definition of wetlands,
unchanged in this rule, requires these
three factors of hydrology, hydric soils,
and hydrophytic vegetation under
normal circumstances.
Due to the many important functions
that wetlands perform that impact the
integrity of paragraph (a)(1) waters,
wetlands have long been considered
waters that can be subject to Clean
Water Act jurisdiction. The Corps first
added wetlands explicitly in the
definition of ‘‘waters of the United
States’’ in 1975 and EPA did the same
in 1979. 40 FR 31320, 31324–5 (July 25,
1975); 44 FR 32854, 32901 (June 7,
1979). In contrast, as discussed in
section IV.C.7 of this preamble, dry
lands are areas that do not meet all three
wetland factors and that are not other
waterbody types (such as lakes, ponds,
streams, ditches, and impoundments).
For example, an area that under normal
circumstances contains only
hydrophytic vegetation without the
presence of wetland hydrology and
hydric soils and that lacks an OHWM
would typically be considered dry land.
Only those wetlands that meet the
provisions to be a paragraph (a)(1)
water, jurisdictional adjacent wetland,
paragraph (a)(2) impoundment, or
paragraph (a)(5) water would be
121 See William J. Mitsch & James G. Gosselink,
Wetlands at 29 (5th ed. 2015).
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considered ‘‘waters of the United
States’’ under this rule.
As under prior regimes, wetlands are
identified in the field in accordance
with the 1987 U.S. Army Corps of
Engineers 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.122
b. Adjacent
This rule defines the term ‘‘adjacent’’
with no changes from the 45-year-old
definition. ‘‘Adjacent’’ is defined 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
the text of the statute, Supreme Court
case law, and science. See, e.g.,
Riverside Bayview, 474 U.S. at 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.’’). Thus, the
longstanding definition of ‘‘adjacent’’
reasonably advances the objective of the
Clean Water Act. To be jurisdictional
under this rule, however, wetlands must
meet this definition of adjacent and
either be adjacent to a traditional
navigable water, the territorial seas, or
an interstate water, or otherwise fall
within the adjacent wetlands provision
and meet either the relatively
permanent standard or the significant
nexus standard. The determination of
whether a wetland is ‘‘adjacent’’ is
distinct from whether an ‘‘adjacent’’
wetland meets the relatively permanent
standard; however, wetlands that have a
continuous surface connection to a
relatively permanent water meet the
definition of ‘‘adjacent’’ and are,
122 Examples include USGS topographic maps
(available at https://www.usgs.gov/the-nationalmap-data-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-geographicdatabase-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/
program/national-wetlands-inventory/wetlandsmapper).
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therefore, a subset of adjacent wetlands.
See section IV.C.5 of this preamble for
further discussion of the adjacent
wetlands provision of this rule.
The longstanding definition, by its
terms, does not require flow from the
wetland to the jurisdictional water or
from the jurisdictional water to the
wetland (although such flow in either
direction can be relevant to the
determination of adjacency). The
Supreme Court in Riverside Bayview, in
deferring to the Corps’ ecological
judgment about the relationship
between waters and their adjacent
wetlands as an ‘‘adequate basis for a
legal judgment that adjacent wetlands
may be defined as waters under the
Act,’’ rejected an argument that such
wetlands had to be the result of flow in
a particular direction to be adjacent:
‘‘This holds true even for wetlands that
are not the result of flooding or
permeation by water having its source
in adjacent bodies of open water. The
Corps has concluded that wetlands may
affect the water quality of adjacent
lakes, rivers, and streams even when the
waters of those bodies do not actually
inundate the wetlands. For example,
wetlands that are not flooded by
adjacent waters may still tend to drain
into those waters. In such
circumstances, the Corps has concluded
that wetlands may serve to filter and
purify water draining into adjacent
bodies of water, see 33 CFR
320.4(b)(2)(vii) (1985), and to slow the
flow of surface runoff into lakes, rivers,
and streams, and thus prevent flooding
and erosion, see §§ 320.4(b)(2)(iv) and
(v). 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.’ ’’ 447 U.S at 134–
35.
The agencies will continue their
longstanding practice under this
definition and consider wetlands
adjacent if one of the following three
criteria is satisfied. First, there is an
unbroken surface or shallow subsurface
connection to jurisdictional waters. All
wetlands that directly abut
jurisdictional waters have an unbroken
surface or shallow subsurface
connection because they physically
touch the jurisdictional water. Wetlands
that do not directly abut a jurisdictional
water may have an unbroken surface or
shallow subsurface connection to
jurisdictional waters. Water does not
need to be continuously present in the
surface or shallow subsurface
connection. Second, they are physically
separated from jurisdictional waters by
‘‘man-made dikes or barriers, natural
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river berms, beach dunes, and the like.’’
Or third, their proximity to a
jurisdictional water is reasonably close,
such that ‘‘adjacent wetlands have
significant effects on water quality and
the aquatic ecosystem.’’ Riverside
Bayview, 474 U.S. at 135 n.9. See
section IV.C.5 of this preamble.
‘‘Adjacent’’ under the wellestablished definition the agencies are
maintaining in this rule includes
wetlands separated from other ‘‘waters
of the United States’’ by ‘‘man-made
dikes or barriers, natural river berms,
beach dunes, and the like.’’ Such
adjacent wetlands continue to have a
hydrologic connection to the water to
which they are adjacent 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. As noted above,
the Supreme Court has concluded 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.
Riverside Bayview, 474 U.S. at 134–35.
In addition, river berms, natural levees,
and beach dunes are all examples of
landforms 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, and the openings in
these levees allow for a hydrologic
connection to the stream or river 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 levees and similar structures also
do not isolate adjacent wetlands.
In addition, adjacent wetlands
separated from a jurisdictional water by
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a natural or man-made 123 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,
including filtering pollutants and
sediment before they reach other
jurisdictional waters and ultimately a
paragraph (a)(1) water. Wetlands behind
berms, where the system is extensive,
can help reduce the impacts of storm
surges caused by hurricanes. Adjacent
wetlands separated from jurisdictional
waters by berms and the like also
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 use both
the wetlands and the nearby water 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 use both habitats despite
the presence of such a berm. In some
cases, the natural landform or artificial
barrier can provide extra refuge from
predators, for rearing young, or other
life cycle needs.
The agencies received a number of
comments on the definition of
‘‘adjacent.’’ Many commenters
supported the continued use of the wellestablished definition, while several
commenters suggested that the agencies
should use only the relatively
permanent standard or continue the
approach to adjacent wetlands that was
included in the 2020 NWPR. Some
commenters critiqued the proposed
definition of ‘‘adjacent,’’ with some
stating that the definition was ‘‘overlybroad and ambiguous.’’ A commenter
asserted that the word ‘‘adjacent’’
should be given its plain meaning for
the sake of regulatory certainty, adding
that the term ‘‘neighboring’’ within the
definition of ‘‘adjacent’’ goes ‘‘beyond
the ordinary understanding’’ of
adjacency. The agencies disagree with
these commenters and are finalizing the
longstanding definition of ‘‘adjacent.’’ In
section IV.A.3.b.ii of this preamble, the
agencies concluded that the relatively
permanent standard is insufficient as
the sole standard for geographic
jurisdiction under the Clean Water Act.
123 While the agencies use the phrase ‘‘humanmade’’ in place of ‘‘man-made’’ in many instances
throughout this preamble, they are retaining the
phrase ‘‘man-made’’ in the regulatory text’s
definition of ‘‘adjacent’’ to maintain consistency
with the 1986 regulatory text.
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The 2020 NWPR’s limits on the scope of
jurisdictional adjacent wetlands were
based on an interpretation of the
relatively permanent standard.
Therefore, the agencies have concluded
that the 2020 NWPR’s approach to
adjacent wetlands is inconsistent with
the statute for the same reasons the
relatively permanent standard is when
used as the sole standard. The record
demonstrates the effects of wetlands on
the integrity of paragraph (a)(1) 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; wetlands with
shallow subsurface connections to other
protected waters; wetlands separated
from other protected waters by artificial
barriers but that lack a direct hydrologic
surface connection to those waters in a
typical year; or other wetlands
proximate to jurisdictional waters. As
discussed in section IV.B.3 of this
preamble, within the first year of
implementation of the 2020 NWPR,
70% of streams and wetlands evaluated
were found to be non-jurisdictional,
including 15,675 wetlands that did not
meet the 2020 NWPR’s revised
adjacency criteria. The substantial
increase in waters lacking Federal
protection compromises the agencies’
ability to fulfill the objective of the
Clean Water Act to protect the integrity
of a large swath of the nation’s waters
(see section IV.B.3 of this preamble).
Neither Tribal nor State regulations
have been passed to fill this gap.
Retaining the longstanding definition
of ‘‘adjacent’’ is also 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, the territorial seas,
and interstate waters. See section IV.A
of this preamble.
The agencies agree with commenters
who stated that it is appropriate to
include wetlands behind natural and
artificial berms and the like as adjacent
wetlands for the reasons discussed in
section IV.A of this preamble. As noted
above, adjacent wetlands behind natural
and artificial berms can serve important
water quality functions, such as filtering
pollutants and sediment before they
reach other jurisdictional waters and
ultimately paragraph (a)(1) waters, and
can help reduce the impacts of storm
surges caused by hurricanes; see also
section III.B of the Technical Support
Document. The Supreme Court in
Riverside Bayview deferred to the
agencies’ interpretation of the Clean
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Water Act to include adjacent wetlands.
Riverside Bayview, 474 U.S. at 135
(‘‘[T]he 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, 547 U.S. at 775.
The agencies also disagree that
regulatory certainty requires revision of
the definition of adjacent, including
deleting the term ‘‘neighboring.’’
Regulatory certainty is provided by the
fact that the agencies are retaining the
definition that has been in place for
decades and will continue to interpret
and implement it as they have for
decades. In addition, the longstanding
regulation properly defines the term
‘‘adjacent’’ for purposes of the Clean
Water Act because it is based on the
concept of both reasonable proximity
and scientific connections.
c. High Tide Line
This rule makes no changes to the
definition of ‘‘high tide line’’ contained
in the 1986 regulations (and in the 2020
NWPR, which made no changes to the
1986 regulation). The term ‘‘high tide
line’’ is defined 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
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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 amending this definition. This
definition has been in place since 1977
(see 42 FR 37144 (July 19, 1977); 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
This rule makes no changes to the
definition of ‘‘ordinary high water
mark’’ (‘‘OHWM’’) contained in the
1986 regulations (and in the 2020
NWPR, which made no changes to the
1986 regulation). OHWM is defined 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.’’ 33 CFR 328.3(e) (2014). This
term, unchanged since 1977, see 41 FR
37144 (July 19, 1977), 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
to the limits of the adjacent wetlands. 33
CFR 328.4; RGL 05–05 at 1 (December
7, 2005).
e. Tidal Water
This rule makes no changes to the
definition of ‘‘tidal water’’ contained in
the 1986 regulations (and in the 2020
NWPR, which made no changes to the
1986 regulation). The term ‘‘tidal water’’
is defined 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 (see, e.g., 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
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consistent with the way the Corps has
traditionally interpreted the term. 51 FR
41217, 41218 (November 13, 1986). The
agencies are not amending this
definition in this rule.
9. Significantly Affect
a. This Rule
As discussed above, waters are
protected by the Clean Water Act under
this rule if they meet the significant
nexus standard; that is, they alone, or in
combination with other similarly
situated waters in the region,
significantly affect the chemical,
physical, or biological integrity of the
waters identified in paragraph (a)(1) of
this rule. This rule defines the term
‘‘significantly affect’’ for these purposes
to mean ‘‘a material influence on the
chemical, physical, or biological
integrity of ’’ a paragraph (a)(1) water.
Under this rule, waters, including
wetlands, are evaluated either alone or
in combination with other similarly
situated waters in the region based on
the functions the evaluated waters
perform. This rule identifies specific
functions that will be assessed 124 and
identifies specific factors that will be
considered when determining whether
the functions provided by the water,
alone or in combination, have a material
influence on the integrity of a
traditional navigable water, the
territorial seas, or an interstate water.
Thus, the significant nexus standard
concerns the effects of waters on
paragraph (a)(1) waters; it is not an
assessment of whether a particular
discharge of a pollutant will have an
effect on a paragraph (a)(1) water,
although, of course, contribution of flow
and the associated transport of
pollutants are important functions of
upstream waters and are identified in
the rule. Essentially, this provision of
the rule provides regulators and the
public with a clear framework for the
significant nexus analysis that will be
done on a case-specific basis under the
rule: (1) the functions that will be
assessed are clearly identified and
constitute the ‘‘nexus’’ between the
waters being assessed and the paragraph
(a)(1) water, and (2) the logical and
practical factors that will be considered
to figure out the strength, or
‘‘significance,’’ of those functions for the
integrity of the paragraph (a)(1) water
are explicitly established.
The functions identified in the rule
are based on the well-known benefits
that lakes and ponds, streams, and
124 The agencies are not requiring the use of
‘‘functional assessments’’ for significant nexus
analyses under this rule; see section IV.C.9.c of this
preamble for further discussion.
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wetlands can provide to paragraph (a)(1)
waters. See section IV.A.2.c of this
preamble. Wetlands, for example,
function like natural tubs or sponges,
storing water and slowly releasing it.
This process slows the water’s
momentum and erosive potential,
reduces flood heights, and allows for
groundwater recharge, which
contributes baseflow to surface water
systems during dry periods. An acre of
wetland can store 1–1.5 million gallons
of floodwater. After being slowed by a
wetland, water moves around plants,
allowing the suspended sediment to
drop out and settle to the wetland floor.
Nutrients that are dissolved in the water
are often absorbed by plant roots and
microorganisms in the soil. Other
pollutants stick to soil particles. In
many cases, this filtration process
removes much of the water’s nutrient
and pollutant load by the time it leaves
a wetland. Wetlands are also some of
the most biologically productive natural
ecosystems in the world, comparable to
tropical rain forests and coral reefs in
their productivity and the diversity of
species they support. Abundant
vegetation and shallow water provide
diverse habitats for fish and wildlife.
Seventy-five percent of commercially
harvested fish are wetland-dependent.
Add shellfish species and that number
jumps to 95 percent. Streams are the
dominant source of water in most rivers,
and they also convey water into local
storage compartments, such as ponds,
shallow aquifers, or stream banks, that
are important sources of water for
maintaining baseflow in rivers.
Discharging pollutants or filling in some
lakes and ponds, streams, and wetlands
reduces the amount of rainwater, runoff,
and snowmelt the stream network can
absorb before flooding. The increased
volume of water in small streams scours
stream channels, changing them in a
way that promotes further flooding.
Such altered channels have bigger and
more frequent floods. The altered
channels are also less effective at
recharging groundwater, trapping
sediment, and recycling nutrients. As a
result, downstream lakes and rivers
have poorer water quality, less reliable
water flows, and less diverse aquatic
life. Algal blooms and fish kills can
become more common, causing
problems for commercial and sport
fisheries. Recreational uses may be
compromised. In addition, the excess
sediment can be costly, requiring
additional dredging to clear navigational
channels and harbors and increasing
water filtration costs for municipalities
and industry. See, e.g., sections I and III
of the Technical Support Document. So
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the significant nexus standard is
focused on identifying those lakes and
ponds, streams, and wetlands that
provide these well-understood functions
such that they need baseline Federal
protections under the Clean Water Act
in order to protect the integrity of
traditional navigable waters, the
territorial seas, and interstate waters. As
discussed elsewhere, a determination
that a water falls within the definition
of ‘‘waters of the United States’’ does
not mean that discharges or activities
cannot occur in that water. See section
IV.C.10 of this preamble.
The functions assessed in this rule are
well-known indicators that are tied to
the chemical, physical, or biological
integrity of paragraph (a)(1) waters. The
functions assessed are: contribution of
flow; trapping, transformation, filtering,
and transport of materials (including
nutrients, sediment, and other
pollutants); retention and attenuation of
floodwaters and runoff; modulation of
temperature in paragraph (a)(1) waters;
or provision of habitat and food
resources for aquatic species located in
paragraph (a)(1) waters.
The factors considered in this rule are
readily understood criteria that
influence the types and strength of
chemical, physical, or biological
connections and associated effects on
paragraph (a)(1) waters. In other words,
the factors are site-specific conditions
that influence the strength of the
functions that lakes and ponds, streams,
and wetlands provide to paragraph
(a)(1) waters. These factors include the
distance from a paragraph (a)(1) water;
hydrologic factors, such as the
frequency, duration, magnitude, timing,
and rate of hydrologic connections,
including shallow subsurface flow; the
size, density, or number of waters that
have been determined to be similarly
situated; landscape position and
geomorphology; and climatological
variables such as temperature, rainfall,
and snowpack. The first two factors
identified in the regulatory definition
are key to a significant nexus
determination: distance and hydrology.
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 the functions provided by
upstream waters to paragraph (a)(1)
waters relevant to achieving the Clean
Water Act’s objective. The significant
nexus standard in this rule is carefully
constructed to fall within the bounds of
the Clean Water Act. Not all waters
subject to evaluation under the
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significant nexus standard will have the
requisite connection to paragraph (a)(1)
waters sufficient to be determined
jurisdictional.
In conducting a significant nexus
evaluation, the agencies will consider
each factor in the rule to evaluate the
likely strength of any effect of functions
on a paragraph (a)(1) water. For
example, in evaluating a stream, under
the first factor, the agencies will
consider the distance of the stream from
the paragraph (a)(1) water. Under the
second factor, the agencies will consider
hydrologic factors, such as the amount
of water from the stream that reaches
the paragraph (a)(1) water. Under the
third factor, the agencies will consider
the size, density, or number of similarly
situated waters, such as, for example,
the length, width, and depth of the
stream. Under the fourth factor, the
agencies will evaluate landscape
position and geomorphology, such as
the soil type and slope between the
stream and the paragraph (a)(1) water.
Finally, under the fifth factor, the
agencies will evaluate the climate in the
area of the stream, such as whether high
temperatures lead to high evaporation
rates. After noting the relevant factors,
agencies will then apply them to the list
of functions to determine the strength of
the functions that the stream provides to
the paragraph (a)(1) water. As noted
above, the first two factors, distance
from the paragraph (a)(1) water and
hydrology, will generally be given the
greatest weight in the assessment of
functions provided.
The agencies regularly determine that
waters do not have the requisite
significant nexus. First, the standard is
limited to consideration of effects on
traditional navigable waters, the
territorial seas, and interstate waters.
Second, the standard is limited to
effects only on the three statutorily
identified aspects of those fundamental
waters: chemical, physical, or biological
integrity. Third, the standard cannot be
met by merely speculative or
insubstantial effects on those aspects of
those paragraph (a)(1) waters, but rather
requires the demonstration of a
‘‘material influence.’’ In this rule, the
agencies have specified that a ‘‘material
influence’’ is required for the significant
nexus standard to be met. The phrase
‘‘material influence’’ establishes that the
agencies will be assessing the influence
of the waters either alone or in
combination on the chemical, physical,
or biological integrity of a paragraph
(a)(1) water and will provide qualitative
and/or quantitative information and
articulate a reasoned basis for
determining that the waters being
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assessed significantly affect a paragraph
(a)(1) water.
This section of the preamble
addresses public comment on the
definition of ‘‘significantly affect’’ and
on the agencies’ interpretation and
implementation of the definition. This
section then provides the agencies’
general approach to implementation of
the definition, including elements of the
definition such as ‘‘similarly situated’’
and ‘‘in the region’’ for purposes of a
significant nexus analysis. Discussion of
the agencies’ approach to
implementation of the significant nexus
standard for particular categories of
waters can be found in the sections of
this preamble addressing tributaries,
adjacent wetlands, and paragraph (a)(5)
waters. See sections IV.C.4.c, IV.C.5.c,
and IV.C.6.c of this preamble.
b. Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
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i. Comments on the Definition of
‘‘Significantly Affect’’
The agencies received numerous
comments on the definition of
‘‘significantly affect,’’ including the
standard established by the definition,
and the factors and functions.
Some commenters asserted that the
phrase ‘‘more than speculative or
insubstantial’’ in the proposed rule is
open-ended, subjective, broad, and
could increase the number of
jurisdictional waters as compared to the
pre-2015 regulatory regime.
Commenters were concerned that while
waters that have speculative or
insubstantial effects on paragraph (a)(1)
waters do not meet the significant nexus
standard, the proposed language was
unclear and implied that no additional
findings were required. In response to
public comment, this rule replaces the
phrase ‘‘more than speculative or
insubstantial’’ effects in the definition of
‘‘significantly affect.’’ Commenters were
concerned that while waters that have
speculative or insubstantial effects on
paragraph (a)(1) waters do not meet the
significant nexus standard, the proposed
language was unclear and implied that
no additional findings were required.
This rule requires that waters have a
‘‘material influence,’’ and the agencies
have concluded that this term will
increase the clarity and transparency of
this rule.
The agencies have concluded that this
term will increase the clarity of this
rule. In assessing whether a water meets
the significant nexus standard, the
agencies will continue to examine the
‘‘influence’’ of the subject waters on the
paragraph (a)(1) water. And the
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‘‘influence’’ must be ‘‘material’’—the
agencies must explain why the subject
waters, either alone or in combination
with similarly situated waters, matters
to the integrity of the paragraph (a)(1)
water. The word ‘‘material’’ also reflects
not only that the influence is, of course,
more than speculative or insubstantial,
but that the agencies will provide
qualitative and/or quantitative
information and articulate a reasoned
basis for determining that a significant
nexus exists, consistent with
longstanding practice. The phrase
‘‘material influence’’ thus reflects the
agencies’ longstanding position that
significant nexus determinations should
be supported by the factual record,
relevant scientific data and information,
and available tools. And that record,
data and information, and tools must
show, either quantitively or
qualitatively based on the five factors,
that the subject waterbody provides
functions that materially influence the
chemical, physical, or biological
integrity of a paragraph (a)(1) water. The
agencies have provided a number of
examples in this section of waters that
do not have a ‘‘material influence,’’ and
therefore do not meet the significant
nexus standard. The agencies will
continue to document the required
findings as part of the administrative
record. See, for example, direction to
field staff under the Rapanos Guidance
at 11 (‘‘Accordingly, Corps districts and
EPA regions shall document in the
administrative record the available
information regarding whether a
tributary and its adjacent wetlands have
a significant nexus with a traditional
navigable water, including the physical
indicators of flow in a particular case
and available information regarding the
functions of the tributary and any
adjacent wetlands.’’).
Some commenters supported the
proposed definition of ‘‘significantly
affect’’ as ‘‘more than speculative or
insubstantial’’ effects on paragraph
(a)(1) waters. Other commenters
asserted that ‘‘more than speculative or
insubstantial’’ does not mean an effect
is significant, and some of these
commenters requested that the agencies
use quantitative or statistical thresholds
to determine significance. Commenters
generally requested clarification on how
to determine if effects are significant or
not. One commenter recommended that
waters should be considered to
‘‘significantly affect’’ downstream
jurisdictional waters unless a sciencebased determination shows that the
effects are so speculative or
insubstantial as to not affect the
integrity of downstream waters. Another
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commenter recommended that an effect
should only be significant if it would
cause the paragraph (a)(1) water to
exceed applicable water quality
standards.
The agencies disagree that a
quantitative or statistical threshold
should be required to determine
significance for several reasons. First,
the statute contains no text suggesting
that the scope of the ‘‘waters of the
United States’’ must be identified based
on a quantitative or statistical threshold,
nor is a quantitative or statistical
assessment necessary to meet the
statutory objective the definition is
designed to achieve: ‘‘to restore and
maintain the chemical, physical and
biological integrity of the Nation’s
waters.’’ 33 U.S.C. 1251(a). Second,
such an approach would be unworkable
given the extensive regional differences
in water systems and the variability of
individual waterbodies across the
nation. For this reason, the agencies
have long established the practice of
site-specific assessment. Third, the
appellate courts have not held that the
term ‘‘significant’’ for purposes of Clean
Water Act jurisdiction requires
statistical significance or quantitative
measurement. See, e.g., Precon Dev.
Corp., Inc. v. U.S. Army Corps of Eng’rs,
603 Fed. Appx. 149, 151–52 (4th Cir.
2015) (‘‘Precon II’’) (unpublished
opinion); Cundiff, 555 F.3d at 211
(‘‘Though no doubt a district court
could find such evidence persuasive,
the Cundiffs point to nothing—no
expert opinion, no research report or
article, and nothing in any of the
various Rapanos opinions—to indicate
that [laboratory analysis] is the sole
method by which a significant nexus
may be proved . . . .’’). The Court of
Appeals for the Fourth Circuit has noted
that the standard ‘‘is a ‘flexibly
ecological inquiry,’ ’’ and that
‘‘[q]uantitative or qualitative evidence
may support [applicability of the
CWA].’’ Precon II, 603 Fed. Appx. at
151–52 (citation omitted). The same
court also has clarified that the burden
of establishing applicability of the Clean
Water Act should not be
‘‘unreasonable.’’ Precon Dev. Corp., Inc.
v. U.S. Army Corps of Eng’rs, 633 F.3d
278, 297 (4th Cir. 2011) (‘‘Precon I’’).
While the appellate courts have
accepted laboratory analysis or
quantitative or empirical data, see, e.g.,
United States v. Donovan, 661 F.3d 174,
186 (3d Cir. 2011); Northern California
River Watch v. City of Healdsburg, 496
F.3d 993, 1000–1001 (9th Cir. 2007),
such quantitative evidence is not
required. Precon I, 633 F.3d at 294 (‘‘We
agree that the significant nexus test does
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not require laboratory tests or any
particular quantitative measurements in
order to establish significance.’’). The
appellate courts have accepted a variety
of evidence, including but not limited
to, photographs, visual observation of
stream condition, flow and morphology,
studies, dye tests, scientific literature,
maps, aerial photographs, and remote
sensing data. United States v. Lucas,
516 F.3d 316, 326–27 (5th Cir. 2008);
see also Deerfield Plantation Phase II–B
Property Owners Ass’n v. U.S. Army
Corps of Eng’rs, 501 Fed. Appx. 268,
270 (4th Cir. 2012) (unpublished
opinion) (noting that in addition to
conducting two site visits, the Corps
relied upon infrared aerial photography,
agency records, a county soil survey, a
topographic map, and a wetland
inventory); Donovan, 661 F.3d at 185–
86. As under the pre-2015 regulatory
regime, the agencies will continue to
reasonably determine, based on the
record before them, if a water, either
alone or in combination with similarly
situated waters in the region,
significantly affects a paragraph (a)(1)
water.
Some commenters agreed with the
agencies that a water may constitute
‘‘waters of the United States’’ when it
significantly affects any one form of
chemical, physical, or biological
integrity of a paragraph (a)(1) water.
However, other commenters disagreed
and stated that a water should
significantly affect all three forms of
integrity—chemical, physical, and
biological—to be considered ‘‘waters of
the United States.’’ Some of these
commenters asserted that the use of
‘‘or’’ has the potential to greatly expand
the scope of jurisdiction. The agencies
disagree that this approach would
expand the scope of jurisdiction because
it is consistent with the pre-2015
regulatory regime and longstanding
practice. The agencies acknowledge that
Justice Kennedy used the conjunction
‘‘and’’ when concluding 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.’ ’’ Rapanos, 547 U.S. at 780.
However, the agencies disagree that the
use of the word ‘‘and’’ in this context
represents a holding by Justice Kennedy
that only a water that alone or
combination significantly affects every
single aspect of integrity is
jurisdictional. It is simply not
reasonable to read Justice Kennedy’s
opinion to stand for the proposition that
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a wetland that provides important
pollutant retention and trapping
functions that protect the chemical
integrity of a paragraph (a)(1) water and
also provides important benefits for the
salmon population of that river is not
jurisdictional because it does not also
significantly affect the physical
structure of that water. In any case, the
agencies are not implementing a
Supreme Court opinion, but rather are
construing the Clean Water Act, as
informed by relevant Supreme Court
opinions. Congress intended the Clean
Water Act to ‘‘restore and maintain’’ all
three forms of ‘‘integrity,’’ section
101(a), so if any one of them is
compromised, then the statute’s stated
objective would be contravened. It
would be contrary to the plain language
of the statute and subvert the law’s
objective if the Clean Water Act only
protected paragraph (a)(1) waters upon
a showing that there were effects on
every attribute of their integrity. This
interpretation is consistent with the
agencies’ longstanding position. 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.
Some commenters stated that the
proposed definition of ‘‘significantly
affect’’ was too expansive and would
allow the agencies to assert jurisdiction
over any body of water, no matter the
size, even if connections are remote or
scientifically questionable. Some
commenters asserted that overall, the
proposed definition of ‘‘significantly
affect’’ was unclear, difficult to
understand, and provides the agencies
with too much discretion to make
jurisdictional decisions. A couple of
these commenters stated that the
definition would require case-by-case
assessments and as a result, the
approach does not give fair notice to
stakeholders of when the Clean Water
Act applies. The agencies disagree for
the reasons outlined below, including
that this rule’s definition of
‘‘significantly affect’’ is consistent with
case law and the science and places
appropriate limitations on the
significant nexus standard.
The agencies’ definition of the term
‘‘significantly affect’’ in this rule is
linked directly to the objective of the
Act and to the effects upstream waters
have on the water quality of paragraph
(a)(1) waters. The definition is also
informed by and consistent with
Supreme Court case law addressing the
scope of ‘‘waters of the United States.’’
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Beginning with Riverside Bayview, the
Supreme Court stated that the ‘‘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 is [are]
maintained.’ H.R. Rep. No. 92–911, p.
76 (1972).’’ 474 U.S. at 132. The
definition of ‘‘significantly affect’’ finds
further support in the Court’s
conclusion that: ‘‘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.’’ Id. at 138 n.9. The majority
opinion in SWANCC introduced the
phrase ‘‘significant nexus’’ as the
concept that informed the Court’s
reading of Clean Water Act jurisdiction
over waters that are not navigable in
fact. 531 U.S. at 167, 172. Based on
SWANCC, Justice Kennedy’s
concurrence in Rapanos stated that to
constitute ‘‘waters of the United States’’
covered by the Clean Water 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.’’ 547 U.S. at 759
(Kennedy, J., concurring in the
judgment) (citing SWANCC, 531 U.S. at
167, 172). And five Justices support
jurisdiction under Justice Kennedy’s
conclusion 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.’ ’’ 547 U.S. at 780.
Justice Kennedy’s assessment of the
facts and the evidence in the cases
before the justices further inform the
scope of this rule’s definition of
‘‘significantly affect.’’ In Rapanos,
Justice Kennedy stated that in both the
consolidated cases before the Court the
record contained evidence suggesting
the possible existence of a significant
nexus according to the principles he
identified. See id. at 783. Justice
Kennedy concluded that ‘‘the end result
in these cases and many others to be
considered by the Corps may be the
same as that suggested by the dissent,
namely, that the Corps’ assertion of
jurisdiction is valid.’’ Id. Justice
Kennedy remanded the cases because
neither the agency nor the reviewing
courts applied the proper legal standard.
See id. Justice Kennedy was clear
however, that ‘‘[m]uch the same
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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.
With respect to one of the wetlands at
issue in the consolidated Rapanos cases,
Justice Kennedy stated: ‘‘In Carabell,
No. 04–1384, the record also contains
evidence bearing on the jurisdictional
inquiry. The Corps noted in deciding
the administrative appeal that ‘[b]esides
the effects on wildlife habitat and water
quality, the [district office] also noted
that the project would have a major,
long-term detrimental effect on
wetlands, flood retention, recreation
and conservation and overall ecology.’
. . . The Corps’ evaluation further noted
that by ‘eliminat[ing] the potential
ability of the wetland to act as a
sediment catch basin,’ the proposed
project ‘would contribute to increased
runoff and . . . accretion along the
drain and further downstream in
Auvase Creek.’ And it observed that
increased runoff from the site would
likely cause downstream areas to ‘see an
increase in possible flooding magnitude
and frequency.’ ’’ Id. at 785–86 (citations
omitted). Justice Kennedy also
expressed concern that ‘‘[t]he
conditional language in these
assessments—‘potential ability,’
‘possible flooding’—could suggest an
undue degree of speculation.’’ Id. at 786.
Justice Kennedy’s observations
regarding the underlying case inform
this rule’s definition of ‘‘significant
nexus’’: the functions and factors
established by the definition are
consistent with those identified as
relevant by Justice Kennedy, and the
requirement that waters have a
‘‘material influence’’ on paragraph (a)(1)
waters ensures that the assessment
under the significant nexus standard is
well-documented and reasonable based
on that record.
This rule’s definition of ‘‘significantly
affect’’ is also consistent with the best
available information, as summarized in
the Science Report and the Technical
Support Document. See section III.E of
the Technical Support Document. 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
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those connections vary spatially and
temporally, and are determined by
characteristics of the chemical, physical,
and biological environments and by
human activities. Those spatial and
temporal variations are reflected in the
agencies’ final rule defining
‘‘significantly affect’’ to mean ‘‘a
material influence,’’ in the functions the
agencies assess, and in the factors they
use to consider the strength of those
functions.
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 in the region
significantly affects the chemical,
physical, or biological integrity of a
paragraph (a)(1) water. The agencies
under the pre-2015 regulatory regime
routinely conducted case-specific
significant nexus analyses and in many
cases concluded that there was no
significant nexus. Based on the
agencies’ experience, many waters
under this rule will not have a
significant nexus to paragraph (a)(1)
waters, and thus will not be
jurisdictional under the Clean Water
Act. The agencies also note that the vast
majority of resources assessed in
approved jurisdictional determinations
under the Rapanos Guidance were not
assessed under the significant nexus
standard. Historically, roughly 12% of
resources assessed in approved
jurisdictional determinations under the
Rapanos Guidance required a
significant nexus analysis. It is the
agencies’ expectation that the number of
significant nexus analyses will increase
under this rule due to the assessment of
waters under paragraph (a)(5) pursuant
to the significant nexus standard, but it
is correspondingly expected that the
percent of resources found to be
jurisdictional under significant nexus
analyses will decrease because generally
waters will be assessed individually
under paragraph (a)(5) to determine if
they meet the significant nexus standard
(see section I.B.3.6 of the Economic
Analysis for the final rule).
The agencies disagree that the
definition of ‘‘significantly affect’’ and
the associated case-by-case assessments
do not give fair notice to stakeholders of
when the Clean Water Act applies.
Because of the factual nature of the
jurisdictional inquiry, any standard will
require some case-specific factual
determinations. The 2020 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
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22270 (April 21, 2020). As the Supreme
Court has recently recognized in Maui,
the scope of Clean Water Act
jurisdiction does not easily 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.
Like the Court in Maui, the agencies
have established factors to be used in
considering the strength of the effects on
paragraph (a)(1) waters and have
identified the functions they will assess
in making significant nexus
determinations under the proposed rule.
This definition increases the
implementability of this rule and is
consistent with major congressional
objectives, as revealed by the statute’s
language, structure, and purposes. This
rule also clearly identifies the categories
of waters subject to assessment under
the relatively permanent standard and
significant nexus standard and those
features that are excluded from the
definition of ‘‘waters of the United
States.’’ See section IV.C.10 of this
preamble for additional guidance to
landowners on jurisdictional
determinations.
Some commenters supported the
specific list of factors in the proposed
rule. Other commenters asserted that the
list was broad and unclear, and some of
these commenters stated that the factors
would lead to subjective, unpredictable
outcomes and lengthy project delays.
Some commenters addressed specific
aspects of the proposed factors. For
example, some commenters stated that
the proposed factor ‘‘distance from a
paragraph (a)(1) water’’ and the
proposed factor ‘‘distance from a water
of the United States’’ were redundant.
Other commenters requested that the
agencies add factors on soil and
watershed characteristics. Some
commenters requested specific
examples of how the factors would be
implemented and considered together in
a significant nexus determination.
The agencies disagree that the factors
listed in the proposed rule were broad,
subjective, and unclear. However, the
agencies have modified the factors in
response to public comments and to
increase clarity in this rule. The
agencies agree with commenters who
asserted that distance from ‘‘waters of
the United States’’ is not necessary to
include in light of the other factors,
such as distance from a paragraph (a)(1)
water and landscape position and
geomorphology, and have not included
the factor in this rule. In response to
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public comments requesting additional
detail on how the factors will be
applied, the agencies have modified the
proposed language on ‘‘hydrologic
factors, including subsurface flow’’ in
this rule to provide additional
specificity by referring to ‘‘hydrologic
factors, such as the frequency, duration,
magnitude, timing, and rate of
hydrologic connections, including
shallow subsurface flow.’’ The agencies
added a new factor on ‘‘landscape
position and geomorphology’’ in
response to public comments requesting
that the agencies consider watershed
and soil characteristics. Landscape
position and geomorphology capture
characteristics like topography, slope,
and soil porosity which may, for
example, affect the strength of the
hydrologic or biological connections
between the subject waters and a
paragraph (a)(1) water.
Some commenters asserted that the
proposed factors were only related to
physical integrity, and requested that
the agencies add factors that they
asserted are related to chemical and
biological integrity (e.g., water quality
parameters, pH, or biological
indicators). The agencies disagree that
the factors are only related to physical
integrity. The factors in this rule
influence the types and strength of
chemical, physical, or biological
connections and associated effects that
streams, wetlands, and open waters
have on paragraph (a)(1) waters. As
described further in section IV.C.9.c of
this preamble, in general, identified
functions coupled with stronger factors
increase the likelihood of demonstrating
a significant nexus. For example,
similarly situated waters that have the
capacity to trap or transform pollutants
are more likely to affect the chemical
integrity of a paragraph (a)(1) water if
the similarly situated waters are closer
to the paragraph (a)(1) water, or if there
is a larger number or higher density of
those similarly situated waters.
Many commenters on the proposal
requested that the agencies add a
specific list of functions that upstream
wetlands and waters can provide to
paragraph (a)(1) waters to the definition
of ‘‘significantly affect.’’ The
commenters differed in whether they
thought the list should be exhaustive or
non-exhaustive, and whether all
functions need to be demonstrated or
just one function needs to be
demonstrated to support a significant
nexus determination. Some commenters
supported the use of functions listed in
the proposed rule from the Rapanos
Guidance in significant nexus
determinations. Some commenters
requested that the agencies consider
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additional functions that are based on
the best available science. Some
commenters asserted that when
functions such as flood storage and
pollutant retention result from a lack of
hydrologic connection, those functions
should not be considered in a
significant nexus analysis.
The agencies agree that including a
list of functions in this rule would
promote clarity and implementation
consistency. The agencies selected a list
of functions based on the functions
identified in the Rapanos Guidance
discussed in the preamble to the
proposed rule, the agencies’ experience
implementing the significant nexus
standard, public comments on that list
of functions, and consideration of the
best available science. The functions in
this rule that can be provided by
tributaries, wetlands, and open waters
are keyed to the chemical, physical, and
biological integrity of traditional
navigable waters, the territorial seas,
and interstate waters. Additionally,
assessment of the functions in this rule
is consistent with the agencies’
implementation of the pre-2015
regulatory regime. See Rapanos
Guidance at 8, 9. The agencies disagree
with commenters who asserted that
when functions such as flood storage
and pollutant retention result from a
lack of hydrologic connection, those
functions should not be assessed in a
significant nexus analysis. Such a rigid,
categorical test would ignore that, even
in the absence of a hydrologic
connection, an upstream water could
still have an important functional
relationship to a downstream traditional
navigable water, the territorial seas, or
an interstate water, most notably where
the upstream water retains floodwaters
or pollutants that would otherwise flow
downstream to the traditional navigable
water, the territorial seas, or interstate
water. See Technical Support Document
section III.D.1; see also 547 U.S. at 775
(Kennedy, J., concurring in the
judgment) (‘‘[I]t 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.’’).
The identification of each of the
functions in this rule is supported by
the best available science. The
contribution of flow downstream is an
important function, as upstream waters
can be a cumulative source of the
majority of the total mean annual flow
to bigger downstream rivers and waters,
including via the recharge of baseflow.
Streams, wetlands, and open waters
contribute surface and subsurface water
downstream, and are the dominant
sources of water in most rivers.
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Contribution of flow can significantly
affect the integrity of downstream
paragraph (a)(1) waters, helping to
sustain the volume of water in larger
waters which also influences the
concentrations of chemicals within
those waters.
Trapping, transformation, filtering,
and transporting materials (including
nutrients, sediment, and other
pollutants) are important functions
influencing the integrity of paragraph
(a)(1) 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 in upstream waters 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
paragraph (a)(1) waters. Streams,
wetlands, and open waters also improve
water quality through the assimilation
and sequestration of pollutants,
including chemical contaminants such
as pesticides and metals that can
degrade the integrity of paragraph (a)(1)
waters. Streams can also transport
excess nutrients, excess sediment, and
other pollutants downstream, such as
the case of the tributaries in the Ohio
River and Missouri River Basins that
transport excess nitrogen downstream
that contributes to ‘‘dead zones’’ in the
Gulf of Mexico, or tributaries to the
Guadalupe, San Joaquin, and
Sacramento Rivers contributing
contaminated mercury sediments from
mine operations to San Francisco Bay.
Contaminants are commonly
transported from streams to larger
downstream rivers bound to sediments.
Wetlands and small streams are
particularly effective at retaining and
attenuating floodwaters. Streams,
wetlands, and open waters affect the
physical integrity of paragraph (a)(1)
waters by retaining large volumes of
stormwater that could otherwise
negatively affect the condition or
function of those paragraph (a)(1)
waters. This retention and subsequent
slowed release of floodwaters can
reduce flood peaks in paragraph (a)(1)
waters and can also maintain river
baseflows in paragraph (a)(1) waters by
recharging alluvial aquifers.
Water temperature is critical to the
distribution and growth of aquatic life
in downstream waters, both directly
(through its effects on organisms) and
indirectly (through its effects on other
physiochemical properties, such as
dissolved oxygen and suspended
solids). For example, water temperature
controls metabolism and level of
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activity in cold-blooded species like
fish, amphibians, and aquatic
invertebrates. Temperature can also
control the amount of dissolved oxygen
in streams, as colder water holds more
dissolved oxygen, which fish and other
fauna need to breathe. Tributaries
provide both cold and warm water
refuge habitats that are critical for
protecting aquatic life in downstream
paragraph (a)(1) waters. Floodplain
wetlands and open waters also exert
substantial controls on water
temperature in the downgradient
tributary network and ultimately in the
paragraph (a)(1) water.
Streams, wetlands, and open waters
supply habitat and food resources for
paragraph (a)(1) waters, such as
dissolved and particulate organic matter
(e.g., leaves, wood), which support
biological activity throughout the river
network. In addition to organic matter,
streams, wetlands, and open waters can
also export other food resources
downstream, such as aquatic insects
that are the food source for fish in
paragraph (a)(1) waters. The export of
organic matter and food resources
downstream is important to maintaining
the food webs and thus the biological
integrity of paragraph (a)(1) waters.
Streams, wetlands, and open waters
provide life-cycle dependent aquatic
habitat (such as foraging, feeding,
nesting, breeding, spawning, and use as
a nursery area) for species located in
paragraph (a)(1) waters. Many species
require different habitats for different
needs (e.g., food, spawning habitat,
overwintering habitat), and thus move
throughout a river network over their
life-cycles. For example, to protect
Pacific and Atlantic salmon in
traditional navigable waters (and their
associated commercial and recreational
fishing industries), protections must be
provided from the headwater streams
where the fish are born and spawn to
the marine waters where they spend
most of their lives. Additionally,
headwater streams can provide refuge
habitat when adverse conditions exist in
the larger waterbodies downstream,
enabling fish to persist and recolonize
downstream areas once conditions have
improved. These upstream systems form
integral components of downstream
food webs, providing nursery habitat for
breeding fish and amphibians,
colonization opportunities for stream
invertebrates, and maturation habitat for
stream insects, including for species
that are critical to downstream
ecosystem function. The provision of
life-cycle dependent aquatic habitat for
species located in paragraph (a)(1)
waters can significantly affect the
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biological integrity of those downstream
waters.
It is also important to note that the
agencies’ significant nexus standard in
this rule is carefully tailored so that
only particular types of functions
provided by upstream waters can be
assessed. 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
identified in this rule that have a nexus
to the chemical, physical, or biological
integrity of paragraph (a)(1) waters.
Thus, there are some important
functions provided by wetlands,
tributaries, and waters evaluated under
paragraph (a)(5) that will not be
assessed by the agencies when making
jurisdictional decisions under this rule.
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 nexus
analysis under this rule.125
Furthermore, the agencies would not
assess soil fertility in terrestrial systems,
which is enhanced by processes in
stream and wetland soils and nonfloodplain wetlands that accumulate
sediments, prevent or reduce soil
erosion, and retain water on the
landscape, benefiting soil quality and
productivity in dry lands. 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
assessed in a significant nexus analysis
under this rule. These include provision
of areas for personal enjoyment (e.g.,
fishing, hunting, boating, and
birdwatching areas), ceremonial or
religious uses, 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,
125 As this preamble has stated, consideration of
biological functions such as provision of habitat is
relevant for purposes of significant nexus
determinations under this rule only to the extent
that the functions provided by tributaries, adjacent
wetlands, and waters assessed under paragraph
(a)(5) significantly affect the biological integrity of
a paragraph (a)(1) water. For example, to protect
Pacific and Atlantic salmon in traditional navigable
waters (and their associated commercial and
recreational fishing industries), protections must be
provided from the headwater streams where the fish
are born and spawn to the marine waters where
they spend most of their lives.
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3125
and medical compounds from wetland
and aquatic plants or animals. While
these types of ecosystem services can
contribute to the economy, they are not
relevant to the chemical, physical, or
biological integrity of paragraph (a)(1)
waters and would not be considered in
a significant nexus analysis under this
rule.
ii. Comments on Interpretation and
Implementation of ‘‘Significantly
Affect’’
The agencies proposed that waters
can significantly affect paragraph (a)(1)
waters either alone or in combination
with similarly situated waters in the
region. The agencies solicited comment
on approaches for implementing this
rule, including regarding which waters
are ‘‘similarly situated,’’ and thus
should be analyzed in combination, in
the scope of the ‘‘region,’’ for purposes
of a significant nexus analysis. Some
commenters asserted that the agencies
need to consider cumulative impacts of
water features and their collective
influence on downstream waters. These
commenters supported aggregating
waters as part of a significant nexus
analysis and provided various
suggestions for interpreting ‘‘similarly
situated’’ and ‘‘in the region.’’ Some
commenters stated that the agencies
should not aggregate waters as part of a
significant nexus analysis, asserting that
aggregation would lead to subjectivity,
lack of clarity, implementation
challenges, and arbitrary outcomes.
Some of these commenters did not
believe it would be appropriate to
aggregate features far from a project site
with features on the project site in
assessing impacts on downstream
waters. Some commenters asserted that
the proposed rule would presume that
virtually the entire tributary system,
along with isolated waters and
wetlands, perform functions in the
aggregate that benefit downstream
waters. Other commenters asserted that
aggregation should not be expanded
beyond the Rapanos Guidance
approach, and they expressed concern
that the proposed rule would aggregate
waters more broadly than the guidance.
Some commenters expressed concern
that with an aggregation approach to
significant nexus, all waters assessed
within a given region could be
determined to be jurisdictional,
including waters outside the project
area. Some of these commenters
suggested that the agencies would
eventually assert jurisdiction across
most of the country, one watershed at a
time.
The agencies disagree that aggregating
waters as part of a significant nexus
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analysis is inappropriate. The agencies
have retained the language in this rule
that waters will be assessed either alone
or in combination with similarly
situated waters in the region. See
sections IV.C.9.c, IV.C.4.c, IV.C.5.c, and
IV.C.6.c of this preamble for a
discussion on the agencies’ approach to
implementing the significant nexus
standard for tributaries, adjacent
wetlands, and paragraph (a)(5) waters.
The agencies have also added language
to the definition of ‘‘significantly affect’’
to further clarify that waters will be
assessed either alone or in combination
with similarly situated waters in the
region. Assessing the functions of
identified waters in combination is
consistent not only with the significant
nexus standard, as described in section
IV.A of this preamble, but with the
science demonstrating how upstream
waters affect downstream waters.
Scientists routinely analyze the
combined effects of groups of waters,
aggregating the known effect of one
water with those of ecologically similar
waters in a specific geographic area, or
to a certain scale. This is because the
chemical, physical, and biological
integrity of downstream waters is
directly related to the aggregate
contribution of upstream waters that
flow to them, including any tributaries
and connected wetlands. As a result, the
scientific literature and the Science
Report consistently document that the
health of larger downstream waters is
directly related to the aggregate health
of waters located upstream, including
waters such as wetlands that may not be
hydrologically connected but function
together to mitigate the potential
impacts of flooding and pollutant
contamination on downstream waters.
See Technical Support Document
section III.E.ii.
The agencies also disagree that the
agencies would assert jurisdiction too
broadly based on the definition of
‘‘significantly affect.’’ As discussed in
section IV.A of this preamble, the
agencies have carefully crafted a rule
that falls within the limitations of the
statute while achieving the Clean Water
Act’s objective. Historically, only
roughly 12% of resources assessed in
approved jurisdictional determinations
under the Rapanos Guidance required a
significant nexus analysis, and the
agencies routinely concluded that
waters do not meet the significant nexus
standard. Based on the agencies’
experience, many waters assessed under
this rule will not have a significant
nexus to paragraph (a)(1) waters, and
thus will not be jurisdictional under the
Clean Water Act under this rule.
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The following are examples of waters
that would likely not be jurisdictional
under this rule, although the agencies
recognize that each significant nexus
determination is case-specific. Examples
of waters that would not likely have a
significant nexus to paragraph (a)(1)
waters based on an assessment under
this rule of the regulatory factors and
functions include: a headwater nonrelatively permanent tributary located
within a catchment with no other
tributaries and few adjacent wetlands in
the Eastern United States, which is
many miles from the paragraph (a)(1)
water and contributes low duration, low
magnitude, and low volume flows
downstream; a group of non-relatively
permanent tributaries and adjacent
wetlands located within a closed basin
in the arid West that does not connect
to any paragraph (a)(1) water; a nonrelatively permanent tributary located
within a small catchment with another
non-relatively permanent tributary and
few adjacent wetlands in the arid West,
which exhibits losing stream conditions
and capacity to provide only infrequent
and very low volume flows to the
paragraph (a)(1) water; a ditched and
straightened non-relatively permanent
tributary with no adjacent wetlands in
the Southeastern United States that
exhibits minimal in-stream or riparian
habitat value, carries only limited
amounts of stormwater from a small
catchment, and is located miles
upstream from the paragraph (a)(1)
water; a non-adjacent wetland in the
Northwestern United States that would
likely provide only minimal functions
to a paragraph (a)(1) water given its
landscape position in relation to the
tributary network and the paragraph
(a)(1) water; and a non-tributary pond
that is hydrologically connected to the
nearest jurisdictional water only during
infrequent flooding events but which is
miles from the paragraph (a)(1) water
and would be unlikely to have a
material influence on that paragraph
(a)(1) water. While in most of these
examples, the tributary, wetland, lake,
or pond may well have had some effect
on a paragraph (a)(1) water, under the
hypothetical circumstances described,
the water(s) would not have a material
influence on the chemical, physical, or
biological integrity of the identified
paragraph (a)(1) water, i.e., does not
significantly affect that water, and
therefore the water(s) would not be
jurisdictional under the Clean Water
Act.
Conversely, the following are
examples of waters that would likely be
jurisdictional under this rule, although
again, each significant nexus
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determination is case-specific. Examples
include: a second-order headwater nonrelatively permanent tributary located
within a catchment with several other
tributaries and several adjacent
wetlands in the Southwestern United
States, which are a moderate distance
from the paragraph (a)(1) water but
contribute high magnitude and high
volume flows downstream during
seasonal precipitation events that lead
to strong effects of the functions on the
paragraph (a)(1) water, including the
transport of large volumes of sediment
and woody debris that help shape and
structure the channel of the paragraph
(a)(1) water by slowing the flow of water
through channels and providing habitat
and food sources for the fish that live in
the paragraph (a)(1) water; a nonrelatively permanent tributary with
several adjacent wetlands in the
Midwestern United States that provides
breeding grounds for fish that live in
paragraph (a)(1) waters, contributes
flows of moderate magnitude and
moderate volume downstream during
frequent precipitation events, and is
located within a short distance of a
paragraph (a)(1) water; and an adjacent
wetland in the Mountain West that is
similarly situated with dozens of other
adjacent wetlands and several
tributaries, has the capacity to store high
volumes of floodwaters and to store and
process nutrients that would otherwise
reach a downstream paragraph (a)(1)
water, thereby reducing flooding and
the potential for algal blooms in the
paragraph (a)(1) water, and that
provides strong functions to a paragraph
(a)(1) water given its landscape position
in relation to the tributary network and
the paragraph (a)(1) water. Under the
hypothetical circumstances described,
the water(s) would have a material
influence on the chemical, physical, or
biological integrity of the identified
paragraph (a)(1) water, i.e., significantly
affects that water, and therefore the
water(s) would be jurisdictional under
the Clean Water Act.
The agencies also disagree that any
aggregation approach would be
subjective, unclear, or difficult to
implement. The proposed rule included
alternative options for aggregation (i.e.,
how to interpret ‘‘similarly situated’’
and ‘‘in the region’’) for the public to
comment upon. After considering
public comments, the agencies are
providing additional information in this
preamble to provide clarity regarding
implementation of ‘‘similarly situated’’
and ‘‘in the region’’ for purposes of
aggregating waters as part of a
significant nexus analysis. Furthermore,
the agencies have extensive experience
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aggregating waters under prior
regulatory regimes. This preamble
discusses a variety of tools that are
available for identifying waters that are
similarly situated in the region as part
of a significant nexus analysis (see, e.g.,
section IV.C.4.c of this preamble).
This 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. An example from the
Science Report is illustrative. 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 important consequences on the
chemical, physical, or biological
integrity of the downstream waters.
Science Report at 6–10; see also sections
III.A.v and III.E.ii of the Technical
Support Document. 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 Science Report
finds, ‘‘[t]he amount of nutrients
removed by any one stream over
multiple years or by all headwater
streams in a watershed in a given year
can have substantial consequences for
downstream waters.’’ Science Report at
1–11. The cumulative effects of nutrient
export from the many small headwater
streams of the Mississippi River have
resulted in large-scale ecological and
economically harmful impacts hundreds
of miles downstream, thereby impacting
commercial and recreational fisheries in
the northern Gulf of Mexico.
Many commenters asserted that the
proposed rule was unclear as to how the
agencies would interpret the ‘‘region’’
for purposes of a significant nexus
analysis. Some of these commenters
expressed concern that the region would
be determined on a case-specific basis,
leading to regulatory uncertainty. Some
commenters asserted that the ‘‘region’’
should be interpreted narrowly, and
many of these commenters opposed any
expansion of the scope of analysis as
compared to the Rapanos Guidance.
Several commenters stated that a
watershed or ecoregion approach to
interpreting the ‘‘region’’ would be too
expansive. Many commenters supported
a watershed approach to interpreting the
‘‘region,’’ with some commenters
supporting a large single point of entry
watershed and other commenters
supporting smaller watersheds (e.g.,
hydrologic unit code (HUC) 10 or HUC
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12). These commenters asserted that a
watershed-based approach is consistent
with the science and would ultimately
protect the traditional navigable waters,
the territorial seas, and interstate waters
that are the focus of Clean Water Act
protections. Some commenters
criticized the Rapanos Guidance
approach for determining the ‘‘region,’’
asserting that it was too narrow and not
based on scientific evidence. Some
commenters supported an interpretation
of ‘‘region’’ based on hydrological
characteristics or geomorphic
characteristics, and some of these
commenters stated that such approaches
would allow for the consideration of
site-specific field data. Other
commenters supported an ecoregionbased approach, although these
commenters differed in the ‘‘level’’ of
ecoregion sizes that they recommended
using. As discussed in the
implementation section below, the
agencies have determined that the
catchment of the tributary is a
reasonable and technically appropriate
scale for identifying ‘‘in the region’’ for
purposes of the significant nexus
standard. The catchment is an easily
identified and scientifically defensible
unit for identifying the scope of waters
that together may have an effect on the
chemical, physical, or biological
integrity of a particular traditional
navigable water, the territorial seas, or
an interstate water.
c. Implementation
This rule provides increased clarity
and substantial guidance to assist in
implementing the significant nexus
standard. 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 in the region
significantly affects a paragraph (a)(1)
water. This section of the preamble
provides the agencies’ general approach
to implementing the definition of
‘‘significantly affect’’ for purposes of the
significant nexus standard. See sections
IV.C.4, IV.C.5, and IV.C.6 of this
preamble for additional information on
how the agencies will implement the
significant nexus standard, including
identifying waterbodies on the
landscape and determining which
waters are ‘‘similarly situated’’ and ‘‘in
the region.’’
i. General Scope of the Significant
Nexus Analysis
Under the significant nexus standard
in this rule, the agencies must identify
the waters that are ‘‘similarly situated’’
and the ‘‘region’’ for purposes of
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determining whether waters
‘‘significantly affect’’ paragraph (a)(1)
waters. The agencies will interpret these
terms for purposes of this rule in a
similar, but not identical, manner to the
approach to these terms in the Rapanos
Guidance. The agencies’ approach in
this rule is based on longstanding
practice, the scientific support for this
rule, and practical implementation
considerations.
The focus of the significant nexus
standard is on restoring and maintaining
the chemical, physical, and biological
integrity of paragraph (a)(1) waters.
Therefore, the agencies have interpreted
the phrase ‘‘similarly situated’’ under
pre-2015 practice and will continue to
interpret that phrase in this rule, in
terms of whether waters are providing
common, or similar, functions for
paragraph (a)(1) waters such that it is
reasonable to consider their effects
together. In implementing this rule, the
agencies will continue their practice
under the Rapanos Guidance of
assessing the flow characteristics and
functions of tributaries, together with
the functions performed by any
wetlands adjacent to those tributaries, to
determine whether collectively they
have a significant nexus with paragraph
(a)(1) waters. See Rapanos Guidance at
8. The agencies continue to conclude
that implementation of ‘‘similarly
situated’’ to include tributaries and their
adjacent wetlands in this way is
reasonable because of its strong
scientific foundation—that is, the
integral ecological relationship between
a tributary and its adjacent wetlands.
See Rapanos Guidance at 10. In
considering how to apply the significant
nexus standard, the agencies have long
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, or
biological integrity of paragraph (a)(1)
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. Id. at 9.
This approach to implementing
similarly situated is also consistent with
the scientific support for this rule.
Stream and wetland connectivity to
downstream waters, and the resulting
effects on the integrity of downstream
paragraph (a)(1) waters, is best
understood and assessed when
considered cumulatively. One of the
main conclusions of the Science Report
is that the incremental contributions of
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individual streams and wetlands are
cumulative across entire watersheds,
and their effects on downstream waters
should be evaluated within the context
of other streams and wetlands in that
watershed. See Technical Support
Document section III.E.ii and section
IV.A of this preamble for additional
discussion. Furthermore, this approach
is clear and implementable, and this
preamble discusses a variety of tools
that are available for determining which
waters are similarly situated as part of
a significant nexus analysis. See, e.g.,
section IV.C.4.c of this preamble. See
section IV.C.6.c of this preamble for
discussion on how the agencies intend
to implement the significant nexus
standard for waters assessed under
paragraph (a)(5).
The agencies have identified ‘‘in the
region’’ for purposes of the significant
nexus standard in this rule as the
catchment of the tributary. The
catchment is the area of the land surface
that drains to a specific location for a
specific hydrologic feature, in this case
the tributary. Catchments will be
delineated from the downstream-most
point of the tributary reach of interest
and include the area uphill that drains
to that point. Topography and landscape
position influence the size and
configuration of a catchment. For
example, if the tributary of interest is
East Fork Clear Creek—a second order
stream that is a tributary that flows
indirectly to a traditional navigable
water—the catchment would be
delineated from the point that East Fork
Clear Creek enters Clear Creek, a third
order stream, and include the area
uphill that drains to that point. The
catchment for East Fork Clear Creek
would include not just East Fork Clear
Creek, but also any first order streams
that flow into East Fork Clear Creek, and
these streams would be aggregated
together along with any wetlands
adjacent to the streams as part of a
significant nexus analysis. As another
example, if the tributary of interest is
Willow Creek—a first order stream that
is a tributary that flows indirectly to a
traditional navigable water—the
catchment would be delineated from the
point that Willow Creek enters a second
order stream and include the area uphill
that drains to that point. The catchment
would then only include Willow Creek,
and Willow Creek would be aggregated
together along with any adjacent
wetlands as part of a significant nexus
analysis. See discussion of stream order
in section IV.C.4.c.i of this preamble.
The catchment of the tributary of
interest may contain not just the
tributary of interest, but also lower order
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tributaries that are aggregated together
along with any adjacent wetlands as
part of a significant nexus analysis.
This region (i.e., the catchment of the
tributary) for the vast majority of
tributaries is smaller, and usually
substantially smaller, than the region
identified by the watershed that drains
to the nearest point of entry of a
paragraph (a)(1) water, which was the
‘‘region’’ used to implement the 2015
Clean Water Rule. While this region is
generally larger than the region assessed
in the Rapanos Guidance under which
the agencies assessed the relevant reach
of a tributary in combination with its
adjacent wetlands, the catchment is an
easily identified and scientifically
defensible unit for identifying the scope
of waters that together may have an
effect on the chemical, physical, or
biological integrity of a particular
traditional navigable water, the
territorial seas, or an interstate water.
Moreover, the catchment is often
considered an appropriate spatial unit
for water resource management.
Anthropogenic actions and natural
events can have widespread effects
within the catchment that collectively
impact the integrity and quality of the
relevant paragraph (a)(1) water. The
functions of the contributing waters are
inextricably linked and have a
cumulative effect on the integrity of the
paragraph (a)(1) water. For these
reasons, it is more appropriate to
conduct a significant nexus analysis at
the catchment scale than to focus on a
specific site, such as an individual
stream segment. In light of the scientific
literature, the longstanding approach of
the agencies’ implementation of the
Clean Water Act, and the statutory goals
underpinning Justice Kennedy’s
significant nexus framework, the
agencies consider the catchment of the
tributary to be the appropriate ‘‘region’’
for a significant nexus analysis.
Therefore, all tributaries in a catchment
and their adjacent wetlands, if any, will
be assessed in combination to determine
whether the significant nexus standard
is met.
For practical administrative purposes,
this rule does not require evaluation of
all similarly situated waters when
concluding that those waters have a
significant nexus to a paragraph (a)(1)
water. When an identified subset of
similarly situated waters provides a
sufficient science-based justification to
conclude presence of a significant
nexus, for efficiency purposes a
significant nexus analysis need not
require time and resources to locate and
analyze all similarly situated waters in
the entire catchment. For example, if a
single waterbody or a group of similarly
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situated waterbodies in a portion of the
catchment is determined to significantly
affect the chemical, physical, or
biological integrity of a paragraph (a)(1)
water, the analysis does not have to
document all of the similarly situated
waterbodies in the catchment in order to
complete the significant nexus analysis
for the water(s) subject to the
jurisdictional determination. A
conclusion that a significant nexus is
lacking may not, however, be based on
consideration of some subset of
similarly situated waters because under
the significant nexus standard, the
inquiry is how the similarly situated
waters in combination affect the
integrity of the paragraph (a)(1) water.
Individuals uncertain about the status of
waters on their property may obtain a
jurisdictional determination from the
Corps. The Corps does not charge a fee
for this service. See 33 CFR 325.1; RGL
16–01 (2016).
ii. Assessing the Functions and
Considering the Factors
In determining whether a water alone
or in combination with similarly
situated waters in the region has a
material influence on the chemical,
physical, or biological integrity of a
paragraph (a)(1) water, the agencies will
assess the functions in paragraph
(c)(6)(i) of this rule and consider the
factors in paragraph (c)(6)(ii) this rule in
order to reasonably determine
jurisdiction based on the record before
them.126 The agencies will consider the
factors in this rule to analyze the
strength of the influence of the
functions on paragraph (a)(1) waters. In
general, functions associated with
stronger factors increase the likelihood
of demonstrating a material influence on
paragraph (a)(1) waters. For example,
when assessing the functions provided
by the subject waters (and any similarly
situated waters) to paragraph (a)(1)
waters, the agencies would consider
whether the factors are likely to increase
the strength of the influence on the
paragraph (a)(1) water. Distance from a
paragraph (a)(1) water; high frequency,
magnitude, or duration of hydrologic
connections; high density of similarly
situated waters; landscape position and
geomorphology translating to a high
likelihood of effects on paragraph (a)(1)
waters; and/or certain climatological
variables like rainfall patterns leading to
more frequent hydrologic connections
126 The agencies are not requiring the use of
‘‘functional assessment’’ methods for significant
nexus analyses under this rule. ‘‘Functional
assessment’’ methods are used in other regulatory
contexts, such as for mitigation planning, to
explicitly measure the strength of functions at the
impact site and potential mitigation site(s).
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all translate to a higher likelihood of
effects on paragraph (a)(1) waters.
Functions associated with weaker
factors decrease the likelihood of
demonstrating a material influence on
paragraph (a)(1) waters. For example,
when assessing the functions provided
by the subject waters (and any similarly
situated waters) to paragraph (a)(1)
waters, the agencies would consider
whether the factors are likely to
decrease the strength of the influence on
the paragraph (a)(1) water. These factors
can include a far distance from a
paragraph (a)(1) water; low frequency,
magnitude, or duration of hydrologic
connections; low density of similarly
situated waters; landscape position and
geomorphology translating to a low
likelihood of effects on paragraph (a)(1)
waters; and/or climatological variables
like rainfall patterns translating to a low
likelihood of effects on paragraph (a)(1)
waters. Thus, analyses of waters that
provide the listed functions to
paragraph (a)(1) waters, but where only
weak factors are present, may not be
sufficient to demonstrate a material
influence. In assessing the functions
under this rule, if a water, either alone
or in combination with similarly
situated waters in the region, performs
one function that has a material
influence on the integrity of a paragraph
(a)(1) water, that water would have a
significant nexus. The agencies will
consider all of the factors together when
assessing the functions and the strength
of the influence in the context of each
case-specific determination of
jurisdiction. Consistent with
longstanding practice, the agencies will
make decisions based on best
professional judgment and on the best
available information.
When assessing the functions and
considering the factors in the final rule
to analyze the influence of subject
waters on the integrity of paragraph
(a)(1) waters, the likelihood of a material
influence is generally greater with
increases in the number or size of the
aquatic resource or resources being
considered, decreasing distance from
the identified paragraph (a)(1) water, as
well as with increased density of the
waters considered in combination as
similarly situated waters. However, the
agencies also recognize that in
watersheds with fewer aquatic
resources, a smaller number and/or
lower density of similarly situated
waters can provide functions that have
disproportionate effects on paragraph
(a)(1) waters. Hydrologic factors include
the frequency, duration, magnitude,
timing, and rate of hydrologic
connections, as well as surface and
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shallow subsurface hydrologic
connections. The presence of a surface
or shallow subsurface hydrologic
connection, as well as increased
frequency, magnitude, or duration of
such connections, can increase the
strength of the functions that the subject
waters provide to paragraph (a)(1)
waters, and the corresponding chemical,
physical (i.e., hydrologic), or biological
influence that a water has on paragraph
(a)(1) waters. In some situations, streams
with low duration but a high volume of
flow can provide strong functions to
paragraph (a)(1) waters by transporting
large volumes of water, sediment, and
woody debris that help maintain the
integrity of those larger waters. A lack
of hydrologic connections can also in
some cases contribute to the strength of
effects for certain functions such as
floodwater attenuation or the retention
and transformation of nutrients and
other pollutants. Landscape position
and geomorphology provide critical
information about the relative location
of the subject waters being considered
within the watershed and their spatial
relationship to the paragraph (a)(1)
water. The slope, soil composition and
transmissivity, and waterbody substrate
composition and other physical
characteristics (e.g., channel shape) can
all impact the strength of the functions
identified in this rule and the associated
influence on paragraph (a)(1) waters.
Climatological factors like temperature,
rainfall, and snowpack in a given region
can influence the strength of the
functions provided by the subject waters
to paragraph (a)(1) waters by affecting
the frequency, duration, magnitude,
timing, and rate of hydrological
connections.
There are ways the agencies can
consider a changing climate under the
significant nexus standard, but only to
the extent it is relevant to the evaluation
of whether the subject waters
significantly affect the chemical,
physical, or biological integrity of
paragraph (a)(1) waters. 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 at the
time of assessment might become nonjurisdictional, 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, under the significant
nexus standard the agencies can
consider the functions of streams,
wetlands, and open waters that support
the resilience of the chemical, physical,
or biological integrity of paragraph (a)(1)
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waters to climate change. For example,
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 paragraph (a)(1)
waters. In other areas of the country,
drought is leading to decreased
baseflows in paragraph (a)(1) waters. A
significant nexus analysis can assess
whether the transmission of flows into
alluvial or regional aquifer storage
through tributaries and wetlands can
mitigate for these climate change-related
conditions, and assess those benefits to
paragraph (a)(1) waters. Changes in flow
in tributaries caused by climate change
will also be relevant to the relatively
permanent standard, but that standard
does not allow the agencies to take into
account the contribution of upstream
waters to the resilience of the integrity
of downstream waters. However,
considering on a case-specific basis the
strength and importance of the
functions provided by aquatic resources
that contribute to the resilience of the
integrity of paragraph (a)(1) 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.
The agencies recognize that there are
climate benefits that streams, wetlands,
and open waters provide that are not
related to restoring or maintaining the
integrity of paragraph (a)(1) waters, such
as carbon sequestration. Those functions
are not considered under this rule,
because they are not directly related to
the chemical, physical, or biological
integrity of paragraph (a)(1) waters and
therefore are not relevant to Clean Water
Act jurisdiction.
The record for determinations of
jurisdiction (e.g., approved
jurisdictional determinations for section
404 permits) for waters evaluated under
the significant nexus standard will
include available information
supporting the determination. In
addition to location and other
descriptive information regarding the
water at issue, the record will include
an explanation of the rationale for the
jurisdictional conclusion and a
description of the information used.
Relevant information can come from
many sources and may in some cases
include studies of the same type of
water or similarly situated waters that
apply to the water being evaluated. The
determination of jurisdiction applies
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only to the subject waters located in the
area of interest and is a case-specific
determination based on current
conditions (except in the case of a
potential enforcement action). Any
similarly situated waters that are part of
the significant nexus analysis but that
are not in the area of interest are not
subject to the jurisdictional decision
(and so would not automatically be
deemed jurisdictional or nonjurisdictional). For example, where the
subject water is a portion of a tributary
reach, the significant nexus analysis
would encompass the entire tributary
reach of the same order, any tributaries
within the catchment of that reach, and
any wetlands adjacent to those
tributaries. However, the jurisdictional
determination would only apply to the
portion of the tributary reach that is
subject to the determination.
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iii. Tools for a Significant Nexus
Analysis
The agencies have used many tools
and sources of information to assess
significant effects on the chemical,
physical, and biological integrity of
paragraph (a)(1) waters. Some tools and
resources that the agencies have used to
provide and evaluate evidence of a
significant effect on the physical
integrity of paragraph (a)(1) waters
include USGS stream gage data,
floodplain maps, statistical analyses,
hydrologic models and modeling tools
such as USGS’s StreamStats 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 paragraph (a)(1) waters, the
agencies and practitioners have used
tools and resources such as: population
survey data and reports from Federal,
Tribal, and State 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.
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Tools and resources that can provide
and evaluate evidence of a significant
effect on the chemical integrity of
paragraph (a)(1) waters include data
from USGS water quality monitoring
stations; Tribal, State, and local water
quality reports; water quality
monitoring and assessment databases;
EPA’s How’s My Waterway (available at
https://www.epa.gov/waterdata/howsmy-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-waterquality-system) that is being used to
assess the cumulative effects of
wetlands on the larger waters to which
they drain. 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 removal capacities of nonfloodplain 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
paragraph (a)(1) water may include
qualitative reviews of available
information or incorporate quantitative
analysis components including
predictive transport modeling.
10. Guidance for Landowners on How
To Know When Clean Water Act
Permits are Required
The agencies understand that
landowners would like to be able to
easily discern whether their property
contains any ‘‘waters of the United
States’’ such that they may need to
apply for a relevant Clean Water Act
permit. With this rule, the agencies
strive to provide additional clarity for
the public. To that end, the rule clearly
excludes some waters from Clean Water
Act jurisdiction, thereby narrowing the
category of waters that require
additional jurisdictional analysis. The
rule also clearly identifies some
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categories of waters as jurisdictional by
rule without the need for further
analysis. For the small percentage of
waters that are not categorically
excluded from, or included in, Clean
Water Act jurisdiction, and which do
not meet the relatively permanent
standard, the agencies have established
a new regulatory provision defining the
meaning of ‘‘significantly affect’’ to
guide implementation of the significant
nexus standard. This provision provides
the public with a clearer picture of the
functions the agencies will assess and
the factors the agencies will consider in
determining whether waters being
analyzed ‘‘significantly affect’’ (i.e.,
have a material influence on) the
integrity of traditional navigable waters,
the territorial seas, or interstate waters
and therefore meet the rule’s definition
of ‘‘waters of the United States.’’
Recognizing the concerns of
landowners, the discussion below is
designed to bring together information
from the statute, the final rule’s text,
and this preamble—including the many
useful tools identified in this
preamble—to provide individual
landowners with the step-by-step
information needed to make informed
decisions.127 In addition, as discussed
further below, the Corps has established
a process for landowners to request an
official determination of whether or not
there are ‘‘waters of the United States’’
on their property. The Corps does not
charge a fee for this service.128 In cases
where a landowner seeks to undertake
an activity that involves discharges of
dredged or fill material into areas that
are ‘‘waters of the United States’’ that is
not exempt from the permit
requirements of the Clean Water Act,
this section provides information about
some of the general permits the
Corps 129 has established that allow
certain activities to proceed with little
or no delay if the general conditions and
any special conditions for the permit are
met. Lastly, this section provides
information for those rare occasions
when a landowner needs an individual
section 404 permit for an activity
regulated under that section of the Clean
Water Act.
127 See also https://www.epa.gov/wotus for the
latest information on implementation of the
definition of ‘‘waters of the United States.’’
128 To obtain a speedier determination, some
landowners choose to incur some expense in
providing site information supporting the
jurisdictional determination request, such as a
delineation of the lake or pond, stream, or wetland.
129 The agencies note that New Jersey, Michigan,
and Florida have assumed administration of section
404 programs for certain waters in those States
under section 404(g) of the Act.
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Step 1: Is the activity I want to take
on my property exempt from needing a
Clean Water Act permit?
Not all activities in or discharges to
‘‘waters of the United States’’ require
authorization under the Clean Water
Act. Generally, section 402 or section
404 permits are required if a person is
discharging, or adding, a ‘‘pollutant’’
from a ‘‘point source’’ to the ‘‘waters of
the United States.’’ The terms
‘‘discharge of a pollutant,’’ ‘‘pollutant,’’
and ‘‘point source’’ all have specific
definitions in the Clean Water Act that
must be met for the Act’s requirements
to apply. Even if a landowner is
discharging a ‘‘pollutant’’ from a ‘‘point
source,’’ those discharges still may not
require a Clean Water Act permit
because the statute and the agencies’
regulations exempt some types of
discharges from permitting under
section 404 (for dredged and fill
material) and section 402 (for other
pollutants).
If a landowner wants to dredge or fill
‘‘waters of the United States,’’ many
activities are exempt from the Clean
Water Act’s section 404 permitting
requirements,130 including:
• Established (ongoing) farming,
ranching, and silviculture activities
such as plowing, seeding, cultivating,
minor drainage, harvesting for the
production of food, fiber, and forest
products, or upland soil and water
conservation practices;
• Maintenance (but not construction)
of drainage ditches;
• Construction and maintenance of
irrigation ditches;
• Construction and maintenance of
farm or stock ponds;
• Construction and maintenance of
farm and forest roads, in accordance
with best management practices; and
• Maintenance of structures such as
dams, dikes, and levees.
Additionally, many discharges of
pollutants other than dredged or fill
material do not require section 402
permits: 131
• Any discharge of sewage from
vessels, effluent from properly
functioning marine engines, laundry,
shower, and galley sink wastes, or any
other discharge incidental to the normal
operation of a vessel;
• Any introduction of pollutants from
nonpoint-source agricultural and
130 Note, however, that Clean Water Act section
404(f) establishes circumstances (based on certain
effects on ‘‘waters of the United States’’) under
which an activity listed as exempt is no longer
exempt. For more detail, see section 404(f) and the
regulations on ‘‘discharges not requiring a permit’’
at 33 CFR 323.4.
131 See 40 CFR 122.3 for the regulatory
provisions.
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silvicultural activities, including storm
water runoff from orchards, cultivated
crops, pastures, range lands, and forest
lands;
• Return flows from irrigated
agriculture; and
• Discharges from a water transfer.
Step 2: Is water on my property
covered by this rule?
The Clean Water Act does not cover
every geographic feature with water in
it; nor does it subject all activities in
waters meeting the definition of ‘‘waters
of the United States’’ to regulation (as
discussed in Step 1). Puddles may
periodically contain water, but they are
not lakes, ponds, streams, or wetlands
and they are not ‘‘waters of the United
States.’’ The rule also has a wellestablished, very specific, three-factor
definition of wetlands. That definition
requires the presence of particular
wetland hydrology, soils, and
vegetation. Therefore, a homeowner’s
backyard that is soggy only immediately
after a rainstorm is not ‘‘waters of the
United States’’ under the rule.
Some waters are always jurisdictional
under the rule: traditional navigable
waters, the territorial seas, and interstate
waters. Lakes and ponds, streams
(including certain ditches), and
wetlands that are not always
jurisdictional under paragraph (a)(1) of
the rule require additional assessment to
determine whether they are ‘‘waters of
the United States’’ under other
categories of the rule. This additional
assessment follows longstanding
principles.
If a landowner’s property does not
contain the types of waters, including
wetlands, covered by this rule, it is not
jurisdictional.
Step 3: Is the water on my property
excluded from the definition of ‘‘waters
of the United States’’?
In evaluating whether a water,
including a wetland, on a landowner’s
property is covered by the Clean Water
Act, first determine whether it fits into
one of this rule’s categorical exclusions.
The rule excludes certain features that
commonly contain water but are not
‘‘waters of the United States’’ (so long as
the features are not the types of waters
that are always jurisdictional—
traditional navigable waters, the
territorial seas, and interstate waters):
• prior converted cropland;
• ditches (including roadside ditches)
excavated wholly in and draining only
dry land and that do not carry a
relatively permanent flow of water;
• artificially irrigated areas that
would revert to dry land if the irrigation
ceased;
• artificial lakes or ponds created by
excavating or diking dry land to collect
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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 or diking
dry land to retain water for primarily
aesthetic reasons;
• 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’’;
• swales and erosional features (e.g.,
gullies, small washes) characterized by
low volume, infrequent, or short
duration flow; and
• waste treatment systems, including
treatment ponds or lagoons, designed to
meet the requirements of the Clean
Water Act.
These exclusions are discussed in
more detail in section IV.C.7 of this
preamble.
Where a feature located on a
landowner’s property satisfies the terms
of an exclusion, it is not jurisdictional
under the Clean Water Act. That is the
case even where the feature would
otherwise be jurisdictional as an
impoundment; tributary; adjacent
wetland; or intrastate lake or pond,
stream, or wetland under this rule.
Step 4: If the activity I want to
undertake on my property is not exempt
from permitting requirements, and the
feature on my property is likely a water
for purposes of the rule (and is not
covered by one of the exclusions), what
do I do next?
If the feature on a landowner’s
property is likely a geographic feature
considered to be a water, including a
wetland, for purposes of the rule and is
not covered by one of the exclusions,
the next step is to determine if the water
is a ‘‘water of the United States’’ under
one of the longstanding categories in the
rule: (1) traditional navigable waters, the
territorial seas, and interstate waters; (2)
jurisdictional impoundments of ‘‘waters
of the United States’’; (3) jurisdictional
tributaries; (4) jurisdictional adjacent
wetlands; and (5) intrastate lakes and
ponds, streams, or wetlands not
identified in paragraphs (a)(1) through
(4) of the rule that meet either the
relatively permanent standard or the
significant nexus standard.
This preamble identifies publicly
available tools and resources to assist
landowners in understanding the
jurisdictional status of waters, including
tributaries and wetlands, that may be
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present on their lands. At the same time,
the agencies recognize there are
circumstances under which it may be
difficult for an individual landowner to
determine on their own whether a water
on their land is jurisdictional. This
section can help landowners to
conclude whether a water on their land
is likely to be jurisdictional; if
landowners want certainty, they can ask
the Corps for an approved jurisdictional
determination. The Corps does not
charge a fee for this service.
Alternatively, as discussed below, some
of these activities are readily authorized
under a nationwide or regional general
permit issued by the Corps. A
landowner does not need an approved
jurisdictional determination for an
activity authorized by a general permit.
(1) Traditional Navigable Waters, the
Territorial Seas, and Interstate Waters
Traditional navigable waters, the
territorial seas, and interstate waters are
always jurisdictional. Section IV.C.2. of
this preamble explains how the agencies
will identify these waters.
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(2) Jurisdictional Impoundments of
‘‘Waters of the United States’’
Impoundments are distinguishable
from natural lakes and ponds because
they are created by discrete structures
(often human-built) like dams or levees
that typically have the effect of raising
the water surface elevation, creating or
expanding the area of open water, or
both. Impoundments can be natural
(like beaver ponds) or artificial (like
reservoirs). Under the rule,
jurisdictional impoundments include
(1) impoundments created by
impounding one of the ‘‘waters of
United States’’ that was jurisdictional
under this rule’s definition at the time
the impoundment was created, and (2)
impoundments of waters that at the time
of assessment meet the definition of
‘‘waters of the United States’’ under the
rule as a traditional navigable water, the
territorial seas, interstate water,
jurisdictional tributary, or jurisdictional
adjacent wetland, regardless of the
water’s jurisdictional status at the time
the impoundment was created. Section
IV.C.3 of this preamble explains how
the agencies will identify jurisdictional
impoundments.
(3) Jurisdictional Tributaries
The agencies understand that it can be
confusing to determine if certain waters
and features are tributaries, and whether
those tributaries are ‘‘waters of the
United States.’’ It can be especially
confusing if waters or features on a
landowner’s property are periodically
dry—some examples include washes,
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swales, and ephemeral streams. So how
can a landowner determine whether
features like this are jurisdictional?
The first question is whether the
water or feature on a landowner’s
property is excluded as an erosional
feature or is potentially jurisdictional as
a stream. Section IV.C.7.c.ii.3 of this
preamble discusses the distinctions
between excluded erosional features
like swales, washes, and gullies and
potentially jurisdictional streams. So,
for example, a water would be a stream,
not an excluded erosional feature, if the
water has a defined channel and an
indicator of an ordinary high water
mark such as a natural line impressed
on the bank.132
If the water is determined to be a
stream, the next question is whether
that stream is part of the tributary
system of a traditional navigable water,
the territorial seas, or an interstate
water. For tools that can help a
landowner make this determination, see
Step 5, below. If it is part of such a
tributary system, the final question is
whether it satisfies either the relatively
permanent standard or the significant
nexus standard under this rule. See
section IV.C.4.c of this preamble for
additional information on how to apply
these standards. Also, the landowner
can ask the Corps to determine whether
the feature on their property is
jurisdictional as discussed further
below.
The agencies recognize that it can be
confusing that streams with less than
relatively permanent flow, which often
look dry, can be ‘‘waters of the United
States.’’ But such streams, where they
meet the significant nexus standard, are
important parts of the ecological system
that sustains traditional navigable
waters, the territorial seas, and interstate
waters. For example, while almost all
the streams in Arizona regularly do not
have water in them, they are essential to
the flow in downstream waters, like the
Colorado River. Similarly, headwater
ephemeral streams in the forests of the
Northeastern United States are essential
to flow in downstream rivers. Filling
ephemeral streams could cause
significant harm to the downstream
rivers. The importance of ephemeral
streams is evident from videos of these
streams flowing after rain events in the
Southwest. This video 133 also
132 The Corps has useful guidance on how to
identify an ordinary high water mark, including
Regulatory Guidance Letter 05–05, ‘‘Ordinary High
Water Mark’’ (available at https://www.nap.
usace.army.mil/Portals/39/docs/regulatory/rgls/
rgl05-05.pdf).
133 U.S. Department of Agriculture, Agricultural
Research Service, Multiflume Runoff Event August
1, 1990, https://www.tucson.ars.ag.gov/unit/
WGWebcam/WalnutGulchWebcam.htm.
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highlights the difference between dry
land and ephemeral tributaries and
demonstrates why landowners would
not want to construct a building in an
ephemeral stream.
(4) Jurisdictional Adjacent Wetlands
The rule uses the same definition of
‘‘adjacent’’ that has been used by the
agencies for the past 45 years: 134
adjacent means bordering, contiguous,
or neighboring. The agencies have long
used three criteria to identify wetlands
that are adjacent. These criteria are: (1)
the wetland has an unbroken surface or
shallow subsurface connection to a
jurisdictional water; (2) the wetland is
separated from a jurisdictional water by
an artificial dike, natural berm, or the
like; or (3) the wetland is reasonably
close to a jurisdictional water. There is
an extensive discussion of how the
agencies will implement these criteria
in section IV.C.5.c of this preamble. The
agencies have not established a specific
distance limitation in the rule beyond
which wetlands are never adjacent, but
nearly 45 years of implementation of
this definition shows in a substantial
number of cases, adjacent wetlands abut
(touch) a jurisdictional water. And, on
the whole, nationwide, adjacent
wetlands are within a few hundred feet
from jurisdictional waters (and in the
instances where the distance is greater
than a few hundred feet, adjacency is
likely supported by a pipe, nonjurisdictional ditch, karst geology, or
some other feature that connects the
wetland directly to the jurisdictional
water).
Examples of ‘‘adjacent’’ wetlands
include wetlands that touch
jurisdictional tributaries. If the wetland
is only separated from the jurisdictional
tributary by a levee, it is adjacent. If
there is a barrier, like a river berm or a
dike, between the wetland and a
jurisdictional tributary, for example, the
wetland still meets the definition of
‘‘adjacent.’’ If the wetland is connected
to a jurisdictional tributary by a ditch
that is not jurisdictional, the wetland is
adjacent.
If your property contains a ‘‘wetland’’
and it is ‘‘adjacent’’ it must also meet
one of the rule’s jurisdictional tests.
Wetlands that are themselves traditional
navigable waters, interstate waters, or
are ‘‘adjacent’’ to such waters are
‘‘waters of the United States’’ by rule.
134 The 2020 NWPR had a different definition and
was in effect from June 22, 2020 (in all jurisdictions
except Colorado, where the rule did not go into
effect until April 26, 2021) to August 30, 2021,
when the rule was vacated by the Arizona district
court. The 2015 Clean Water Rule had the same
definition of ‘‘adjacent’’ but added a definition of
‘‘neighboring.’’
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This includes, for example, tidal
marshes along the Atlantic Coast that
are subject to the ebb and flow of the
tide and therefore are traditional
navigable waters, wetlands that are
separated from the Mississippi River
from levees, and the Great Dismal
Swamp, a wetland which crosses the
border between Virginia and North
Carolina. Other ‘‘adjacent’’ wetlands are
only ‘‘waters of the United States’’ if
they satisfy either the relatively
permanent standard or the significant
nexus standard.
(5) Jurisdictional Intrastate Lakes and
Ponds, Streams, or Wetlands Not
Identified in Paragraphs (a)(1) Through
(4) of the Rule
The rule defines ‘‘waters of the United
States’’ to include ‘‘intrastate lakes and
ponds, streams, or wetlands not
identified in paragraphs (a)(1) through
(4)’’ that meet either the relatively
permanent standard or the significant
nexus standard. The agencies intend to
identify relatively permanent waters
under this provision using a similar
approach to the one described for
relatively permanent tributaries in
section IV.C.4.c.ii of this preamble. In
implementing the significant nexus
standard, the agencies generally intend
to analyze these waters individually to
determine if they significantly affect the
chemical, physical, or biological
integrity of a paragraph (a)(1) water. One
example of the kind of water that is
likely to be assessed under this
provision is a lake that is close to a
jurisdictional tributary or traditional
navigable water, the territorial seas, or
an interstate water, but that is not part
of the tributary system; this is because
the adjacency provision in the rule (and
in the longstanding regulations) applies
only to wetlands, not to lakes and
ponds.
Step 5: Are there resources and
sources of help from the agencies to aid
me in this process?
Yes, in addition to the rule and
preamble, the agencies have identified
several other types of resources to help
landowners in the jurisdictional and
permitting process. First, the agencies
have identified a number of publicly
available, user-friendly tools and
resources for landowners seeking more
information about whether their
property contains ‘‘waters of the United
States.’’ Next, the Corps has established
a process for landowners to request an
official determination of whether or not
there are ‘‘waters of the United States’’
on their property. Finally, in cases
where a landowner is undertaking an
activity that is not exempt from the
permit requirements of the Clean Water
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Act and their land contains waters that
are likely to be or that the Corps has
determined to be ‘‘waters of the United
States,’’ this section provides
information about some of the general
permits the Corps has established that
allow certain activities to proceed with
little or no delay if the general and any
special conditions for the permit are
met. In addition, EPA and authorized
states have established general permits
for a wide variety of discharges subject
to permitting under section 402 that
have minimal impacts to waters.
Finally, this section also provides
information on those rare occasions
when a landowner needs an individual
Clean Water Act section 404 permit.
(1) Are there any publicly available
tools and resources to help me get more
information about waters on my land?
This preamble includes an extensive
discussion of the many tools and
resources the agencies can use when
making jurisdictional determinations. It
also discusses publicly available
resources that provide jurisdictional and
permit information. See sections IV.G
and H of this preamble. Some of these
publicly available tools and resources
may be particularly useful for
landowners seeking more information
about whether their property might
contain ‘‘waters of the United States.’’
For example, EPA’s Clean Water Act
Approved Jurisdictional Determination
website (available at https://watersgeo.
epa.gov/cwa/CWA-JDs/) includes a map
viewer that shows where waters have
been determined to be jurisdictional or
non-jurisdictional based on approved
jurisdictional determinations. Users can
quickly and easily input a location (e.g.,
a city and State, or a latitude and
longitude) to view approved
jurisdictional determinations that have
been finalized in a specific geographic
area. Additionally, publicly available
map viewers integrate datasets, allowing
users to consolidate and evaluate
relevant data from multiple sources in
one visual platform. EPA’s EnviroAtlas
(available at https://www.epa.gov/
enviroatlas/enviroatlas-interactive-map)
is a map viewer that provides
information and interpretative tools to
help facilitate surface water assessments
using multiple data layers such as land
cover, stream hydrography, soils, and
topography. Users can quickly and
easily input a location (e.g., a city and
State, or a latitude and longitude) and
select relevant map layers from a list of
individual datasets and indices. The
EPA Watershed Assessment, Tracking,
and Environmental Results System
(WATERS) Geoviewer (available at
https://www.epa.gov/waterdata/waters-
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geoviewer) provides many map layers,
including water map layers like
NHDPlus, and watershed reports for
analysis and interpretation. Similarly, in
the USGS National Map Viewer
(available at https://apps.
nationalmap.gov/viewer/) users can
view different map layers, including
aerial imagery, water map layers like the
NHD and NHDPlus High Resolution,
wetlands map layers like NWI, and land
cover, elevation data, and topographic
maps. EPA’s How’s My Waterway
mapper (available at https://
mywaterway.epa.gov/) provides users
with information about the water
quality of their local waterways,
including information about water
quality impairments and section 402
permitted dischargers.
(2) How can I obtain a jurisdictional
determination for a water on my
property?
The Corps has long provided
jurisdictional determinations as a public
service. The Corps does not charge a fee
for this service. There are two types of
jurisdictional determinations provided
by the Corps: approved jurisdictional
determinations and preliminary
jurisdictional determinations. An
approved jurisdictional determination is
a 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
is a document indicating that there may
be waters of the United States on a
parcel or indications of the approximate
location(s) of waters of the United States
on a parcel. The Corps recognizes the
value of jurisdictional determinations to
the public and reaffirms the Corps’
commitment to continue its practice of
providing jurisdictional determinations,
for which it does not charge a fee, upon
request. A landowner who would like to
know whether areas on their property
meet the definition of ‘‘waters of the
United States’’ may contact their local
Corps district regulatory office at any
time. The list of local district regulatory
offices is available at the following link:
https://www.usace.army.mil/Missions/
Locations/. Contact information is
available at the link for each local office.
When a local district regulatory office
is contacted, district personnel will
ensure that the landowner understands
the different types of jurisdictional
determinations so the landowner can
make an informed decision about which
type of jurisdictional determination is
most appropriate for the landowner’s
circumstances. See section III.A.1.b of
this preamble for a discussion of the
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types of jurisdictional determinations
the Corps issues. Once the landowner
determines the best option for their
particular circumstance, it is the Corps’
policy to honor the request unless it is
impracticable.
The Corps may need to conduct one
or more site visits to collect information
when a landowner requests an approved
or preliminary jurisdictional
determination. In addition to
information collected during the site
visit(s), the Corps will use data from
other resources (such as those described
in this preamble) as well as any
information the landowner wishes to
provide to inform the jurisdictional
determination. A landowner may
choose to hire an environmental
consultant who can assist by providing
site evaluation information and data
collection, thereby supporting a more
efficient process. Once the Corps has
completed the jurisdictional
determination, they will provide it to
the landowner in a letter.
If the jurisdictional determination is
an approved jurisdictional
determination, the letter from the Corps
will typically include one or more
approved jurisdictional determination
forms that explain the basis for the
determination that the aquatic resources
on the landowner’s property are or are
not ‘‘waters of the United States.’’ The
landowner will also receive a form to
request an appeal of the approved
jurisdictional determination. Consistent
with Regulatory Guidance Letter 05–02,
‘‘Expiration of Geographic Jurisdictional
Determinations of ‘Waters of the United
States,’’’ the landowner can rely upon
the approved jurisdictional
determination until it expires unless
new information warrants revision of
the approved jurisdictional
determination prior to its expiration.
If the landowner disagrees with the
Corps’ approved jurisdictional
determination, the landowner can
request that it be reconsidered and
submit any available new information or
data to the district. If, after such
reconsideration, or in the absence of any
new information, the landowner
disagrees with the approved
jurisdictional determination, the
landowner may administratively appeal
the decision by sending a completed
Request for Administrative Appeal form
to the appropriate Corps’ division office.
The Corps’ regulations at 33 CFR part
331 describe the administrative appeal
process. The Corps’ division may
determine that none of the reasons for
appeal have merit, in which case the
approved jurisdictional determination
remains in effect until it expires or it is
revised by the Corps district.
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Alternatively, the Corps’ division may
determine that one or more of the
reasons for appeal have merit in which
case the approved jurisdictional
determination is remanded to the
district for reconsideration. The
landowner may also challenge the
approved jurisdictional determination
in Federal district court.135
(3) Are there general permits under
section 404 of the Clean Water Act for
individual landowners? How do I obtain
coverage under a nationwide permit?
Landowners that wish to pursue
activities that are or may be subject to
the permit requirements of the Clean
Water Act and that will impact ‘‘waters
of the United States’’ on their property
may be able to obtain coverage under a
general permit. General permits are
issued on a nationwide, regional, or
statewide basis for particular categories
of activities that result in no more than
minimal individual or cumulative
adverse environmental effects. While
some general permits require the
applicant to submit a pre-construction
notification to the Corps or a State,
others allow the project proponent to
proceed with the authorized activity
with no formal notification. The general
permit process allows certain activities
to proceed with little or no delay if the
conditions of the general permit are met.
For example, minor road construction
activities, utility line backfill, and minor
discharges for maintenance can be
authorized by a general permit, where
the activity meets the acreage limits and
other limits specified in the general
permit.
As of the date of this rule, the Corps
has issued 57 nationwide permits
(NWPs), a number of which may be of
particular use to individual property
owners. Authorization to discharge
dredged or fill material is provided
under the following NWPs: NWP 3
authorizes discharges associated with
maintenance of previously authorized
and serviceable structures and fill; NWP
18 authorizes minor discharges of less
than 25 cubic yards that result in the
loss of no more than 1⁄10-acre of ‘‘waters
of the United States,’’ which can
include activities undertaken by a
landowner; NWP 29 authorizes
discharges that result in the loss of no
more than 1⁄2-acre of non-tidal ‘‘waters
of the United States’’ to support the
construction or expansion of a single
residence or a residential development;
NWP 33 authorizes temporary
135 In U.S. Army Corps of Engineers v. Hawkes
Co., 136 S. Ct. 1807 (2016), the Supreme Court held
that approved jurisdictional determinations are
subject to judicial review.
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discharges associated with construction
activities and access to construction
sites, including for the construction or
expansion of a home or residential
development if the area is restored to
pre-construction conditions; NWP 57
authorizes discharges associated with
electric utility and telecommunication
line activities that result in the loss of
no more than 1⁄2-acre of ‘‘waters of the
United States,’’ including connecting
these services to a home or residential
development; NWP 58 authorizes
discharges associated utility line
activities for water and other substances
that result in the loss of no more than
1⁄2-acre of ‘‘waters of the United States,’’
including connecting water and sewer
lines to a home or residential
development. These are general
descriptions of the selected NWPs. The
requirements and conditions that apply
to the NWPs are set forth in the rules
promulgating the NWPs. Corps
personnel in the local district office can
help explain the requirements of each
NWP, including any conditions that
have been added to the NWPs on a
regional basis. Corps districts may add
conditions to activity-specific NWP
authorizations to ensure that those
activities result in no more than
minimal individual and cumulative
adverse environmental effects. Corps
districts across the country have issued
approximately 450 regional general
permits, and information on these
permits is provided on each district’s
website. All general permits, including
NWPs, are valid for a maximum of five
years and are subject to change, so this
overview is for illustrative purposes
only. Property owners should always
consult the most recently promulgated
general permit information.
Additional information on NWPs is
available at the following link: https://
www.usace.army.mil/Missions/CivilWorks/Regulatory-Program-andPermits/Nationwide-Permits/.
(4) If I need an individual section 404
permit, how do I obtain coverage?
The vast majority of activities subject
to Clean Water Act section 404 permits
are authorized under general permits;
however, some activities do require
authorization under an individual
permit (generally because of a high level
of impact on ‘‘waters of the United
States’’ or because the project proponent
cannot comply with all applicable
conditions of a general permit). While
the process of applying for and
evaluating an individual permit is more
involved than for a general permit, the
time and complexity involved is
commensurate with the level of impact
and can still be efficient. The Corps
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Regulatory Program personnel will work
with an applicant to ensure potential
adverse impacts associated with the
proposed action have been to the extent
practicable avoided or minimized. This
effort focuses not only on lessening
adverse impacts to waters, including
wetlands, but also other important
aspects of the human environment
including endangered species and
historic properties. Focused
consideration of these and other
environmental factors during the project
planning stage could help avoid more
complex and time-consuming
evaluations and consultations. As a
result of this process of avoidance,
minimization, and with the
implementation of certain compensatory
mitigation, the Corps ends up denying
less than 1% of individual permit
requests 136 while still ensuring
compliance with important Federal laws
such as the Endangered Species Act and
the National Historic Preservation Act.
The Corps estimates that the typical cost
associated with the individual permit
process for a project affecting up to
three acres of jurisdictional waters is
between $15,500 and $37,300. The
typical homeowner’s project is far more
likely to fall within the terms of a
general permit (e.g., NWP 29, which
authorizes discharges that result in the
loss of no more than 1⁄2-acre of non-tidal
‘‘waters of the United States’’ to support
the construction or expansion of a single
residence or a residential development)
than to require filling multiple acres of
jurisdictional waters.137
D. Placement of the Definition of
‘‘Waters of the United States’’ in the
Code of Federal Regulations
1. This Rule
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Prior to the 2020 NWPR, the
definition of ‘‘waters of the United
States’’ was historically placed in eleven
locations in the Code of Federal
Regulations (CFR). For the sake of
simplicity, in this rule, as in the 2020
NWPR, the agencies are codifying the
definition of ‘‘waters of the United
States’’ in only two places in the CFR—
in Title 33, which generally 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. Additionally, the
agencies’ final rule makes several
ministerial changes to EPA’s regulations
136 Based
on data from the Corps’ ORM2 database.
to recent U.S. Census data, even in
the State with the largest lot size, California, the
average lot size is substantially smaller than three
acres, see https://www.census.gov/construction/
chars/, meaning the acreage of jurisdictional waters
would be smaller still.
137 According
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at part 120: (1) this rule deletes the
definition of ‘‘navigable waters’’ at 40
CFR 120.2 and adds the definition to the
section ‘‘purpose and scope’’ at 40 CFR
120.1 and (2) this rule adds clarifying
text to the section ‘‘purpose and scope’’
at 40 CFR 120.1.
2. Summary of the Agencies’
Consideration of Public Comments and
Rationale for This Rule
The agencies proposed to maintain
the definition of ‘‘waters of the United
States’’ at 33 CFR part 328 and in one
location at 40 CFR 120.2. The agencies
also proposed to delete the definition of
‘‘navigable waters’’ at 40 CFR 120.2 and
to add the definition to the section
‘‘purpose and scope’’ of part 120 at 40
CFR 120.1. Additionally, the agencies
proposed to add additional clarifying
text to the section ‘‘purpose and scope’’
at 40 CFR 120.1.
The agencies solicited comment on
their deletion of the definition of
‘‘navigable waters’’ at 40 CFR 120.2 and
adding it instead to the section
‘‘purpose and scope’’ at 40 CFR 120.1.
One commenter supported the proposed
changes to placement of the definition
of ‘‘waters of the United States.’’ As the
agencies stated in the preamble to the
2020 NWPR, the placement of the
definition in two locations, at 33 CFR
328.3 and 40 CFR 120.2, increases
convenience for the reader and provides
clarity to the public that there is a single
definition of ‘‘waters of the United
States’’ applicable to the Clean Water
Act and its implementing regulations.
The placement has no substantive
implications for the scope of Clean
Water Act jurisdiction. 85 FR 22328
(April 21, 2020). 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 2020 NWPR cross-references
the then-newly created section of the
regulations containing the definition of
‘‘waters of the United States.’’ The
cross-references to 40 CFR 120.2 are
maintained by this rule.
As discussed in the preamble of the
proposed rule, the agencies intend for
the other revisions to 40 CFR 120—
deleting the definition of ‘‘navigable
waters’’ at 40 CFR 120.2, adding the
definition into the section ‘‘purpose and
scope’’ at 40 CFR 120.1, and adding
clarifying text to the section ‘‘purpose
and scope’’ at 40 CFR 120.1—to be
editorial and clarifying changes and not
substantive changes from EPA’s
regulations. The agencies have
concluded that these minor revisions
add consistency between EPA’s
regulations at 40 CFR 120 and the
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Corps’ regulations defining ‘‘waters of
the United States’’ at 33 CFR 328.3. As
a result of this non-substantive revision,
the agencies’ definitions will have
parallel numerical and alphabetical
subsections, providing clarity for the
public. The changes have no
implications for Clean Water Act
program implementation. They are
made for the sole purpose of enhancing
the clarity of EPA’s regulation and
providing consistency across the
implementing agencies’ regulations.
E. Severability
The purpose of this section is to
clarify the agencies’ intent with respect
to the severability of provisions of this
rule. Each category and subcategory of
jurisdictional waters in this rule is
capable of operating independently. If
any provision or jurisdictional category
or subcategory of this rule is determined
by judicial review or operation of law to
be invalid, that partial invalidation will
not render the remainder of this rule
invalid. Likewise, if the application of
any portion of this rule to a particular
circumstance is determined to be
invalid, the agencies intend that the rule
remain applicable to all other
circumstances.
For example, in the absence of
jurisdiction over a subcategory of
jurisdictional tributaries, adjacent
wetlands, or paragraph (a)(5) waters,
references to those subcategories of
waters could be removed, and the
agencies would continue to exercise
jurisdiction under the remainder of this
rule (including unaffected
subcategories). Each exclusion in
paragraph (b) and each definitional
provision of paragraph (c) also operates
independently of the other provisions in
this rule and is intended to be severable.
Moreover, as noted, the agencies intend
applications of this rule to be severable
from other applications, such that if the
application of this rule to a given
circumstance is held invalid, the rule
remains enforceable in all other
applications. For example, if a court
were to determine that a wetland cannot
be treated as adjacent if it is separated
from a jurisdictional water by road or
other barrier, the agencies intend that
other categories of wetlands within the
rule’s definition of ‘‘adjacent’’ would
remain subject to jurisdiction.
F. Jurisdictional Determinations Issued
Under Previous Rules
The agencies recognize that
promulgation of this rule could lead to
questions regarding AJDs issued under
prior rules defining ‘‘waters of the
United States’’ and the utility of such
AJDs to support actions, such as
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requests for permits, following the
effective date of this rule. In this
section, the agencies seek to provide
clarity on the effect of this rule on
previously issued AJDs and the extent to
which AJDs issued under prior rules
may be relied upon. To be clear, this
discussion merely explains pre-existing
legal principles and does not create new
requirements.
An AJD is a 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. See 33 CFR 331.2.
As a matter of policy, AJDs are valid for
a period of five years from the date of
issuance, unless new information
warrants revision of the determination
before the expiration date, or a District
Engineer identifies specific geographic
areas with rapidly changing
environmental conditions that merit
reverification on a more frequent basis.
See U.S. Army Corps of Engineers, RGL
No. 05–02, section 1(a), p. 1 (June 2005).
Additionally, the possessor of a valid
AJD may ask the Corps to reassess a
parcel and issue a new AJD before the
five-year expiration date.138
This rule does not invalidate AJDs
issued under prior definitions of
‘‘waters of the United States.’’ As such,
any existing AJD—except AJDs issued
under the vacated 2020 NWPR, which
are discussed below—will remain valid
to support regulatory actions, such as
permitting, until its expiration date,
unless one of the criteria for revision is
met under RGL 05–02 or the recipient
of such an AJD asks the Corps to issue
a new AJD. Because agency actions are
governed by the rule in effect at the time
an AJD is issued and not when the
request was made, all approved
jurisdictional determinations issued on
or after the effective date of this rule
will be made consistent with this rule.
Because two district courts vacated
the 2020 NWPR, the agencies have
received many questions regarding the
validity of AJDs issued under the 2020
NWPR (hereinafter, ‘‘NWPR AJDs’’). In
response to such inquiries, the agencies
have explained through previous public
statements that NWPR AJDs, unlike
AJDs issued under other rules that were
changed pursuant to notice-andcomment rulemaking rather than
vacatur, may not reliably state the
presence, absence, or limits of ‘‘waters
of the United States’’ on a parcel and
138 In contrast to AJDs, preliminary jurisdictional
determinations (PJDs) are advisory in nature and
have no expiration date. See 33 CFR 331.2; see also
U.S. Army Corps of Engineers, RGL No. 16–01
(October 2005) (RGL 16–01). This rule has no
impact on existing PJDs.
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will not be relied upon by the Corps in
making new permit decisions following
the Arizona district court’s August 30,
2021 order vacating the 2020 NWPR.139
Therefore, for any currently pending or
future permit action that intends to rely
on a NWPR AJD, the Corps will discuss
with the applicant, as detailed in RGL
16–01,140 whether the applicant would
like to receive a new AJD completed
under the regulatory regime in effect at
that time (i.e., the pre-2015 regulatory
regime until this rule is effective or this
rule after it becomes effective) to
continue their permit processing or
whether the applicant would like to
proceed in reliance on a preliminary
jurisdictional determination or ‘‘no JD
whatsoever.’’ 141
NWPR AJDs issued prior to the
Arizona district court’s vacatur decision
and that are not associated with a
permit action (also known as ‘‘standalone’’ AJDs under RGL 16–01) will
remain valid stand-alone AJDs until
their expiration date unless one of the
criteria for revision is met under RGL
05–02 or if the recipient of such an AJD
requests that a new AJD be provided. A
recipient of a stand-alone NWPR AJD
should nonetheless be aware of the
reliability considerations noted above.
Moreover, a recipient of a stand-alone
NWPR AJD that intends to discharge
into waters identified as nonjurisdictional under the vacated 2020
NWPR but that may be jurisdictional
under the pre-2015 regulatory regime or
this rule may want to discuss their
options with the Corps due to the
unreliability of those jurisdictional
findings.
G. Implementation Tools
This rule provides implementation
guidance informed by sound science,
implementation tools, and other
resources, drawing on more than a
decade of post-Rapanos implementation
experience. Section IV.C of this
preamble addressing specific categories
of waters provides guidance on
implementation of each provision of
this rule. This section addresses
advancements in the implementation
data, tools, and methods that are
139 U.S. Army Corps of Engineers, Navigable
Waters Protection Rule Vacatur (published January
5, 2022), available at https://www.usace.army.mil/
Media/Announcements/Article/2888988/5-january2022-navigable-waters-protection-rule-vacatur/;
U.S. Environmental Protection Agency, Current
Implementation of Waters of the United States
(published January 5, 2022), available at https://
www.epa.gov/wotus/current-implementationwaters-united-states.
140 U.S. Army Corps of Engineers, RGL No. 16–
01 (October 2016).
141 See RGL 16–01 (explaining the ‘‘no JD
whatsoever’’ option).
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relevant to jurisdictional determinations
under this rule. Although the agencies
may also rely on site-specific
information from landowners or field
visits, the agencies generally use
publicly available data, tools, and
methods to inform determinations of
jurisdiction. These same resources can
also be used by the public and
practitioners to assess aquatic resources
to better understand whether a
particular resource may be
jurisdictional. Some of these resources
are freely available, and others may
charge a fee for use. Note that members
of the public are not required to conduct
or provide any of the analyses described
in this section as part of a JD request.
JD requesters need only provide the
agencies with a minimal amount of
information, including identification of
the boundaries of the area of interest, to
request a JD. See RGL 16–01, Appendix
1. The following discussion is provided
to clarify how available data, tools, and
methods inform the agencies’
determinations and confirm that
interested parties may use these same
resources to inform their own siting
decisions, if so desired.
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
jurisdictional decision-making under
the relatively permanent and significant
nexus standards. Agency staff were
forced to rely heavily 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 2007 Corps
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
instructed practitioners to consider all
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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 RGL No. 07–
01 142 in 2007. RGL No. 07–01 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. 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 the guidance. Despite
these challenges, the agencies and
others in the practitioner community
gained substantial collective experience
implementing the relatively permanent
and significant nexus standards from
2006 to 2015.
Since 2015, there have been dramatic
improvements to the quantity and
quality of water resource information
available on the internet, including
information and tools that are freely
available to the public. The agencies
and other practitioners can use online
mapping tools to determine whether
waters are connected or sufficiently
close to ‘‘waters 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.
The following overview of several
tools and data that have been developed
or improved since 2015 is intended to
demonstrate how case-specific
evaluations can be made more quickly
142 RGL No. 07–01 was later superseded by RGL
08–02, which was superseded by RGL 16–01,
neither of which addressed significant nexus
evaluations.
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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. Such map viewers can assist,
for example, with considering the
factors and assessing the functions in
paragraph (c)(6). 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. Another web mapping
application is the EPA’s EnviroAtlas,
which provides information and
interpretative tools to help facilitate
surface water assessments using
multiple data layers such as land cover,
stream hydrography, soils, and
topography. Several States also have
State-specific interactive online
mapping tools called Water Resource
Registries (WRRs). WRRs host publicly
available GIS data layers providing
various information such as the
presence of wetlands, land use/cover,
impaired waters, and waters of special
concern. 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
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3137
that the flow-direction network data are
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. 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
agencies and other practitioners can use
this dataset to help assess potential
hydrologic connectivity between
waterways and wetlands. For example,
it can be used in part to help the
agencies identify wetlands that do not
meet the definition of adjacent (waters
assessed under paragraph (a)(5)).
The availability of aerial and satellite
imagery has improved dramatically
since 2015. This imagery 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 characteristics of
a tributary, as a first step to determine
if additional field-based information is
needed to determine the flow
characteristics. Other practitioners may
also use aerial and satellite images to
identify aquatic resources and inform
assessments of those aquatic resources.
The growth of the satellite imagery
industry has reduced the need to
perform as many field investigations to
verify Clean Water Act jurisdiction.143
Some of these services charge a fee for
use, but others are freely available.
Similarly, the availability of LIDAR
data has increased in availability and
utility for informing decisions on Clean
143 For example, satellite imagery services are
available through services such as DigitalGlobe,
available at https://discover.maxar.com/, and aerial
photography and imagery are available through
services 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/. The USGS Landsat Level-3 Dynamic Surface
Water Extent (DSWE) product, available at https://
www.usgs.gov/landsat-missions/landsat-dynamicsurface-water-extent-science-products?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.
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Water Act jurisdiction. LIDAR produces
high-resolution elevation data (<1–3
meter) which can be used to create maps
of local topography. The high-resolution
maps can highlight the potential
hydrologic connections and flowpaths
at a site. 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. Hydrologists, for example,
have long used digital elevation models
of the earth’s surface to model
watershed dynamics, and the agencies
have used such information where
available to help inform jurisdictional
decisions. LIDAR-derived digital
elevation models tend to be high
resolution (<1–3 meter), so they are
particularly helpful for identifying finescale surface features. For example,
LIDAR-indicated tributaries can be
correlated with aerial photography or
other tools to help identify channels and
to help determine flow permanence
(e.g., 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
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. The USGS is in the process of
collecting LIDAR data for the entire
United States.144 LIDAR data are
available for download via the National
Map Download Client (available at
https://apps.nationalmap.gov/
downloader/#/) and LIDAR-derived
digital elevation models are available
via the 3DEP LidarExplorer (available at
https://apps.nationalmap.gov/lidarexplorer/#/). However, LIDAR-derived
elevation maps are not always available,
so the agencies use other elevation data,
including digital elevation models
derived from other sources (e.g., 10meter digital elevation models) and
topographic maps to help determine the
elevation on a site and to assess the
potential location of tributaries.
Since 2015, tools have been
developed that automate some of the
standard practices the agencies rely on
to assist in jurisdictional
determinations. One example of this
automation is the Antecedent
Precipitation Tool (APT), which was
144 See U.S. Geological Survey. ‘‘What is Lidar
data and where can I download it? ’’ Available at
https://www.usgs.gov/faqs/what-lidar-data-andwhere-can-i-download-it.
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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 IV.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 2020 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; has standardized methods,
which reduces errors; and has enabled
more people to perform these analyses
themselves, including members of the
public. Automated tools like the APT
will continue to be important for
supporting jurisdictional decisionmaking. The agencies will consider
opportunities to develop and improve
tools that should be helpful for further
automating and streamlining the JD
process in the future.
Site visits are still sometimes needed
to perform on-site observations of
surface hydrology or collect regionallyspecific 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. The agencies 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 regionspecific SDAMs for nationwide
coverage, which will promote consistent
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implementation across the United States
in a manner that accounts for
differences between each ecoregion. The
region-specific SDAMs will be publicly
available, with user manuals that will
guide not only the agencies, but also
other practitioners, in applying the
methods to assess aquatic resources.
Additional information on the agencies’
efforts to develop SDAMs is available on
the Regional Streamflow Duration
Assessment Methods web page,
available at https://www.epa.gov/
streamflow-duration-assessment.
Consistent with longstanding practice,
the agencies will make decisions based
on the best available information.
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). 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 and availability of such
geospatial products for implementation
of Clean Water Act programs.
H. Publicly Available Jurisdictional
Information and Permit Data
The agencies have provided
information on jurisdictional
determinations that is readily available
to the public. The Corps maintains a
website, available 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. The website allows users to
search and view basic information on
approved jurisdictional determinations
and permit decisions (including latitude
and longitude) and to filter the
determinations using different
parameters like Corps District and year.
The website also contains a link to an
associated approved jurisdictional
determination form. Similarly, EPA
maintains a website, available 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. EPA’s website
also allows users to search, sort, map,
view, filter, and download information
on approved jurisdictional
determinations using different search
parameters (e.g., by year, location, State,
watershed, regulatory regime). The
website includes a map viewer that
shows where waters have been
determined to be jurisdictional or non-
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jurisdictional based on the approved
jurisdictional determinations available
on the site.145 These websites will
incorporate information on 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, available at https://
www.epa.gov/enviro/pcs-icis-overview,
as well as the EnviroMapper, available
at https://enviro.epa.gov/enviro/
em4ef.home, and How’s My Waterway,
available at 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’’ on EPA’s website at https://
www.epa.gov/wotus.
V. Statutory and Executive Order
Reviews
Additional information about these
statutes and Executive Orders can be
found at https://www.epa.gov/lawsregulations/laws-and-executive-orders.
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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 Final ‘‘Revised Definition of
‘Waters of the United States’’’ Rule, is
available in the docket for this action.
This rule establishing the definition of
‘‘waters of the United States’’ does not
by itself impose costs or benefits.
Potential costs and benefits would only
be incurred as a result of actions taken
under existing Clean Water Act
programs relying on the definition of
145 With respect to the waters determined to be
non-jurisdictional, section IV.C.7 of this preamble
describes the regulatory exclusions in this rule,
which reflect the agencies’ longstanding practice
and technical judgment that certain waters and
features are not subject to the Clean Water Act.
Additionally, based on the agencies’ experience,
many waters assessed under this rule will not have
a significant nexus to paragraph (a)(1) waters, and
thus will not be jurisdictional under the Clean
Water Act under this rule. See section IV.C.9.b of
this preamble for examples of waters that would not
likely have a significant nexus under this rule.
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‘‘waters of the United States’’ (i.e.,
sections 303, 311, 401, 402, and 404)
that are not otherwise modified by this
rule. Entities currently are, and will
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.
The agencies prepared the economic
analysis pursuant to the requirements of
Executive Orders 12866 and 13563 to
provide information to the public. The
economic analysis was done for
informational purposes and the final
decisions on the scope of ‘‘waters of the
United States’’ in the rulemaking are not
based on consideration of the potential
benefits and costs in the economic
analysis. Within the Economic Analysis
for the Final Rule, the agencies have
analyzed the potential benefits and costs
associated with various Clean Water Act
programs that could result from this rule
relative to two baselines. The primary
baseline analyzes costs and benefits
associated with moving from the pre2015 regulatory regime that is currently
being implemented to the definition in
this rule. This rule imposes de minimis
costs and generates de minimis benefits
under the primary baseline.
Though two courts have vacated the
2020 NWPR and the pre-2015 regulatory
regime is currently being implemented,
the agencies have chosen to provide
additional information to the public
with the 2020 NWPR as a secondary
baseline in the Economic Analysis for
the Final Rule. This rule will replace the
2020 NWPR in the Code of Federal
Regulations as the definition of ‘‘waters
of the United States’’ in the agencies’
regulations. The agencies project that
compared to the 2020 NWPR, this rule
would define more waters as within the
scope of the Clean Water Act. The
analysis of estimated costs and benefits
of this rule is contained in the Economic
Analysis for the Final Rule and is
available in the docket for this action.
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 and will do
so consistent with the PRA process.
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C. Regulatory Flexibility Act (RFA)
The agencies certify that this rule will
not have a significant economic impact
on a substantial number of small entities
under the RFA for several reasons. First,
as demonstrated in Chapter I of the
Economic Analysis for the Final Rule,
this rule would codify a regulatory
regime with de minimis differences
from the one currently being
implemented nationwide due to the
vacatur of the 2020 NWPR.
This rule will also not have a
significant economic impact on a
substantial number of small entities
under the RFA because under the RFA,
the impact of concern is any significant
adverse economic impact on small
entities, because the primary purpose of
the initial regulatory flexibility analysis
is to identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the
proposed rule on small entities.’’ 5
U.S.C. 603(a). This rule does not
directly apply to specific entities and
therefore it does not ‘‘subject’’ any
entities of any size to any specific
regulatory burden. Rather, 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 relevant Supreme
Court case law, as well as the best
available science and the agencies’
experience and technical expertise.
None of these factors are readily
informed by an RFA analysis. See, e.g.,
Cement Kiln Recycling Coal. v. EPA, 255
F.3d 856, 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.’’).
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Finally, the agencies conclude that
this rule will not significantly impact
small entities because it narrows the
scope of jurisdiction from the text of the
1986 regulations. Because fewer waters
will be subject to the Clean Water Act
under this rule than fall within the
scope of the text of the regulations in
effect, this action will not affect small
entities to a greater degree than the
existing regulations currently in effect.
A key change is the deletion of the
provision in the 1986 regulations that
defines ‘‘waters of the United States’’ as
all paragraph (a)(3) ‘‘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:
which are or could be used by interstate
or foreign travelers for recreational or
other purposes; from which fish or
shellfish are or could be taken and sold
in interstate or foreign commerce; or
which are used or could be used for
industrial purposes by industries in
interstate commerce. Under this rule, a
broad interstate commerce connection is
not sufficient to meet the definition of
‘‘waters of the United States.’’ Instead,
waters must meet either the relatively
permanent standard or the significant
nexus standard. Further, the final rule
eliminates jurisdiction over tributaries
and adjacent wetlands based on their
connection to paragraph (a)(5) waters. In
addition, this rule would explicitly
exclude some features and waters over
which the agencies have not generally
asserted jurisdiction, but which are not
excluded in the text of the 1986
regulations, and in so doing eliminates
the authority of the agencies to
determine in case-specific
circumstances that some such waters are
jurisdictional ‘‘waters of the United
States.’’ This rule also provides new
limitations on the scope of jurisdictional
tributaries and most adjacent wetlands
by establishing a requirement that they
meet either the relatively permanent
standard or the significant nexus
standard. Together, these changes serve
to narrow the scope of this rule in
comparison to the text of the regulation
in effect. Because the rule narrows the
scope of jurisdiction from the text of the
1986 regulations, this action will not
have a significant adverse economic
impact on a substantial number of small
entities, and therefore no regulatory
flexibility analysis is required.
Nevertheless, the agencies recognize
that the scope of the term ‘‘waters of the
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United States’’ is of great national
interest, including within the small
business community. Given 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 Environmental Protection Agency,
2021 ‘‘Waters of the United States’’
Public Meeting Materials, available at
https://www.epa.gov/wotus/2021waters-united-states-public-meetingmaterials). The agencies also met with
small entities during the public
comment period to hear their thoughts
on the proposed rule. The Office of
Advocacy of the U.S. Small Business
Administration hosted EPA and Army
staff in January 2022 to discuss the
proposed rule with small entities at its
Small Business Environmental
Roundtables. The agencies met with
small agricultural interests and their
representatives for a roundtable on
January 7, 2022, and met with other
small entities on January 10, 2022. 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 final definition of
‘‘waters of the United States’’ applies
broadly to Clean Water Act programs.
The action imposes no enforceable duty
on any Tribal, State, or local
governments, or the private sector.
E. Executive Order 13132: Federalism
Consulting with State and local
government officials, or their
representative national organizations, is
an important step in the process prior to
proposing regulations that may have
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 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,
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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. In addition, the agencies
received letters from State and local
governments, as well as government
associations, as part of this initial
federalism consultation process. A total
of 37 letters were submitted from twelve
State government agencies, five local
government agencies, seventeen
intergovernmental associations, and
three State-level associations of local
governments. 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 rule.
A Summary Report of Federalism
Consultation for the proposed rule was
published in December 2021. The
agencies continued to engage with State
and local governments during the public
comment period. The agencies hosted
two roundtable sessions for State and
local officials on January 24 and January
27, 2022. These State and local
government roundtables provided an
overview of the proposed rule and
discussions of a variety of topics
including significant nexus, specific
waters, exclusions, and State regulatory
programs. Each roundtable meeting
included breakout groups for officials by
region so they could discuss and
provide feedback to the agencies.
Organizations in attendance included a
wide variety of State and local
government agencies, as well as
intergovernmental associations and
State-level associations of local
governments. These meetings and the
letters provided represent a wide and
diverse range of interests, positions,
comments, and recommendations to the
agencies. Common themes from the
feedback included the importance of
promoting State-Federal partnerships;
the need for the agencies to take a
regional approach to determinations of
jurisdiction; and support for further
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clarity and consistency with significant
nexus and relatively permanent
determinations. 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
final report is available in the docket
(Docket ID. No. EPA–HQ–OW–2021–
0602) for this rule.
Under the technical requirements of
Executive Order 13132, agencies must
conduct a federalism consultation as
outlined in the Executive Order for
regulations that (1) have federalism
implications, that impose substantial
direct compliance costs on State and
local governments, and that are not
required by statute; or (2) that have
federalism implications and that
preempt State law. The agencies
conducted a 60-day federalism
consultation due to strong interest on
the part of State and local governments
on this issue over the years and
potential effects associated with a
change in the definition of ‘‘waters of
the United States.’’ However, the
agencies have concluded that compared
to the status quo, this rule does not
impose any new costs or other
requirements on States, preempt State
law, or limit States’ policy discretion;
rather, it defines the scope of ‘‘waters of
the United States’’ to which Clean Water
Act programs apply. Executive Order
paras. (6)(b) and (6)(c). This final rule
draws a boundary between waters
subject to Clean Water Act protections
and those that Tribes and States may
manage under their independent
authorities. As compared to the status
quo, this action will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Documentation
for this decision is contained in the
Economic Analysis for the Final Rule,
which can be found in the docket for
this action.
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
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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 the proposed
rule. The consultation included two
webinars on August 19 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 responded to all
requests for one-on-one consultation
and met with four Tribes at a staff-level
and with four Tribes at a leader-toleader level. All letters received by the
agencies as part of Tribal consultation
may be found in the docket (Docket ID
No. EPA–HQ–OW–2021–0602) for this
rule.
The agencies also continued to engage
with Tribes post-proposal, including via
regional Tribal meetings and through a
virtual Tribal roundtable on January 20,
2022. The topics addressed during this
roundtable included options for
describing and implementing the
relatively permanent and significant
nexus standards, the definitions of
specific waters such as interstate waters
and paragraph (a)(5) waters, and the
implementation of exclusions. The most
common themes from the feedback
were: the importance of streams and
wetlands to Tribal cultural resources;
the need for the agencies to consider
regional differences; the need for the
agencies to respect the Federal trust
responsibility and Tribal treaty rights;
and the importance of restoring a broad
definition of ‘‘waters of the United
States.’’ Some Tribes commented on the
importance of protecting ephemeral
streams, which were eliminated from
jurisdiction under the 2020 NWPR, as
well as protecting wetlands that were
excluded under the 2020 NWPR.
Several Tribes spoke about the need to
include ‘‘waters of the tribe’’ in the
definition of ‘‘waters of the United
States.’’ Additionally, several Tribes
stated support for furthering
environmental justice with the proposed
rulemaking. Some Tribes also expressed
support for accounting for climate
change in some manner in the definition
of ‘‘waters of the United States.’’ The
agencies have prepared a report
summarizing the consultation and
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3141
further engagement with Tribal Nations.
This report (Docket ID. No. EPA–HQ–
OW–2021–0602) is available in the
docket for this rule.
As required by Executive Order 13175
section 7(a), the EPA’s Tribal
Consultation Official has certified that
the requirements have been met in a
meaningful and timely manner. A copy
of the certification is included in the
docket for this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
EPA and the Army interpret Executive
Order 13045 as applying only to those
regulatory actions that concern
environmental health or safety risks that
the agencies have 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 the environmental health or
safety risks addressed by this action do
not present a disproportionate risk to
children.
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 rule does not involve technical
standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994) directs Federal
agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations (Indigenous peoples and/or
people of color) and low-income
populations.
EPA and the Army believe that this
action does not have disproportionately
high and adverse human health or
environmental effects on Indigenous
peoples, people of color, and/or lowincome populations. The
documentation for this decision is
contained in the Economic Analysis for
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the Final Rule, which can be found in
the docket for this action.
The agencies recognize that the
burdens of environmental pollution and
climate change often fall
disproportionately on communities with
environmental justice concerns (e.g.,
Indigenous peoples, people of color, and
low-income populations), and have
qualitatively assessed impacts to these
groups in the Economic Analysis for the
Final Rule. Climate change will
exacerbate the existing risks faced by
communities with environmental justice
concerns.
For this 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 due to this rule may be
differentially distributed among
communities with environmental justice
concerns in the affected areas when
compared to both baselines. Regardless
of baseline, for most of the wetlands and
affected waters impacted by this rule at
a hydrologic unit code (HUC) 12
watershed level,146 there was no
evidence of potential environmental
justice impacts warranting further
analysis. It is expected that where there
were environmental justice impacts at
the HUC 12 scale as compared to the
secondary baseline of the 2020 NWPR,
those impacts would be beneficial to
communities with environmental justice
concerns because this rule will result in
more waters being jurisdictional than
would be under the 2020 NWPR. For
example, communities with
environmental justice concerns in the
arid West may have experienced
increased water pollution and
associated health impacts under the
2020 NWPR due to that rule’s lack of
Federal protection for ephemeral
streams and their adjacent wetlands.
K. Congressional Review Act
This action is subject to the
Congressional Review Act, and the
agencies will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
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List of Subjects
33 CFR Part 328
Administrative practice and
procedure, Environmental protection,
146 HUC boundaries are established by USGS and
NRCS. These boundaries are numbered using
nested codes to represent the scale of the watershed
size. For example, HUC 12 watersheds are smaller
than HUC 4 watersheds.
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Navigation (water), Water pollution
control, Waterways.
40 CFR Part 120
Environmental protection, Water
pollution control, Waterways.
Michael L. Connor,
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, 33 CFR part 328 is amended
as follows:
PART 328—DEFINITION OF WATERS
OF THE UNITED STATES
1. The authority citation for part 328
continues to read as follows:
■
Authority: 33 U.S.C. 1251 et seq.
■
2. Revise § 328.3 to read as follows:
§ 328.3
Definitions.
For the purpose of this regulation
these terms are defined as follows:
(a) Waters of the United States means:
(1) Waters which are:
(i) 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;
(ii) The territorial seas; or
(iii) Interstate waters, including
interstate wetlands;
(2) Impoundments of waters
otherwise defined as waters of the
United States under this definition,
other than impoundments of waters
identified under paragraph (a)(5) of this
section;
(3) Tributaries of waters identified in
paragraph (a)(1) or (2) 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) of this section;
(4) Wetlands adjacent to the following
waters:
(i) Waters identified in paragraph
(a)(1) of this section; or
(ii) Relatively permanent, standing or
continuously flowing bodies of water
identified in paragraph (a)(2) or (a)(3)(i)
of this section and with a continuous
surface connection to those waters; or
(iii) Waters identified in paragraph
(a)(2) or (3) of this section when the
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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) of
this section;
(5) Intrastate lakes and ponds,
streams, or wetlands not identified in
paragraphs (a)(1) through (4) of this
section:
(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) or (a)(3)(i) 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) of this section.
(b) The following are not ‘‘waters of
the United States’’ even where they
otherwise meet the terms of paragraphs
(a)(2) through (5) of this section:
(1) Waste treatment systems,
including treatment ponds or lagoons,
designed to meet the requirements of
the Clean Water Act;
(2) Prior converted cropland
designated by the Secretary of
Agriculture. The exclusion would cease
upon a change of use, which means that
the area is no longer available for the
production of agricultural commodities.
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;
(3) Ditches (including roadside
ditches) excavated wholly in and
draining only dry land and that do not
carry a relatively permanent flow of
water;
(4) Artificially irrigated areas that
would revert to dry land if the irrigation
ceased;
(5) Artificial lakes or ponds created by
excavating 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;
(6) Artificial reflecting or swimming
pools or other small ornamental bodies
of water created by excavating or diking
dry land to retain water for primarily
aesthetic reasons;
(7) 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
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water meets the definition of waters of
the United States; and
(8) Swales and erosional features (e.g.,
gullies, small washes) characterized by
low volume, infrequent, or short
duration flow.
(c) In this section, the following
definitions apply:
(1) 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.
(2) 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.’’
(3) 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.
(4) 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.
(5) 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.
(6) Significantly affect means a
material influence on the chemical,
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physical, or biological integrity of
waters identified in paragraph (a)(1) of
this section. To determine whether
waters, either alone or in combination
with similarly situated waters in the
region, have a material influence on the
chemical, physical, or biological
integrity of waters identified in
paragraph (a)(1) of this section, the
functions identified in paragraph
(c)(6)(i) of this section will be assessed
and the factors identified in paragraph
(c)(6)(ii) of this section will be
considered:
(i) Functions to be assessed:
(A) Contribution of flow;
(B) Trapping, transformation, filtering,
and transport of materials (including
nutrients, sediment, and other
pollutants);
(C) Retention and attenuation of
floodwaters and runoff;
(D) Modulation of temperature in
waters identified in paragraph (a)(1) of
this section; or
(E) Provision of habitat and food
resources for aquatic species located in
waters identified in paragraph (a)(1) of
this section;
(ii) Factors to be considered:
(A) The distance from a water
identified in paragraph (a)(1) of this
section;
(B) Hydrologic factors, such as the
frequency, duration, magnitude, timing,
and rate of hydrologic connections,
including shallow subsurface flow;
(C) The size, density, or number of
waters that have been determined to be
similarly situated;
(D) Landscape position and
geomorphology; and
(E) Climatological variables such as
temperature, rainfall, and snowpack.
Title 40—Protection of Environment
For reasons set out in the preamble,
40 CFR part 120 is amended as follows:
PART 120—DEFINITION OF WATERS
OF THE UNITED STATES
3. The authority citation for part 120
continues to read as follows:
■
Authority: 33 U.S.C. 1251 et seq.
■
4. Revise § 120.1 to read as follows:
§ 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.’’
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Fmt 4701
Sfmt 4700
3143
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.
■ 5. Revise § 120.2 to read as follows:
§ 120.2
Definitions.
For the purpose of this regulation
these terms are defined as follows:
(a) Waters of the United States means:
(1) Waters which are:
(i) 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;
(ii) The territorial seas; or
(iii) Interstate waters, including
interstate wetlands;
(2) Impoundments of waters
otherwise defined as waters of the
United States under this definition,
other than impoundments of waters
identified under paragraph (a)(5) of this
section;
(3) Tributaries of waters identified in
paragraph (a)(1) or (2) 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) of this section;
(4) Wetlands adjacent to the following
waters:
(i) Waters identified in paragraph
(a)(1) of this section; or
(ii) Relatively permanent, standing or
continuously flowing bodies of water
identified in paragraph (a)(2) or (a)(3)(i)
of this section and with a continuous
surface connection to those waters; or
(iii) Waters identified in paragraph
(a)(2) or (3) 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) of
this section;
(5) Intrastate lakes and ponds,
streams, or wetlands not identified in
paragraphs (a)(1) through (4) of this
section:
(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) or (a)(3)(i) 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) of this section.
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(b) The following are not ‘‘waters of
the United States’’ even where they
otherwise meet the terms of paragraphs
(a)(2) through (5) of this section:
(1) Waste treatment systems,
including treatment ponds or lagoons,
designed to meet the requirements of
the Clean Water Act;
(2) Prior converted cropland
designated by the Secretary of
Agriculture. The exclusion would cease
upon a change of use, which means that
the area is no longer available for the
production of agricultural commodities.
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;
(3) Ditches (including roadside
ditches) excavated wholly in and
draining only dry land and that do not
carry a relatively permanent flow of
water;
(4) Artificially irrigated areas that
would revert to dry land if the irrigation
ceased;
(5) Artificial lakes or ponds created by
excavating 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;
(6) Artificial reflecting or swimming
pools or other small ornamental bodies
of water created by excavating or diking
dry land to retain water for primarily
aesthetic reasons;
(7) 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; and
(8) Swales and erosional features (e.g.,
gullies, small washes) characterized by
low volume, infrequent, or short
duration flow.
(c) In this section, the following
definitions apply:
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(1) 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.
(2) 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.’’
(3) 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.
(4) 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.
(5) 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.
PO 00000
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Fmt 4701
Sfmt 9990
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.
(6) Significantly affect means a
material influence on the chemical,
physical, or biological integrity of
waters identified in paragraph (a)(1) of
this section. To determine whether
waters, either alone or in combination
with similarly situated waters in the
region, have a material influence on the
chemical, physical, or biological
integrity of waters identified in
paragraph (a)(1) of this section, the
functions identified in paragraph
(c)(6)(i) of this section will be assessed
and the factors identified in paragraph
(c)(6)(ii) of this section will be
considered:
(i) Functions to be assessed:
(A) Contribution of flow;
(B) Trapping, transformation, filtering,
and transport of materials (including
nutrients, sediment, and other
pollutants);
(C) Retention and attenuation of
floodwaters and runoff;
(D) Modulation of temperature in
waters identified in paragraph (a)(1) of
this section; or
(E) Provision of habitat and food
resources for aquatic species located in
waters identified in paragraph (a)(1) of
this section;
(ii) Factors to be considered:
(A) The distance from a water
identified in paragraph (a)(1) of this
section;
(B) Hydrologic factors, such as the
frequency, duration, magnitude, timing,
and rate of hydrologic connections,
including shallow subsurface flow;
(C) The size, density, or number of
waters that have been determined to be
similarly situated;
(D) Landscape position and
geomorphology; and
(E) Climatological variables such as
temperature, rainfall, and snowpack.
[FR Doc. 2022–28595 Filed 1–17–23; 8:45 am]
BILLING CODE 6560–50–P
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]]>Agencies
[Federal Register Volume 88, Number 11 (Wednesday, January 18, 2023)]
[Rules and Regulations]
[Pages 3004-3144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28595]
[[Page 3003]]
Vol. 88
Wednesday,
No. 11
January 18, 2023
Part II
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Part 328
Environmental Protection Agency
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40 CFR Part 120
Revised Definition of ``Waters of the United States''; Final Rule
Federal Register / Vol. 88, No. 11 / Wednesday, January 18, 2023 /
Rules and Regulations
[[Page 3004]]
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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-6027.4-01-OW]
RIN 2040-AG19
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) and the Department
of the Army (``the agencies'') are finalizing a rule defining the scope
of waters protected under the Clean Water Act. In developing this rule,
the agencies considered the text of the relevant provisions of the
Clean Water Act and the statute as a whole, the scientific record,
relevant Supreme Court case law, and the agencies' experience and
technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulations defining ``waters of the United
States.''
This final rule advances the objective of the Clean Water Act and
ensures 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: This action is effective on March 20, 2023.
ADDRESSES: The agencies have established a docket for this action under
Docket ID No. EPA-HQ-OW-2021-0602. All documents in the docket are
listed on the https://www.regulations.gov/ website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Whitney Beck, 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. 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?
III. Background
A. Legal Background
1. The Clean Water Act
2. The 1986 Regulations Defining ``Waters of the United States''
3. U.S. Supreme Court Decisions
4. Post-Rapanos Appellate Court Decisions
5. Post-Rapanos Implementation of the 1986 Regulations
B. The Agencies' Post-Rapanos Rules
1. The 2015 Clean Water Rule
2. The 2019 Repeal Rule
3. The 2020 Navigable Waters Protection Rule
4. Legal Challenges to the Rules
5. 2021 Executive Order and Review of the Navigable Waters
Protection Rule
C. Summary of Co-Regulator Engagement and Stakeholder Outreach
IV. Revised Definition of ``Waters of the United States''
A. Basis for This Rule
1. The Agencies Are Exercising the Authority Granted by Congress
To Define ``Waters of the United States'' Under the Clean Water Act
2. This Rule Advances the Objective of the Clean Water Act
3. The Scope of This Rule Is Limited Consistent With the Law,
the Science, and Agency Expertise
4. This Rule is Both Generally Familiar and Implementable
5. Public Comments Received and Agency Responses
B. Alternatives to This Rule
1. 2015 Clean Water Rule
2. 2019 Repeal Rule
3. 2020 NWPR
C. This Rule
1. Summary of This Rule
2. Traditional Navigable Waters, the Territorial Seas, and
Interstate Waters
3. Impoundments
4. Tributaries
5. Adjacent Wetlands
6. Waters Not Identified in Paragraphs (a)(1) Through (4)
7. Exclusions
8. Other Definitions
9. Significantly Affect
10. Guidance for Landowners on How To Know When Clean Water Act
Permits Are Required
D. Placement of the Definition of ``Waters of the United
States'' in the Code of Federal Regulations
E. Severability
F. Jurisdictional Determinations Issued Under Previous Rules
G. Implementation Tools
H. Publicly Available Jurisdictional Information and Permit Data
V. 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 Risks 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
K. Congressional Review Act
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 then-existing statutory framework,
designed to ``establish an all-encompassing program of water pollution
regulation.'' City of Milwaukee v. Illinois, 451 U.S. 304, 317-18
(1981) (citation omitted). 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 broadly in the
Act as ``the waters of the United States, including the territorial
seas.'' 33 U.S.C. 1362(7). This term is relevant to the scope of
[[Page 3005]]
most Federal programs to protect water quality under the Clean Water
Act--for example, water quality standards, permitting to address
discharges of pollutants, including discharges of dredged or fill
material, processes to address impaired waters, oil spill prevention,
preparedness and response programs, and Tribal and State water quality
certification programs--because the Clean Water Act uses the term
``navigable waters'' in establishing such programs.
---------------------------------------------------------------------------
\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 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.''
---------------------------------------------------------------------------
As a unanimous Supreme Court concluded decades ago, Congress
delegated a ``breadth of federal regulatory authority'' in the Clean
Water Act and expected the Environmental Protection Agency (EPA) and
the Department of the Army (``the agencies'') to tackle the ``inherent
difficulties of defining precise bounds to regulable waters.'' United
States v. Riverside Bayview Homes, 474 U.S. 121, 134 (1985)
(``Riverside Bayview''). The Supreme Court noted that ``[f]aced with
such a problem of defining the bounds of its regulatory authority, an
agency may appropriately look to the legislative history and underlying
policies of its statutory grants of authority.'' Id. at 132. The Court
went on to state that ``[p]rotection 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 (citations
omitted). The Supreme Court has twice more addressed the complex 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'').
This rule takes up that multi-faceted challenge. In developing this
rule, the agencies considered the text of the relevant provisions of
the Clean Water Act and the statute as a whole, the scientific record,
relevant Supreme Court case law, and the agencies' experience and
technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulations defining ``waters of the United
States.'' The agencies' experience includes more than a decade of
implementing those regulations consistent with the Supreme Court's
decisions in Riverside Bayview, SWANCC, and Rapanos. The agencies also
considered the extensive public comments on the proposed rule.
This rule establishes limits that appropriately draw the boundary
of waters subject to Federal protection. When upstream waters
significantly affect the integrity of waters for which the Federal
interest is indisputable--the traditional navigable waters, the
territorial seas, and interstate waters--this rule ensures that Clean
Water Act programs apply to protect those paragraph (a)(1) waters by
including such upstream waters within the scope of the ``waters of the
United States.'' Where waters do not significantly affect the integrity
of waters for which the Federal interest is indisputable, this rule
leaves regulation exclusively to the Tribes and States.\2\
Additionally, it is important to note that the fact that a water is one
of the ``waters of the United States'' does not mean that no activity
can occur in that water; rather, it means that activities must comply
with the Clean Water Act's permitting programs, and those programs
include numerous statutory exemptions and regulatory exclusions.
---------------------------------------------------------------------------
\2\ As explained in section IV.A.3.a.ii of this preamble, the
agencies find it appropriate to assert Federal jurisdiction over
waters meeting the relatively permanent standard in addition to
waters meeting the significant nexus standard because--though the
relatively permanent standard identifies only a subset of the
``waters of the United States''--it provides important efficiencies
and additional clarity for regulators and the public by more readily
identifying a subset of waters that will virtually always
significantly affect paragraph (a)(1) waters; i.e., those waters for
which the Federal interest is indisputable. By promulgating a rule
interpreting the Clean Water Act to cover waters that meet the
relatively permanent standard or the significant nexus standard, the
agencies have appropriately construed the Act to protect those
waters necessary to protect the integrity of traditional navigable
waters, the territorial seas, and interstate waters, while leaving
regulatory authority over all the waters that do not have the
requisite connection to paragraph (a)(1) waters exclusively to the
Tribes and States.
---------------------------------------------------------------------------
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). This rule is founded on that familiar pre-2015
definition that has bounded the Clean Water Act's protections for
decades, has been codified multiple times, and has been implemented by
every administration in the last 45 years.\3\ The pre-2015 regulations
are commonly referred to as ``the 1986 regulations,'' and this preamble
will refer to them as such, but the agencies note that ``the 1986
regulations'' have largely been in place since 1977 and were also
amended in 1993 to add an exclusion.\4\
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\3\ The Corps' 1977 regulations (42 FR 37122, 37144 (July 19,
1977)), though organized differently than their 1986 regulations,
contained many of the same categories as those later regulations,
and its definition of ``adjacent'' was identical to the definition
promulgated in 1986. EPA's 1979 regulations (44 FR 32854, 32901
(June 7, 1979)) were substantially similar to the Corps' 1977
regulations and added for the first time an exclusion for waste
treatment systems. In 1986 and 1988, the Corps and EPA,
respectively, promulgated nearly identical definitions of ``waters
of the United States.'' 51 FR 41206, 41217 (November 13, 1986); 53
FR 20764, 20765 (June 6, 1988). Besides the addition of an exclusion
for prior converted cropland in 1993 (58 FR 45008, 45031 (August 25,
1993)), the agencies' regulations defining ``waters of the United
States'' remained unchanged until the agencies finalized the 2015
Clean Water Rule (80 FR 37054, 37104 (June 29, 2015)). In 2019, the
agencies repromulgated their pre-2015 regulations (84 FR 56626,
56667 (October 22, 2019)).
\4\ For convenience, in this preamble the agencies 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.'' These references are
inclusive of EPA's comparable regulations that were recodified in
1988 and of the exclusion for prior converted cropland, which both
agencies added in 1993.
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Since 2015, the agencies have finalized three rules revising the
definition of ``waters of the United States.'' See 80 FR 37054 (June
29, 2015); 84 FR 56626 (October 22, 2019); 85 FR 22250 (April 21,
2020). The most recent rule, the 2020 ``Navigable Waters Protection
Rule'' (``2020 NWPR''), substantially departed from prior rules
defining ``waters of the United States.'' 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,'' directing all executive
departments and agencies to immediately review and, as appropriate and
consistent with applicable law, take action to address the promulgation
of Federal regulations and other actions that conflict with national
policies of science-based decision making in order to improve public
health, protect our environment, and ensure access to clean air and
water. 86 FR 7037 (published January 25, 2021, signed January 20,
2021). After completing a review of and reconsidering the record for
the 2020 NWPR, on June 9, 2021, the agencies announced their intention
to revise or replace the rule. The 2020 NWPR was subsequently vacated
by two district courts, as discussed further below.
In this rule, consistent with the general framework of the 1986
regulations, the agencies interpret the term ``waters of the United
States'' to include:
traditional navigable waters, the territorial seas, and
interstate waters (``paragraph (a)(1) waters'');
impoundments of ``waters of the United States''
(``paragraph (a)(2) impoundments'');
tributaries to traditional navigable waters, the
territorial seas, interstate waters, or paragraph (a)(2)
[[Page 3006]]
impoundments when the tributaries meet either the relatively permanent
standard or the significant nexus standard (``jurisdictional
tributaries'');
wetlands adjacent to paragraph (a)(1) waters, wetlands
adjacent to and with a continuous surface connection to relatively
permanent paragraph (a)(2) impoundments, wetlands adjacent to
tributaries that meet the relatively permanent standard, and wetlands
adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries
when the wetlands meet the significant nexus standard (``jurisdictional
adjacent wetlands''); and
intrastate lakes and ponds, streams, or wetlands not
identified in paragraphs (a)(1) through (4) that meet either the
relatively permanent standard or the significant nexus standard
(``paragraph (a)(5) waters'').
The ``relatively permanent standard'' refers to the test to
identify relatively permanent, standing or continuously flowing waters
connected to paragraph (a)(1) waters, and waters with a continuous
surface connection to such relatively permanent waters or to
traditional navigable waters, the territorial seas, or interstate
waters. The ``significant nexus standard'' refers to the test to
identify 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, the
territorial seas, or interstate waters--i.e., the paragraph (a)(1)
waters. The regulatory text defines ``significantly affect'' in order
to increase the clarity and consistency of implementation of the
significant nexus standard.
With respect to ``adjacent wetlands,'' the concept of adjacency and
the significant nexus standard create separate, additive limitations
that work together to ensure that such wetlands are covered (i.e.,
jurisdictional under the Act) when they have the necessary relationship
to other covered waters. The adjacency limitation focuses on the
relationship between the wetland and the covered water to which it is
adjacent. Consistent with the plain meaning of the term and the
agencies' 45-year-old definition of ``adjacent,'' the rule requires
that an ``adjacent wetland'' be ``bordering, contiguous, or
neighboring'' to another covered water.\5\ Where a wetland is adjacent
to a traditional navigable water, the territorial seas, or an
interstate water, consistent with longstanding regulations and
practice, no further inquiry is required, and the wetland is
jurisdictional. But where a wetland is adjacent to a covered water that
is not a traditional navigable water, the territorial seas, or an
interstate water, such as a tributary, this rule requires an additional
showing for that adjacent wetland to be covered: the wetland must
satisfy either the relatively permanent standard or the significant
nexus standard. And that inquiry, under either standard, fundamentally
concerns the adjacent wetland's relationship to the relevant paragraph
(a)(1) water rather than the relationship between the adjacent wetland
and the covered water to which it is adjacent. In other words, the
adjacent wetland must have a continuous surface connection to a
relatively permanent, standing or continuously flowing water connected
to a paragraph (a)(1) water or must either alone or in combination with
similarly situated waters significantly affect the chemical, physical,
or biological integrity of a paragraph (a)(1) water.
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\5\ The agencies have a longstanding, specific definition of
``adjacent,'' and section IV.C.6 of this preamble provides
additional clarity by articulating the criteria the agencies have
long used to interpret and implement that definition.
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In addition, this rule codifies several exclusions from the
definition of ``waters of the United States,'' including longstanding
exclusions for prior converted cropland and waste treatment systems,
and for features that were generally considered non-jurisdictional
under the pre-2015 regulatory regime.\6\
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\6\ 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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This rule advances the Clean Water Act's statutory objective as it
is informed by the best available science concerning the functions
provided by upstream tributaries, adjacent wetlands, as well as
intrastate lakes and ponds, streams, and wetlands that do not fall
within the other jurisdictional categories to restore and maintain the
water quality of traditional navigable waters, the territorial seas,
and interstate waters (i.e., the paragraph (a)(1) waters). 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 \7\
(hereinafter, ``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 Technical Support Document for the Final
Rule: Revised Definition of ``Waters of the United States''
(hereinafter, ``Technical Support Document'') provides additional
scientific and technical information about issues raised in this
rule.8 9
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\7\ 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.
\8\ 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 Science Report and that contain
findings relevant to the report's conclusions.
\9\ Throughout this preamble, when the agencies refer to
``science,'' that means foundational principles related to chemical,
physical, and biological integrity, including biology, hydrology,
geology, chemistry, and soil science; the Science Report; and the
Technical Support Document for this rule.
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The agencies' interpretation also reflects consideration of the
statute as a whole, including both its objective in section 101(a) and
its policies, such as that of section 101(b), which states in part 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, [and] to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources.'' 33 U.S.C. 1251(b). The agencies find that the scope of
Clean Water Act jurisdiction established in this final rule enhances
States' ability to protect waters within their borders, such as by
participating in the section 401 certification process and by providing
input during the permitting process for out-of-state section 402 and
404 permits that may affect their waters. See 33 U.S.C. 1341, 1342(b),
1344(h)(1)(E). Indeed, in implementing and participating in the Clean
Water Act's regulatory requirements and framework, States can have more
powerful and holistic tools for addressing water quality than they
would have in implementing state-only laws and regulations.
Further, this rule is based on the agencies' conclusion that the
significant nexus standard is consistent with the statutory text and
legislative history, advances the objective of the Clean Water Act, is
informed by the scientific record and Supreme Court case law, and
appropriately considers the policies of the Act. The agencies have also
determined that the relatively permanent standard is appropriate to
include in this rule because, while it
[[Page 3007]]
identifies only a subset of the ``waters of the United States,'' it
also provides important efficiencies and additional clarity for
regulators and the public by more readily identifying a subset of
waters that will virtually always significantly affect paragraph (a)(1)
waters. In addition, because this rule is founded upon a longstanding
regulatory framework and reflects the agencies' experience and
expertise, as well as updates in implementation tools and resources, it
is generally familiar to the public and implementable. The
clarifications in this rule, including the addition of exclusions that
codify longstanding practice, and review of the advancements in
implementation resources, tools, and scientific support (see section
IV.G of this preamble) address many of the concerns raised in the past
about timeliness and consistency of jurisdictional determinations under
the Clean Water Act.
By contrast, the agencies conclude that the 2020 NWPR, which
substantially departed from prior rules defining ``waters of the United
States,'' is incompatible with the objective of the Clean Water Act and
inconsistent with the text of relevant provisions of the statute, the
statute as a whole, relevant case law, and the best available science.
The 2020 NWPR found jurisdiction primarily under the relatively
permanent standard. The agencies have concluded that while the
relatively permanent standard is administratively useful by more
readily identifying a subset of waters that will virtually always
significantly affect paragraph (a)(1) waters, it is insufficient as the
sole test for Clean Water Act jurisdiction. Sole reliance on the
relatively permanent standard's extremely limited approach has no
grounding in the Clean Water Act's text, structure, or history.
Limiting determinations to that standard alone upends an understanding
of the Clean Water Act's coverage that has prevailed for nearly half a
century. The relatively permanent standard as the exclusive
jurisdictional test would seriously compromise the Clean Water Act's
comprehensive scheme by denying any protection to tributaries that are
not relatively permanent and adjacent wetlands that do not have a
continuous surface connection to other jurisdictional waters. The
exclusion of these waters runs counter to the science demonstrating how
such waters can affect the integrity of larger downstream waters,
including traditional navigable waters, the territorial seas, and
interstate waters. The agencies have concluded that the relatively
permanent standard should still be included in the rule in conjunction
with the significant nexus standard because the subset of waters that
meet the relatively permanent standard will virtually always have the
requisite connection \10\ to traditional navigable waters, the
territorial seas, or interstate waters to properly fall within the
Clean Water Act's scope. The relatively permanent standard is also
administratively useful as it more readily identifies a subset of
waters that will virtually always significantly affect paragraph (a)(1)
waters.
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\10\ Throughout this preamble, the agencies' reference to a
``connection'' to traditional navigable waters, the territorial
seas, or interstate waters (when used without qualification such as
``continuous surface connection'' or an ``unbroken surface or
shallow subsurface connection'') includes all the types of
connections relevant to either the relatively permanent standard or
the significant nexus standard: physical (including hydrological),
chemical, biological, or functional relationships (including where
the water retains floodwaters or pollutants that would otherwise
flow to the traditional navigable water, the territorial seas, or an
interstate water). See Technical Support Document section III. A
``requisite'' connection is one that satisfies either the relatively
permanent or significant nexus standard.
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Following a Federal district court decision vacating the 2020 NWPR
on August 30, 2021, the agencies halted implementation of the 2020 NWPR
and began interpreting ``waters of the United States'' consistent with
the pre-2015 regulatory regime.\11\ For the reasons discussed more
fully below, the agencies have decided that replacement of the 2020
NWPR is vital.
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\11\ See Pascua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949 (D.
Ariz. 2021); U.S. EPA, Current Implementation of Waters of the
United States, https://www.epa.gov/wotus/current-implementation-waters-united-states; U.S. Army Corps of Engineers, Navigable Waters
Protection Rule Vacatur (published January 5, 2022), https://www.usace.army.mil/Media/Announcements/Article/2888988/5-january-2022-navigable-waters-protection-rule-vacatur/.
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Through the rulemaking process, the agencies have considered all
timely public comments on the proposed rule, including changes that
improve the clarity, implementability, and durability of the
definition. The regulations established in this rule are founded on the
familiar framework of the 1986 regulations and are generally consistent
with the pre-2015 regulatory regime. They are fully consistent with the
statute, informed by relevant Supreme Court decisions, and reflect the
record before the agencies, including consideration of the best
available science, as well as the agencies' expertise and experience
implementing the pre-2015 regulatory regime. In addition, this final
rule increases clarity and implementability by streamlining and
restructuring the 1986 regulations and providing implementation
guidance informed by sound science, implementation tools including
modern assessment tools, and other resources.
II. General Information
A. What action are the agencies taking?
In this action, the agencies are publishing a final 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?
The agencies prepared the Economic Analysis for the Final ``Revised
Definition of `Waters of the United States' '' Rule (hereinafter,
``Economic Analysis for the Final Rule''), available in the rulemaking
docket, for informational purposes to analyze the potential costs and
benefits associated with this final action. This rule establishing the
definition of ``waters of the United States'' does not by itself impose
costs or benefits. Potential costs and benefits would only be incurred
as a result of actions taken under existing Clean Water Act programs
relying on the definition of ``waters of the United States'' (i.e.,
sections 303, 311, 401, 402, and 404). The agencies analyze the
potential costs and benefits against two baselines: the current status
quo and the vacated 2020 NWPR. The findings of this analysis for the
primary baseline of the current status quo conclude that there are de
minimis costs and benefits associated with this rulemaking. The
findings of this analysis for the secondary baseline of the 2020 NWPR
conclude that within the ranges of indirect costs and benefits
considered, benefits consistently outweigh the costs. The analysis is
summarized in section V.A of this preamble.
III. 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. 911, 92d Cong., 2d Sess. at 66 (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
[[Page 3008]]
Nation's waters.'' 33 U.S.C. 1251(a). The Clean Water 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. A centerpiece of that comprehensive
framework is the term ``navigable waters,'' which the Clean Water Act
broadly defines as ``the waters of the United States, including the
territorial seas.'' 33 U.S.C. 1362(7). Waters satisfying that
definition are often called ``covered'' or ``jurisdictional'' waters
because the term ``navigable waters'' appears in most of the Clean
Water Act's key programs, including those for water quality standards,
oil-spill prevention, and permits regulating the discharge of
pollutants.
a. History of the Clean Water Act
Prior to 1972, the Federal Government's authority to control and
redress pollution in the nation's waters largely fell to the U.S. Army
Corps of Engineers (Corps) under the Rivers and Harbors Act of 1899.
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.\12\ 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,
Congress subsequently concluded 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) (citing S. Rep. No. 92-
414, p. 7 (1971)).
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\12\ The 1948 Act was enacted ``in connection with the exercise
of jurisdiction over the waterways of the Nation'' and focused
specifically on the protection of water quality in interstate waters
and tributaries of interstate waters. See Public Law 80-845, 62
Stat. 1155 (1948). Congress's 1956 amendments to the Act
strengthened measures for controlling pollution of interstate waters
and their tributaries. Public Law 84-660, 70 Stat. 498 (1956). In
1961, Congress amended the Act to substitute the term ``interstate
or navigable waters'' for ``interstate waters.'' See Public Law 87-
88, 75 Stat. 208 (1961). Accordingly, beginning in 1961, the Act's
provisions applied to all interstate waters and navigable waters and
to the tributaries of each. See 33 U.S.C. 466a, 466g(a) (1964). The
1965 amendments established the requirement that states develop
water quality standards for interstate waters. Public Law 89-234, 79
Stat. 903, 908, 909 (1965).
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As a result, in 1972, Congress performed ``a `total restructuring'
and `complete rewriting' of the existing'' statutory framework. Id. 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 Act,
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. at 133; 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'' has a
broad, specialized definition: ``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 of ``navigable waters'' to encompass all the ``waters of the
United States.'' Id. The relevant House bill would have defined
``navigable waters'' as the ``navigable waters of the United States,
including the territorial seas.'' H.R. Rep. No. 911, 92d Cong., 2d
Sess. 356 (1972) (emphasis omitted). But in conference the word
``navigable'' was deleted from that definition, and the conference
report urged that the term ``be given the broadest possible
constitutional interpretation.'' S. Conf. Rep. No. 1236, 92d Cong., 2d
Sess. 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.
In 1977, Congress substantially amended the Clean Water Act while
leaving unchanged the 1972 definition of ``navigable waters.'' See
Clean Water Act of 1977 (1977 Act), Public Law 95-217, 91 Stat. 1566.
In the run-up to those amendments, Congress considered proposals to
amend section 404, which requires a permit for discharges of dredged or
fill material into ``waters of the United States,'' and debate on those
proposals ``centered largely on the issue of wetlands preservation.''
SWANCC, 531 U.S. at 170 (citation omitted). The legislative proposal
followed the Corps' 1975 rulemaking, which defined the scope of
``waters of the United States'' to cover all of the following waters,
but phased Corps' regulation of discharges of dredged or fill material
into these waters in three phases: first, into ``coastal waters and
coastal wetlands contiguous or adjacent thereto or into inland
navigable waters of the United States and freshwater wetlands
contiguous or adjacent thereto;'' second, into ``primary tributaries,
freshwater wetlands contiguous or adjacent to primary tributaries, and
lakes;'' and third, ``into intrastate lakes, rivers and streams
landward to their ordinary high water mark''. 40 FR 31320, 31324, 31326
(July 25, 1975); see section III.A.2 of this preamble infra for further
discussion of the phased rulemaking through which the Corps established
a definition of ``waters of the United States'' and the dates when the
Corps began regulating activities under that definition. The House
passed a bill that would have limited the waters and adjacent wetlands
to which section 404 applies. H.R. 3199, 95th Cong., section 16 (1977).
Many legislators objected, with one characterizing the proposed
limitation as an ``open invitation'' to pollute other
[[Page 3009]]
wetlands. 123 Cong. Rec. 26,725 (1977) (statement of Sen. Hart); see
id. at 26,714-26,716. The Senate ultimately rejected the proposal. Id.
at 26,728; cf. S. Rep. No. 370, 95th Cong., 1st Sess. 10 (1977).
Congress instead modified the Clean Water Act in other respects.
Rather than alter the geographic reach of section 404 in 1977, Congress
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.\13\ 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 to administer the section 404 permitting
program. Id. at 1344(g)(1). In so doing, however, Congress limited
States' potential jurisdiction to waters ``other than those waters
which are presently used, or are susceptible to use in their natural
condition or by reasonable improvement as a means to transport
interstate or foreign commerce shoreward to their ordinary high water
mark, including all waters which are subject to the ebb and flow of the
tide shoreward to their mean high water mark, or mean higher high water
mark on the west coast, including wetlands adjacent thereto.'' Id. The
Corps retains jurisdiction to issue permits in those waters. See
section IV.A.2.b for additional analysis of the Corps' regulations, the
text of the 1977 amendments, and their legislative history for purposes
of construing the scope of ``waters of the United States.''
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\13\ Whereas individual permits are issued directly to an
individual discharger, a ``general permit'' may provide coverage for
multiple dischargers. See also preamble section III.A.1.b for
additional discussion of general permits.
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b. Clean Water Act Programs
The term ``navigable waters'' is used in most of the key programs
established by the Clean Water Act, including the section 402 National
Pollutant Discharge Elimination System (NPDES) permit program; the
section 404 permit program for dredged or fill material; the section
311 oil spill prevention, preparedness, and response program; \14\ the
water quality standards, impaired waters, and total maximum daily load
programs under section 303; and the section 401 Tribal and State water
quality certification process. While there is only one definition of
``waters of the United States'' for purposes of the Clean Water Act,
there may be other statutory factors that define the reach of a
particular Clean Water Act program or provision.\15\
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\14\ While Clean Water Act section 311 uses the phrase
``navigable waters of the United States,'' EPA has interpreted it to
have the same breadth as the phrase ``navigable waters'' used
elsewhere in section 311, and in other sections of the Clean Water
Act. See United States v. Texas Pipe Line Co., 611 F.2d 345, 347
(10th Cir. 1979); United States v. Ashland Oil & Transp. Co., 504
F.2d 1317, 1324-25 (6th Cir. 1974). In 2002, EPA revised its
regulations defining ``waters of the United States'' in 40 CFR part
112 to ensure that the rule's language was consistent with the
regulatory language used in other Clean Water Act programs. Oil
Pollution Prevention & Response; Non-Transportation-Related Onshore
& Offshore Facilities, 67 FR 47042 (July 17, 2002). A district court
vacated the rule for failure to comply with the Administrative
Procedure Act and reinstated the prior regulatory language. American
Petroleum Ins. v. Johnson, 541 F. Supp. 2d 165 (D.D.C. 2008).
However, EPA interprets ``navigable waters of the United States'' in
Clean Water Act section 311(b), in both the pre-2002 regulations and
the 2002 rule, to have the same meaning as ``navigable waters'' in
Clean Water Act section 502(7).
\15\ For example, the Clean Water Act section 402 permit program
regulates discharges of pollutants from ``point sources'' to
``navigable waters'' whether the pollutants reach jurisdictional
waters directly or indirectly. See Rapanos, 547 U.S. at 743
(plurality); see also County of Maui, Hawaii v. Hawaii Wildlife
Fund, 140 S. Ct. 1462, 1476 (2020) (holding that the statute also
requires a permit ``when there is the functional equivalent of a
direct discharge''). Section 402 also regulates ``any addition of
any pollutant to the waters of the contiguous zone or the ocean from
any point source other than a vessel or other floating craft.'' See
33 U.S.C. 1362(12). As another example, section 311 applies to
``discharges of oil or hazardous substances into or upon the
navigable waters of the United States, adjoining shorelines, or into
or upon the waters of the contiguous zone, or in connection with
activities under the Outer Continental Shelf Lands Act [43 U.S.C.
1331 et seq.] or the Deepwater Port Act of 1974 [33 U.S.C. 1501 et
seq.], or which may affect natural resources belonging to,
appertaining to, or under the exclusive management authority of the
United States (including resources under the Magnuson-Stevens
Fishery Conservation and Management Act [16 U.S.C. 1801 et seq.]).''
33 U.S.C. 1321(b)(1).
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EPA administers the Clean Water Act except as otherwise explicitly
provided. 33 U.S.C. 1251(d). The United States Attorney General long
ago determined that the ``ultimate administrative authority to
determine the reach of the term `navigable waters' for purposes of
Sec. 404'' resides with EPA. 43 Op. Att'y Gen. 197 (1979). The Act
provides for the Federal Government to implement some Clean Water Act
programs, and it gives direct grants of authority to authorized Tribes
as well as States for implementation and enforcement of others. In some
cases, the Act provides authorized Tribes and States the option to take
on certain Clean Water Act programs.\16\ Eligible Tribes or States
implement the section 401 program and may request approval by EPA to
administer a Clean Water Act section 402 or 404
program.17 18 Moreover, consistent with the Clean Water Act,
Tribes and States retain authority to implement their own programs to
protect the waters in their jurisdiction more broadly and more
stringently than the Federal Government. Section 510 of the Clean Water
Act provides that, unless expressly stated, nothing in the Clean Water
Act precludes or denies the right of any Tribe or State to establish
more protective standards or limits than the Clean Water Act.\19\ For
example, many Tribes and States regulate groundwater, and some others
protect vital wetlands that may be outside the scope of the Clean Water
Act.
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\16\ The Clean Water Act defines ``state'' as ``a State, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and the Trust Territory of the Pacific Islands.''
33 U.S.C. 1362(3). Clean Water Act section 518(e), which is part of
the 1987 amendments to the Act, authorizes EPA to treat eligible
federally recognized Tribes in a similar manner as a State for
implementing and managing certain environmental programs. 33 U.S.C.
1377(e).
\17\ All States and 79 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 47 Tribes have established water quality
standards pursuant to section 303 of the Clean Water Act, which form
a legal basis for limitations on discharges of pollutants to
``waters of the United States.'' Three States are authorized to
administer a section 404 program for certain waters in their
boundaries.
\18\ As noted in section III.A.1.a of this preamble, when a
Tribe or State assumes a section 404 program, the Corps retains
permitting authority over certain waters. The scope of Clean Water
Act jurisdiction as defined by ``waters of the United States'' is
distinct from the scope of waters over which the Corps retains
authority following Tribal or State assumption of the section 404
program. Corps-retained waters are identified during approval of a
Tribal or State section 404 program, and any modifications are
approved through a formal EPA process. 40 CFR 233.36. This rule does
not address the scope of Corps-retained waters, and nothing in this
rule should affect the process for determining the scope of Corps-
retained waters.
\19\ 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 preamble
may also include eligible Tribes.
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In addition to section 301(a) which regulates discharges of
pollutants to jurisdictional waters, many other provisions of the Clean
Water Act operate based on the definition of ``waters of the United
States.'' For example, under section 303, water quality standards and
total maximum daily loads are not required under the Clean Water Act
for waters that are not ``waters of the United States,'' and Tribes and
States have no authority to provide certifications under section 401
[[Page 3010]]
with water quality conditions for a permit or license issued by a
Federal agency for an activity that does not result in a discharge to
``waters of the United States.''
Under section 402 of the Clean Water Act, an NPDES permit is
required where a point source discharges a pollutant to ``waters of the
United States.'' \20\ Clean Water Act section 404 requires a permit
before dredged or fill material may be discharged to ``waters of the
United States,'' with regulatory exemptions for certain farming,
ranching, and forestry activities. No section 404 permits are required
for discharging dredged or fill material into waters or features that
are not ``waters of the United States.''
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\20\ The term ``point source'' is defined in Clean Water Act
section 502(14) and 40 CFR 122.2 to include ``any discernible,
confined and discrete conveyance . . . from which pollutants are or
may be discharged.'' This definition specifically excludes return
flows from irrigated agriculture and agricultural stormwater runoff.
See also supra note 15 (discussing discharges of pollutants subject
to the section 402 program).
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Section 303(c) of the Clean Water Act requires States to establish
water quality standards for ``waters of the United States.'' States
must periodically review their water quality standards and modify or
adopt standards as required by the Clean Water Act or as otherwise
appropriate. States must submit new or revised standards for EPA
review. Water quality standards are the foundation for a wide range of
programs under the Clean Water Act. They serve multiple purposes
including establishing the water quality goals for a specific
waterbody, or portion thereof, and providing the regulatory basis for
establishing water quality-based effluent limits beyond the technology-
based levels of treatment required by the Clean Water Act. Water
quality standards also serve as a target for Clean Water Act
restoration goals such as total maximum daily loads.
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. For waters identified on a 303(d) list,
States establish total maximum daily loads for all pollutants
preventing or expected to prevent attainment of water quality
standards. Section 303(d) applies to ``waters of the United States.''
Non-jurisdictional waterbodies are not required to be assessed or
otherwise identified as impaired. Total maximum daily load restoration
plans likewise apply only 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 pay for or
reimburse costs of assessing and responding to oil spills to ``waters
of the United States'' or adjoining shorelines or the Exclusive
Economic Zone.\21\ The OSLTF allows an immediate response to a spill,
including containment, countermeasures, cleanup, and disposal
activities. The OSLTF can only reimburse Tribes or States for cleanup
costs and damages to businesses and citizens (e.g., lost wages and
damages) for spills affecting waters subject to Clean Water Act
jurisdiction. EPA also lacks authority under the Clean Water Act to
take enforcement actions based on spills solely affecting waters not
subject to Clean Water Act jurisdiction under section 311(b). Moreover,
section 311's requirements for oil spill and prevention plans only
apply to those facilities where there is a reasonable expectation that
an oil discharge could reach a jurisdictional water or adjoining
shoreline or the Exclusive Economic Zone.
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\21\ See 33 U.S.C. 1321(b) for the full jurisdictional scope of
Clean Water Act section 311.
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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 \22\ 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, 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 that facility could reach a
jurisdictional water or adjoining shoreline or the Exclusive Economic
Zone.
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\22\ See supra note 14.
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Clean Water Act section 401 provides authorized Tribes and States
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 and licenses are
required and thus where section 401 certification applies. Section 401
prohibits Federal agencies from issuing permits or licenses for
activities that may result in a discharge to ``waters of the United
States'' until after the State or authorized Tribe where the discharge
would originate has granted or waived water quality certification.
The fact that a resource meets the definition of ``waters 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. For example, 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 33 U.S.C. 1342(l)(2), 1362(14). As discussed above,
since 1977 the Clean Water Act in section 404(f) has exempted
activities such as many ``normal farming, silviculture, and ranching
activities'' from the section 404 permitting requirement, including
seeding, harvesting, cultivating, planting, and soil and water
conservation practices. Id. at 1344(f)(1). This rule does not affect
these statutory exemptions.
In addition, permits are routinely issued under Clean Water Act
sections 402 and 404 to authorize certain discharges to ``waters of the
United States.'' Further, under both permitting programs, the agencies
have established general permits for a wide variety of activities that
have minimal impacts to waters. General permits provide dischargers
with knowledge about applicable requirements before dischargers may
obtain coverage under them. Furthermore, obtaining coverage under a
general permit is typically quicker than obtaining coverage under an
individual permit, with coverage under a general permit often occurring
immediately (depending on how the permit is written) or after a short
waiting period. The permitting authority \23\ generally works with
permit applicants to ensure that activities can occur without harming
the integrity of the nation's waters. Thus, the permitting programs
allow for discharges to ``waters of the United States'' to occur while
also ensuring that those discharges meet statutory and regulatory
requirements designed to protect water quality.
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\23\ Generally, the permitting authority is either EPA or an
authorized State for the NPDES program and either the Corps or an
authorized State for the section 404 program. No eligible Tribes
have authority to administer a Clean Water Act section 402 or
section 404 program at this time.
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[[Page 3011]]
In issuing section 404 permits, the Corps or authorized State works
with the applicant to avoid, minimize, and compensate for any
unavoidable impacts to ``waters of the United States.'' For most
discharges that ``will cause only minimal adverse environmental
effects,'' a general permit (e.g., a ``nationwide'' permit) may be
suitable. 33 U.S.C. 1344(e)(1). 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 or the State, others allow
the applicant to proceed with no formal notification. The general
permit process allows certain activities to proceed with little or no
delay, provided 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 can be
considered for a general permit, where the activity meets the threshold
limits and only results in minimal impacts, individually and
cumulatively. Tribes and States can also have a role in Corps section
404 permit decisions, through State Programmatic General Permits
(SPGPs), Regional General Permits (RGPs), and water quality
certification.
Property owners may obtain a jurisdictional determination from the
Corps.\24\ A jurisdictional determination is a written Corps document
indicating whether a water is subject to regulatory jurisdiction under
section 404 of the Clean Water Act (33 U.S.C. 1344) or 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. An approved jurisdictional determination (AJD) is ``a 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.'' 33 CFR 331.2. An approved
jurisdictional determination is administratively appealable and is a
final agency action subject to judicial review. U.S. Army Corps of
Engineers v. Hawkes Co., Inc., 578 U.S. 590 (2016). A preliminary
jurisdictional determination (PJD) is a non-binding ``written
indication that there may be waters of the United States on a parcel or
indications of the approximate location(s) of waters of the United
States on a parcel.'' 3 CFR 331.2. 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. The Corps does not charge a fee for these jurisdictional
determinations. See 33 CFR 325.1 (omitting mention of fees for
jurisdictional determinations); Regulatory Guidance Letter 16-01 (2016)
(stating that such determinations are issued as a ``public service'').
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\24\ When a Tribe, State, or territory is approved to administer
the Clean Water Act section 404 program for certain waters, it is
responsible for decisions on whether or not a section 404 permit is
required.
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2. The 1986 Regulations Defining ``Waters of the United States''
In 1973, EPA published regulations defining ``navigable waters'' 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'' for purposes of section 404 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'').\25\
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\25\ See Lance Wood, Don't Be Misled: CWA Jurisdiction Extends
to All Non-Navigable Tributaries of the Traditional Navigable Waters
and to Their Adjacent Wetlands, 34 Envtl. L. Rptr. (Envtl. L. Inst.)
10,187 (2004) (explaining history and limitations of the 1974 Corps
regulation as an interpretation of the scope of the Clean Water
Act).
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Around the same time, several Federal courts found that limiting
``waters of the United States'' to those that are navigable-in-fact is
an unduly restrictive reading of the Act. See, e.g., United States v.
Holland, 373 F. Supp. 665, 670-676 (M.D. Fla. 1974) (``Holland'');
Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685,
686 (D.D.C. 1975) (``Callaway''). EPA and the House Committee on
Government Operations agreed with the decision in Holland.\26\ In
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.'' Callaway, 392 F. Supp. at
686.
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\26\ 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. 1396, 93d Cong.,
2d Sess. 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).
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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), (e)(2) (1976). The court required that the
Corps put forth a new definition within a short timeframe. The
regulatory phased-in approach was to ensure enough time for the Corps
to build up their resources to implement the expanded jurisdiction and
workload. Thus, the phases did not mean all of the waters in the final
regulation were not ``waters of the United States,'' but rather
established when the Corps would begin regulating activities within
each type of jurisdictional water.\27\ The interim regulations revised
the definition of ``waters of the United States'' to include waters not
covered by the other regulatory provisions. 33 CFR 209.120(d)(2)(i)
(1976).\28\ On July 19, 1977, the Corps published its final
regulations, in which it revised the 1975 interim regulations to
clarify many of
[[Page 3012]]
the definitional terms for purposes of section 404. 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).\29\
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\27\ See Wood, supra note 25.
\28\ 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 after 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 after 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).
\29\ An explanatory footnote published in the Code of Federal
Regulations stated that this paragraph ``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).
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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 41206, 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, were identical and
remained largely unchanged from 1977 to 2015. See 42 FR 37122, 37124,
37127 (July 19, 1977).\30\ 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 including EPA's comparable regulations and
the 1993 addition of the exclusion for prior converted cropland.
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\30\ 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).
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The 1986 regulations define ``waters of the United States'' as
follows (33 CFR 328.3 (2014)): \31\
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\31\ 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.
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(a) The term ``waters of the United States'' means:
1. All waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce, including
all waters which are subject to the ebb and flow of the tide;
2. 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 would or could affect
interstate or foreign commerce including any such waters:
i. Which are or could be used by interstate or foreign travelers
for recreational or other purposes; or
ii. From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or
iii. Which are used or could be used for industrial purposes by
industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the
United States under this definition;
5. Tributaries of waters identified in paragraphs (a)(1) through
(4) of this section;
6. The territorial seas; and
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.
See section I.B of the Economic Analysis for the Final Rule for a
comparison of regulatory categories between the pre-2015 regulatory
regime, the 2020 NWPR, and this 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 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 reversed the Sixth Circuit
Court of Appeals and held that court had erred when it imposed a
limitation requiring inundation or ``frequent flooding'' of wetlands by
the adjacent body of water for the wetlands to be jurisdictional when
such a limitation was required by neither the regulation nor the Clean
Water Act. Id. at 129, 134. The Supreme Court then deferred to the
Corps' judgment that adjacent wetlands ``that form the border of or are
in reasonable proximity to'' other ``waters of the United States'' 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. The Court observed that the
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 `[water] 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 (1972)). 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
[[Page 3013]]
wetlands may be defined as waters under the Act.'' Id. at 134. The
Court further stated, ``[i]f 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.'' Id. at 135 n.9. The Court expressly reserved the question of
whether the Clean Water 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''). A 5-4 Court in SWANCC held that the use of
``nonnavigable, isolated, intrastate waters'' by migratory birds was
not by itself a sufficient basis for the exercise of Federal authority
under the Clean Water Act. SWANCC, 531 U.S. at 172. 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 Riverside Bayview 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 (``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.'' (citations omitted)).
The Corps asserted authority in this instance based on an
interpretation of the regulations (known as the ``Migratory Bird
Rule'') that waters used as habitat for migratory birds were
jurisdictional. The Court found that the exercise of Clean Water Act
regulatory authority over discharges into the ponds based on their use
by migratory birds raised ``significant constitutional 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. 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 concluded that ``the `Migratory Bird Rule' is not fairly
supported by the CWA.'' Id. at 167.
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 Clean Water Act had been applied to wetlands
adjacent to tributaries, that are not themselves navigable-in-fact, of
traditional navigable waters. Although the Court remanded the Court of
Appeals' finding of Clean Water Act jurisdiction, the plurality opinion
and Justice Kennedy's concurrence disagreed on the proper test to
apply. Despite this disagreement, all nine 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 waterbodies, 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,
concluding that ``to constitute `` `navigable waters' '' under the Act,
a water or wetland must possess a `significant nexus' to waters that
are or were navigable in fact or that could reasonably be so made.''
Id. at 759 (citing SWANCC, 531 U.S. at 167, 172); see also id. at 774
(``As Riverside Bayview recognizes, the Corps' adjacency standard is
reasonable in some of its applications. Indeed, the Corps' view draws
support from the structure of the Act.''). 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 noted 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 or
Justice Kennedy's test'' and that in ``future cases the United States
may elect to prove jurisdiction under either test.'' 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 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
(emphasis in original). The Chief Justice observed that the Court's
division over the proper standard ``could have been avoided'' had the
agencies conducted rulemaking more clearly defining ``its authority to
regulate wetlands.'' Id.
[[Page 3014]]
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.' '' Marks, 430
U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)).
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 the plurality's relatively permanent standard is the
sole basis that may be used to establish jurisdiction. 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. Johnson, 467 F.3d 56
(1st Cir. 2006); United States v. Gerke Excavating, Inc., 464 F.3d 723
(7th Cir. 2006). Some Courts of Appeals have held that the government
may establish jurisdiction under either standard. See, e.g., United
States v. Johnson, 467 F.3d 56, 62-64 (1st Cir. 2006); United States v.
Bailey, 571 F.3d 791, 799 (8th Cir. 2009). The Eleventh Circuit has
held that only Justice Kennedy's significant nexus standard applies.
United States v. Robison, 505 F.3d 1208 (11th Cir. 2007).
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 plurality's relatively permanent standard and Justice Kennedy's
significant nexus standard--informed by 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'').
In the Rapanos Guidance,\32\ 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. Rapanos
Guidance at 4-7. The guidance stated that the agencies would 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. Under the
guidance, the agencies generally did not assert jurisdiction over
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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\32\ 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.''
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''). 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. The rule excluded the following (unless
they were traditional navigable waters, the territorial seas, or
interstate waters): certain ditches; artificially irrigated areas that
would revert to dry land should application of water to that area
cease; artificial, constructed lakes and ponds created in dry land such
as farm and stock watering ponds, irrigation ponds, settling basins,
fields flooded for rice growing, log cleaning ponds, or cooling ponds;
artificial reflecting pools or swimming pools created in dry land;
small ornamental waters created in dry land; water-filled depressions
created in dry land incidental to mining or construction activity,
including pits excavated for obtaining fill, sand, or gravel that fill
with water; erosional features, including gullies, rills, and other
ephemeral features that do not meet the definition of tributary, non-
wetland swales, and lawfully constructed grassed waterways; puddles;
groundwater, including groundwater drained through subsurface drainage
systems; stormwater control features constructed to convey, treat, or
store stormwater that are created in dry land; and wastewater
[[Page 3015]]
recycling structures constructed in dry land.
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 Clean Water 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
rulemaking, 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). The final rule provided that the agencies would
implement the definition ``consistent with Supreme Court decisions and
longstanding practice, as informed by applicable agency guidance
documents, training, and experience''; i.e., consistent with the pre-
2015 regulatory regime. Id. at 56626.
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''' (``2020 NWPR'')--that for the first
time defined ``waters of the United States'' based primarily on Justice
Scalia's plurality test from Rapanos. The 2020 NWPR was published on
April 21, 2020, and went into effect on June 22, 2020.\33\ 85 FR 22250
(April 21, 2020). The 2020 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.
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\33\ The 2020 NWPR went into effect on June 22, 2020, in all
jurisdictions except Colorado, where the rule was subject to a
preliminary injunction issued by the U.S. District Court for the
District of Colorado. Colorado v. EPA, 445 F. Supp. 3d 1295 (D.
Colo. 2020). After the Tenth Circuit reversed the Colorado district
court's order on appeal, the 2020 NWPR went into effect in Colorado
on April 26, 2021. Colorado v. EPA, 989 F.3d 874 (6th Cir. 2021);
Colorado v. EPA, No. 20-1238, ECF No. 010110512604 (Doc. 10825032)
(10th Cir. Apr. 26, 2021).
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The 2020 NWPR further 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 the territorial seas 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 the
territorial seas 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 2020 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
was jurisdictional under the 2020 NWPR if it contributed surface water
flow to a downstream jurisdictional water in a typical year through
certain artificial or natural features. A lake, pond, or impoundment of
a jurisdictional water inundated by flooding from a jurisdictional
water in a typical year was also jurisdictional. Id.
As for wetlands, the 2020 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 2020 NWPR expressly provided that waters that do not fall into
one of these jurisdictional categories were not considered ``waters of
the United States.'' Id. For the first time, interstate waters were not
included in the definition of ``waters of the United States.'' The rule
also excluded groundwater, including groundwater drained through
subsurface drainage systems; ephemeral features, including ephemeral
streams, swales, gullies, rills, and pools; diffuse stormwater run-off
and directional sheet flow over upland; ditches that are not
traditional navigable waters, the territorial seas, or tributaries as
defined in the rule; and those portions of ditches constructed in
adjacent wetlands as defined in the rule that do not satisfy the
conditions of an adjacent wetland under the rule; prior converted
cropland; artificially irrigated areas, including fields flooded for
agricultural production, that would revert to upland should application
of irrigation water to that area cease; artificial lakes and ponds,
including water storage reservoirs and farm, irrigation, stock
watering, and log cleaning ponds, constructed or excavated in upland or
in non-jurisdictional waters, so long as those artificial lakes and
ponds are not impoundments of jurisdictional waters that meet the
rule's definition of lakes and ponds, and impoundments of
jurisdictional waters; water-filled depressions constructed or
excavated in upland or in non-jurisdictional waters incidental to
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 to convey, treat, infiltrate, or store
stormwater runoff; groundwater recharge, water reuse, and wastewater
recycling structures, including detention, retention, and infiltration
basins and ponds, constructed or excavated in upland or in non-
jurisdictional waters; and waste treatment systems. While many of these
exclusions were based on the exclusions
[[Page 3016]]
in the 2015 Clean Water Rule, new exclusions were added and some were
substantially broadened in a number of ways. For example, for the first
time, all ephemeral streams were excluded. Moreover, waters within the
2020 NWPR's jurisdictional categories, including traditional navigable
waters and the territorial seas, were not ``waters of the United
States'' if they also fit within the 2020 NWPR's 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.'').\34\ In addition, the rule expanded the
longstanding exclusion for prior converted cropland. Generally
speaking, the 2020 NWPR's approach to prior converted cropland
substantially reduced the likelihood that prior converted cropland
would ever lose its excluded status. The 2020 NWPR definition extended
prior converted cropland status beyond those areas the U.S. Department
of Agriculture (USDA) defines as prior converted cropland for purposes
of the Food Security Act.
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\34\ The 2020 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) (2022).
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4. Legal Challenges to the Rules
The agencies' rulemakings to revise the definition of ``waters of
the United States'' have been subject to a series of legal
challenges.\35\
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\35\ The agencies note that a Clean Water Act case currently
pending before the Supreme Court is not a direct challenge to any of
the rules defining ``waters of the United States,'' but instead
presents the question of the Act's jurisdictional standard for
adjacent wetlands in the context of a challenge to an EPA
administrative compliance order for the unauthorized discharge of a
pollutant into ``waters of the United States.'' Sackett v. EPA, No.
21-454. Petitioners--who operated a commercial construction and
excavation business--dumped approximately 1,700 cubic yards of
gravel and sand to fill wetlands adjacent to ``waters of the United
States,'' and EPA issued an administrative order in light of the
unauthorized discharge. The district court and the Court of Appeals
determined that, under Ninth Circuit precedent, the Clean Water Act
covers at least those adjacent wetlands that satisfy the significant
nexus standard. The lower courts held that the administrative record
supports EPA's conclusion that the wetlands on petitioners' property
are adjacent to a jurisdictional tributary and that, together with
other similarly situated adjacent wetlands, the adjacent wetlands
have a significant nexus to Priest Lake, a traditional navigable
water.
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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 in
district court or on appeal.\36\ While the 2015 Clean Water Rule went
into effect in some parts of the country in August 2015, it was never
implemented nationwide due to multiple injunctions and later
rulemakings. The day before the 2015 Clean Water Rule's August 28, 2015
effective date, the U.S. District Court for the District of North
Dakota preliminarily enjoined the rule in the 13 States challenging the
rule in that court at the time. North Dakota v. EPA, 127 F. Supp. 3d
1047 (D.N.D. 2015); Order, North Dakota v. EPA, No. 3:15-cv-59, Dkt.
No. 79 (D.N.D. Sept. 4, 2015) (limiting scope of preliminary injunction
to the parties before the court). Shortly thereafter, on October 9,
2015, the Sixth Circuit issued an order staying the 2015 Clean Water
Rule nationwide and directing the agencies to resume implementing the
``familiar, if imperfect'' pre-2015 regulatory regime. In re EPA &
Dep't of Def. Final Rule, 803 F.3d 804, 806, 808 (6th Cir. 2015). In
2018, two other district courts issued geographically limited
preliminary injunctions against the 2015 Clean Water Rule. Georgia v.
Pruitt, 326 F. Supp. 3d 1356 (S.D. Ga. June 6, 2018) (barring
implementation of the 2015 Clean Water Rule in 11 States); Texas v.
EPA, No. 3:15-cv-162, 2018 WL 4518230 (S.D. Tex. Sept. 12, 2018) (same
as to three States). In 2019, prior to issuance of the 2019 Repeal
Rule, two courts remanded the 2015 Clean Water Rule to the agencies,
but neither court vacated the rule. See Texas v. EPA, 389 F. Supp. 3d
497 (S.D. Tex. 2019); Georgia v. Wheeler, 418 F. Supp. 3d 1336 (S.D.
Ga. 2019). As such, the 2015 Clean Water Rule remained in effect in
some parts of the country until the effective date of the 2019 Repeal
Rule.\37\
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\36\ See, e.g., North Dakota v. EPA, No. 15-00059 (D.N.D.); Ohio
v. EPA, No. 15-02467 (S.D. Ohio) (dismissed as moot), No. 22-3292
(6th Cir.) (appeal stayed); Southeastern Legal Found. v. EPA, No.
15-02488 (N.D. Ga.).
\37\ 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, the rule was vacated and enjoined
nationwide. See South Carolina Coastal Conservation League v.
Pruitt, 318 F. Supp. 3d 959 (D.S.C. 2018); see also Order, Puget
Soundkeeper All. v. Wheeler, No. 15-01342 (W.D. Wash. Nov. 26, 2018)
(vacating the Applicability Date Rule nationwide).
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The 2019 Repeal Rule went into effect on December 23, 2019, and
though it has been the subject of legal challenges, no court has issued
an adverse ruling with respect to it. The 2019 Repeal Rule was thus in
effect until the effective date of the 2020 NWPR.
Multiple parties subsequently sought judicial review of the 2020
NWPR, which went into effect on June 22, 2020, in all jurisdictions
except Colorado, where the rule was subject to a preliminary injunction
issued by the U.S. District Court for the District of Colorado.
Colorado v. EPA, 445 F. Supp. 3d 1295 (D. Colo. 2020). The Tenth
Circuit later reversed the Colorado district court's order on appeal;
as a result, the 2020 NWPR went into effect in Colorado on April 26,
2021. Colorado v. EPA, 989 F.3d 874 (6th Cir. 2021); Colorado v. EPA,
No. 20-1238, ECF No. 010110512604 (Doc. 10825032) (10th Cir. Apr. 26,
2021).
On August 30, 2021, the U.S. District Court for the District of
Arizona remanded the 2020 NWPR and vacated the rule. Pascua Yaqui Tribe
v. EPA, 557 F. Supp. 3d 949 (D. Ariz. 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 956. On September 27, 2021,
the U.S. District Court for the District of New Mexico also issued an
order vacating and remanding the 2020 NWPR. Navajo Nation v. Regan, 563
F. Supp. 3d 1164 (D.N.M. 2021). In vacating the rule, the court agreed
with the reasoning of the Pascua Yaqui court that the 2020 NWPR suffers
from ``fundamental, substantive flaws that cannot be cured without
revising or replacing the NWPR's definition of ``waters of the United
States.''' Id. at 1168. In six additional cases, courts remanded the
2020 NWPR without vacatur or without addressing vacatur.\38\
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\38\ Order, Pueblo of Laguna v. Regan, No. 1:21-cv-277, Dkt. 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-3005, Dkt. No. 271 (N.D. Cal. Sept. 16, 2021) (same); Order,
Waterkeeper All. v. Regan, No. 3:18-cv-3521, Dkt. No. 125 (N.D. Cal.
Sept. 16, 2021) (same); Order, Conservation Law Found. v. EPA, No.
1:20-cv-10820, Dkt. No. 122 (D. Mass. Sept. 1, 2021) (same); Order,
S.C. Coastal Conservation League v. Regan, No. 2:20-cv-1687, Dkt.
No. 147 (D.S.C. July 15, 2021) (remanding without vacating); Order,
Murray v. Wheeler, No. 1:19-cv-1498, Dkt. No. 46 (N.D.N.Y. Sept. 7,
2021) (same).
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At this time, 14 cases challenging the 2015 Clean Water Rule, 2019
Repeal Rule, and/or the 2020 NWPR remain.\39\
[[Page 3017]]
All of these cases are administratively closed, inactive, or being held
in abeyance as of the date this final rule was signed. See ``History of
the Effects of Litigation over Recent Definitions of `Waters of the
United States''' in the docket for this rule for more information on
how litigation has impacted the status of the definition of ``waters of
the United States'' in effect at different times across the country.
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\39\ Pascua Yaqui Tribe v. EPA, No. 4:20-cv-266 (D. Ariz.);
Colorado v. EPA, No. 1:20-cv-1461 (D. Colo.); Am. Exploration &
Mining Ass'n v. EPA, No. 1:16-cv-1279 (D.D.C.); Envtl. Integrity
Project v. Regan, No. 1:20-cv-1734 (D.D.C.); Se. Stormwater Ass'n v.
EPA, No. 4:15-cv-579 (N.D. Fla.); Se. Legal Found. v. EPA, No. 1:15-
cv-2488 (N.D. Ga.); Chesapeake Bay Found. v. Regan, Nos. 1:20-cv-
1063 & 1:20-cv-1064 (D. Md.); Navajo Nation v. Regan, No. 2:20-cv-
602 (D.N.M.); N.M. Cattle Growers' Ass'n v. EPA, No. 1:19-cv-988
(D.N.M.); North Dakota v. EPA, No. 3:15-cv-59 (D.N.D.); Ohio v. EPA,
No. 2:15-cv-2467 (S.D. Ohio) (dismissed as moot), No. 22-3292 (6th
Cir.) (appeal stayed); Or. Cattlemen's Ass'n v. EPA, No. 3:19-cv-564
(D. Or.); Puget Soundkeeper All. v. EPA, No. 2:20-cv-950 (W.D.
Wash.); Wash. Cattlemen's Ass'n v. EPA, No. 2:19-cv-569 (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.'' It
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, section 1 (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.
The order specified that ``[f]or 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. at section 2(a). 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 2020 NWPR. Id.
at section 7(a).
In conformance with Executive Order 13990, the agencies reviewed
the 2020 NWPR to determine its alignment with three principles laid out
in the Executive Order: science, climate change, and environmental
justice.
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 IV.B.3 of this preamble, the 2020 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 2020
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 and continue to be extensively impacted by climate change.
Climate change can have a variety of impacts on water resources in
particular. See section II.C of the Technical Support Document. 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). Other areas are experiencing more
extreme cycles of flood and drought (e.g., the Northern Great Plains).
Climate change can increase the intensity of precipitation events.
Runoff from more intense storms can impair water quality as pollutants
deposited on land wash into waterbodies. 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. In addition,
climate change affects streamflow characteristics, such as the
magnitude and timing of flows, in part due to changes in snowpack
magnitude and seasonality. Many historically dry areas are experiencing
less precipitation and an increased risk of drought associated with
more frequent and intense heatwaves, which cause streams and wetlands
to become drier, negatively affecting water supplies and water quality.
Heatwaves, associated drought, and the loss of surface and soil
moisture associated with longer dry seasons, lower streamflow, and
lower groundwater levels also affect the frequency, size, and duration
of wildfires, which alter water quality and impact wetlands and their
functions. A changing climate can also result in higher and more
variable temperatures in streams, killing fish and harming other
aquatic species that can live only in colder water. Finally, rising sea
levels associated with climate change are inundating low-lying streams
and wetlands and further contributing to coastal flooding and erosion.
Although water resources are vulnerable to climate change, when
their interconnectedness and extent are maintained, streams and
wetlands perform a variety of functions that contribute to climate
resiliency by mitigating negative effects on traditional navigable
waters, the territorial seas, and interstate waters. For instance,
wetlands inside and outside of floodplains store large volumes of
floodwaters, thereby reducing flood peaks and protecting downstream
watersheds. As natural filters, wetlands help purify and protect the
quality of other waterbodies, including drinking water supplies--a
function which is more important than ever as intense precipitation
events spurred on by a changing climate mobilize sediment, nutrients,
and other pollutants. Coastal wetlands help buffer storm surges, which
may increase in frequency or severity with sea-level rise and the
increasing size and intensity of coastal storms. Additionally, small
streams are particularly effective at retaining and attenuating
floodwaters. Biological communities and geomorphic processes in small
streams and wetlands break down leaves and other organic matter,
sequestering a portion of that carbon that could otherwise be released
into the atmosphere and continue to negatively affect water resources.
The 2020 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'' did not allow
the agencies flexibility to account for the effects of a rapidly
changing climate, including upward trending temperatures, increasing
storm events, and extended droughts (see section IV.B.3.c of this
preamble). The 2020 NWPR also categorically excluded ephemeral streams
and their adjacent wetlands from the definition of ``waters of the
United States.'' These exclusions, if in effect, would
disproportionately impact the arid West. Aquatic systems comprised
largely of ephemeral streams are increasingly critical to protecting
[[Page 3018]]
and maintaining the integrity of paragraph (a)(1) waters, for example
by contributing streamflow and organic matter to those larger waters.
This is especially true in the Southwestern United States, where
climate change is expanding the spatial extent of arid conditions and
increasing the risks of more extreme drought. Some portions of the arid
West are experiencing altered monsoon seasons that have fewer but more
intense storms that contribute to so-called ``flashy'' stream hydrology
(i.e., higher runoff volume, leading to more rapidly rising and falling
streamflow over shorter periods of time).
Environmental Justice: While impacts on communities with
environmental justice concerns are not a basis for determining the
scope of the definition of ``waters of the United States,'' the
agencies recognize that the burdens of environmental pollution and
climate change often fall disproportionately on communities with
environmental justice concerns (e.g., minority (Indigenous peoples and/
or people of color) and low-income populations, as specified in
Executive Order 12898). Numerous groups have raised concerns that the
2020 NWPR had disproportionate impacts on Tribes and Indigenous
communities.\40\ The 2020 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 Tribal or State law (see section IV.B.3.d of this
preamble). If the 2020 NWPR were in effect, without regulations
governing discharges of pollutants into previously jurisdictional
waters, communities with environmental justice concerns where these
waters are located could experience increased water pollution and
impacts from associated increases in health risk.
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\40\ 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 [``waters of the United States''] 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
(stating that 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 IV.B.3.d of this
preamble and Technical Support Document section II.B.D.
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Further, the 2020 NWPR's categorical exclusion of ephemeral streams
from jurisdiction (and any wetlands adjacent to those streams)
disproportionately impacted Tribes and communities with environmental
justice concerns in the arid West. Many Tribes lack the authority and
resources to regulate waters within their boundaries, and they may also
be affected by pollution from adjacent jurisdictions.\41\ In addition,
under the 2020 NWPR, increased water pollution due to the elimination
of Federal protection over ephemeral streams and their adjacent
wetlands could lead to health impacts and the reduction of clean water
needed for traditional agricultural, cultural, and subsistence uses for
communities with environmental justice concerns.\42\ Therefore, if in
effect, the 2020 NWPR could disproportionately expose Tribes to
increased pollution and health risks.
---------------------------------------------------------------------------
\41\ See supra note 40.
\42\ See, e.g., comments submitted by Navajo Nation at 3
(February 7, 2022) (Docket ID No. EPA-HQ-OW-2021-0602-0581), https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0581 (``Nor did the
NWPR consider environmental justice concerns, including that tribes,
among other environmental justice communities, `may experience
increased water pollution and impacts from associated increases in
health risk.' '' (citation omitted)); comments submitted by Amigos
Bravos et al. at 2 (February 7, 2022) (Docket ID No. EPA-HQ-OW-2021-
0602-0600), https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0600 (``Many New Mexican farmers of color depend upon clean water
flowing from the ephemeral drainages in headwater systems to water
their crops and livestock. New Mexico acequias (community irrigation
ditches) help to convey and distribute surface water to tens of
thousands of New Mexican acequia families and over 100,000 acres of
irrigable lands, primarily for traditional agricultural and cultural
uses. New Mexico's surface waters are the lifeblood of numerous
acequias, sustaining and enriching centuries-old acequias and
farming and ranching traditions which depend upon clean water.
Protecting clean water in New Mexico is intricately tied to
environmental justice.'').
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After completing the review and reconsidering the record for the
2020 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 were the text, structure, and history
of the Clean Water Act; relevant Supreme Court case law; the current
and future harms to the chemical, physical, and biological integrity of
the nation's waters due to implementation of the 2020 NWPR; concerns
raised by co-regulators and stakeholders about the 2020 NWPR, including
implementation-related issues; the principles outlined in the Executive
Order; and issues raised in ongoing litigation challenging the 2020
NWPR. EPA and the Army concluded that the 2020 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 it threatened the loss or degradation of waters critical to the
protection of traditional navigable waters, the territorial seas, and
interstate waters, among other concerns.
C. Summary of Co-Regulator Engagement and Stakeholder Outreach
EPA and the Army held a series of stakeholder meetings during the
agencies' review of the 2020 NWPR, including specific meetings in May
2021 with industry, environmental organizations, agricultural
organizations, and State associations. On July 30, 2021, the agencies
signed a Federal Register document that announced a schedule for
initial public meetings to hear from interested stakeholders on their
perspectives on defining ``waters of the United States'' and
implementing 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 from
August 4, 2021, to 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 No. EPA-HQ-OW-2021-0328). Consistent with
the August 4, 2021, Federal Register publication, the agencies held six
public meeting webinars on August 18, August 23, August 25
(specifically for small entities), August 26, August 31, and September
2, 2021.
The agencies also engaged State and local governments over a 60-day
federalism consultation period during development of the proposed rule,
beginning with an initial federalism consultation meeting on August 5,
2021, and concluding on October 4, 2021. A total of thirty-eight
letters were submitted to the agencies as part of the federalism
consultation process from State and local government agencies,
intergovernmental associations, and State-level associations. 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. Additional
information about the federalism consultation can be found in section
V.E of this preamble and the Summary
[[Page 3019]]
Report of Federalism Consultation, available in the docket for this
rule.
The agencies initiated a Tribal consultation and coordination
process during development of the proposed rule which was conducted
over a 66-day period from July 30, 2021, until October 4, 2021,
including two consultation kick-off webinars. The agencies received
consultation comment letters from 27 Tribes and three Tribal
organizations and held three leader-to-leader consultation meetings and
four staff-level meetings with Tribes at their request. 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. Additional information about Tribal consultation
and engagement can be found in section V.F of this preamble and the
Summary of Tribal Consultation and Coordination, which is available in
the docket for this rule.
The agencies signed a proposed rule defining ``waters of the United
States'' on November 18, 2021. On December 7, 2021, the agencies
published the proposed rulemaking in the Federal Register, 86 FR 69372,
which initiated a 60-day public comment period that lasted through
February 7, 2022. EPA and Army held three virtual public hearings on
January 11, 13, and 18, 2022. The Office of Advocacy of the U.S. Small
Business Administration hosted EPA and Army staff in January 2022 to
discuss the proposed rule with small entities at its Small Business
Environmental Roundtables. The agencies met with small agricultural
interests and their representatives for a roundtable on January 7,
2022, and met with other small entities on January 10, 2022. The
agencies also engaged with State and local governments during the
public comment period, including through two virtual roundtables on
January 24 and 27, 2022. The agencies continued to engage with Tribes
during the public comment period. On January 20, 2022, the agencies
hosted a Tribal virtual roundtable.
In developing this rule, the agencies reviewed and considered
approximately 114,000 comments received on the proposed rulemaking from
a broad spectrum of interested parties. Commenters provided a wide
range of feedback on the proposal, including: the legal basis for the
proposed rule; the agencies' proposed treatment of categories of
jurisdictional waters and those features that would not be
jurisdictional; the Economic Analysis and Technical Support Document
for the proposed rule; and the need for a clear and implementable rule
that is easy for the public to understand. The agencies discuss
comments received and their responses in the applicable sections of the
preamble to this rule. A complete response to comments document is
available in the docket for this rule (Docket ID No. EPA-HQ-OW-2021-
0602).
The agencies also engaged with EPA's Science Advisory Board (SAB)
on several occasions during the development of this rule. The SAB was
established in 1978 by the Environmental Research, Development, and
Demonstration Authorization Act (ERDDAA), to provide independent
scientific and technical advice to the EPA Administrator on the
technical basis for agency positions and regulations.
On January 28, 2022, during the public comment period, the agencies
met with the SAB Work Group for Review of Science Supporting EPA
Decisions to explain the proposed rule, including its basis, and to
address the SAB Work Group's initial questions. On February 7, 2022,
the SAB Work Group signed a memorandum recommending that the Chartered
SAB should review the adequacy of the science supporting the proposed
rule. SAB Memorandum: Recommendations of the SAB Work Group for Review
of Science Supporting EPA Decisions Regarding Two Planned EPA
Regulatory Actions (February 7, 2022). On March 7, 2022, during the
public meeting of the Chartered SAB, the Chartered SAB unanimously
voted to review the scientific and technical basis of the proposed
rule. The SAB formed a Work Group of its chartered members which issued
a draft review on May 9, 2022, and the Chartered SAB held public
meetings on the matter on May 31 and June 2, 2022. The SAB issued their
final review on July 5, 2022 (EPA-SAB-22-005, hereinafter, ``2022 SAB
Review''). All materials related to the SAB's review are available in
the docket for this rule and on the SAB's website.
The SAB's review of the proposed rule was overall supportive of the
science underpinning the proposed rule, including the Technical Support
Document, and the discussion of shallow subsurface flow. The SAB made
some recommendations on the discussion of climate change. The SAB's
review was also generally favorable towards the approaches taken in the
Economic Analysis supporting the proposed rule. The SAB made
recommendations for improvement of the Economic Analysis, particularly
regarding the environmental federalism approach and the continued non-
monetization of certain benefits. The SAB indicated that the agencies'
plans for expanding the environmental justice analysis for this rule
were appropriate and provided recommendations for improving and
clarifying the analysis. A memorandum summarizing the agencies'
interactions with the SAB and the SAB's review of the proposed rule is
available in the docket for this rule.
IV. Revised Definition of ``Waters of the United States''
A. Basis for This Rule
In this rule, the agencies are exercising their 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 the text of the relevant provisions of
the Clean Water Act and the statute as a whole, the scientific record,
relevant Supreme Court precedent, and the agencies' experience and
technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulations defining ``waters of the United
States.'' \43\ The agencies construe the term ``waters of the United
States'' to mean: (1) traditional navigable waters, the territorial
seas, and interstate waters (``paragraph (a)(1) waters''); (2)
impoundments of ``waters of the United States'' (``paragraph (a)(2)
impoundments''); (3) tributaries to traditional navigable waters, the
territorial seas, interstate waters, or paragraph (a)(2) impoundments
when the tributaries meet either the relatively permanent standard or
the significant nexus standard (``jurisdictional tributaries''); (4)
wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent to and
with a continuous surface connection to relatively permanent paragraph
(a)(2) impoundments or jurisdictional tributaries when the
jurisdictional tributaries meet the relatively permanent standard; and
wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional
tributaries when the wetlands meet the significant nexus standard
(``jurisdictional adjacent wetlands'');
[[Page 3020]]
and (5) intrastate lakes and ponds, streams, or wetlands not identified
in paragraphs (a)(1) through (4) that meet either the relatively
permanent standard or the significant nexus standard (``paragraph
(a)(5) waters''). This rule also contains, at paragraph (b), the
longstanding exclusions in the 1986 regulations, as well as additional
exclusions based on well-established practice, from the definition of
``waters of the United States'' and, at paragraph (c), definitions for
terms used in this rule.
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\43\ For brevity, the agencies may refer to the considerations
that formed the basis of the agencies' interpretation of ``waters of
the United States'' in the final rule as ``the law, the science, and
agency expertise.'' References to the agencies' consideration of
``the law, the science, and agency expertise'' throughout this
preamble are intended to encompass the agencies' consideration of
the text of the relevant provisions of the Clean Water Act and the
statute as a whole, the scientific record, relevant Supreme Court
decisions, and the agencies' experience and technical expertise
implementing the pre-2015 regulatory regime.
---------------------------------------------------------------------------
This 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 informed by the best
available science concerning the functions provided by upstream
tributaries, adjacent wetlands, and paragraph (a)(5) waters to restore
and maintain the water quality of paragraph (a)(1) waters. In
developing the rule, the agencies also considered the text of the
relevant statutory provisions of the Clean Water Act and the statute as
a whole, relevant Supreme Court case law, and the agencies' experience
and technical expertise after more than 45 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 decisions in Riverside Bayview, SWANCC, and Rapanos
collectively.
This construction also reflects consideration of provisions of the
Clean Water Act referencing the role of the States. Section 101(b)
provides 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.'' The provisions in this rule reflect
consideration of the comprehensive nature and objective of the Clean
Water Act and also avoid assertions of jurisdiction that raise
federalism concerns. Determining where to draw the boundaries of
Federal jurisdiction to ensure that the agencies advance Congress's
objective while preserving and protecting the responsibilities and
rights of the States is assigned by Congress to the agencies. This
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,
the territorial seas, and interstate waters, Clean Water Act programs
will apply to ensure that those downstream waters have a baseline of
protection established by Federal law. Where they do not, Tribes and
States have authority. These limitations are based on the agencies'
conclusion that the significant nexus standard is consistent with the
statutory text and legislative history, advances the objective of the
Clean Water Act, is informed by the scientific record and Supreme Court
case law, and appropriately considers the policies of the Act, and
that, while the relatively permanent standard, standing alone,
identifies only a subset of the ``waters of the United States,''
including this standard in the final rule facilitates ease of
implementation. In addition, this rule reflects consideration of the
agencies' experience and expertise, as well as updates in
implementation tools and resources, and its terms are generally
familiar and implementable.
For all these reasons, this rule will achieve the agencies' goals
of effectively and durably protecting the quality of the nation's
waters. The effectiveness of this rule is based, in part, on the
familiarity of the regulatory framework to the agencies and
stakeholders, with an array of readily available tools and resources.
This rule also is durable because it is founded on the familiar
framework of the longstanding 1986 regulations, amended to reflect the
agencies' interpretation of appropriate limitations on the geographic
scope of the Clean Water Act in light of the law, the science, and
agency expertise. This rule also reflects the agencies' consideration
of the extensive public comments. This rule protects 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 Tribal and State water quality
certification programs.
1. The Agencies Are Exercising the Authority Granted by Congress To
Define ``Waters of the United States'' Under the Clean Water Act
The agencies are exercising the authority granted to them by
Congress in the Clean Water Act to construe the key term ``navigable
waters,'' which Congress broadly defined to mean ``the waters of the
United States, including the territorial seas.'' 33 U.S.C. 1362(7)
(Clean Water Act section 502(7)). As explained herein, the text of the
statute, including in particular sections 501 and 502(7), and
congressional intent provide that delegation of authority. And the
Supreme Court has affirmed the conclusion that the agencies have the
authority to define the bounds of ``waters of the United States.'' In
this rule, the agencies are using the traditional tools of statutory
construction to exercise their delegated authority. Further, the rule
is founded upon the longstanding 1986 regulations, familiar to Congress
and the Court, while incorporating important limitations based on the
text of the statute. Finally, it is well established that 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.
Congress's intent to delegate authority to the agencies to construe
the term ``navigable waters'' and its definition in section 502(7),
``the waters of the United States, including the territorial seas,'' is
clear from this text in the Clean Water Act. First, Congress
established a broad definition of a term foundational to advancing the
Act's clear objective that requires additional interpretation to
implement that term by the expert agencies charged with administering
the statute. Second, Congress explicitly delegated such authority to
EPA: ``The Administrator is authorized to prescribe such regulations as
are necessary to carry out his functions under this Act.'' 33 U.S.C.
1361 (Clean Water Act section 501). Clearly, interpreting this key term
through regulation is necessary to carry out the functions of the Act.
Congressional intent affirms this delegation. The breadth of the
definition of ``navigable waters'' reflects a deliberate choice by
Congress to both enact a statute with a broad scope of waters protected
by Federal law and to delegate the authority to interpret the
specialized term and its definition to the expert agencies. The
relevant House bill would have defined ``navigable waters'' as the
``navigable waters of the United States, including the territorial
seas.'' H.R. Rep. No. 911, 92d Cong., 2d Sess. 356 (1972) (emphasis
omitted). But the House was concerned that the definition might be
given an unduly narrow interpretation. 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
[[Page 3021]]
or may be made for administrative purposes.'' H.R. Rep. No. 92-911, at
131 (1972). The Senate Report also expressed disapproval of the narrow
construction by the Corps of the scope of waters protected under prior
water protection statutes, stating ``[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). Thus, in conference the word
``navigable'' was deleted from that definition, and the conference
report again urged that the term ``be given the broadest possible
constitutional interpretation unencumbered by agency determinations
which have been made or may be made for administrative purposes.'' S.
Conf. Rep. No. 1236, 92d Cong., 2d Sess. 144 (1972). Congress thus
intended the agencies to which it granted authority to implement the
Clean Water Act to interpret the scope of the definition of ``navigable
waters'' consistent with Congress's intent and objective in enacting
the Act.
The Supreme Court has also affirmed the conclusion that it is the
agencies' role to interpret the term ``waters of the United States.''
As the 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.
In addition, any ambiguity in Congress's terms in Clean Water Act
section 502(7) further underscores the role of the agencies in
interpreting the statutory language. The Riverside Bayview Court
deferred to and upheld the agencies' interpretation of the Clean Water
Act to protect wetlands adjacent to navigable-in-fact bodies of water,
stating ``[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
(citations omitted). All nine Justices in Rapanos again recognized that
there was ambiguity in the terms of the Clean Water Act. 547 U.S. at
752, 758, 780, 796, 811-12. In concurring with the Rapanos plurality
opinion, the Chief Justice explained that, given the ``broad, somewhat
ambiguous, but nonetheless clearly limiting terms Congress employed in
the Clean Water Act, the Corps and the EPA would have enjoyed plenty of
room to operate'' if they had addressed the relevant interpretive
questions through rulemaking. 547 U.S. at 758 (Roberts, C.J.,
concurring). The Chief Justice emphasized the breadth of the agencies'
discretion in defining ``waters of the United States'' through
rulemaking; indeed, the agencies' interpretations under the Clean Water
Act, Chief Justice Roberts emphasized, are ``afforded generous leeway
by the courts.'' Id. at 758.
In exercising their authority to interpret the statute in this
rule, the agencies are ``employing the traditional tools of statutory
interpretation,'' American Hospital Association v. Becerra, 142 S. Ct.
1896, 1906 (2022) (per curiam), beginning with ``the text and structure
of the statute,'' id. at 1904, as well as ``with reference to the
statutory context, `structure, history, and purpose,' '' Abramski v.
United States, 573 U.S. 169, 179 (2014) (citation omitted). As
discussed further in this section IV.A of the preamble, the agencies
have used additional tools of statutory construction, including the
statutory history, the statute as a whole, the objective of the Clean
Water Act, and the legislative history, which clears up ambiguity, in
construing the Act. See Bostock v. Clayton County, Georgia, 140 S. Ct.
1731, 1749 (2020) (discussing use of legislative history by the Supreme
Court ``when interpreting ambiguous statutory language'' (emphasis in
original) and noting that ``[l]egislative history, for those who take
it into account, is meant to clear up ambiguity, not create it''
(citing Milner v. Department of Navy, 562 U.S. 562, 574 (2011))).
The agencies have also properly brought to bear their expertise and
experience in construing the Clean Water Act. As the Supreme Court
concluded in Riverside Bayview, ``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 addition, the agencies have more than 45 years of experience
implementing the longstanding pre-2015 regulations defining ``waters of
the United States,'' including more than a decade of implementing those
regulations consistent with the Supreme Court's decisions in Riverside
Bayview, SWANCC, and Rapanos, and have concluded this rule is also
consistent with the ``longstanding practice of [the agencies] in
implementing the relevant statutory authorities.'' Biden v. Missouri,
142 S. Ct. 647, 652 (2022). Finally, Congress is aware of the agencies'
longstanding interpretation of ``waters of the United States'' and has
not acted to limit the agencies' interpretation, but rather has
incorporated aspects of the agencies' regulatory definition into the
statute. See section IV.A.2.b of this preamble.
Further, 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 IV.B.3 of this preamble, the agencies have reviewed
the 2020 NWPR and determined that the rule should be replaced. This
rule properly considers the objective of the Clean Water Act, is
consistent with the text and structure of the Act, informed by relevant
Supreme Court precedent, and reflects the record before the agencies,
including consideration of the best available science, as well as the
agencies' expertise and experience implementing the pre-2015 regulatory
regime.
To be clear, in this rule the agencies are exercising the authority
granted to them by Congress to construe and implement the Clean Water
Act and to interpret an ambiguous term and its statutory definition.
Therefore, while the agencies' interpretation of the statute is
informed by Supreme Court decisions, including Rapanos, it is not an
interpretation of the multiple opinions in Rapanos, nor is it based on
an application of the Supreme Court's principles to derive a governing
rule of law from a decision of the Court in a case such as Rapanos
where ``no opinion commands a majority.'' Rapanos, 547 U.S. at 758
(Roberts, C.J., concurring) (citing Marks v. United States, 430 U.S.
188, 193 (1977) (``Marks'')). Rather, this rule codifies the agencies'
interpretation of ``navigable waters'' informed by the text of the
relevant provisions of the Clean Water
[[Page 3022]]
Act and the statute as a whole, as well as the scientific record,
relevant Supreme Court case law, input from public comment, and the
agencies' experience and technical expertise after more than 45 years
of implementing the longstanding pre-2015 regulations defining ``waters
of the United States,'' including more than a decade of implementing
the regulations after Rapanos. Based on these considerations, the
agencies have concluded that the significant nexus standard in this
rule is the best interpretation of section 502(7) of the Clean Water
Act.
2. This Rule Advances the Objective of the Clean Water Act
This rule is grounded in the Clean Water Act's objective ``to
restore and maintain the chemical, physical, and biological integrity
of the Nation's waters,'' 33 U.S.C. 1251(a). This rule advances the
Clean Water 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, the territorial
seas, and interstate waters; and waters that meet the relatively
permanent standard. The limitations in the definition ensure that the
agencies will not assert jurisdiction where the effect on traditional
navigable waters, the territorial seas, and interstate waters--i.e.,
the paragraph (a)(1) waters--is not significant. This rule is informed
by the best available science on the functions provided by upstream
waters, including wetlands, to restore and maintain the integrity of
paragraph (a)(1) waters because the rule recognizes that upstream
waters can have significant effects on such waters and enables the
agencies to make science-informed decisions about such effects. This
rule thus defines ``waters of the United States'' to include the
familiar types of waters in the 1986 regulations--traditional navigable
waters, interstate waters, impoundments, tributaries, the territorial
seas, adjacent wetlands, and waters that do not fall within the other
categories--while adding, 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., Gen. Dynamics Land Sys., Inc. v. Cline,
540 U.S. 581 (2004). When considering the scope of the Clean Water Act,
the Supreme Court often begins with the objective of the Act and
examines the relevant question through that lens. 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.'' Here,
Congress made its purpose crystal clear by stating its objective in the
first section of the statute. 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 adequately
consider the Clean Water 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 Clean Water Act, supported by
legislative history and Supreme Court decisions, make clear--protecting
the chemical, physical, and biological integrity of the nation's waters
means protecting their water quality.
The Clean Water 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. Section 102 of the Clean
Water Act requires the Administrator to, after consultation, develop
comprehensive programs for preventing, reducing, or eliminating the
pollution of the navigable waters.
One of the Clean Water Act's principal tools in protecting 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. Other substantive
provisions of the Clean Water Act that use the term ``navigable
waters'' and are designed to meet the statutory objective include the
section 402 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 401Tribal and State water quality
certification process. Each of these programs is designed to protect
water quality and, therefore, further the objective of the Clean Water
Act. The question of Federal jurisdiction is foundational to most
programs administered under the Clean Water Act. See section III.A.1 of
this preamble.\44\
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\44\ Additional provisions are also designed to achieve the
Clean Water 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).
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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 Clean Water
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 (quoting 33 U.S.C. 1251(a)).\45\ Thus, in accordance with Maui, in
interpreting the ``specific definitional language'' of the Clean Water
Act, the agencies must ensure that they are advancing the statutory
purposes Congress sought to achieve.
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\45\ 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.
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In National Association of Manufacturers, the Court confirmed the
importance of considering the plain language of the objective of the
Clean Water Act when interpreting the
[[Page 3023]]
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 Clean Water Act's principal tools for
achieving the objective and then identified the definition of ``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 Clean Water 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 Clean
Water 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 Clean Water 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 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, 101 (1992) (reviewing the scope of EPA's authority to issue a
permit affecting a downstream State and finding that the Clean Water
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., on the quality of those waters.
The Supreme Court in Riverside Bayview explained the inherent link
between the Clean Water 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).
The statutory structure further confirms that ``waters of the
United States'' must be interpreted to account for the Clean Water
Act's broader objective of promoting water quality. The Act is replete
with 90 references to water quality--from the goals set forth to meet
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 at 47 (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 objective of the Clean Water Act is not the only
factor relevant to determining the scope of the Act. Rather, in light
of the precise language of the definitions in the Act, the importance
of water quality to the statute as a whole, and Supreme Court decisions
affirming that consideration of the objective of the Act is of primary
importance in defining its scope, the agencies conclude that a rule
defining ``waters of the United States'' must substantively consider
the effects of a revised definition on the integrity of the nation's
waters and advance the protection of the quality of those waters. As
discussed further below, this rule
[[Page 3024]]
properly considers and advances the objective of the Clean Water Act
because the science conclusively demonstrates that upstream waters,
including wetlands, can affect the quality of downstream waters and
ensures application of Clean Water Act water quality programs to
upstream waters when their effect on downstream traditional navigable
waters, territorial seas, and interstate waters is significant.
b. This Rule Is Founded on the 1986 Regulations, Which Advance the
Objective of the Clean Water 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. In this rule, the agencies are exercising
their authority to construe ``waters of the United States'' to mean the
waters defined by the familiar 1986 regulations, with amendments to
reflect the agencies' construction of limitations on the scope of
``waters of the United States,'' based on the law, the science, and
agency expertise. Of particular import, the agencies are limiting the
scope of the longstanding regulatory categories by adding a requirement
that tributaries, adjacent wetlands (that are adjacent to waters other
than paragraph (a)(1) waters), and lakes and ponds, streams, and
wetlands that are not identified in paragraphs (a)(1) through (4) meet
either the relatively permanent standard or the significant nexus
standard as established in this rule. The agencies also considered the
extensive public comment on the proposed rule in developing this final
rule.
The best available science 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 of the preamble
describes the agencies' historic rationale for the 1986 regulation and
its regulatory categories and describes the latest science that
supports the conclusion that the categories of waters identified in the
1986 regulations provide functions that restore and maintain the
chemical, physical, and biological integrity of traditional navigable
waters, the territorial seas, and interstate waters.
The agencies' historic regulations, eventually promulgated and
referred to as the 1986 regulations, were based on the agencies'
construction of the scope of the Clean Water Act and their 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, the territorial seas, and interstate
waters (i.e., the paragraph (a)(1) waters). For more than 45 years, the
agencies 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.'' See, e.g., 42 FR
37122, 37123 (July 19, 1977). The agencies have also long 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 Clean Water
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.
And, 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 (July 19, 1977).
Thus, this rule includes the categories long identified by the
agencies as affecting the water quality of paragraph (a)(1) waters,
including tributaries, adjacent wetlands, impoundments, and waters that
do not fall within any of the more specific categories of the
definition (a category that has been modified and codified in this rule
as paragraph (a)(5) waters).
As discussed below, however, while these longstanding categories
continue to provide a reasonable foundation for this rule, this rule
codifies limitations on these categories based on the agencies'
interpretation of the Clean Water Act. To be clear, this rule does not
automatically include all tributaries, adjacent wetlands, and waters
assessed under paragraph (a)(5) as jurisdictional waters. Rather, the
agencies conclude that utilizing these longstanding, familiar
categories of waters, subject to the relatively permanent or
significant nexus jurisdictional standards, is consistent with the best
available science because the significant nexus standard established in
this rule is based on an assessment of the effects of waters in these
categories on the water quality of paragraph (a)(1) waters. In
addition, the agencies believe that waters that meet the relatively
permanent standard individually and cumulatively provide many functions
that benefit the integrity of paragraph (a)(1) waters. See section
IV.A.3.a.ii of this preamble. This rule does categorically include
wetlands adjacent to paragraph (a)(1) waters. Riverside Bayview, 474
U.S. at 135; see also Rapanos, 547 U.S. at 780 (Kennedy, J., concurring
in the judgment) (``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. That is the holding of Riverside Bayview.'').
This rule enables the agencies to make science-informed determinations
of whether or not a water that falls within these categories meets
either jurisdictional standard and therefore satisfies the definition
of ``waters of the United States'' on a case-specific basis. For a
detailed discussion of implementation of adjacent wetlands under this
rule, see section IV.A.4 of this preamble; for additional guidance to
landowners on jurisdictional determinations, see section IV.C.10 of
this preamble.
i. The Agencies' Longstanding Interpretation That Tributaries Can Be
``Waters of the United States'' Is a Reasonable Foundation for This
Rule
The agencies have long construed the Clean Water Act to include
tributaries as ``waters of the United States.'' In 1973, EPA's General
Counsel issued an opinion upon which the agency's subsequent rulemaking
was based that tributaries were included within the term ``navigable
waters,'' finding that ``this broad interpretation is well grounded in
the language of the statute and in the legislative history, and
comports with the expressed intent of Congress to `restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters.' '' Envtl.
[[Page 3025]]
Prot. Agency, Off. Gen. Counsel, Meaning of the Term ``Navigable
Waters'' (February 13, 1973), 1973 WL 21937. 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.'' 42 FR 37123 (July
19, 1977).
The conclusion that the Clean Water Act includes tributaries is
consistent with the structure and history of the statute. The Clean
Water Act was not ``merely another law `touching interstate waters,' ''
but rather ``a `total restructuring' and `complete rewriting' of [then]
existing water pollution legislation.'' City of Milwaukee v. Illinois,
451 U.S. 304, 317 (1981) (citations omitted). Congress concluded that
prior measures had been ``inadequate in every vital aspect,'' and it
enacted a wholly new scheme of point-source-based pollution controls.
EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200,
203 (1976) (citation omitted). The Clean Water Act thus reflected
Congress's fundamental dissatisfaction with prior law.
Even before it enacted the 1972 Clean Water Act amendments,
Congress had recognized, and had acted to address, the danger that
pollution of tributaries may impair the quality of traditional
navigable waters downstream. Prior to those amendments, the Federal
Water Pollution Control Act established procedures for abatement of
``(t)he pollution of interstate or navigable waters in or adjacent to
any State or States (whether the matter causing or contributing to such
pollution is discharged directly into such waters or reaches such
waters after discharge into a tributary of such waters).'' 33 U.S.C.
1160(a) (1970) (emphasis added). Under specified circumstances, the
Attorney General was authorized to bring suit on behalf of the United
States ``to secure abatement of the pollution.'' 33 U.S.C. 1160(g)
(1970). Indeed, the regulation of tributaries as part and parcel of a
Federal effort to protect traditional navigable waters has been a
feature of Federal law for over 100 years. Since its enactment as
section 13 of the Rivers and Harbors Appropriation Act of 1899 (RHA),
Ch. 425, section 13, 30 stat. 1152, the Refuse Act of 1899 has
prohibited the discharge of refuse material into any ``navigable water
of the United States or into any tributary of any navigable water of
the United States,'' as well as depositing refuse material ``on the
bank of any navigable water, or on the bank of any tributary of any
navigable water.'' 33 U.S.C. 407. That provision does not limit the
covered ``tributar[ies]'' to those that are themselves used or
susceptible to use for navigation.
Thus, well over a hundred years ago, Congress understood the
necessity of protecting tributaries in order to protect traditional
navigable waters and recognized its authority over those tributaries,
and in the Clean Water Act Congress sought to expand protection of the
nation's waters. It would therefore be unreasonable for the agencies to
construe the Clean Water Act, with its comprehensive focus on limiting
discharges of pollutants to ``waters of the United States'' and
restoring and maintaining the chemical, physical, and biological
integrity of the nation's waters, to exclude tributaries to traditional
navigable waters, the territorial seas, and interstate waters.
Section 404(g) of the Clean Water Act further supports the
agencies' interpretation that the Act covers such tributaries. Section
404(g) authorizes States to administer their own permit programs over
certain waters. Section 404(g)(1) provides, in relevant part, that any
State ``desiring to administer its own individual and general permit
program for the discharge of dredged or fill material into the
navigable waters (other than those waters which are presently used, or
are susceptible to use in their natural condition or by reasonable
improvement as a means to transport interstate or foreign commerce . .
. including wetlands adjacent thereto)'' may submit a description of
this proposed program to EPA. 33 U.S.C. 1344(g)(1).\46\ Section
404(g)(1)'s reference to navigable waters ``other than those waters
used or susceptible to use'' for transporting commerce and their
adjacent wetlands plainly indicates that the Clean Water Act covers
more than the waters in this parenthetical.
---------------------------------------------------------------------------
\46\ The Corps retains permitting authority over the ``waters of
the United States'' that States cannot or do not assume.
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The Supreme Court has also recognized the relevance of section
404(g) to interpreting the scope of Clean Water Act jurisdiction. In
Riverside Bayview, while the Supreme Court stated that section 404(g)
``does not conclusively determine the construction to be placed on the
use of the term `waters' elsewhere in the Act,'' the Court went on to
say with respect to the significance of section 404(g) that ``the
various provisions of the Act should be read in pari materia [i.e.,
construed together],'' ultimately concluding that section 404(g)
``suggest[s] strongly that the term `waters' as used in the Act''
supports the Corps' interpretation of ``waters of the United States''
to include wetlands. 474 U.S. at 138 n.11 (emphasis added). While the
Court in SWANCC did not read section 404(g) to definitively answer the
question of the scope of ``waters of the United States,'' the Court
offered a hypothesis that ``Congress simply wanted to include all
waters adjacent to `navigable waters,' such as non-navigable
tributaries and streams.'' 531 U.S. at 171. And all members of the
Supreme Court agreed with the observation of the Rapanos plurality that
the 1977 Clean Water Act's authorization for States to administer the
section 404 program for ``navigable waters . . . other than'' those
used or suitable for use ``to transport interstate or foreign
commerce,'' 547 U.S. at 731 (quoting 33 U.S.C. 1344(g)(1)), ``shows
that the Act's term `navigable waters' includes something more than
traditional navigable waters.'' Id. In light of the history of the Act
as well as Congress's clear understanding of the relationship between
tributaries and traditional navigable waters, tributaries--whether or
not they themselves are traditional navigable waters--are an obvious
candidate for the Clean Water Act's broader coverage. As noted above,
even long before 1972, Congress had addressed the danger that pollution
of tributaries may impair the quality of traditional navigable waters
downstream, and it is implausible to suppose that Congress's landmark
1972 legislation actually reduced the scope of the prior statutes.
Construing ``waters of the United States'' to include tributaries
of traditional navigable waters, the territorial seas, interstate
waters, or impoundments of ``waters of the United States'' is also
consistent with the discussion of tributaries in the Clean Water 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. 92-414, at 77
(1971), as reprinted in 1972 U.S.C.C.A.N. 3668, 3742 (emphasis added).
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).
In addition, this rule and the 1986 regulations construe the
statute not to
[[Page 3026]]
distinguish between human-made or human-altered tributaries and natural
tributaries. This construction is consistent with the text of the
statute and science. Most obviously, such a distinction would render
superfluous section 404's exception for ``the discharge of dredged or
fill material . . . for the . . . maintenance of drainage ditches,''
section 404(f)(1)(C), because if human-made or human-altered
tributaries were not included, drainage ditches would not be covered in
the first place. More broadly, many of the nation's urban waterways are
channelized, and the Clean Water Act has long been understood to
encompass ``natural, modified, or constructed'' tributaries of other
covered waters. 80 FR 37078 (June 29, 2015). For example, many of the
streams in Houston, Texas, have been channelized, culverted, or
otherwise altered over time, in part for flood control purposes, and
the Clean Water Act protects many of these human-modified streams.
Removing the Clean Water Act's protections for these tributaries could
increase contributions of nutrients, sediment, and other pollutants
downstream to paragraph (a)(1) waters, such as the Trinity River. Such
an approach would also affect millions of miles of other such
tributaries, undermining the integrity of paragraph (a)(1) waters
throughout the country.
Moreover, the Clean Water Act's specialized definition of
``navigable waters'' does not turn on any such distinctions between
natural and human-made or -altered tributaries, which have no bearing
on a tributary's capacity to carry water (and pollutants) to
traditional navigable waters, the territorial seas, or interstate
waters. See, e.g., Technical Support Document section III.A.iv
(explaining that manmade ditches ``perform many of the same functions
as natural tributaries,'' including ``convey[ing] water that carries
nutrients, pollutants, and other constituents, both good and bad, to
downstream traditional navigable waters, the territorial seas, and
interstate waters''). Such a distinction would also be inconsistent
with Rapanos. That decision addressed consolidated cases involving
wetlands connected to traditional navigable waters by ``ditches or man-
made drains.'' Rapanos, 547 U.S. at 729 (plurality opinion). The
Rapanos plurality concluded that the cases should be remanded for the
lower courts to determine whether the channels at issue satisfied the
plurality's jurisdictional standard, and those further lower-court
proceedings would have been superfluous if the manmade character of the
ditches and drains had precluded their coverage as ``waters of the
United States.''
As discussed below and further in section III.A of the Technical
Support Document, the best available science supports the 1986
regulations' conclusions, and the agencies' construction of the Clean
Water Act in this rule, about the importance of tributaries to the
water quality of downstream paragraph (a)(1) waters: tributaries
provide natural flood control, help sustain flow downstream, recharge
groundwater, trap sediment, store and transform pollutants, decrease
high levels of chemical contaminants, recycle nutrients, create and
maintain biological diversity, and sustain the biological productivity
of downstream rivers, lakes, and estuaries.
ii. The Agencies' Longstanding Interpretation of Adjacent Wetlands as
``Waters of the United States'' Is a Reasonable Foundation for This
Rule
For more than four decades, the agencies have construed the
``waters of the United States'' to include wetlands adjacent to other
jurisdictional waters. Wetlands, such as swamps, bogs, marshes, and
fens, are ``transitional areas between terrestrial and aquatic
ecosystems'' characterized by sustained inundation or saturation with
water. Science Report at 2-5. Wetlands play a critical role in
regulating water quality. Among other things, they provide flood
control and trap and filter sediment and other pollutants that would
otherwise be carried to downstream waters. See National Research
Council, Wetlands: Characteristics and Boundaries 35, 38 (1995) (NRC
Report, available at https://nap.nationalacademies.org/catalog/4766/wetlands-characteristics-and-boundaries; Technical Support Document
section III.B.
The Corps published regulations to implement the section 404
permitting program in 1974. 39 FR 12115 (April 3, 1974). At that time,
the Corps took the view that for purposes of section 404 ``navigable
waters'' was an established term of art for waters that are subject to
Congress's power to regulate interstate channels of commerce, and that
the term should be given that meaning in the Clean Water Act--
notwithstanding the specialized definition of ``navigable waters'' in
the Act. Id. The Corps therefore asserted jurisdiction under section
404 only over the waters subject to section 10 of the Rivers and
Harbors Act of 1899. Id. at 12119.
Reviewing courts, members of Congress, and EPA disagreed with the
Corps' initial approach. See, e.g., United States v. Ashland Oil &
Transp. Co., 504 F.2d 1317, 1325 (6th Cir. 1974); H.R. Rep. No. 1396,
93d Cong., 2d Sess. 23-27 (1974). In fact, EPA had previously
promulgated a rule defining ``waters of the United States'' far more
broadly than the Corps' regulations. 38 FR 13528 (May 22, 1973).
Ultimately, the Corps was ordered to adopt new regulations recognizing
the agency's ``full regulatory mandate.'' NRDC, Inc. v. Callaway, 392
F. Supp. 685, 686 (D.D.C. 1975).
The Corps responded by broadening its definition of ``navigable
waters'' in a phased approach under which all of the waters in the
final regulation were ``waters of the United States,'' but the Corps
would begin regulating activities within each type of ``waters of the
United States'' in phases: Phase I, which was effective immediately,
covered ``coastal waters and coastal wetlands contiguous or adjacent
thereto or into inland navigable waters of the United States [a term
for waters protected under the Rivers and Harbors Act] and freshwater
wetlands contiguous or adjacent thereto''; Phase II, effective after
July 1, 1976, covered ``primary tributaries, freshwater wetlands
contiguous or adjacent to primary tributaries, and lakes''; and Phase
III, effective after July 1, 1977, covered ``discharges . . . into any
navigable water'' including intrastate lakes and rivers and their
adjacent wetlands. 40 FR 31320, 31324, 31326 (July 25, 1975). The Corps
defined ``adjacent'' to mean ``bordering, contiguous, or neighboring,''
and specified that ``[w]etlands 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.' '' 42 FR 37122, 37144 (July
19, 1977). The regulations also defined ``wetlands'' to mean ``those
areas that are inundated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that under normal
circumstances do support, a prevalence of vegetation typically adapted
for life in saturated soil conditions.'' Id. The agencies have thus
interpreted the term ``waters of the United States'' to include
wetlands since at least 1975.\47\
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\47\ The agencies' interpretation of ``waters of the United
States'' as including wetlands is consistent not only with the
history and text of Clean Water Act section 404(g), but also with
other parts of the statute and of the United States Code. For
example, in the Lake Champlain Basin Program, Congress referred to
``streams, rivers, lakes, and other bodies of water, including
wetlands.'' 33 U.S.C. 1270(g)(2) (emphasis added). Congress has also
referred to ``streams, rivers, wetlands, other waterbodies, and
riparian areas,'' 33 U.S.C. 2336(b)(2) (emphasis added), and defined
``coastal waters'' to mean the waters of the Great Lakes
``including'' portions of other ``bodies of water'' with certain
features, ``including wetlands,'' id. at 2802(5).
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[[Page 3027]]
Reacting to the Corps' broadened definition, leading up to the 1977
Amendments, Congress considered proposals to limit the geographic reach
of section 404. ``In both Chambers, debate on the proposals to narrow
the definition of navigable waters centered largely on the issue of
wetlands preservation.'' SWANCC, 531 U.S. at 170. A version of that
legislation, passed by the House, would have redefined ``navigable
waters'' for purposes of section 404 to mean a limited set of
traditional navigable waters and their adjacent wetlands. H.R. 3199,
95th Cong. section 16 (1977). But many legislators objected to the
proposed changes. When Congress rejected the attempt to limit the
geographic reach of section 404, it was well aware of the
jurisdictional scope of EPA and the Corps' definition of ``waters of
---------------------------------------------------------------------------
the United States.'' For example, Senator Baker stated:
Interim final regulations were promulgated by the [C]orps [on]
July 25, 1975. . . . Together the regulations and [EPA] guidelines
established a management program that focused the decision-making
process on significant threats to aquatic areas while avoiding
unnecessary regulation of minor activities. On July 19, 1977, the
[C]orps revised its regulations to further streamline the program
and correct several misunderstandings. . . .
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.
Earlier jurisdictional approaches under the [Rivers and Harbors
Act] established artificial and often arbitrary boundaries . . . .
123 Cong. Rec. 26,725 (1977). Legislators were concerned the proposed
changes were an ``open invitation'' to pollute waters. Id. (remarks of
Sen. Hart); see also, e.g., id. at 26,714-26,716. The proposal was
ultimately voted down on the Senate floor. Id. at 26,728; cf. S. Rep.
No. 370, 95th Cong., 1st Sess. 10 (1977) (hereinafter, ``1977 Senate
Report''); Riverside Bayview, 474 U.S. at 136-137 (noting that
``efforts to narrow the definition of `waters' were abandoned; the
legislation as ultimately passed, in the words of Senator Baker,
`[retained] the comprehensive jurisdiction over the Nation's waters''
(citation omitted)). Federal preservation of wetlands was at the heart
of the debate over passage of the 1977 Act, with good reason. See 1977
Senate Report at 10 (``There is no question that the systematic
destruction of the Nation's wetlands is causing serious, permanent
ecological damage. The wetlands and bays, estuaries and deltas are the
Nation's most biologically active areas. They represent a principal
source of food supply. They are the spawning grounds for much of the
fish and shellfish which populate the oceans, and they are passages for
numerous [ ] game fish. They also provide nesting areas for a myriad of
species of bird and wildlife. The unregulated destruction of these
areas is a matter which needs to be corrected and which implementation
of section 404 has attempted to achieve.''). Earlier Federal and State
policy that encouraged filling wetlands had led to destruction of
roughly 117 million acres of wetlands in the contiguous United States,
or more than half the original total. See T.E. Dahl & Gregory J.
Allord, ``History of Wetlands in the Conterminous United States,'' in
National Water Summary on Wetland Resources at 19 (1996, available at
https://pubs.usgs.gov/wsp/2425/report.pdf).
Congress instead modified the Clean Water Act in other ways to
respond to concerns about the scope of Federal authorities. Congress
exempted certain agricultural and silvicultural activities from the
section 404 permitting program. See 1977 Act section 67(b), 91 Stat.
1600 (33 U.S.C. 1344(f)(1)(A)). In addition, Congress authorized the
Corps to issue general permits to streamline the permitting process.
Id. (33 U.S.C. 1344(e)(1)). And importantly for understanding the scope
of ``waters of the United States,'' Congress modified section 404 in a
way that incorporated into the statutory text an explicit endorsement
of the Corps' regulation defining ``waters of the United States,''
including its inclusion of adjacent wetlands. Specifically, the 1977
Act section 67(b), 91 Stat. 1601, establishing section 404(g), allowed
Tribes and States to assume responsibility for the issuance of section
404 permits. As Congress explained in the legislative history, under
section 404(g) States could administer a permitting program for the
discharge of dredged or fill material into ``phase II and III waters''
following EPA approval, but the Corps would retain jurisdiction over
``those waters defined as the phase I waters in the Corps . . . 1975
regulations, with the exception of waters considered navigable solely
because of historical use.'' 123 Cong. Rec. 38,969 (December 15, 1977);
H.R. Conf. Rep. No. 830, 95th Cong., 1st Sess. 101 (1977), reprinted in
3 Legis. History 1977, at 185, 285. Accordingly, through section
404(g), Congress demonstrated its understanding of the Corps'
regulations and endorsed the scope of their coverage--allowing States
to assume authority to administer the Clean Water Act as it pertained
to the waters contained in phase II and III of the Corps' regulations
(Phase II, effective after July 1, 1976, covered ``primary tributaries,
freshwater wetlands contiguous or adjacent to primary tributaries, and
lakes'' and Phase III, effective after July 1, 1977, covered
``discharges . . . into any navigable water'' including intrastate
lakes and rivers and their adjacent wetlands. 40 FR 31320, 31324, 31326
(July 25, 1975)), and reserving for the Corps alone authority over the
waters contained in phase I of the Corps' regulations.
With respect specifically to the inclusion of adjacent wetlands,
Congress was explicit in the text of the Clean Water Act. The text of
section 404(g) authorizes States and Tribes to administer the section
404 permitting program covering ``the discharge of dredged or fill
material into the navigable waters (other than those waters which are
presently used, or are susceptible to use in their natural condition or
by reasonable improvement as a means to transport interstate or foreign
commerce . . . including wetlands adjacent thereto).'' 33 U.S.C.
1344(g)(1) (emphasis added); see 33 U.S.C. 1377(e) (extension to
Tribes). The italicized reservation of authority to the Corps in
section 404(g) presupposed that ``wetlands adjacent'' to a subset of
traditional navigable waters were subject to the section 404 program,
since otherwise the exclusion of those wetlands from the Tribes' and
States' potential permitting authority would have been superfluous.
Other language in the 1977 legislative record confirms that
understanding. See 1977 Senate Report 10 (stating that committee wished
to ``maintain[ ]'' coverage of wetlands); H.R. Conf. Rep. No. 830, 95th
Cong., 1st Sess. 98, 104 (1977) (stating that the Corps will
``continue'' to exercise section 404 jurisdiction over ``adjacent
wetlands'').
Moreover, with respect to which wetlands are adjacent, by using the
pre-existing term ``adjacent'' wetlands from the Corps' 1977
regulations, Congress signaled its intent to incorporate the Corps'
regulatory conception of adjacency. ``When a statutory term is
`obviously transplanted from another legal source,' it `brings the old
soil with it.' '' Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019)
(citation omitted). Here, that soil includes the full breadth of the
agencies' definition of ``adjacent'': bordering, contiguous, or
neighboring, as well as wetlands behind a berm or
[[Page 3028]]
barrier. That definition accords with the term's plain meaning.
Contemporaneous dictionaries defined the term ``adjacent'' in ways that
do not require direct abutment. See Black's Law Dictionary at 62 (rev.
4th ed. 1968) (``Lying near or close to; sometimes, contiguous;
neighboring. Adjacent implies that the two objects are not widely
separated, though they may not actually touch[.]'' (capitalization
altered; citation and emphasis omitted)); The American Heritage
Dictionary of the English Language at 16 (1975) (``Close to; next to;
lying near; adjoining.''); Webster's New International Dictionary of
the English Language at 32 (2d ed. 1958) (``Lying near, close, or
contiguous; neighboring; bordering on.'' (emphasis omitted)).
Congress has on a number of additional occasions responded to
concerns about the breadth of the scope of Federal authorities not by
narrowing the scope of ``waters of the United States,'' but by
excluding particular types and sources of discharges of pollutants from
the NPDES program or from Clean Water Act jurisdiction altogether. For
example, the 1987 Water Quality Act (WQA) added section 402(l)(2) to
the Clean Water Act. This new section prohibits EPA and the states from
requiring NPDES permits for uncontaminated stormwater discharges from
oil and gas exploration, production, processing or treatment
operations, or transmission facilities. Later, section 323 of the
Energy Policy Act of 2005 added a new provision to Clean Water Act
section 502 defining the term ``oil and gas exploration, production,
processing, or treatment operations or transmission facilities.'' The
1987 WQA also enacted a new section 402(p) of the Act that established
a comprehensive new program for stormwater regulation. In that section,
Congress made clear that only some stormwater point source discharges
need NPDES permit coverage--those from industrial activity, from large
and medium municipalities, and that EPA or a State designates by
rulemaking or adjudication to protect water quality or because the
discharges contribute to violations of water quality standards or are
significant contributors of pollutants. Congress has also taken
numerous actions to amend the Clean Water Act to address discharges
from vessels. The 1972 version of the Act excluded ``sewage from
vessels'' from the definition of ``pollutant'' thus exempting it from
the permitting regime in favor of regulatory standards of performance.
See 33 U.S.C. 1322(b), 1362(6). In 1996, Congress similarly excluded
most discharges from vessels of the Armed Forces and tasked EPA and the
Department of Defense to jointly promulgate uniform national discharge
standards instead. See 33 U.S.C. 1322(n), 1362(6). In 2008, Congress
passed the Clean Boating Act, which exempted discharges incidental to
the normal operation of recreational vessels of all sizes from Clean
Water Act permitting requirements, in favor of EPA regulations. See 33
U.S.C. 1322(o)(1)(B); see also 33 U.S.C. 1342(r). And in 2018, Congress
enacted the Vessel Incidental Discharge Act which exempted from NPDES
routine discharges from many other types of vessels including small
vessels, fishing vessels, and commercial vessels larger than 79 feet.
See 33 U.S.C. 1322(p)(9)(C)(ii).
Case law also supports the agencies' construction of the Clean
Water Act to cover adjacent wetlands as defined by the agencies. In
Riverside Bayview, the Supreme Court considered the ``language,
policies, and history'' of the Clean Water Act, including the
amendments in the 1977 Act, and unanimously upheld the Corps' exercise
of Clean Water Act jurisdiction over such adjacent wetlands. 474 U.S.
at 139. The Court held that the Corps' regulation defining ``the waters
of the United States'' to include wetlands adjacent to navigable waters
``is valid as a construction'' of the Clean Water Act. Id. at 131. The
Court first observed that ``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.'' Id. at 132. To administer the statute, the Corps
therefore ``must necessarily choose some point at which water ends and
land begins.'' Id. The Court further explained that, in drawing that
jurisdictional line, the Corps may take into account ``the evident
breadth of congressional concern for protection of water quality and
aquatic ecosystems.'' Id. at 133. It quoted with apparent approval the
Corps' statement that ``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.'' Id. at 134 (quoting 42 FR
37128, July 19, 1977). The Court concluded that ``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.
The Court also viewed the 1977 Act as specifically approving the
Corps' assertion of jurisdiction over adjacent wetlands--as considering
those wetlands to be ``waters'' themselves. Id. at 137-139. The Court
observed that ``the scope of the Corps' asserted jurisdiction over
wetlands was specifically brought to Congress' attention, and Congress
rejected measures designed to curb the Corps' jurisdiction in large
part because of its concern that protection of wetlands would be unduly
hampered by a narrowed definition of `navigable waters.''' Id. at 137.
The Court also cited section 404(g)(1) as express textual evidence
``that the term `waters' included adjacent wetlands.'' Id. at 138.
Congress had good reason to approve the inclusion of adjacent
wetlands within the ``waters of the United States.'' In the 1986
regulations, the agencies determined that wetlands adjacent to
navigable waters generally play a key role in protecting and enhancing
water quality, explaining: ``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 (July 19, 1977); see also 38 FR 10834. See section IV.C.8.b of
this preamble for further discussion of the definition of ``adjacent.''
As discussed below and further in section III.B of the Technical
Support Document, the best available science supports the 1986
regulations' conclusion that adjacent wetlands are part of the aquatic
ecosystem, and the agencies' construction of the Clean Water Act in
this rule, that adjacent wetlands that meet the relatively permanent
standard or the significant nexus standard affect the chemical,
physical, and biological integrity of paragraph (a)(1) waters by
performing essential functions, including providing valuable flood
control and water quality functions such as 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. As Congress
understood when it rejected efforts to narrow jurisdiction over
wetlands in
[[Page 3029]]
1977 and the Supreme Court recognized in Riverside Bayview, allowing
all adjacent wetlands to be filled without any permitting requirements
would deprive interconnected aquatic systems of those benefits and
thereby threaten the integrity of traditional navigable waters, the
territorial seas, and interstate waters. Wetlands are recognized as
``among the most important ecosystems on Earth.'' \48\ Among many other
public benefits, wetlands play an ``integral role'' in maintaining the
nation's ``water supply and quality.'' 16 U.S.C. 3901(a)(1). ``Research
has demonstrated repeatedly that natural wetlands enhance water
quality.'' \49\ Through chemical and biological processes, wetlands
trap and filter sediment, nutrients, and other pollutants that would
otherwise be carried into downstream waters.\50\ For example, wetlands
conservation is a crucial feature of the New York City municipal water
system, which provides high quality drinking water to millions of
people through watershed protection. New York protects adjacent
wetlands of its source waters rather than investing in extensive and
costly treatment. Wetlands also provide ``cost-effective flood
control,'' \51\ capturing overflow from rivers and streams during times
of high precipitation or snowmelt.\52\ For example, during Hurricane
Sandy in 2012, wetlands are estimated to have helped prevent $625
million in damage by protecting properties from flooding.\53\
---------------------------------------------------------------------------
\48\ William J. Mitsch & James G. Gosselink, Wetlands (5th ed.)
at 3 (2015).
\49\ National Research Council, Wetlands: Characteristics and
Boundaries (``NRC Report'') at 38 (1995).
\50\ Virginia Carter, ``Wetlands Hydrology, Water Quality, and
Associated Functions,'' in National Water Summary, supra, at 44-45;
Science Report at ES-2 to ES-4.
\51\ Carter, supra note 5050, at 44.
\52\ See, e.g., NRC Report at 35; Mitsch & Gosselink, supra, at
539-541; Science Report at ES-2 to ES-4.
\53\ Narayan, Siddharth, et al. 2017. The Value of Coastal
Wetlands for Flood Damage Reduction in the Northeastern USA.
Scientific Reports 7: 9463; Technical Support Document section II.C.
---------------------------------------------------------------------------
iii. It Is Reasonable for the Agencies To Continue To Include a
Provision To Cover Certain Waters That Do Not Fall Within Other
Jurisdictional Provisions
For more than 45 years the agencies' regulations have included a
provision to address waters that did not fall within the categories it
established, such as tributaries and adjacent wetlands, because such
waters could have effects on water quality and on interstate commerce.
42 FR 37128 (July 19, 1977). This rule substantially revises this
provision by establishing that intrastate lakes and ponds, streams, or
wetlands not identified elsewhere in the rule may be determined to be
``waters of the United States'' if they meet either the relatively
permanent standard or the significant nexus standard. Therefore, under
this rule the agencies conclude that it is not appropriate to assert
jurisdiction over non-navigable, intrastate waters based solely on
whether the use, degradation, or destruction of the water could affect
interstate or foreign commerce. See section IV.C.6 of this preamble for
further discussion of the changes related to this provision. This rule
replaces the interstate commerce test with the relatively permanent
standard and the significant nexus standard.
For more than four decades, the agencies' regulations defining
``waters of the United States'' have included provisions authorizing
case-specific determinations of jurisdiction over waters that did not
fall within the other jurisdictional provisions of the definition. The
Corps' 1975 interim final regulations addressed both ``intrastate
lakes, rivers, and streams that are used by interstate recreational
travelers, for the removal of fish sold in commerce, for interstate
industrial commercial purposes, or for the production of agricultural
commodities sold in commerce,'' and ``other waters that the District
Engineer determines necessitate regulation for protection of water
quality.'' 40 FR 31320, 31324 (July 25, 1975). As discussed above,
Congress was well-aware of the scope of the Corps' regulations when
adopting the 1977 Act.
The rule properly authorizes case-specific consideration of certain
waters not covered by the categories established in the rule. As
discussed below and further in section IV.D of the Technical Support
Document, the best available science shows that some of these waters--
such as depressional wetlands, open waters, and peatlands--can provide
important hydrologic (e.g., flood control), water quality, and habitat
functions which can have effects on larger rivers, lakes, and
estuaries, including paragraph (a)(1) waters. The functions that
intrastate lakes and ponds, streams, and wetlands not identified in
paragraphs (a)(1) through (4) of this rule (i.e., paragraph (a)(5)
waters) can provide to paragraph (a)(1) waters include storage of
floodwater, recharge of ground water that sustains river baseflow,
retention and transformation of nutrients, metals, and pesticides,
export of organisms to paragraph (a)(1) waters, and habitats needed for
aquatic and semi-aquatic species that also utilize paragraph (a)(1)
waters. In addition, the agencies have never stated that the waterbody-
specific categories alone identify every jurisdictional water under the
Clean Water Act because in an area as vast and varied as the United
States, it is not possible to create an exhaustive list of waters that
provide these critical functions to paragraph (a)(1) waters. Indeed, a
clear example of waters that do not fall within any of the categories
are some lakes and ponds near jurisdictional tributaries or paragraph
(a)(1) waters. They are not wetlands (so do not fall within the
adjacent wetlands category), and many are not tributaries, but they are
very likely to meet either the relatively permanent standard or the
significant nexus standard. A lake that is not a tributary and is not a
wetland may have a continuous surface connection to a traditional
navigable water. It would not make sense to exclude such a lake from
jurisdiction as it would have many of the same effects on the
traditional navigable water as an adjacent wetland with the same
continuous surface connection. Likewise, a lake that is not a tributary
and is not a wetland may be near a jurisdictional tributary and
significantly affect a paragraph (a)(1) water by providing similar
functions as an adjacent wetland. Absent paragraph (a)(5) of this rule,
these lakes would meet either the relatively permanent standard or the
significant nexus standard, but would not fall within any of the
categories of waters established by the definition. Thus, where waters
do not fall within one of the more specific categories identified in
paragraph (a)(1) through (4) of this rule, the rule provides for such
waters to be evaluated for jurisdiction under paragraph (a)(5) and to
be jurisdictional if they meet either standard.
c. The Best Available Science Demonstrates That This Rule Properly
Advances the Objective of the Clean Water Act
This rule is informed by the best available science on the
functions provided by waters, including wetlands, that are important
for the chemical, physical, or biological integrity of traditional
navigable waters, the territorial seas, and interstate waters. The
scientific literature extensively illustrates the effects tributaries,
adjacent wetlands, as well as intrastate lakes and ponds, streams, and
wetlands can and do have on the integrity of traditional navigable
waters, the territorial seas, and interstate waters. The relevant
science on the relationship and effects of streams, wetlands, and open
waters (such as lakes and ponds)
[[Page 3030]]
on larger downstream waters has continued to advance in recent years
and confirms the agencies' longstanding view that these waters should
be assessed for jurisdiction under the Clean Water Act. The Science
Report synthesized the peer-reviewed science regarding connectivity and
effects of streams, wetlands, and open waters to larger downstream
waters. 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 I.C. See also
Technical Support Document section III. This section summarizes the
best available science in support of the longstanding categories of the
1986 regulation, and in support of this rule and the agencies'
conclusion that this rule advances the objective of the Clean Water
Act. This section reflects the scientific consensus on the strength of
the effects that tributaries, adjacent wetlands, and paragraph (a)(5)
waters can and do have on traditional navigable waters, the territorial
seas, and interstate waters. Note that for purposes of this final rule,
the agencies have not made a categorical determination that all
tributaries, adjacent wetlands, and paragraph (a)(5) waters
significantly affect paragraph (a)(1) waters. See section IV.A.3.a.iii
(discussing the final rule's reliance on a case-specific approach to
assessing jurisdiction for certain types of waters) of this preamble.
As the agencies charged with construing the statute, EPA and the
Corps must develop the outer bounds of the scope of the Clean Water
Act. Congress chose to delegate this authority to the expert agency
focused on environmental protection and, for the section 404 program,
to the agency with extensive permitting experience for discharges to
water. In section 501(a) of the Clean Water Act, Congress explicitly
delegated regulatory authority to EPA: ``The Administrator is
authorized to prescribe such regulations as are necessary to carry out
his functions under this Act.'' The Supreme Court in Riverside Bayview
recognized this decision by Congress and deferred to the agencies'
scientific expertise and judgement, finding that ``[i]n 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. Science alone cannot dictate where to draw
the line defining ``waters of the United States,'' but science is
critical to understanding what scope of jurisdiction furthers
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.
Because the definition of ``waters of the United States'' should
advance the objective of the Clean Water Act and that objective is
focused on restoring and maintaining water quality, the best available
science informs this rule. See section IV.A.2 of this preamble; see
also section IV.B.3 of this preamble for the agencies' conclusion that
the 2020 NWPR was inconsistent with the best available science in
important ways.
i. Tributaries Can Provide Functions That Restore and Maintain the
Chemical, Physical, and Biological Integrity of Downstream Traditional
Navigable Waters, the Territorial Seas, and Interstate Waters
Tributaries play an important role in the transport of water,
sediments, organic matter, nutrients, and organisms to downstream
paragraph (a)(1) waters. See Technical Support Document section III.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 paragraph (a)(1) waters. Indeed, 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).
Tributaries can provide these functions whether they are natural,
modified, or constructed and regardless of their flow regime.
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. The agencies note that while the
Science Report concluded such tributary streams were so connected, the
significant nexus standard is distinct from this scientific conclusion,
and the agencies are not in this rule concluding that all tributary
streams categorically meet the significant nexus standard. Streams,
even where seasonally dry, are 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.\54\ Because of their abundance and
location in the watershed, small streams offer the greatest opportunity
for exchange between the water and the terrestrial environment.
---------------------------------------------------------------------------
\54\ 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 do not flow perennially. 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 do not flow constantly. 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.\55\ 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
[[Page 3031]]
through channels and providing substrate and habitat for aquatic
organisms.
---------------------------------------------------------------------------
\55\ 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.
---------------------------------------------------------------------------
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 higher concentrations and loads of nitrogen and
phosphorus in downstream waterbodies. In freshwater ecosystems,
eutrophication, the enriching of waters by excess nitrogen and
phosphorus, sets off a chain reaction of events that reduces water
quality in streams, lakes, estuaries, and other downstream waterbodies.
The excess nutrients lead to the overabundance of algae and aquatic
plants. 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, and therefore the amount available to aquatic
life, 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. Algal blooms driven by excess
nutrients also can injure people and animals, as toxins can kill native
fish and other wildlife, and endanger human health. Algal blooms can
also lead to beach closures. The overabundance of plant growth and
alterations in water chemistry that occur in eutrophic waters also
changes the composition of natural communities of aquatic ecosystems.
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. 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 leaf litter and
other decomposing matter for food and, in turn, become food for other
organisms. For example, fungi that grow on leaf litter become
nutritious food for aquatic insects that make their homes on the bottom
of streams, including mayflies, stoneflies, and caddisflies. 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, the territorial seas, and
interstate waters 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 an abandoned sand and gravel pit 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
consider biological functions for purposes of significant nexus
determinations under this rule only to the extent that the functions
provided by tributaries, adjacent wetlands, and paragraph (a)(5) waters
significantly affect the biological integrity of the traditional
navigable waters, the territorial seas, or interstate waters. For
example, salmon are a critical component of the biological integrity in
certain paragraph (a)(1) waters, and they provide one of the clearest
illustrations of biological connectivity. 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 Atlantic salmon require both
freshwater and marine habitats over their life cycles and therefore
migrate along river networks. 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, demonstrating how the
upstream ephemeral waters can help to maintain the biological integrity
of the downstream traditional navigable water. Many other species of
anadromous fish (fish that are born in freshwater, spend most of their
lives in saltwater, and return to freshwater to spawn) like certain
lamprey, species of catadromous fish (fish that breed in the ocean but
that spend most of their lives in freshwater) like American eels, and
freshwater fish like rainbow trout and brook trout also require small
headwater streams to carry out life cycle functions. See Technical
Support Document sections III.A.iii and III.E.iv.
ii. Adjacent Wetlands Can Provide Functions That Restore and Maintain
the Chemical, Physical, and Biological Integrity of Traditional
Navigable Waters, the Territorial Seas, and Interstate Waters
Adjacent wetlands provide valuable flood control and water quality
functions that affect the chemical, physical, and biological integrity
of paragraph (a)(1) 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
[[Page 3032]]
Technical Support Document section III.B. The agencies note that, while
the Science Report concluded such adjacent wetlands were so connected,
the significant nexus standard is distinct from this scientific
conclusion, and the agencies are not concluding in this rule that all
adjacent wetlands categorically meet the significant nexus standard.
Because adjacent wetlands retain sediment and augment streamflow
via the gradual release of groundwater, stormwater, or water flowing
just beneath the soil surface, wetland loss correlates with increased
need for dredging and unpredictability of adequate streamflow for
navigation. 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, the territorial seas, or interstate waters. 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 paragraph (a)(1) waters
by retaining stormwater and slowly releasing floodwaters that could
otherwise negatively affect the condition or function of those
paragraph (a)(1) 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 impair water quality and quickly drain
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. Moreover,
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, intact
adjacent wetlands, including headwater wetlands, can contribute to
maintaining navigability on the nation's rivers and harbors and can
reduce flooding in paragraph (a)(1) waters.
Wetlands adjacent to tributaries of navigable waters, the
territorial seas, and interstate waters can also help promote
improvements in drinking water supply and quality. Over 228 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.\56\ An estimated 61%
of water withdrawn for public water supply came from surface water
sources in 2015.\57\ Adjacent wetlands have an important role in
mitigating the risk of contamination to sources of drinking water, and
in water quality generally, due to their strategic location as buffers
for other waterbodies and their filtration of surface water. Retention
of water and its associated constituents by wetlands allows the
biochemical uptake and/or breakdown of contaminants and the destruction
of pathogens. The water retention 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 retention substantially improves both the supply and quality
of drinking water.
---------------------------------------------------------------------------
\56\ EPA data from 2022 Third Quarter Safe Drinking Water
Information System/Federal Version.
\57\ Comments submitted by Association of Metropolitan Water
Agencies at 2 (February 4, 2022) (Docket ID No. EPA-HQ-OW-2021-0602-
0252), https://www.regulations.gov/comment/EPA-HQ-OW-2021-0602-0252
(citing Dieter, C.A., Maupin, M.A., Caldwell, R.R., Harris, M.A.,
Ivahnenko, T.I., Lovelace, J.K., Barber, N.L., and Linsey, K.S.,
2018, Estimated use of water in the United States in 2015: U.S.
Geological Survey Circular 1441. Retrieved from https://pubs.usgs.gov/circ/1441/circ1441.pdf).
---------------------------------------------------------------------------
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 under the Clean Water Act, as
the quality of the drinking water source is dependent on the protection
of its upstream waters. Conserving wetlands in source water protection
areas can help protect water quality, recharge aquifers, and maintain
surface water flow during dry periods. 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.
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.\58\ Moreover, 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.
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\58\ U.S. Environmental Protection Agency/Science Advisory
Board. 1990. Reducing Risk: Setting Priorities and Strategies for
Environmental Protection. SAB-EC-90-021. https://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=2000PNG1.TXT.
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In sum, adjacent wetlands can provide a variety of functions to
paragraph (a)(1) waters. Based on the importance of these functions to
paragraph (a)(1) waters, the agencies' interpretation of 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.
iii. Intrastate Lakes and Ponds, Streams, or Wetlands Not Identified in
Paragraphs (a)(1) Through (4) of This Rule Can Provide Functions That
Restore and Maintain the Chemical, Physical, and Biological Integrity
of Traditional Navigable Waters, the Territorial Seas, and Interstate
Waters
Intrastate lakes and ponds, streams, or wetlands not identified in
paragraphs (a)(1) through (4) of the rule--examples of which could
include, but are not limited to, prairie potholes, playa lakes, and
vernal pools--can provide important functions that affect the chemical,
physical, and biological integrity of paragraph (a)(1) waters. See
Technical Support Document section III.D. The agencies note that while
the Science Report concluded such intrastate lakes and ponds, streams,
and wetlands can provide these functions, the significant nexus
standard is distinct from this scientific conclusion, and the agencies
are not concluding in this rule that all intrastate lakes and ponds,
streams, and wetlands categorically meet the significant nexus
standard. These functions are particularly valuable when considered
cumulatively across the landscape or across different watershed or sub-
watershed scales. They 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 paragraph (a)(1) waters. For
non-
[[Page 3033]]
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. Accordingly, a case-specific analysis of their effects on
paragraph (a)(1) waters is appropriate from both a scientific and
policy perspective.
For example, oxbow lakes and other lakes and ponds that are in
close proximity to the stream network, that are 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'' perform critical chemical, physical, and
biological functions that affect paragraph (a)(1) waters. Like adjacent
wetlands, these waters individually and collectively affect the
integrity of paragraph (a)(1) waters by acting as sinks that retain
floodwaters, sediments, nutrients, and contaminants that could
otherwise negatively impact the condition or function of those
paragraph (a)(1) waters. They also provide important habitat for
aquatic species that utilize both the lake and pond and the nearby
paragraph (a)(1) water to forage, breed, and rest.
Intrastate lakes and ponds, streams, and wetlands not identified in
paragraphs (a)(1) through (4) of the rule 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, the territorial seas, and interstate waters (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 also be connected to
paragraph (a)(1) waters through biological connections, such as through
the movement of aquatic and semi-aquatic species for habitat or other
lifecycle needs and can serve as sources of food for larger aquatic and
semi-aquatic animals that live in paragraph (a)(1) waters. See section
III.D of the Technical Support Document. These waters 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 paragraph (a)(1) waters. The strength of
functions provided by intrastate lakes and ponds, streams, and wetlands
that are evaluated under paragraph (a)(5) on paragraph (a)(1) waters
will vary depending on the type and degree of connection (i.e., from
highly connected to highly isolated) to paragraph (a)(1) waters and
landscape features such as proximity to stream networks and to such
waters with similar characteristics that function together to influence
paragraph (a)(1) waters.
Since the publication of the Science Report in 2015, the published
literature has expanded scientific understanding and quantification of
the functions of these waters that affect the integrity of larger
waters, including traditional navigable waters, the territorial seas,
and interstate waters, particularly in the aggregate. 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.
Some intrastate lakes and ponds, streams, and wetlands not
identified in paragraphs (a)(1) through (4) can, in certain
circumstances, have strong chemical, physical, or biological
connections to and effects on paragraph (a)(1) waters. However, some
intrastate lakes and ponds, streams, and wetlands not identified in
paragraphs (a)(1) through (4) of this rule do not have significant
effects on paragraph (a)(1) waters because of their distance from
paragraph (a)(1) waters, their landscape position, climatological
variables, or other factors. The effect of distance on a significant
nexus analysis, for example, may vary based on the characteristics of
the aquatic resources being evaluated and other factors affecting the
strength of their connectivity to paragraph (a)(1) waters. Waters are
less likely to have a significant nexus if they are 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 \59\ and the
waters in the broader tributary network. However, sometimes it is their
lack of a hydrologic surface connection that contributes to the
important effect that they have on paragraph (a)(1) waters; 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 or permeability
of the soils). Justice Kennedy's insight that ``[g]iven the role
wetlands play in pollutant filtering, flood control, and runoff
storage, it may well be the absence of hydrologic connection (in the
sense of interchange of waters) that shows the wetlands' significance
for the aquatic system'' is consistent with the science. See Rapanos,
547 U.S. at 786 (Kennedy, J., concurring in the judgment).
---------------------------------------------------------------------------
\59\ In this preamble, the agencies use ``subject waters'' to
mean the water or waters being assessed for jurisdiction. ``Subject
waters evaluated pursuant to the significant nexus standard'' means
the water either alone or in combination with similarly situated
waters in the region.
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Based on the functions that can be provided by intrastate lakes and
ponds, streams, and wetlands not identified in paragraphs (a)(1)
through (4) to traditional navigable waters, the territorial seas, and
interstate waters, assessing these waters to determine whether they
meet either the relatively permanent standard or the significant nexus
standard reflects proper consideration of the objective of the Clean
Water Act and the best available science.
3. The Scope of This Rule Is Limited Consistent With the Law, the
Science, and Agency Expertise
In this rule, the agencies are exercising their authority to
construe ``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.'' This construction is supported by consideration of
the text of the relevant provisions of the Clean Water Act and the
statute as a whole, the scientific record, relevant Supreme Court
decisions, and the agencies' experience and technical expertise after
more than 45 years of implementing the longstanding pre-2015
regulations defining ``waters of the United States.'' This rule's
limitations are based on the agencies' conclusion that the significant
nexus standard is consistent with the statutory text and legislative
history, advances the objective of the Clean Water Act, is informed by
the scientific record and Supreme Court case law, and appropriately
considers the policies of the Act. The agencies have also determined
that the relatively permanent standard should be included in the rule
because, while it identifies only a subset of the ``waters of the
[[Page 3034]]
United States,'' it provides important efficiencies and additional
clarity for regulators and the public.
This section of the preamble first explains the agencies'
conclusion that utilization of both the relatively permanent standard
and the significant nexus standard gives effect to the Clean Water
Act's text, including its objective as well as its limitations. The
significant nexus standard is consistent with the text, objective, and
legislative history of the Clean Water Act, as well as relevant Supreme
Court case law and the best available science. The relatively permanent
standard is administratively useful as it more readily identifies a
subset of waters that will virtually always significantly affect
paragraph (a)(1) waters, but standing alone the standard is
insufficient to meet the objective of the Clean Water Act. This section
also explains that fact-based standards for determining Clean Water Act
jurisdiction are appropriate and not unusual under the Act. The
agencies have the discretion to consider defining waters as
jurisdictional on a categorical basis where scientifically and legally
justified (for example in this rule, paragraph (a)(1) waters and their
adjacent wetlands) or on a case-specific, fact-based approach (for
example, in this rule, tributaries and their adjacent wetlands that
meet the relatively permanent standard or significant nexus standard).
Finally, this section explains how this rule reflects full and proper
consideration of the water quality objective in section 101(a) and the
policies relating to responsibilities and rights of Tribes and States
under section 101(b) of the Clean Water Act. Based on these
considerations, the agencies have concluded that the significant nexus
standard in this rule is the best interpretation of section 502(7) of
the Act.
a. The Limitations Established by This Rule Advance the Objective of
the Clean Water Act
This rule's utilization of both the relatively permanent standard
and the significant nexus standard gives effect to the Clean Water
Act's text and environmentally protective objective as well as its
limitations. See Rapanos, 547 U.S. at 767-69 (Kennedy, J., concurring
in the judgment) (observing ``the evident breadth of congressional
concern for protection of water quality and aquatic ecosystems'' and
referring to the Clean Water Act as ``a statute concerned with
downstream water quality'' (citations omitted)); Riverside Bayview, 474
U.S. at 133 (``Congress chose to define the waters covered by the Act
broadly.''). The agencies, however, have concluded that it is the
significant nexus standard that advances the objective of the Clean
Water Act because it is linked to effects on the water quality of
paragraph (a)(1) waters while also establishing an appropriate
limitation on the scope of jurisdiction by requiring that those effects
be significant. The relatively permanent standard is administratively
useful as it more readily identifies a subset of waters that will
virtually always significantly affect paragraph (a)(1) waters, but,
exclusive reliance on the standard for all determinations is
inconsistent with the text of the statute and Supreme Court precedent
and is insufficient to advance the objective of the Clean Water Act.
With this rule, the agencies conclude that if a water meets either
the relatively permanent standard or the significant nexus standard, it
falls within the protections established by the Clean Water Act. As
discussed earlier, this rule is not based on an application of the
Marks test for interpreting Supreme Court decisions; rather, with this
rule, the agencies are interpreting the scope of the definition of
``navigable waters,'' informed by relevant Supreme Court precedent, but
also based on the text of the relevant provisions of the Clean Water
Act and the statute as a whole, the scientific record, and the
agencies' experience and technical expertise after more than 45 years
of implementing the longstanding pre-2015 regulations defining ``waters
of the United States.''
This section first discusses why the significant nexus standard is
consistent with the text, objective, and legislative history of the
Clean Water Act, as well as relevant Supreme Court case law and the
best available science; then explains why the relatively permanent
standard is administratively useful but on its own is insufficient;
and, finally, explains that fact-based standards for determining Clean
Water Act jurisdiction are appropriate and not unique to the definition
of ``waters of the United States.''
i. The Significant Nexus Standard Is Consistent With the Text and
Objective of the Clean Water Act, Legislative History, Case Law, and
the Best Available Science
The significant nexus standard, as the agencies have established it
in this rule, is the best interpretation of the Clean Water Act because
it is consistent with the text, including the Act's statutory objective
and statutory structure, the legislative history and case law, and is
supported by the best available science. The standard is consistent
with the plain language of the Act's objective because it is based upon
effects on the water quality of paragraph (a)(1) waters and limits the
scope of jurisdiction based on the text of that objective. Moreover,
protection of waters that significantly affect the paragraph (a)(1)
waters--i.e., traditional navigable waters, the territorial seas, and
interstate waters--is consistent with the scope of Commerce Clause
authority that the Supreme Court in SWANCC concluded that Congress was
exercising, while also fulfilling Congress's intent in exercising that
authority in enacting the Clean Water Act.
The significant nexus standard effectuates the text of Clean Water
Act section 502(7), which defines ``navigable waters'' as ``the waters
of the United States, including the territorial seas.'' The standard is
properly focused on protecting paragraph (a)(1) waters, which are the
foundation of the Clean Water Act: traditional navigable waters (which
``navigable waters'' clearly invokes but is not limited to); ``the
territorial seas'' (which are explicitly listed in section 502(7)); and
interstate waters (which are unambiguously waters ``of the United
States,'' as they are waters of the ``several States,'' U.S. Const.
section 8). Further, each of the rule's provisions identifies an
aquatic resource that meets the definition of ``water'' or ``waters''
in either the Rapanos plurality's preferred dictionary or the
dictionary most contemporaneous with the passage of the Clean Water
Act. See section IV.A.3.a.ii of this preamble for discussion of the
plurality's dictionary-based analysis. The first definition of
``water'' within Webster's Second (1.a. of the definition) is ``[t]he
liquid which descends from the clouds in rain and which forms rivers,
lakes, seas, etc.,'' Webster's New International Dictionary 2882 (2d
ed. 1954). The definition of ``waters,'' plural, in the most
contemporaneous Webster's, is: ``the water occupying or flowing in a
particular bed.'' Webster's Third New Intl. (1966). Even the Rapanos
plurality's preferred definition includes ``water as found in
`streams,' '' ``water `[a]s found in streams and bodies forming
geographical features such as oceans, rivers, [and] lakes,' or `the
flowing or moving masses, as of waves or floods, making up such streams
or bodies.' '' Rapanos, 547 U.S. at 732-33 (quoting Webster's New
International Dictionary 2882, definition 2.c). Traditional navigable
waters; interstate waters; the territorial seas; impoundments of
waters; tributaries; adjacent wetlands; and intrastate lakes and ponds,
streams, and wetlands are ``water'' or ``waters'' under these
definitions, as identified by hydrologists
[[Page 3035]]
and other scientists, and in practice. Moreover, with respect to
whether wetlands are waters, that question has already been resolved by
both science and a unanimous Supreme Court in Riverside Bayview. 474
U.S. at 137-39. The requirement that a significant nexus exist between
upstream waters, including wetlands, and ``navigable waters in the
traditional sense'' thus clearly advances Congress's stated objective
in the Act while fulfilling ``the need to give the term `navigable'
some meaning.'' Rapanos, 547 U.S. at 779 (Kennedy, J., concurring in
the judgment). See also section IV.C.2.b.iii of this preamble for
discussion of the Clean Water Act's jurisdiction over interstate
waters. Finally, the text and focus of the rule's significant nexus
standard are derived from and designed to advance the text of the first
sentence in the statute setting forth the Act's sole statutory
objective: ``to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.'' See 33 U.S.C. 1251(a).
As noted above, a statute must be interpreted in light of the
purposes Congress sought to achieve. See, e.g., Gen. Dynamics Land
Sys., Inc. v. Cline, 540 U.S. 581 (2004). Thus, the agencies must
consider the objective of the Clean Water Act to ``restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters'' in interpreting the scope of the statutory term ``waters of
the United States.'' See 33 U.S.C. 1251(a). This consideration is
particularly important where, as here, Congress used specific language
in the definitions in order to meet the objective of the Act and the
definition of ``waters of the United States'' is fundamental to meeting
the objective of the Act. See section IV.A.2 of this preamble. Congress
was focused on water quality when it enacted the Clean Water Act and
established the Act's objective, and the significant nexus standard is
derived from the objective of the Act to protect the water quality of
the paragraph (a)(1) waters. The significant nexus standard is
consistent with foundational scientific understanding about aquatic
ecosystems: waters can significantly affect the chemical, physical, and
biological integrity of traditional navigable waters, the territorial
seas, and interstate waters. Therefore, assessing the effects that
waters have on paragraph (a)(1) waters when considered, alone or in
combination with other similarly situated waters in a region, is the
best means of identifying those waters that must be protected in order
to advance the objective of the Clean Water Act.
The agencies have also considered the statute as a whole in
construing the scope of ``waters of the United States.'' The
comprehensive nature of the Clean Water Act and its pronounced change
in approach from precursor water protection statutes is evident
throughout the statute, and the agencies have considered the text of
those provisions in defining ``waters of the United States.'' 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 use the term ``navigable waters'' and are designed to
meet the statutory objective include the section 402 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
Tribal and State water quality certification process. Each of these
programs is designed to protect water quality and, therefore, further
the objective of the Clean Water Act. The agencies have also carefully
considered the Act's policies regarding the responsibilities and rights
of Tribes and States. See section IV.A.3.b of this preamble. The
agencies have thus construed ``waters of the United States'' to include
waters that meet the significant nexus standard based on the text of
the Clean Water Act's interlocking provisions designed to restore and
maintain the chemical, physical, and biological integrity of the
nation's waters.
A significant nexus analysis is also consistent with the framework
scientists apply to assess a river system--examining how the components
of the system (e.g., wetlands or tributaries), alone or in the
aggregate (in combination), in a region, contribute and connect to a
river (significantly affect the chemical, physical, or biological
integrity of paragraph (a)(1) waters). Indeed, the significant nexus
standard in this rule reflects the analysis in the Science Report by
describing the components of a river system and watershed; the types of
chemical, physical, and biological connections that link those
components; the factors that influence connectivity and associated
effects at various temporal and spatial scales; and methods for
assessing downstream effects. 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,
including wetlands, 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 and marine ecology.
See also Technical Support Document sections I.A.ii and III.E.
Connectivity is the degree to which components of a system are
joined or linked 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 waterbodies and traditional navigable waters, the
territorial seas, or interstate waters, and variations in the degree of
connectivity influence the range of functions provided by streams,
wetlands, and open waters and are critical to the integrity and
sustainability of paragraph (a)(1) waters. For example, connections
with low values of one descriptor can have important downstream effects
when considered in context of other types of connections (e.g., a
stream with low-duration flow during a flash flood can transfer large
volumes of water and woody debris downstream, affecting the integrity
of a paragraph (a)(1) water). Indeed, the seasonal or longer-term
absence of surface connections can provide numerous functions that
contribute to the chemical, physical, and biological integrity of
paragraph (a)(1) waters: these wetlands can attenuate stormflow;
increase baseflow; be a source of carbon and organic matter; and be a
sink for sediment, nitrate, and other constituents that degrade water
quality. 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 upstream effects
on the chemical, physical, and biological functioning of the downstream
waterbodies. The analysis in the literature permits the agencies to
judge when an effect is significant such that a water, either alone or
in combination with similar waters, 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
[[Page 3036]]
connections and mechanisms discussed in the Science Report include
transport of physical materials and chemicals such as water, wood,
sediment, nutrients, pesticides, and metals (e.g., mercury); functions
that streams, wetlands, and open 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 to paragraph (a)(1) waters, 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 in that case 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. 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.'' Maui, 140
S. Ct. at 1471 (citing the definition of ``water pollution'' from 3 Van
Nostrand's Scientific Encyclopedia, at 5801). The Court then enumerated
a series of factors, many of which are scientifically based, relevant
to determining whether a discharge is jurisdictional under the Clean
Water Act, 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 text and objective of the Clean Water
Act and the best available science, this rule's incorporation of the
significant nexus standard is also 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 Cnty.,
Ga., 140 S. Ct. 1731, 1749 (2020) (emphasis in original). 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 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 thus fulfills Congress's intent
that the scope of the term ``navigable waters'' be broader than the
limitations of earlier water pollution control statutes and agency
determinations under them (section 10 waters and their tributaries, for
example, under the Rivers and Harbors Act of 1899). And, because the
significant nexus standard is focused on protecting waters to meet the
objective of the Act, it also comports with congressional intent.
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. Indeed, the Court in Riverside
Bayview concluded that ``significant effects'' is the relevant basis
for asserting jurisdiction over adjacent wetlands: ``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.'' Id. at 135 n.9. In
Rapanos, Justice Kennedy--referencing the Court in Riverside Bayview--
stated that ``the Court indicated that `the term ``navigable'' as used
in the Act is of limited import,' [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.' ''
547 U.S. at 779 (Kennedy, J., concurring in the judgment) (citing
Riverside Bayview, 474 U.S. at 133, 135). ``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.'' Rapanos, 547 U.S. at 779 (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
[[Page 3037]]
``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 wetland functions as
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. Scientific
evidence indicates that wetlands play a critical role in controlling
and filtering runoff'' Id. at 777 (citing Brief for Association of
State Wetland Managers et al. 21-23; Brief for Environmental Law
Institute 23; 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)).
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--``its traditional
jurisdiction over waters that were or had been navigable in fact or
which could reasonably be so made''--and the Court's guidance on
avoiding an administrative interpretation of a statute that invokes the
outer limits of Congress's power. 531 U.S. at 172; see also id. (``[W]e
expect a clear indication that Congress intended that result.''). With
respect to section 404 authority over an abandoned sand and gravel pit
based simply on whether it was used by migratory birds (the ``Migratory
Bird Rule''), the SWANCC Court concluded that there was not a clear
statement from Congress. Id. at 174. By placing traditional navigable
waters, the territorial seas, and interstate waters at the center of
the agencies' jurisdiction and covering additional waters only where
those waters significantly affect (a)(1) waters, this rule reflects the
Court's guidance. Further, in construing the statute in this rule, the
agencies have not only eschewed the ``Migratory Bird Rule,'' they have
deleted the provisions in the 1986 regulations that authorized
assertions of jurisdiction under broader Commerce Clause authority and
replaced them with the relatively permanent and significant nexus
standards.
Indeed, the provisions in the 1986 regulations authorized
assertions of jurisdiction far more broadly than under the relatively
permanent standard and significant nexus standard in this rule. First,
the regulatory text authorized the assertion of jurisdiction over
``[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 use, degradation or destruction of which could affect interstate or
foreign commerce including any such waters: Which are or could be used
by interstate or foreign travelers for recreational or other purposes;
or From which fish or shellfish are or could be taken and sold in
interstate or foreign commerce; or Which are used or could be used for
industrial purposes by industries in interstate commerce.'' 33 CFR
328.3(a)(3) (2014). This regulatory text was based on all three
categories of activity that Congress may regulate using its Commerce
Clause authority: (1) the channels of interstate commerce; (2) persons
or things in interstate commerce; and (3) activities that substantially
affect interstate commerce. See United States v. Lopez, 514 U.S. 549,
558-59 (1995). This approach thus overall was a far broader definition
of ``waters of the United States'' than this rule, which recognizes
that the Supreme Court in SWANCC held that Congress was not using all
aspects of its Commerce Clause authority. Moreover, as discussed by the
Court in SWANCC, the agencies stated in the preamble to the 1986
regulations that ``waters of the United States'' at 33 CFR 328.3(a)(3)
also included waters that ``are or would be used as habitat by birds
protected by Migratory Bird Treaties; . . . [that] are or would be used
as habitat by other migratory birds which cross state lines; . . .
[that] are or would be used as habitat for endangered species; or . . .
[waters] [u]sed to irrigate crops sold in interstate commerce.'' 51 FR
41206, 41217 (November 13, 1986). This is the 1986 preamble language
that became known as the ``Migratory Bird Rule'' and clearly
established a far greater scope of ``waters of the United States'' than
this rule, as migratory birds use waters large and small all over the
United States with no connection to a traditional navigable water, the
territorial seas, or an interstate water.
The agencies also have carefully amended other provisions of the
1986 regulations not only to add the relatively permanent standard and
the significant nexus standard as limitations on the scope of ``waters
of the United States'' but to add additional limitations where the
agencies were concerned assertions of jurisdiction could push the
limits of the congressional authority granted to the agencies or
constitutional limits. For example, in a change from the 1986
regulations, tributaries to intrastate lakes and ponds, streams, and
wetlands that do not fall within other categories of the rule
(paragraph (a)(5) waters in this rule, which are analogous to the
``other waters'' provision of the 1986 regulations) do not qualify as
tributaries under this rule, nor do wetlands adjacent to such waters.
As set forth in this rule, the relatively permanent standard and the
significant nexus standard allow the agencies to fulfill the statute
and Congress's clearly stated objective, while being carefully crafted
to fall well within the authority granted to the agencies by Congress
and to Congress by the Constitution. As noted above, the SWANCC Court
itself viewed ``significant nexus'' as the touchstone for determining
the scope of ``waters of the United States'' in its decision in
Riverside Bayview, concluding the decision was informed by the
``significant nexus between the wetlands and `navigable waters.' '' 531
U.S. at 167. The agencies agree with the analysis of Justice Kennedy,
who explicitly addressed these constitutional concerns in Rapanos,
stating: ``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. Moreover, the rule is consistent with
decades of interpretation and implementation undisturbed by Congress.
Moreover, the SWANCC Court noted that the statement in the
Conference Report for the Clean Water 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. As the numerous Supreme Court decisions
discussed above have found, Congress enacted the Clean Water Act to
establish a comprehensive Federal law protecting
[[Page 3038]]
water quality. The agencies' construction of the statute must also give
effect to the clearly stated objective of the Act and all the
provisions of the Act designed to achieve that objective. See section
IV.A.2 of this preamble. Thus, while the agencies must be mindful that
Congress was utilizing an aspect of its commerce power, they must be
similarly mindful that Congress intended to fully exercise that
authority in order to comprehensively address water pollution. The
agencies have concluded that the legislative history concerning the
intent of Congress regarding the scope of the Clean Water Act's
protections under its power over navigation confirms the
appropriateness of the agencies' construction of the Clean Water Act in
this rule. This rule ensures that waters, which either alone or in
combination significantly affect the integrity of traditional navigable
waters, the territorial seas, or interstate waters, are protected by
the Clean Water Act, and thus this rule carefully balances the limits
on Congress's authority and on the agencies' authority under the Act,
with congressional intent to comprehensively protect water quality and
to delegate the authority to do so to the agencies.
Finally, 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.''). As the United States Court
of Appeals for the Sixth Circuit observed 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 this rule ensures that the definition of ``waters
of the United States'' remains within the bounds of the Clean Water Act
and addresses the concerns raised by the Court in SWANCC while also
fulfilling the directive of Congress in enacting the Clean Water Act.
ii. The Relatively Permanent Standard Is Administratively Useful, But
Exclusive Reliance on the Standard for All Determinations Is
Inconsistent With the Objective of the Act
The agencies conclude that Federal protection is appropriate where
a water meets the relatively permanent standard: waters that are
relatively permanent, standing or continuously flowing waters connected
to paragraph (a)(1) waters, and waters with a continuous surface
connection to such relatively permanent waters or to paragraph (a)(1)
waters. Waters that meet this standard are a subset of the ``waters of
the United States'' because they will virtually always significantly
affect traditional navigable waters, the territorial seas, or
interstate waters and therefore properly fall within the Clean Water
Act's scope. However, limiting the definition of ``waters of the United
States'' to the relatively permanent standard on its own would be
inconsistent with the Act's text and objective and runs counter to
scientific principles. As discussed further below, the agencies have
included the relatively permanent standard in this rule because it
provides efficiencies and additional clarity for regulators and the
public.
Waters that meet the relatively permanent standard are within the
scope of the Clean Water Act because scientific evidence supports the
conclusion that tributaries of paragraph (a)(1) waters with relatively
permanent, standing or continuously flowing water perform important
functions that either individually, or cumulatively with similarly
situated waters in the region, have significant effects on the
chemical, physical, or biological integrity of paragraph (a)(1) waters.
The same is true of adjacent wetlands and relatively permanent open
waters with continuous surface connections to tributaries that meet the
relatively permanent standard. See Technical Support Document sections
III.A, III.B, and III.D. Tributaries that meet the relatively permanent
standard contribute consistent flow to paragraph (a)(1) waters and,
with that flow, export nutrients, sediment, food resources,
contaminants, and other materials that can both positively (e.g., by
contributing to downstream baseflow, providing food for aquatic
species, and contributing to downstream aquatic habitat) and negatively
(e.g., by exporting too much sediment, runoff, or nutrients or
exporting pollutants) affect the integrity of those paragraph (a)(1)
waters. In addition, wetlands with a continuous surface connection to
tributaries that meet the relatively permanent standard can and do
attenuate floodwaters, trap sediment, and process and transform
nutrients that might otherwise reach traditional navigable waters, the
territorial seas, or interstate waters. If the agencies assessed waters
that meet the relatively permanent standard (e.g., tributaries that
meet the relatively permanent standard or adjacent wetlands with a
continuous surface connection to such tributaries) they would virtually
always find evidence of strong factors, particularly hydrologic factors
like flow frequency and duration, that lead to strong connections and
associated effects on paragraph (a)(1) waters. Therefore, waters that
meet the relatively permanent standard will virtually always meet the
significant nexus standard.
The relatively permanent standard is useful for the agencies and
the public because it generally requires less information gathering and
assessment than the significant nexus standard. The significant nexus
standard requires evaluating whether waters, alone or in combination,
significantly affect the chemical, physical, or biological integrity of
paragraph (a)(1) waters, i.e., traditional navigable waters, the
territorial seas, and interstate waters. Such an assessment requires
considering the presence of functions for one or more subject waters
and evaluating the strength of their effects on paragraph (a)(1)
waters. In contrast, the relatively permanent standard has a more
limited focus that requires considering the flow of a tributary or
considering the surface connection between an adjacent wetland or open
water and a relatively permanent covered water. As such, while both the
significant nexus and relatively permanent standards require case-
specific, fact-based inquiries before determining whether a water meets
the definition of ``waters of the United States,'' the relatively
permanent standard will generally require less
[[Page 3039]]
assessment and thus can result in administrative efficiencies.
Standing alone as the sole test for Clean Water Act jurisdiction,
however, the relatively permanent standard has no basis in the text of
the statute and is contrary to the statute. Rather than a careful
consideration of the Clean Water Act's specialized definitions in light
of the objective of the Act, 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 and adjacent wetlands that do not have a continuous surface
connection to such relatively permanent waters or to paragraph (a)(1)
waters, is inconsistent with the Act's text and objective. In addition,
the relatively permanent standard used alone runs counter to the
science demonstrating how other categories of waters can affect the
integrity of downstream waters, including traditional navigable waters,
the territorial seas, and interstate waters. For example, many
tributaries that flow for only a short duration in direct response to
precipitation, and thus do not meet the relatively permanent standard,
are regular and direct sources of freshwater for the sparse traditional
navigable waters in the arid Southwest, such as portions of the Gila
River. In addition, many adjacent wetlands do not have a continuous
surface connection to jurisdictional waters but provide numerous flood
protection and water quality benefits to traditional navigable waters,
such as wetlands behind the extensive levee systems along the
Mississippi River.
As discussed in section IV.A.2.c of this preamble and sections
III.A.v and III.B of the Technical Support Document, 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. The 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.\60\ There is thus no scientific
basis for excluding waters simply because they are not relatively
permanent.
---------------------------------------------------------------------------
\60\ Letter from SAB to Gina McCarthy, Administrator, EPA
(October 17, 2014) (``2014 SAB Review'') at 22-23, 54 fig. 3.
---------------------------------------------------------------------------
The science is also clear that wetlands may significantly affect
paragraph (a)(1) waters when they have other types of surface or
hydrologic connections, such as wetlands that overflow across uplands
via sheetflow and flood jurisdictional waters or wetlands with less
frequent surface water connections; wetlands with shallow subsurface
connections to other protected waters; wetlands behind a natural berm,
a beach dune, a manmade levee, or the like; 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 paragraph (a)(1)
waters; improving water quality in paragraph (a)(1) waters 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 paragraph (a)(1)
waters. See, e.g., Science Report at 4-20 to 4-38.
The agencies have also concluded that there is no basis in the text
of the statute to exclude waters from Clean Water Act jurisdiction
solely because they do not meet the relatively permanent standard. As
discussed in section IV.A.2.a of this preamble, the objective of the
Clean Water Act is to restore and maintain the water quality of the
nation's waters. The phrase ``waters of the United States'' is by its
terms expansive and not expressly limited to relatively permanent,
standing or continuously flowing bodies of water, or to wetlands with a
continuous surface connection. The imposition of such limitations would
disregard the science demonstrating the effects of upstream waters and
wetlands on downstream paragraph (a)(1) waters. Taking science into
account, 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 to a paragraph
(a)(1) water. Rapanos, 547 U.S. at 773-74 (Kennedy, J., concurring in
the judgment) (``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.''); 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.'').
The agencies have concluded that there is no sound basis in the
text of the statute to exclude tributaries solely on the basis that
they are not relatively permanent, standing or continuously flowing
bodies of water from the Clean Water Act. In interpreting the Clean
Water Act to be limited in such a manner, the Rapanos plurality relied
on a strained reading of the Act that is inconsistent with the text of
the statute--including the statute's stated objective--the structure of
the statute, the statutory history, and Supreme Court precedent
interpreting the Clean Water Act.
First, the plurality stated that because one entry in a dictionary
defines ``waters'' to mean ``water `[a]s found in streams and bodies
forming geographical features such as oceans, rivers, [and] lakes,' or
`the flowing or moving masses, as of waves or floods, making up such
streams or bodies,' '' Rapanos, 547 U.S. at 732 (quoting Webster's New
International Dictionary 2882 (2d ed. 1954) (hereinafter, ``Webster's
Second'')), the phrase ``navigable waters'' permits Corps and EPA to
assert jurisdiction only over ``relatively permanent, standing or
flowing bodies of water.'' Rapanos, 547 U.S. at 732. The plurality
leans heavily on the fact that Congress defined ``navigable waters'' as
``the waters of the United States.'' 33 U.S.C. 1362(7) (emphasis
added). But the article ``the'' and plural ``waters'' cannot bear this
weight. Congress used the term ``the waters'' throughout the Clean
Water Act and in usages where it would be illogical to swap in the
plurality's preferred definition. For example, throughout the Act,
Congress frequently refers to ``the waters of the contiguous zone'' and
even ``the waters of the territorial seas, the contiguous zone, and the
oceans.'' 33 U.S.C. 1343(a), (c) (emphasis added). Congress is not
making a careful distinction between some of ``the waters'' of the
contiguous zone and other waters of the contiguous zone based on a
dictionary definition. Nor did Congress intend to single out some
waters of the Great Lakes when it instructed the Administrator to
``conduct research and technical development work, and make studies,
with respect to the quality of the waters of the Great Lakes.'' 33
U.S.C. 1254(f) (emphasis added).
[[Page 3040]]
The plurality relied on one particular dictionary definition to
limit the scope of the ``waters of the United States'' in a way that is
neither compelled by, nor consistent with, the text of the statute. The
plurality selected a dictionary, Webster's Second that was not even the
most recent edition as of passage of the Clean Water Act, and thus not
as reflective of common usage, and then selected a preferred definition
within that dictionary. See Rapanos, 547 U.S. at 732. Webster's Second
does not have a separate entry for ``waters'' (plural), so the
plurality relied on its entry for ``water'' (singular) and within that
skipped over several more apt definitions to reach its preferred one.
The first definition of ``water'' within Webster's Second (1.a. of the
definition) is ``[t]he liquid which descends from the clouds in rain
and which forms rivers, lakes, seas, etc.,'' a definition that is
substantially broader than the one chosen by the plurality. The
plurality's preferred definition, ``water as found in streams and
bodies forming geographical features such as oceans, rivers, and
lakes,'' is halfway down the column, definition 2.c. Moreover, the
definition of ``waters,'' plural, in the most contemporaneous
Webster's, was also substantially broader, providing the following
definition: ``the water occupying or flowing in a particular bed.''
Webster's Third New Intl. (1966). Even taking the plurality's preferred
definition at face value, it does not support the relatively permanent
standard. That definition includes ``water as found in streams.'' The
plurality concluded that the streams referred to in the definition must
be relatively permanent and thereby concluded that the ``waters of the
United States'' do not include intermittent and ephemeral streams
(although the plurality did not use those terms in the scientific sense
and added caveats to its stated textual reading of the statute--stating
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 months''). Rapanos, 547 U.S. at 732
n.5 (emphasis in original). Intermittent and ephemeral streams are, of
course, ``streams''--as they are defined in the dictionary, understood
in common parlance, and defined by scientists.
The agencies thus agree with Justice Kennedy that the limitations
the plurality imposes on the Clean Water Act ``are without support in
the language and purposes of the Act or in our cases interpreting it.''
Rapanos, 547 U.S. at 768. The agencies also agree that a permanent
standing water or continuous flow requirement ``makes little practical
sense in a statute concerned with downstream water quality.'' Id. at
769. And, as discussed above, ``a full reading of the dictionary
definition precludes the plurality's emphasis on permanence: The term
`waters' may mean `flood or inundation,' events that are impermanent by
definition;'' it follows that ``the Corps can reasonably interpret the
Act to cover the paths of such impermanent streams.'' Id. at 770
(quoting Webster's Second 2882).
The agencies also have concluded that Riverside Bayview does not
support the plurality's standard for tributaries. As Justice Kennedy
stated: ``To be sure, the Court there compared wetlands to `rivers,
streams, and other hydrographic features more conventionally
identifiable as ` ``waters.'' ' Rapanos, 547 U.S. at 771 (citing
Riverside Bayview, 474 U.S. at 131). ``It is quite a stretch to claim,
however, that this mention of hydrographic features `echoe[s]' the
dictionary's reference to ` ``geographical features such as oceans,
rivers, [and] lakes.'' ' Rapanos, 547 U.S. at 771 (citation omitted).
``In fact, the Riverside Bayview opinion does not cite the dictionary
definition on which the plurality relies, and the phrase `hydrographic
features' could just as well refer to intermittent streams carrying
substantial flow to navigable waters.'' Id. at 771 (citing Webster's
Second 1221 (defining ``hydrography'' as ``[t]he description and study
of seas, lakes, rivers, and other waters; specif[ically] . . . [t]he
measurement of flow and investigation of the behavior of streams,
esp[ecially] with reference to the control or utilization of their
waters'')).
With respect to wetlands, the agencies have also concluded there is
no sound basis in the text of the Clean Water Act or in other Supreme
Court precedent for requiring that wetlands can be jurisdictional only
if they satisfy the continuous surface connection requirement of the
relatively permanent standard. The Rapanos plurality's rationale for
adopting such a test rested largely on a misreading of Riverside
Bayview. The plurality's brief discussion did not otherwise attempt to
ground its relatively permanent standard in the text, history, or
purpose of the Clean Water Act. In concluding that only wetlands with a
continuous surface connection to other covered waters are protected by
the Clean Water Act, the Rapanos plurality relied primarily on two
related propositions that it viewed as implicit in Riverside Bayview.
First, the plurality suggested that in Riverside Bayview the Clean
Water Act term ``waters'' cannot easily be construed to cover wetlands,
and that discharges into wetlands therefore can be regulated only when
particular wetlands ``adjoined'' waters of the United States and were
thus deemed ``part of'' the waters to which they are adjacent. See 547
U.S. at 740. Second, the plurality concluded that this requirement will
be satisfied only when ``the wetland has a continuous surface
connection with [the adjacent] water.'' Id. at 742. Those propositions
are unsound and rest on a misreading of Riverside Bayview.
The Rapanos plurality quoted the Riverside Bayview Court's
statement that, ``[o]n a purely linguistic level, it may appear
unreasonable to classify `lands,' wet or otherwise, as `waters.' '' 547
U.S. at 740 (quoting Riverside Bayview, 474 U.S. at 132). In the next
sentence of its opinion, however, the Riverside Bayview Court
continues, and the Rapanos plurality omits, that ``[s]uch a simplistic
response . . . does justice neither to the problem faced by the Corps
in defining the scope of its authority under Sec. 404(a) nor to the
realities of the problem of water pollution that the Clean Water Act
was intended to combat.'' 474 U.S. at 132. The Riverside Bayview Court
concluded that ``adjacent wetlands may be defined as waters under the
Act.'' Id. at 134. And, as explained above, the Clean Water Act's text,
history, and purpose likewise confirm that adjacent wetlands are
themselves ``waters'' covered by the Act.
The Rapanos plurality read Riverside Bayview as resting on the
``inherent ambiguity in drawing the boundaries of any `waters.''' 547
U.S. at 740. The plurality also described SWANCC as having read
Riverside Bayview to be ``refer[ring] to the close connection between
waters and the wetlands that they gradually blend into.'' Rapanos, 547
U.S. at 741. The plurality concluded that ``only those wetlands with a
continuous surface connection to bodies that are `waters of the United
States' in their own right'' can be protected by the Clean Water Act,
because only in that circumstance is it ``difficult to determine where
the `water' ends and the `wetland' begins.'' Id. at 742. However, the
Rapanos plurality misconceived the nature of the line-drawing problem
in Riverside Bayview. The Riverside Bayview Court identified
``shallows, marshes, mudflats, swamps, [and] bogs'' as examples of
``areas that are not wholly aquatic but nevertheless fall far short of
being dry land,'' and it
[[Page 3041]]
observed that ``[w]here on this continuum to find the limit of `waters'
is far from obvious.'' 474 U.S. at 132. The line-drawing problem in
Riverside Bayview did not involve identifying the boundary between a
jurisdictional stream and an adjacent wetland. Rather, the line-drawing
problem involved the criteria that should be used to determine whether
particular types of hydrogeographic features should be regarded as
``waters'' under the Clean Water Act. That line-drawing problem--in
essence, determining how wet is wet enough--can arise even when a
particular swamp or marsh is separated by a barrier from a nearby lake
or stream. After discussing at some length the regulatory definition of
``wetlands'' and its application to the property at issue in that case,
see id. at 129-131, the Riverside Bayview Court upheld as reasonable
``the Corps' approach of defining adjacent wetlands as `waters' within
the meaning of'' the Clean Water Act. Id. at 132.
As further support for its relatively permanent standard, the
Rapanos plurality invoked SWANCC's holding that certain isolated ponds
were not covered by the Clean Water Act. The SWANCC Court had described
Riverside Bayview as resting on ``the significant nexus between the
wetlands and'' the waters to which they are adjacent. 531 U.S. at 167.
The Rapanos plurality in turn described SWANCC as ``reject[ing] the
notion that the ecological considerations upon which the Corps relied
in Riverside Bayview . . . provided an independent basis for including
entities like `wetlands' . . . within the phrase `the waters of the
United States.' '' 547 U.S. at 741 (citation omitted). In the
plurality's view, ``SWANCC found such ecological considerations
irrelevant to the question whether physically isolated waters come
within the Corps' jurisdiction,'' because the coverage inquiry for the
``[i]solated ponds'' at issue in that case ``presented no boundary-
drawing problem that would have justified the invocation of ecological
factors.'' Id. at 741-742. Contrary to the Rapanos plurality's
suggestion, the Court in SWANCC did not hold that the particular
``ecological considerations upon which the Corps relied in Riverside
Bayview,'' 547 U.S. at 741--i.e., the potential importance of wetlands
to the quality of adjacent waters--were irrelevant to Clean Water Act
jurisdiction. Rather, the Court held that a different ecological
concern, namely the potential use of the isolated ponds as habitat for
migratory birds, could not justify treating those ponds as ``waters of
the United States.'' See 531 U.S. at 164-165, 171-172. That ecological
concern was not cognizable because it was unrelated to ``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 (citation omitted).
Aside from its mistaken reliance on Riverside Bayview and SWANCC,
the Rapanos plurality did not attempt to ground the relatively
permanent standard in the Clean Water Act's text or history. See 547
U.S. at 739-742. And limiting Clean Water Act coverage to wetlands with
a continuous surface connection would affirmatively undermine the Act's
purpose by creating an illogical jurisdictional gap. It would
categorically exclude wetlands separated from covered waters by a dike
or similar barrier, even if they are closely connected by subsurface
flow or periodic floods, regardless of such wetlands' ecological
importance to covered waters nearby and downstream. The agencies have
concluded that overwhelming scientific evidence shows that such
wetlands may significantly affect paragraph (a)(1) waters. See Science
Report 4-20 to 4-38; Technical Support Document section III.B.
Additionally, the relatively permanent standard was not briefed in
Rapanos. See 547 U.S. at 800 (Stevens, J., dissenting). And the
plurality's terse discussion of the issue did not elaborate on either
aspect of that standard in any detail. The plurality stated 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 months.'' 547 U.S. at 732 n.5 (emphasis
in original). The Rapanos plurality distinguished a ``continuous
surface connection'' from ``an intermittent, physically remote
hydrologic connection,'' but gave little further guidance on the
application of its test. Id. at 742 (plurality opinion). As long as the
relatively permanent standard is understood as a useful but not
exclusive standard for Clean Water Act coverage, it has not created
arbitrary and harmful results.
If the relatively permanent standard were the sole standard, a
small surface connection would suffice, but the presence of a levee to
protect a river and its adjacent wetlands could strip the wetlands of
Clean Water Act coverage since, under the relatively permanent
standard, a human-made barrier such as a levee means that there is not
a continuous surface connection between the river and the wetlands.
This result would be irrational and contrary to the objectives of the
statute. The Mississippi River, for example, features an extensive
levee system built to prevent flooding. The Upper Mississippi Valley
alone includes approximately 17,000 kilometers (more than 10,000 miles)
of levees. Technical Support Document section III.B.ii.2. Those levees
would preclude Clean Water Act coverage under the relatively permanent
standard even though adjacent wetlands are often a necessary part of
the flood-control project--detaining floodwaters to protect surrounding
and downstream communities--and even though the wetlands maintain a
hydrologic connection to the river system. Cf. R. Daniel Smith &
Charles V. Klimas, Eng'r Rsch. & Dev. Ctr., A Regional Guidebook for
Applying the Hydrogeomorphic Approach to Assessing Wetland Functions of
Selected Regional Wetland Subclasses, Yazoo Basin, Lower Mississippi
River Alluvial Valley 47, 48-49 (April 2002).
More broadly, the relatively permanent standard's continuous
surface connection requirement could make loss of Clean Water Act
jurisdiction a consequence of building a road, levee, or other
barrier--even if the construction had little or no effect on the
interdependent relationship between a wetland and a neighboring water.
That could create perverse incentives to build or modify such barriers
in a manner aimed either at destroying or preserving Federal
jurisdiction.
Further, as discussed above, Congress declined to narrow the scope
of ``waters of the United States'' when it amended the Clean Water Act
in 1977. The relatively permanent standard amends the Clean Water Act
to limit its scope in ways that Congress has considered doing but has
repeatedly declined to do, including through legislation introduced
after the Rapanos decision and after promulgation of the 2020 NWPR.\61\
As Justice Kennedy stated:
[[Page 3042]]
``To be sure, Congress could draw a line to exclude irregular
waterways, but nothing in the statute suggests it has done so. Quite
the opposite.'' 547 U.S. at 770.
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\61\ See, e.g., Navigable Waters Protection Act, S. 2567, 117th
Cong. (2021) (proposing to codify the 2020 NWPR as Federal
legislation); Define WOTUS Act, S. 2356, 116th Cong. (2019)
(proposing to revise the Clean Water Act to define ``navigable
waters'' to include the territorial seas, interstate waters used in
the transport of interstate or foreign commerce, and waters meeting
the Rapanos plurality's standard); S.J. Res. 22, 114th Cong. (2015)
(proposing to nullify the 2015 Clean Water Rule); Defense of
Environment and Property Act, H.R. 3377, 113th Cong. (2013)
(proposing to revise the Clean Water Act to limit ``waters of the
United States'' to navigable-in-fact waters and ``permanent or
continuously flowing bodies of water that form geographical features
commonly known as streams, oceans, rivers, and lakes that are
connected to waters that are navigable-in-fact''); Amendment 2177,
S. 3240, 112th Cong. (2012) (proposing to amend an appropriations
bill to limit the Clean Water Act's definition of ``waters of the
United States'' to navigable-in-fact waters and ``permanent,
standing or continuously flowing bodies of water that form
geographical features commonly known as streams, oceans, rivers, and
lakes that are connected to waters that are navigable-in-fact'').
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Finally, 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 2020 NWPR, however, interpreted the statute to primarily
find waters jurisdictional only if they met the relatively permanent
standard, as that standard was specifically interpreted in the 2020
NWPR. The 2020 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 22250, 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 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
2020 NWPR. See 85 FR 22338-39; see also 2020 NWPR regulatory text at 33
CFR 328.3(a), (c)(1), (c)(6), (c)(12). The 2020 NWPR disregards the
significant nexus standard, see generally 85 FR 22270, 22338-39 (April
21, 2020); 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. For the reasons articulated
throughout sections IV.A and IV.B of this preamble, the agencies reject
the 2020 NWPR's interpretation of ``waters of the United States'' as
inconsistent with the objective of the Clean Water Act, the science,
and the case law.
While the relatively permanent standard is administratively useful
and includes waters that have important effects on the water quality of
paragraph (a)(1) waters, the standard excludes waters that properly
fall within the Clean Water Act's protections. As a result, this rule's
incorporation of jurisdictional limitations based upon the relatively
permanent standard and the significant nexus standard reflects the text
of the statute as a whole. Thus, with this rule, the agencies properly
fulfill their congressionally delegated responsibility to construe
``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 Appropriate
The agencies have the discretion to consider defining waters as
jurisdictional on a categorical basis where scientifically and legally
justified (for example in this rule, paragraph (a)(1) waters and their
adjacent wetlands) or a case-specific, fact-based approach (for
example, in this rule, tributaries and their adjacent wetlands that
meet the significant nexus standard or relatively permanent standard).
While the latter does not necessarily provide the same certainty as
defining waters as jurisdictional by category, case-specific
determinations of the scope of Clean Water Act jurisdiction are not
unusual--in fact, they are the norm. 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 determining jurisdiction
that does not establish bright lines marking the bounds of Federal
jurisdiction. Instead, like the significant nexus standard, the
standard in Maui requires an inquiry focused on the specific facts at
issue and is guided by the purposes Congress sought to achieve under
the Clean Water Act. In Maui, the Supreme Court considered whether
discharges to groundwater that reach navigable waters are
jurisdictional under the Clean Water 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 this rule. Both standards require an analysis
focused on the specific facts at issue in a particular instance. Under
the ``functional equivalent'' standard, factors that may be relevant,
depending on the circumstances of a particular case, include transit
time, distance traveled, the geologic substrate through which the
discharges travels, the location and nature of the receiving water, and
other factors. Similarly, the significant nexus standard requires
consideration of scientific principles of upstream functions and
effects on the integrity of paragraph (a)(1) waters and facts related
to the specific waters at issue. Indeed, this rule includes a list of
factors that would be considered when assessing whether waters
significantly affect paragraph (a)(1) waters that is similar in nature
to the factors identified by the Court that may be relevant to making a
``functional equivalent'' assessment. See section IV.C.9 of this
preamble. The relatively permanent standard also
[[Page 3043]]
requires inquiry into specific facts about particular tributaries,
wetlands, and open waters, 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. The Maui Court's analysis underscores
the agencies' concerns about the 2020 NWPR, which categorically
excluded all ephemeral tributaries and wetlands that did not meet its
very narrow definition in spite of their impact on the chemical,
physical, and biological integrity of paragraph (a)(1) waters. In this
rule, the agencies are rejecting that approach and resuming the use of
the significant nexus standard to determine which waters have a
sufficient impact on traditional navigable waters, the territorial
seas, or interstate waters.
Finally, both the functional equivalent standard and the
significant nexus standard should be applied while keeping in mind the
purposes of the Clean Water 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. With this rule,
the agencies have established limits that appropriately draw the
boundary of ``waters of the United States'' by ensuring that, where
upstream waters significantly affect the integrity of waters and the
Federal interest is indisputable--the traditional navigable waters, the
territorial seas, and interstate waters--Clean Water Act programs apply
to ensure that the downstream waters are adequately protected (by
protecting those upstream waters). This rule continues the use of case-
specific jurisdictional tests but also provides needed clarity by
establishing regulations that include definitions of key terms and
specific exclusions. Moreover, the agencies have extensive experience
making jurisdictional determinations using the relatively permanent
standard and the significant nexus standard. Field staff have gained
extensive familiarity and practical experience with the national and
regionally specific field methods, literature, datasets, models, and
tools that are required to make such determinations, resulting in
increased efficiencies over time. See section IV.C.10 of this preamble.
In addition, this rule increases clarity and implementability by
streamlining and restructuring the 1986 regulations, and this preamble
provides implementation guidance informed by sound science,
implementation tools (including modern assessment tools), and other
resources.
b. This Rule Reflects Full and Appropriate Consideration and Balancing
of the Water Quality Objective in Section 101(a) and the Policies
Relating to Responsibilities and Rights of Tribes and States Under
Section 101(b) of the Clean Water Act
This rule reflects consideration of the statute as a whole,
including the objective of the Clean Water Act and the policies of the
Act with respect to the role of Tribes and States. As discussed in
section IV.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 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 in 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 ensure that the agencies
advance 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 this rule both advances the objective of the
Clean Water Act in section 101(a) and respects the role of Tribes and
States in section 101(b).\62\ The rule appropriately draws the boundary
of waters subject to Federal protection by limiting the scope to the
protection of upstream waters that significantly affect the integrity
of waters where the Federal interest is indisputable--the traditional
navigable waters, the territorial seas, and interstate waters. Waters
that do not implicate the Federal interest in these paragraph (a)(1)
waters are not included within the scope of Federal jurisdiction. The
scope and boundaries of the definition therefore reflect the agencies'
considered judgment of both the Clean Water Act's objective in section
101(a) and the congressional policy relating to States' rights and
responsibilities under section 101(b).
---------------------------------------------------------------------------
\62\ 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 agencies have carefully considered sections 101(a) and 101(b)
as well as the agencies' analysis and application of these provisions
in promulgating the 2020 NWPR. In several key respects, the agencies'
consideration and weighing of these provisions in this rulemaking
differs from the agencies' approach in the 2020 NWPR. The agencies
explained in the preamble to the proposed rule why the agencies'
revised approach represents a fuller and more appropriate consideration
of these provisions than reflected in the 2020 NWPR, and the agencies
reaffirm those positions. 86 FR 69399 (December 7, 2021). As discussed
below, based on the text of section 101(b), the structure of section
101 and the Clean Water Act as a whole, Supreme Court precedent, and
the history of Federal water pollution laws enacted by Congress up
through the 1972 amendments, the construction of the Act in this rule
fully and appropriately considers sections 101(a) and 101(b).
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 paragraph (a)(1)
waters--i.e., traditional navigable waters, the territorial seas, and
interstate waters. And consistent with the section 101(b) policy, where
protection (or degradation) of waters does not implicate this Federal
interest, such waters fall exclusively within Tribal or
[[Page 3044]]
State regulatory authority should they choose to exercise it. However,
there is no indication in any text of the statute that Congress
established section 101(b) as the lynchpin of defining the scope of
``waters of the United States.'' Rather, the Clean Water Act's
objective--restoring and maintaining the chemical, physical, and
biological integrity of the nation's waters--is set forth in the first
words of the first section of the statute. And the statute is designed
to address that objective through a ``comprehensive'' Federal program
of pollution control. Indeed, the text of section 101(b) is actually a
recognition of States' authority to ``prevent, reduce, and eliminate
pollution'' and provide support for the Administrator's exercise of his
or her authority to advance the objective of the Clean Water Act.
The text of section 101(b) also expressly recognizes States' role
in administering the Federal permitting programs under section 402 of
the Clean Water Act:
It is the policy of Congress that the States manage the
construction grant program under this chapter and implement the
permit programs under sections 1342 [402] and 1344 [404] of this
title. 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, the text of section 101(b) as a whole does not reflect a
general policy of deference to State regulation to the exclusion of
Federal regulation, which would be inconsistent with Congress's
enactment of the Clean Water Act because of the failures of a statutory
scheme that relied primarily on State enforcement of State water
quality standards. S. Rep. No. 92-414, 92d Cong., 1st Sess. 7 (1971)
(observing that prior statutes had been ``inadequate in every vital
aspect''). Instead, section 101(b) sets forth a policy focused on
preserving the responsibilities and rights of States to work to achieve
the objective of the Act. Those rights and responsibilities are to
prevent, reduce, and eliminate 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 or her Clean Water Act authority, and implementing the Act's
regulatory permitting programs, in partnership and with technical and
financial support from the Federal Government.
The agencies' interpretation and consideration of section 101(b) in
this rule 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, e.g., Arkansas v.
Oklahoma, 503 U.S. 91, 101 (1992) (stating that the Act ``anticipates a
partnership between the States and the Federal government'' to meet the
``shared objective'' in section 101(a), with the Federal Government
setting pollutant discharge limitations and States implementing water
quality standards for their respective waterbodies); Int'l Paper Co. v.
Ouellette, 479 U.S. 481, 489-90 (1987) (describing section 101(b) as
allowing the Federal Government to delegate administration of point
source pollution permits to States and allowing States to establish
more stringent discharge limitations than Federal requirements); Train
v. Colo. Pub. Interest Grp., 426 U.S. 1, 16 & n.13 (1976) (describing
section 101(b) as providing States authority to develop permit programs
and establish standards more stringent than those under the Clean Water
Act); see also City of Milwaukee v. Illinois, 451 U.S. 304, 341 (1981)
(Blackmun, J., dissenting) (describing section 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). While this rule does not directly
establish or alter a Clean Water Act program, these decisions informed
the agencies' deliberations because the definition of ``waters of the
United States'' affects the scope of Clean Water Act programs.
The agencies have also carefully considered the policy in section
101(b) as it relates to the Clean Water Act's objective in section
101(a). The Clean Water Act's structure makes clear that section 101(a)
sets forth 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 Clean Water Act. The agencies
interpret its placement and its simple, declarative, and overarching
statement as a powerful expression by Congress that merits substantial
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), (g). Just as
none of those policies plays a central role in defining the scope of
the Clean Water Act, neither should section 101(b) be given such
prominence as to undermine Congress's stated objective. The prominently
placed and single expression of the Clean Water Act's overarching
objective in section 101(a) merits greater weight in the agencies'
decision-making than any of the four congressional policies expressed
in section 101 which, while important, appear subordinate to the
objective--particularly given the statutory text and structure. To the
extent there is ambiguity, the agencies have been delegated the
authority to define ``waters of the United States'' and again conclude
based on the statutory text and structure, and confirmed by the
legislative history, that the overarching objective of the Act merits
greater weight. The agencies have also thoroughly considered the other
policies in section 101 of the Act, especially section 101(b) as
discussed in this section of the preamble.
The remainder of the Clean Water Act's text also demonstrates how
important this objective was to Congress. In the Clean Water Act
itself, Congress refers to the objective of the Act approximately a
dozen times, including in sections 104, 105, 117, 120, 217, 301, 303,
304, 305, 308, 319, 402, 516, 518, and 603. The repeated reference to
the objective highlights the importance of the Clean Water Act's
objective to the statute as a whole, supporting the agencies' giving
substantial weight to this provision. Section 101(b), in contrast, is
not referred to elsewhere in the Clean Water Act.
Congress itself defined the contours of how it expected the
agencies to both achieve its objective in section 101(a) and implement
its policy in section 101(b) through the rest of the provisions of the
Clean Water Act. Notably, a narrow definition of ``waters of the United
States'' would not uniformly boost State authority as that definition
is foundational to the scope of all of the Clean Water Act's programs,
including those in which the States are assigned authority. Indeed, in
implementing Clean Water Act regulatory requirements, States can have
more powerful and holistic tools than they would have in implementing
State-only laws and regulations. For example,
[[Page 3045]]
section 401 requires State certification for federally licensed
projects within a State's borders. A narrow definition of ``waters of
the United States'' would thus actually limit States' ability to
protect waters within their borders. Similarly, a narrow definition
would limit the ability of a State to provide input during the
permitting process for out-of-state section 402 and 404 permits that
may affect its waters. See 33 U.S.C. 1341, 1342(b), 1344(h)(1)(E).
The agencies' careful balancing of section 101(a) and 101(b) in
this rule is also informed by and consistent with the Court's decision
in SWANCC, wherein the Court stated: ``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. . . .' We thus read the statute as written to avoid the
significant constitutional and federalism questions.'' 531 U.S. at 174
(citing 33 U.S.C. 1251(b)). 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, this rule--by limiting
jurisdiction only to those waters that significantly affect the
integrity of waters where the Federal interest is indisputable
(traditional navigable waters, the territorial seas, and interstate
waters)--avoids constitutional and federalism concerns.
Under the Commerce Clause, Congress can regulate: (1) the channels
of interstate commerce; (2) persons or things in interstate commerce;
and (3) activities that substantially affect interstate commerce.
United States v. Lopez, 514 U.S. 549, 558-59 (1995). Regulation of
``waters of the United States'' as interpreted by this rule is a valid
exercise of Congress's power under at least the first Lopez category.
It is a well-settled proposition that Congress's power to regulate
channels of interstate commerce also includes the power to adopt
``appropriate and needful control of activities and agencies which,
though intrastate, affect that commerce.'' Rapanos, 547 U.S. at 782-83
(citing Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508,
525-26 (1941)). Traditional navigable waters are squarely within
Congress's power to regulate under its authority over the channels of
interstate commerce. And ``[i]t has long been settled that Congress has
extensive authority over this Nation's waters under the Commerce
Clause'' as channels of interstate commerce. See Kaiser Aetna v. United
States, 444 U.S. 164, 173 (1979). Indeed, Congress has enacted
``numerous laws touching interstate waters.'' City of Milwaukee, 406
U.S. at 101. Congress has broad power to keep the channels of commerce
free from injurious uses. See, e.g., Pierce Cnty. v. Guillen, 537 U.S.
129, 146-47 (2003); Lopez, 514 U.S. at 558; Perez v. United States, 402
U.S. 146, 150 (1971); Caminetti v. United States, 242 U.S. 470, 491
(1917); The Lottery Case (Champion v. Ames), 188 U.S. 321, 346-47
(1903). Thus, courts have recognized that the power over traditional
navigable waters as channels of commerce includes ``the power to
regulate waters to limit pollution, prevent obstructions to navigation,
reduce flooding, and control watershed development.'' United States v.
Hubenka, 438 F.3d 1026, 1032 (10th Cir. 2006) (citations omitted). As
noted earlier, Congress directed that the Clean Water Act ``be given
the broadest possible constitutional interpretation,'' S. Conf. Rep.
No. 92-1236, 92d Cong., 2d Sess. 144 (1972), and 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. Va. Surface Mining &
Reclamation Ass'n, 452 U.S. 264, 282 (1981). The Supreme Court has
stated that the term ``navigable'' must be given some meaning in
defining ``waters of the United States.'' SWANCC, 531 U.S. at 172;
Rapanos, 547 U.S. at 779 (Kennedy, J., concurring in the judgment). The
agencies' construction of the Clean Water Act does that by defining
``waters of the United States'' to include traditional navigable
waters, the territorial seas, and interstate waters, and those waters
that significantly affect those waters. But while Congress was
utilizing only one prong of its Commerce Clause authority, that prong
is nevertheless broad. Indeed, ``there is no reason to believe Congress
has less power over navigable waters than over other interstate
channels,'' such that Congress cannot regulate non-navigable waters in
order to protect water quality in traditional navigable waters. United
States v. Deaton, 332 F.3d 698, 707 (4th Cir. 2003). This rule and the
significant nexus standard are squarely within the prong of Commerce
Clause authority that Congress utilized in enacting the Clean Water Act
and within the authority Congress delegated to the agencies under the
Act. Both the rule and the standard are based on protecting traditional
navigable waters, the territorial seas, and interstate waters from the
effects of upstream pollution.
Finally, in considering sections 101(a) and 101(b) for purposes of
interpreting the scope of ``waters of the United States,'' the agencies
conclude that 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 (1971) at 5. 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 Clean Water 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. With effluent
limits, the Administrator can require the best control technology.'' S.
Rep. 92-414 at 8. 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. Tribes
[[Page 3046]]
and States play a vital role in the implementation and enforcement of
the Clean Water Act, and this rule does not change that framework.
Instead, this rule reinforces that framework by establishing
limitations that reflect careful consideration of how best to identify
those waters for which Federal regulation is necessary to ensure the
protection of the waters at the core of Congress's authority and
interest and those for which it is not.
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. at 133. More recently, the Supreme Court in Maui also noted
that: ``Prior to the Act, Federal and State Governments regulated water
pollution in large part by setting water quality standards. 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.'' 140 S. Ct. at 1468 (citations omitted).
With respect to States' responsibilities and rights under section
101(b), Justice Kennedy in Rapanos cited State amici briefs that
``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 City of Milwaukee 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., including a ``uniform system of interstate water
pollution regulation,'' Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992).
An overly narrow definition of jurisdictional waters would threaten
a return to pre-1972 regime, would exclude from Federal protection
waters that significantly affect paragraph (a)(1) waters, and would
risk removing from the statutory scheme instances of interstate
pollution the 1972 amendments were designed in part to address.
Nationwide pollution controls are critical to protecting water quality
in downstream States because downstream States have limited ability to
control water pollution sources in upstream States. See Int'l Paper Co.
v. Ouellette, 479 U.S. at 490-91. Several commenters stated that, under
the 2020 NWPR, certain States were subject to harm from increased
pollution flowing through interstate waters from upstream States. In
addition, commenters noted that the water quality in States bordering
the Great Lakes depended on adequate protection in other Great Lakes
States, some of which removed clean water regulations following
promulgation of the 2020 NWPR. The consequences of water pollution
discharged in one State and flowing to another are also economic in
nature. Such pollution also destroys or diminishes the value of water
to ``public water supplies, propagation of fish and wildlife,
recreational purposes, and agricultural, industrial, and other
purposes'' protected by the Clean Water Act. 33 U.S.C. 1313(c)(2)(A).
Moreover, an overly narrow definition of ``waters of the United
States'' would substantially impinge upon States' responsibilities and
rights under section 401 of the Clean Water Act. It is only through
that provision of the Act that States have the authority to grant,
deny, or waive certification of proposed Federal licenses or permits
that may discharge into waters of the United States.
By promulgating a rule interpreting the Clean Water Act to cover
waters that meet the relatively permanent standard or the significant
nexus standard, the agencies have appropriately construed the Act to
protect those waters necessary to protect the integrity of traditional
navigable waters, the territorial seas, and interstate waters, while
leaving regulatory authority over all the waters that do not have the
requisite connection to paragraph (a)(1) waters exclusively to the
Tribes and States. This construction respects the statutory history
that gave rise to the Clean Water Act and gives effect to the
comprehensive nature of the Act, its objective, and the many programs
and policies affected by the scope of ``waters of the United States''
designed to meet that objective. This definition also ensures that
States have sole authority over waters that do not significantly affect
the paragraph (a)(1) waters clearly protected by the Act.
As discussed elsewhere, this rule defines ``waters of the United
States'' to include tributaries, adjacent wetlands, and paragraph
(a)(5) waters that meet the relatively permanent or significant nexus
standards (see section IV.C of this preamble). This rule advances the
Clean Water Act's objective by helping restore and maintain the
chemical, physical, and biological integrity of traditional navigable
waters, the territorial seas, and interstate waters--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), this rule recognizes,
preserves, and protects the rights and responsibilities of Tribes and
States by leaving within their purview all waters that do not
significantly affect the paragraph (a)(1) waters of paramount Federal
interest. The specific jurisdictional standards in this rule therefore
bear a relationship to the nature and extent of the Federal and Tribal
and State interests at play. This line-drawing highlights the agencies'
deliberate and due consideration of sections 101(a) and 101(b) in
developing this rule.
4. This Rule Is Both Generally Familiar and Implementable
As described above in section IV.A of this preamble, the agencies
in this rule are interpreting ``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 ``waters of the United States'' informed by the text of the
relevant provisions of the Clean Water Act and the statute as a whole,
the scientific record, relevant Supreme Court precedent, and the
agencies' experience and technical expertise after more than 45 years
of implementing the longstanding pre-2015 regulations defining ``waters
of the United States.'' It also reflects consideration of extensive
public comment.
The agencies have extensive experience implementing the pre-2015
regulatory regime, as described further below in this section, and this
experience will assist the agencies in implementing this rule. The
agencies' approach to implementation of the relatively permanent and
significant nexus standards is broadly consistent with the pre-2015
regulatory regime, but the agencies have clarified and refined both the
regulatory text and the guidance on how the agencies intend to
implement these standards in order to promote consistent Clean Water
Act protections for waters. For additional
[[Page 3047]]
clarity, this rule includes a definition of ``significantly affect''
for purposes of applying the significant nexus standard. See section
IV.C of this preamble.
Additionally, the agencies are codifying the two familiar and
longstanding exclusions from the definition of ``waters of the United
States'' for prior converted cropland and waste treatment systems and
adding exclusions for features that were generally considered non-
jurisdictional under the pre-2015 regulatory regime (see section IV.C.7
of this preamble). The features excluded under this rule were excluded
by regulation or generally considered non-jurisdictional in practice
under the pre-2015 regulatory regime and each of the subsequent rules
defining ``waters of the United States.''
The agencies have extensive experience implementing the 1986
regulations. Moreover, the scientific and technical information
available to inform the significant nexus analysis and identify waters
that meet the relatively permanent standard has also markedly improved
over time and become more readily available since the agencies first
started implementing both standards. See section IV.G of this preamble.
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. The agencies have
continued to implement the 1986 regulations consistent with the Rapanos
Guidance in response to court decisions.
The agencies repromulgated the 1986 regulations in the 2019 Repeal
Rule and implemented those rules nationwide until June 22, 2020, when
the 2020 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 this approach ``will provide greater regulatory
certainty and national consistency while the agencies consider public
comments on the proposed [2020 NPWR].'' Id. at 56660. To further
justify a return to the 1986 framework, the agencies noted that ``[t]he
agencies, their co-regulators, 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, in their
comments to the 2019 Repeal Rule proposal, 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.\63\
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\63\ 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 on the 2019 Repeal Rule proposal
asserting that the agencies should not return to the pre-2015
regulatory regime because that regime would reduce regulatory certainty
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.'' \64\ 84 FR 56660 (October 22,
2019). Even after the 2020 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 2020 NWPR in that State.
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\64\ 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.
---------------------------------------------------------------------------
Like the past three presidential Administrations, courts have also
found that the 1986 regulations, implemented consistent with the
Rapanos standards, provide an appropriate regulatory framework to
implement the Clean Water Act. Indeed, in staying the 2015 Clean Water
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 Clean Water Rule. In re EPA & Dep't
of Def. Final Rule, 803 F.3d 804, 808 (6th Cir. 2015), vacated, 713
Fed. Appx. 489 (6th Cir. 2018). In doing so, the court recognized that
returning to the status quo meant returning to the pre-2015 regulatory
regime--not the 1986 regulations. See id. at 806 (finding that ``the
status quo at issue is the pre-[2015 Clean Water 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 2020 NWPR, the Arizona district court found that returning
to the pre-2015 regulatory regime would provide for a regime that ``is
familiar to the Agencies and industry alike.'' See Pascua Yaqui Tribe
v. EPA, 557 F. Supp. 3d 949, 956 (D. Ariz. 2021).
The agencies acknowledge that the need for case-specific analyses
will continue under this rule 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. The agencies' experience suggests that the number of
these analyses will be limited. Historically, only approximately 12% of
resources assessed in approved jurisdictional determinations using the
Rapanos Guidance required a significant nexus analysis.\65\ And those
significant nexus assessments often resulted in a conclusion that the
resource, either alone or in combination with similarly situated
waters, did not meet the significant nexus standard. Moreover, the
agencies have provided more clarity in this rule by: adding limitations
to the scope of the definition to the rule text; adding a definition of
``significantly affect'' that identifies the
[[Page 3048]]
functions and factors to be evaluated as part of a significant nexus
analysis; adding exclusions to the rule; restructuring and streamlining
the 1986 regulations; and drawing on more than a decade of post-Rapanos
implementation experience to provide additional implementation guidance
and resources. These improvements, taken together, substantially reduce
any inefficiencies that may be presented by the rule's case-specific
approach. Finally, as discussed above, the nature of the Clean Water
Act's requirements in general can be a fact-based, case-specific
inquiry and is not limited to whether a water meets the definition of
``waters of the United States.'' The inquiry is an important one, for
both discharges and the environment.
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\65\ It is the agencies' expectation that the number of
significant nexus analyses will increase under this rule due to the
assessment of paragraph (a)(5) waters under the significant nexus
standard, but the agencies do not expect a corresponding increase in
positive jurisdictional determinations. See section IV.C.6 of this
preamble for discussion of the agencies' intentions for
implementation of paragraph (a)(5).
---------------------------------------------------------------------------
This rule is both consistent with the Clean Water Act's statutory
text and purposes and its framework is longstanding and familiar to
regulated parties and regulators alike. Moreover, all definitions of
``waters of the United States,'' including the 2020 NWPR, require some
level of case-specific analysis. Implementation of this 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 IV.G of
this preamble). Accordingly, the agencies have concluded that this rule
is consistent with the Clean Water Act and that its clarity and
familiar regulatory framework improve its implementability.
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,
learning as they did so. 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
Rapanos Guidance. Of those, tens of thousands 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 pre-
2015 regulatory regime consistent with the relatively permanent
standard and the significant nexus standard. Significant nexus
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
adjacent to a perennial tributary and separated by a levee, to a non-
relatively permanent 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.
Through this experience, the agencies developed wide-ranging
technical expertise in assessing the hydrologic flowpaths along which
water and materials are transported and transformed and that determine
the degree of chemical, physical, or biological connectivity and
effects to paragraph (a)(1) waters. The agencies have also become
deeply familiar with the variations in climate, geology, and terrain
within and among watersheds that affect the functions (such as the
transformation or filtering of pollutants) performed by streams, open
waters, and wetlands for paragraph (a)(1) waters.
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, gage data, soil surveys, National Wetlands Inventory
maps, floodplain maps, watershed studies, modeling tools, scientific
literature and references, and field work. As discussed further in
section IV.G of this preamble, these tools have undergone important
technological advances and have become increasingly available since the
Rapanos decision. For example, USGS, 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 flow contributions of tributaries, including intermittent and
ephemeral streams, to downstream traditional navigable waters, the
territorial seas, or interstate waters. 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
paragraph (a)(1) 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 IV.C.8.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 over more
than a decade of case-specific determinations across the country, 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
substantial experience with the 1986 regulations and the two Rapanos
standards. As the agencies have developed their expertise in
implementing this regime, so have State and Tribal co-regulators and
regulated entities, as well as interested citizens who may play an
important role in the Act's permitting process. Individuals uncertain
about the status of waters on their property may obtain a
jurisdictional determination from the Corps. The Corps does not charge
a fee for this service. See 33 CFR 325.1; Regulatory Guidance Letter
16-01 (2016).
Due in part to the familiarity of this regime, this rule will not
undermine serious reliance interests in an alternative regime,
including the 2020 NWPR, which the agencies have not implemented for
over a year following the Arizona district court's August 30, 2021
vacatur order. 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 (2009). The Court
acknowledged that if an agency's ``prior policy has engendered serious
reliance interests,'' id. at 515, those interests cannot be ignored.
However, the Court emphasized that even in the case of ``serious
reliance interests,'' ``further
[[Page 3049]]
justification'' beyond a ``reasoned explanation . . . for disregarding
facts and circumstances that underlay or were engendered by the prior
policy'' is not needed. Id. at 515-16. This rule does not implicate
serious reliance interests because, first, the agencies are codifying a
rule similar to the definition currently being implemented nationwide.
As discussed in section V.A of this preamble, this rule will establish
a regime that is generally comparable to current practice, and this
rule is expected to generate de minimis costs and benefits as compared
to the pre-2015 regulatory regime that the agencies are currently
implementing. Second, members of the public, Tribes, and States have
been aware that the agencies might reconsider the 2020 NWPR since
January 2021 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 2020 NWPR and deciding whether to
revise or replace the rule. See section III.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 federalism
and Tribal consultations. See section III.C of this preamble. The
agencies received over 32,000 recommendation letters from the public
during pre-proposal outreach and over 114,000 comments on the proposed
rule during the public comment period. The agencies also held a public
hearing and multiple listening sessions with Tribal, State, and local
governments during the public comment period to listen to feedback on
the proposed rule from co-regulators and a variety of stakeholders.
Third, the 2020 NWPR was only in effect for approximately 14 months
before it was vacated by the Arizona district court on August 30, 2021.
See Pascua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021).
Less than a month later, another district court issued an order
vacating the 2020 NWPR on September 27, 2021. Navajo Nation v. Regan,
563 F. Supp. 3d 1164 (D.N.M. 2021). And several other district courts
remanded the 2020 NWPR without vacatur or without addressing vacatur in
six additional cases, starting in July 2021.\66\ Following the vacatur
orders, the agencies clarified that the Corps will no longer rely on
approved jurisdictional determinations issued under the 2020 NWPR in
making new permit decisions--although so-called ``stand-alone''
approved jurisdictional determinations (i.e., those that are not
associated with a permit action) will not be reopened prior to their
expiration date unless one of the criteria for revision is met or if
the recipient requests that the Corps provide a new approved
jurisdictional determination. See section IV.F of this preamble for
further discussion of the status of approved jurisdictional
determinations issued under prior rules.
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\66\ 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); Order,
Waterkeeper All., Inc. v. Regan, No. 3:18-cv-03521, ECF No. 125
(N.D. Cal. Sept. 16, 2021) (same); Order, Conservation L. 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).
---------------------------------------------------------------------------
Interested parties have thus had over a year to adapt to operating
under the pre-2015 regulatory regime in the absence of the 2020 NWPR,
including ample notice of the implications of the 2020 NWPR's vacatur
on the validity of approved jurisdictional determinations issued
thereunder. Moreover, as discussed in this section, members of the
public are familiar with this rule's regulatory framework thereby
minimizing the potential disruption of a change. Finally, even if
serious reliance interests were at issue, which they are not, this rule
provides a thorough and reasoned explanation for the changed definition
of ``waters of the United States.''
5. Public Comments Received and Agency Responses
The agencies received numerous comments on the basis for the
proposed rule, including comments about the proposal's consistency with
the statute and Supreme Court decisions and about the proposal's
approach to various categories of waters. The agencies have fully
considered these timely comments and made changes to the rule to
reflect the comments, as discussed below. This section contains
summaries of these comments and the agencies' general responses; a more
comprehensive response to these comments is in the response to comments
document available in the docket for this rule at Docket ID No. EPA-HQ-
OW-2021-0602.
a. Comments Regarding Consistency of the Proposed Rule With the Text of
the Clean Water Act
Many commenters stated that the proposed rule is consistent with
the Clean Water Act's objective in section 101(a) to restore and
maintain the chemical, physical, and biological integrity of the
nation's waters and provided multiple reasons to support that view,
including the statutory text, legislative history, and science. Some
commenters further asserted that the statute requires the agencies to
regulate waters in addition to traditional navigable waters, the
territorial seas, and interstate waters.
The agencies agree that the definition of ``waters of the United
States'' must be designed to advance the objective of the Clean Water
Act. For the reasons discussed in section IV.A.2 and IV.A.3 of this
preamble, the agencies also interpret the Act based on factors other
than the science and connectivity of waters, including the text of the
statute as a whole and relevant Supreme Court decisions. Further, while
the definition of ``waters of the United States'' is designed to
advance the objective of restoring and maintaining the chemical,
physical, and biological integrity of traditional navigable waters, the
territorial seas, and interstate waters--i.e., the paragraph (a)(1)
waters--this rule covers additional waters that must be protected to
safeguard paragraph (a)(1) waters. All ``waters of the United States''
receive the full protections of the Clean Water Act.
Commenters expressed various views on the import of the word
``navigable'' in the statutory term ``navigable waters.'' Some
commenters asserted that the proposed rule did not give enough effect
to the word ``navigable,'' while others suggested that the agencies'
jurisdiction over ``waters of the United States'' is limited to
traditional navigable waters. Further, some commenters stated that
Congress intended to exercise only its traditional commerce power over
navigation rather than the full extent of its authority under the
Commerce Clause. In contrast, other commenters asserted that
legislative history demonstrates Congress's intent to assert broad
jurisdiction under the Clean Water Act beyond navigable-in-fact waters.
The agencies agree that while the Clean Water Act applies to
``navigable waters,'' Congress also broadly defined that term to
include ``the waters of the United States.'' 33 U.S.C. 1362(7). The
breadth of that definition reflects a deliberate choice. The relevant
House bill would have defined ``navigable
[[Page 3050]]
waters'' as the ``navigable waters of the United States, including the
territorial seas.'' H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 356
(1972). But in conference the word ``navigable'' was deleted from that
definition, and the conference report urged that the term ``be given
the broadest possible constitutional interpretation.'' S. Conf. Rep.
No. 92-1236, 92d Cong., 2d Sess. 144 (1972). Additionally, the agencies
disagree that Clean Water Act jurisdiction is limited to traditional
navigable waters, as this interpretation would render the Clean Water
Act narrower than the Rivers and Harbors Act of 1899. Limiting Clean
Water Act jurisdiction to traditional navigable waters is also contrary
to the views of all nine Supreme Court Justices in Rapanos and would
undo Congress's considered and deliberate choice to expand Clean Water
Act jurisdiction beyond traditional navigable waters because it found
the prior statutes limited to those waters insufficient. Indeed, the
Rapanos plurality recognized that a wetland may be treated as a covered
water if it has a continuous surface connection to a ``relatively
permanent'' tributary that ``connect[s] to'' traditional navigable
waters, without any further inquiry into the tributary's navigability
or status as a link in a channel of commerce. 547 U.S. at 742. The
plurality further observed that the 1977 Clean Water Act's
authorization for States to administer the section 404 program for
``navigable waters . . . other than'' those used or suitable for use
``to transport interstate or foreign commerce,'' id. at 731 (quoting 33
U.S.C. 1344(g)(1)), ``shows that the Act's term `navigable waters'
includes something more than traditional navigable waters.'' Id.
(citing SWANCC, 531 U.S. at 167; Riverside Bayview, 474 U.S. at 133).
And neither Justice Kennedy nor the dissenting Justices in Rapanos
endorsed such a jurisdictional limitation. See id. at 782-83 (Kennedy,
J., concurring in the judgment); id. at 807-08 (Stevens, J.,
dissenting).
The agencies are mindful of the Supreme Court's decision in SWANCC
regarding the specific Commerce Clause authority Congress exercised in
enacting the Clean Water Act. The SWANCC Court observed that Congress
signified its intent to exercise its commerce power over navigation
with the statement in the Conference Report for the Clean Water Act
that the conferees ``intend that the term `navigable waters' be given
the broadest possible constitutional interpretation.'' 531 U.S. at 168
n.3 (citing S. Conf. Rep. No. 92-1236, at 144 (1972)). This rule
ensures that waters that either alone or in combination significantly
affect the integrity of traditional navigable waters, the territorial
seas, or interstate waters are protected under the Clean Water Act, and
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 Court
has found that ``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 Elec. Power Co., 311 U.S. 377, 426 (1940); see
also Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508,
525-26 (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.''
(citations omitted)). The significant nexus standard included in this
final rule ensures that the definition of ``waters of the United
States'' remains well within the bounds of the Commerce Clause,
consistent with the text of the statute and the intent of Congress, and
informed by the decision in SWANCC.
Some commenters suggested that the agencies cannot rely on the
Clean Water Act's statutory objective or on science to expand Federal
jurisdiction beyond the authority granted to the agencies by Congress.
However, this final rule does not establish jurisdiction beyond the
scope of the Clean Water Act. Indeed, as discussed in section IV.A of
this preamble, the agencies conclude that the objective of the Clean
Water Act must be considered in defining ``waters of the United
States'' and 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. And since the
objective of the Clean Water Act is to protect the water quality of the
nation's waters, this rule must be informed by science relevant to
water quality, as discussed in section IV.A.2.a of this preamble. At
the same time, 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, the limitations established in this rule are based on
the agencies' consideration of the text of the relevant provisions of
the Clean Water Act and the statute as a whole, the scientific record,
relevant Supreme Court case law, and the agencies' experience and
technical expertise after more than 45 years of implementing the
longstanding pre-2015 regulations defining ``waters of the United
States.'' The agencies thus have established a definition of ``waters
of the United States'' within the authority granted to the agencies by
Congress.
Commenters also expressed various views about the import of Clean
Water Act section 101(b). Some commenters asserted that the agencies
must read sections 101(a) and 101(b) of the Clean Water Act together in
a manner that recognizes States' traditional authority over their water
resources and contended that the agencies did not adequately consider
section 101(b) in developing the proposed rule. In contrast, other
commenters asserted that section 101(b) is not intended to serve as a
limit on Federal jurisdiction, and some of these commenters further
suggested that the agencies improperly relied on section 101(b) to
limit the scope of ``waters of the United States'' in the proposed
rule. As discussed in section IV.A of this preamble and section V.A of
the preamble to the proposed rule, the agencies have carefully, and
appropriately, balanced consideration of sections 101(a) and 101(b) in
deciding in the rulemaking which waters are subject to Clean Water Act
jurisdiction.
Additionally, multiple commenters asserted that a water that is not
subject to Federal jurisdiction does not necessarily lack environmental
protections because such waters may be subject to Tribal, State, or
local regulations. Relatedly, some commenters suggested that improving
and maintaining water quality is best achieved through partnerships and
that the agencies should work with State and local governments in
developing a definition of ``waters of the United States.'' The
agencies recognize that waters that are not jurisdictional under the
Clean Water Act do not necessarily lack environmental protections under
potential Tribal, State, or local laws. However, Congress enacted the
Clean Water Act precisely because of the failures of a statutory scheme
that relied primarily on State water quality standards. In 1948,
Congress enacted the Federal Water Pollution Control Act, ch.
[[Page 3051]]
758, 62 Stat. 1155 (June 30, 1948), which focused on State water
quality standards rather than the conduct of individual polluters. See
EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200,
202-03 (1976). In 1972, Congress enacted the Clean Water Act after
concluding that these prior efforts had been ``inadequate in every
vital aspect.'' S. Rep. No. 414, 92d Cong., 1st Sess. 7 (1971). The
Clean Water Act was a `` `complete rewriting' '' of existing law,
designed to ``establish an all-encompassing program of water pollution
regulation.'' City of Milwaukee, 451 U.S at 317-18 (1981) (citation
omitted).
More recently, the Supreme Court in Maui identified a key dividing
line between the areas where Congress intended to create a
comprehensive floor of Federal water quality protections and those
areas generally left to the States, observing that ``the structure of
the [Clean Water Act] indicates that, as to groundwater pollution and
nonpoint source pollution, Congress intended to leave substantial
responsibility and autonomy to the States.'' 140 S. Ct. at 1471 (citing
Clean Water Act section 101(b)). The Clean Water Act thus sets a
baseline of Federal protection for waters that meet the definition of
``waters of the United States'' and authorizes States to be more
protective than the Act while also leaving substantial responsibility
and autonomy to the States over those waters that do not have a
significant nexus to the core waters covered by the Act. The agencies
also agree that partnerships with Tribes, States, and local governments
are important and can help facilitate meeting the objective of the Act
and have coordinated with these entities over the course of this
rulemaking to ensure that they had opportunities to provide input on
this rule and will continue to work with Tribes and States to implement
this rule.
b. Comments Regarding Supreme Court Case Law and the Significant Nexus
and Relatively Permanent Standards
Many commenters addressed the legal standard for determining the
controlling opinion in Rapanos. In particular, many commenters cited
Marks v. United States, 430 U.S. 188 (1977) to support assertions
around what controlling legal principles may be derived from the
opinion of five or more Supreme Court Justices when there is no
majority. Relying on Marks, some of these commenters asserted that the
Rapanos plurality opinion should control the definition of ``waters of
the United States,'' while other commenters stated that Marks allows
for use of either the plurality's relatively permanent standard or
Justice Kennedy's significant nexus standard to assess Clean Water Act
jurisdiction. As discussed above, the applicability of Marks is not the
relevant inquiry for purposes of this rule. Rather, this rule reflects
the agencies' interpretation of the statute, informed by Supreme Court
precedent, not an interpretation of the Rapanos decision.
The agencies received many comments on the proposed rule's reliance
on and approach to the significant nexus standard. As explained in
section IV.A.3.a of this preamble, the agencies have concluded that the
significant nexus standard is consistent with the statutory text and
legislative history, advances the objective of the Clean Water Act, is
informed by the scientific record and Supreme Court case law, and
appropriately considers the policies of the Act. The agencies have the
authority to define the scope of the term ``navigable waters,'' and
they are exercising that authority in this rule. A principal advantage
of the significant nexus standard is that it focuses directly and
specifically on protecting the integrity of those waters in which the
Federal interest is indisputable--traditional navigable waters, the
territorial seas, and interstate waters. Further, while the agencies
disagree that this rule's significant nexus standard is inconsistent
with Justice Kennedy's concurring opinion in Rapanos (as some
commenters had suggested), this rule represents the agencies'
interpretation of the statute, not an interpretation of Rapanos. The
agencies have concluded that the significant nexus standard as
established in this rule is the best interpretation of the statute and
that the relatively permanent standard in the rule provides important
efficiencies and additional clarity for regulators and the public.
Thus, the rule gives effect to the Clean Water Act's broad terms and
environmentally protective aim as well as its limitations.
Some commenters suggested that the significant nexus standard is
unclear or produces inconsistent results. In response to this concern,
the agencies have established a definition of ``significantly affect''
in this rule, provided additional guidance on applying the significant
nexus standard, and identified implementation tools and resources that
will work together to provide clarity and further consistency in
implementing the significant nexus standard (see section IV.C.9 and
section IV.G of this preamble). The agencies have concluded that these
actions, along with the agencies' extensive experience making
determinations under the significant nexus standard, will increase the
clarity and consistency of determinations of jurisdiction.
Several commenters discussed whether the proposed rule is
consistent with Justice Scalia's plurality opinion in Rapanos and
expressed various views about the proper interpretation of that
opinion. As discussed in section IV.A.3.a of this preamble, the
agencies have concluded that use of the plurality's approach alone has
no grounding in the Clean Water Act's text, structure, or history and
would upend an understanding of the Act's coverage that has prevailed
for decades. Similarly, no Court of Appeals has held that the
plurality's relatively permanent standard is the sole test that may be
used to establish Clean Water Act jurisdiction. Additionally, requiring
a continuous surface water connection, as suggested by some commenters,
would add a requirement and language that do not exist in the text of
the plurality opinion. The plurality opinion states that ``continuous
surface connection'' is a ``physical-connection requirement.'' Rapanos,
547 U.S. at 742, 751 n.13 (referring to ``our [the plurality's]
physical-connection requirement'' and asserting that Riverside Bayview
does not reject ``the physical-connection requirement''). The plurality
does not state that this standard is a continuous surface water
requirement. Therefore, the agencies disagree that their longstanding
implementation of the continuous surface connection requirement (see
Rapanos Guidance at 7 n.28), which does not require a continuous flow
of water between the wetland and the jurisdictional water, is
inconsistent with the plurality opinion. In addition, a continuous
surface water connection for wetlands is illogical when many wetlands
have surface water only seasonally or intermittently or meet the
wetland hydrology factor through saturated soils, a high water table,
or other indicators of hydrology, and no scientific or regulatory
definition of wetlands demands year-round surface water. See, e.g., 33
CFR 328.3(b) (2008); NRC Report 3-5; see also 85 FR 22309 (explaining
that ``not all abutting wetlands display surface water as the wetland
hydrology factor but rather may have saturated soils, a high water
table, or other indicators of hydrology''). See section IV.C.5.c.ii of
this preamble for further discussion of the basis for the agencies'
implementation of the continuous surface connection requirement in this
rule.
Additionally, multiple commenters suggested that the relatively
permanent
[[Page 3052]]
standard is easier to apply than the significant nexus standard. While
the agencies recognize that the relatively permanent standard can be
easier to apply in many instances, that is not always the case. For
example, in the case of a tributary that flows directly into a
traditional navigable water, it may be easier to demonstrate that the
tributary significantly affects the chemical, physical, or biological
integrity of that paragraph (a)(1) water due to its direct contribution
of flow, woody debris, and other materials and its close distance to
the traditional navigable water than it would be to demonstrate that
the flow in that tributary meets the relatively permanent standard.
More importantly, greater simplicity that comes at the expense of a
profound mismatch with the Clean Water Act's design is not a valid
basis for determining the jurisdictional scope of the Act. Cf. Maui,
140 S. Ct. at 1470, 1476 (rejecting similar arguments about a need for
bright-line certainty in favor of a fact-specific test). Further,
treating the relatively permanent standard as the exclusive criterion
for Clean Water Act coverage would lead to arbitrary and illogical
results. The 2020 NWPR did rely primarily on the relatively permanent
standard and, in doing so, introduced new implementation uncertainties,
including uncertainties related to the rule's case-specific typical
year analysis, which the 2020 NWPR required for most categories of
jurisdictional waters and that proved challenging to implement and
yielded arbitrary results (see section III.B.3 and IV.B.3 of this
preamble). In contrast, as discussed above, the agencies now have over
a decade of nationwide experience with the significant nexus standard,
and it has proven to be eminently administrable. Moreover, the agencies
have made changes to this rule to increase the ease of implementation
of the significant nexus standard.
Commenters also provided a variety of views on the consistency of
the proposed rule with the SWANCC Supreme Court decision. Some
commenters expressed concern that the proposed rule would expand
Federal jurisdiction over potentially all State waters, contrary to the
Supreme Court's holding in SWANCC that--absent a clear statement from
Congress--the Clean Water Act must be construed in a manner that avoids
federalism and constitutional questions. The agencies disagree that
this rule is contrary to the Supreme Court's holding in SWANCC and note
that a principal advantage of the significant nexus standard is that it
focuses directly and specifically on protecting traditional navigable
waters, the territorial seas, and interstate waters. By design, the
significant nexus standard thereby permits jurisdiction over waters
only if they significantly affect the waters over which Congress has
unquestioned authority. See, e.g., United States v. Lopez, 514 U.S.
549, 558-59 (1995); Hodel v. Va. Surface Mining & Reclamation Ass'n,
452 U.S. 264, 282 (1981). Thus, an affirmative finding under the
significant nexus standard is, by definition, a finding that Congress's
core purpose is implicated. Commenters' constitutional concerns are
therefore fully addressed by this rule.
In addition, a few commenters asserted that the Supreme Court in
SWANCC rejected the notion that a biological or ecological connection
alone is sufficient to support a finding of significant nexus. This
reading of SWANCC is not correct. The Court in SWANCC did not hold that
the particular ``ecological considerations upon which the Corps relied
in Riverside Bayview,'' Rapanos, 547 U.S. at 741--i.e., the potential
importance of wetlands to the quality of adjacent waters--were
irrelevant to Clean Water Act jurisdiction. Rather, the Court held that
a different ecological concern--namely, the potential use of the
isolated ponds as habitat for migratory birds--could not justify
treating those ponds as ``waters of the United States.'' See SWANCC,
531 U.S. at 164-65, 171-72. The Court found that this specific
ecological concern was not cognizable because it was unrelated to
``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. In contrast,
in this rule, the agencies, through application of the significant
nexus standard, provide Federal protections for adjacent wetlands and
other categories of waters based on their importance to the chemical,
physical, or biological integrity of traditional navigable waters, the
territorial seas, and interstate waters. In addition, 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) (emphasis added). Among the means to achieve the Clean Water
Act's objective, Congress established an interim national goal to
achieve wherever possible ``water quality which provides for the
protection and propagation of fish, shellfish, and wildlife and
provides for recreation in and on the water.'' 33 U.S.C. 1251(a)(2).
Therefore, the agencies disagree that consideration of biological
effects on paragraph (a)(1) waters is inconsistent with the Clean Water
Act.
Finally, several commenters asserted that the Clean Water Act
requires broader protections than those afforded by the significant
nexus standard and relatively permanent standard. The agencies agree
that the Clean Water Act requires broader protection than the
relatively permanent standard, but have concluded, as explained in
section IV.A.3 of this preamble, that the significant nexus standard is
the best construction of the scope of the Clean Water Act.
c. Comments Regarding Categories of Waters in This Rule
Multiple commenters expressed concern that the proposed rule would
exceed the agencies' statutory authority by providing for jurisdiction
over broad categories of waters (for example, tributaries) that the
commenters asserted are not within the limits of the Clean Water Act
pursuant to Rapanos. The agencies disagree. As explained above, this
rule reflects the agencies' independent judgment on the scope of
``waters of the United States'' based on the text of the relevant
provisions of the Clean Water Act and the statute as a whole, the
objective and history of the Clean Water Act, the scientific record,
the agencies' experience and technical expertise, and other relevant
Supreme Court cases. This rule reflects carefully tailored
modifications to the 1986 regulations to incorporate both the
relatively permanent standard and the significant nexus standard such
that the waters covered by the definition are within the limits of the
Clean Water Act.
Many commenters discussed the agencies' legal authority to assert
jurisdiction over tributaries, including specific types of tributaries
(e.g., ephemeral, intermittent, and perennial). Some commenters
asserted that providing for jurisdiction over ephemeral and
intermittent streams in the definition of ``waters of the United
States'' is not supported by Rapanos. In this rule, the agencies are
neither categorically including nor categorically excluding ephemeral
and intermittent tributaries. Nor are the agencies codifying the
opinions in Rapanos. Rather, the agencies are interpreting the phrase
``waters of the United States'' to include tributaries that meet either
the significant nexus standard or the relatively permanent standard
based on their conclusions in section IV.A of this preamble. Further,
there is nothing in the text of the statute or its legislative history
that excludes some categories of
[[Page 3053]]
tributaries based on their flow regime. Indeed, as discussed further
below, the best available science demonstrates that ephemeral and
intermittent streams can significantly affect the chemical, physical,
and biological integrity of paragraph (a)(1) waters--i.e., traditional
navigable waters, the territorial seas, and interstate waters.
Multiple commenters suggested that, pursuant to Supreme Court
precedent and the Clean Water Act, jurisdiction over non-navigable
tributaries should be limited to tributaries (1) containing clearly
discernible features and contributing consistent flow into traditional
navigable waters; or (2) that carry a volume of water needed for
navigable capacity of a traditional navigable water; or (3) of a
quality needed for interstate commerce, where impairment of water
quality would have a negative effect on interstate commerce. The
agencies disagree that the case law, the statute, or the Constitution
provide these precise limitations on the scope of tributaries covered
by the Clean Water Act. The text of ``navigable waters,'' and of its
specialized definition, does not include particular flow requirements.
As discussed further below, the agencies have concluded that
tributaries that meet either the relatively permanent standard or the
significant nexus standard are ``waters of the United States,'' and
flow is a consideration under both standards. These limitations are
informed by Supreme Court case law and designed to be well within
constitutional limits.
In contrast, other commenters asserted that tributaries should be
categorically jurisdictional rather than subject to a case-specific
analysis and that the Rapanos decision supports a categorical approach.
The agencies agree that Justice Kennedy's concurring opinion in Rapanos
did not reject the agencies' then-existing regulations governing
tributaries, which were more categorical than this rule. 547 U.S. at
781; see also id. at 761. More broadly, it is a well-established
principle of administrative law that agencies may choose to proceed via
rulemaking or adjudication. NLRB v. Bell Aerospace Co. Div. of Textron,
Inc., 416 U.S. 267, 294 (1974) (``[T]he choice between rulemaking and
adjudication lies in the first instance within the [agency's]
discretion.''). With respect to the significant nexus standard in
particular, Justice Kennedy stated that the agencies could proceed to
determine tributaries and their adjacent wetlands jurisdictional
through regulations or adjudication. See Rapanos, 547 U.S. at 780-81.
As explained in section IV.A.3.a.iii of this preamble, the agencies
have concluded that adjudication of which tributaries are within Clean
Water Act protections, through case-specific application of the
significant nexus standard or the relatively permanent standard under
this rule, is appropriate. See section IV.C.10 of this preamble for
additional guidance to landowners on determinations of jurisdiction and
the appeals process for such determinations.
Many commenters also discussed the agencies' legal authority to
assert jurisdiction over adjacent wetlands. Some commenters stated that
the proposed rule's relatively permanent standard was inconsistent with
the Rapanos plurality opinion, asserting that the plurality opinion
requires a continuous surface connection for adjacent wetlands to be
jurisdictional. As stated elsewhere, the agencies disagree that the
relatively permanent standard as applied in this rule is inconsistent
with the plurality opinion. Under this rule, an adjacent wetland is
jurisdictional if there is a continuous surface connection between that
adjacent wetland and a paragraph (a)(2) impoundment or jurisdictional
tributary when the paragraph (a)(2) impoundment or jurisdictional
tributary is relatively permanent.
In addition, some commenters expressed concern that the proposed
rule's aggregation of wetlands and the relevant reach approach would be
contrary to Justice Kennedy's significant nexus standard, which the
commenters suggested requires that each wetland be judged in its own
right. The agencies disagree that aggregation of wetlands and their
tributaries is inconsistent with the significant nexus standard. First,
Justice Kennedy explicitly stated that similarly situated waters should
be assessed for a significant nexus ``alone or in combination.''
Rapanos, 547 U.S. at 780. Justice Kennedy understood that waters
provide critical functions to downstream waters in combination,
explaining: ``With respect to wetlands, the rationale for Clean Water
Act regulation is, as the Corps has recognized, that wetlands can
perform critical functions related to the integrity of other waters--
functions such as pollutant trapping, flood control, and runoff
storage. Accordingly, wetlands possess the requisite nexus, and thus
come within the statutory phrase `navigable waters,' if the wetlands,
either alone or in combination with similarly situated lands in the
region, significantly affect the chemical, physical, and biological
integrity of other covered waters more readily understood as
`navigable.' '' Id. at 779-780 (citing 33 CFR 320.4(b)(2)). And Justice
Kennedy's understanding is scientifically correct--though filling in a
single wetland might not on its own materially influence a paragraph
(a)(1) water, its impact is more likely to be significant when
evaluated in combination with other similarly situated waters. Second,
the agencies interpret ``waters of the United States'' to include
waters that meet the significant nexus standard as codified in this
rule because the agencies have determined, informed by the best
available science and the text, structure, and legislative history of
the Clean Water Act, that this standard, including the aggregation of
waters authorized by it, advances the objective of the Act. The
agencies have also established a definition of ``significantly affect''
in this rule that identifies the factors and the functions for
determining whether the significant nexus standard is met, thus
ensuring that the agencies' determinations of jurisdiction are based on
consistent application of sound scientific principles.
Further, several commenters stated that the agencies should assert
jurisdiction only over those wetlands that directly abut other ``waters
of the United States.'' These commenters asserted that doing otherwise
would exceed the constitutional limits of the agencies' Clean Water Act
jurisdiction. For the reasons discussed above, the agencies disagree
that only wetlands that directly abut other ``waters of the United
States'' should be jurisdictional. Moreover, as discussed elsewhere in
this preamble, the addition of the significant nexus standard in this
rule ensures that the definition of ``waters of the United States''
does not exceed constitutional limits.
In contrast, several commenters asserted that all adjacent
wetlands--not just those adjacent to the paragraph (a)(1) waters--
should be categorically jurisdictional. Some of these commenters
suggested that providing categorical protection for such wetlands is
necessary to achieve the Clean Water Act's statutory objective. The
agencies agree that providing categorical protection of adjacent
wetlands can be a means of achieving the Act's objective but disagree
that it is the only means. As noted by Justice Kennedy, the agencies
can reasonably proceed to determine which tributaries and their
adjacent wetlands are jurisdictional through regulations or
adjudication, see 547 U.S. at 780-81; see also NLRB v. Bell Aerospace
Co. Div. of Textron, Inc., 416 U.S. at 294. With respect to wetlands
adjacent to tributaries, the agencies are requiring case-specific
determinations
[[Page 3054]]
of whether such wetlands meet the relatively permanent standard or the
significant nexus standard to be jurisdictional under this rule.
Many commenters also addressed the agencies' legal authority to
assert jurisdiction over paragraph (a)(5) waters (the category of
waters described in paragraph (a)(3) of the proposed rule). Some
commenters suggested that, per the Supreme Court's decision in SWANCC,
the agencies lack authority to assert jurisdiction over paragraph
(a)(5) waters or that, under Rapanos, the significant nexus standard
should be applied only to tributaries or wetlands adjacent to
tributaries, not to paragraph (a)(5) waters. First, as explained
further in section IV.A.1 of this preamble, in this rule the agencies
are exercising the authority granted to them by Congress to construe
and implement the Clean Water Act and to interpret an ambiguous term
and its statutory definition. Therefore, while the agencies'
interpretation of the statute is informed by Supreme Court decisions,
including Rapanos, it is not an interpretation of SWANCC or the
multiple opinions in Rapanos, nor is it based on an application of the
Supreme Court's principles as set forth in Marks to derive a governing
rule of law from a decision of the Court in a case such as Rapanos
where no opinion commands a majority. Furthermore, the agencies
disagree that asserting jurisdiction over any waters that meet the
significant nexus standard, including any paragraph (a)(5) waters, is
inconsistent with SWANCC or Rapanos. Based on the law, the science, and
agency expertise, the agencies conclude that the significant nexus
standard applies to tributaries, adjacent wetlands, and intrastate
lakes and ponds, streams, or wetlands not covered by other categories
(i.e., paragraphs (a)(3), (a)(4), and (a)(5) waters under this rule).
Justice Kennedy's explication of the significant nexus standard applies
to each of these types of waters. 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''--``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 further explained that ``[t]he required nexus must
be assessed in terms of the statute's goals and purposes. Congress
enacted the law to `restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,' and it pursued that
objective by restricting dumping and filling in `navigable waters'.''
Id. at 779 (citing 33 U.S.C. 1251(a), 1311(a), 1362(12)). Justice
Kennedy then concluded that the term ``waters of the United States''
encompasses wetlands and other waters that ``possess a `significant
nexus' to waters that are or were navigable in fact or that could
reasonably be so made.'' Id. at 759 (citation omitted). While Justice
Kennedy's discussion of the application of the significant nexus
standard focused on adjacent wetlands in light of the facts of the
cases before him, his opinion is clear that he does not conclude that
the significant nexus analysis applies only to adjacent wetlands. As he
explicitly states, ``the connection between a nonnavigable water or
wetland and a navigable water may be so close, or potentially so close,
that the Corps may deem the water or wetland a `navigable water' under
the Act.'' Id. at 767 (emphasis added). Fundamentally, Justice
Kennedy's significant nexus analysis is about the fact, long
acknowledged by Supreme Court case law, that protection of waters from
pollution can be achieved only by controlling pollution of upstream
waters. In addition, the Court in SWANCC did not hold that ``other
waters'' (a category that has been modified and codified in this rule
as paragraph (a)(5) waters) could never be jurisdictional; rather it
held that the potential use of isolated ponds as habitat for migratory
birds could not be used as the sole basis to justify treating those
ponds as ``waters of the United States.'' See 531 U.S. at 164-65, 171-
72. Indeed, the SWANCC Court in describing Riverside Bayview stated
that ``it was the significant nexus between the wetlands and `navigable
waters' that informed our reading of the CWA'' in that case. Id. at
167. In this rule, the agencies are not protecting paragraph (a)(5)
waters based on their potential use as habitat for migratory birds or
based on their use broadly in interstate commerce as the 1986
regulations did. Instead, this rule includes paragraph (a)(5) waters on
a case-specific basis based on their importance to the integrity of
traditional navigable waters, the territorial seas, and interstate
waters because they meet either the relatively permanent standard or
the significant nexus standard.
Other commenters stated that the proposed rule does not go far
enough in protecting paragraph (a)(5) waters. The agencies have
concluded that this rule's reliance on the relatively permanent
standard and significant nexus standard properly balances the Clean
Water Act's broad statutory objective, while giving meaning to the word
``navigable.'' Accordingly, the agencies are not asserting jurisdiction
over waters and wetlands simply where ``the use, degradation or
destruction of [such waters] could affect interstate or foreign
commerce.'' Cf. 33 CFR 328.3(a)(3) (1999).
B. Alternatives to This Rule
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); see also FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009). As discussed below, the agencies have
thoroughly considered alternatives to this rule and have concluded that
this final rule best accomplishes the agencies' goals to promulgate a
rule that advances the objective of the Clean Water Act, is consistent
with Supreme Court decisions, is informed 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 2020 NWPR. Although the 2020
NWPR has been vacated, it is the text currently in the Code of Federal
Regulations. For the reasons articulated in this preamble, the agencies
are changing their approach from that of the 2020 NWPR to interpreting
the scope of ``waters of the United States.''
1. 2015 Clean Water Rule
The agencies are not repromulgating the 2015 Clean Water Rule.
Unlike aspects of the 2015 Clean Water Rule, this rule is not based on
categorical significant nexus determinations. Rather, this rule
generally restores the longstanding and familiar categories of the 1986
regulations and establishes jurisdictional limitations based on case-
specific application of the relatively permanent standard and the
significant nexus standard to certain categories of waters in the rule.
Many commenters expressed support for the 2015 Clean Water Rule
because they viewed it as informed by science, and because under that
rule certain types of waters were categorically jurisdictional, which
eliminated the need for extensive case-by-case
[[Page 3055]]
jurisdictional determinations. Many other commenters asserted that they
did not support the 2015 Clean Water Rule because they viewed that rule
as expanding Federal jurisdiction over waters that should not be
jurisdictional. The agencies have concluded that 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 quickly promulgate a durable rule that retains the protections of
the longstanding regulatory framework and avoids harms to important
aquatic resources, informed by the best available science and
consistent with the agencies' determination of the statutory limits on
the scope of the ``waters of the United States,'' informed by relevant
Supreme Court case law. Moreover, agencies may choose to proceed via
rulemaking or adjudication. NLRB v. Bell Aerospace Co., 416 U.S. 267,
294 (1974) (``[T]he choice between rulemaking and adjudication lies in
the first instance within the [agency's] discretion.''). With respect
to the significant nexus standard in particular, Justice Kennedy also
stated that the agencies could proceed to determine tributaries and
their adjacent wetlands jurisdictional through regulations or
adjudication. See 547 U.S. at 780-81. As explained in section
IV.A.3.a.iii of this preamble, the agencies have concluded that the
approach in this rule--i.e., providing categorical jurisdiction for
paragraph (a)(1) waters and for wetlands adjacent to paragraph (a)(1)
waters, and adjudicating which waters in paragraphs (a)(2) through (5)
are ``waters of the United States'' through case-specific application
of the significant nexus standard or the relatively permanent standard
under this rule--is appropriate and fulfills the goals of the agencies
and the objective of the Clean Water Act.
2. 2019 Repeal Rule
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,\67\ but find that this
rule is preferable to the 2019 Repeal Rule for several reasons. As an
initial matter, like the 2019 Repeal Rule, this rule seeks to return
generally to the longstanding regulatory framework that existed prior
to the 2015 Clean Water Rule, but this rule also restores 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 relevant Supreme
Court decisions. Additionally, compared to the 2019 Repeal Rule, this
rule provides greater clarity by adding a new definition of
``significantly affect'' and by streamlining and restructuring the 1986
regulations, including by consolidating certain provisions. This rule
also codifies a number of exclusions for features that were generally
considered non-jurisdictional under the pre-2015 regulatory regime and
thus provides more clarity and certainty than the 2019 Repeal Rule.
---------------------------------------------------------------------------
\67\ 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.'').
---------------------------------------------------------------------------
Moreover, the agencies have substantial 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 approach to the significant
nexus standard in 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 this rule.
3. 2020 NWPR
The agencies have also evaluated the 2020 NWPR as an alternative to
this rule. After carefully considering the 2020 NWPR in light of the
text, objective, and legislative history of the Clean Water Act,
Supreme Court case law, the best available scientific information, and
the agencies' experience in implementing it for over a year, the
agencies do not find that the 2020 NWPR is a suitable alternative to
this rule.
a. The 2020 NWPR Failed To Advance the Objective of the Clean Water Act
The agencies do not consider the 2020 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. at 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''). One critical
example of the 2020 NWPR's failure to advance the Clean Water Act's
objective is its removal of the significant nexus standard without
considering an alternative approach to protecting waters that
significantly affect paragraph (a)(1) waters. To be clear, while the
agencies view the significant nexus standard as the best interpretation
of section 502(7) of the Clean Water Act, the agencies do not view the
Supreme Court's interpretations of the scope of ``waters of the United
States'' as requiring adoption of that approach. Rapanos, 547 U.S. at
758 (Roberts, C.J., concurring). Yet the 2020 NWPR's rejection of the
significant nexus standard while failing to adopt any alternative
standard for jurisdiction that adequately addresses the effects of
degradation of upstream waters on paragraph (a)(1) waters, fails to
advance the Clean Water Act's objective.
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 types of waters on paragraph
(a)(1) waters. For that reason, evolving forms of this inquiry are
present in Riverside Bayview, SWANCC, and Justice Kennedy's concurring
opinion in Rapanos. The 2020 NWPR rejected this scientific approach and
instead, for example, categorically excluded ephemeral features without
appropriately considering scientific information about their important
effects on the integrity of paragraph (a)(1) waters. In addition, in
limiting the scope of protected wetlands to those that touch other
jurisdictional waters or demonstrate evidence (which could include a
natural berm, bank, dune, or similar natural feature) of a regular
surface water connection to other jurisdictional waters, the 2020 NWPR
failed to appropriately consider the many effects of other categories
of wetlands on paragraph (a)(1) waters. For example, ephemeral streams
that flow directly into the Rio Grande (a traditional navigable water)
and wetlands separated from the Mississippi River (a traditional
navigable water) by artificial levees and that lack a direct hydrologic
surface connection to the river in a typical year, would be non-
jurisdictional under the 2020 NWPR, yet both can have significant
effects on these traditional navigable waters.
The 2020 NWPR contended that the drastic reduction in the scope of
Clean Water Act jurisdiction ``pursues'' the objective of the Act
because it would be
[[Page 3056]]
supplemented by the Act's non-regulatory programs as well as Tribal,
State, and local efforts. The 2020 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 disagree with the 2020 NWPR's assertion that such
``collective pursuit'' of the objective of the Clean Water Act based on
these programs and measures appropriately considers the objective of
the Act and have concluded that the 2020 NWPR did not advance the
objective of the Act, the proper measure under the statute and Supreme
Court case law of a rule defining ``waters of the United States.''
The agencies agree with the 2020 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 Clean Water Act. The non-regulatory Clean Water Act programs
cited by the 2020 NWPR complement and support the permitting programs
at the core of the Act, rather than limiting their geographic scope.
For example, the 2020 NWPR cited the Clean Water 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 Clean Water Act, but they do not limit the
regulatory programs' scope. To the extent there is ambiguity as to the
effects of these non-regulatory programs on the scope of the ``waters
of the United States,'' the agencies have concluded based on the text
and structure of the statute that they are complementary, rather than
limiting.
As discussed in section III.A 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 find that it is appropriate to consider whether the
definition of the scope of waters to which the Clean Water Act's water
pollution regulations apply helps to achieve that objective. Thus, the
2020 NWPR's statement that this 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 the 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 Clean Water Act by assessing the water quality effects
of revising the definition of ``waters of the United States.''
The preamble to the 2020 NWPR also cited the introductory policy
provision of the Clean Water Act in section 101(b), to protect the
``primary responsibilities and rights of States to prevent, reduce, and
eliminate pollution'' as a justification, in part, for its line-
drawing. For example, one of the most environmentally significant
decisions in the 2020 NWPR was its categorical exclusion of all
ephemeral features from Clean Water Act jurisdiction. The agencies
cited section 101(b) as a basis for this exclusion, because the
exclusion would ``respect[] State and Tribal land use authority over
features that are only episodically wet during and/or following
precipitation events.'' 85 FR 22319. Nothing in the agencies'
explanation, however, links 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 features and the nature or
extent of State authorities referenced in section 101(b). Indeed, as
discussed in section IV.A.c.i of this preamble, available science
unequivocally demonstrates that ephemeral features can implicate the
important Federal interest in the protection of the integrity of
traditional navigable waters, the territorial seas, and interstate
waters. Likewise, the 2020 NWPR cited section 101(a) as support for
categorically excluding ephemeral features, but again did not explain
how this decision relates to or advances the Clean Water Act's
objective. 85 FR 22277 (April 21, 2020).
The 2020 NWPR similarly relied upon the policy provision in section
101(b) as a basis for its definition of adjacent wetlands, in
particular the decision to exclude from consideration subsurface
hydrologic connections between a wetland and an adjacent water when
determining jurisdiction. It stated, ``balancing 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 2020 NWPR did not explain how excluding consideration of
subsurface hydrologic connections relates to or derives from the text
of section 101(b), and the agencies do not now discern such a linkage.
And as with the definition of ``tributaries,'' the 2020 NWPR did not
explain how this choice relates to or advances the objective of the
Clean Water Act.
In sum, based on the text and structure of the statute and Supreme
Court case law, the agencies have determined that the 2020 NWPR is not
a suitable alternative to this rule because it fails to advance the
objective of the Clean Water Act. The 2020 NWPR does not establish
either the significant nexus standard or an alternative standard that
similarly advances the objective of the Clean Water Act by protecting
waters, including ephemeral features, wetlands, and paragraph (a)(5)
waters where they have a significant effect on the chemical, physical,
or biological integrity of traditional navigable waters, the
territorial seas, and interstate waters. Nor does the 2020 NWPR
appropriately value the importance of Federal programs in achieving the
objective of the Clean Water Act.
b. The 2020 NWPR Was Inconsistent With the Best Available Scientific
Information
The 2020 NWPR's exclusion of major categories of waters from the
protections of the Clean Water 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, as many commenters on the proposed
rule noted, its categorical exclusion of ephemeral features and large
categories of wetlands was inconsistent with the scientific record
before the agencies. In addition, the 2020 NWPR's limits on the scope
of protected wetlands to those
[[Page 3057]]
that touch or demonstrate evidence of a regular surface water
connection to other jurisdictional waters run counter to the ample
scientific information demonstrating the effects of wetlands on
downstream waters, including paragraph (a)(1) waters, when they have
other types of connections.
First, the definition of the term ``tributary'' in the 2020 NWPR
categorically excluded ephemeral features from the regulatory
protections of the Clean Water Act, contrary to scientific information
conclusively demonstrating the vital role these streams can play in
protecting the integrity of downstream waters, including paragraph
(a)(1) 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. 2014 SAB
Review at 22-23, 54 fig. 3. While in the arid Southwest, streams 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 6-9. 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 2014 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. 2014 SAB Review at 22.
Similarly, the 2020 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 paragraph (a)(1) waters. In defining ``adjacent wetlands,''
the 2020 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. Specifically, the rule 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 hydrologic surface
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 2020
NWPR stated that the definition of ``adjacent wetlands'' is ``informed
by science.'' Id. at 22314. Yet the 2020 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
contradicted the ample scientific information before the agencies
conclusively 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; 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) (``Given 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.''). As commenters noted, under the 2020 NWPR's approach, if a
river were surrounded by hundreds of acres of wetland, building a road
or levee between a river and a wetland complex could potentially sever
Clean Water Act protections for the entire wetland complex.
The overwhelming scientific information before the agencies weighs
decisively against the limited definition of ``adjacent wetlands'' in
the 2020 NWPR. Available scientific information demonstrates the
significant effects of categories of wetlands excluded by the 2020 NWPR
on the chemical, physical, and biological integrity of paragraph (a)(1)
waters. For example, whereas the 2020 NWPR provided that wetlands
flooded by jurisdictional waters are only protected if the flooding
occurs in a ``typical year,'' the Science Report states 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 notes
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 2020 NWPR states that the narrow
definition of ``adjacent wetlands'' in the 2020 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, have concluded
that excluding wetlands that lack the limited types of surface water
connections to other jurisdictional waters required by the 2020 NWPR
lacks scientific support.
The SAB's assessment of the 2020 NWPR proposal recognizes that the
proposal 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) (hereinafter, ``SAB Commentary''). The SAB Commentary emphasizes
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 2020 NWPR stated that the ``agencies' decisions in support of
this rule have been informed by science.'' 85 FR 22288 (April 21,
2020). For example, the 2020 NWPR cited the concept of a ``connectivity
gradient'' as a basis for excluding ephemeral features. Id. (citing the
SAB Commentary). The 2020 NWPR referred to the SAB Commentary'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 Commentary at 3). The 2020
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. 85 FR 22288 (April 21, 2020).
Upon careful review, the agencies have concluded that the 2020
NWPR's reliance on the SAB's recommendation is out of context and is
inconsistent with the information in the SAB Commentary as a whole. The
connectivity gradient the 2020 NWPR cited was just a hypothetical
example \68\
[[Page 3058]]
meant to illustrate a single 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 scientific information the agencies provided in support of
categorically excluding ephemeral features does not fully represent the
discussion in the cited SAB Commentary and runs counter to key elements
of the scientific record before the agencies. SAB Commentary at 2.
---------------------------------------------------------------------------
\68\ The figure cited is captioned in part as ``Hypothetical
illustration of connectivity gradient and potential consequences to
downstream waters.'' 2014 SAB Review at 54 (emphasis added). Nowhere
in its review does the 2014 SAB Review indicate that this is the
actual or only connectivity gradient.
---------------------------------------------------------------------------
The 2020 NWPR also stated that the line it drew between regulated
and non-regulated wetlands, which excluded large categories of wetlands
covered by previous regulatory regimes is ``informed by science.'' 85
FR 22314 (April 21, 2020). The 2020 NWPR cited statements from the 2014
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
2014 SAB Review at 55); see also id. at 22314 (citing the 2014 SAB
Review at 60 (stating ``[s]patial proximity is one important
determinant [influencing the connections] between wetlands and
downstream waters'')). In addition, the 2020 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).
Despite these citations, the 2020 NWPR's definition of ``adjacent
wetlands'' was not based on proximity, but instead on a ``direct
hydrologic surface connection,'' a factor that is distinct from
proximity. See id. at 22340. The 2020 NWPR's definition of ``adjacent
wetlands'' may exclude wetlands fifteen feet away from jurisdictional
waters 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. Therefore, neither of the two scientific rationales the 2020 NWPR
cited for its conclusions actually support the lines drawn in that
rule.
Many commenters agreed with the agencies that the 2020 NWPR was
inconsistent with the best available science. Some commenters asserted,
however, that the definition of ``waters of the United States'' is a
policy interpretation that may be informed by science but cannot be
based on science alone. As discussed in section IV.A.2 of this
preamble, the agencies agree that science alone cannot dictate where to
draw the line defining ``waters of the United States.'' But science is
critical to determining how to attain Congress's plainly stated
objective to restore and maintain the chemical, physical, and
biological integrity of the nation's waters and properly evaluating
which waters are the subject of Federal jurisdiction due to their
effects on paragraph (a)(1) 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. The 2020 NWPR
is not a suitable alternative to this rule because it cannot advance
the objective of the Act given its lack of scientific support.
c. The 2020 NWPR Was Difficult To Implement and Yielded Inconsistent
Results
In addition to the above concerns, the agencies' experience
implementing the 2020 NWPR for over a year made clear that foundational
concepts underlying much of the 2020 NWPR were confusing and difficult
to implement. While any rule that draws lines between jurisdictional
waters and non-jurisdictional waters will involve some implementation
challenges, the agencies have found the challenges imposed by the 2020
NWPR to be impracticable in important respects.
Many commenters stated that the agencies should retain the 2020
NWPR because it was clear, pragmatic, and easy to implement. For
example, commenters stated that the rule provided ``bright lines,'' was
based on readily observable surface features, and categorically
excluded certain categories of waters. The agencies recognize that the
regulatory text of the 2020 NWPR contained categorical language and
referred to observable surface features. However, the ``bright lines''
and surface feature tests relied upon the concept of ``typical year,''
which, as other commenters pointed out, and as discussed further below,
was extremely challenging to implement and led to arbitrary results. As
a commenter emphasized, contrary to statements often made about the
2020 NWPR, under that rule landowners could not determine whether a
stream or wetland is jurisdictional by standing on their property.
Rather, the commenter stated that property owners would need to
determine the source and timing of flow, whether the stream flowed into
a navigable water off-property, whether wetlands abutted a
jurisdictional water, and whether a downstream segment lacked
sufficient flow or otherwise broke jurisdiction. The commenter asserted
that many of these inquiries would require the decision-maker to
trespass onto properties of others, or guess. Furthermore, the
commenter stated that in many cases, critical information that the rule
required the property owner to know--such as whether a wetland is
inundated by flooding from a jurisdictional water in a typical year--is
not normally recorded. This comment is consistent with the agencies'
experience that the 2020 NWPR did not ``provide[ ] clarity and
predictability for Federal agencies, States, Tribes, the regulated
community, and the public.'' See 85 FR 22252 (April 21, 2020). With
respect to categorical exclusions, this rule retains and codifies a
list of categorical exclusions, as did the 2020 NWPR and the 2015 Clean
Water Rule. See further discussion in section IV.C.7 of this preamble.
The challenges that the 2020 NWPR imposed to establish jurisdiction for
features that it appears to define as jurisdictional, and that
significantly affect the integrity of paragraph (a)(1) waters, further
undermine the 2020 NWPR's viability as an alternative to this rule.
i. ``Typical Year'' Metric
The ``typical year'' is a concept fundamental to many of the 2020
NWPR's definitions. 85 FR 22273 (April 21, 2020). Under the rule,
tributaries and lakes, ponds, and impoundments of jurisdictional waters
were only jurisdictional if they had certain surface water connections
with a traditional navigable water or the territorial seas at least
once in a typical year. 33 CFR 328.3(c)(6), (12). Two categories of
wetlands only met the adjacency test for jurisdiction if they had a
surface water connection with other jurisdictional waters once in a
typical year. 33 CFR 328.3(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 2020 NWPR
recommended, 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 2020 NWPR. For example, a
recent
[[Page 3059]]
study by the Corps found that precipitation normalcy (as calculated
based on the methodology described in the preamble to the 2020 NWPR)
was neither a reliable predictor of streamflow normalcy, nor was it a
precise predictor of streamflow percentiles, in an analysis of
watersheds across the United States.\69\ These challenges undermine the
2020 NWPR's claim that it enhanced the ``predictability and consistency
of Clean Water Act programs.'' See 85 FR 22250 (April 21, 2020).
---------------------------------------------------------------------------
\69\ Sparrow, K.H, Gutenson, J.L., Wahl, M.D. and Cotterman,
K.A. 2022. Evaluation of Climatic and Hydroclimatic Resources to
Support the US Army Corps of Engineers Regulatory Program. Engineer
Research and Development Center (U.S.) Technical Report no. ERDC/CHL
TR-22-19.
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One of the significant implementation challenges of the typical
year metric is that it can be difficult and sometimes impossible to
identify the presence of a surface water connection in a typical year.
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 surface water flows connecting to a
downstream jurisdictional water. Similarly, though many ponds or
wetlands may be frequently inundated by flooding from another water, in
arid areas those features 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 2020 NWPR's jurisdictional
test, agency staff would probably not be able to determine that they
do, given how unlikely they would be to observe these infrequent
connections. The difficulty of finding the direct hydrologic
connections required by the typical year concept during a field visit
is exacerbated by the fact that the 2020 NWPR discouraged 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 2020 NWPR,
under that rule agency staff often needed to 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 analyses 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. Moreover, ``typical year conditions'' are
often irrelevant to the extent of flow in human-altered streams,
including effluent-dependent streams. The 2020 NWPR did not explain why
human-altered hydrology should be subject to the same typical year
requirement as natural streams.
For the same reasons that agency staff are unlikely to witness the
specific surface water connections required under the 2020 NWPR during
a site visit in dry regions or during the dry season, they are also
unlikely to capture evidence of a surface water connection between a
stream and a downstream traditional navigable water or the territorial
seas using available aerial photographs taken during typical year
conditions. Aerial photographs are often taken just once per year or
once every other year and staff have no way of ensuring that they were
taken during a typical year. High-resolution satellite imagery can
serve as a reliable source to demonstrate specific surface water
connections. But the availability and usability of such imagery varies
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), so that such tools may be
unlikely to demonstrate that specific surface water connections are
occurring in a typical year. Moreover, as the 2020 NWPR acknowledged,
``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). Commenters on the proposed rule stated that
Tribes and States lacked sufficient data, aerial photography and access
to other tools required to support the use of the typical year test in
many locations. They expressed concern that under-resourced communities
suffer a particular lack of data necessary to support this test. 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 jurisdiction based on the requirements in the 2020 NWPR.
Remote tools, such as aerial or satellite imagery, are often useful in
implementing any definition of ``waters of the United States,'' but the
2020 NWPR's typical year criteria made use of these resources
particularly challenging.
The same difficulties created challenges in detecting surface
hydrologic connections that occurred in a typical year to meet the 2020
NWPR's definition of ``adjacent wetlands'' or ``lakes and ponds, and
impoundments of jurisdictional waters.'' The 2020 NWPR's standard of
inundation by flooding in a typical year was not tied to any commonly
calculated flood interval, such as flood recurrence intervals, and the
agencies are not aware of a tool capable of collecting the type of
inundation data the 2020 NWPR required. 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 flooding occurs
from a tributary to a wetland, lake, pond, or impoundment, as well as
being able to demonstrate that this flooding occurred in a typical
year. Determining that inundation by flooding occurs in a typical year
was 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
posed similar obstacles, requiring either auspiciously timed field
visits, aerial photography, 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 2020 NWPR suggested 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 2020 NWPR preamble for determining
precipitation in a typical year made it difficult to use these data to
inform jurisdiction. NOAA precipitation totals over the three months
prior to a site observation are compared to precipitation totals
observed over the preceding 30 years to determine if conditions were
wetter than normal, drier than normal, or normal (``typical''). Using
the methodology in the preamble of the 2020 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
[[Page 3060]]
surface water flow was observed during normal or dry conditions, the
agencies could have higher confidence that the surface water
observations represented flow in a ``typical year.'' However, if flow
was observed during the 30% of conditions that are ``wetter than
normal,'' the surface water observations did not reveal whether flow
would occur during a typical year. And if flow was not observed,
precipitation data from the previous three months did 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 was conducted when surface water flow was not present, the
agencies' suggested approach for evaluating whether a feature meets the
typical year test often did not provide meaningful and relevant
information for the agencies to make accurate determinations of
jurisdiction. Indeed, a commenter on the proposed rule emphasized that
Tribes and States have found the ``typical year'' requirement to
require extensive hydrologic modeling and advanced statistical analyses
in complex conditions. Under any regulatory regime, the agencies use a
weight of evidence approach to determine jurisdiction, but the 2020
NWPR typical year requirement placed onerous and, in many instances,
arbitrary constraints on the data that can be used as evidence.
Furthermore, the typical year concept as applied to the 2020 NWPR
does not account for the increasing number of recurrent heat waves,
droughts, storms, and other extreme weather events in many parts of the
country. These events can have profound impacts on local and regional
hydrology, including streamflow. Commenters noted that determining what
is ``typical'' under the 2020 NWPR in light of increased drought and
floods was not simple for Tribal or State agencies; such determinations
required expert analysis and left much to interpretation, undermining
the assertion by the agencies that the 2020 NWPR would establish a
clear, predictable regulatory framework that can be implemented in the
field.
The concept of ``typical year'' in the 2020 NWPR sought to factor
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). However,
the 2020 NWPR did 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 rigid rolling thirty-year approach to determining typical year in
the 2020 NWPR did not allow the agencies to use these updated methods.
The 2020 NWPR noted 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 identified 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). These methods,
which provide information useful in many other contexts, often only
look at climate-related conditions generally and often did not answer
the jurisdictional questions posed by the 2020 NWPR. For example, they
did not address whether surface water flow might connect a particular
stream to a downstream traditional navigable water or the territorial
seas, whether a particular wetland was inundated by or connected to a
jurisdictional water as required under the 2020 NWPR, or how
uncertainties at different locations and in different months affected
the accuracy of condition estimates. While precipitation is an
important factor, other information is also relevant to streamflow and
surface water connections in a typical year, including the
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. While the agencies have substantial experience using
a weight of evidence approach to determine jurisdiction, for example as
part of the significant nexus analysis, the typical year requirement
makes it substantially 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 the territorial seas. Even streams that flow perennially or
intermittently often travel many miles prior to reaching the closest
traditional navigable water or the territorial seas, meaning many
downstream reaches may need to be assessed. Under the 2020 NWPR, any
ephemeral reaches along that pathway that did not carry surface water
flow once in a typical year would render all upstream waters non-
jurisdictional. 85 FR 22277 (April 21, 2020). The need to assess
lengthy tributary systems imposed an extraordinarily high burden of
proof on the agencies to evaluate surface water flow in a typical year
along the flow path from a stream of interest to a downstream
traditional navigable water or the territorial seas. The longer the
pathway, the more challenging the analysis. As a commenter noted, in
adopting the test, the 2020 NWPR inserted case-by-case analyses for
every jurisdictional determination despite the rule's claim that it
``provide[s] a predictable framework in which to establish federal
jurisdiction.'' Id. at 22273-22274. The uncertainty and implementation
challenges generated by the 2020 NWPR's foundational typical year test
are yet another basis to replace that rule.
ii. Determining Adjacency
The 2020 NWPR provided that wetlands are ``adjacent'' when they:
(1) abut a traditional navigable water or the territorial seas; 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. 85 FR 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.
The artificial barrier provision led to arbitrary 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
[[Page 3061]]
hydrological surface connection in a typical year through a culvert
(assuming the wetland did not meet another criterion for adjacency).
The 2020 NWPR therefore established 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 is not supported by science or the agencies'
experience.
Moreover, the provision establishing that a wetland is ``adjacent''
if a jurisdictional water inundates it by flooding in a typical year
was 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, and the agencies
would typically be unable to demonstrate that these indicators reflect
typical year conditions. Indeed, the 2020 NWPR acknowledged 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. Given the absence of existing records
of inundation by flooding, determining whether inundation by flooding
has occurred in a typical year is challenging in many circumstances.
Compounding the challenge, the 2020 NWPR provided 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 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 adds to 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 22338-39 (April
21, 2020); 33 CFR 328.3(c)(vi).
iii. Ditches
Among other requirements, the 2020 NWPR provided that a ditch \70\
is jurisdictional as a tributary if it was originally built in a
tributary or adjacent wetland, as those terms are defined in the 2020
NWPR, and emphasized 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. In other
words, in order to find a ditch jurisdictional, the agencies had to
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 the territorial seas (4) in a ``typical year.''
Alternatively, the agencies had to 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 at the time the ditch
was constructed (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. And
while under earlier guidance and practice, the agencies generally
assessed whether a ditch was excavated in dry land when making a
jurisdictional determination, that involved an assessment simply of
whether the ditch was excavated in a stream, a wetland, or other
aquatic resource. By contrast, to determine whether a ditch was
jurisdictional under the 2020 NWPR, the agencies had to determine if it
was originally built in a tributary or adjacent wetland that would have
been jurisdictional under the 2020 NWPR, and therefore had to 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 twenty, one
hundred, or even 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
approached the agencies seeking assistance in assessing the
jurisdictional status of ditches, but the agencies were often unable to
provide meaningful help given the burdens imposed by the 2020 NWPR's
ditch definition.
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\70\ 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, the territorial seas, and interstate
waters.
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The 2020 NWPR also provided that ditches are jurisdictional if they
relocate a tributary, as that term was defined in the rule, 85 FR 22341
(April 21, 2020); 33 CFR 328.3(a)(2), (c)(12), but this standard as
defined by the 2020 NWPR was also often extremely difficult to assess.
The 2020 NWPR explained 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) (emphasis added). In other words, the 2020
NWPR appeared 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 substantial
implementation challenges. As a practical matter, when a tributary is
relocated it often reroutes just a portion of its flow to the ditch.
Assessing whether a ditch relocated 100% of a tributary's flow, as
opposed to 80% or 50% of its flow, is extremely difficult and may not
be possible in some circumstances. The scientific literature indicates
that features like ditches that convey water continue to connect to and
affect downstream waters. See section III.A.iv of the Technical Support
Document for additional information. By establishing a jurisdictional
standard that is extremely difficult to meet, the 2020 NWPR effectively
removed 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, the territorial
seas, and interstate waters. As is the case with tributaries, lakes and
ponds, impoundments, and wetlands, the 2020 NWPR's impracticable
approach to ditches made it extremely difficult to implement. In the
agencies' judgment, any efficiencies the 2020 NWPR may have achieved
through categorical exclusions are outweighed by the challenges the
agencies encountered in implementing the rule, coupled with its failure
to implement the objective of the Clean Water Act by removing
protections for waters that are properly within the statute's scope.
[[Page 3062]]
d. The 2020 NWPR Substantially Reduced Clean Water Act Protections Over
Waters
The failure of the 2020 NWPR to advance the objective of the Clean
Water 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 were protected by
the Clean Water Act under the 2020 NWPR compared to under 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
section 402 NPDES and section 404 dredged and fill permitting programs,
but also water quality standards under section 303, identification of
impaired waters and total maximum daily loads under section 303,
section 311 oil spill prevention, preparedness, and response programs,
and the section 401 Tribal and State water quality certification
programs--because the Clean Water Act provisions establishing such
programs use the term ``navigable waters'' or ``waters of the United
States.'' While the 2020 NWPR was promulgated with the expressed intent
to decrease the scope of Federal jurisdiction, the agencies now are
concerned that the actual decrease in water resource protections was
more pronounced than the qualitative predictions in the 2020 NWPR
preamble and supporting documents anticipated and acknowledged to the
public. These data support the agencies' conclusion that the 2020 NWPR
is not a suitable alternative to this 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,\71\ EPA and the Army have identified
consistent indicators of a substantial reduction in waters protected
under the Clean Water Act by the 2020 NWPR (see Technical Support
Document section II.B.i 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 2020 NWPR's
definitions. Additionally, the agencies find that these indicators
likely account for only a fraction of the 2020 NWPR's impacts, because
many project proponents did not seek any form of jurisdictional
determination for waters that the 2020 NWPR categorically excluded,
such as ephemeral features, and the Corps would not have knowledge of
or ability to track such projects. A closer look at each of these
indicators will help demonstrate some of the more pronounced impacts of
the 2020 NWPR on paragraph (a)(1) waters than were identified for the
public in the 2020 NWPR and its supporting documents. As explained in
detail above, when a water falls outside the scope of the Clean Water
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, including dredged or fill
material, into such waters unless the pollutants reach jurisdictional
waters. And since many entities did not believe that they would need to
seek a jurisdictional determination under the 2020 NWPR, it is
impossible to fully understand the scope of degradation the 2020 NWPR's
definition caused to paragraph (a)(1) waters.
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\71\ 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 that are not associated with
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,\72\ 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
2020 NWPR, the probability of finding resources to be non-
jurisdictional increased precipitously. Of the 9,399 AJDs completed by
the Corps under the 2020 NWPR during the first 12 months in which that
rule was in effect,\73\ the agencies found approximately 75% of AJDs
completed had identified non-jurisdictional water resources and
approximately 25% of AJDs completed identified jurisdictional
waters.\74\ Conversely, when the 1986 regulations and applicable
guidance were in effect (including following the 2019 recodification of
those regulations), substantially more jurisdictional waters were
identified in AJDs on average per year than compared to the first
twelve months of the 2020 NWPR.\75\ During similar one-year calendar
intervals when the 1986 regulations and applicable guidance were in
effect, approximately 28% to 45% of AJDs completed identified non-
jurisdictional aquatic resources, and 56% to 72% of AJDs identified
jurisdictional resources.
[[Page 3063]]
The change from a range of 28% to 45% non-jurisdictional AJD findings
prior to the 2020 NWPR to 75% non-jurisdictional findings after
issuance of the 2020 NWPR indicates that substantially fewer waters
were protected by the Clean Water Act under the 2020 NWPR (see
Technical Support Document section II.B.i for additional discussion).
Again, as commenters on the proposed rule noted, these numbers do not
account for the many entities that did not seek AJDs because they
believed their features were excluded under the 2020 NWPR.
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\72\ See supra note 71.
\73\ These AJDs were completed by the Corps between the 2020
NWPR's effective date of June 22, 2020, and June 21, 2021.
\74\ This excludes dryland AJDs and waters identified as
jurisdictional only under section 10 of the Rivers and Harbors Act.
In addition, under the 2020 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 2020 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 the agencies'
analysis can be found in the Technical Support Document section
II.B.i.
\75\ 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. 2015 Clean Water Rule determinations were not part of
this analysis.
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When evaluating the effect of the 2020 NWPR on the number of
individual aquatic resources (as opposed to the AJDs completed), the
agencies found a similar substantial reduction in protections provided
by the Clean Water Act. Within the first twelve months of
implementation of the 2020 NWPR, between June 22, 2020, and June 21,
2021, the Corps documented the jurisdictional status of 48,313
individual aquatic resources or water features through AJDs completed;
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. Ditches
were also frequently found to be non-jurisdictional (4,706 individual
exclusions), which is likely the result of the narrowed definition of
tributary under the 2020 NPWR and the requirement that a ditch was only
jurisdictional as a tributary if it was originally built in a tributary
or adjacent wetland, as those terms are defined in the 2020 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 pre-2015 regulatory regime.\76\ This increase in
non-jurisdictional determinations, so that approximately 75% of water
bodies are non-jurisdictional under the 2020 NWPR as opposed to only
45% under the prior regulations, undermined the agencies' ability to
provide a baseline of Federal protection for the integrity of the
nation's waters.
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\76\ Based on the average annual percentage of non-
jurisdictional findings.
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Of particular concern to the agencies is the 2020 NWPR's
disproportionate effect on arid regions of the country, as the aquatic
resources in these regions predominantly consist of ephemeral features.
Under the 2020 NWPR, more permittees across the country, including in
the arid West, sought AJDs rather than PJDs, particularly for ephemeral
features. Many more streams were evaluated and determined to be non-
jurisdictional through AJDs in the arid West, while the number of
individual stream reaches considered under PJDs declined precipitously.
As mentioned previously, project proponents who request an AJD obtain
an official Corps document that states either that there are no
``waters of the United States'' present on a parcel, or a statement
that ``waters of the United States'' are present, accompanied by a map
identifying their extent. 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. A decline in the
proportion of PJDs being requested under the 2020 NWPR indicates that
fewer project proponents requested that aquatic resources on their
project site be treated as if they were 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 2020 NWPR in 2020-2021 it was only
45.\77\ Compared to pre-2015 regulatory practice, under the 2020 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. 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 2020 NWPR.
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\77\ The AJD values associated with the 2020 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 2020 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 II.B.i for more analysis.
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The number of stream reaches assessed in Arizona under AJDs
compared to the number of evaluations completed nationwide was
disproportionately high under the 2020 NWPR. 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 2020 NWPR was
implemented.\78\ This increase in the number of AJDs sought in Arizona
under the 2020 NWPR compared to the number of AJDs sought in Arizona
between 2016 and 2020 likely reflects the desire of landowners to
confirm that features on their property were ephemeral or otherwise
excluded under that rule, though it is possible the pace of landowners
seeking AJDs would have slowed to some extent over time. The agencies
understand the drastic decline in the number of PJDs requested compared
to AJDs in the arid West, and the simultaneous increase in the number
of AJD non-jurisdictional findings in the arid West, to have been
driven largely by the categorical exclusion of ephemeral streams from
jurisdiction. PJDs assume jurisdiction, and under the 2020 NWPR project
proponents were less likely to assume that ephemeral streams were
jurisdictional.
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\78\ There were a total of 16,787 stream reaches assessed via
AJDs nationwide between June 22, 2020 and June 21, 2021.
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The Corps' data show that in New Mexico, of the 263 streams
assessed via AJDs in the first twelve months of implementation of the
2020 NWPR (i.e., between June 22, 2020, to June 21, 2021), 100% were
found to be non-jurisdictional ephemeral features.\79\ In Arizona, of
the 1,525 streams assessed in AJDs in the first year of implementation
of the 2020 NWPR, 1,518, or 99.5%, were found to be non-jurisdictional
ephemeral resources. Eliminating these streams from jurisdiction under
the 2020 NWPR also typically eliminated jurisdiction over wetlands
which otherwise might meet adjacency criteria.
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\79\ These non-jurisdictional ephemeral resources are
predominantly ephemeral streams, but a small portion may be swales,
gullies, or pools.
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Some commenters asserted that the low percentage of jurisdictional
AJD findings in Arizona under the 2020 NWPR does not have a
statistically significant difference from the percentages of
jurisdictional findings under the pre-2015 regulatory regime. The
agencies agree that of Corps AJDs completed between 2016 and 2020, high
percentages of streams in Arizona were found to be non-jurisdictional
between 2016 and 2020. Proportionally, the non-jurisdictional findings
via AJDs between 2016-2020 and the 2020 NWPR are similar. However,
because the volume of streams assessed under AJDs in the arid West
increased so substantially, there was a 10-fold increase in non-
jurisdictional findings for streams in Arizona and a 36-fold increase
in non-jurisdictional findings for streams in
[[Page 3064]]
New Mexico following implementation of the 2020 NWPR. 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
2020 NWPR (of which 1,521 were determined non-jurisdictional accounting
for all exclusions). Assessed together, the statistically significant
increase in overall resources assessed via AJD combined with the shift
away from requests for PJDs, as well as the consistent proportion of
AJDs with non-jurisdictional findings indicates that many more project
proponents viewed resources on their land as no longer ``waters of the
United States'' under the 2020 NWPR. The agencies' analysis also
reflects the scope of the streams that the 2020 NWPR left unprotected,
which in many cases are vitally important to desert aquatic ecosystems
and to the hydrologic integrity of watersheds. See section IV.A.2.c.i
of this preamble.
The Corps 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 prior to the 2020 NWPR, but no longer did
under the 2020 NWPR's definition of ``waters of the United States.''
\80\ Moreover, in comparing 2020-2021 to similar annual data from 2016-
2020 from implementation of the 1986 regulations consistent with
Supreme Court case law, there was an average 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 2020 NWPR.
The number of projects that did not require a section 404 permit under
the 2020 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 would not have sought a jurisdictional determination or
applied for a permit at all if they believed their aquatic resources
were non-jurisdictional under the 2020 NWPR. Many projects could have
occurred without consultation with the Corps due to the 2020 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 2020 NWPR, it is fair to assume that these
impacts are an underestimate.\81\
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\80\ This tracking method only applies when 100% of jurisdiction
is lost under the 2020 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 was a new
database feature, which was not yet implemented uniformly across the
United States, and is likely under-representative even for those
cases in which 100% of jurisdiction was lost under the 2020 NWPR.
\81\ 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 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 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.
---------------------------------------------------------------------------
Many commenters cited the impacts referenced above as reasons to
reject the 2020 NWPR's definition of ``waters of the United States.''
In addition, many commenters cited national-scale assessments of the
number of waterbodies that lost protection under the 2020 NWPR as
evidence of environmental harm. Some commenters noted that 51% of
wetlands and 18% of streams lost protections.\82\ Other commenters
stated that 4.8 million miles of streams and 16.3 million acres of non-
floodplain wetlands would be left without Federal level protections
under the 2020 NWPR.\83\
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\82\ Contained in the Resource and Programmatic Assessment for
the Proposed Revised Definition of ``Waters of the United States''
(Docket ID No. EPA-HQ-OW-2021-0602-0039).
\83\ Commenters cited to the following scientific paper as
support: C.R. Lane and E. D'Amico. Identification of putative
geographically isolated wetlands of the conterminous United States,
52 J Am Water Resource Association 705(2016); K. Fesenmyer et al.,
Large portion of USA streams lose protection with new interpretation
of Clean Water Act. February 2021. Freshwater Science 40(1).
---------------------------------------------------------------------------
Commenters provided many potential examples of the harms caused by
the 2020 NWPR around the country. One commenter stated that in the
Northwest, an estimated 9,165 miles of ephemeral streams in Oregon's
Rogue River Basin that provide drinking water for the region, as well
as habitat and spawning grounds for Federal threatened Southern Oregon/
Northern California Coast coho salmon and steelhead, would have lost
protection under the 2020 NWPR. Another commenter stated that in the
Midwest, protection would have been lost for an estimated 500 to 1,000
miles of ephemeral and ditched streams that flow into the Niagara
River, the channel that connects Lake Erie and Lake Ontario. The
commenter also noted that following promulgation of the 2020 NWPR, two
Great Lakes states finalized legislative action to further reduce
protections under State law for waters excluded by the 2020 NWPR. One
commenter asserted that up to 202,244 acres of wetlands located behind
levees in Missouri would have been excluded from jurisdiction under the
2020 NWPR because they are separated from jurisdictional waters by
``upland or by dikes, barriers, or similar structures.'' The commenter
stated that these wetlands provide flood control, habitats, and improve
water quality. In the Mountain West, a commenter stated that over half
of Colorado's streams and 22% of that State's remaining wetlands would
have been excluded from jurisdiction under the 2020 NWPR. With respect
to the Southeast, a commenter cited analyses demonstrating that 162,149
acres of wetlands in Georgia's Chattahoochee watershed were vulnerable
to losing protection under the 2020 NWPR. The same commenter noted
that, in the Mid-Atlantic, over 100,000 acres of wetlands would have
lost protection under the 2020 NWPR in Virginia's James River and
Rappahannock River watersheds, which are vital to water quality in the
Chesapeake Bay. Finally, in the Southwest, comments from the State of
New Mexico estimated that under the 2020 NWPR, 25-45% of its Clean
Water Act stormwater general permits and 50% of its individual permits
would no longer be required. In Arizona, a commenter stated that 94% of
all wetlands and flowlines in Arizona's Upper San Pedro Watershed would
have lost protection under the 2020 NWPR.
The agencies have not conducted an independent analysis to verify
each of these comments but have carefully reviewed the concerns
identified and the underlying analyses that commenters cited and found
them generally consistent with the agencies' own findings about the
impacts of the 2020 NWPR. These examples illustrate the quality and
importance of the waters that lost protection under the 2020 NWPR. As
commenters emphasized, waters that the 2020 NWPR categorically
excluded, such as ephemeral streams and their associated wetlands and
wetlands that did not
[[Page 3065]]
meet the 2020 NWPR's adjacency criteria, provide critical ecosystem
services. The absence of Clean Water Act protections for such resources
and any subsequent unregulated and unmitigated impacts to such
resources would have caused cascading, cumulative, and substantial
downstream harm. Commenters stated that, specifically, the 2020 NWPR
would have reduced the extent to which waters filter out pollutants
before they reach traditional navigable waters; reduced flood
protections and water storage services, and increased flooding; harmed
fisheries and hunting sites; destroyed bird and wildlife habitat,
including habitats relied on by endangered species; and reduced the
quality of drinking water. Commenters also stated that the reduction in
federally protected waters under the 2020 NWPR could increase water
pollution near low-income communities and communities of color in
particular and that they could experience associated increases in
health risk.
The 2020 NWPR's removal of Federal protections from the nation's
waters, and the resulting detriment to the services they provide,
undermines the objective of the Clean Water Act, as discussed in
section IV.A.2 of this preamble.
ii. Tribes and States Did Not Fill the Regulatory Gap Left by the 2020
NWPR
Some commenters asserted that the diminished scope of ``waters of
the United States'' would not necessarily reduce protections for waters
because Tribes, States, and local entities may regulate discharges even
in the absence of Clean Water Act regulation. See section IV.A.3.b of
this preamble. This perspective is consistent with the 2020 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 Clean Water Act. 85 FR 22259 (April 21,
2020). Yet while some Tribes and States regulate ``waters of the
Tribe'' or ``waters of the State'' more broadly than the Federal
Government under their own laws, many newly non-jurisdictional waters
under the 2020 NWPR were on Tribal lands or in States that do not
regulate waters beyond those covered by the Clean Water Act. Under the
2020 NWPR, discharges into these waters could have occurred without any
restriction.
As discussed in the Economic Analysis for the Final Rule, many
Tribes and States do not regulate waters more broadly than the Clean
Water Act. See Economic Analysis for the Final Rule, Chapter II; 2020
NWPR Economic Analysis at 30-31. Contrary to the predictions made in
the 2020 NWPR Economic Analysis, during the year in which the 2020 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, and no States that lacked these broader protections
established them. See 2020 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 Final Rule, Chapter II (indicating that two of those States reduced
the scope of State clean water protections after the 2020 NWPR was
finalized, and none of them formally expanded protections as a direct
result of the 2020 NWPR).
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 2020 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 2020 NWPR Federal floor would have
established them. Indeed, the External Environmental Economics Advisory
Committee has stated that the model that the 2020 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''
(e.g., only three States directly increased protective 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' resulting change in implementation of the
Act).\84\ Moreover, commenters, including State entities, asserted that
the Federal Government provided no assistance or support for
overburdened State agencies trying to compensate for the sudden
suspension in Federal protections under the 2020 NWPR. Finally, States
asserted that in the absence of robust Federal protections, even if
they were to expend substantial resources addressing discharges within
their borders, they would not be able to limit pollutants flowing in
from other States that may not have established such controls.
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\84\ Prior to the 2016 Trump Administration, EPA's Science
Advisory Board (SAB) had a subcommittee on environmental economics
known as the Environmental Economics Advisory Committee (EEAC). When
this committee was disbanded under the 2016 Administration, its
members created an ad-hoc external committee. This External
Environmental Economics Advisory Committee (E-EEAC) carried out an
assessment of the economic analysis associated with the 2020 NWPR.
See Keiser, D., S. Olmstead, K. Boyle, V. Flatt, B. Keeler, D.
Phaneuf, J. Shapiro, and J. Shimshack (2020). 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). December 2020. As of today, the EPA's SAB has reinstated
the EEAC, which assessed the proposed rule's economic analysis as
part of the SAB's review of the rule.
---------------------------------------------------------------------------
The agencies are also not aware of any Tribes that expanded their
clean water protections to compensate for a reduction in protections
under the 2020 NWPR. During the agencies' Tribal consultation and
coordination for this rulemaking process, Tribes overwhelmingly
indicated they lack the independent resources and expertise to protect
their waters and therefore rely on Clean Water Act protections. See
Summary of Tribal Consultation and Coordination, available in the
docket for this rule. This feedback is consistent with the concerns
expressed during the 2020 NWPR rulemaking process. See, e.g., 85 FR
22336-22337, April 21, 2020 (``[M]any Tribes may lack the capacity to
create a [T]ribal water program under [T]ribal 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 capacity of many Tribes and States to regulate
waters more broadly than the Federal Government and limited authority
under Tribal and State law, the narrowing of Federal jurisdiction would
mean that many discharges into the newly non-jurisdictional waters
would 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 co-regulators and
stakeholders, including Tribes, States, scientists, and non-
governmental organizations, that corroborated the agencies' data and
indicated that the 2020 NWPR's reduction in the jurisdictional scope of
the Clean Water Act would cause substantial environmental harms,
including to the quality of paragraph (a)(1) waters, that Tribes and
States lack the authority or resources to address.
[[Page 3066]]
In conclusion, the agencies do not find that the 2020 NWPR is a
suitable alternative to this rule.
C. This Rule
1. Summary of This Rule
This rule establishes the definition of ``waters of the United
States'' for purposes of the Clean Water Act. For clarity, this rule is
divided into three parts: jurisdictional waters, exclusions, and
definitions. This section of the preamble addresses each provision of
the rule and provides an explanation of the rule text, a response to
significant comments, and the agencies' interpretation and
implementation of the provisions of the rule.
The ``waters of the United States'' are defined in paragraph (a) of
this rule: (1) traditional navigable waters, the territorial seas, and
interstate waters (``paragraph (a)(1) waters''); (2) impoundments of
``waters of the United States'' (``paragraph (a)(2) impoundments'');
(3) tributaries to traditional navigable waters, the territorial seas,
interstate waters, or paragraph (a)(2) impoundments when the
tributaries meet either the relatively permanent standard or the
significant nexus standard (``jurisdictional tributaries''); (4)
wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent to and
with a continuous surface connection to relatively permanent paragraph
(a)(2) impoundments or to jurisdictional tributaries when the
jurisdictional tributaries meet the relatively permanent standard; and
wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional
tributaries when the wetlands meet the significant nexus standard
(``jurisdictional adjacent wetlands''); and (5) intrastate lakes and
ponds, streams, or wetlands not identified in paragraphs (a)(1) through
(4) that meet either the relatively permanent standard or the
significant nexus standard (``paragraph (a)(5) waters'').
The ``relatively permanent standard'' means relatively permanent,
standing or continuously flowing waters connected to paragraph (a)(1)
waters, and waters with a continuous surface connection to such
relatively permanent waters or to paragraph (a)(1) 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, the territorial seas, or interstate waters.
Paragraph (b) of this rule contains the longstanding exclusions
from the pre-2015 regulations, as well as additional exclusions based
on well-established practice, from the definition of ``waters of the
United States.'' Paragraph (c) of this rule provides definitions for
terms used in this rule.
Paragraph (a): Jurisdictional Waters
Paragraph (a)(1). This rule defines ``waters of the United States''
to include traditional navigable waters, the territorial seas, and
interstate waters. The agencies are not making changes to the text or
substance of the provisions of the 1986 regulations covering
traditional navigable waters, the territorial seas, and interstate
waters. The agencies are consolidating these three categories of waters
into one paragraph at the beginning of the regulatory text. While
combined into one paragraph, each category will remain distinct in
separate subparagraphs. The agencies have concluded that this non-
substantive change streamlines the regulatory text and increases
clarity. This streamlining is not a substantive change and does not
alter the agencies' longstanding interpretation and implementation of
these provisions.
Paragraph (a)(2). This rule defines ``waters of the United States''
to include impoundments of ``waters of the United States.''
Impoundments are created by discrete structures (often human-built)
like dams or levees that typically have the effect of raising the water
surface elevation, creating or expanding the area of open water, or
both. In this rule, the paragraph (a)(2) impoundments category provides
that ``waters of the United States'' do not lose their jurisdictional
status simply because they are impounded. In a change from the 1986
regulations, waters that are jurisdictional under paragraph (a)(5) and
that are subsequently impounded do not retain their jurisdictional
status by rule under the paragraph (a)(2) impoundments provision, but
may still be determined to be jurisdictional if they meet the
requirements of a category of ``waters of the United States'' other
than paragraph (a)(2) at the time of assessment (i.e., as a traditional
navigable water, the territorial seas, interstate water, jurisdictional
tributary, jurisdictional adjacent wetland, or paragraph (a)(5) water).
Paragraph (a)(3). This rule defines ``waters of the United States''
to include tributaries of traditional navigable waters, the territorial
seas, interstate waters, or paragraph (a)(2) impoundments when the
tributaries meet either the relatively permanent standard or the
significant nexus standard. As compared to the 1986 regulations, this
rule adds the territorial seas to the list of waters to which a water
may be a tributary and deletes intrastate lakes and ponds, streams, or
wetlands not identified in paragraphs (a)(1) through (4) (the (a)(3)
``other waters'' provision under the 1986 regulations) from the list.
Paragraph (a)(4). Aquatic resources that meet this rule's
definitions of ``wetlands'' and ``adjacent'' with regard to another
jurisdictional water are assessed under this provision. The rule
defines ``waters of the United States'' to include: (1) wetlands
adjacent to traditional navigable waters, the territorial seas, or
interstate waters; (2) wetlands adjacent to and with a continuous
surface connection to relatively permanent paragraph (a)(2)
impoundments or jurisdictional tributaries when the jurisdictional
tributaries meet the relatively permanent standard; or (3) wetlands
adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries
when the wetlands meet the significant nexus standard (``jurisdictional
adjacent wetlands'').
Paragraph (a)(5). This rule defines ``waters of the United States''
to include intrastate lakes and ponds, streams, or wetlands not
identified in paragraphs (a)(1) through (4) that meet either the
relatively permanent standard or the significant nexus standard. In
this paragraph, the agencies are retaining the category from the 1986
regulations sometimes referred to as ``(a)(3) waters'' or ``other
waters,'' but with changes to reflect the agencies' determination of
the statutory limits on the scope of ``waters of the United States''
informed by the law, the science, and agency expertise, in addition to
consideration of extensive public comment on the proposed rule. Of
particular importance, the agencies have replaced the 1986 regulation's
broad Commerce Clause basis for jurisdiction for waters not identified
in other provisions of the definition, with the relatively permanent
standard and the significant nexus standard. In addition, the agencies
have deleted the non-exclusive list of ``other waters'' in the 1986
regulation. Under this provision in the rule, only ``intrastate lakes
and ponds, streams, or wetlands not identified in paragraphs (a)(1)
through (4)'' can be assessed for jurisdiction under the relatively
permanent standard or significant nexus standard.
Paragraph (b): Exclusions
The agencies are promulgating a number of exclusions from the
definition of ``waters of the United States,'' including longstanding
[[Page 3067]]
exclusions for prior converted cropland and waste treatment systems,
and exclusions for features that were generally considered non-
jurisdictional under the pre-2015 regulatory regime. The agencies are
listing these exclusions in the regulatory text in a new paragraph (b),
which consolidates the exclusions together in a single regulatory
section. Under this rule, where a feature satisfies the terms of an
exclusion, it is excluded from jurisdiction even where the feature
would otherwise be jurisdictional under paragraphs (a)(2) through (5)
of this rule. Paragraph (a)(1) waters are not subject to the
exclusions. The exclusions are:
(1) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act;
(2) Prior converted cropland designated by the Secretary of
Agriculture. The exclusion would cease upon a change of use, which
means that the area is no longer available for the production of
agricultural commodities. 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;
(3) Ditches (including roadside ditches) excavated wholly in and
draining only dry land and that do not carry a relatively permanent
flow of water;
(4) Artificially irrigated areas that would revert to dry land if
the irrigation ceased;
(5) Artificial lakes or ponds created by excavating 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;
(6) Artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating or diking dry land to
retain water for primarily aesthetic reasons;
(7) 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; and
(8) Swales and erosional features (e.g., gullies, small washes)
characterized by low volume, infrequent, or short duration flow.
Paragraph (c): Definitions
Paragraph (c) of this rule provides definitions for purposes of the
rule. This rule contains several defined terms unchanged from the 1986
regulations: the definitions of ``wetlands,'' ``adjacent,'' ``high tide
line,'' ``ordinary high water mark,'' and ``tidal water.'' This rule
defines the term ``significantly affect'' for purposes of determining
whether a water meets the significant nexus standard to mean ``a
material influence on the chemical, physical, or biological integrity
of'' a paragraph (a)(1) water. Under this rule, waters, including
wetlands, are evaluated either alone, or in combination with other
similarly situated waters in the region, based on the functions the
evaluated waters perform. This rule identifies specific functions that
will be assessed and identifies specific factors that will be
considered when determining whether the functions provided by the
water, either alone or in combination, have a material influence on the
integrity of a traditional navigable water, the territorial seas, or an
interstate water. These factors include the distance from a paragraph
(a)(1) water; hydrologic factors, such as the frequency, duration,
magnitude, timing, and rate of hydrologic connections, including
shallow subsurface flow; the size, density, or number of waters that
have been determined to be similarly situated; landscape position and
geomorphology; and climatological variables such as temperature,
rainfall, and snowpack. The functions in this rule are indicators that
are tied to the chemical, physical, or biological integrity of
paragraph (a)(1) waters, including contribution of flow; trapping,
transformation, filtering, and transport of materials (including
nutrients, sediment, and other pollutants); retention and attenuation
of floodwaters and runoff; modulation of temperature in paragraph
(a)(1) waters; or provision of habitat and food resources for aquatic
species located in paragraph (a)(1) waters.
Section IV.C of this preamble also provides guidance on
implementation of each provision of this rule. In implementing this
rule, the agencies generally will consider first if a water qualifies
as a paragraph (a)(1) water (i.e., a traditional navigable water, the
territorial seas, or an interstate water). If a waterbody is determined
to be a paragraph (a)(1) water, then it is jurisdictional with no need
for further evaluation. If a water is not a paragraph (a)(1) water, the
agencies generally will consider next whether any of the exclusions in
paragraph (b) of this rule apply to the water. The exclusions in this
rule do not apply to paragraph (a)(1) waters, and therefore, a
traditional navigable water, the territorial seas, or an interstate
water cannot be excluded under this rule, even if the water would
otherwise meet the criteria for an exclusion.\85\ If a water does not
qualify as a paragraph (a)(1) water and the agencies determine that an
exclusion is applicable (e.g., waters that meet the waste treatment
system exclusion, wetlands that qualify as prior converted cropland),
the water would not be jurisdictional under this rule. If the water is
not a paragraph (a)(1) water, and an exclusion under paragraph (b) does
not apply, then the agencies generally will determine next if the water
can be assessed under paragraphs (a)(2) through (4) of this rule. If
the water does not meet the criteria for paragraphs (a)(1) through (4),
the agencies generally will assess next if the water is jurisdictional
under paragraph (a)(5) of this rule. When assessing the jurisdictional
status of waters after the effective date of the final rule, regulators
and the public should use the definition of ``waters of the United
States'' established by this rule. For example, when assessing whether
a stream is a jurisdictional tributary, regulators and the public
should consider the provisions related to tributaries in the final
rule.\86\ If a water is not jurisdictional under paragraphs (a)(1)
through (5) of this rule, then the water does not meet the definition
of ``waters of the United States.''
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\85\ See also discussion of the waste treatment system exclusion
in section IV.C.7.b of this preamble, infra.
\86\ The agencies will continue to evaluate potential
enforcement actions using the regulations in place when the alleged
violation occurred. For example, if a person excavated a ditch while
the pre-2015 regulatory regime was in effect and the person complied
with the terms of the pre-2015 regulatory regime, today's final rule
does not create new liability. See United States v. Lucero, 989 F.3d
1088 (9th Cir. 2021) (explaining that the 2020 NWPR did not apply
retroactively to the defendant's violations, which occurred before
the 2020 NWPR became effective).
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It is important to note that some aquatic resources can potentially
be assessed for jurisdiction under multiple categories of this rule.
For example, certain streams, rivers, lakes, ponds, wetlands, and
impoundments can be assessed as traditional navigable waters or
interstate waters under paragraph (a)(1)(i) or (a)(1)(iii) of this
rule. Other streams, rivers, lakes, ponds, and impoundments are
situated such that they are part of the tributary system and can be
assessed under paragraph (a)(3) of this rule. The agencies will assess
intrastate lakes and ponds, streams, and
[[Page 3068]]
wetlands under paragraph (a)(5) of this rule only if they do not fall
within paragraphs (a)(1) through (4). In any case, the agencies will
identify the provision or provisions of the rule under which a
determination of jurisdiction is made.
Section IV.C of this preamble provides increased clarity and
substantial guidance to assist in implementing the relatively permanent
standard and significant nexus standard. See sections IV.C.4, IV.C.5,
and IV.C.6 of this preamble for additional information on how the
agencies will implement these standards for tributaries, adjacent
wetlands, and waters assessed under paragraph (a)(5) (these sections
include guidance on identifying waterbodies on the landscape,
determining which waters are ``relatively permanent, standing or
continuously flowing,'' identifying waters with a ``continuous surface
connection'' under the relatively permanent standard, and identifying
which waters are ``similarly situated'' and ``in the region'' under the
significant nexus standard).
As is typical after a rule is promulgated, the agencies have
entered into a joint agency coordination memorandum to ensure the
consistency and thoroughness of the agencies' implementation of this
rule, which is available in the docket for the final rule. See Docket
ID No. EPA-HQ-OW-2021-0602. As part of these coordination procedures,
EPA and Corps field staff will coordinate on all draft approved
jurisdictional determinations based on the significant nexus standard,
and the agencies will follow a process for elevating a subset of these
determinations to EPA and Corps headquarters for review as necessary.
That coordination will be enhanced for waters assessed under paragraph
(a)(5), and headquarters at the agencies will review all draft approved
jurisdictional determinations \87\ for paragraph (a)(5) waters based on
the significant nexus standard. After nine months, the agencies will
reevaluate this requirement and assess the implementation and
coordination memorandum approach. See section IV.C.6 of this preamble
for additional discussion.
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\87\ An approved jurisdictional determination is a 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. See 33 CFR
331.2.
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The agencies note that Congress exempted or excluded certain
discharges from the Clean Water Act or from specific permitting
requirements. This rule will 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.
This rule will also 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 122.2, 122.3(f).
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 other 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.
Finally, with respect to determining whether a water meets the
definition of ``waters of the United States,'' under case law and the
Corps' existing regulations ``[u]nauthorized discharges into waters of
the United States do not eliminate Clean Water Act jurisdiction, even
where such unauthorized discharges have the effect of destroying waters
of the United States.'' 33 CFR 323.2 (1987). Thus, for example, an
unpermitted discharge of fill material into a jurisdictional adjacent
wetland that destroys all wetland characteristics does not render that
water no longer jurisdictional. Nor does an authorized discharge,
filling in a part of a tributary, for example, sever jurisdiction
upstream, provided that the upstream waters meet the definition of
``waters of the United States'' absent the unauthorized discharge.
2. Traditional Navigable Waters, the Territorial Seas, and Interstate
Waters
a. This Rule
The agencies are not making changes to the text or substance of the
provisions of the 1986 regulations covering traditional navigable
waters, the territorial seas, and interstate waters. The agencies are
consolidating these three categories of waters into one paragraph at
the beginning of the regulatory text. While combined into one
paragraph, each category will remain distinct in separate
subparagraphs. The agencies have concluded that this non-substantive
change streamlines the regulatory text and increases clarity. This
consolidation requires corresponding changes to cross references and
the numbering of other provisions in the rule. These changes increase
clarity by reducing the number of cross references necessary and make
practical sense because the jurisdictional status of other categories
of waters relies on their connection to traditional navigable waters,
the territorial seas, or interstate waters. For example, the definition
of ``significantly affect'' refers simply to ``the chemical, physical,
or biological integrity of waters identified in paragraph (a)(1) of
this section'' rather than requiring multiple cross-references to three
separate paragraphs. This streamlining is not a substantive change and
does not alter the agencies' longstanding interpretation and
implementation of these provisions.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies have concluded that the non-substantive change
consolidating traditional navigable waters, the territorial seas, and
interstate waters into paragraph (a)(1) streamlines the regulatory text
and increases clarity. These changes increase clarity by reducing the
number of cross references necessary and make practical sense because
the jurisdictional status of other categories of waters relies on their
connection to traditional navigable waters, the territorial seas, or
interstate waters. The rationale for retaining each of these three
water types is provided in the relevant subsections below.
Some commenters expressed support for the categorical protection
and consolidation of traditional navigable waters, the territorial
seas, and interstate waters. One commenter stated that the
consolidation is ``consistent with the history and text of the law.''
Several commenters opposed the consolidation of the traditional
navigable waters, the territorial seas, and interstate waters
provisions into one jurisdictional category, arguing that the
categories of waters are distinct and therefore should remain separate.
The agencies agree that each of these provisions is a distinct category
but disagree that consolidating them into one paragraph has any effect
on distinguishing the types of waters which fall within each category.
Further, the agencies have kept the text of each category the same as
in the 1986 regulations and have established separate subparagraphs for
each category to ensure there is no confusion. The jurisdictional
standards for each of
[[Page 3069]]
the three categories are different, so the agencies will clearly
identify the subparagraph under which a particular water is
jurisdictional. A water which meets the test for traditional navigable
waters under the Clean Water Act, for example, will be identified as
jurisdictional under paragraph (a)(1)(i). Note that some waters may
fall into more than one category of paragraph (a)(1) waters (e.g., a
water may be both a traditional navigable water and an interstate
water, such as Lake Tahoe, or a water may be both a traditional
navigable water and part of the territorial seas, such as the Pacific
Ocean).
A commenter stated that the protection of traditional navigable
waters, the territorial seas, and interstate waters should not be
affected by any exclusions that the agencies may include in this rule.
The agencies agree and the text of this rule is clear that the
exclusions do not apply to paragraph (a)(1) waters. See also section
IV.C.7 of this preamble. The Clean Water Act fundamentally protects
these three categories of waters: traditional navigable waters are
clearly encompassed within the defined term ``navigable waters''; the
territorial seas are explicitly mentioned in the definition of
``navigable waters''; and, as discussed further below, interstate
waters, by definition, are waters of the ``several States'' and are
unambiguously ``waters of the United States.'' While the agencies have
authority to draw lines excluding some aquatic features from the
definition of ``waters of the United States,'' the Clean Water Act
provides no such authority to the agencies to exclude waters in these
three unambiguous types of ``waters of the United States'' under the
statute. Even if jurisdiction over one or all of these categories of
waters were ambiguous, the agencies have concluded that since these are
the fundamental waters that Congress intended to protect under the
Clean Water Act, and that have had longstanding and unequivocal
protection, with the exception of the 2020 NWPR, it is reasonable to
establish unequivocal jurisdiction over these waters. Further, the
agencies have concluded that there are no policy, practical, or
technical bases to apply the exclusions to these paragraph (a)(1)
waters given their crucial role in the statutory regime.
Some commenters expressed support for consolidating just
traditional navigable waters and territorial seas into a single
category of jurisdictional waters. A commenter added that this approach
is logical because these two types of waters are the only types of
waters that are explicitly referenced in the operative sections of the
Clean Water Act. The commenter asserted that combining these waters
into one category would make the rule clearer and easier to administer.
Similarly, a couple of commenters expressed concerns that the proposed
rule too broadly categorized what is considered a ``foundational''
water. The 2020 NWPR consolidated the categories of traditional
navigable waters and the territorial seas in the definition of ``waters
of the United States'' into a single paragraph in the regulatory text
in order to streamline the text but deleted the interstate waters
category. 85 FR 22280, 22338, 22340 (April 21, 2020). The agencies
agree that combining these waters into one category makes the rule
clearer and easier to administer. However, the agencies have also
combined interstate waters into the same paragraph because, as
discussed above, protecting all three categories of waters is a
fundamental aim of the Clean Water Act. See section IV.C.2.b.iii of
this preamble (discussing protection under the Clean Water Act of
interstate waters in the same manner as traditional navigable waters
and the territorial seas). Under this rule, the jurisdictional status
of the other categories of waters relies on their connection to any one
of these three categories of waters--a traditional navigable water, the
territorial seas, or an interstate water (and, where required, meeting
either the relatively permanent standard or the significant nexus
standard). Therefore, the agencies have concluded that streamlining the
rule by including all three categories of these waters in one paragraph
is reasonable and appropriate.
A commenter suggested that the agencies provide a definition of
``foundational waters.'' The commenter suggested that ``if the common
shorthand is that the waters used for commerce, the interstate
waters[,] and the territorial seas are the `foundational waters[,]'
then the additional term `foundational waters' should be defined as
such.'' The commenter asserted that this would make the rule text
easier to understand and use. The agencies are not providing a
definition for ``foundational waters'' because they are not using the
term ``foundational waters'' in the rule text. The agencies used the
phrase ``foundational waters'' in the preamble to the proposed rule
simply for convenience and readability rather than writing the phrase
``traditional navigable waters, the territorial seas, and interstate
waters'' repeatedly. As discussed above in this preamble, in light of
the new consolidated paragraph that groups those three categories of
waters together, the agencies will simply refer to those waters as
``paragraph (a)(1) waters'' in this preamble.
i. Traditional Navigable Waters
(1) This Rule
The Clean Water Act, the 1986 regulations, the 2015 Clean Water
Rule, the 2019 Repeal Rule, and the 2020 NWPR all include within the
scope of ``waters of the United States'' traditional navigable waters,
defined by regulation as ``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.'' E.g., 33 CFR 328.3(a)(1) (2014). With respect to
traditional navigable waters, the text of the 1986 regulations and the
text of the 2020 NWPR are identical. The agencies did not propose to
amend the longstanding text defining ``traditional navigable waters''
and are not making changes to the text in this rule. As discussed
above, the agencies are consolidating three categories of waters into
one paragraph at the beginning of the regulatory text, and with this
consolidation, ``traditional navigable waters'' are identified in
paragraph (a)(1)(i) of this rule.
The agencies also are not making changes to their longstanding
interpretation of traditional navigable waters for purposes of Clean
Water Act jurisdiction. Thus, these paragraph (a)(1)(i) waters include
all of the ``navigable waters of the United States,'' defined in 33 CFR
part 329 and by numerous decisions of the Federal courts, plus all
other waters that are navigable-in-fact (e.g., the Great Salt Lake,
Utah and Lake Minnetonka, Minnesota). To determine whether a waterbody
constitutes a paragraph (a)(1)(i) water under the regulations, relevant
considerations include the agencies' regulations; prior determinations
by the Corps, by EPA, and by the Federal courts; and case law. The
agencies will determine whether a particular waterbody is a traditional
navigable water based on application of those considerations to the
specific facts in each case.
As noted above, the paragraph (a)(1)(i) waters include, but are not
limited to, the ``navigable waters of the United States.'' A water body
qualifies as a ``navigable water of the United States'' if it meets any
of the tests set forth in 33 CFR part 329 (e.g., the waterbody is (a)
subject to the ebb and flow of the tide, and/or (b) the waterbody is
[[Page 3070]]
presently used, or has been used in the past, or may be susceptible for
use (with or without reasonable improvements) to transport interstate
or foreign commerce).
Traditional navigable waters also 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.'' Some examples of waters that
will be considered traditional navigable waters, and thus
jurisdictional under this provision of this rule include: waters
currently being used for commercial navigation, including commercial
waterborne recreation (for example, boat rentals, guided fishing trips,
or water ski tournaments); waters that have historically been used for
commercial navigation, including commercial waterborne recreation; or
waters that are susceptible to being used in the future for commercial
navigation, including commercial waterborne recreation. See ``Waters
that Qualify as Traditional Navigable Waters Under Section (a)(1) of
the Agencies' Regulations,'' \88\ available at https://www.epa.gov/wotus/waters-qualify-traditional-navigable-waters-under-section-a1-agencies-regulations.
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\88\ ``Waters that Qualify as Traditional Navigable Waters Under
Section (a)(1) of the Agencies' Regulations,'' began as ``Waters
that Qualify as Waters of the United States Under Section (a)(1) of
the Agencies' Regulations'' in Appendix D to the U.S. Army Corps of
Engineers Jurisdictional Determination Form Instructional Guidebook
(available at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/2316) that was published in 2007
concurrently with the 2007 Rapanos Guidance and thus is often simply
referred to as ``Appendix D.'' The Rapanos Guidance was updated in
2008, but Appendix D has remained unchanged since 2007. Paragraph
(a)(1)(i) of this rule was paragraph (a)(1) of the regulations in
place when the guidance was issued, but the text of that provision
has not changed through the various rulemakings defining ``waters of
the United States,'' and the agencies have continued to use the
guidance for determining whether a water is a ``traditional
navigable water.'' See 80 FR 37054, 37074 (June 29, 2015) (2015
Clean Water Rule); 85 FR 22250, 22281 (April 21, 2020) (2020 NWPR).
There have been no substantive changes to the guidance since it was
issued on May 30, 2007. In 2021, EPA and the Army established
``Waters that Qualify as Waters of the United States Under Section
(a)(1) of the Agencies' Regulations,'' as a standalone guidance
document when rescinding a memorandum on traditional navigable
waters finalized after the 2020 NWPR. However, for clarity the
agencies have updated the title to ``Waters that Qualify as
Traditional Navigable Waters Under Section (a)(1) of the Agencies'
Regulations'' and deleted references to the Rapanos Guidance. The
agencies will continue to use this guidance to determine whether a
water is a ``traditional navigable water'' for the purposes of the
Clean Water Act and the agencies' implementing regulations. This
document is available at https://www.epa.gov/wotus/waters-qualify-traditional-navigable-waters-under-section-a1-agencies-regulations.
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2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
Supreme Court decisions have not questioned the inclusion of
traditional navigable waters in the definition of ``waters of the
United States.'' See, e.g., SWANCC, 531 U.S. at 172 (``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.'').
Some commenters voiced support for the agencies' decision to
interpret the scope of traditional navigable waters consistent with the
agencies' longstanding approach in the document known as ``Waters that
Qualify as Waters of the United States Under Section (a)(1) of the
Agencies' Regulations.'' A commenter added that such an interpretation
is consistent with the agencies' longstanding guidance and is familiar
to Tribal and State co-regulators as well as the general public.
Another commenter stated that the agencies' reference to ``Waters that
Qualify as Waters of the United States Under Section (a)(1) of the
Agencies' Regulations'' would create additional confusion during the
implementation of this rule. The agencies are maintaining their
longstanding approach to traditional navigable waters for purposes of
the Clean Water Act as reflected in this well-established document. The
agencies have used this guidance since 2007 and through a number of
rulemakings. The 2020 NWPR continued use of this guidance, stating,
``because the agencies have not modified the definition of `traditional
navigable waters,' the agencies are retaining [`Waters that Qualify as
Waters of the United States Under Section (a)(1) of the Agencies'
Regulations'] to help inform implementation of that provision of this
final rule.'' 85 FR 22281 (April 21, 2020). Given the longstanding use
of the guidance, the agencies do not think it will cause confusion to
continue to use it. To provide additional clarity, however, the
agencies are maintaining this document as standalone guidance titled
``Waters that Qualify as Traditional Navigable Waters Under Section
(a)(1) of the Agencies' Regulations,'' with minor edits to the title
and to reflect that the Rapanos Guidance is no longer in effect,
simultaneously with this rule.
After the 2020 NWPR was promulgated, the agencies issued a
coordination memorandum 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 Memorandum''). The memorandum established an
implementation process by which the agencies elevate to their
headquarters certain case-specific and stand-alone Clean Water Act
traditional navigable water determinations concluding that a water is
``susceptible to use'' solely based on evidence of recreation-based
commerce. Id. The TNW Coordination Memorandum merely required enhanced
coordination for such determinations and did not state that a
``susceptible to use'' determination could not be solely based on
evidence of recreation-based commerce. On November 17, 2021, the
agencies rescinded the TNW Coordination Memorandum but kept in place
the ``Waters that Qualify as Waters of the United States Under Section
(a)(1) of the Agencies' Regulations.'' \89\ A few commenters asserted
that recreational activities are sufficient evidence to demonstrate
that a water is susceptible to being used in the future for commercial
navigation, thereby qualifying waters supporting recreational
activities as traditional navigable waters for purposes of the Clean
Water Act. Alternatively, several commenters asserted that recreational
activities are not sufficient evidence to demonstrate that a water is a
traditional navigable water. 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); id. at 601 (``[P]ersonal or private use by boats
demonstrates the availability of the stream for the simpler types of
commercial navigation.'' (quoting United States v. Appalachian Elec.
Power Co., 311 U.S. 377, 416 (1940))); id. (noting that the ``fact that
actual use has `been more of a private nature than of a public,
commercial sort . . . cannot be regarded as controlling''' (quoting
United States v. Utah, 283 U.S. 64, 82
[[Page 3071]]
(1931))). Therefore, the agencies are maintaining their longstanding
position that commercial waterborne recreation (for example, boat
rentals, guided fishing trips, or water ski tournaments) can be
considered when determining if a water is a traditional navigable
water.
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\89\ U.S. Environmental Protection Agency and U.S. Department of
the Army. ``Recission of June 30, 2020 Memorandum `U.S.
Environmental Protection Agency (EPA) and U.S. Army Corps of
Engineers (Corps) Process for Elevating and Coordination Specific
Draft Determinations under the Clean Water Act (CWA).'' November 17,
2021. Available at https://www.epa.gov/system/files/documents/2021-11/nwpr-tnw-coordination-rescission-memo_signed-11.17.2021.pdf.
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Some commenters stated that the agencies must ensure that
traditional navigable waters are not limited to just the waters that
the agencies have determined to be ``navigable waters of the United
States'' under section 10 of the Rivers and Harbors Act of 1899. Other
commenters stated that the agencies should limit the scope of
traditional navigable waters to the section 10 waters under the Rivers
and Harbors Act of 1899. The agencies are not changing their
longstanding position that the traditional navigable waters for
purposes of the Clean Water Act include, but are not limited to, the
section 10 waters under the Rivers and Harbors Act of 1899, and include
any of the waters that constitute traditional navigable waters under
relevant judicial decisions. See ``Waters that Qualify as Waters of the
United States Under Section (a)(1) of the Agencies' Regulations.'' \90\
The scope of the Rivers and Harbor Act of 1899 is generally narrower
than the scope of the Clean Water Act. See, e.g., 1902 Atlantic Ltd. v.
Hudson, 574 F. Supp. 1381, 1392-93 (E.D. Va. 1983) (explaining that
``[t]he term `navigable waters of the United States' as used in the
Rivers and Harbors Act of 1899 has a substantially different, and more
limited, meaning than the term as used in the Clean Water Act'' and
that ``the term has a more limited meaning, consistent with the
concepts of `navigation' and `navigability' as of 1899''). The scope of
``navigable waters of the United States'' under the Rivers and Harbors
Act of 1899 is thus more limited than the scope of traditional
navigable waters for purposes of the Clean Water Act and as established
in paragraph (a)(1)(i) of this rule. The Corps' regulations reflect the
difference and under the Corps' regulations, ``navigable waters of the
United States'' (i.e., waters that are subject to section 10 of the
Rivers and Harbors Act of 1899) are limited to ``those waters that are
subject to the ebb and flow of the tide and/or are presently used, or
have been used in the past, or may be susceptible for use to transport
interstate or foreign commerce.'' 33 CFR 329.4. Therefore, there are
numerous waters that have been determined to be traditional navigable
waters for purposes of the Clean Water Act, or navigable for other
purposes under Federal law, but which are not ``navigable waters of the
United States'' under section 10 of the Rivers and Harbors Act of 1899.
For example, the Supreme Court has found that the Great Salt Lake met
the test for navigability for purposes of the ownership of the bed of
the Lake at the time of Utah's statehood, even though it was not part
of a continuous waterborne highway of interstate commerce, but the
Court of Appeals for the Tenth Circuit found that evidence insufficient
to establish that the Lake is covered by the Rivers and Harbors Act of
1899. See Utah v. United States, 403 U.S. 9 (1971); Hardy Salt Co. v.
Southern Pacific Trans. Co., 501 F.2d 1156 (10th Cir. 1974). The Corps
has determined the lake to be a traditional navigable water for
purposes of the Clean Water Act based on the Supreme Court's finding
that the water in the past met the test for navigability. The
distinction the agencies have drawn between section 10 waters and
traditional navigable waters for purposes of the Clean Water Act is
entirely consistent with Supreme Court case law. The Supreme Court in
Kaiser Aetna rejected the notion ``that the concept of `navigable
waters of the United States' has a fixed meaning that remains unchanged
in whatever context it is being applied.'' Kaiser Aetna v. United
States, 444 U.S. 164, 170 (1979). Instead, the Court cautioned that
``any reliance upon judicial precedent must be predicated upon a
careful appraisal of the purpose for which the concept of
`navigability' was invoked in a particular case.'' Id. at 171 (internal
quotation marks omitted) (emphasis in original). The Supreme Court
further stated that the ``cases that discuss Congress' paramount
authority to regulate waters used in interstate commerce are
consequently best understood when viewed in terms of more traditional
Commerce Clause analysis than by reference to whether the stream, in
fact, is capable of supporting navigation or may be characterized as
[a] `navigable water of the United States.''' Id. at 174. More
recently, the Supreme Court has cautioned ``that the test for
navigability is not applied in the same way in [different] types of
cases[,]'' referring, for example, to cases arising under the Federal
Power Act, Clean Water Act, and title disputes. PPL Montana v. Montana,
565 U.S. 576, 592 (2012).
---------------------------------------------------------------------------
\90\ See supra note 88.
---------------------------------------------------------------------------
A number of commenters stated that the agencies' interpretation of
traditional navigable waters was inconsistent with the test for
navigability in The Daniel Ball, 77 U.S. 557 (1870), with the
discussion of navigability in SWANCC, and with the plurality and
Justice Kennedy's opinions in Rapanos. The agencies disagree. None of
the opinions in Rapanos addressed the test for traditional navigable
waters; rather, they simply cited to The Daniel Ball--the beginning of
a long line of cases addressing navigability. As the Supreme Court has
explained: ``The Daniel Ball formulation has been invoked in
considering the navigability of waters for purposes of assessing
federal regulatory authority under the Constitution, and the
application of specific federal statutes, as to the waters and their
beds.'' PPL Montana, 565 U.S. at 592 (citing The Montello, 20 Wall.
430, 439 (1874); United States v. Appalachian Elec. Power Co., 311 U.S.
377, 406 & n.21 (1940) (Federal Power Act); Rapanos, 547 U.S. at 730-31
(plurality opinion) (Clean Water Act); id. at 761 (Kennedy, J.,
concurring in judgment) (same)). In PPL Montana, the Supreme Court was
clear that the test for navigability has evolved since The Daniel Ball;
it depends upon the authority being exercised by the Federal Government
and is a case-specific inquiry. ``It should be noted, however, that the
test for navigability is not applied in the same way in these distinct
types of cases.'' 565 U.S. at 592. Of particular relevance for
traditional navigable waters for the Clean Water Act, ``federal
regulatory authority encompasses waters that only recently have become
navigable, see, e.g., Philadelphia Co. v. Stimson, 223 U.S. 605, 634-
635, 32 S.Ct. 340, 56 L.Ed. 570 (1912), were once navigable but are no
longer, see Economy Light & Power Co. v. United States, 256 U.S. 113,
123-124, 41 S.Ct. 409, 65 L.Ed. 847 (1921), or are not navigable and
never have been but may become so by reasonable improvements, see
Appalachian Elec. Power Co., supra, at 407-408, 61 S.Ct. 291. With
respect to the Federal commerce power, the inquiry regarding navigation
historically focused on interstate commerce. See The Daniel Ball,
supra, at 564. And, of course, the commerce power extends beyond
navigation. See Kaiser Aetna v. United States, 444 U.S. 164, 173-174,
100 S.Ct. 383, 62 L.Ed.2d 332 (1979). . . . Indeed, `[e]ach application
of [the Daniel Ball] test . . . is apt to uncover variations and
refinements which require further elaboration.' Appalachian Elec. Power
Co., supra, at 406, 61 S.Ct. 291.'' PPL Montana, 565 U.S. at 592-93.
Thus, the agencies' interpretation of traditional navigable waters for
purposes of the Clean Water Act is consistent with The Daniel Ball as
applied by the Supreme Court.
[[Page 3072]]
ii. Territorial Seas
(1) This Rule
The Clean Water Act defines ``navigable waters'' to include ``the
territorial seas'' in 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.'' The territorial seas establish the seaward limit of
``waters of the United States'' and are clearly jurisdictional under
the Clean Water Act.
The Clean Water Act, the 1986 regulations, the 2015 Clean Water
Rule, the 2019 Repeal Rule, and the 2020 NWPR all included ``the
territorial seas'' as ``waters of the United States.'' This rule makes
no changes to ``the territorial seas'' provision and retains the
provision in the regulatory text, consolidated in paragraph (a)(1).
(2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
As described above, the Clean Water Act explicitly defines the
agencies' jurisdiction to include ``the territorial seas.'' This rule
confirms the agencies' jurisdiction over these waters, consistent with
Congress's direction. A commenter stated that if the agencies combine
traditional navigable waters, the territorial seas, and interstate
waters into one category of waters in this rule, the agencies should
clarify that the territorial seas represent a distinct basis for
jurisdiction and are not a type of traditional navigable water. The
agencies agree with this commenter that the territorial seas are an
independent category of jurisdictional waters. However, in the preamble
to the proposed rule, the agencies also stated that the territorial
seas are a type of traditional navigable water. While most portions of
the territorial seas are also traditional navigable waters, the
agencies are clarifying in this rule that portions of the territorial
seas that may not be navigable or capable of being used in interstate
or foreign commerce are still jurisdictional if they meet the
definition of the ``territorial seas'' in the Clean Water Act. The
agencies did not intend to exclude any portion of the territorial seas
as the term is defined in Clean Water Act section 502(8), 33 U.S.C.
1362(8). To avoid any confusion, this rule continues to list
traditional navigable waters and the territorial seas as separate
categories of jurisdictional waters.
iii. Interstate Waters
(1) This Rule
This rule retains 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 except during the time period the 2020 NWPR was
in effect. Interstate waters are, by definition, waters of the
``several States,'' U.S. Const. Article I, section 8, and are
unambiguously ``waters of the United States.'' In addition, categorical
protection of interstate waters is the construction 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.
The agencies interpret interstate waters under this rule to mean
``all rivers, lakes, and other waters that flow across, or form a part
of, State boundaries'' based on precursor water protection statutes and
practice. See 33 U.S.C. 466i(e) (1952) (codifying Pub. L. 80-845
section 10(e), 62 Stat. 1161 (1948)). Interstate waters thus include
waters that cross or form a part of State boundaries with other States
and with other countries (Canada and Mexico). Examples of such waters
include portions of the Amargosa River, which flows from Nevada into a
dry playa in Death Valley, California, and the Great Dismal Swamp, a
wetland which crosses the border between Virginia and North Carolina.
The Amargosa River is not a traditional navigable water and does not
otherwise flow to a traditional navigable water or the territorial
seas, but under the agencies' pre-2015 regulations and the final rule,
the portion of the Amargosa River that crosses the California/Nevada
border is an interstate water. Tributaries to interstate waters like
the Amargosa River and wetlands adjacent to interstate waters and their
tributaries are critical sources of life in desert climates. Interstate
waters also include waters that meet the definition of a traditional
navigable water or are tributaries of traditional navigable waters or
the territorial seas, such as the portions of the Ohio River and
Mississippi River that cross or serve as State boundaries; the portions
of the Rio Grande that cross State boundaries (Colorado/New Mexico) or
that cross the border or serve as the border between the United States
and Mexico; and Lake Champlain, which crosses the New York/Vermont
border and crosses the border between the United States and Canada.
Because, as explained below, the Clean Water Act unambiguously
includes interstate waters, they are fundamental to the Act in the same
manner as traditional navigable waters and the territorial seas. Even
if the text of the Clean Water Act does not unambiguously resolve the
question of jurisdiction over interstate waters, the agencies have
concluded that it is reasonable to construe the statute to protect
interstate waters without need for further assessment based on the
history of the statute, Supreme Court case law interpreting the Act,
the legislative history, and the objective of the Act to restore and
maintain the integrity of the nation's waters. Therefore, this rule,
like the 1986 regulations, provides Clean Water Act protections for
interstate waters in the same manner as for traditional navigable
waters and the territorial seas, and the following waters that meet the
relatively permanent standard or significant nexus standard based on
their connection to interstate waters are ``waters of the United
States'': tributaries to interstate waters, wetlands adjacent to
interstate waters or to their jurisdictional tributaries, and paragraph
(a)(5) waters.
Interstate waters may be streams, lakes or ponds, or wetlands. The
longstanding definition of ``waters of the United States'' includes
interstate wetlands. As discussed in section IV.A.2.b.ii of this
preamble, the Clean Water Act's statutory text, structure, and history
establish that adjacent wetlands are ``waters of the United States''
covered by the Act. And, while the Supreme Court's focus in Riverside
Bayview was on adjacent wetlands, the Court's unanimous conclusion that
section 404(g)(1) provides express textual evidence ``that the term
`waters' included adjacent wetlands,'' 474 U.S at 138, is informative
for interstate wetlands as well. For more than 45 years the agencies
have concluded that waters, for purposes of the Clean Water Act,
include wetlands. The agencies have also, for more than 45 years,
concluded that some of those wetlands are ``waters of the United
States,'' and among those wetlands are interstate wetlands. Because the
agencies consider wetlands to be waters, the rationale for covering
interstate waters based on the history of the statute, Supreme Court
case law interpreting the Act, legislative history, and the objective
of the Act applies with full force to interstate wetlands.
[[Page 3073]]
Under this provision of the rule, consistent with the pre-2015
regulatory regime, lakes, ponds, impoundments, and similar lentic (or
still) water resources, as well as wetlands, crossing State boundaries
are jurisdictional as interstate waters through the entirety of their
delineated extent.
For streams and rivers, the agencies will 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'' using 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'' extends upstream and downstream of
the State boundary for the entire length that the water is of the same
stream order. See section IV.C.4.c.ii.1 of this preamble for additional
information about stream order.
(2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
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,
908 (1965)); see also 33 U.S.C. 1173(e) (1970) (retaining definition of
``interstate waters''). In the 1972 Clean Water Act, Congress abandoned
the ``abatement'' approach initiated in the 1948 statute in favor of a
focus on permitting for discharges of pollutants.
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.'' Interstate waters are, by definition,
waters of the ``several States,'' U.S. Const. section 8, and
consequently, are unambiguously ``waters of the United States.'' The
1972 Clean Water Act thus reflects Congress's recognition that the
degradation of water resources in one State may cause substantial harms
in other States. 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).
In addition, the text of the 1972 Clean Water Act specifically
addresses ``interstate waters'' regardless of their navigability.
Namely, section 303(a) of the 1972 Clean Water Act uses the term
``interstate waters'' and 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. 33 U.S.C. 1313(a)(1). That plain
language is a clear indication that Congress 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 would disregard
the plain language of section 303(a).
The Supreme Court has concluded that the 1972 Clean Water Act was
``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) (``City of
Milwaukee''). 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 Clean Water Act do not unambiguously resolve the
issue, the situation addressed by the Supreme Court in the City of
Milwaukee case highlights the reasonableness of the agencies'
interpretation that the 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. However, the Clean Water Act replaced this
unpredictable and inefficient approach with ``a comprehensive
regulatory program supervised by an expert administrative agency.'' Id.
The Court reiterated that view in Arkansas v. Oklahoma, stating 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. 91, 106 (1992) (emphasis in original).
The potential for interstate harm, and the consequent need for
Federal regulation, is particularly clear with respect to waterbodies
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. Parties in different States would need 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;
see also 85 FR 22286 (April 21, 2020) (acknowledging in the 2020 NWPR
that ``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'' (citations omitted)). Restoration of
longstanding protections for interstate waters, regardless of whether
they are navigable-in-fact, enables the agencies to address interstate
water quality issues efficiently and effectively. The agencies
interpret interstate waters to encompass all waters that Congress has
sought to protect since 1948: all rivers, lakes, and
[[Page 3074]]
other waters that flow across, or form a part of, State boundaries.
Public Law 80-845, sec. 10, 62 Stat. 55, at 1161 (1948). These waters
need not meet the relatively permanent standard or significant nexus
standard to be jurisdictional under the final rule.
EPA has interpreted the Clean Water Act to cover interstate waters,
with the exception of the 2020 NWPR, since 1973. 38 FR 13528 (May 22,
1973) (providing that the term ``waters of the United States'' includes
``interstate waters and their tributaries, including adjacent
wetlands''). In the final rule promulgated in 1977, the Corps adopted
EPA's definition and included ``interstate waters and their
tributaries, including adjacent wetlands'' within the definition of
``waters of the United States.'' The preamble to that rule provided an
explanation for the inclusion of interstate waters: ``The affects [sic]
of water pollution in one state can adversely affect the quality of the
waters in another, particularly if the waters involved are interstate.
Prior to the FWPCA amendments of 1972, most federal statutes pertaining
to water quality were limited to interstate waters. We have, therefore,
included this third category consistent with the Federal government's
traditional role to protect these waters from the standpoint of water
quality and the obvious effects on interstate commerce that will occur
through pollution of interstate waters and their tributaries.'' 42 FR
37122, 37127 (July 19, 1977).
Because the Clean Water Act unambiguously includes interstate
waters, they are fundamental to the Act in the same manner that
traditional navigable waters and the territorial seas are. Traditional
navigable waters, the territorial seas, and interstate waters cannot be
protected without also protecting the waters that have a significant
nexus to those waters. This rule protects interstate waters in the same
manner as it protects traditional navigable waters and the territorial
seas. Thus, the following waters that meet the relatively permanent
standard or significant nexus standard based on their connection to
interstate waters are ``waters of the United States'': tributaries to
interstate waters, wetlands adjacent to interstate waters or to their
jurisdictional tributaries, and paragraph (a)(5) waters. The agencies
received multiple comments on the proposed rule in favor of the
categorical inclusion of interstate waters as ``waters of the United
States,'' as well as multiple comments arguing that categorical
inclusion of interstate waters is inconsistent with the Clean Water
Act. Several commenters asserted that asserting categorical
jurisdiction over interstate waters is legally permissible, with some
arguing that the statutory language unambiguously demonstrates that the
Clean Water Act protects all interstate waters. One commenter stated
that the agencies' failure to protect all interstate waters in the 2020
NWPR ``was an abdication of a core premise of the Clean Water Act's
cooperative federalism.'' One commenter added that Federal jurisdiction
over interstate waters protects State sovereignty, rather than
threatening it, and quoted Justice Scalia's plurality opinion in
Rapanos that ``the Act protects downstream States from out-of-state
pollution that they cannot themselves regulate.'' 547 U.S. at 777.
Several of the commenters discussed downstream pollution to demonstrate
their general support for including interstate waters as a
jurisdictional category. Many of these commenters added that including
interstate waters in the definition of ``waters of the United States''
helps reduce the burden of increased pollutants from out-of-state,
upstream discharges.
Commenters opposed to the categorical inclusion of interstate
waters stated that such an approach unlawfully reads the notion of
navigability out of the Clean Water Act. A few commenters asserted that
pursuant to SWANCC, Riverside Bayview, and Rapanos, interstate waters
or interstate wetlands can only be jurisdictional if they are navigable
or connected to navigable waters. In support of their arguments, some
commenters cited the 2020 NWPR and the order of the U.S. District Court
for the Southern District of Georgia remanding the 2015 Clean Water
Rule. Georgia v. Wheeler, 418 F. Supp. 3d 1336, 1358-59 (S.D. Ga. 2019)
(concluding that the categorical inclusion of interstate waters exceeds
the agencies' statutory authority because it ``reads the term
navigability out of the CWA''). For the reasons articulated above, the
agencies conclude that the interpretation of the agencies' authority
over interstate waters articulated in the 2020 NWPR and in Georgia v.
Wheeler is inconsistent with both the text and the history of the Clean
Water Act, as well as Supreme Court case law.
A few commenters disagreed with the agencies' proposal to determine
jurisdiction over tributaries to interstate waters, wetlands adjacent
to interstate waters or their jurisdictional tributaries, and paragraph
(a)(5) waters, by applying the relatively permanent or significant
nexus standards to analyze their connection to the interstate water.
Alternatively, a few commenters supported interstate waters being
treated like traditional navigable waters and the territorial seas for
purposes of determining the jurisdictional status of tributaries to
interstate waters, wetlands adjacent to interstate waters or their
jurisdictional tributaries, and paragraph (a)(5) waters. The agencies
have concluded that, since interstate waters are clearly jurisdictional
under the statute, the statute requires the same protections for them
as the Clean Water Act does for traditional navigable waters and the
territorial seas. As the scientific support for protecting tributaries,
adjacent wetlands, and paragraph (a)(5) waters that satisfy the
relatively permanent or significant nexus standard is the same for
interstate waters as it is for traditional navigable waters and the
territorial seas, the agencies have reasonably defined ``waters of the
United States'' to protect such tributaries, adjacent wetlands, and
paragraph (a)(5) waters.
In the proposed rulemaking, the agencies requested comment on
approaches for implementing the interstate waters provision, including
approaches for determining the upstream and downstream extent of a
stream or river crossing a State boundary or serving as a State
boundary that should be considered the ``interstate water.'' Several
commenters stated that the entire length of a waterbody that is of the
same stream order as the point that crosses State lines should be
considered an interstate water, and therefore jurisdictional. These
commenters added that where a river or stream itself forms the
boundary, the entire length of stream forming the boundary should be
considered an interstate water, and therefore jurisdictional. These
commenters also added that any additional reach of the stream that is
the same stream order as the portion forming the boundary should also
be jurisdictional. One commenter stated that this stream order approach
is well-understood and consistent with the longstanding pre-2015
regulatory regime and stated that it is also consistent with
longstanding accepted scientific practice. Alternatively, a few
commenters voiced opposition or concern for using stream order to
determine the reach of an interstate water, with one commenter stating
that the approach is restrictive and another stating that it could be
too expansive. The agencies agree with commenters who stated that
stream order is an appropriate approach for determining the upstream
and downstream limits of an interstate water that is a stream or river.
The agencies conclude that this
[[Page 3075]]
approach is reasonable and provides a method that is transparent, well-
understood, predictable, and easy to implement. This approach is
consistent with longstanding practice under the pre-2015 regulatory
regime and thus is familiar to the agencies and the public.
Additionally, this method is consistent with the agencies' approach to
characterizing tributary reaches based on stream order for purposes of
applying the relatively permanent standard in this rule (see section
IV.C.4.c.ii of this preamble), and the agencies' approach to
characterizing tributary reaches based on stream order to delineate the
catchment for purposes of applying the significant nexus standard in
this rule (see section IV.C.4.c.iii of this preamble).
(3) Waters That Cross a State-Tribal Bundary
The agencies requested comment in the proposed rule on whether
interstate waters should encompass waters that flow across, or form a
part of, boundaries of federally recognized Tribes where these waters
simultaneously flow across, or form a part of, State boundaries. See
Public Law 80-845, sec. 10, 62 Stat. 1155, at 1161 (1948). The agencies
also sought comment on how to identify ``Tribal boundaries'' for
purposes of implementing the interstate waters provision, such as
boundaries associated with a Tribe's reservation or boundaries
associated with the term ``Indian country'' as defined at 18 U.S.C.
1151.
Multiple commenters expressed support for treating waters that
cross or serve as State/Tribal boundaries as interstate waters, with
some commenters stating that waters that cross or serve as boundaries
between the lands of different Tribes (i.e., Tribal/Tribal boundaries)
should also be deemed interstate waters under the rule. Other
commenters did not support treating waters that cross or serve as
State/Tribal boundaries as interstate waters. Some commenters provided
input on which boundary should be considered a Tribal boundary for
purposes of the interstate waters category, with many of those
commenters expressing a preference for using ``Indian country'' as
defined at 18 U.S.C. 1151 to delineate Tribal boundaries. A few
commenters suggested that a category broader than ``Indian country''
should be used to adequately reflect Tribal interests and rights.
As evidenced by the feedback the agencies have received, the issue
of how to address ``Tribal boundaries'' for purposes of implementing
the interstate waters provision is of great importance to Tribes as
well as various stakeholders. The agencies recognize the range of views
expressed on this issue to date, including support for interpreting
Tribal boundaries to include all waters that flow across, or form a
part of, Indian country boundaries; support for finding that interstate
waters include waters outside of Indian country that flow into areas
where Tribes exercise treaty or other rights; opposition to interstate
waters generally including waters that flow across, or form part of,
Tribal boundaries; and views in between. The agencies also acknowledge
commenters who raised questions regarding implementation of potential
interpretations of interstate waters as applied to Tribal boundaries.
The agencies have considered the input received during pre-proposal
Tribal consultation and the public comment period for the proposed rule
and, at this time, are continuing to evaluate the issue of interstate
waters and Tribal boundaries, including what should appropriately be
considered ``Tribal boundaries'' for purposes of identifying interstate
waters under the Clean Water Act. The agencies have weighed the
benefits of addressing this issue now, based on the record currently
before them, versus undertaking additional analysis and outreach to
Tribes to gain a better understanding of Tribal boundaries as related
to interstate waters and related implications via a separate process,
described below, to avoid delaying the entire rule.
Based on the agencies' evaluation of the comments received and the
benefits of further analysis and outreach, the agencies have decided to
conduct additional analysis and outreach to inform a future action
related to considering designating waters that cross a State/Tribal
boundary as interstate waters under the definition of ``waters of the
United States.'' The agencies recognize the importance of this issue to
Tribes and are fully committed to directly engaging with Tribal
governments as the agencies continue to evaluate this aspect of the
scope of ``waters of the United States.''
Accordingly, the agencies will address this issue in a subsequent
action after completing additional analysis and essential outreach and
engagement activities with Tribes and interested stakeholders. Although
the agencies are not taking a position on this specific issue at this
time, a water that crosses a State/Tribal boundary may be
jurisdictional if it otherwise falls within this rule's definition of
``waters of the United States.''
3. Impoundments
a. This Rule
Consistent with the proposal, this rule retains the provision in
the 1986 regulations that defines ``waters of the United States'' to
include impoundments of ``waters of the United States.'' Impoundments
are distinguishable from natural lakes and ponds because they are
created by discrete structures (often human-built) like dams or levees
that typically have the effect of raising the water surface elevation,
creating or expanding the area of open water, or both. Impoundments can
be natural (like beaver ponds) or artificial (like reservoirs).
The agencies' implementation of the paragraph (a)(2) impoundments
category \91\ is based on two primary principles. First, as a matter of
policy, law, and science, impoundments do not render ``waters of the
United States'' no longer ``waters of the United States.'' Second, as a
matter of policy and science, if an impounded water has the
characteristics of another jurisdictional water, then the impoundment
is jurisdictional. Based on these principles, in implementing this rule
the agencies consider paragraph (a)(2) impoundments to include (1)
impoundments created by impounding one of the ``waters of United
States'' that was jurisdictional under this rule's definition at the
time the impoundment was created, and (2) impoundments of waters that
at the time of assessment meet the definition of ``waters of the United
States'' under paragraph (a)(1), (a)(3), or (a)(4) of this rule,
regardless of the water's jurisdictional status at the time the
impoundment was created. Waters that are jurisdictional under paragraph
(a)(5) are the exception to these two implementing principles. The text
of this regulation states that they are not covered by paragraph
(a)(2). Therefore, waters that are jurisdictional under paragraph
(a)(5) do not categorically retain their jurisdictional status as
``waters of the United States''
[[Page 3076]]
under paragraph (a)(2).\92\ However, a subsequently impounded
jurisdictional paragraph (a)(5) water may still be determined to be
jurisdictional if it meets the requirements of a category of ``waters
of the United States'' other than paragraph (a)(2) at the time of
assessment (i.e., as a traditional navigable water, the territorial
seas, an interstate water, a jurisdictional tributary, a jurisdictional
adjacent wetland, or a paragraph (a)(5) water).\93\
---------------------------------------------------------------------------
\91\ Impounded waters may be jurisdictional under provisions
other than the paragraph (a)(2) impoundments provision. For example,
they may be impoundments that are traditional navigable waters and
would be jurisdictional under paragraph (a)(1), or they may be
impounded adjacent wetlands and meet the requirements to be
jurisdictional under the paragraph (a)(4) adjacent wetlands
provision. To provide clarity in this preamble, when the agencies
are discussing the subsection of impoundments that are
jurisdictional under paragraph (a)(2) because they are impoundments
of ``waters of the United States,'' the agencies will refer to
``paragraph (a)(2) impoundments.''
\92\ When an approved jurisdictional determination does not
exist for an impounded water that the agencies conclude based on its
characteristics could only be jurisdictional under paragraph (a)(5),
the paragraph (a)(2) impoundments provision does not apply and the
water will be assessed under another jurisdictional category.
\93\ For example, if a stream that is not part of the tributary
system of a paragraph (a)(1) water, but which is assessed under
paragraph (a)(5) and is determined to meet the significant nexus
standard, is lawfully impounded subsequent to the jurisdictional
determination, the stream is not automatically jurisdictional as a
paragraph (a)(2) water under this rule. However, the impounded
stream may still meet the significant nexus standard under paragraph
(a)(5) or the impounded stream may develop the characteristics of a
traditional navigable water and become jurisdictional under
paragraph (a)(1).
---------------------------------------------------------------------------
Consistent with the 1986 regulations, under this rule tributaries
may be tributaries to paragraph (a)(1) or (a)(2) waters. Tributaries to
paragraph (a)(2) impoundments, and wetlands adjacent to such
tributaries, are jurisdictional if they meet either the relatively
permanent standard or the significant nexus standard. Additionally,
wetlands adjacent to paragraph (a)(2) impoundments are jurisdictional
if they meet either the relatively permanent standard or the
significant nexus standard. In order for a tributary to a paragraph
(a)(2) impoundment to meet the relatively permanent standard, the
agencies must be able to trace evidence of a flowpath (e.g., physical
features on the landscape, such as a channel, ditch, pipe, or swale)
directly or indirectly through another water or waters, downstream from
the structure that creates the paragraph (a)(2) impoundment to a
paragraph (a)(1) water. When evaluating a wetland adjacent to a
paragraph (a)(2) impoundment under the relatively permanent standard,
field staff would assess whether the impounded water is relatively
permanent, standing or continuously flowing, and then determine whether
the wetland has a continuous surface connection to the impoundment.
When evaluating a wetland adjacent to a jurisdictional tributary to a
paragraph (a)(2) impoundment when the jurisdictional tributary meets
the relatively permanent standard, field staff would determine whether
the wetland has a continuous surface connection to the tributary. See
section IV.C.4.c and section IV.C.5.c of this preamble for additional
information on evaluations under the relatively permanent standard for
tributaries and adjacent wetlands. For a tributary to a paragraph
(a)(2) impoundment, a wetland adjacent to a paragraph (a)(2)
impoundment, or a wetland adjacent to a tributary to a paragraph (a)(2)
impoundment, that is assessed under the significant nexus standard, the
significant nexus must be to a paragraph (a)(1) water. See sections
IV.C.4.c and IV.C.5.c of this preamble for additional information on
significant nexus evaluations for tributaries and adjacent wetlands.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies have determined that as a matter of law, science, and
policy, impoundments do not de-federalize a water, and therefore
impoundments of ``waters of the United States'' remain ``waters of the
United States.'' The Supreme Court has confirmed that damming or
impounding ``waters of the United States'' does not make those waters
non-jurisdictional. See S.D. Warren Co. v. Maine Bd. of Envtl. Prot.,
547 U.S. 370, 379 n.5 (2006) (``S.D. Warren'') (``[N]or can we agree
that one can denationalize national waters by exerting private control
over them.''). While S.D. Warren addressed the meaning of the word
``discharge'' rather than the definition of ``waters of the United
States,'' the Court's conclusion regarding the jurisdictional status of
a dammed river supports the agencies' longstanding interpretation of
the Clean Water Act that ``waters of the United States'' remain
``waters of the United States'' even if impounded, as reflected in the
1986 regulations and continued in this rule. Essentially, the action of
creating an impoundment cannot on its own render ``waters of the United
States'' no longer jurisdictional.\94\ The Court of Appeals for 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).
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\94\ Note that a Clean Water Act section 404 permit may
authorize impoundment of a water such that the water is no longer
jurisdictional, for example, to create a waste treatment system that
is excluded from the definition of ``waters of the United States.''
In such circumstances, the water is analyzed under the regulatory
exclusion where applicable, not under the impoundments provision of
the definition.
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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.
As discussed in section III.C of the Technical Support Document,
impoundments are typically built to maintain some level of hydrologic
connection between the water that is being impounded and the downstream
tributary network. For example, water may pass from a reservoir to the
downstream side of an impoundment by passing through a main spillway or
outlet works, passing over an auxiliary spillway, or overtopping the
impoundment. 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, 2003,
``Investigating Leaks in Dams & Reservoirs.'' INIS-XA-616. Vienna,
Austria (``All dams are designed to lose some water through
seepage.''); U.S. Bureau of Reclamation, ``Safety of Dams.'' Provo Area
Office (last updated July 1, 2017) (``All dams seep, but the key is to
control the seepage through properly designed and constructed filters
and drains.''); Federal Energy Regulatory Commission, 2005, ``Chapter
14: Dam Safety Performance Monitoring Program.'' Engineering Guidelines
for the Evaluation of Hydropower Projects. (``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 section III.C of
the Technical Support Document.
Paragraph (a)(2) waters include impoundments created in waters that
were jurisdictional under this rule's definition at the time the
impoundment was created, as well as impoundments of waters that at the
time of assessment are jurisdictional under paragraph (a)(1), (a)(3),
or (a)(4) of this rule regardless of
[[Page 3077]]
the water's jurisdictional status at the time the impoundment was
created.\95\ This is generally consistent with the agencies'
longstanding approach to impoundments. See U.S. Army Corps of Engineers
Jurisdictional Determination Form Instructional Guidebook (2007) at 58,
available at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Related-Resources/CWA-Guidance/
(hereinafter, ``2007 Corps Instructional Guidebook''). The agencies
have concluded that it is appropriate based on relevant case law,
science, and as a practical matter to interpret ``waters of the United
States'' to include both impoundments of waters that qualified as
``waters of the United States'' under this rule's definition at the
time of impoundment, and impoundments of waters that at the time of
assessment meet the definition of ``waters of the United States''
(other than waters jurisdictional under paragraph (a)(5)). As discussed
above, waters that qualified as ``waters of the United States'' at the
time of impoundment (other than waters jurisdictional under paragraph
(a)(5)) remain ``waters of the United States.'' And impoundments of
waters that at the time of assessment fall within one of the other
categories of ``waters of the United States'' in this rule (other than
waters jurisdictional under paragraph (a)(5)) are jurisdictional under
paragraph (a)(2).
---------------------------------------------------------------------------
\95\ See infra for a discussion of impoundments of waters that
are jurisdictional as paragraph (a)(5) waters, which are treated
differently under this rule.
---------------------------------------------------------------------------
The agencies received a variety of comments on impoundments during
the public comment period. Some commenters supported the agencies'
inclusion of impoundments of ``waters of the United States'' as a
separate category of jurisdictional waters. A few commenters stated
that the relatively permanent standard and significant nexus standard
should also apply to impoundments for the purposes of jurisdiction.
Some commenters agreed with the proposed rule's approach to not include
impounded paragraph (a)(5) waters in the impoundments category. Many
commenters requested the agencies provide greater clarity about the
definition of impoundments.
After consideration of public comments and for the reasons
described above and in section III.C of the Technical Support Document,
the agencies affirm in this rule that impoundments of ``waters of the
United States'' remain ``waters of the United States,'' except for
impoundments of paragraph (a)(5) waters, which the agencies find are
better assessed under other categories of this rule. As discussed
above, paragraph (a)(2) impoundments of ``waters of the United States''
legally remain ``waters of the United States,'' so the agencies are not
requiring an additional determination of their jurisdiction under this
rule. While the agencies are not defining ``impoundment'' in this rule,
in this preamble the agencies are providing additional clarity below
about the types of impoundments that are and that are not considered
``waters of the United States'' under paragraph (a)(2). Additionally,
section IV.C.3.c of this preamble provides implementation guidance for
identifying impoundments on the landscape.
As in the proposed rule, impoundments of waters that are determined
to be jurisdictional under paragraph (a)(5) are not included in this
rule as paragraph (a)(2) impoundments. As discussed above, impoundments
of paragraph (a)(5) waters would need to be assessed for jurisdiction
in their current state under paragraph (a)(1), (a)(3), (a)(4), or
(a)(5) of this rule. Thus, if a water is determined to be
jurisdictional under paragraph (a)(5) and is then later lawfully
impounded, it is not jurisdictional by rule under the paragraph (a)(2)
impoundments provision. Instead, the impoundment of a paragraph (a)(5)
water would itself need to be assessed in its current state to
determine whether it is jurisdictional under one of the provisions of
the rule besides paragraph (a)(2). Impounded paragraph (a)(5) waters
will most likely continue to not meet any of the other categories of
jurisdictional waters and will therefore need to be re-assessed under
paragraph (a)(5). However, if, once impounded, such a water became, for
example, a traditional navigable water, it would be jurisdictional
under paragraph (a)(1) of this rule. This approach in this rule is
consistent with the agencies' careful approach to jurisdiction over
paragraph (a)(5) waters. For example, as discussed in sections IV.C.4
and IV.C.5 of this preamble below, the ``tributaries'' category does
not include tributaries to paragraph (a)(5) waters and the adjacent
wetlands category does not include wetlands adjacent to paragraph
(a)(5) waters. This change from the 1986 regulations reflects the
agencies' consideration of the jurisdictional concerns and limitations
of the statute as informed by SWANCC and Rapanos.
c. Implementation
Under this rule, for the reasons discussed above, impounding a
water that meets the definition of ``waters of the United States''
generally does not affect such water's jurisdictional status,
consistent with pre-2015 practice. See 2007 Corps Instructional
Guidebook at 58. A water can be found to be a jurisdictional
impoundment under paragraph (a)(2) of this rule if (1) the impounded
water met the definition of ``waters of the United States'' based on
this rule's definition at the time the impoundment was created \96\
(other than an impoundment of a paragraph (a)(5) water) or (2) the
water that is being impounded, at the time of assessment, meets the
definition of ``waters of the United States'' under paragraph (a)(1),
(a)(3), or (a)(4), regardless of the water's jurisdictional status when
the impoundment was created. The agencies also note that over time an
impoundment of a water that does not initially meet the definition of
``waters of the United States'' can become jurisdictional under another
provision of the regulation; for example, an impounded water could
become navigable-in-fact and covered under paragraph (a)(1)(i) of this
rule. This approach to implementation of impoundments is generally
consistent with pre-2015 practice. This section of the preamble
provides information for determining jurisdiction for impoundments
under paragraph (a)(2) and for determining jurisdiction for tributaries
of impoundments, wetlands adjacent to impoundments, and wetlands
adjacent to tributaries of impoundments.
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\96\ Note, however, if an impoundment is a waste treatment
system constructed prior to the 1972 Clean Water Act amendments, it
is eligible for the exclusion under paragraph (b) of this rule so
long as the system is in compliance with currently applicable Clean
Water Act requirements, such as treating water such that discharges,
if any, from the system meet the Act's requirements. See section
IV.C.7.b of this preamble.
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i. Determining the Presence of a Paragraph (a)(2) Impoundment
Impoundments are distinguishable from natural lakes and ponds
because they are created by discrete structures (often human-built)
like dams or levees that typically have the effect of raising the water
surface elevation, creating or expanding the area of open water, or
both. Impoundments can vary in size, with some being very small and
others being very large, like Lake Mead, a reservoir on the Colorado
River that is created by the Hoover Dam. Paragraph (a)(2) impoundments
under this rule can include both natural impoundments (like beaver
ponds) and artificial impoundments (like reservoirs). Paragraph (a)(2)
impoundments under this rule can be located off-channel (i.e.,
[[Page 3078]]
an impoundment with no outlet or hydrologic connection to the tributary
network) or in-line with the channel (i.e., an impoundment with a
hydrologic connection to the tributary network).
An impoundment is jurisdictional under paragraph (a)(2) of this
rule if the impounded water met the definition of ``waters of the
United States'' based on this rule's definition when the impoundment
was created (other than impoundments of paragraph (a)(5) waters). To
determine if an impoundment meets this criterion, the water would be
assessed to see if the water was jurisdictional as a paragraph (a)(1)
water, tributary, or adjacent wetland based on this rule's definition
at the time it was impounded. Tools that can be used for such
assessment are discussed further in sections IV.C.4.c and IV.C.5.c of
this preamble. Historic aerial photographs, maps, and geospatial
datasets may be particularly useful in helping to determine if a water
was jurisdictional under paragraph (a)(1), (a)(3), or (a)(4) of this
rule at the time the impoundment was created, especially where such
materials depict the aquatic system before and after the impoundment
was created. Similarly, planning, engineering, and design documents, if
available, may provide useful information.
Paragraph (a)(2) waters also include impoundments of waters that at
the time of assessment are jurisdictional under paragraph (a)(1),
(a)(3), or (a)(4) of this rule regardless of the water's jurisdictional
status at the time the impoundment was created. This approach is
consistent with pre-2015 practice. See 2007 Corps Instructional
Guidebook at 58. A water that is impounded may not meet this rule's
jurisdictional criteria at the time the water was originally impounded,
but the water may meet this rule's jurisdictional criteria at the time
of the assessment (in some cases, many years later). This is because
aquatic resources generally can evolve over time as aquatic landscapes,
precipitation and other climatic patterns, and other environmental
conditions change, or due to human-caused changes (e.g., stream
modification, filling in of wetlands, water withdrawals, or effluent
discharges). Impounded waters may be particularly likely to evolve as
the surface waters are raised or expanded behind the impoundment. To
determine if an impoundment is jurisdictional based on such changes,
the impounded water would be assessed to see if it is a traditional
navigable water, the territorial seas, an interstate water, a
jurisdictional tributary, or a jurisdictional adjacent wetland. Tools
that can be used for such assessment are discussed further in sections
IV.C.4.c and IV.C.5.c of this preamble.
In assessing if an impoundment of a paragraph (a)(1) water is
jurisdictional under paragraph (a)(2), the agencies would assess
whether the water that is being impounded met the requirements to be a
paragraph (a)(1) water under this rule either at the time of
impoundment or at the time of assessment. Impoundments of paragraph
(a)(1) waters that continue to meet the requirements under paragraph
(a)(1) remain paragraph (a)(1) waters.
In assessing whether an impoundment of a tributary is
jurisdictional under paragraph (a)(2), the agencies would first assess
if the tributary either met this rule's definition of ``waters of the
United States'' at the time the impoundment was created or if the
tributary meets this rule's definition of ``waters of the United
States'' at the time of assessment. For impoundments of tributaries
that met this rule's definition of ``waters of the United States'' at
the time the impoundment was created, the agencies must be able to
demonstrate that at the time the impoundment was created, there was
evidence of a flowpath (e.g., physical features on the landscape, such
as a channel, ditch, pipe, or swale) directly or indirectly through
another water or waters, downstream from the structure that created the
impoundment to a paragraph (a)(1) water. Thus, an impoundment of a
tributary that met this rule's definition of ``waters of the United
States'' at the time the impoundment was created could currently be
located off-channel (e.g., due to changes in hydrology) or in-line with
the channel, but the flowpath would only need to be traceable at the
time the impoundment was created. For impoundments of tributaries that
meet this rule's definition of ``waters of the United States'' at the
time of assessment, the agencies must be able to at the time of
assessment trace a flowpath directly or indirectly through another
water or waters, downstream from the structure that creates the
impoundment to a paragraph (a)(1) water. Thus, impoundments of
tributaries that meet the definition of ``waters of the United States''
at the time of assessment will always be in-line with the channel due
to the flowpath requirement. This is consistent with the agencies'
approach to tributaries under the final rule. See section IV.C.4. of
this preamble. As with assessment of tributaries under this rule, while
the physical flowpath from the paragraph (a)(2) impoundment to the
paragraph (a)(1) water must be traceable, there is not a need to
demonstrate that flow from the impoundment reaches the paragraph (a)(1)
water. For an off-channel impoundment (i.e., an impoundment with no
outlet to the tributary network), such as an impoundment of a
jurisdictional adjacent wetland, such a flowpath is not required. Under
the final rule, adjacent wetlands do not require a flowpath to the
tributary network, and similarly, impoundments of such adjacent
wetlands do not require a flowpath. The agencies would only need to
determine that the impoundment was created in a water that is currently
jurisdictional under paragraphs (a)(1) through (4) or that the
impoundment was created in a water that was jurisdictional under
paragraphs (a)(1) through (4) at the time the impoundment was created.
In assessing whether an impoundment of an adjacent wetland is
jurisdictional under paragraph (a)(2), the agencies would need to
determine that the impoundment was created in an adjacent wetland that
was jurisdictional at the time the impoundment was created or that is
currently jurisdictional at the time of assessment. Such impoundments
of adjacent wetlands may be located either off-channel or in-line with
the channel, and do not require a traceable flowpath that is required
for impoundments of tributaries. This is because under the final rule,
adjacent wetlands do not require a flowpath to the tributary network,
and similarly, impoundments of such adjacent wetlands do not require a
flowpath.
Because impoundments can be jurisdictional under other categories
of ``waters of the United States'' under this rule, field staff may
document that the impoundment is jurisdictional under other categories.
For example, if an impoundment is itself a traditional navigable water,
part of the territorial seas, or an interstate water, the agencies
would typically determine that the impoundment is a paragraph (a)(1)
water, rather than asserting jurisdiction under paragraph (a)(2) of
this rule. Field staff may document any such waters as jurisdictional
under the relevant provision of the rule rather than documenting that
it is jurisdictional as a paragraph (a)(2) impoundment.
Finally, as discussed above in section IV.C.3.b of this preamble,
waters that are jurisdictional under paragraph (a)(5) and that are
subsequently impounded do not categorically retain their jurisdictional
status as ``waters of the United States'' under paragraph (a)(2). If
the impoundment of the paragraph (a)(5) water does not meet the
jurisdictional standards under one of
[[Page 3079]]
the other categories of ``waters of the United States'' in this rule
(i.e., as a paragraph (a)(1) water, jurisdictional tributary, or
jurisdictional adjacent wetland), the impoundment would be re-assessed
as a paragraph (a)(5) water. Implementation of waters assessed under
paragraph (a)(5) is discussed in section IV.C.6.c of this preamble.
ii. Determining Jurisdiction for Tributaries of Impoundments, Wetlands
Adjacent to Impoundments, and Wetlands Adjacent to Tributaries of
Impoundments
Tributaries of paragraph (a)(2) impoundments are jurisdictional, as
with all tributaries under this rule, when they meet either the
relatively permanent standard or the significant nexus standard. In
order to determine if a water is a tributary of a paragraph (a)(2)
impoundment, the same tools and methods can be used that are discussed
in section IV.C.4.c.i of this preamble to trace the flowpath to the
impoundment. Field staff would then determine if the tributary should
be evaluated under the relatively permanent standard or the significant
nexus standard. For tributaries assessed under the relatively permanent
standard, the agencies must be able to trace evidence of a flowpath
downstream from the structure that creates the impoundment to a
paragraph (a)(1) water. To meet the latter standard, the significant
nexus must be to a paragraph (a)(1) water. Implementation of the
relatively permanent standard for tributaries is discussed in more
detail in section IV.C.4.c.ii of this preamble. Implementation of the
significant nexus standard for tributaries is discussed in section
IV.C.4.c.iii of this preamble.
For tributaries of paragraph (a)(2) impoundments that are evaluated
under the relatively permanent standard, field staff would determine if
the tributary has flowing or standing water year-round or continuously
during certain times of the year, see section IV.C.4.c.ii of this
preamble, and then determine whether there is evidence of a flowpath
downstream from the structure that creates the impoundment to a
paragraph (a)(1) water. As with all tributaries under the rule, there
is no requirement under the relatively permanent standard for
relatively permanent flow for the entirety of a tributary's flowpath to
a downstream paragraph (a)(1) water. See id. Thus, under the relatively
permanent standard for tributaries of paragraph (a)(2) impoundments,
field staff would not need to determine that flow occurs over, through,
around, or underneath the structure that creates the impoundment.
Instead, the agencies will document that flow occurs from the tributary
to the impoundment, either directly or indirectly through another water
or waters, including non-jurisdictional features, as described in
section IV.C.4 of this preamble, and that there is evidence of a
flowpath downstream of the structure (e.g., physical features on the
landscape, such as a channel, non-jurisdictional ditch, pipe, or swale)
to a paragraph (a)(1) water, either directly or indirectly through
another water or waters. For example, a tributary may flow through
another stream that flows infrequently, and only in direct response to
precipitation, and the presence of that stream is sufficient to
demonstrate that the tributary flows to a paragraph (a)(1) water.
If a wetland is adjacent to a paragraph (a)(2) impoundment and that
wetland is evaluated under the relatively permanent standard, field
staff would, only for purposes of determining whether the adjacent
wetland meets the relatively permanent standard, assess whether the
impounded water is relatively permanent, standing or continuously
flowing. Next, field staff would determine whether the wetland has a
continuous surface connection to the paragraph (a)(2) impoundment,
consistent with section IV.C.5 of this preamble. If the paragraph
(a)(2) impoundment is not relatively permanent, standing or
continuously flowing, then field staff will assess the adjacent wetland
under the significant nexus standard.
If a wetland is adjacent to a tributary to a paragraph (a)(2)
impoundment, and the tributary meets the relatively permanent standard,
the wetland would be assessed for whether it has a continuous surface
connection to the tributary, consistent with section IV.C.5 of this
preamble. If the adjacent wetland does not have a continuous surface
connection, it will be assessed under the significant nexus standard.
If the tributary does not meet the relatively permanent standard, then
field staff will assess the adjacent wetland under the significant
nexus standard. To apply the significant nexus standard to tributaries
of paragraph (a)(2) impoundments, wetlands adjacent to those
tributaries, or wetlands adjacent to paragraph (a)(2) impoundments, the
agencies will assess if the waters of interest significantly affect the
chemical, physical, or biological integrity of paragraph (a)(1) waters
using the tools and approaches described in sections IV.C.4.c.iii and
IV.C.5.c.iii of this preamble. As part of that analysis, the agencies
will determine if there is a surface or subsurface hydrologic
connection downstream that is maintained over, through, around, or
underneath the structure that creates the impoundment. Such a
hydrologic connection can occur in a variety of ways, such as
overtopping of the structure or through features like dam spillways,
drainage and other galleries, sluiceways, culverts, pipes, diversion
tunnels, or conduits that are built to maintain a hydrologic connection
through the dam or levee. Subsurface hydrologic connectivity can also
occur via seepage through or underneath the dam or similar structure.
Field staff can document that surface or subsurface hydrologic
connectivity occurs using direct observation of overtopping or a
feature that is constructed to maintain a hydrologic connection,
through review of construction plans for the structure, through other
field observations (e.g., dye tests or tracer studies, or observations
of flow within the spillway such as bent over vegetation or water
staining where the spillway is concrete, soil saturation, changes in
vegetation above and below the structure), or through remote tools
(e.g., aerial photography interpretation that provides indications of
wetter signatures below the dam). As stated in section IV.C.9 of this
preamble, a hydrologic connection to a paragraph (a)(1) water is not
necessary to determine that the water being evaluated significantly
affects the integrity of paragraph (a)(1) waters, though it is one of
the factors that is considered. Where such a hydrologic connection
exists at the surface or subsurface, it can help to facilitate the
functions that the tributary of the paragraph (a)(2) impoundment
performs that impact the downstream paragraph (a)(1) water, such as
contribution of flow, pollutants, sediment, and organic material. In
the rare circumstances where such a hydrologic connection does not
exist, the lack of such a connection can facilitate other functions,
such as holding back floodwaters that could otherwise harm paragraph
(a)(1) waters. See preamble section IV.C.9 for additional information
on implementing the significant nexus standard more generally.
4. Tributaries
a. This Rule
Consistent with the proposal, this rule retains the tributary
provision of the 1986 regulations, updated to reflect consideration of
the law, the science, and agency expertise. The 1986 regulations
defined ``waters of the United States'' to include tributaries of
traditional navigable waters, interstate waters, paragraph (a)(3)
``other waters''
[[Page 3080]]
(a category that has been modified and codified in this rule as
paragraph (a)(5) waters) and impoundments. With this rule, the agencies
are adding the territorial seas to the list of waters to which
tributaries may connect to constitute a jurisdictional tributary and
removing paragraph (a)(3) waters from the list. This rule defines
``waters of the United States'' to include tributaries of traditional
navigable waters, the territorial seas, interstate waters, or paragraph
(a)(2) impoundments if the tributaries meet either the relatively
permanent standard or the significant nexus standard.
The 1986 regulations do not contain a definition of ``tributary,''
and the agencies similarly are not including a definition in this rule.
However, for more than 45 years, the agencies have 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 (July 19, 1977). Accordingly,
the agencies are maintaining their interpretation of tributary for
purposes of the definition of ``waters of the United States.'' See
Rapanos Guidance at 6 n.24. A tributary for purposes of this rule
includes rivers, streams, lakes, ponds, and impoundments, regardless of
their flow regime, that flow directly or indirectly through another
water or waters to a traditional navigable water, the territorial seas,
or an interstate water. Waters through which a tributary may flow
indirectly include, for example, impoundments, wetlands, lakes, ponds,
and streams. A tributary may flow through a number of downstream
waters, including a non-jurisdictional tributary or non-jurisdictional
features, such as a ditch excluded under paragraph (b) of this rule or
an excluded waste treatment system, and jurisdictional waters that are
not tributaries, such as an adjacent wetland. But to be jurisdictional,
the tributary must be part of a tributary system that eventually flows
to a traditional navigable water, the territorial seas, or an
interstate water. The agencies will utilize the Corps' well-established
definition of an ordinary high water mark (OHWM) to assist in
identifying tributaries for purposes of this rule. See section
IV.C.4.c.i of this preamble for information on using the OHWM to assist
in identifying a water as a tributary for purposes of this rule. To be
a jurisdictional tributary under this provision of the rule, the
tributary must meet either the relatively permanent standard or the
significant nexus standard.
Like the 1986 regulations, this rule includes tributaries of
interstate waters since interstate waters, like traditional navigable
waters and the territorial seas, are waters clearly protected by the
Clean Water Act. In this rule, the agencies are adding 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. Because the territorial
seas are explicitly covered by the Clean Water Act, it is reasonable
and appropriate to protect tributaries to the territorial seas that
meet either the relatively permanent standard or the significant nexus
standard for the same reasons that tributaries to traditional navigable
waters are protected. In practice, the agencies recognize that most
tributaries will reach a traditional navigable water before they reach
the territorial seas. Finally, consistent with the 1986 regulations,
this rule includes tributaries that flow directly or indirectly through
another water or waters to paragraph (a)(2) impoundments.\97\
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\97\ See discussion of tributaries to paragraph (a)(2)
impoundments in section IV.C.3 of this preamble.
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The agencies' longstanding interpretation of the Clean Water Act
includes tributaries that are natural, modified, or constructed waters.
The Clean Water Act, in defining ``navigable waters,'' does not turn on
any such distinctions, which have no bearing on a tributary's capacity
to carry water (and pollutants) to paragraph (a)(1) waters. See, e.g.,
Technical Support Document section II.B.iv.3 (explaining that human-
made ditches ``perform many of the same functions as natural
tributaries,'' including ``convey[ing] water that carries nutrients,
pollutants, and other constituents, both good and bad, to downstream
traditional navigable waters''). Given the extensive human modification
of watercourses and hydrologic systems throughout the country, it is
often difficult to distinguish, as a practical or scientific matter,
between natural watercourses and watercourses that are wholly or partly
modified or constructed. For example, tributaries that have been
channelized in concrete or otherwise have been modified would still be
tributaries for purposes of this rule so long as they contribute flow
to a traditional navigable water, the territorial seas, or an
interstate water, and so long as they are not excluded under paragraph
(b) of this rule. Thus, tributaries can include ditches and canals.
Under this rule, swales and erosional features (e.g., gullies,
small washes) characterized by low volume, infrequent, or short
duration flow are not tributaries and are not jurisdictional. See
section IV.C.7 of this preamble.
Once a water is determined to be a tributary, under this rule, the
tributary must meet either the relatively permanent or significant
nexus standard to be jurisdictional. The relatively permanent standard
encompasses tributaries that have flowing or standing water year-round
or continuously during certain times of the year. Relatively permanent
waters do not include tributaries with flowing or standing water for
only a short duration in direct response to precipitation. In
evaluating tributaries under the significant nexus standard, the
agencies will determine whether the tributaries, either alone or in
combination with similarly situated waters in the region, significantly
affect the chemical, physical, or biological integrity of paragraph
(a)(1) waters. Implementation of each of those standards for purposes
of determining jurisdiction over tributaries is discussed below in
section IV.C.4.c of this preamble.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
Commenters expressed a range of views on the agencies' proposed
treatment of tributaries. This section of the preamble provides a
summary of the major comments received on the regulatory text and the
agencies' consideration of the comments. The preamble to the proposed
rule also provided information about the agencies' longstanding
interpretation of practice for identifying tributaries for purposes of
the definition of ``waters of the United States,'' and this section
also summarizes and addresses major comments received on those topics.
i. Comments on the Tributaries Provision of This Rule
Some commenters requested that the agencies include a definition of
``tributary'' in this rule. A subset of these commenters stated that
the definition should include waters with a bed, bank, or other
evidence of flow that contribute flow directly or indirectly to
downstream paragraph (a)(1) waters. Other commenters maintained that
the lack of a formal definition makes it unclear which features are
tributaries and which are not. Some of these commenters stated that the
lack of a
[[Page 3081]]
definition left too much discretion to the agencies to identify
tributaries based on physical features, which they asserted would lead
to confusion. Some commenters supported the proposed approach for
assessing tributaries, stating that the longstanding interpretation and
practice would allow for regionalized implementation. Although the
agencies are not promulgating a new definition of ``tributary'' the
agencies have decades of experience implementing the 1986 regulations
(which also did not include a definition of ``tributary'') and have
concluded that a new regulatory definition of tributary is not
required. To provide further clarity, the agencies have been careful in
this preamble to articulate and explain the agencies' well-established
interpretation and practices for identifying tributaries. In addition,
the agencies note that while the first step under this provision of the
regulation is to identify whether a water is a tributary under
longstanding practice, that is not the end of the inquiry under this
rule, in contrast to the 1986 regulations. A water must not only be a
tributary but must also meet either the relatively permanent standard
or the significant nexus standard to be jurisdictional under this
provision. These standards provide important limitations that also help
define the scope of the tributaries that are jurisdictional under the
rule.
Commenters on the proposed rule expressed a variety of perspectives
on the appropriate scope of jurisdiction for tributaries. Some
commenters supported the proposal that tributaries are jurisdictional
if they meet either the relatively permanent or significant nexus
standard. Other commenters asserted that tributaries should meet both
standards. Some commenters stated that this rule should include
categorical protections for all tributaries (e.g., features with an
OHWM), rather than requiring case-by-case analysis, asserting that such
an interpretation is supported by the science and Supreme Court case
law. For the reasons described in section IV.A of this preamble, this
rule defines ``waters of the United States'' to include tributaries
that meet either the relatively permanent standard or the significant
nexus standard on a case-specific basis.
Some commenters criticized the definition of ``tributary'' from the
2020 NWPR, while others supported that definition, stating that it was
clear and logical. The 2020 NWPR defined ``tributary'' as a river,
stream, or similar naturally occurring surface water channel that
contributes surface water flow to the territorial seas or a 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
definition of ``tributary'' in the 2020 NWPR failed to advance the
objective of the Clean Water Act and was inconsistent with scientific
information about the important effects of many types of tributaries on
the integrity of downstream paragraph (a)(1) waters.
The key limitations that the 2020 NWPR created in its definition of
``tributary,'' which this rule does not adopt, are the categorical
exclusion of ephemeral streams and the requirement that streams
contribute flow to a traditional navigable water or territorial sea in
a ``typical year.'' With respect to ephemeral streams, commenters
provided a wide variety of perspectives on whether they should be
jurisdictional under this rule. Some commenters asserted that the
agencies' interpretation of tributary should exclude ephemeral streams.
Some commenters asserted that ephemeral streams should be categorically
jurisdictional under this rule. These commenters referenced the
importance of ephemeral streams for providing functions like nutrient
and materials transport, erosion and flood control, water quality
maintenance downstream, drinking water and irrigation provisioning,
groundwater recharge, and wildlife habitat. Other commenters asserted
that ephemeral streams are important for buffering against the impacts
of climate change, supporting Tribal communities, and providing
functions in specific regions like arid areas. Another group of
commenters stated that all ephemeral streams should be non-
jurisdictional across the country, or non-jurisdictional in certain
regions such as the arid West. These commenters asserted that ephemeral
streams do not flow frequently enough or provide sufficiently important
functions to impact the integrity of downstream paragraph (a)(1)
waters. As discussed further in section IV.A of this preamble, the
agencies are not categorically including or excluding streams as
jurisdictional based on their flow regime in this rule. The agencies
agree that ephemeral streams can provide many important functions for
paragraph (a)(1) waters.
With respect to the ``typical year requirement'' in the 2020 NWPR
definition of ``tributary,'' the agencies found it challenging and
sometimes impossible to implement, for the reasons discussed in section
IV.B.3.c of this preamble. The ``typical year'' requirement for
tributaries was also not supported by science. Scientific information
does not demonstrate that only those streams that contribute
intermittent or perennial flow to a traditional navigable water or
territorial sea in a ``typical year'' have significant effects on the
chemical, physical, and biological integrity of larger downstream
waters, including paragraph (a)(1) waters. See sections IV.B.3.a and
IV.B.3.b of this preamble. Because the limitations in the 2020 NWPR's
definition of ``tributary'' are inconsistent with science and created
substantial implementation difficulties, the agencies are not adopting
this definition. See section III.A of the Technical Support Document
for more information on the agencies' rationale for the scope of
tributaries covered by this rule. Streams that are tributaries,
regardless of their flow regime, will be assessed under the relatively
permanent or significant nexus standard per paragraph (a)(3) of this
rule, and streams that are not tributaries will be assessed under the
relatively permanent or significant nexus standard per paragraph (a)(5)
of this rule.
Some commenters opposed as arbitrary and unsupported by the law or
science the agencies' proposed approach to delete the category for
intrastate lakes and ponds, streams, or wetlands that do not meet
another jurisdictional category (the (a)(3) ``other waters'' provision
from the 1986 regulations) as a category of waters to which tributaries
may connect to be determined ``waters of the United States.'' Some of
these commenters requested clarification as to how tributaries to
intrastate lakes and ponds, streams, or wetlands that do not meet
another jurisdictional category would be assessed. One commenter
asserted that the agencies were ``excluding'' tributaries to paragraph
(a)(5) waters. Streams that flow to paragraph (a)(5) waters are not
excluded in this rule. Deleting the cross reference to the category for
intrastate lakes and ponds, streams, or wetlands that do not meet
another jurisdictional category (the (a)(3) ``other waters'' provision
from the 1986 regulations) as a category of waters to which tributaries
may connect reflects the agencies' consideration of the statute as a
whole and 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 such waters would have
[[Page 3082]]
too tenuous a connection to paragraph (a)(1) waters. However, in this
rule any such streams that flow to jurisdictional paragraph (a)(5)
waters could be assessed themselves under the paragraph (a)(5) waters
category to determine if they meet the relatively permanent or
significant nexus standard. For example, a stream that flows to a lake
that meets the significant nexus standard under the paragraph (a)(5)
waters provision could itself be assessed under the paragraph (a)(5)
waters provision to determine whether it significantly affects the
chemical, physical, or biological integrity of a paragraph (a)(1)
water.
ii. Comments on the Interpretation and Implementation of the
Tributaries Provision of This Rule
As discussed further above, the agencies interpret tributary for
purposes of this rule to include rivers, streams, lakes, ponds, and
impoundments that flow directly or indirectly through another water or
waters to a traditional navigable water, the territorial seas, an
interstate water, or a paragraph (a)(2) impoundment. The agencies
received comments on elements of this longstanding interpretation of
tributary for purposes of the ``waters of the United States.''
Some commenters disagreed with the agencies' interpretation that
tributaries include certain lakes and ponds. Some of these commenters
stated that lakes and ponds should comprise a separate jurisdictional
category. Several commenters asserted that considering certain lakes
and ponds to be tributaries could lead to overly broad jurisdiction,
and one commenter requested clarification in this rule that not every
feature that might be considered a lake or a pond is necessarily
jurisdictional. Other commenters agreed with the agencies' longstanding
approach. Lakes, ponds, and impoundments function as part of the
tributary system where they contribute flow to downstream waters, and
therefore it is reasonable to assess them for jurisdiction as
tributaries under this rule. The agencies will continue to interpret
the regulations to address lakes, ponds, and impoundments with both an
inlet and outlet connected to the tributary network, as well as lakes,
ponds, and impoundments with an outlet connected to the tributary
network as tributaries if they contribute flow directly or indirectly
through one or more waters or features that lie along the flowpath to a
paragraph (a)(1) water. The agencies have extensive experience
implementing this approach under pre-2015 practice. The agencies
disagree that this approach will lead to overly broad jurisdiction, as
these lakes, ponds, and impoundments that are tributaries must meet
either the relatively permanent standard or significant nexus standard
to be jurisdictional. Therefore, not every lake, pond, or impoundment
is jurisdictional as a tributary or under other provisions of this
rule.
Some commenters supported the agencies' longstanding interpretation
that tributaries include waterbodies that flow ``directly or
indirectly'' to a paragraph (a)(1) water, while other commenters
asserted that tributaries must flow ``directly'' into a paragraph
(a)(1) water. There is no text in the Clean Water Act supporting this
limitation, and the agencies have never interpreted the Act to cover
only such tributaries. Even the Rapanos plurality opinion did not so
limit the scope of tributaries covered by the Act. 547 U.S. at 742.
Moreover, the science is clear that the chemical, physical, and
biological integrity of paragraph (a)(1) waters depends on the many
tributaries, including headwater streams, that feed such waters. It
would be impossible to restore and maintain the chemical, physical, and
biological integrity as required by the Clean Water Act with a
definition of ``waters of the United States'' that included solely the
last tributary that flows ``directly'' into a paragraph (a)(1) water.
Tributaries upstream provide key functions that support the chemical,
physical, and biological integrity of paragraph (a)(1) waters. If
protections for tributaries ended just above the very last one,
functions like habitat for salmon spawning, baseflow to maintain water
levels, and nutrient replenishment would all be at risk. See Technical
Support Document sections I.A and III.E.ii.
A tributary may contribute flow through a number of downstream
waters or features, including both non-jurisdictional features, such as
a ditch excluded under paragraph (b) of this rule, and jurisdictional
waters that are not tributaries, such as an adjacent wetland. However,
the tributary must be part of a system that eventually flows to a
paragraph (a)(1) water. Waters that are part of a system that never
reaches a paragraph (a)(1) water, for example, a small system of
streams that ultimately flow to a non-navigable stream in an intrastate
basin with no outlet, are not jurisdictional under this provision of
this rule.
Some commenters asserted that the agencies' approach to
interpreting ``tributary'' would potentially allow the agencies to
include wetlands as tributaries. The agencies disagree. While wetlands
may be a water through which a tributary flows directly or indirectly
to a paragraph (a)(1) water, the agencies do not consider that wetland
to be a tributary itself. This is consistent with pre-2015 practice.
Only when a wetland lies entirely below the OHWM, will it be identified
as part of the tributary consistent with current practice; even then,
the wetland is not identified as a tributary itself. Otherwise, such
wetlands are considered adjacent wetlands and will be evaluated under
paragraph (a)(4) of this final rule.
Some commenters supported the agencies' longstanding interpretation
that there is no meaningful distinction among natural, human-altered,
or human-made tributaries in terms of their functions, values, and
influence on the integrity of downstream waters. Some commenters
requested clarification as to whether both human-made and natural
tributaries would be regulated in this rule. Some commenters asserted
that the agencies' proposed approach to interpreting ``tributary'' is
overly broad and expansive because it would potentially allow the
agencies to include ditches and human-made conveyances as tributaries.
The agencies disagree with commenters who asserted that the agencies'
approach to human-made tributaries is overly broad and expansive. The
approach is consistent with the agencies' decades-long practice and the
scientific record, and such tributaries must still meet either the
relatively permanent standard or the significant nexus standard to be
jurisdictional under this rule. As noted above, 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 human-made or
human-altered. Because natural, human-altered, and human-made
tributaries provide many of the same functions, especially as conduits
for the movement of water and pollutants to other tributaries or
directly to paragraph (a)(1) waters, the agencies have interpreted the
1986 regulations to cover such tributaries. Ditches, for example, are
tributaries under this rule if they flow directly or indirectly to
paragraph (a)(1) waters and they are jurisdictional tributaries if they
also meet the relatively permanent standard or significant nexus
standard and are not excluded from jurisdiction under this rule. See
section IV.C.7 of this preamble for additional discussion on excluded
ditches.
[[Page 3083]]
c. Implementation
A tributary for purposes of this rule includes rivers, streams,
lakes, ponds, and impoundments that flow directly or indirectly through
another water or waters to a traditional navigable water, the
territorial seas, an interstate water, or a paragraph (a)(2)
impoundment. A tributary may flow through a number of downstream
waters, including non-jurisdictional features. This section of the
preamble provides additional information on the agencies'
interpretation and implementation of the tributary provision of this
rule. This section first explains how to determine whether a water is a
tributary for purposes of this rule. The section next explains how to
determine whether a tributary is jurisdictional under the relatively
permanent standard or under the significant nexus standard.
i. Determining Whether a Water Is a Tributary for Purposes of This Rule
This section describes how to (1) identify a tributary for purposes
of this rule and (2) determine whether the tributary is part of the
tributary system of a traditional navigable water, the territorial
seas, an interstate water, or a paragraph (a)(2) impoundment.
(1) Identifying a Water as a Tributary
In implementing this rule, the agencies are maintaining their
longstanding interpretation that tributaries for purposes of Clean
Water Act jurisdiction include rivers, streams, lakes, ponds, and
impoundments. See 2007 Corps Instructional Guidebook at 8, 9. As
discussed above, although tributaries are required to flow directly or
indirectly through another water or waters to certain downstream
waters, tributaries are not required to have a specific flow regime to
meet the agencies' interpretation of ``tributary.'' However, flow
characteristics like duration and timing of flow will be considered in
determining whether tributaries meet the relatively permanent or
significant nexus standard, as described further below in sections
IV.C.4.c.ii and IV.C.4.c.iii of this preamble. Lakes, ponds, and
impoundments may be at the headwaters of the tributary network (e.g., a
lake with only an outlet to the tributary network) or farther
downstream from the headwaters (e.g., a lake with both an inlet and
outlet connected to the tributary network). Even though such waters are
considered to be lentic or ``still'' systems, such waters still
contribute flow downstream at the point that they outlet to the
tributary network and therefore the agencies have long concluded it is
appropriate to consider such waters to be tributaries.
As discussed above in this section of the preamble, the agencies'
longstanding interpretation of ``tributary'' for purposes of the
definition of ``waters of the United States'' includes natural, human-
altered, or human-made waterbodies that flow directly or indirectly
through another water or waters to a traditional navigable water, the
territorial seas, or an interstate water. See Rapanos Guidance at 6.
The agencies will utilize the Corps' well-established definition of
an ordinary high water mark (OHWM) to assist in identifying tributaries
for purposes of this rule. See section IV.C.8 of this preamble (adding
the definition of OHWM to EPA's regulation). Tributaries typically have
at least one indicator of an OHWM and, consistent with pre-2015
practice, physical OHWM characteristics are used to identify
waterbodies including streams, lakes, ponds, and ditches that are
present on the landscape. See, e.g., ``Final Notice of Issuance and
Modification of Nationwide Permits,'' 65 FR 12818, 12823-24 (March 9,
2000); 2007 Corps Instructional Guidebook; RGL 05-05 (December 7,
2005). The OHWM, a term unchanged since 1977, defines the lateral
limits of jurisdiction in non-tidal ``waters of the United States,''
provided the limits of jurisdiction are not extended by adjacent
wetlands. See 42 FR 37144 (July 19, 1977); 33 CFR 323.3(c) (1978). The
regulations at 33 CFR 328.3(e) and 329.11(a)(1) list the factors to be
applied. RGL 05-05 further explains these regulations. Delineation of
an OHWM in tributaries relies on the identification and interpretation
of physical features, including topographic breaks in slope, changes in
vegetation characteristics (e.g., destruction of terrestrial vegetation
and change in plant community), and changes in sediment characteristics
(e.g., sediment sorting and deposition). Field indicators, remote
sensing, and mapping information can also help identify an OHWM. The
Corps continues to improve regulatory practices across the country
through ongoing research and the development of regional and national
OHWM delineation procedures, as described further in section IV.A.ii of
the Technical Support Document. For example, the Corps has developed
field indicators to help field staff identify the OHWM in common stream
types in the arid West. Consistent with longstanding practice, the
agencies will apply the regulations and use RGL 05-05 and applicable
OHWM delineation manuals, as well as take other steps as needed to
ensure that the OHWM identification factors are applied consistently
nationwide. See Rapanos Guidance at 10-11 n.36.
The agencies will assess any discontinuity in the OHWM and,
consistent with pre-2015 practice, a natural or human-made
discontinuity in the OHWM does not necessarily sever jurisdiction
upstream. A discontinuity may exist where the stream temporarily flows
underground. Tributaries may temporarily flow underground in regions
with karst geology or lava tubes, for example, maintaining similar flow
characteristics underground and at the downstream point where they
return to the surface. The agencies will also continue their familiar
practice that a discontinuity in the OHWM also does not typically sever
jurisdiction upstream where the OHWM has been removed by development,
agriculture, or other land uses. For example, tributaries can be
relocated below ground to allow reasonable development to occur. In
urban areas, surface waters are often rerouted through an artificial
tunnel system to facilitate development. See, e.g., Science Report at
3-3, and sections III.A and IV.A.ii of the Technical Support Document.
Underground streams are distinct from groundwater due to their very
direct hydrologic connection to the portions of the tributaries that
are or re-surface above ground. Typically, groundwater connections
would be much slower than connections via underground streams.
Tributaries that have been rerouted underground are contained within a
tunnel system or other similar channelized subsurface feature, while
naturally occurring subterranean streams flow within natural conduits
like karst formations or lava tubes. The agencies will look for
indicators of flow both above and below the discontinuity. For example,
a discontinuity in the OHWM may exist due to constructed breaks (e.g.,
culverts, pipes, or dams) \98\ or natural breaks (e.g., debris piles or
boulder fields). Site specific conditions will continue to determine
the distance up the tributary network that is evaluated to see if the
feature creates a temporary break or if it severs the upstream
connection and constitutes the start of the tributary system.
---------------------------------------------------------------------------
\98\ Under past practice, the agencies have sometimes
characterized bridges as artificial breaks, such as under the 2015
Clean Water Rule. See 80 FR 37106 (June 29, 2015). However, bridges
do not necessarily create discontinuity in the OHWM, and the
agencies recognize that tributaries flowing under bridges may still
show evidence of an OHWM and in such circumstances would continue to
be jurisdictional where they meet either the relatively permanent or
significant nexus standard.
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[[Page 3084]]
Under this rule, swales and erosional features (e.g., gullies,
small washes) characterized by low volume, infrequent, or short
duration flow are not tributaries and are not jurisdictional. See
section IV.C.7 of this preamble. Because swales and erosional features
were considered to be generally non-jurisdictional features under pre-
2015 practice, the agencies have extensive experience differentiating
between these features and tributaries on the landscape. See Rapanos
Guidance at 11-12. Streams are waterbodies that are typically
characterized by the presence of a channel and an OHWM, and lakes and
ponds are waterbodies that are also typically characterized by the
presence of an OHWM, in the absence of adjacent wetlands. In contrast,
erosional features like gullies and rills are typically more deeply
incised than streams and lack an OHWM. Similarly, swales do not have an
OHWM and typically lack a more defined channel that a stream exhibits.
See section IV.C.7 of this preamble and section III.A.v of the
Technical Support Document for additional discussion on how to
distinguish between tributaries, erosional features, and swales; see
section IV.A.ii of the Technical Support Document for additional
discussion on how to identify tributaries based on an OHWM.
A variety of field and remote tools can be used to determine
whether a water is a tributary.\99\ Due to limitations associated with
some remote tools, field verification for accuracy may be necessary
(e.g., due to scale or vegetation cover, not all tributaries may be
visible in satellite imagery and aerial photographs or mapped in the
NHD). Examples of field indicators will be discussed in more detail
below.
---------------------------------------------------------------------------
\99\ Direct observation or 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/the-national-map-data-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), National Hydrography Dataset (NHD) data,
National Wetlands Inventory (NWI) data, maps and geospatial datasets
from Tribal, State, or local governments, and/or aerial or satellite
imagery can also be used. Tributaries are often 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 (see ``Topographic Map Symbols,'' available at
https://pubs.usgs.gov/gip/TopographicMapSymbols/topomapsymbols.pdf).
---------------------------------------------------------------------------
(2) Identifying Whether the Water Is Part of the Tributary System of a
Paragraph (a)(1) Water
The next step in determining whether a waterbody is a tributary is
to identify whether the waterbody is part of the tributary system of a
paragraph (a)(1) water. The tributary must flow directly or indirectly
through another water or waters to a traditional navigable water, the
territorial seas, or interstate water. Waters through which a tributary
may flow indirectly include, for example, impoundments, wetlands,
lakes, ponds, and streams. A tributary may flow through a number of
downstream waters, including non-jurisdictional features, such as a
ditch excluded under paragraph (b) of this rule or an excluded waste
treatment system, and jurisdictional waters that are not tributaries,
such as an adjacent wetland. But, the tributary must be part of a
tributary system that eventually flows to a traditional navigable
water, the territorial seas, or an interstate water to be
jurisdictional. A tributary may flow through another stream that flows
infrequently, and only in direct response to precipitation, and the
presence of that stream is sufficient to demonstrate that the tributary
flows to a paragraph (a)(1) water. Tributaries are not required to have
a surface flowpath all the way down to the paragraph (a)(1) water. For
example, tributaries can contribute flow through certain natural and
artificial breaks (including certain non-jurisdictional features), some
of which may involve subsurface flow as described above in section
IV.C.4.b of this preamble.
In evaluating the flowpath from a water feature, the agencies can
use USGS maps; NWI data; Tribal, State, and local knowledge or maps;
dye tests, tracers, or other on the ground tests; field observations;
aerial photography; or other remote sensing information. The agencies
can also use available models, including models developed by Federal,
Tribal, State, and local governments, academia, and the regulated
community.\100\ These tools could be used in conjunction with field
observations, data, and other desktop tools to evaluate whether a
tributary flows directly or indirectly to a paragraph (a)(1) water. For
tributaries to paragraph (a)(2) impoundments, a flowpath to the
impoundment and to a paragraph (a)(1) water can be identified using
these same tools.
---------------------------------------------------------------------------
\100\ One such model includes the USGS StreamStats ``Flow
(Raindrop) Path'' GIS tool which allows the user to click a point on
a map, after which a flowpath is drawn to estimate where water may
flow from that point to the stream network, eventually making its
way to the ocean if the tributary network allows for it available at
https://streamstats.usgs.gov/ss/. The StreamStats tool may
potentially be used to identify the flowpath from the subject waters
to the downstream paragraph (a)(1) water using the ``Flow (Raindrop)
Path'' component of the tool.
---------------------------------------------------------------------------
ii. Determining Whether a Tributary Meets the Relatively Permanent
Standard
Under this rule, tributaries that meet the relatively permanent
standard are jurisdictional under the Clean Water Act as ``waters of
the United States.'' In implementing the relatively permanent standard,
the agencies draw key concepts from the 2020 NWPR's interpretation, but
modify that rule's approach to ensure the term can be practically
implemented. Specifically, under this rule the relatively permanent
standard encompasses surface waters that have flowing or standing water
year-round or continuously during certain times of the year. Relatively
permanent waters do not include surface waters with flowing or standing
water for only a short duration in direct response to precipitation.
The approach in this rule would encompass tributaries considered
relatively permanent under the 2020 NWPR, as well as those considered
relatively permanent under the Rapanos Guidance, providing continuity
in approach for the regulated community and other stakeholders.
Tributaries that do not meet the relatively permanent standard must be
assessed under the significant nexus standard. See section IV.C.4.c.iii
of this preamble.
The agencies' interpretation of relatively permanent tributaries to
include surface waters that have flowing or standing water year-round
or continuously during certain times of the year is consistent with the
Rapanos plurality's interpretation of ``waters of the United States.''
The Rapanos plurality interpreted ``waters of the United States'' as
encompassing ``relatively permanent, standing or continuously flowing
bodies of water,'' including streams, rivers, oceans, lakes, and other
bodies of waters that form geographical features. 547 U.S. at 739, 742.
The 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); see also 85 FR 22289 (April 21, 2020) (citing the same
language from the plurality in support of the 2020 NWPR's
interpretation of relatively permanent waters).
[[Page 3085]]
The agencies have decided to implement this approach because it is
consistent with the Rapanos plurality opinion, it reflects and
accommodates regional differences in hydrology and water management,
and it can be implemented using available, easily accessible tools. It
will therefore be a straightforward approach for the agencies and the
regulated community to implement. In addition, maintaining an
interpretation that encompasses the tributaries considered relatively
permanent under the pre-2015 regulatory regime and the 2020 NWPR
addresses the many comments from stakeholders emphasizing the need for
clarity and certainty in the scope of ``waters of the United States.''
``Flowing water'' under this rule is meant to encompass not just
streams and rivers, but also lakes, ponds, and impoundments that are
part of the tributary system, as such waters outlet to the tributary
network and contribute flow downstream at the outlet point. In
addition, ``flowing water'' under this rule is meant to encompass those
tributaries that are frozen for parts of the year. Such tributaries
typically have flowing water underneath the frozen surface.
The phrase ``certain times of the year'' is intended to include
extended periods of standing or continuously flowing water occurring in
the same geographic feature year after year, except in times of
drought. The defining characteristic of relatively permanent waters
with flowing or standing water continuously during only certain times
of the year is a temporary lack of surface flow, which may lead to
isolated pools or dry channels during certain periods of the year. The
phrase ``direct response to precipitation'' is intended to distinguish
between episodic periods of flow associated with discrete precipitation
events versus continuous flow for extended periods of time.
A number of commenters suggested that the agencies interpret
relatively permanent tributaries to include those that flow year-round
or at least seasonally (e.g., typically three months), consistent with
the approach in the Rapanos Guidance. This rule encompasses tributaries
that are ``relatively permanent'' under the Rapanos Guidance. However,
the agencies have decided not to use the term ``seasonal'' from the
Rapanos Guidance for several reasons. First, the agencies have
determined that directly describing the scenarios in which waters would
be ``relatively permanent'' is clearer than using the term
``seasonal,'' the meaning of which can vary and could be misunderstood
to establish a specific required flow duration. See section
IV.C.4.c.ii.1 of this preamble for further discussion of the challenges
of requiring a specific flow duration. Relatively permanent flow may
occur seasonally, but the phrase is also intended to encompass
tributaries in which extended periods of standing or continuously
flowing water are not linked to naturally recurring annual or seasonal
cycles. Specifically, relatively permanent waters may include
tributaries in which flow is driven more by various water management
regimes and practices, such as tributaries with extensive flow
alteration (e.g., diversions, bypass channels, water transfers) and
effluent-dependent streams. For example, in areas of the West where
water withdrawals or groundwater pumping can substantially modify flow
characteristics, onset and cessation of streamflow in some tributaries
may be more closely tied to changes in water use associated with
irrigation than with seasons of the year. In such flow-altered
tributaries, streamflow may change abruptly throughout the year due to
adjustments in facility operations or may vary from year to year due to
changes in water rights or water management regimes. In addition,
tributaries that typically flow throughout the spring may run dry in
years following a drought while storage reservoirs are being refilled.
When evaluating these types of artificially manipulated regimes, the
agencies may consider information about the regular manipulation
schedule and may potentially consider other remote resources or on-site
information to assess flow frequency.
Other commenters recommended defining relatively permanent
tributaries using the 2020 NWPR's terms ``perennial'' and
``intermittent.'' Relatively permanent tributaries under this rule
encompass tributaries that were jurisdictional under the 2020 NWPR.
However, the agencies have decided to explain directly the way that the
relatively permanent standard should be implemented, rather than
defining the phrase with these terms. As evidenced by the variety of
comments proposing definitions for ``perennial'' and ``intermittent,''
adding these terms to this rule could cause confusion and uncertainty.
Moreover, many definitions of intermittent incorporate ``seasonal''
flow, a concept that the agencies decided not to employ in this rule
for the reasons discussed above. Other definitions of ``perennial'' and
``intermittent'' that commenters suggested would require specific
sources of flow, which the agencies also decided not to establish in
this rule because such requirements cannot readily apply to
hydrologically altered waters, and for the reasons discussed in section
IV.C.4.c.ii.2 of this preamble.
While this rule implements the scope of relatively permanent
tributaries consistent with the approach in the 2020 NWPR, it does not
retain the 2020 NWPR's requirement that the tributaries contribute
surface water flow to a paragraph (a)(1) water in a ``typical year.''
See 85 FR 22251 (April 21, 2020). The 2020 NWPR defined a ``typical
year'' as when ``precipitation and other climatic variables are within
the normal periodic range (e.g., seasonally, annually) for the
geographic area of the applicable aquatic resource based on a rolling
thirty-year period.'' As discussed in section IV.B.3 of this preamble
and section II.B.iv.1 of the Technical Support Document, the typical
year analysis proved difficult to implement and yielded arbitrary and
potentially outdated results. Moreover, it is not required by the
plurality opinion in Rapanos, which simply required a ``connect[ion]''
to paragraph (a)(1) waters. See 547 U.S. at 742 (describing a
```wate[r] of the United States''' as ``i.e., a relatively permanent
body of water connected to traditional interstate navigable waters'').
This rule's requirement that jurisdictional tributaries flow directly
or indirectly to downstream paragraph (a)(1) waters or paragraph (a)(2)
impoundments implements the plurality's ``connect[ion]'' requirement.
See also section IV.C.4.b of this preamble.
(1) Duration and Timing of Flow for Relatively Permanent Tributaries
Many commenters recommended that the agencies establish a
particular flow duration for relatively permanent waters. Suggestions
ranged from a minimum of three months to 290 days. The agencies decided
not to establish a minimum duration because flow duration varies
extensively by region. Establishing a uniform number equally applicable
to the deserts in the arid West, the Great Lakes region, and New
England forests would not be scientifically sound. The agencies instead
have chosen to establish a more flexible approach to implementing this
rule that accounts for specific conditions in each region. Moreover, it
would often be infeasible for the regulated community or agency staff
to determine whether a stream ordinarily flows or whether a lake
contains standing water, for example, 12 weeks as opposed to 11 weeks
per year. Even if this determination was possible, such a bright line
cutoff would not reflect
[[Page 3086]]
hydrological diversity among different regions and alterations in flow
characteristics. The agencies' conclusion that a minimum duration is
not feasible is consistent with the pre-2015 regulatory regime, which
did not establish a bright line cutoff (though provided three months as
an example of seasonal flow) and with the approach of the 2020 NWPR.
See 85 FR 22292 (April 21, 2020) (``The agencies are not providing a
specific duration (e.g., the number of days, weeks, or months) of
surface flow that constitutes intermittent flow, as the time period
that encompasses intermittent flow can vary widely across the country
based upon climate, hydrology, topography, soils, and other
conditions.'').
Many factors, including climate, hydrology, topography, soils, and
other conditions, may affect the period in which relatively permanent
flow may occur for those relatively permanent waters that do not have
continuously flowing or standing water year-round. The factors which
affect streamflow and flow cessation are climatically and
geographically specific and therefore the periods during which a
tributary might have relatively permanent flow vary by region. Non-
relatively permanent tributaries are similarly diverse, and the
mechanisms which differentiate relatively permanent flow from non-
relatively permanent flow also vary by region.
For example, in parts of the Southeastern United States,
precipitation is distributed somewhat uniformly throughout the year,
but increased evapotranspiration during the growing season can reduce
surficial ground water levels and reduce or remove surface flows late
in the growing season (e.g., late summer or early autumn).
Consequently, certain streams in the Southeast may flow primarily in
the winter or early spring. Non-relatively permanent tributaries in the
Southeast may often be characterized by the repeated sequence of
streamflow, flow cessation, and channel drying throughout the year,
where the onset of streamflow coincides with distinct rainfall events
and is driven primarily by storm runoff. Streamflow in these systems
may persist anywhere from a few hours to days at a time, where the
cessation of flow is most often associated with termination of overland
flow, hillslope runoff recession, and the depletion of water in
saturated soils. Although streamflow in these tributaries may occur
regularly, off and on, over the duration of a season or longer, they do
not exhibit continuously flowing water for an extended period at any
point during the year. In other areas of the United States, snowpack
melt drives streamflow more than rainfall, and relatively permanent
flow may therefore coincide with warming temperatures in the spring or
early summer.
Many headwater streams in mountainous regions flow through channels
incised in bedrock with no groundwater interface with the bed of the
stream. Instead, these streams are often fed primarily by high
elevation snowpack melt. The same scenario may also exist in Northern
regions, where flows could be fed almost exclusively through melting
snowpack absent elevated groundwater tables. In these regions,
relatively permanent flows coincide with warming temperatures in the
spring or early summer and may persist well into the summer until there
are no longer enough inputs to sustain surface water, or later into
autumn when more permanent sources of meltwater (e.g., glaciers or
snowfields) begin to freeze. Non-relatively permanent flows in these
regions may occur in basins with thin layers of snow, where snow melts
rapidly at the onset of spring thaw, and the snowmelt produced is not
sufficient to sustain flows for an extended period and into the summer.
To determine the flow characteristics of a tributary for purposes
of implementing this rule, the agencies will evaluate the entire reach
of the tributary that is of the same Strahler \101\ 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; see Technical Support Document section IV.A.ii.1).
The flow characteristics of lakes, ponds, and impoundments that are
part of the tributary network will be assessed in conjunction with the
stream they connect to. Consistent with the pre-2015 regulatory regime,
the agencies will assess the flow characteristics of a particular
tributary at the farthest downstream limit of such tributary (i.e., the
point the tributary enters a higher order stream). Rapanos Guidance at
6 n.24. Where data indicate the flow characteristics at the downstream
limit are not representative of the entire reach of the tributary, the
flow characteristics that best characterize the entire tributary reach
will be used.
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\101\ Strahler, A.N. 1957. ``Quantitative analysis of watershed
geomorphology.'' American Geophysical Union Transactions 38: 913-
920.
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(2) Source of Flow for Relatively Permanent Tributaries
Implementation of the relatively permanent standard for tributaries
in this rule does not require that relatively permanent flow come from
particular sources. This rule's approach is consistent with the
plurality opinion in Rapanos, which lays out the relatively permanent
standard and does not require that relatively permanent waters
originate from any particular source. See, e.g., 547 U.S. at 739. This
rule's approach is also science-based, as the source of a tributary's
flow does not influence its effect on downstream waters, including
paragraph (a)(1) waters. This rule's approach is similar to the
familiar approach taken in the Rapanos Guidance and the 2020 NWPR,
which also did not specify that relatively permanent flow come from
particular sources.
Sources of flow in relatively permanent tributaries may include an
elevated groundwater table that provides baseflow to a channel bed.
Relatively permanent flow could also result from upstream contributions
of flow, effluent flow, or snowpack that melts slowly over time in
certain geographic regions or at high elevations. In addition, in
certain regions relatively permanent flow could result from a
concentrated period of back-to-back precipitation events that leads to
sustained flow through a combination of runoff and upstream
contributions of flow or an elevated groundwater table that provides
baseflow to the channel bed. In contrast, non-relatively permanent
tributaries may flow only during or shortly after individual
precipitation events (including rainfall or snowfall events). Non-
relatively permanent flow may occur simply because it is raining or has
very recently rained, or because a recent snow has melted.
Streamflow that occurs during the monsoon season in certain parts
of the country (typically June through September in the arid West) may
be relatively permanent or non-relatively permanent, depending on the
conditions at the location. Many tributaries in the arid West are
dominated by coarse, alluvial sediments and exhibit high transmission
losses, resulting in streams that often dry rapidly following a storm
event (e.g., within minutes, hours, or days). These streams are not
relatively permanent under this rule. However, relatively permanent
flow may occur as a result of multiple back-to-back storm events
throughout a watershed, during which the combination of runoff and
upstream contributions of flow is high enough to exceed rates of
transmission loss for an extended period of time. Relatively permanent
flow may also follow one or more larger storm events, when
[[Page 3087]]
floodwaters locally recharge the riparian aquifer through bank
infiltration, which supplies sustained baseflow throughout the monsoon
season.
Similar to the 2020 NWPR's approach, the agencies will consider
tributaries that flow in direct response to ``snowfall'' for only a
short duration during or shortly after that snowfall event to be non-
relatively permanent waters under this rule. Streams that flow as a
result of ``snowpack melt'' will be considered relatively permanent
waters under this rule, where snowpack is 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).'' See 85 FR 22275 (April 21, 2020). Tributaries that receive
effluent flow that is relatively permanent will also be assessed under
the relatively permanent standard.
(3) Tools Available To Determine Whether a Tributary Meets the
Relatively Permanent Standard
Section IV.C.4.c.i of this preamble discusses how to determine if
features on the landscape are tributaries. Direct observations and
various remote tools and resources can be used to identify tributary
reaches based on stream order, and topographic characteristics can
assist in determining stream order. USGS topographic map blue line
symbology and contour line patterns can be used to interpret the
connectivity and contribution of flow within a river network, as well
as topography within an evaluation area. Elevation models, including
those based on light detection and ranging (LIDAR) derived data, may
also illustrate tributary connectivity and flow patterns, as well as
topography. In addition, aerial and satellite imagery along with maps
or geospatial mapping products (e.g., NHD, NWI, soil maps, and Tribal,
State, or local maps) can be used to help identify tributary reaches
based on stream order. In addition to remote tools and resources,
factors identified through field observations can be used to help
determine the extent of a tributary reach. For example, tributary
systems can be traversed to identify and characterize the branches of
the network that contribute flow to a particular evaluation area.
Certain geographic features (e.g., non-jurisdictional ditches, swales)
may also be found to contribute to a tributary's surface hydrology.
Many available resources and tools can assist in determining
whether tributaries are relatively permanent. For instance, the
agencies have been working to develop regionalized streamflow duration
assessment methods (SDAMs, available at https://www.epa.gov/streamflow-duration-assessment), which are rapid field-based assessment methods
that can be used to classify streamflow duration and assist in
determining whether tributaries are ``relatively permanent.'' These
methods rely on physical and/or biological field indicators, such as
the presence of hydrophytic vegetation and benthic macroinvertebrates,
that can be collected or observed in a single site visit to determine
the flow duration of a tributary in a reliable and rapid way. EPA, the
Corps, and the State of Oregon developed a regionalized SDAM that has
been validated for use throughout the Pacific Northwest (available at
https://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 the Western Mountains (available at https://www.epa.gov/streamflow-duration-assessment/beta-streamflow-duration-assessment-method-western-mountains). EPA and the Corps are working to develop
additional regionalized SDAMs in other parts of the country. Other
agencies have developed similar tools that may be useful in
implementing this rule.\102\ The agencies, co-regulators, and
stakeholders can use the regionalized field indicators from SDAMs to
quickly and easily identify tributaries that are relatively permanent
as interpreted by the agencies under this rule.
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\102\ 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 https://files.nc.gov/ncdeq/Water%20Quality/Surface%20Water%20Protection/401/Policies_Guides_Manuals/StreamID_v_4point11_Final_sept_01_2010.pdf.
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Remote or desktop tools can also help the agencies and the public
better understand streamflow and whether tributaries have continuously
flowing or standing water year-round or during certain times of the
year for more than for a short duration in direct response to
precipitation.\103\ Satellite imagery and aerial photographs showing
visible water on multiple dates can provide evidence as to whether
tributaries have relatively permanent flow. Aerial photographs may show
other indicators commonly used to identify the presence of an
OHWM.\104\ These indicators 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 an assessment of flow
characteristics for a tributary.
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\103\ 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/wyoming-montana-water-science-center/science/probability-streamflow-permanence-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. NOAA national snow analyses maps can
facilitate the evaluation of seasonal flow from snowmelt (available
at https://www.nohrsc.noaa.gov/nsa/), as can NRCS sources (available
at https://www.wcc.nrcs.usda.gov/snow/), and hydrographs that may
indicate a large increase in stream discharge due to the late
spring/early summer thaws of melting snow.
\104\ See definition of OHWM in section IV.C.8.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/.
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In addition to satellite imagery and 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 LIDAR-derived data can also be used to help
implement this rule.\105\ 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 flow characteristics.
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\105\ 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 identify the
flow characteristics 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.
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Regional field observations can be used to verify desktop
assessments of the relative permanence of a tributary, when necessary.
Geomorphic indicators could include active/relict floodplains,
substrate sorting, clearly defined and continuous bed and banks,
depositional bars and benches, and recent alluvial deposits. Hydrologic
indicators might
[[Page 3088]]
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. As
noted above, the agencies are developing SDAMs for use throughout the
country which evaluate and interpret these indicators and can show
whether tributaries have continuously flowing or standing water year-
round or during certain times of the year for more than a short
duration in direct response to precipitation. Ultimately, multiple
indicators, data points, and sources of information may be used to
determine whether a water, including a tributary, is relatively
permanent.
iii. Determining Whether a Tributary Meets the Significant Nexus
Standard
In evaluating tributaries under the significant nexus standard, the
agencies will determine whether the tributaries, either alone or in
combination with similarly situated waters in the region, significantly
affect the chemical, physical, or biological integrity of paragraph
(a)(1) waters. See section IV.C.9 of this preamble for additional
discussion on the definition of ``significantly affect'' in this rule,
including the factors that will be evaluated and the functions that
will be assessed as part of a significant nexus analysis. The agencies
consider tributaries and their adjacent wetlands to be ``similarly
situated'' waters. The agencies consider similarly situated waters to
be ``in the region'' when they lie within the catchment area of the
tributary of interest. Identifying the catchment area for purposes of
this significant nexus analysis is described below. The agencies
developed this updated evaluation method from the current pre-2015
implementation approach informed by their experience, the best
available science, Supreme Court decisions, and public comments.
Accordingly, in implementing the significant nexus standard under this
rule, all tributaries and adjacent wetlands within the catchment area
of the tributary of interest will be analyzed as part of the
significant nexus analysis.\106\
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\106\ This implementation approach to the region for purposes of
the significant nexus standard is a change from the Rapanos
Guidance. See section IV.C.9.c of this preamble for additional
discussion on implementing the significant nexus analysis.
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For purposes of a significant nexus analysis, the agencies will
identify the ``region'' as the catchment that drains to and includes
the tributary of interest. A catchment is the area of the land surface
that drains to a specific location for a specific hydrologic feature.
Catchments will be delineated from the downstream-most point of the
tributary reach of interest and include the land uphill that drains to
that point. For example, if the tributary of interest is a second order
stream, the catchment would be delineated from the point that the
second order stream enters a third order stream. See discussion of
stream order in section IV.C.4.c.ii.1 of this preamble. Topography and
landscape position influence the size and configuration of a catchment.
There are many existing spatial analysis tools that can be used to
delineate catchments quickly and reliably in most parts of the country.
USGS topographic maps can be manually interpreted to delineate
catchments based on the location of the outlet point (the downstream-
most point of the tributary of interest where the tributary enters a
higher order stream), using calculations informed by topographic
contours, the alignment of topographic high spots, and grouping of
lower, valley bottoms. Various GIS tools, web applications, and
automated modeling systems can also delineate catchments based on one
or more of the many factors that can influence drainage, including
surface topography, climate, land use, the presence of hydrologic
sinks, topology of sewer systems, and design of wastewater treatment
plant service areas.\107\
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\107\ NHDPlus provides delineated catchments for individual
stream segments by linking the mapped stream network to the
landscape. In addition, StreamStats by the USGS (available at
https://streamstats.usgs.gov/ss/) is a map-based web tool that can
delineate drainage areas for streams and estimate flow
characteristics for selected sites based on stream gage data, basin
characteristics, climate, etc. EPA's EnviroAtlas Interactive Map
(available at https://www.epa.gov/enviroatlas/enviroatlas-interactive-map) has a wide variety of tools that can help delineate
catchments, including a tool that illustrates how precipitation will
flow over the land surface, mapped elevation profiles for selected
tributaries, and designations of upstream and downstream watersheds
within a stream network.
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After identifying the catchment, the next step is to identify the
tributaries within the catchment under the agencies' longstanding
interpretation of tributary, see section IV.C.4.a of this preamble
above, and any of their adjacent wetlands within the catchment area.
See section IV.C.5 of this preamble for additional discussion on how to
identify adjacent wetlands. The agencies' longstanding practice in
conducting the significant nexus analysis is to assess a tributary in
combination with wetlands that meet the definition of ``adjacent''
under the regulations. Rapanos Guidance at 10. This approach to the
significant nexus analysis recognizes the ecological relationship
between the tributaries and their adjacent wetlands, and the role those
similarly situated waters have in influencing the chemical, physical,
or biological integrity of paragraph (a)(1) waters. See section
III.E.iii of the Technical Support Document. For purposes of this rule,
the agencies will therefore assess the tributaries and their adjacent
wetlands in a catchment. If the tributaries in the region, including
the tributary under assessment, have no adjacent wetlands, the agencies
consider only the factors and functions of the tributaries in
determining whether there is a significant effect on the chemical,
physical, or biological integrity of downstream paragraph (a)(1)
waters. If any of the tributaries in the region, including the
tributary under assessment, have adjacent wetlands, the agencies will
consider the factors and functions of the tributaries, including the
tributary under assessment, together with the functions performed by
the wetlands adjacent to the tributaries in the catchment, in
evaluating whether a significant nexus is present.
In conducting a significant nexus analysis under this rule, the
agencies will evaluate 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. To understand the chemical, physical, and
biological functions provided by tributaries and their adjacent
wetlands, and the effects those functions have on paragraph (a)(1)
waters, it is important to use relevant geographic water quality data
in conjunction with site-specific data from field sampling and
hydrologic modeling. See section IV.C.9.c of this preamble for
additional discussion on implementing the significant nexus analysis;
see also section IV.C.10 of this preamble.
5. Adjacent Wetlands
a. This Rule
Consistent with the proposal, this rule retains the adjacent
wetlands provision of the 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 the law, the science,
and agency expertise. Aquatic resources that meet this rule's
definitions of ``wetlands'' and ``adjacent'' are assessed under this
provision where they are adjacent to traditional navigable waters, the
territorial seas, interstate waters,
[[Page 3089]]
impoundments of jurisdictional waters, and tributaries.
As discussed further in section IV.C.8.a of this preamble, in this
rule the agencies are retaining their longstanding definition of
``wetlands'' from the 1986 regulations: ``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.''
Additionally, as discussed further in section IV.C.8.b of this
preamble, in this rule the agencies are retaining their longstanding
definition of ``adjacent'' unchanged for most of the past 45 years,
which provides: ``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.' '' Under this definition, adjacency is focused on
the distance between the wetland and the jurisdictional water. Whether
the distance between the wetland and the jurisdictional water qualifies
the wetland as bordering, contiguous, or neighboring (and therefore
``adjacent'') depends on the factual circumstances. The agencies have
three well-established criteria to determine adjacency; if any one of
the criteria is met, the wetland is ``adjacent,'' but may require
further analysis to determine if it is ``waters of the United States.''
See Rapanos Guidance at 5-8. First, there is an unbroken surface or
shallow subsurface connection to a jurisdictional water, which can be
established, for example, where the wetland directly abuts the
jurisdictional water or by a non-jurisdictional physical feature that
provides the direct connection between the wetland and a jurisdictional
water, such as a pipe, culvert, non-jurisdictional ditch, or flood
gate, that has at least periodic flow. Second, the wetland is
physically separated from a jurisdictional water by human-made dikes or
barriers, or natural landforms (e.g., river berms, beach dunes). Or
third, the wetland's proximity to a jurisdictional water is reasonably
close such that ``adjacent wetlands have significant effects on water
quality and the aquatic ecosystem.'' Riverside Bayview, 474 U.S. at 135
n.9. The agencies conclude that close proximity between an adjacent
wetland and a jurisdictional water means the wetland can modulate water
quantity or water quality in the jurisdictional water, and the
jurisdictional water can modulate water quantity or quality in the
wetland. See section IV.C.5.c of this preamble for further discussion
on the implementation of this provision and the three criteria. The
agencies have not established a specific distance limitation in the
rule beyond which wetlands are never adjacent because whether a wetland
is reasonably close such that the wetland can modulate water quantity
or quality in the jurisdictional water or the jurisdictional water can
modulate water quantity or quality in the wetland as part of the same
aquatic ecosystem, depends on regional variations in climate,
landscape, and geomorphology. But the agencies can state based on
nearly 45 years of implementation of this definition that in a
substantial number of cases, adjacent wetlands abut (touch) a
jurisdictional water. And, on the whole, nationwide, adjacent wetlands
are within a few hundred feet from jurisdictional waters (and in the
instances where the distance is greater than a few hundred feet,
adjacency is likely supported by a pipe, non-jurisdictional ditch,
karst geology, or some other feature that connects the wetland directly
to the jurisdictional water). Because of regional variability and its
effects on proximity for purposes of adjacency, wetlands in the arid
West--where rainfall is generally lower, evaporation rates are higher,
and riparian areas and floodplains do not extend far from the tributary
network--are likely to be much closer than a few hundred feet to be
considered adjacent under this rule. On the other hand, where the
jurisdictional water is wide, topography is flat lending to larger
floodplains and riparian areas, and rainfall is higher, wetlands are
more likely to be determined to be reasonably close where they are a
few hundred feet from that tributary because the site-specific
conditions contribute to the close relationship between the wetland and
the jurisdictional water, including any unbroken surface or shallow
subsurface hydrologic connections between the waters.
While bright-line rules (for example, wetlands that are more than a
specific number of feet from a jurisdictional water are not
``adjacent'') are easiest to understand and implement, convenience is
not the only goal the agencies must consider in administering the Clean
Water Act. Because the relationship between a wetland and a proximate
jurisdictional water can depend upon a number of site-specific factors,
like climate, geomorphology, landscapes, hydrology, and size of the
jurisdictional water (e.g., the ocean compared to a headwater stream),
and because the central purpose of the Act is to protect the integrity
of the nation's waters, a more nuanced analysis is required. While
science says that all things being equal, distance, location in a
riparian area or floodplain, or discrete hydrologic connections are
more likely to strengthen the relationship between a wetland and a
nearby water, science does not provide bright lines on appropriate
distances to determine adjacency. In implementing this provision over
the years, the agencies have worked hard to balance the desire for
clarity and predictability with the agencies' scientific understanding
of the resources Congress has charged the agencies with protecting. The
agencies have carefully considered options for nationally applicable
bright lines with respect to adjacency, such as establishing that any
wetland within a certain number of feet from a jurisdictional tributary
is per se jurisdictional, in order to facilitate implementation of the
Clean Water Act and to minimize the burden on both landowners and the
agencies to evaluate the scope of ``waters of the United States.''
However, the United States is a vast country with many different types
of waters, watersheds, landscapes, and hydrology. In fact, in the 2015
Clean Water Rule the agencies sought to establish a distance-based
bright line for determining adjacency. As discussed in section IV.B.1
of this preamble, that rule was immediately challenged, and the
distance-based limitations were a substantial factor in many of the
challenges. As the Supreme Court itself has recognized, the scope of
Clean Water Act jurisdiction does not easily 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. Ultimately, for purposes of this rule, the agencies
concluded that there was not a reasoned basis, consistent with the text
of the statute, to establish such a regulatory bright line.
The adjacent wetlands provision in the 1986 regulations defined
``waters of the United States'' to include wetlands adjacent to
traditional navigable waters, interstate waters, paragraph (a)(3)
``other waters,'' impoundments of ``waters of the United States,''
tributaries, and the territorial seas. This rule provides additional
constraints on jurisdiction relative to the 1986 regulatory text by
[[Page 3090]]
defining ``waters of the United States'' to include: (1) wetlands
adjacent to traditional navigable waters, the territorial seas, and
interstate waters; (2) wetlands adjacent to and with a continuous
surface connection to relatively permanent paragraph (a)(2)
impoundments or jurisdictional tributaries when the jurisdictional
tributaries meet the relatively permanent standard; and (3) wetlands
adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries
when the wetlands meet the significant nexus standard. In other words,
for wetlands adjacent to waters that are not paragraph (a)(1) waters,
an additional showing of a continuous surface connection to a
relatively permanent water or of a significant nexus to a paragraph
(a)(1) water is required. The determination of whether a wetland is
``adjacent'' is distinct from whether an ``adjacent'' wetland meets the
relatively permanent standard; however, wetlands that have a continuous
surface connection to a relatively permanent water meet the definition
of ``adjacent'' and thus are a subset of adjacent wetlands. See section
IV.C.5.c of this preamble for further information related to
implementing the final rule's adjacent wetlands provision.
Under this rule, the relatively permanent standard and the
significant nexus standard are independent jurisdictional standards.
Under the relatively permanent standard for adjacent wetlands, wetlands
meet the continuous surface connection requirement if they physically
abut, or touch, a relatively permanent paragraph (a)(2) impoundment or
a jurisdictional tributary when the jurisdictional tributary meets the
relatively permanent standard, or if the wetlands are connected to
these waters by a discrete feature like a non-jurisdictional ditch,
swale, pipe, or culvert. A natural berm, bank, dune, or similar natural
landform between an adjacent wetland and a relatively permanent water
does not sever a continuous surface connection to the extent it
provides evidence of a continuous surface connection. Again, the
determination of whether a wetland is ``adjacent'' under the rule is
distinct from whether an ``adjacent'' wetland has a continuous surface
connection. See section IV.C.5.c of this preamble, below, for further
discussion of implementation of the final rule's adjacent wetlands
provision.
The agencies have amended the regulatory text from the proposed
rule to be clearer that a wetland adjacent to but lacking a continuous
surface connection to a tributary that is relatively permanent must be
assessed under the significant nexus standard. For example, if a
wetland is ``neighboring'' to a tributary that is relatively permanent,
and thus ``adjacent,'' but lacks a continuous surface connection to
that tributary, the wetland would need to be assessed under the
significant nexus standard in order to determine its jurisdictional
status. This is consistent with pre-2015 practice under the Rapanos
Guidance for wetlands adjacent to relatively permanent tributaries and
was the agencies' intent under the proposed rule language. See Rapanos
Guidance at 8; 86 FR 69423 (``Wetlands adjacent to relatively permanent
tributaries but that lack a continuous surface connection to such
waters would then be assessed under the significant nexus [standard],
along with the tributary.'').
In addition, under this rule, wetlands adjacent only to paragraph
(a)(5) waters cannot be considered for jurisdiction under the paragraph
(a)(4) adjacent wetlands category, which represents a change from the
1986 regulations. Instead, such wetlands could be considered for
jurisdiction solely under paragraph (a)(5) of this rule.
Further, in this rule, the agencies are deleting the parenthetical
from the 1986 regulations that limited the scope of jurisdictional
adjacent wetlands to wetlands adjacent to waters ``(other than waters
that are themselves wetlands)'' for the reasons discussed below.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies received numerous comments on the scope and
implementation of the adjacent wetlands provision.
i. Comments on the Adjacent Wetlands Provision
The agencies received a wide range of comments on adjacent
wetlands. Some commenters stated that they agreed with the agencies'
approach in the proposed rule for adjacent wetlands, with several
adding that they believed the proposed rule's approach to adjacency was
consistent with prior practice, the relevant case law, the statute, the
Constitution, or congressional intent. Other commenters disagreed and
stated that the agencies' approach was not consistent with case law,
the statute, the Constitution, or congressional intent. Many of those
commenters stated that wetlands should only be jurisdictional if they
meet the relatively permanent standard. Other commenters requested
greater jurisdictional protections for wetlands due to the many
functions that they provide that benefit downstream waters, with some
commenters requesting that adjacent wetlands be treated as
categorically jurisdictional, similar to the 2015 Clean Water Rule.
After careful consideration of public comments and for the reasons
described in this preamble, the agencies are promulgating the adjacent
wetlands provision of this rule with minimal changes to the proposed
rule. For wetlands adjacent to paragraph (a)(1) waters, adjacency alone
supports jurisdiction. For wetlands that are adjacent to waters that
are not paragraph (a)(1) waters, like tributaries, this rule
establishes an additional limitation on jurisdiction. In that case, the
adjacent wetlands are jurisdictional only if they meet either the
relatively permanent standard or the significant nexus standard. The
agencies agree with commenters who stated that the proposed rule's
approach to adjacent wetlands was generally consistent with prior
practice and consistent with the relevant case law, the statute, the
Constitution, and congressional intent, and thus disagree with
commenters who took the contrary view. This rule defines ``waters of
the United States'' to include adjacent wetlands and reflects the
agencies' interpretation of the statutory limits on the scope of the
``waters of the United States'' informed by the text of the relevant
provisions of the Clean Water Act and the statute as a whole, relevant
Supreme Court decisions, the scientific record, the agencies'
experience and technical expertise, and consideration of public
comments on the proposed rule. The agencies disagree with commenters
who stated that only adjacent wetlands that meet the relatively
permanent standard should be considered jurisdictional. As discussed
further in section IV.A.3.a.ii of this preamble, the agencies have
concluded that the relatively permanent standard is administratively
useful but is insufficient as the sole standard for geographic
jurisdiction under the Clean Water Act because it is inconsistent with
the Act's text and objective. Protecting only waters that meet the
relatively permanent standard also runs counter to the scientific
principles underlying protection of water quality. The agencies thus
are promulgating an approach to adjacent wetlands that includes, but
that is not limited to, the relatively permanent standard. The
ecological relationship between jurisdictional waters 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 scientific literature
[[Page 3091]]
also supports the conclusion that adjacent wetlands, either alone or in
combination with similarly situated waters, provide many important
functions that can significantly affect the chemical, physical, and
biological integrity of paragraph (a)(1) waters. See Technical Support
Document section III.B. Section IV.A of this preamble provides
additional information about the legal basis for the agencies'
conclusions in this rule and the scientific support for the rule's
provisions regarding adjacent wetlands. The agencies are not making
additional categorical determinations of jurisdiction based on the
significant nexus standard, as described further in section IV.A of
this preamble. Even under the 2020 NWPR, which purported to enhance
clarity, a landowner could not tell simply by looking at their property
whether it contained ``waters of the United States'' because, in the
case of adjacent wetlands, it was necessary to determine (1) whether
the property contained a wetland as defined in the regulations, (2)
whether there was evidence of a continuous surface connection between
the wetland and a water that was part of the tributary network of a
traditional navigable water or the territorial seas, (3) whether there
was evidence that the continuous surface connection occurred in a
``typical year,'' as the rule defined that term, and (4) in the case of
a continuous surface connection based on inundation, whether the
inundation originated in the jurisdictional water (relevant to
adjacency under that rule) or the wetland (irrelevant to adjacency
under that rule).
The challenge inherent in establishing bright lines to address the
complex and variable ways in which waters move in different regions
across the country is longstanding. As the Supreme Court itself has
recognized, the scope of Clean Water Act jurisdiction does not easily
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. Further, as early
Supreme Court decisions recognized, the Clean Water Act replaced a
system whereby water quality protection had to be resolved through
litigation in which courts had to apply ``often vague and indeterminate
nuisance concepts and maxims of equity jurisprudence.'' City of
Milwaukee, 451 U.S. at 317. The Clean Water Act replaced this
unpredictable and inefficient approach with ``a comprehensive
regulatory program supervised by an expert administrative agency,''
id., including a ``uniform system of interstate water pollution
regulation,'' Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992). Shrinking
Federal jurisdiction, as the 2020 NWPR did, for example, would place
many waters back within the ``vague and indeterminate'' legal regime
that the Supreme Court recognized the Clean Water Act was designed to
replace. See 451 U.S. at 317.
The agencies also received a variety of comments critiquing or
supporting various past practice and rulemaking approaches to adjacency
including the pre-2015 regulatory regime, the 2015 Clean Water Rule,
and the 2020 NWPR. The agencies are retaining their longstanding
definition of adjacency and establishing an approach to adjacency that
is generally consistent with the pre-2015 regulatory regime, with some
changes to implementation discussed below. The agencies are rejecting
certain aspects of the 2020 NWPR's approach to adjacent wetlands for
the reasons discussed in this section and section IV.B.3 of this
preamble. The definition of ``adjacent wetlands'' in the 2020 NWPR
failed to advance the objective of the Clean Water Act. It also was
inconsistent with scientific information about the important effects of
wetlands that do not abut jurisdictional waters and that lack evidence
of specific surface water connections to such waters on the integrity
of paragraph (a)(1) waters. In addition, key elements of the 2020
NWPR's definition of ``adjacent wetlands'' were extremely difficult to
implement. These deficiencies are reflected in substantial losses of
Federal protections on the ground. See section IV.B.3 of this preamble.
The agencies are maintaining the approach of the pre-2015 regulatory
regime and the 2015 Clean Water Rule under which wetlands adjacent to
traditional navigable waters, the territorial seas, and interstate
waters are jurisdictional without need for further determinations, but
the agencies are not determining that any additional adjacent wetlands
are categorically jurisdictional in this rule. The agencies have
authority to determine which tributaries and their adjacent wetlands
are jurisdictional either through regulations or adjudication. See
Rapanos, 547 U.S. at 780-81 (Kennedy, J., concurring in the judgment);
see also NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974). With
respect to wetlands adjacent to waters other than paragraph (a)(1)
waters, the agencies have decided to proceed through case-specific
jurisdictional determinations under this rule, rather than through
categorical determinations by rule.
The agencies will continue to assert jurisdiction over wetlands
adjacent to traditional navigable waters, the territorial seas, and
interstate waters without need for further assessment, as they did
under the 1986 regulations and the Rapanos Guidance. Indeed, in
Rapanos, at least five Justices agreed that wetlands adjacent to
traditional navigable waters are ``waters of the United States.'' See
Rapanos, 547 U.S. at 780 (Kennedy, J., concurring in the judgment)
(``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. at 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
paragraph (a)(1) waters, depends upon the functions provided by
upstream tributaries, adjacent wetlands, and paragraph (a)(5) waters.
Under this rule, the agencies also define ``waters of the United
States'' to include wetlands adjacent to the territorial seas without
need for further assessment, as they did under the 1986 regulations, as
the territorial seas are categorically protected under the Clean Water
Act. Additionally, under this rule the agencies continue to define
``waters of the United States'' to include wetlands adjacent to
interstate waters without need for further assessment since interstate
waters, like traditional navigable waters and the territorial seas, are
waters clearly protected by the Clean Water Act. See section IV.C.2 of
this preamble for further discussion of traditional navigable waters,
the territorial seas, and interstate waters.
The agencies are retaining the 1986 regulations' coverage of
wetlands adjacent to paragraph (a)(2)
[[Page 3092]]
impoundments and wetlands adjacent to tributaries to paragraph (a)(2)
impoundments, updated to include the requirement that the wetlands also
meet either the relatively permanent or significant nexus standard. As
discussed above in section IV.C.3 of this preamble, the agencies'
longstanding interpretation of the Clean Water Act is that ``waters of
the United States'' remain ``waters of the United States'' even if
impounded. Since the impoundment does not ``denationalize'' the
``waters of the United States,'' see S.D. Warren, 547 U.S. at 379 n.5,
the agencies similarly interpret the Clean Water Act to continue to
protect wetlands adjacent to the paragraph (a)(2) impoundment and
adjacent to jurisdictional tributaries to the impoundment where those
wetlands meet the relatively permanent standard or the significant
nexus standard. See section IV.C.3 of this preamble for additional
discussion of impoundments under this rule.
The agencies are also deleting the cross reference to paragraph
(a)(5) waters as waters to which wetlands may be adjacent to be
determined ``waters of the United States'' under the adjacent wetlands
category of this rule. This change reflects the agencies' consideration
of the jurisdictional concerns and limitations of the statute, informed
by 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 paragraph (a)(5) waters would
have too tenuous a connection to paragraph (a)(1) waters. Rather, any
such wetlands that are adjacent only to paragraph (a)(5) waters would
be assessed themselves under paragraph (a)(5) of this rule to determine
if they meet the relatively permanent or significant nexus standard.
For example, a wetland adjacent to a lake that meets the significant
nexus standard under paragraph (a)(5) would itself need to be assessed
under paragraph (a)(5) to determine whether it significantly affects
the chemical, physical, or biological integrity of a paragraph (a)(1)
water. See section IV.C.6.c of this preamble for further discussion on
implementation of paragraph (a)(5) waters.
The agencies have removed the parenthetical ``(other than waters
that are themselves wetlands)'' from the regulatory text because it has
caused confusion for the public and the regulated community and is
unnecessary. The parenthetical from the 1986 regulations limited the
scope of jurisdictional adjacent wetlands to wetlands adjacent to
waters ``(other than waters that are themselves wetlands).'' Under that
provision, a wetland was not jurisdictional simply because it was
adjacent to another adjacent wetland or to a wetland jurisdictional
under paragraph (a)(3) of the 1986 regulations. The provision has
created confusion under the pre-2015 regulatory regime, as some have
asserted that a wetland that is indeed adjacent to a jurisdictional
tributary, but that is separated from that tributary by another
adjacent wetland, should not be determined to be a jurisdictional
adjacent wetland because of that parenthetical. Several commenters
discussed the parenthetical in the 1986 regulation's ``adjacent
wetlands'' category. Most of those commenters were in favor of removing
the parenthetical, claiming that it created ``confusion'' and citing
concerns that the parenthetical could improperly limit jurisdiction of
wetlands. Other commenters voiced support for keeping the
parenthetical. Some 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. See Universal Welding & Fabrication, Inc. v. U.S. Army
Corps of Eng'rs, 708 Fed. Appx. 301, 303 (9th Cir. 2017) (observing
that ``[d]espite 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'' and
holding that the Corps' interpretation is ``the most reasonable reading
of the regulation's text''). Therefore, to streamline the regulation
and provide additional clarity, the agencies have deleted the text of
the parenthetical in this rule. In addition, wetlands adjacent to
interstate wetlands or wetlands adjacent to tidal wetlands (which are
traditional navigable waters) are jurisdictional under this rule,
consistent with the 1986 regulations and longstanding practice.
ii. Comments on the Interpretation and Implementation of the Adjacent
Wetlands Provision
The agencies will continue to implement a number of longstanding
interpretations of ``adjacent'' based on scientific principles and
practical administration of the definition with this rule. As stated
previously, the agencies consider wetlands ``adjacent'' if one of the
following three criteria is satisfied. First, there is an unbroken
surface or shallow subsurface connection to jurisdictional waters. All
wetlands that directly abut jurisdictional waters have an unbroken
surface or shallow subsurface connection because they physically touch
the jurisdictional water. Wetlands that do not directly abut a
jurisdictional water may have an unbroken surface or shallow subsurface
connection to jurisdictional waters. Water does not need to be
continuously present in the surface or shallow subsurface connection.
Second, they are physically separated from jurisdictional waters by
human-made dikes or barriers, or natural landforms (e.g., river berms,
beach dunes). Or third, their proximity to a jurisdictional water is
reasonably close. Wetlands that meet one of these three criteria are
considered bordering, contiguous, or neighboring for purposes of this
rule.
Several commenters provided input on these three criteria. Some
commenters stated that shallow subsurface hydrologic connections are
appropriate to consider for adjacency, while others stated that such
connections should not be considered. Several commenters stated that
there are regional differences in proximity relevant to adjacency. Some
commenters stated that wetlands should be considered adjacent even if
they are separated by human-made dikes or barriers, natural river
berms, beach dunes and the like, while other commenters did not support
that view.
The agencies agree with commenters who stated that shallow
subsurface connections can be relevant to adjacency and will continue
to use the criteria from pre-2015 practice that an unbroken shallow
subsurface connection between a wetland and another water can
demonstrate adjacency.
While this rule does not explicitly identify regional factors that
influence what is ``reasonably close'' for purposes of adjacency, the
agencies recognize there may be site-specific factors (e.g.,
topography) that influence what is ``reasonably close.'' This rule does
not establish specific distance limitations for adjacency, which helps
ensure that site-specific and regional factors can be considered when a
wetland is being evaluated (see section IV.C.5.c of this preamble,
below).
The agencies agree with commenters who supported the 1986
regulation's definition of ``adjacent'' to include wetlands even if
they are separated by
[[Page 3093]]
natural landforms or human-made barriers for the reasons discussed in
sections IV.A.2.b.ii (explaining that the agencies' longstanding
definition of ``adjacent,'' which includes such wetlands, is a
reasonable foundation for this rule), and IV.C.8.b of this preamble,
and section III.B.ii of the Technical Support Document.
c. Implementation
Under this provision of the rule, wetlands adjacent to traditional
navigable waters, the territorial seas, or interstate waters are
jurisdictional and do not need further analysis to determine if they
are ``waters of the United States.'' Further, wetlands adjacent to
paragraph (a)(2) impoundments and to jurisdictional tributaries are
assessed for jurisdiction under the relatively permanent standard or
significant nexus standard. Wetlands adjacent to but lacking a
continuous surface connection with tributaries that are relatively
permanent must be assessed under the significant nexus standard.
i. Determining the Presence of an Adjacent Wetland
Before determining if a wetland is jurisdictional, the agencies
first determine if the wetland in question meets the definition of
``wetlands'' under this rule (see section IV.C.8.a of this preamble).
In identifying wetlands, the agencies will ordinarily consider all
wetlands within a wetland mosaic collectively. The agencies have long
considered wetland mosaics to be delineated as one wetland. Wetland
mosaics are landscapes where wetland and non-wetland components are too
closely associated to be easily delineated or mapped separately, and
the wetlands in the mosaic generally act as a single ecological unit.
In certain regions where wetland mosaics are common, Corps regional
wetland delineation manuals address how to delineate such wetlands.
Longstanding practice is that wetlands in the mosaic are not
individually delineated, but that the agencies consider the entire
mosaic and estimate percent wetland in the mosaic. See Technical
Support Document section IV.A.iii. These longstanding implementation
approaches for purposes of jurisdictional determinations are supported
by the science (see Technical Support Document section IV.A.iii) and
the technical expertise the agencies have developed through years of
performing these assessments.
Once a feature is identified as a wetland, if the wetland itself is
not jurisdictional under paragraph (a)(1) of this rule as a traditional
navigable water (such as a tidal wetland) or an interstate water, the
agencies assess whether it is adjacent to a traditional navigable
water, territorial sea, interstate water, paragraph (a)(2) impoundment,
or jurisdictional tributary. Wetlands are ``adjacent'' if they are
``bordering, contiguous, or neighboring.'' The agencies consider the
entire wetland to be ``adjacent'' if any part of the wetland is
``adjacent.''
Under this rule's definition and consistent with the agencies'
longstanding definition, adjacency is focused on the distance between
the wetland and the jurisdictional water. Whether the distance between
the wetland and the jurisdictional water qualifies the wetland as
bordering, contiguous, or neighboring (and therefore ``adjacent'')
depends on the factual circumstances, so the agencies will assess
adjacency using the three criteria noted above in section IV.C.5.a of
this preamble. This section of the preamble explains each of the
criteria in further detail. These criteria are consistent with the text
of the regulation, the underlying scientific rationale for defining
``waters of the United States'' to include adjacent wetlands, and pre-
2015 practice. See Rapanos Guidance at 5-6.
The longstanding definition, by its terms, does not require flow
from the wetland to the jurisdictional water or from the jurisdictional
water to the wetland (although such flow in either direction can be
relevant to the determination of adjacency). The Supreme Court in
Riverside Bayview in deferring to the Corps' ecological judgment about
the relationship between waters and their adjacent wetlands as an
``adequate basis for a legal judgment that adjacent wetlands may be
defined as waters under the Act,'' rejected an argument that such
wetlands had to be the result of flow in a particular direction to be
adjacent: ``This holds true even for wetlands that are not the result
of flooding or permeation by water having its source in adjacent bodies
of open water. The Corps has concluded that wetlands may affect the
water quality of adjacent lakes, rivers, and streams even when the
waters of those bodies do not actually inundate the wetlands. For
example, wetlands that are not flooded by adjacent waters may still
tend to drain into those waters. In such circumstances, the 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.' '' 447 U.S at 134 (citing 33 CFR 320.4(b)(2)(iv), (v), (vii)
(1985)).
Wetlands with an unbroken surface or shallow subsurface connection
to jurisdictional waters are adjacent, including those wetlands that
directly abut a jurisdictional water (i.e., they are not separated by
uplands, a berm, dike, or similar barrier from the OHWM of the water to
which they are adjacent). All wetlands that directly abut
jurisdictional waters have an unbroken surface or shallow subsurface
connection because they physically touch the jurisdictional water. An
unbroken surface or shallow subsurface connection to jurisdictional
waters can also be established by a non-jurisdictional physical feature
or discrete conveyance that supports at least periodic flow between the
wetland and a jurisdictional water, such as a pipe, culvert, non-
jurisdictional ditch, or flood gate. Water does not have to be
continuously present in this hydrologic connection and the flow between
the wetland and the jurisdictional water may move in either or both
directions.
A shallow subsurface hydrologic connection is predominantly lateral
water flow through a shallow subsurface layer. Such flows may be found,
for example, in wetlands on slopes, where water seeps through surface
soils to downstream waters, in soils with a restrictive horizon, in the
hyporheic zone, or in karst systems. A shallow subsurface connection
also exists, for example, when the adjacent wetland and the water to
which it is adjacent are in contact with the same shallow aquifer or
with the same shallow water table which fluctuates within the soil
profile, sometimes rising to or near the ground surface. Shallow
subsurface connections can also be maintained as water moves through
karst topography, and through confined human-made subsurface conveyance
systems such as drain tiles and storm sewers. Shallow subsurface
connections may be found below the ordinary root zone (below 12
inches), where other wetland delineation factors may not be present. A
variety of factors may reflect the presence of a shallow subsurface
connection, including position of the wetland in the landscape (for
example, on a slope above the jurisdictional waters), stream
hydrographs, soil surveys (for example, exhibiting indicators of high
transmissivity over an impermeable
[[Page 3094]]
layer), and information indicating that the water table in the stream
is lower than the shallow subsurface. The agencies may also utilize
direct observations in the field or tracer studies to demonstrate
shallow subsurface flow. Shallow subsurface connections convey water
quickly through the soil and impact surface water directly within hours
or days rather than the months or years it may take long pathways to
reach surface waters. However, neither shallow subsurface connections
nor any type of groundwater, shallow or deep, are themselves ``waters
of the United States.'' Some examples of wetlands that are adjacent
under the final rule due to an unbroken surface or shallow subsurface
connection include wetlands that are connected to a tributary via karst
topography, which provide a direct subsurface hydrologic connection
between the wetlands and the tributary and that is traceable via a dye
test, even if those wetlands are more than several hundred feet from
the tributary; and wetlands within a couple of hundred feet of a
tributary, where the subsurface hydrologic connection is demonstrated
via soil maps which demonstrate continuous hydric soils with indicators
of high transmissivity over an impermeable layer between the tributary
and the proximate wetlands. See Technical Support Document section
III.B.ii for additional information on surface and shallow subsurface
hydrologic connections.
If a wetland is separated from a jurisdictional water by man-made
dikes or barriers, natural river berms, beach dunes, and the like, then
the wetlands are adjacent under this rule, consistent with the 1986
regulations. No additional identification of a hydrologic connection
between the wetland and the jurisdictional water is required for such
wetlands to be considered adjacent. For example, a wetland that is
separated from a jurisdictional tributary simply by a 40-foot road
meets the longstanding definition of adjacent. It is also important to
note that natural river berms are formed by sediment deposits
accumulating at or near stream banks during flood events. Such berms
vary in height from inches to feet, and also can be quite wide. With
respect to beach dunes and similar natural landforms, more than one
dune may exist between an adjacent wetland and jurisdictional water
(including primary and secondary dunes), because beach dunes typically
function as an interdunal system (particularly on barrier islands). For
example, interdunal wetlands which are located between dune ridges
would be adjacent.
In some cases, a wetland may be separated from a jurisdictional
water by more than one human-made dike or barrier or multiple types of
barriers and landforms (e.g., a wetland separated by a human-made
barrier and a natural river berm). The agencies will assess such
wetlands consistent with the other adjacency criteria previously
described (i.e., by identifying the presence of an unbroken surface or
shallow subsurface connection or determining that their proximity to a
jurisdictional water is reasonably close).
For purposes of determining whether a wetland is ``adjacent,''
artificial structures do not divide a wetland if a hydrologic
connection is maintained between the divided portions of the wetland.
Rather, the wetland is treated as one wetland. For example, if a
wetland is divided by a road, a culvert could maintain a hydrologic
connection. The agencies may also consider if a subsurface hydrologic
connection is maintained, using indicators such as hydric soils, the
permeability of the artificial structure, and/or the permeability of
the soils below the artificial structure.
Wetlands are also adjacent when their proximity to a jurisdictional
water is reasonably close. The Supreme Court in Riverside Bayview
deferred to the Corps' judgment that adjacent wetlands ``that form the
border of or are in reasonable proximity to'' other ``waters of the
United States'' ``may be defined as waters under the Act.'' Riverside
Bayview, 474 U.S. at 134. Where the wetland is reasonably close to the
jurisdictional water, the agencies have concluded that ``adjacent
wetlands have significant effects on water quality and the aquatic
ecosystem.'' Id. at 135 n.9. The close proximity between an adjacent
wetland and a jurisdictional water means the wetland can modulate water
quantity and water quality in the jurisdictional water, and the
jurisdictional water can modulate water quantity and water quality in
the wetland. For example, wetlands typically help to store floodwaters,
pollutants, and sediments that could otherwise reach the jurisdictional
water to which they are adjacent. They can also provide flow
contributions to the jurisdictional waters to which they are adjacent
during high hydroperiods, where water spills from the wetland to the
nearby jurisdictional water, and such contributions of flow are
facilitated by the wetland's close proximity to the jurisdictional
water. The proximate jurisdictional waters can serve as important
sources of water for adjacent wetlands, for example, through
overtopping events where flow from the jurisdictional waters is stored
in the wetlands. While under this rule the agencies are not
establishing distance limits for adjacency, the agencies recognize that
as the distance between the wetland and jurisdictional water increases,
the reasonableness of the connection between the waters will generally
decrease, particularly in the absence of the type of surface or shallow
subsurface connections described above, and a finding of adjacency is
less likely. The distance between a jurisdictional water and its
adjacent wetlands may vary by region, as well as based on site-specific
factors within regions. In practice, under this criterion, the agencies
have found that adjacent wetlands are on the whole, nationwide, within
a few hundred feet of jurisdictional waters. This can vary from site to
site and region to region due to differences in climate, geomorphology,
landscape setting, hydrology, soils, vegetation, elevation, size of the
jurisdictional water, and other site-specific variables.
Field data, including visual observations, can assist with
determining if a wetland is adjacent. In addition, 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, visual observation, NWI and USGS topographic
maps, elevation data, and NHD data may identify a physical barrier or
illustrate the location of the traditional navigable water, territorial
sea, interstate water, paragraph (a)(2) impoundment, or jurisdictional
tributary; the wetland's proximity to the jurisdictional water; and the
nature of topographic relief between the two aquatic resources. Visual
observations, aerial photographs, or high-resolution satellite imagery
may illustrate hydrophytic vegetation from the boundary (e.g., OHWM for
non-tidal waters or high tide line for tidal waters) of the traditional
navigable water, the territorial seas, the interstate water, the
paragraph (a)(2) impoundment, or the jurisdictional tributary to the
wetland boundary, or the presence of water or soil saturation. Soil
samples or 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. Field work can
help
[[Page 3095]]
confirm the presence and location of the OHWM or high tide line of the
jurisdictional water and can provide additional information about the
wetland's potential adjacency to that water.\108\
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\108\ Field work may include, e.g., traversing the landscape
from the traditional navigable water, territorial sea, interstate
water, paragraph (a)(2) impoundment, or jurisdictional tributary to
the wetland and examining topographic and geomorphic
characteristics, as well as hydrologic and biologic indicators.
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ii. Determining Whether an Adjacent Wetland Meets the Relatively
Permanent Standard
Wetlands that are adjacent to paragraph (a)(1) waters are
jurisdictional without the need for further analysis. Wetlands adjacent
to paragraph (a)(2) impoundments and wetlands adjacent to
jurisdictional tributaries must meet a second requirement to be
jurisdictional as ``waters of the United States'' under this rule--they
must satisfy either the relatively permanent standard or the
significant nexus standard.
Under this rule, adjacent wetlands meet the relatively permanent
standard if they have a continuous surface connection to a relatively
permanent paragraph (a)(2) impoundment or a jurisdictional tributary
when the jurisdictional tributary meets the relatively permanent
standard. As discussed previously in this section of this preamble,
wetlands that have a continuous surface connection to such waters are a
subset of adjacent wetlands. Wetlands that do not have a continuous
surface connection but are adjacent to paragraph (a)(2) impoundments or
jurisdictional tributaries will be evaluated for jurisdiction under the
significant nexus standard. See also section IV.C.5.c.iii of this
preamble.
A continuous surface connection does not require a constant
hydrologic connection. Rather, the agencies will identify a continuous
surface connection consistent with the Rapanos plurality opinion, which
indicates that the continuous surface connection requirement is a
``physical-connection requirement.'' 547 U.S. at 751 n.13; see also
Rapanos Guidance at 7. Wetlands meet the continuous surface connection
requirement if they physically abut or touch a relatively permanent
paragraph (a)(2) impoundment or a jurisdictional tributary when the
jurisdictional tributary meets the relatively permanent standard.
Wetlands also meet the continuous surface connection requirement if
they are connected to relatively permanent waters by a discrete feature
like a non-jurisdictional ditch, swale, pipe, or culvert. This is
because a ditch or other such feature can serve as a physical
connection that maintains a continuous surface connection between an
adjacent wetland and a relatively permanent water. This approach to the
continuous surface connection is supported by the scientific
literature, case law, and the agencies' technical expertise and
experience. As the Court of Appeals for the Sixth Circuit has
explained, ``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.'' United States v. Cundiff,
555 F.3d 200, 213 (6th Cir. 2009) (``Cundiff'') (holding wetlands were
jurisdictional under the Rapanos 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).
Similarly, a natural berm, bank, dune, or similar natural landform
between an adjacent wetland and a relatively permanent water does not
sever a continuous surface connection to the extent it provides
evidence of a continuous surface connection. This approach is
consistent with the agencies' interpretation in the 2020 NWPR that
natural berms and similar natural landforms ``are indicators of a
direct hydrologic surface connection as they are formed through
repeated hydrologic events.'' 85 FR 22311 (April 21, 2020). As the 2020
NWPR explained, ``a natural river berm can be created by repeated
flooding and sedimentation events when a river overtops its banks and
deposits sediment between the river and a wetland.'' Id. (citing
Science Report at A-7). The 2020 NWPR noted that the adjacent wetland
could have been formed at the same time as or after the formation of
the natural river berm due to repeated flooding and the impeded return
flow created by the berm. Natural banks can also provide evidence of a
continuous surface connection because the processes that result in
their formation can also be representative of the interconnected
relationship between the wetlands and the relatively permanent water.
Adjacent wetlands may be separated by a bank from a relatively
permanent water due to an elevation difference between the bank and the
water (e.g., when the stream is incised). The surface water flow of a
tributary over time can erode a channel, which creates a bank
separating the tributary from the adjacent wetland. See 85 FR 22311
(April 21, 2020). In addition, the presence of a beaver dam between a
wetland and a relatively permanent water can be evidence of a
continuous surface connection between the two features, even if the dam
itself blocks surface hydrologic flow for periods of time. Beach dunes
may also separate adjacent wetlands and relatively permanent waters.
Beach dunes are sometimes formed through wind erosion which results in
the sand surface interacting with the water table, providing enough
hydrology to create wetlands. Beach dunes may also be formed when water
levels drop in lakes or from historic glacial retreat. Many interdunal
wetlands have seasonally variable hydroperiods where they may be dry
during periods of low rainfall. All of these processes and the
resulting natural berm, bank, dune, or similar natural landform
indicate that the wetlands are integrated and ``inseparably bound up''
with the relatively permanent waters. See 85 FR 22280 (April 21, 2020)
(citing Rapanos, 547 U.S. at 732 (Scalia, J., plurality opinion)). The
agencies recognize that not all natural berms, banks, dunes, and
similar natural landforms demonstrate evidence of a continuous surface
connection. For example, an adjacent wetland may be separated from a
relatively permanent water by a relict landform like a natural berm
that no longer interacts hydrologically with the tributary network.
Such relict barriers do not demonstrate evidence of a continuous
surface connection and may in fact sever the continuous surface
connection.
While natural barriers may at times occur within a floodplain, the
existence of a floodplain (and other land masses similar to a
floodplain, such as a riparian area or fluvial terrace) generally is
not sufficient to indicate a continuous surface connection. Wetlands
separated from jurisdictional waters by cliffs, bluffs, or canyon walls
also typically do not have a continuous surface connection, and thus
would be assessed under the significant nexus standard. However, if
these cliffs, bluffs, or canyon walls have gaps or built structures
(e.g., culverts, pipes, or waterfalls) that provide for a continuous
surface connection between the adjacent wetlands and the relatively
permanent water, this type of connection would satisfy the physical
connection requirement for a continuous surface connection. The same is
true for dikes or other artificial barriers with gaps or structural
components that allow for a continuous surface connection. For example,
an upland levee that separates an adjacent wetland from a tributary
that is relatively permanent may have gaps along the length of the
levee that
[[Page 3096]]
provide for a physical connection between the wetlands and the
tributary that satisfies the requirement for a continuous surface
connection.
Some commenters asserted that the agencies' use of the relatively
permanent standard in the proposed rule is inconsistent with the
Rapanos plurality opinion because it does not require a continuous
hydrologic connection for adjacent wetlands to be jurisdictional, with
one commenter referencing the agencies' statement in the proposed rule
that a continuous surface connection ``does not require surface water
to be continuously present between the wetland and the tributary.''
Another commenter asserted that the proposed rule's approach to
adjacent wetlands is inconsistent with the Rapanos plurality opinion
because it allows for the continuous surface connection requirement to
be satisfied by physical connections such as non-jurisdictional ditches
with an irregular flow surface connection requirement. The agencies
disagree that the approach in this rule is inconsistent with the
plurality opinion. The plurality opinion indicates that ``continuous
surface connection'' is a ``physical connection requirement.'' Rapanos,
547 U.S. at 751 n.13 (referring to ``our physical-connection
requirement'' and later stating that Riverside Bayview does not reject
``the physical-connection requirement''). This approach to the
continuous surface connection requirement is consistent with the
Rapanos Guidance. Rapanos Guidance at 7 & n.28. A continuous surface
connection is not the same as a continuous surface water connection, by
its terms and in effect. Therefore, because the plurality opinion
requires only a ``continuous surface connection,'' the relatively
permanent standard in this rule, consistent with the plurality opinion,
does not require surface water to be continuously present between the
wetland and the tributary. The agencies also disagree that it is
inconsistent with the plurality opinion for adjacent wetlands to be
considered to meet the continuous surface connection requirement if
they are connected to relatively permanent waters by a discrete feature
like a non-jurisdictional ditch, swale, pipe, or culvert. This is
because a ditch or other such feature can serve as a physical
connection that maintains a continuous surface connection between an
adjacent wetland and a relatively permanent water. This approach to the
continuous surface connection is supported by the scientific
literature, case law, and the agencies' technical expertise and
experience. See Cundiff, 555 F.3d at 213.
The agencies agree with commenters who stated that a continuous
surface connection does not require the continuous presence of surface
water between the adjacent wetland and relatively permanent paragraph
(a)(2) impoundment or jurisdictional tributary when the jurisdictional
tributary meets the relatively permanent standard, and the agencies
continue this longstanding approach in this rule. The agencies'
approach is consistent with science, as well as the longstanding
regulatory definition of ``wetlands,'' which does not require such
aquatic resources to contain surface water. See 33 CFR 328.3(b)(2014)
and 40 CFR 232.2 (2014)(defining wetlands as ``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'' (emphasis added)); see also
Technical Support Document section III.B. Since wetlands frequently do
not contain surface water, a requirement for continuous surface water
between a relatively permanent water and adjacent wetlands would be
illogical as a scientific and practical matter.
The agencies have a variety of tools for determining whether
adjacent wetlands have a continuous surface connection to relatively
permanent waters, or if they are separated from them by natural
landforms or artificial barriers, including the same tools used to
establish adjacency. Visual observations, high-resolution satellite
imagery, NRCS soil maps, USGS topographic maps, and NHD data may show
soil saturation, surface flow patterns and infrastructure crossings
(e.g., roads) that can be used to indicate possible culvert locations.
Visual observations, high-resolution satellite imagery, elevation data
such as LIDAR-based topographic models, and USGS topographic maps may
identify the presence of swales that are located between a wetland and
a relatively permanent water. Similar tools (described below) and
visual observations can be used to identify the potential presence of
natural landforms that can maintain a continuous surface connection and
the potential presence of breaks that may sever a continuous surface
connection. Distinguishing between landforms like upland breaks and
natural berms can be facilitated by assessing their linear extent and
continuity, or observations on how they hydrologically interact with an
associated relatively permanent water.
To assess whether wetlands are separated from relatively permanent
waters by natural landforms or artificial barriers, the agencies can
rely upon a variety of tools. For example, USGS topographic maps may
show topographic highs between the wetland and relatively permanent
water, or simple indices can be calculated based on topography to
indicate where these separations occur and their linear extent. FEMA
flood zone or other floodplain maps may indicate constricted
floodplains along the length of the tributary channel with physical
separation of flood waters. High-resolution elevation data can
illustrate topographic highs between a wetland and tributary channel
that extend along the length of a tributary's channel. Aerial
photographs or high-resolution satellite imagery may illustrate upland
vegetation along the tributary channel between the wetland and
tributary channel, 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 OHWM of a tributary that is relatively
permanent. In addition, field work may confirm whether there is a
continuous physical connection between the wetland and the tributary,
or identify breaks that may sever the continuous surface
connection.\109\
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\109\ Field work may include, e.g., traversing the landscape
from the tributary to the wetland and examining topographic and
geomorphic characteristics, the linear extent of those features, as
well as hydrologic and biologic indicators.
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iii. Determining Whether an Adjacent Wetland Meets the Significant
Nexus Standard
The agencies note again that the determination of adjacency and the
determination of a significant nexus are different and that there are
two key differences. First, adjacency is about the relationship between
a wetland and a jurisdictional water and is based on reasonable
proximity, whereas significant nexus is about the functions provided by
an adjacent wetland to a paragraph (a)(1) water-the significant nexus
assessment is not to the jurisdictional water to which the wetland is
adjacent (if the jurisdictional water is a paragraph (a)(1) water, it
is jurisdictional without a case-specific significant nexus
assessment). Second, a wetland must meet the adjacency standard on its
own, whereas a significant nexus assessment is based on whether an
adjacent wetland alone or in combination with other similarly situated
waters significantly affects the
[[Page 3097]]
integrity of a paragraph (a)(1) water. Once a wetland has been
determined to be ``adjacent,'' if the adjacent wetland does not meet
the relatively permanent standard, the agencies will conduct a
significant nexus analysis to assess if the wetland is jurisdictional.
Under the regulations, the adjacent wetlands which do not meet the
relatively permanent standard and for which a significant nexus
analysis must be conducted are: (1) adjacent wetlands that lack a
continuous surface connection to a relatively permanent paragraph
(a)(2) impoundment or a jurisdictional tributary when the
jurisdictional tributary meets the relatively permanent standard, and
(2) wetlands adjacent to a paragraph (a)(2) impoundment or a tributary
when the paragraph (a)(2) impoundment or the tributary is not
relatively permanent. In evaluating such adjacent wetlands under the
significant nexus standard, the agencies will determine whether the
wetlands, either alone or in combination with similarly situated waters
in the region, significantly affect the chemical, physical, or
biological integrity of paragraph (a)(1) waters. See section IV.C.9 of
this preamble for additional discussion on the definition of
``significantly affect'' in this rule, including the factors that will
be evaluated and the functions that will be assessed as part of a
significant nexus analysis. The agencies consider tributaries and their
adjacent wetlands to be ``similarly situated'' waters. The agencies
consider similarly situated waters to be ``in the region'' when they
lie within the catchment area of the tributary of interest. Therefore,
in implementing the significant nexus standard under this rule, all
tributaries and adjacent wetlands within the catchment area of the
tributary of interest will be analyzed as part of the significant nexus
analysis.
For a significant nexus analysis, the region would be the catchment
that drains to and includes the tributary to which the wetland in
question is adjacent. A catchment is the area of the land surface that
drains to a specific location for a specific hydrologic feature, such
as a tributary. Catchments will be delineated from the downstream-most
point of the tributary reach to which the wetland is adjacent and
include the land uphill that drains to that point, as discussed in
further detail in section IV.C.4.c of this preamble and its
subsections.
After identifying the catchment, the next step is to identify the
tributaries within the catchment under the agencies' longstanding
interpretation of tributary, see section IV.C.4.a of this preamble, and
their adjacent wetlands within the catchment area, see section
IV.C.5.c.i of this preamble. When evaluating whether an adjacent
wetland meets the significant nexus standard, the agencies will
consider the factors in the final rule, along with the functions of the
tributaries in the catchment together with the functions performed by
the wetlands adjacent to the tributaries in the catchment, including
the subject wetland, in relation to the chemical, physical, or
biological integrity of the paragraph (a)(1) water. This approach to
the significant nexus analysis recognizes the ecological relationship
between wetlands and the tributaries to which they are adjacent, and
the role those similarly situated waters have in influencing the
chemical, physical, or biological integrity of paragraph (a)(1) waters.
See Technical Support Document section III.E.
Section IV.C.9.c of this preamble discusses a variety of tools and
sources of information that can be used to assess significant effects
on the chemical, physical, and biological integrity of paragraph (a)(1)
waters. Remote tools, field indicators and observational methods, and
datasets can all assist in determining whether adjacent wetlands meet
the significant nexus standard. In addition, a variety of modeling
approaches can be used to quantify the connectivity and cumulative
effects of wetlands, including non-floodplain wetlands, on other
waters, as discussed further in section IV.A.v of the Technical Support
Document.\110\
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\110\ Some examples include the Soil and Water Assessment Tool
(SWAT, available at https://swat.tamu.edu/), the Hydrologic
Simulation Program in Fortran (available at 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).
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6. Waters Not Identified in Paragraphs (a)(1) Through (4)
a. This Rule
Paragraph (a)(5) of this rule defines ``waters of the United
States'' to include ``intrastate lakes and ponds, streams, or wetlands
not identified in paragraphs (a)(1) through (4)'' that meet either the
relatively permanent standard or the significant nexus standard. Waters
in this category in the 1986 regulations were sometimes referred to as
``(a)(3) waters'' or ``other waters.'' With this rule, the agencies
have made important changes to the 1986 regulations to reflect the
agencies' construction of the statutory limits on the scope of ``waters
of the United States'' informed by the relevant provisions of the Clean
Water Act and the statute as a whole, the scientific record, relevant
Supreme Court precedent, and the agencies' experience and technical
expertise after more than 45 years of implementing the longstanding
pre-2015 regulations defining ``waters of the United States.'' Of
particular importance, the agencies have replaced the broad Commerce
Clause basis for jurisdiction from the 1986 regulations for waters not
identified in other provisions of the definition with the relatively
permanent standard and the significant nexus standard. Because the
relatively permanent standard and the significant nexus standard
require connections to a paragraph (a)(1) water, and the significant
nexus standard further requires that waters significantly affect
paragraph (a)(1) waters, this provision of the rule is substantially
narrower than the 1986 regulations. The 1986 regulations, for example,
authorized the assertion of jurisdiction over waters from which fish or
shellfish are or could be taken and sold in interstate or foreign
commerce.
The agencies are including a provision for intrastate lakes and
ponds, streams, or wetlands not identified in paragraphs (a)(1) through
(4) of the rule because such waters can provide functions that restore
and maintain the chemical, physical, and biological integrity of
traditional navigable waters, the territorial seas, and interstate
waters. See section IV.A.2.c.iii of this preamble. For example, a large
lake that is very close to a tributary or paragraph (a)(1) water, but
that is not part of the tributary system, would be non-jurisdictional
if the agencies did not include the category for assessing such waters
under paragraph (a)(5) in this rule, even if that lake provides many
functions that significantly affect a traditional navigable water.
The agencies have streamlined and clarified the provision for
paragraph (a)(5) waters as compared to the 1986 regulations. The
agencies have added the requirement that these waters must meet either
the relatively permanent standard or significant nexus standard to be
``waters of the United States.'' In addition, the agencies have deleted
the non-exclusive list of ``other waters'' that was featured in
paragraph (a)(3) of the 1986 regulations. Under the final rule's new
paragraph (a)(5) provision, only ``intrastate lakes and ponds, streams,
or wetlands not identified in paragraphs
[[Page 3098]]
(a)(1) through (4)'' can be assessed for jurisdiction under the
relatively permanent standard or significant nexus standard. As
discussed further below, however, the agencies have concluded that the
more specific water types previously listed in paragraph (a)(3) of the
1986 regulations nonetheless generally fall within one of the four
water types listed in paragraph (a)(5) of this rule.
Finally, the agencies have moved the provision for paragraph (a)(5)
waters to the end of the section of the regulation which defines the
categories of jurisdictional waters, since paragraph (a)(5) waters are
those that are not covered by the preceding categories. As a result,
``other waters'' are now in paragraph (a)(5) of this rule. In light of
these changes to the regulatory text, the agencies refer to these
waters as ``those not identified in paragraphs (a)(1) through (4)'' or
``paragraph (a)(5) waters'' for purposes of this rule.
Waters assessed under paragraph (a)(5) meet the relatively
permanent standard if they are relatively permanent, standing or
continuously flowing bodies of water with a continuous surface
connection to a paragraph (a)(1) water or a tributary that is
relatively permanent. The agencies will assess waters under paragraph
(a)(5) to determine if they are relatively permanent using a similar
approach to the one described for tributaries in section IV.C.4 of this
preamble, and the agencies will assess a continuous surface connection
between waters assessed under paragraph (a)(5) and a paragraph (a)(1)
water or a tributary that is relatively permanent using the approach
described for adjacent wetlands in section IV.C.5 of this preamble.
Waters assessed under paragraph (a)(5) meet the significant nexus
standard if they significantly affect the chemical, physical, or
biological integrity of a traditional navigable water, the territorial
seas, or an interstate water. See section IV.C.6.c of this preamble for
further discussion on implementation of these standards for waters
assessed under paragraph (a)(5). The agencies also note that the
characteristics of a water considered for jurisdiction under paragraph
(a)(5) can change over time such that it meets the requirements for
consideration under another category of ``waters of the United
States.'' For example, a river that does not drain to a paragraph
(a)(1) water could potentially become a traditional navigable water,
for instance, if it is impounded and becomes a navigable-in-fact
reservoir. Such water would then be assessed as a traditional navigable
water under paragraph (a)(1)(i) of the final rule. Similarly, a wetland
that historically was not adjacent can become an adjacent wetland, for
example, if a ditch is constructed that connects the wetland to a
jurisdictional tributary. Such a wetland would then be considered under
paragraph (a)(4) of the final rule due to the unbroken surface
connection to a jurisdictional water via the ditch.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies received numerous comments on whether to include a
category for waters that do not fall within one of the more specific
categories in the definition of ``waters of the United States'' and the
standard upon which to base jurisdiction over such waters, as well as
on implementation of this provision of the rule.
i. Comments on the Provision for Waters That Do Not Fall Within One of
the More Specific Categories
Some commenters expressed general support for including a category
for waters that do not fall within one of the more specific categories
in this rule, while others opposed including such a category. Many
commenters requested clarification of the category for waters that do
not fall within one of the more specific categories. Many commenters
addressed the agencies' legal authority to assert jurisdiction over
waters that do not fall within one of the more specific categories.
Some commenters asserted that following the Supreme Court's decisions
in SWANCC and Rapanos, the agencies lack authority to assert
jurisdiction over such waters. Other commenters stated that the
proposed rule's approach to such waters is legally defensible. Several
commenters further stated that the proposed rule does not go far enough
in protecting waters that do not fall within one of the more specific
categories and asserted that broader protection would be consistent
with Rapanos, SWANCC, and Maui.
The agencies disagree that the agencies lack authority to assert
jurisdiction over waters that do not fall within one of the more
specific categories. The agencies' regulations have long had provisions
for case-specific determinations of jurisdiction over waters that did
not fall within the other jurisdictional categories. See section
IV.A.2.b of this preamble. Such waters under this rule can be assessed
under paragraph (a)(5), and they are only jurisdictional if they meet
the relatively permanent standard or significant nexus standard. The
agencies have thus established limits on the scope of these waters
consistent with the law, the science, and agency expertise. See section
IV.A of this preamble. In addition, the agencies have carefully
considered the limitations on their authority under the Clean Water
Act, especially concerning paragraph (a)(5) waters. The agencies have
made a number of changes to the 1986 regulations that collectively
ensure the definition of ``waters of the United States'' remains well
within statutory and constitutional limits. Those changes include
replacing the broad Commerce Clause basis for jurisdiction over
paragraph (a)(5) waters with the narrower relatively permanent and
significant nexus standards, eliminating jurisdiction over tributaries
and adjacent wetlands based on their connection to paragraph (a)(5)
waters, and eliminating jurisdiction by rule over impoundments of
paragraph (a)(5) waters. See sections IV.A.3.a.i, IV.C.3, IV.C.4, and
IV.C.5 of this preamble. In addition, as discussed further in the
implementation section below, the agencies are intending to continue a
thoughtful, careful approach to implementation and coordination for
paragraph (a)(5) waters.
The agencies also received numerous comments on the standard to be
used for determining jurisdiction over waters that do not fall within
one of the more specific categories. Some commenters supported the
proposed rule's requirement that such waters meet either the relatively
permanent standard or the significant nexus standard. However, other
commenters did not support this approach. One commenter recommended
that the agencies not apply the relatively permanent standard to waters
that do not fall within one of the more specific categories because it
would be duplicative. Specifically, the commenter asserted that waters
that meet the relatively permanent standard as described in the
proposed rule would always meet the jurisdictional criteria for another
rule category. A few commenters disagreed with applying the significant
nexus standard to waters that do not fall within one of the more
specific categories, asserting that it goes beyond the scope of
jurisdiction contemplated by Justice Kennedy in Rapanos. Many other
commenters opposed the proposed rule's removal of the interstate and
foreign commerce jurisdictional basis for protecting waters that do not
fall within one of the more specific categories. Commenters expressed
that this basis would protect many important waterways which provide
valuable public health,
[[Page 3099]]
agricultural, recreational, drinking water, ecological, and economic
services important to local, regional, and national interests.
Under the 1986 regulations, ``other waters'' (such as intrastate
rivers, lakes, and wetlands that were 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. This rule amends the 1986
regulations to delete all the provisions referring to authority over
activities that ``could affect interstate or foreign commerce'' and
replaces them with the relatively permanent and significant nexus
standards. Thus, this 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 States'' under the
relatively permanent or significant nexus standards.
The text of the 1986 regulations reflected the agencies'
interpretation at the time, based primarily on the legislative history
of the Clean Water Act, that the jurisdiction of the Act extended to
the maximum extent permissible under the Commerce Clause of the
Constitution. While 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,'' the Court cautioned that
that it ``assum[es] that Congress does not casually authorize
administrative agencies to interpret a statute to push the limit of
congressional authority.'' 531 U.S. at 172-73. Therefore, the agencies
conclude that asserting jurisdiction over non-navigable, intrastate
waters based solely on whether the use, degradation, or destruction of
the water could affect interstate or foreign commerce pushes the limit
of the Clean Water Act where those waters do not significantly affect
paragraph (a)(1) waters. This rule thus replaces the interstate
commerce test with the relatively permanent and significant nexus
standards. As discussed in section IV.A of this preamble, the agencies
have concluded that the significant nexus standard is consistent with
the statutory text and legislative history, advances the objective of
the Clean Water Act, is informed by the scientific record and Supreme
Court case law, and appropriately considers the policies of the Act.
The relatively permanent standard is included in the rule because it
provides important efficiencies and additional clarity for regulators
and the public by more readily identifying a subset of waters that will
virtually always significantly affect paragraph (a)(1) waters. Thus,
this rule gives effect to the Clean Water Act's broad terms and
environmentally protective aim as well as its limitations.
Accordingly, waters that do not fall within one of the more
specific categories identified in paragraphs (a)(1) through (4) of this
rule may still be jurisdictional. This is consistent with the text of
the statute, relevant Supreme Court case law, and the science. See
section IV.A of this preamble and Technical Support Document section
III.D. 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. Without paragraph
(a)(5), a relatively permanent lake that is not a tributary and is not
a wetland, but which nonetheless has a continuous surface connection to
a traditional navigable water, could not be evaluated for jurisdiction.
Justice Kennedy concluded that 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). Many lakes and ponds that are not part of the tributary
system and that do not qualify as a paragraph (a)(1) water can only be
assessed under paragraph (a)(5) of this rule. There is no basis in the
statute or the science for excluding a lake or pond from the definition
of ``waters of the United States'' that is situated on the landscape in
a similar manner as an adjacent wetland, solely because it is a lake
and not a wetland.
Multiple commenters stated that the proposed rule's inclusion of
waters that do not fall within one of the more specific categories
would impermissibly assert jurisdiction over a wide range of features
that are far from traditional navigable waters and that have only minor
volumes of flow. A few commenters suggested that although the proposed
rule recognizes the importance of the strength of connection,
particularly the distance of such waters to navigable waters, it
suggests that the agencies may rely too much on scientific principles
when making jurisdictional determinations in a manner that improperly
expands the scope of the agencies' authority. Another commenter
asserted that the agencies should not consider water functions that
indicate isolation between water features as a basis for finding a
significant nexus for waters that do not fall within one of the more
specific categories.
The agencies disagree that this rule's category for waters that do
not fall within one of the more specific categories, paragraph (a)(5),
improperly expands the scope of their authority. The agencies have not
only narrowed this category from the 1986 regulations by replacing the
broad Commerce Clause provisions with the relatively permanent standard
and the significant nexus standard, but they have also made additional
changes from the 1986 regulations in order to ensure that they are not
pushing the outer limits of the authority granted to them by Congress
under the Clean Water Act. See section IV.A.3.a.i of this preamble.
Impoundments of waters jurisdictional under paragraph (a)(5) no longer
remain jurisdictional by rule. Tributaries to waters jurisdictional
under paragraph (a)(5) are not tributaries under paragraph (a)(3) of
this rule and must themselves be assessed under paragraph (a)(5).
Wetlands adjacent to waters jurisdictional under paragraph (a)(5) are
not adjacent wetlands under paragraph (a)(4) of this rule and must
themselves be assessed under paragraph (a)(5). In addition, as
discussed further below, the agencies have established enhanced
coordination procedures for waters assessed under the significant nexus
standard under paragraph (a)(5) in order to ensure that such
jurisdictional determinations are consistent with this rule. The
agencies have also carefully defined ``significantly affect,'' and have
drawn upon the scientific literature to identify the factors and
functions that will be used to make significant nexus determinations.
See section IV.C.9 of this preamble. In addition, the agencies will be
appropriately relying on both scientific principles and requirements of
the relatively permanent standard or the significant nexus standard
when assessing jurisdiction under this provision of the rule. As
described in section IV.A.2.c.iii of this preamble, paragraph (a)(5)
waters can provide functions that restore and maintain the chemical,
physical, and biological integrity of paragraph (a)(1) waters.
Therefore, the agencies have determined that including the category for
paragraph (a)(5) waters in this rule best advances the objective of the
Clean Water Act. The agencies disagree with the commenter that asserted
that the agencies should not consider water functions that indicate
isolation between water features as a basis for finding a significant
nexus. That
[[Page 3100]]
position is contrary to Justice Kennedy's opinion on the role the
absence of a hydrologic connection should play in a significant nexus
analysis. See Rapanos, 547 U.S. at 786 (Kennedy, J., concurring in the
judgment) (``Given the role wetlands play in pollutant filtering, flood
control, and runoff storage, it may well be the absence of hydrologic
connection (in the sense of interchange of waters) that shows the
wetlands' significance for the aquatic system.''). That argument is
also inconsistent with the science regarding the functions that waters
that do not fall within one of the more specific categories provide to
paragraph (a)(1) waters. See Technical Support Document section III.D.
Many commenters stated that certain types of wetlands should be
categorically protected in the rule category for waters that do not
fall within one of the more specific categories, such as Carolina and
Delmarva bays, pocosins, prairie potholes, vernal pools, and other non-
floodplain wetlands, because they provide functions that protect the
chemical, physical, or biological integrity of paragraph (a)(1) waters.
These commenters also stated that these waters provide valuable public
health, agricultural, recreational, drinking water, ecological, and
economic services important to local, regional, and national interests.
The agencies acknowledge commenters who discussed the functions that
these waters can provide. Agencies may choose to proceed via rulemaking
or adjudication. NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974)
(``[T]he choice between rulemaking and adjudication lies in the first
instance within the [agency's] discretion.''). With respect to the
significant nexus standard in particular, Justice Kennedy stated that
the agencies could proceed to determine waters jurisdictional through
regulations or adjudication. See 547 U.S. at 780-81. The agencies have
concluded that adjudication of which waters assessed under paragraph
(a)(5) are within Clean Water Act protections through case-specific
application of the significant nexus standard or the relatively
permanent standard under this rule, is appropriate. Therefore, the
agencies are not categorically including or excluding waters that do
not fall within one of the more specific categories as jurisdictional
under this rule. See also section III.D of the Technical Support
Document for more information on the agencies' rationale for evaluating
waters under paragraph (a)(5). Waters assessed under paragraph (a)(5)
will be evaluated using the relatively permanent standard or
significant nexus standard to determine their jurisdictional status.
Some commenters expressed that the category for waters that do not
fall within one of the more specific categories is too ambiguous or too
inclusive of waters that they believed should not be protected. The
agencies disagree with commenters who asserted that the category for
waters that do not fall within one of the more specific categories
should be removed, or that the category is too confusing or overly
broad. Waters assessed under paragraph (a)(5) in this rule are only
jurisdictional if they meet the relatively permanent standard or the
significant nexus standard. The agencies have also amended this
provision of the rule to more clearly identify the types of waters
addressed by this provision of the rule. Additionally, a category for
waters that do not fall within one of the more specific categories is a
longstanding and generally familiar category of waters included in the
definition of ``waters of the United States'' under the 1986
regulations. The agencies have extensive experience implementing the
relatively permanent standard and significant nexus standard for
wetlands, streams, lakes, and ponds, which are the types of resources
that are assessed under paragraph (a)(5) of this rule, and so will be
able to use their experience and implementation resources to ensure
consistency of jurisdictional determinations.
The 1986 regulations contained a non-exclusive list of water types
that could be jurisdictional if they were 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 sought comment in the
proposed rule 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. Commenters provided a variety of
perspectives on the specific list of waters in the 1986 regulations.
Several commenters recommended that the agencies clarify that the
example list of waters is illustrative and not exhaustive. Commenters
requested additions to the example list of waters, such as Delmarva
bays, vernal pools, and seepage lakes. Other commenters requested that
certain features be excluded from the example list of waters, such as
prairie potholes. Some commenters expressed confusion as to why the
example list from the 1986 regulations included ``intermittent
streams'' but not ``ephemeral streams.''
In this rule, the agencies have made changes to the 1986
regulations to clarify the list of water types that can be
jurisdictional under this provision, and to clarify that waters
assessed under paragraph (a)(5) include waters that do not meet the
requirements under paragraphs (a)(1) through (4) of this rule. The list
of water types in the 1986 regulations led to confusion as 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
the requisite water types but which under the 1986 regulations could
affect interstate commerce and under the proposed rule could meet the
significant nexus standard). The list was not meant to imply that
intermittent streams were not jurisdictional under the tributary
provision of the 1986 regulations. In addition, a flowing aquatic
feature that is human-made or human-altered but which is neither a
jurisdictional tributary nor an excluded ditch would be assessed as a
stream under paragraph (a)(5).
Paragraph (a)(5) of this rule identifies as ``waters of the United
States'' ``intrastate lakes and ponds, streams, or wetlands not
identified in paragraphs (a)(1) through (4)'' that meet either the
relatively permanent standard or significant nexus standard. Removing
the list of water types from the 1986 regulations is not meant to imply
that any of the water types listed in the 1986 regulations are not
potentially subject to jurisdiction; rather, the revised list of water
types is intended to more clearly inform the public of the types of
waters that can be assessed for jurisdiction under paragraph (a)(5),
and in this rule the list is intended to be exclusive. The revised list
is also streamlined for clarity. The agencies have concluded that the
more specific water types previously listed in paragraph (a)(3) of the
1986 regulations fall within one of the four water types in the rule.
For example, prairie potholes were in the list of water types in the
1986 regulations and, depending upon the characteristics of a
particular prairie pothole, they may fall within the wetlands water
type on the list (where they meet the regulatory definition of
wetlands) or they may be lakes or ponds. Other examples include
sloughs, as they typically fall within the wetlands water type or the
streams
[[Page 3101]]
water type, and playa lakes, which may fall within the lakes or ponds
water type depending upon their size. Finally, the list of water types
included in paragraph (a)(5) does not reflect a conclusion that these
waters are categorically jurisdictional; rather, these waters are only
jurisdictional if the subject waters meet either the relatively
permanent standard or the significant nexus standard.
ii. Comments on Interpretation and Implementation of Paragraph (a)(5)
Waters
The agencies received many comments supporting, opposing, or
recommending changes related to the implementation of the category for
waters that do not fall within one of the more specific categories.
Some commenters asserted that the proposed rule lacked sufficient
implementation guidance, and one commenter specifically stated that the
proposed rule lacked sufficient guidance as to how the agencies will
apply the significant nexus standard to waters that do not fall within
one of the more specific categories. A few commenters recommended an
approach for including waters that do not fall within one of the more
specific categories as jurisdictional in a manner similar to adjacent
wetlands, with some arguing that this approach would streamline the
permitting process, and others stating general support for this
approach. A number of commenters recommended that the agencies adopt
regionalized implementation approaches for certain types of waters that
do not fall within one of the more specific categories, such as prairie
potholes, Carolina Bays, and Indiana dune and swale wetland complexes.
The agencies acknowledge commenters who requested additional
implementation guidance in the final rule, and additional guidance has
been added to this rule including for the significant nexus standard.
See section IV.C.6.c of this preamble for additional discussion on
implementation of the significant nexus standard for waters assessed
under paragraph (a)(5). While the agencies' intended implementation
approach for paragraph (a)(5) waters has some differences from the
implementation approach for adjacent wetlands, as described further
below, the agencies have determined that the approach is reasonable and
implementable. This rule does not preclude the agencies from taking
into account regional considerations as part of the significant nexus
analysis, but the agencies are not explicitly including regional
criteria in the rule to ensure they have the flexibility to address
local conditions.
Under the pre-2015 regulatory regime, the agencies established
coordination procedures for paragraph (a)(3) ``other waters.'' See 68
FR 1991, 1995 (January 15, 2003) (``SWANCC Guidance'') (``[F]ield staff
should seek formal project-specific Headquarters approval prior to
asserting jurisdiction over such waters, including permitting and
enforcement actions.''). Several commenters stated that the agencies
should retain the requirement for field staff to request headquarters
review of approved jurisdictional determinations for waters that do not
fall within one of the more specific categories in this rule. These
commenters stated that review of the scientific justification for a
conclusion under the significant nexus standard must be conducted by
senior officials for accuracy and thoroughness, and agency headquarters
should provide such oversight. In contrast, several commenters stated
that the agencies should abandon the requirement for field staff to
request headquarters review of approved jurisdictional determinations
for waters that do not fall within one of the more specific categories.
These commenters stated that headquarters review should not be
necessary because agency field staff have considerable experience with
and expertise regarding the significant nexus standard. The commenters
also stated that requiring headquarters review would equate to
continued exclusion of waters that do not fall within one of the more
specific categories but should be provided Clean Water Act protection.
Finally, commenters asserted that reducing the number of approved
jurisdictional determinations needing review by agency headquarters
would streamline the permitting process.
As discussed further below, the agencies have established
coordination procedures under which the agencies' headquarters will
review all draft approved jurisdictional determinations for waters
assessed under paragraph (a)(5) based on the significant nexus
standard. This approach represents enhanced oversight by headquarters
staff over approved jurisdictional determinations for waters assessed
under paragraph (a)(5) to ensure implementation consistency and to
gather more robust data about the number and types of waters under
paragraph (a)(5) evaluated by the agencies, any regional or geographic
issues, and the information and implementation resources needed to make
approved jurisdictional determinations for this category.
c. Implementation
This rule provides for case-specific analysis of waters not
addressed by any other provision of the definition to determine whether
they are ``waters of the United States'' under the relatively permanent
or significant nexus standards. Waters assessed under paragraph (a)(5)
meet the relatively permanent standard if they are relatively
permanent, standing or continuously flowing bodies of water with a
continuous surface connection to a paragraph (a)(1) water or tributary
that is relatively permanent. Waters assessed under paragraph (a)(5)
meet the significant nexus standard if they ``significantly affect''
the chemical, physical, or biological integrity of a paragraph (a)(1)
water.
The agencies will generally assess jurisdiction over aquatic
resources based on the requirements in paragraphs (a)(1) through (4)
under this rule before assessing jurisdiction over aquatic resources
based on paragraph (a)(5). Examples of aquatic resources that could be
assessed for jurisdiction under paragraph (a)(5) include a stream that
does not meet the agencies' interpretation of a tributary because it
does not contribute flow directly or indirectly to a paragraph (a)(1)
water or a paragraph (a)(2) impoundment; a wetland that does not meet
this rule's definition of ``adjacent''; or a lake or pond that does not
meet the agencies' interpretation of a tributary because it is not
connected to the tributary network. A ditch that does not meet the
agencies' interpretation of tributary could also be assessed for
jurisdiction under paragraph (a)(5), so long as the ditch does not meet
the terms of the paragraph (b)(3) exclusion. The preamble to the
proposed rule stated that consistent with previous practice, the
agencies would not assess whether a ditch was jurisdictional under the
paragraph (a)(3) ``other waters'' provision. 86 FR 69433 (December 7,
2021). However, the agencies have reconsidered this statement and
determined that under previous practice, the agencies did in fact
assess whether ditches were jurisdictional under the paragraph (a)(3)
``other waters'' provision, and the agencies will continue to assess
ditches that are not excluded under paragraph (b)(3) under the relevant
jurisdictional categories in this final rule. The following sections of
the preamble cover how to identify waters assessed under paragraph
(a)(5) on the landscape, implementation of the relatively permanent
standard for waters assessed under paragraph (a)(5), and implementation
of the significant nexus
[[Page 3102]]
standard for waters assessed under paragraph (a)(5).
i. Identifying Waters Assessed Under Paragraph (a)(5) on the Landscape
Under this rule, waters that will be assessed for jurisdiction
under paragraph (a)(5) are: intrastate lakes and ponds, streams, and
wetlands that do not meet the requirements to be considered under
paragraphs (a)(1) through (4) of this rule. The agencies will identify
waters assessed under paragraph (a)(5) on the landscape using the
implementation tools that have previously been described for these
aquatic resources (see sections IV.C.4 and IV.C.5 of this preamble).
The agencies can draw upon a variety of remote- and field-based
methods, including a variety of mapping resources for identifying
aquatic resources.
ii. Implementing the Relatively Permanent Standard for Waters Assessed
Under Paragraph (a)(5)
Waters assessed under paragraph (a)(5) meet the relatively
permanent standard if they are relatively permanent, standing or
continuously flowing bodies of water with a continuous surface
connection to a paragraph (a)(1) water or a tributary that is
relatively permanent. The agencies have decided to implement this
approach consistent with the Rapanos plurality opinion, and it reflects
and accommodates regional differences in hydrology and water management
and can be implemented using available, easily accessible tools. See
sections IV.C.4.c and IV.C.5.c of this preamble.
The agencies intend to identify relatively permanent waters under
paragraph (a)(5) using a similar approach to the one described for
relatively permanent tributaries in section IV.C.4.c.ii of this
preamble. In summary, relatively permanent waters under paragraph
(a)(5) include surface waters that have flowing or standing water year-
round or continuously during certain times of the year. Relatively
permanent waters under paragraph (a)(5) include certain rivers and
streams that have ``flowing water.'' The phrase ``standing water'' is
intended to describe waters that are lentic or ``still'' systems, such
as lakes, ponds, and impoundments, which are characterized by standing
water and do not have a flowing outlet to the tributary system. In the
context of waters assessed under paragraph (a)(5), the phrase
``standing water'' can also describe certain wetlands that are
characterized by standing water (e.g., many swamps). Relatively
permanent waters under paragraph (a)(5) do not include features with
flowing or standing water for only a short duration in direct response
to precipitation. These features may include, for example, certain
wetlands that are not characterized by standing water (e.g., many
pocosin wetlands). See section IV.C.4.c.ii of this preamble for a
description of implementation tools that can be used to identify
relatively permanent waters under paragraph (a)(5).
The agencies intend to identify a continuous surface connection
between waters assessed under paragraph (a)(5) and a paragraph (a)(1)
water or a tributary that is relatively permanent using the approach
described for adjacent wetlands in section IV.C.5.c of this preamble
(although waters assessed under paragraph (a)(5) are not subject to the
adjacency requirement for jurisdictional adjacent wetlands). In
summary, there must be a continuous surface connection on the landscape
for waters assessed under paragraph (a)(5) to be jurisdictional under
the relatively permanent standard. However, a continuous surface
connection does not require a constant hydrologic connection. Waters
assessed under paragraph (a)(5) can meet the continuous surface
connection requirement if they are connected to a paragraph (a)(1)
water or a tributary that is relatively permanent by a discrete feature
like a non-jurisdictional ditch, swale, pipe, or culvert. Similarly, a
natural berm, bank, dune, or similar natural landform between a water
assessed under paragraph (a)(5) and a paragraph (a)(1) water or a
tributary that is relatively permanent does not sever a continuous
surface connection to the extent it provides evidence of a continuous
surface connection. See section IV.C.5.c of this preamble for a
description of implementation tools that can be used to assess a
continuous surface connection for a water assessed under paragraph
(a)(5).
Under this rule, certain aquatic resources that do not meet the
jurisdictional requirements for tributaries or adjacent wetlands could
be jurisdictional as paragraph (a)(5) waters under the relatively
permanent standard. For example, lakes and ponds that are not connected
to a tributary system but are relatively permanent waters and have a
continuous surface connection to a paragraph (a)(1) water or a
tributary that is relatively permanent, could be jurisdictional as
paragraph (a)(5) waters. To illustrate, a relatively permanent lake
that is located near a tributary that meets the relatively permanent
standard, but is separated by a natural berm, to the extent the berm
provides evidence of a continuous surface connection, is jurisdictional
as a paragraph (a)(5) water under the relatively permanent standard.
See section IV.C.4.c.ii of this preamble. Similarly, a relatively
permanent oxbow pond located near a traditional navigable water and
connected to that traditional navigable water via a swale that provides
a continuous surface connection between the pond and the traditional
navigable water is jurisdictional as a paragraph (a)(5) water under the
relatively permanent standard.
iii. Implementing the Significant Nexus Standard for Waters Assessed
Under Paragraph (a)(5)
Waters assessed under paragraph (a)(5) that do not meet the
relatively permanent standard may be found jurisdictional under the
significant nexus standard. Waters assessed under paragraph (a)(5) meet
the significant nexus standard if they significantly affect the
chemical, physical, or biological integrity of a traditional navigable
water, the territorial seas, or an interstate water. Examples of waters
assessed under paragraph (a)(5) include familiar types of waters like
lakes and ponds, streams, and wetlands that have been the subject of
significant nexus analyses under the tributaries and adjacent wetlands
provisions of the pre-2015 regulations since the Rapanos Guidance was
issued. See section IV.C.9 of this preamble for additional discussion
on the definition of ``significantly affect'' in this rule, including
the factors that will be considered and the functions that will be
assessed as part of a significant nexus analysis. Consistent with
longstanding practice, the agencies will assess these waters based on
best professional judgment informed by the best available information.
In implementing the significant nexus standard, the agencies
generally intend to analyze waters under paragraph (a)(5) individually
to determine if they significantly affect the chemical, physical, or
biological integrity of a paragraph (a)(1) water. This approach
reflects the agencies' consideration of public comments, as well as
implementation considerations for waters assessed under paragraph
(a)(5). While the agencies' regulations have long authorized the
assertion of jurisdiction on a case-specific basis over waters that do
not fall within the other jurisdictional provisions, since SWANCC and
the issuance of the SWANCC Guidance with its requirement of
headquarters approval over determinations under that
[[Page 3103]]
provision, the agencies have not in practice asserted jurisdiction over
paragraph (a)(3) ``other waters'' under the pre-2015 regulatory
regime.\111\
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\111\ Note that when the 2015 Clean Water Rule was in effect,
the agencies did assert jurisdiction over waters that would have
been known as paragraph (a)(3) ``other waters'' by rule if they were
adjacent waters as defined by that rule and on a case-specific basis
if they fell within the provisions requiring case-specific
significant nexus determinations. The 2020 NWPR also asserted
jurisdiction over certain lakes and ponds that would have been
jurisdictional as paragraph (a)(3) ``other waters.''
---------------------------------------------------------------------------
Some commenters specifically addressed implementation of the
significant nexus standard for waters that do not fall within one of
the more specific categories, with commenters supporting and opposing
aggregation of such waters as part of a significant nexus analysis.
Commenters opposing aggregation requested that the agencies assess
water features individually to determine their significance to
chemical, physical, or biological integrity of downstream paragraph
(a)(1) waters. Commenters supporting aggregation of waters that do not
fall within one of the more specific categories stated that such an
approach was consistent with Rapanos and the science. The agencies
addressed such waters individually on a case-by-case basis under pre-
2015 practice and have concluded at this time that individual
assessments are practical and implementable for significant nexus
determinations for waters assessed under paragraph (a)(5).
iv. Joint Agency Coordination on Waters Assessed Under Paragraph (a)(5)
As is typical after a rule is promulgated, the agencies have
entered into an agreement via a joint agency coordination memorandum to
ensure the consistency and thoroughness of the agencies' implementation
of this rule. As part of these coordination procedures, EPA and Corps
field staff will coordinate on all draft approved jurisdictional
determinations \112\ based on the significant nexus standard, and the
agencies will follow a process for elevating a subset of these
determinations to headquarters for review as necessary. That
coordination will be enhanced for waters assessed under paragraph
(a)(5) to ensure this provision is carefully implemented and to gather
more robust data about the number and types of waters assessed under
paragraph (a)(5) by the agencies, any regional or geographic issues,
and the information and implementation resources needed to complete
approved jurisdictional determinations for this category. As part of
these coordination procedures, headquarters at the agencies will review
all draft approved jurisdictional determinations for waters assessed
under paragraph (a)(5) based on the significant nexus standard. The
agencies do not intend for this coordination to result in the exclusion
of paragraph (a)(5) waters that meet the significant nexus standard and
are thus jurisdictional under this rule, but rather to serve as an
additional check as to whether one of the jurisdictional standards is
met. In addition, the agencies have established timelines for the
review of certain draft approved jurisdictional determinations to
ensure that there will not be unnecessary delay. Moreover, the
coordination will enable the agencies to quickly address any potential
inconsistencies, and that will enhance the efficiency of the approved
jurisdictional determination process under this rule. Finally, after
the memorandum is in effect for nine months, the agencies will
reevaluate this requirement and assess the implementation and
coordination approach, including assessing the scope and need for the
coordination process.
---------------------------------------------------------------------------
\112\ An approved jurisdictional determination is ``a 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.'' 33 CFR 331.2.
---------------------------------------------------------------------------
7. Exclusions
The agencies are including in the final rule regulatory text
several exclusions from the definition of ``waters of the United
States,'' including longstanding exclusions for prior converted
cropland and waste treatment systems, and exclusions for features that
were generally considered non-jurisdictional under the pre-2015
regulatory regime. The regulatory text for this rule excludes the
following features:
waste treatment systems, including treatment ponds or
lagoons, designed to meet the requirements of the Clean Water Act;
prior converted cropland;
ditches (including roadside ditches) excavated wholly in
and draining only dry land and that do not carry a relatively permanent
flow of water;
artificially irrigated areas that would revert to dry land
if the irrigation ceased;
artificial lakes or ponds created by excavating 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 or diking dry land to
retain water for primarily aesthetic reasons;
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; and
swales and erosional features (e.g., gullies, small
washes) characterized by low volume, infrequent, or short duration
flow.
These features were excluded by regulation or general practice
under the pre-2015 regulatory regime and each of the subsequent rules
defining ``waters of the United States.'' These exclusions from the
definition provide important clarity on which features are and are not
jurisdictional. As described in more detail below, to provide further
clarity and certainty to the public, the agencies are codifying
exclusions in the regulatory text for the features described in the
proposed rule preamble as generally non-jurisdictional. Note that the
word ``features'' when used in section IV.C.7 of this preamble refers
broadly to landscape elements that may be evaluated in a determination
of jurisdiction, e.g., streams, ponds, swales, wetlands, and
depressions.
The agencies are listing these exclusions in the regulatory text in
a new paragraph (b) which consolidates the exclusions together in a
single regulatory section. With this change, the regulatory text now
identifies jurisdictional waters in paragraph (a), exclusions in
paragraph (b), and definitions in paragraph (c). This change is
consistent with the 2015 Clean Water Rule and 2020 NWPR, which both
organized the regulatory text into these three paragraphs. This
organizational structure clearly delineates waters that are
jurisdictional from those waters and features that are excluded and
provides a familiar and clear framework for the regulations. This
reorganization does not affect the substance of the definition of
``waters of the United States.''
As explained in this rule's regulatory text, where a feature
satisfies the terms of an exclusion, it is excluded from jurisdiction
even where the feature would otherwise be jurisdictional under any of
paragraphs (a)(2) through (5) of this rule. In such an instance, the
feature is not considered ``waters of the United States.'' However,
where a feature satisfies the terms of an exclusion but would otherwise
be jurisdictional under paragraph (a)(1) of
[[Page 3104]]
this rule, the feature is not excluded.\113\ For example, where
applicable, the exclusion in this rule for ditches excludes a ditch
that is excavated wholly in dry land, drains only dry land, and does
not carry a relatively permanent flow of water. However, all tidally-
influenced ditches are jurisdictional under paragraph (a)(1)(i) of the
rule because they are ``subject to the ebb and flow of the tide,'' and
therefore the exclusion is not applicable to those ditches. In
addition, if a ditch was excavated in dry land very close to a
territorial sea and, over time due to erosion, sea level rise, or other
factors, the ditch develops a hydrologic connection to the territorial
sea and becomes tidally-influenced, the ditch would then be considered
jurisdictional under paragraph (a)(1) of this rule and would no longer
be excluded. This is consistent with the agencies' longstanding
position that a feature is not excluded where it would otherwise be
jurisdictional as a traditional navigable water, territorial sea, or
interstate water. See 51 FR 41217 (November 13, 1986) (explaining that
``[n]on-tidal drainage and irrigation ditches excavated on dry land''
are generally not considered ``waters of the United States'' under the
1986 regulations but not including similar language for tidally-
influenced ditches). The Clean Water Act fundamentally protects these
three categories of waters: traditional navigable waters are clearly
encompassed within the defined term ``navigable waters''; the
territorial seas are explicitly mentioned in the statutory definition
of ``navigable waters''; and, as discussed further in section
IV.C.2.b.iii of this preamble, interstate waters are, by definition,
waters of the ``several States'' and are unambiguously ``waters of the
United States.'' While the agencies have authority to draw lines
excluding some aquatic features from the definition of ``waters of the
United States,'' the Clean Water Act provides no such authority to the
agencies to exclude waters in these three unambiguous types of ``waters
of the United States'' under the statute. Even if jurisdiction over one
or all of these categories of waters were ambiguous, the agencies have
concluded that since these are the fundamental waters that Congress
intended to protect under the Clean Water Act, and that have had
longstanding and unequivocal protection, with the exception of the 2020
NWPR, it is reasonable to establish unequivocal jurisdiction over these
waters. Further, the agencies have concluded that there are not policy,
practical, or technical bases to apply the exclusions to these
paragraph (a)(1) waters given their crucial role in the statutory
regime. The agencies recognize that the 2020 NWPR allowed certain
traditional navigable waters and the territorial seas to be excluded
from jurisdiction if they satisfied the terms of certain exclusions.
The 2020 NWPR did not provide a rationale for this aspect of the final
rule. The agencies are restoring historic practice and, consistent with
the Clean Water Act and as discussed above, are ensuring the protection
of all paragraph (a)(1) waters in this rule.
---------------------------------------------------------------------------
\113\ See also discussion of the waste treatment system
exclusion in section IV.C.7.b of this preamble, infra.
---------------------------------------------------------------------------
The exclusions reflect the agencies' longstanding practice and
technical judgment that certain waters and features are not subject to
the Clean Water Act. The exclusions are also guided by Supreme Court
precedent. The plurality opinion in Rapanos noted that there were
certain features that were not primarily the focus of the Clean Water
Act. See 547 U.S. at 734. In this section of the rule, the agencies are
promoting regulatory certainty by expressly stating that certain waters
and features are not subject to jurisdiction under the Clean Water Act.
Based on decades of implementation experience, the agencies have
determined that waters that satisfy the terms of an exclusion are not
``waters of the United States.'' Clearly identifying these exclusions
in this rule is an important aspect of the agencies' policy goal of
providing clarity and certainty. The categorical exclusions in this
rule will simplify the process of determining jurisdiction, and they
reflect the agencies' determinations of the lines of jurisdiction based
on case law, policy determinations, and the agencies' experience and
expertise.
In addition, even when the features described below are not
``waters of the United States'' because they are excluded (e.g.,
certain ditches, swales, gullies, erosional features), these and other
non-jurisdictional features may be relevant to the analysis of whether
another water meets the final rule's definition of ``waters of the
United States.'' For example, consistent with longstanding practice,
excluded surface features may still contribute to a hydrologic
connection relevant for asserting jurisdiction (e.g., between an
adjacent wetland and a jurisdictional water). See section IV.C.5 of
this preamble; Rapanos Guidance at 12. Discharges to these non-
jurisdictional features may also be subject to certain Clean Water Act
regulations. For example, a discharge from a point source to a non-
jurisdictional ditch that connects to a jurisdictional water may
require a Clean Water Act section 402 permit. See Rapanos Guidance at
12. In addition, non-jurisdictional ditches may themselves function as
point sources (i.e., ``discernible, confined, and discrete
conveyances''), such that discharges of pollutants from these features
could require a Clean Water Act permit. See also Rapanos, 547 U.S. at
743-44. While not the focus of this section, subsurface features that
are non-jurisdictional may also be relevant to assessing jurisdiction
of water features. See sections IV.C.4 and IV.C.5 of this preamble.
Several commenters requested that the agencies exclude features
from the definition of ``waters of the United States'' beyond those
longstanding exclusions and historically non-jurisdictional features
identified in the proposed rule. For example, several commenters
requested that the agencies exclude stormwater control features,
wastewater and drinking water treatment systems, and water recycling
structures from the definition of ``waters of the United States.'' The
agencies are not excluding these or other additional features in this
rule. The proposed additional exclusions would not achieve the
agencies' goal of maintaining consistency with the pre-2015 regulatory
regime while continuing to advance the objective of the Clean Water
Act. This approach is consistent with the agencies' intent in this rule
to interpret ``waters of the United States'' to mean the waters defined
by the longstanding 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 the text of the relevant
provisions of the Clean Water Act and the statute as a whole, the
scientific record, relevant Supreme Court case law, and the agencies'
experience and technical expertise, in addition to consideration of
extensive public comment on the proposed rule. However, even for
features that are not explicitly excluded, the agencies will continue
to assess jurisdiction under this rule on a case-specific basis. As
part of this case-specific assessment, the agencies will continue to
consider whether the feature in question is excavated or created in dry
land, the flow of water in the feature, and other factors. In addition,
some of the features that commenters asked the agencies to exclude may
already be covered by one or more of the exclusions the agencies are
including in this rule. For example, certain features that convey
stormwater may be excluded as ditches under this
[[Page 3105]]
rule. Similarly, some of the features that commenters mentioned, like
sheetflow, are not waters at all and would not be considered ``waters
of the United States.'' Even though certain features may not be
explicitly excluded, the agencies will not assert Clean Water Act
jurisdiction over features that do not satisfy the definition of
``waters of the United States'' articulated in paragraph (a) of this
rule.
Several commenters requested that the agencies explicitly exclude
groundwater in this rule's regulatory text while other commenters
requested that the agencies not exclude groundwater from jurisdiction
under this rule. In this rule, the agencies are not adding an exclusion
for groundwater to the regulatory text because groundwater is not
surface water and therefore does not fall within the possible scope of
``navigable waters.'' There is thus no need for a regulatory exclusion.
This position is longstanding and consistent with Supreme Court case
law. The agencies have never taken the position that groundwater falls
within the scope of ``navigable waters'' under the Clean Water Act.
See, e.g., 80 FR 37099-37100 (June 29, 2015) (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). This position 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
jurisdictional as ``waters of the United States,'' discharges of
pollutants to groundwater that reach a jurisdictional surface water
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. Groundwater that is
not jurisdictional includes both shallow and deep groundwater, even
where such shallow subsurface water serves as a hydrologic connection
that is assessed in determining if another water is jurisdictional.
Groundwater drained through subsurface drainage systems also is not
jurisdictional. When groundwater emerges on the surface, for example
when it becomes baseflow in streams or joins spring fed ponds, it is no
longer considered to be groundwater under this rule.
While groundwater is not jurisdictional under the statute or this
rule, many States include groundwater in their definitions of ``waters
of the State'' and therefore may subject groundwater to State
regulation. Indeed, the Clean Water Act incentivizes State protection
of groundwater. For example, grants to States under Clean Water Act
section 319 may support management programs that include groundwater
quality protection activities as part of a comprehensive nonpoint
source pollution control program. 33 U.S.C. 1329(h)(5)(D). In addition,
groundwater quality is regulated and protected through several other
legal mechanisms, including the Safe Drinking Water Act, the Resource
Conservation and Recovery Act, and various Tribal, State, and local
laws.
Several commenters suggested that wetlands that develop entirely
within the confines of a non-jurisdictional feature should be
considered part of the excluded feature and not be considered ``waters
of the United States.'' The agencies agree with these commenters and
find that wetlands that develop entirely within the confines of an
excluded feature are not jurisdictional. This interpretation is
consistent with the agencies' longstanding approach to this issue and
with the agencies' rationale for excluding these features. This
approach also provides environmental benefits because it removes the
incentive for parties to clear vegetation from an excluded feature to
prevent that vegetation from developing into a wetland and becoming
jurisdictional, thus allowing vegetation within the confines of an
excluded feature to provide water quality benefits for the duration of
its existence.
However, a wetland may be located both within and outside the
boundaries of a non-jurisdictional feature or entirely outside the
boundaries of non-jurisdictional feature. In these circumstances, the
wetland will be evaluated under this rule's provisions for ``adjacent
wetlands'' and paragraph (a)(5) ``intrastate lakes and ponds, streams,
or wetlands'' and not considered as part of the non-jurisdictional
feature. It is important to note, however, that although some low
gradient depressional areas are colloquially referred to as ``swales,''
these areas do not meet the regulatory exclusion's criteria for swales
that are discrete topographic features ``characterized by low volume,
infrequent, or short duration flow.'' As such, the agencies would not
consider wetlands forming within low gradient depressional areas to be
``within the confines of a non-jurisdictional feature,'' and such
wetlands would be assessed to determine if they meet any of the
provisions of this rule.
While the agencies evaluate whether any exclusions apply when
making approved jurisdictional determinations for purposes of
efficiency, the person asserting that the water at issue is excluded
under the Clean Water Act or that the person's activities at issue in
the case are exempt under the Act, may have information that is
material to proving that the exclusion or exemption applies. There are
circumstances where, absent this information from the requestor, the
agency will be unable to determine that an exclusion applies. While the
requestor is not required to provide information regarding
applicability of the exclusions to the agencies during the
jurisdictional determination process, it is to their benefit to do so
because the person asserting that a water is excluded or that a
person's activities are exempt under the Clean Water Act bears the
burden of proving that the exclusion or exemption applies. See, e.g.,
United States v. Akers, 785 F.2d 814, 819 (9th Cir. 1986) (``Akers must
establish that his activities are exempt.''). Where the agencies, based
on the information that they have in the record, are unable to conclude
that an exclusion applies, the agencies will assess the water to see if
it meets the jurisdictional criteria of this rule under paragraphs
(a)(1) through (5).
a. Prior Converted Cropland
i. This Rule
This rule repromulgates the regulatory exclusion for prior
converted cropland first codified in 1993, which provided that prior
converted cropland is ``not `waters of the United States.''' This rule
restores longstanding and familiar practice under the pre-2015
regulatory regime. The rule maintains consistency and compatibility
between the agencies' implementation of the Clean Water Act and the
U.S. Department of Agriculture's (USDA) implementation of the Food
Security Act by providing that prior converted cropland under the Clean
Water Act encompasses areas designated by USDA as prior converted
cropland. Areas USDA has not so designated are not eligible for this
Clean Water Act exclusion. The Clean Water Act exclusion for prior
converted cropland only covers wetlands and does not exclude other
types of non-wetland aquatic resources (e.g., tributaries,
[[Page 3106]]
ponds, ditches) that are located within the prior converted cropland
area.
The exclusion would cease upon a change in use that renders the
area no longer available for the production of agricultural
commodities. For example, areas used for any agricultural purposes,
including agroforestry, as well as areas left idle, generally remain
available for the production of agricultural commodities. In response
to requests from commenters to increase the clarity of the exclusions
through the regulatory text, the agencies are noting in the regulations
that this exclusion encompasses areas that USDA has designated as prior
converted cropland, and that the exclusion will cease when the area has
changed use so that it is no longer available for the production of
agricultural commodities, such as when it has been filled for
development.
The agencies are also retaining the longstanding provision that
``for purposes of the Clean Water Act, the final authority regarding
Clean Water Act jurisdiction remains with EPA.'' This categorical
exclusion for prior converted cropland will simplify the process of
determining jurisdiction while providing certainty to farmers seeking
to conserve and protect land and waters pursuant to Federal law. It
reflects the agencies' determinations of the lines of jurisdiction
based on the case law, policy determinations, and the agencies'
experience and expertise.
ii. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
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 may lose
eligibility for certain USDA program benefits, unless an exemption
applies. If a farmer had converted wetlands to cropland prior to
December 23, 1985, however, then the land is considered prior converted
cropland and the farmer does not lose eligibility for benefits if the
area is further manipulated.\114\ USDA defines a prior converted
cropland for Food Security Act purposes in its regulations as
``converted wetland where the conversion occurred prior to December 23,
1985, an agricultural commodity had been produced at least once before
December 23, 1985, and as of December 23, 1985, the converted wetland
did not support woody vegetation and did not meet the hydrologic
criteria for farmed wetland.'' 7 CFR 12.2. USDA defines an agricultural
commodity, in turn, as ``any crop planted and produced by annual
tilling of the soil, including tilling by one-trip planters, or
sugarcane.'' Id. at 12.2; see also 16 U.S.C. 3801(a)(1).
---------------------------------------------------------------------------
\114\ A farmer that ``commenced conversion'' of a wetland prior
to December 23, 1985, could also be eligible for a prior converted
cropland designation, subject to certain limitations. 7 CFR 12.2,
12.5(b)(2).
---------------------------------------------------------------------------
In 1993, EPA and the Corps codified an exclusion for prior
converted cropland 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 (August 25, 1993);
33 CFR 328.3(a)(8) (1994); 40 CFR 230.3(s) (1994). The 1993 preamble
stated that EPA and the Corps would interpret the prior converted
cropland exclusion 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 (August 25, 1993). It cited the NFSAM definition of
prior converted cropland as ``areas that, prior to December 23, 1985,
were drained or otherwise manipulated for the purpose, or having the
effect, of making production of a commodity crop possible. [Prior
converted] cropland is inundated for no more than 14 consecutive days
during the growing season and excludes pothole or playa wetlands.'' Id.
The agencies chose not to codify USDA's definition of prior converted
cropland, ensuring that they would retain flexibility to accommodate
changes USDA might make. Id. at 45033.
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 Clean Water Act to regulate prior converted
cropland, and to ``help achieve consistency among various federal
programs affecting wetlands.'' Id. The 1993 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. . . . [Prior
converted] 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.'' Id. at 45032. The agencies
explained that ``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.
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 45034. Specifically, the 1993 preamble
stated that prior converted cropland that now 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 clarified that this
``abandonment'' principle did not apply to prior converted cropland.
See Public Law 104-127, 110 Stat. 988-89 (1996). Additional amendments
clarified that any certification by the Secretary, including those of
prior converted cropland, remain valid and in effect as long as it
continues to be available for agricultural purposes, a new approach
referred to as ``change in use.'' 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.'' The Memorandum stated, ``[a] certified [prior converted]
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 [prior converted] 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
[[Page 3107]]
programs, or diverted from crop production to an approved cultural
practice that prevents erosion or other degradation.'' The agencies
rescinded the 2005 Memorandum on January 28, 2021, following
publication of the 2020 NWPR.
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). Following New Hope Power,
the agencies did not implement ``change in use'' in areas subject to
the court's jurisdiction.
The 2015 Clean Water Rule repromulgated the exclusion for prior
converted cropland without any changes from the 1993 regulations, as
did the 2019 Repeal Rule. The 2020 NWPR also repromulgated the
exclusion but defined prior converted cropland for purposes of the
Clean Water Act for the first time since 1993. The 2020 NWPR provided
that an area is prior converted cropland if ``prior to December 23,
1985, [it] was drained or otherwise manipulated for the purpose, or
having the effect, of making production of an agricultural product
possible.'' 85 FR 22339 (April 21, 2020); 33 CFR 328.3(c)(9). The 2020
NWPR's term ``agricultural product'' 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,'' a defined term, while the 2020 NWPR defined prior
converted cropland to encompass any area used to produce an
``agricultural product,'' a term not used in the regulations that
introduced ambiguity and further distinguished the Clean Water Act's
prior converted cropland exclusion from USDA's approach. Compare 7 CFR
12.2 with 33 CFR 328.3(c)(9). The absence of a definition in the 2020
NWPR for the term ``agricultural product'' or any explanation as to how
it may differ from an ``agricultural commodity'' was unclear and
undermined the original purpose of the exclusion, which was to help
achieve consistency among Federal programs affecting wetlands. See 58
FR 45031 (August 25, 1993).
Furthermore, the 2020 NWPR's approach to prior converted cropland
substantially reduced the likelihood that prior converted cropland
would lose its excluded status because it provided that an area would
remain prior converted cropland for purposes of the Clean Water Act
unless the area is abandoned and reverts to wetlands, and defined
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 22320 (April 21, 2020). The
2020 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. Id. at 22321. Under
the 2020 NWPR, prior converted cropland maintained its excluded status
if it was used at least once in the five years preceding a
jurisdictional determination for any of these agricultural purposes.
These wetlands could then have been filled and paved over during that
five-year term without triggering any Clean Water Act regulatory
protection.
This rule restores the exclusion's original purpose of maintaining
consistency among Federal programs addressing wetlands while furthering
the objective of the Clean Water Act. 58 FR 45031-32 (August 25, 1993).
Some commenters asserted that prior converted cropland should not be
categorically excluded because there is no legal or scientific basis to
exclude areas from the protections of the Clean Water Act that maintain
some wetland characteristics or could be restored to be wetlands. The
agencies disagree. As the agencies explained in 1993, ``effective
implementation of the wetlands provisions of the Act without unduly
confusing the public and regulated community is vital to the
environmental protection goals of the Clean Water Act.'' Id. at 45031.
The 1993 preamble emphasized that statutes other than the Clean Water
Act have become essential to the Federal Government's effort to protect
wetlands. The wetlands protection effort will be most effective if the
agencies administering these other statutes have, to the extent
possible, ``consistent and compatible approaches to insuring wetlands
protection.'' Id. at 45031-32. This rule's return to implementing
USDA's approach to prior converted cropland will help enhance the
consistency and compatibility of the Federal Government's multi-pronged
wetlands protection efforts, thereby enhancing their effectiveness.
Some commenters asked that the agencies codify a particular
definition of prior converted cropland; some recommended codifying
USDA's definition and others advocated codifying the definition in the
2020 NWPR. The agencies instead decided to clarify that the exclusion
encompasses prior converted cropland designated by USDA, and no
additional areas. This clarification provides certainty and
transparency as well as flexibility. The agencies chose not to codify
the 2020 NWPR's definition because that interpretation does not carry
out the original purpose of the exclusion, which is to ensure
consistency among Federal wetland protection programs while protecting
the integrity of the nation's waters.
iii. Implementation
This rule will implement the prior converted cropland exclusion so
that it encompasses all areas designated by USDA, and no additional
areas. USDA interprets prior converted cropland to be a ``converted
wetland where the conversion occurred prior to December 23, 1985, an
agricultural commodity had been produced at least once before December
23, 1985, and as of December 23, 1985, the converted wetland did not
support woody vegetation and did not meet the hydrologic criteria for
farmed wetland.'' 7 CFR 12.2. The 2020 NWPR introduced ambiguity by
saying that prior converted cropland applies to certain areas used for
``agricultural products,'' as opposed to ``agricultural commodities.''
In addition, the 2020 NWPR was unclear regarding the extent to which
the agencies should designate areas not subject to a USDA designation
as prior converted cropland under the Clean Water Act. The agencies are
restoring clarity and consistency with USDA's approach by implementing
the exclusion as only applying to areas USDA has designated, which
include areas where commodity crops were produced prior to December 23,
1985, and that meet the other applicable criteria. This is consistent
with the agencies' longstanding approach to the exclusion. See 58 FR
45033 (August 25, 1993) (``[R]ecognizing [NRCS]'s expertise in making
these [prior converted] cropland determinations, we will continue to
rely generally on determinations made by [NRCS].''). USDA defines
agricultural commodity crops to mean ``any crop planted and produced by
annual tilling of the soil, including tilling by one-trip planters, or
sugarcane.'' 7 CFR 12.2.
The agencies have also decided to enhance consistency between prior
converted cropland under the Food
[[Page 3108]]
Security Act and under the Clean Water Act, without undermining the
goals of the Clean Water Act, by implementing the exclusion as ceasing
upon the area's ``change in use.'' The agencies view a ``change in
use'' as an action that would make the prior converted cropland no
longer available for the production of an agricultural commodity. In
response to requests from commenters to clarify the scope of exclusions
in the regulatory text, the regulation specifies that the exclusion
will cease upon change in use, and that a change in use means that the
prior converted cropland is no longer available for the production of
an agricultural commodity.
Consistent with USDA's interpretation, a ``change in use'' would
not occur ``[a]s long as the area is devoted to the use and management
of the land for production of food, fiber, or horticultural crops.'' 7
CFR 12.30(c)(6). The agencies do not interpret changes in use to
include discharges associated with agricultural uses identified in the
Corps' and NRCS's 2005 Memorandum to the Field, such as planting of
agricultural crops, production of food or fiber, haying or grazing,
idling consistent with USDA programs, or diversion from crop production
for purposes of preventing erosion or other degradation, as these uses
keep the land available for future production of agricultural
commodities. Similarly, an area may retain its prior converted cropland
status if it is used for any of the agricultural purposes identified in
the 2020 NWPR preamble, which ``includ[e] but [are] not limited to
idling land for conservation uses (e.g., 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,'' as well as ``crop production,
haying, and grazing,'' so long as the area remains available for the
production of agricultural commodities. See 85 FR 22321 (April 21,
2020). Consistent with USDA practice, an area has not experienced a
change in use if, for example, it transitions into a long-term rotation
to agroforestry or perennial crops, such as vineyards or orchards, or
if it lies idle and the landowner passively preserves the area for
wildlife use. Generally speaking, idling the land retains its
availability for the production of an agricultural commodity.
Implementing ``change in use'' consistent with USDA's implementation of
the Food Security Act fulfills the exclusion's purpose of promoting
consistency among Federal programs affecting wetlands. See 58 FR 45031
(August 25, 1993). Under the Food Security Act, a wetland certification
made by the Secretary is only valid so long as the area is devoted to
an agricultural use. 16 U.S.C. 3822(a)(4). Because the wetland
conservation provisions of the Food Security Act only apply to the
production of agricultural commodities, a prior converted cropland
designation becomes moot for USDA purposes once land is removed from
agricultural use.
A ``change in use'' is a proposed or planned modification of prior
converted cropland for filling and development, so that the area would
no longer be available for commodity crop production after development.
For example, if prior converted cropland is left idle for several years
and reverts to wetland, and the property is then sold for conversion to
a residential development, the discharge of dredged or fill material
from development would require prior authorization under Clean Water
Act section 404. Plans or proposals for development may include
applications for Clean Water Act section 404 permits or other Federal,
State, or local permits for residential, commercial, or industrial
development; energy infrastructure; mining; or other non-agricultural
uses. On the one hand, the agencies recognize that plans and proposals
do not themselves change the characteristics of a wetland, and that
some do not come to fruition. On the other hand, the agencies would
like to provide certainty and fair notice to landowners and other
persons about the status of the areas under their control while they
are in the planning stage. Interpreting a change in use as only
occurring when heavy machinery begins actually dredging and filling a
wetland, and potentially violating the Clean Water Act, would not
provide the certainty and fair notice necessary to appropriately plan
development. To address these considerations, the agencies will
interpret the prior converted cropland designation to continue to apply
to a farmer's use of prior converted cropland for agricultural purposes
even after development plans or proposals have been developed, and even
after land has been sold. However, the prior converted cropland
designation would not be available to the developer for the same parcel
once proposals or plans for development have begun, even prior to a
discharge occurring in the wetland.
Some commenters stated that, for example, building houses in an
area should not constitute a ``change in use,'' because the houses
could potentially be removed and the area returned to commodity crop
production. The agencies disagree. A ``change in use'' includes areas
that have undergone soil disturbance such that substantial effort, such
as the removal of concrete or other permanent structures, would be
required to enable the production of agricultural commodities. The
agencies interpret availability for commodity crop production to mean
that it is reasonably conceivable that the area in its current
condition could be returned to crop production. Areas that will be
developed for residential, commercial, or industrial use; energy
infrastructure; mining; or other non-farming related activities will
not meet this standard of availability for commodity crop production.
The agencies will not implement the exclusion using the
``abandonment'' approach, which the 2020 NWPR implemented instead of
``change in use,'' as ``abandonment'' is not consistent with USDA's
approach or with the purposes of the Clean Water Act. Generally
speaking, under the 2020 NWPR's approach to abandonment, an area would
only regain jurisdictional status if the area has not been used for
agricultural purposes at least once in every five years and the area
reverts to a wetland that meets the definition of ``waters of the
United States.'' For example, under abandonment, if prior converted
cropland is used for an agricultural purpose, such as grazing, two
years prior to being sold for conversion to a residential development,
discharges of dredged or fill material from the construction of the
residential development into the wetlands during the three years
remaining in the five-year abandonment time frame would not require
authorization under Clean Water Act section 404, even though those
discharges have nothing to do with farming. In contrast, under the
``change in use'' approach that the agencies will implement under this
rule, the reverted wetland area would regain jurisdictional status if
it meets the definition of ``waters of the United States'' and is
subject to a ``change in use,'' meaning that it is no longer available
for production of an agricultural commodity.
The abandonment approach implemented in the 2020 NWPR presents
three key concerns. First, it incentivizes disturbance of the area by a
farmer once every five years to retain the exclusion. Second, it
creates a substantial loophole in Clean Water Act section 404
protections by allowing any form of development of otherwise
jurisdictional wetlands without
[[Page 3109]]
authorization, so long as it occurs within five years of use of the
area for agricultural purposes. Third, it undermines governmental
coordination and efficiency because it is not consistent with USDA's
approach to prior converted cropland.
A number of commenters urged the agencies to maintain the 2020
NWPR's approach to implementing prior converted cropland, emphasizing
that on a national scale, developing wetlands, such as for purposes of
mining or other industrial uses, could provide billions of dollars to
farmers. The agencies have concluded that this potential financial
benefit to farmers does not effectuate the original purpose of the
exclusion, which was to promote consistency among Federal clean water
protection programs in order to help restore and maintain the nation's
waters. Moreover, the exclusion was originally intended to allow
farmers to farm their land. The financial benefit the commenters cite
comes from selling farmland to be developed. Further facilitating these
sales does nothing to support farmers who seek to continue to farm and
could even undermine their incentives to do so. By contrast, the
agencies' approach in this rule strikes an appropriate balance between
effectuating the goals of the Clean Water Act and the purposes of the
exclusion. It aligns implementation of the Food Security Act and the
Clean Water Act as much as possible while providing farmers with
clarity that routine farming and related activity conducted in prior
converted croplands will not require Clean Water Act authorization.
The agencies' approach to prior converted cropland under this rule
also imposes less of a burden on farmers than the approach under the
2020 NWPR. Under the 2020 NWPR, an area was not considered abandoned so
long as it is used for or in support of agricultural purposes at least
once in the immediately preceding five years. The 2020 NWPR's preamble
explained that prior converted cropland would not be considered
abandoned if it were idled or lay fallow ``for conservation or
agricultural purposes.'' 85 FR 22320 (April 21, 2020). By contrast,
under ``change in use,'' the land will not lose its prior converted
cropland status so long as it remains available for crop production,
regardless of whether the purpose for idling the land was related to
conservation or agricultural purposes. In other words, under this rule,
a farmer could maintain prior converted cropland status without needing
to demonstrate that the area was used for in support of agricultural
purposes at least once in the immediately preceding five years or had
been idled for conservation or agricultural purposes.
The exclusion for prior converted cropland does not apply to areas
designated by USDA as meeting other Food Security Act exemptions,
including exemptions for farmed wetlands, or areas that meet the USDA
definition of wetlands and do not have a valid prior converted cropland
designation. This rule 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. The presence of a
jurisdictional wetland, or any jurisdictional water in an agricultural
setting, in no way affects the availability of exemptions for
discharges associated with many farming activities pursuant to Clean
Water Act section 404(f).
b. Waste Treatment System
i. This Rule
This rule in paragraph (b)(1) retains the agencies' longstanding
waste treatment system exclusion, with no changes from the proposed
rule. Specifically, this 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
waste treatment system exclusion,\115\ 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.
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\115\ 51 FR 41250 (November 13, 1986); 53 FR 20764 (June 6,
1988).
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ii. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
EPA first promulgated the waste treatment system exclusion in a
1979 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 also
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 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 (May 19, 1980) (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 reexamined,'' EPA announced that it was ``suspending [the]
effectiveness'' of the sentence limiting the waste treatment system
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.
[[Page 3110]]
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 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 rule, the agencies have deleted this obsolete cross-reference,
consistent with other recent rulemakings addressing the definition of
``waters of the United States.'' \116\
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\116\ 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.'').
---------------------------------------------------------------------------
This rule also deletes the suspended sentence in EPA's NPDES
regulations limiting application of the waste treatment system
exclusion to manmade bodies of water. The suspended sentence, which
since 1980 has only ever appeared in the version of the waste treatment
system exclusion contained in EPA's NPDES regulations (40 CFR 122.2),
provides: ``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.'' Because EPA suspended this sentence
limiting application of the exclusion in 1980, EPA has not limited
application of the waste treatment system exclusion to manmade bodies
of water for over four decades. Removing the suspended sentence in this
rule thus aligns with EPA's decades-long practice implementing the
exclusion--in addition to ensuring consistency with the text of other
versions of the exclusion found in the agencies' regulations (both past
and present)--and maintains the 2020 NWPR's deletion of the suspended
sentence as well.
Some commenters expressed support for deleting the suspended
sentence, stating that doing so in this rule would be consistent with
the agencies' longstanding approach to implementing the waste treatment
system exclusion. Other commenters asserted that the agencies should
limit application of the exclusion to human-made features, with some
expressing concern that the agencies have not provided a meaningful
opportunity to comment on this aspect of the rulemaking. The agencies
agree that removing the suspended sentence--which has not been in
effect for over 40 years--ensures that this rule will continue the
agencies' longstanding approach to excluding waste treatment systems,
while providing additional clarity. Indeed, for decades, both agencies
have not limited application of the exclusion to manmade bodies of
water. The agencies disagree that they did not satisfy notice-and-
comment requirements with respect to this aspect of the rulemaking. The
preamble to the proposed rule explained that the agencies were
considering deleting the suspended sentence and explicitly solicited
comment on that approach. See 86 FR 69427.
Multiple commenters expressed concern over the agencies' proposed
addition of a comma after the word ``lagoons'' in the text of the
exclusion, which provides: ``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.'' In particular,
many of these commenters asserted that the new comma would narrow the
exclusion such that a system constructed prior to the enactment of the
Clean Water Act could not qualify for the exclusion because it was not
``designed'' to meet the requirements of the Act. As explained in the
preamble to the proposed rule, the purpose of adding a comma after
``lagoons'' is to clarify that the exclusion is available only to
systems meeting the requirements of the Clean Water Act, thereby
continuing the agencies' longstanding approach to implementing the
exclusion. Under this approach, a waste treatment system constructed
prior to the 1972 Clean Water Act amendments is eligible for the
exclusion so long as the system is in compliance with currently
applicable Clean Water Act requirements, such as treating water such
that discharges, if any, from the system meet the Act's requirements. A
waste treatment system constructed after passage of the 1972 Clean
Water Act amendments is similarly eligible for the exclusion if it was
constructed and is operating in a manner that is consistent with the
Act, such as by treating water so that discharges, if any, from the
system meet the Act's requirements, and it was constructed in
compliance with the Act's requirements (e.g., where the system was
lawfully created pursuant to a section 404 permit). A waste treatment
system that was created after the 1972 amendments but was constructed
in violation of the Clean Water Act--for example, a system constructed
without a section 404 permit when one was necessary--is not eligible
for the exclusion, regardless of whether the system is currently
treating discharges to meet the Act's requirements.
Finally, several commenters asserted that the waste treatment
system exclusion violates the Clean Water Act. The agencies disagree
that the waste treatment system exclusion is contrary to the Clean
Water Act. Waste treatment systems have been excluded from the
definition of ``waters of the United States'' since 1979, and the waste
treatment system exclusion 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'').
iii. Implementation
Consistent with the 1986 regulations, this 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
[[Page 3111]]
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, including any effluent limitations
guidelines and new source performance standards requirements applicable
to the waste treatment system, and requirements applicable to the
pollutants discharged from a waste treatment system to ``waters of the
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 that will be constructed in ``waters of the
United States,'' and a section 402 permit if there are discharges of
pollutants from a waste treatment system into ``waters of the United
States.'' Under the section 402 permit, discharges from the waste
treatment system would need to meet the requirements of applicable
effluent limitations guidelines and new source performance standards,
as well as any required water quality-based effluent limitations.
Further, consistent with the agencies' general practice implementing
the exclusion, under this rule, a waste treatment system that 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 this rule's definition of ``waters
of the United States.''
Moreover, as explained in section IV.C.7 of this preamble, the
exclusions in this rule--including the waste treatment system
exclusion--do not apply to features that, at the time they are
assessed, are jurisdictional under paragraph (a)(1). Note, however,
that an excluded waste treatment system--such as a cooling pond--may
over time take on the characteristics of a jurisdictional water, such
as a paragraph (a)(1) traditional navigable water.\117\ In this
scenario, the exclusion continues to apply and the waste treatment
system does not become a jurisdictional water under paragraph (a)(1) or
any other provision of the rule, unless or until the system ceases to
serve the treatment function for which it was designed (as discussed in
the immediately preceding paragraph).
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\117\ This situation may arise where, for example, a manmade
cooling pond constructed in uplands takes on the characteristics of
a traditional navigable water.
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With respect to the scope of the waste treatment system exclusion
in this rule, the agencies do not interpret the exclusion to allow any
party to dispose of waste or discharge pollutants into the excluded
feature without authorization. Rather, for waters that would otherwise
meet this rule's definition of ``waters of the United States,'' the
agencies' intent, consistent with prior application of the NPDES
program, is that the waste treatment system exclusion is generally
available only for discharges associated with the treatment function
for which the system was designed. Relatedly, consistent with the
agencies' longstanding practice, a waste treatment system does not
itself sever upstream waters from Clean Water Act jurisdiction.\118\ In
other words, if those upstream waters were ``waters of the United
States,'' they remain ``waters of the United States'' and discharges to
them thus may require a section 402 or 404 permit.
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\118\ 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.'').
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c. Other Exclusions
In this rule, the agencies are codifying exclusions for several
features that they generally considered non-jurisdictional under the
pre-2015 regulatory regime and the 2019 Repeal Rule and expressly
excluded by regulation in the 2015 Clean Water Rule and 2020 NWPR.
These features are: ditches (including roadside ditches) excavated
wholly in and draining only dry land and that do not carry a relatively
permanent flow of water; artificially irrigated areas that would revert
to dry land if the irrigation ceased; artificial lakes or ponds created
by excavating 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
or diking dry land to retain water for primarily aesthetic reasons;
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; and swales and erosional
features (e.g., gullies, small washes) characterized by low volume,
infrequent, or short duration flow.
Under the pre-2015 regulatory regime, the features listed above
were generally not considered ``waters of the United States'' even
though they were not explicitly excluded by regulation. The preamble to
the 1986 regulations explained that the agencies ``generally do not
consider [these] waters to be `Waters of the United States.' '' 51 FR
41217 (November 13, 1986). 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. The Rapanos Guidance expanded on the list of features that were
generally considered non-jurisdictional. Rapanos Guidance at 11-12. In
practice, the agencies did not generally assert jurisdiction over such
waters. To provide clarity on which waters are jurisdictional and which
are not, and to enhance certainty for the public, the agencies are
codifying exclusions for these features in the regulatory text and
removing the possibility that these waters could be found
jurisdictional on a case-by-case basis. Because the agencies did not
generally assert jurisdiction over these features in practice,
codifying exclusions for these features is not a substantial change
from the pre-2015 regulatory regime or the 2019 Repeal Rule. Many
commenters supported codifying exclusions for these features. This
approach is generally consistent with the 2015 Clean Water Rule and
2020 NWPR and will be familiar to the public.
In the final regulatory text for these exclusions, the agencies are
consistently using the term ``dry land,'' rather than ``upland.'' The
proposed rule and the pre-2015 regulatory regime used the phrases ``dry
land'' and ``upland'' interchangeably in their description of features
that the agencies considered to be generally non-jurisdictional. To
provide additional clarity, the agencies are consistently using the
term ``dry land'' throughout the regulatory text.\119\ The term ``dry
land'' refers to areas of the geographic landscape that do not include
waters such as streams, rivers, wetlands, lakes, ponds, tidal waters,
ditches, and the like. It is important to note that jurisdictional and
non-jurisdictional waters are not considered ``dry land'' just because
they lack water
[[Page 3112]]
at a given time. Similarly, an area may remain ``dry land'' even if it
is wet after a precipitation event.
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\119\ While the agencies consistently use the phrase ``dry
land'' in the regulatory text to provide clarity to the public, this
preamble and documents supporting this rule use the phrases ``dry
land'' and ``upland'' interchangeably.
---------------------------------------------------------------------------
The agencies recognize that for certain longstanding exclusions,
the 2020 NWPR replaced the word ``upland'' in the regulatory text with
the word ``upland'' and a reference to non-jurisdictional features. For
example, the 2020 NWPR regulatory text excluded ``[w]ater-filled
depressions constructed or excavated in upland or in non-jurisdictional
waters.'' 85 FR 22338 (April 21, 2020) (emphasis added). This approach
was a deviation from longstanding practice as both the pre-2015
regulatory regime and the 2015 Clean Water Rule limited the exclusions
to features constructed in upland. The distinction between ``upland''
or ``dry land'' and ``non-jurisdictional features'' is important
because ``non-jurisdictional features'' can include features like
certain ephemeral streams and wetlands that are not jurisdictional but
are not ``dry.'' This change in the 2020 NWPR resulted in an expansion
of the exclusion as compared to the pre-2015 regulatory regime. The
agencies disagree with the approach in the 2020 NWPR. It deviated from
the longstanding concept of limiting certain exclusions to instances
where features are constructed in dry land. Limiting the exclusions in
this rule to features constructed in dry land more appropriately
captures the agencies' intent to exclude features associated with areas
that are commonly understood as ``dry.'' Limiting the exclusions in
this way also puts reasonable bounds on these categorical exclusions
and ensures that features constructed in land that is not dry are
examined more closely to determine whether they are jurisdictional.
i. Ditches
(1) This Rule
In this rule, the agencies are codifying an exclusion for ditches
(including roadside ditches) excavated wholly in and draining only dry
lands and that do not carry a relatively permanent flow of water.
Excluding these ditches from jurisdiction is consistent with the scope
of ditches that were generally non-jurisdictional under the pre-2015
regulatory regime and the 2019 Repeal Rule. 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 (November 13, 1986). 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. Excluding certain ditches from jurisdiction is also consistent
with the 2015 Clean Water Rule and the 2020 NWPR. While these rules
took different approaches to determining which ditches should be
excluded, due in part to different overall constructs for the
definition of ``waters of the United States'' under those rules, both
rules excluded some ditches. The agencies, in this rule, are continuing
the approach described in the Rapanos Guidance and are codifying that
approach in the regulatory text to provide clarity and certainty. As
discussed above, the agencies are also maintaining their longstanding
position that paragraph (a)(1) waters are not subject to the exclusions
and, most relevant to the exclusion for ditches and consistent with the
1986 preamble, tidal ditches will continue to be jurisdictional under
paragraph (a)(1). Continuing the approach described in the Rapanos
Guidance is consistent with the agencies' intent with this rule to
interpret ``waters of the United States'' to mean the waters defined by
the longstanding 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 the text of the relevant
provisions of the Clean Water Act and the statute as a whole, the
scientific record, relevant Supreme Court case law, public comment, and
the agencies' experience and technical expertise after more than 45
years of implementing the longstanding pre-2015 regulations defining
``waters of the United States.''
(2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
Consistent with the Rapanos Guidance, this rule excludes ``ditches
(including roadside ditches) that are excavated wholly in and draining
only dry land and that do not carry a relatively permanent flow of
water.'' Rapanos Guidance at 8. The scope of the ditch exclusion is
consistent with the agencies' longstanding practice and technical
judgment that certain waters and features are not subject to regulation
under the Clean Water Act. The exclusion is also informed by Rapanos.
The agencies have concluded that the relatively permanent standard in
Rapanos on its own is insufficient to achieve the objective of the Act.
See section IV.A of this preamble. However, the relatively permanent
standard is generally consistent with the agencies' longstanding
practice of finding certain ditches that lack important hydrogeomorphic
features to be non-jurisdictional. The ditches excluded under this rule
and longstanding practice are often part of Tribal, State, and local
land use planning and can also be subject to Tribal or State
jurisdiction, as the Clean Water Act recognizes that Tribes and States
can regulate more broadly than the Federal Government. Excluding
certain ditches from jurisdiction under this rule also improves
administrative efficiency and provides certainty and clarity to the
public. This exclusion simplifies the approved jurisdictional
determination process and makes it more straightforward for agency
staff to implement the rule and for the public to determine whether
certain features are subject to Federal jurisdiction.
Several commenters requested that the agencies exclude a broader
set of ditches from the definition of ``waters of the United States.''
The agencies find that it would not be appropriate to exclude a broader
set of ditches from the definition of ``waters of the United States''
in this rule. Congress clearly intended that some ditches are
jurisdictional under the Clean Water Act. The Clean Water Act states
that, with some exceptions, the discharge of dredge or fill material
``for the purpose of construction or maintenance of farm or stock ponds
or irrigation ditches, or the maintenance of drainage ditches'' is not
prohibited by or otherwise subject to regulation under the Clean Water
Act. 33 U.S.C. 1344(f)(1)(C). Because this exemption only applies to
discharges of dredged or fill material into ``waters of the United
States,'' there would be no need for such a permitting exemption if all
ditches were considered non-jurisdictional under the Clean Water Act.
The agencies in the 2020 NWPR similarly interpreted section 404(f) as
an indication that Congress intended that ditches could in some
instances be jurisdictional under the Clean Water Act. 85 FR 22297
(April 21, 2020). The agencies' approach in this rule--which finds that
some ditches are jurisdictional while others are not--reflects full and
appropriate consideration of section 404(f), the water quality
objective in Clean Water Act section 101(a), and the policies relating
to responsibilities and rights of Tribes and States under section
101(b). The approach of finding certain ditches jurisdictional while
excluding others from jurisdiction is also consistent with the 2015
Clean Water Rule and the 2020 NWPR, as well as the pre-2015
[[Page 3113]]
regulatory regime and the 2019 Repeal Rule. Human-made tributaries like
ditches can provide functions that restore and maintain the chemical,
physical, and biological integrity of downstream paragraph (a)(1)
waters. The scientific literature indicates that structures like
ditches that convey water continue to connect to and effect downstream
waters, though the connectivity and effects can be different than that
of natural streams. Indeed, ditches can enhance the extent of
connectivity by more effectively conveying the water downstream. See
section III.A of the Technical Support Document for additional
information; see also section IV.A.2.b.i of this preamble for further
discussion of these issues.
Several commenters asked for additional explanation of terms and
phrases used in the exclusion for certain ditches. The phrase
``excavated wholly in and draining only dry land'' means that at the
time the ditch was constructed, it was excavated in dry land as that
term is described above. It further means that at the time of
construction, the ditch was excavated entirely, or wholly, in dry land.
Finally, it means that the ditch is not situated close enough to a
water feature, including wetlands, to drain that water feature. For
example, a ditch that is constructed in dry land and receives water
from runoff and other ditches constructed in dry land and draining only
dry land, or from groundwater intercepted as the ditch was dug, would
be considered a ditch ``excavated wholly in and draining only dry
land.'' In contrast, a ditch that is constructed in dry land but also
drains a wetland would not be considered a ditch that drains only dry
land, and a ditch constructed in both a wetland and in dry land would
not be considered to be excavated wholly in dry land. The
jurisdictional status of a ditch is assessed on a case-by-case basis by
considering the specific characteristics of the site at issue.
The phrase ``do not carry a relatively permanent flow of water''
means that the ditch is not a relatively permanent water as that term
is explained in this rule. Relatively permanent flow, as discussed in
section IV.C.4.c.ii of this preamble, means the ditch contains flowing
or standing water year-round or continuously during certain times of
the year for more than a short duration in direct response to
precipitation. The language ``do not carry a relatively permanent flow
of water'' is consistent with the language in the Rapanos Guidance.
The use of the word ``and'' in the exclusion for ditches indicates
that all three criteria (excavated wholly in dry land, draining only
dry land, and not carrying a relatively permanent flow of water) must
be satisfied for the ditch to be excluded. However, even where a ditch
is not excluded, it is only jurisdictional if it satisfies the terms of
the categories of waters that are considered jurisdictional under this
rule. For example, a ditch that is not excluded, but does not satisfy
either the relatively permanent or significant nexus standard would not
be jurisdictional under this rule.
In addition, the agencies' longstanding interpretation of the Clean
Water Act is that it is not relevant whether a water has been
constructed or altered by humans for purposes of determining whether a
water is jurisdictional under the Clean Water Act. In S.D. Warren v.
Maine Board of Envt'l Protection, Justice Stevens, writing for a
unanimous Court, stated: ``nor can we agree that one can denationalize
national waters by exerting private control over them.'' 547 U.S. 370,
379 n.5 (2006). In Rapanos, all members of the Court generally agreed
that ``highly artificial, manufactured, enclosed conveyance systems--
such as `sewage treatment plants,' . . . and the `mains, pipes,
hydrants, machinery, buildings, and other appurtenances and incidents'
. . . likely do not qualify as `waters of the United States,' despite
the fact that they may contain continuous flows of water.'' 547 U.S. at
737 (Scalia, J., plurality opinion). But there was also agreement that
certain waters that are human-made or man-altered, such as canals with
relatively permanent flow, are ``waters of the United States.'' Id. at
736 n.7. 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 ``waters of the United States'': ``certain water
bodies could conceivably constitute both a point source and a water.''
Id. at 772 (Kennedy, J., concurring in the judgment); 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. 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.''). While the plurality, Justice
Kennedy, and the dissent formulated different standards for determining
what are ``waters of the United States,'' none of the standards
qualified jurisdiction on a distinction between ``natural'' versus
``human-made'' or ``human-altered'' waters or excluded ditches in their
entirety. Further, no Federal Court of Appeals has interpreted Rapanos
to exclude ditches from the Clean Water Act. This case law demonstrates
that certain ditches have long been subject to regulation as ``waters
of the United States.''
Several commenters suggested that certain types of ditches,
including roadside ditches, ditches associated with railroad
operations, and agricultural ditches, should be excluded in this rule.
This rule does not explicitly exclude these types of ditches, but the
exclusions included in this rule address many ditches of these types.
Moreover, since the exclusion for ditches in this rule focuses on the
physical (e.g., constructed in dry land) and flow characteristics of
ditches, the exclusion addresses all ditches that the agencies have
concluded should not be subject to jurisdiction, including certain
ditches on agricultural lands and ditches associated with modes of
transportation, such as roadways, airports, and rail lines.
(3) Implementation
When assessing the jurisdictional status of a ditch, the agencies
will evaluate the entire reach of the ditch to determine if it has
relatively permanent flow, consistent with the reach approach for
tributaries described in section IV.C.4.c of this preamble. As
described for tributaries, the agencies will assess the flow
characteristics of a particular ditch reach at the farthest downstream
limit of the ditch reach (i.e., the point the ditch enters a higher
order in the network). Where data indicate the flow characteristics at
the downstream limit is not representative of the entire reach of the
ditch, the flow characteristics that best characterizes the entire
ditch reach will be used. For example, if the majority of the ditch
reach lacks relatively permanent flow but some portions of the reach
contain isolated pools of standing water, that reach of the ditch
likely would not be considered to have relatively permanent flow. As a
result, such a ditch could be excluded from jurisdiction if it
satisfies the other requirements of the ditch exclusion. Additionally,
a situation could arise where there is one reach of a ditch with
relatively permanent flow that is jurisdictional and is connected to
downstream waters via a separate reach of the ditch that is non-
jurisdictional. This approach to evaluating jurisdiction of each reach
of a ditch separately is
[[Page 3114]]
consistent with the agencies' approach for evaluating jurisdiction over
tributaries, which evaluates each reach of a tributary separately. See
section IV.C.4.c.ii of this preamble for further discussion of applying
the relatively permanent standard to tributary reaches.
Questions have sometimes arisen regarding the distinctions between
ditches and human-altered natural streams and rivers. Alteration or
modification of a natural stream or river for flood control, erosion
control, development, agriculture, and other reasons does not convert
the stream or river to an excluded ditch. A stream or river that has
been channelized or straightened because its natural sinuosity has been
altered, cutting off the meanders, is not a ditch. A stream that has
banks stabilized through use of concrete or rip-rap (e.g., rocks or
stones) is not a ditch. In these instances, the altered or modified
streams and rivers are not ditches and would also not satisfy the
exclusion for ditches because they are not ``excavated wholly in and
draining only dry land.'' See section IV.A.2.b.i of this preamble for
further discussion of this rule's coverage of human-made or human-
altered tributaries.
Questions have also arisen regarding relocated streams and rivers.
A stream or river that has been relocated is not a ditch and would also
not satisfy the exclusion for ditches because it is not ``excavated
wholly in and draining only dry land.'' A stream or river that is
relocated should be evaluated as a tributary when it contributes flow
directly or indirectly to a paragraph (a)(1) water. A stream or river
is considered relocated either when at least a portion of its original
channel has been physically moved, or when the majority of its flow has
been redirected. Even where the stream or river has been relocated
(i.e., the majority of its flow has been redirected), the remnant
portions of the former stream may still be jurisdictional where it
satisfies the terms of paragraph (a) of this rule.
The agencies note that an excluded ditch that connects downstream
to a jurisdictional tributary would not be jurisdictional merely
because of its downstream connection to the jurisdictional tributary.
Furthermore, wetlands that develop entirely within the confines of an
excluded ditch are not jurisdictional, as discussed further in section
IV.C.5.b of this preamble.
Certain excluded ditches (such as roadside and agricultural ditches
that satisfy the requirements of the ditch exclusion) may receive
backflow from a jurisdictional water, such as a perennial river that
overflows into the ditch and extends the OHWM of the contributing water
into the ditch. In these circumstances, the agencies will continue the
practice of extending the OHWM of the jurisdictional contributing water
up to the location of its OHWM within the otherwise non-jurisdictional
ditch, as required by Corps regulations. See 33 CFR 328.4(c). In these
instances, the ditch is not necessarily jurisdictional; the feature
extending into the ditch is jurisdictional. For example, an excluded
ditch may connect with a relatively permanent river, and at times, high
flows from the river may extend into the excluded ditch such that the
OHWM of the jurisdictional river also extends into the ditch. The
agencies will continue to treat the portion of the relatively permanent
river that extends into the excluded ditch, up to the OHWM of the
river, as part of the jurisdictional river. The ditch remains excluded,
but the flow in the ditch that is from the relatively permanent river
will be jurisdictional as part of the river.
The agencies will use the most accurate and reliable resources to
support their decisions regarding whether a feature is an excluded
ditch. This will typically involve the use of multiple sources of
information and those sources may differ depending on the resource in
question or the region in which the resource is located. Along with
field data and other current information on the subject waters,
historic tools and resources may be used to determine whether a feature
is an excluded ditch. Several sources of information may be required to
make such determination. Information sources may include historic and
current topographic maps, historic and recent aerial photographs,
Tribal, State, and local records and surface water management plans
(such as county ditch or drainage maps and datasets), NHD or NWI data,
agricultural records, street maintenance data, precipitation records,
historic permitting and jurisdictional determination records, certain
hydrogeomorphological or soil indicators, wetlands and conservation
programs and plans, and functional assessments and monitoring efforts.
For example, when a USGS topographic map displays a tributary located
upstream and downstream of a potential ditch, this may indicate that
the potential ditch was constructed in or relocated a tributary. As
another example, an NRCS soil survey displaying the presence of
specific soil series which are linear in nature and generally parallel
to a potential ditch may be indicative of alluvial deposits formed by a
tributary in which the potential ditch was constructed. Additionally,
the presence of a pond in a historic aerial photograph that lies along
the flowpath of the potential ditch, for example, may provide an
indication that the potential ditch was not constructed wholly in and
drained only dry land.
This rule does not affect the permitting exemptions for certain
activities described in Clean Water Act section 404(f), including the
exemption in section 404(f)(1)(C) for the construction and maintenance
of irrigation ditches and the maintenance of drainage ditches. The
agencies have historically taken the position that a ditch can be both
``waters of the United States'' and a point source. The 2020 NWPR,
however, changed the agencies' longstanding position and stated that a
ditch is either ``waters of the United States'' or a point source. 85
FR 22297 (April 21, 2020). The 2020 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.'' See 547 U.S. at 735-36 (Scalia, J., plurality opinion);
NWPR Response to Comments, Section 6 at 12-13.
The agencies have further evaluated this question and concluded
that the better reading of the statute is the agencies' historic
position that a ditch can be both a point source and ``waters of the
United States.'' That position dates back to 1975 in an opinion of the
General Counsel of EPA interpreting the Clean Water Act. That opinion
stated: ``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 (June 27, 1975) (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.
In addition, in Rapanos, Justice Kennedy and the dissent rejected
the
[[Page 3115]]
conclusion that because the word ``ditch'' was in the definition of
``point source'' a ditch could never be ``waters 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 in
the judgment); 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.'').\120\ Even the plurality opinion in Rapanos, which
was relied upon by the agencies in the 2020 NWPR for its change in
position, left room for some ditches to both point sources and ``waters
of the United States,'' finding that the two categories should not be
``significantly'' overlapping. 547 U.S. at 735-36 (Scalia, J.,
plurality opinion).
---------------------------------------------------------------------------
\120\ The agencies considered that a district court has reached
a contrary conclusion, but the agencies decline to adopt the
decision's reasoning in this rule, including because it relies on
the change in interpretation articulated for the first time in the
2020 NWPR and which the agencies reject in this rule, and is
inconsistent with the position of five Justices in Rapanos. See
Toxics Action Center, Inc. & Conservation Law Found. v. Casella
Waste Systems, Inc., 2021 WL 3549938, *8 (D.N.H. Aug. 11, 2021)
(``If a waterway can simultaneously be a navigable water (that is, a
water of the United States) and a point source, the distinction the
statute draws between the two categories using the prepositions
`from' and `to' would be rendered meaningless.'').
---------------------------------------------------------------------------
There is simply no indication in the text of the Clean Water Act
that ditches that meet the definition of a point source cannot also be
``waters of the United States.'' To the contrary, the fact that
Congress provided an exemption for discharges of dredged or fill
material for construction or maintenance of certain types of ditches
from permitting in Clean Water Act section 404(f) is further evidence
that under the plain language of the statute ditches can, at least in
some cases, be both point sources and ``waters of the United States.''
The agencies therefore find that their longstanding, historic view that
a ditch can be both a point source and ``waters of the United States''
is the better interpretation.
ii. Other Features
(1) This Rule
In this rule, the agencies are codifying exclusions for certain
other features that were not generally considered jurisdictional under
the pre-2015 regulatory regime. Consistent with the features listed in
the preamble to the 1986 regulations, the agencies are codifying
exclusions for: artificially irrigated areas that would revert to dry
land 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.'' See 51 FR 41217
(November 13, 1986). In addition, consistent with the Rapanos Guidance,
the agencies are excluding swales and erosional features (e.g.,
gullies, small washes) characterized by low volume, infrequent, or
short duration flow. See Rapanos Guidance at 11-12. Excluding these
features from jurisdiction is consistent with the 2015 Clean Water Rule
and the 2020 NWPR, as well as the pre-2015 regulatory regime and the
2019 Repeal Rule, which considered these features to be generally non-
jurisdictional. The agencies are codifying exclusions for these
features in the regulatory text to provide clarity and certainty.
The agencies are finalizing two minor changes to the exclusion for
swales and erosional features in this rule as compared to the language
in the Rapanos Guidance. The Guidance explained that the agencies
generally found ``[s]wales or erosional features (e.g., gullies, small
washes characterized by low volume, infrequent, or short duration
flow)'' to be non-jurisdictional. Rapanos Guidance at 11-12. First,
this rule's regulatory text excludes ``swales and erosional features''
rather than ``swales or erosional features.'' The agencies find that
the use of ``or'' in this phrase in the Rapanos Guidance was confusing
because swales are substantively different from erosional features and
thus should not be referred to in the alternative. To provide
additional clarity, the agencies are using the connector ``and'' in
this rule's regulatory text for this exclusion. Second, the agencies
are moving the parentheses in this provision so that only the phrase
``e.g., gullies, small washes'' is included in parentheses. This change
clarifies that the rest of the language in this exclusion,
``characterized by low volume, infrequent, or short duration flow''
applies to both swales and erosional features. This change ensures that
the exclusion more accurately describes those swales and erosional
features which are discrete topographic features on the landscape,
rather than low gradient depressional areas that convey only overland
sheetflow and which are not included within this exclusion. The
agencies are making these two ministerial changes from the Rapanos
Guidance to provide additional clarity in this rule, but the agencies'
application of the exclusion for these features as compared to the pre-
2015 regulatory regime remains substantively and operationally
unchanged.
(2) Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
As described at the beginning of this section, codifying exclusions
for these features is consistent with the agencies' longstanding
practice that certain waters and features are not subject to the Clean
Water Act. The exclusions are also guided by Supreme Court cases that
recognized that there are certain features that were not primarily the
focus of the Clean Water Act. See, e.g., Rapanos 547 U.S. at 734. The
exclusions are an important aspect of the agencies' policy goal of
providing clarity, certainty, and predictability for the regulated
public and regulators. The categorical exclusions will simplify the
process of determining jurisdiction, and they reflect the agencies'
determinations of the lines of jurisdiction based on the case law,
policy determinations, and the agencies' experience and expertise.
Many commenters generally supported adding the exclusions in the
regulatory text. Several of these commenters stated that adding the
exclusions to the regulatory text would provide clarity and certainty
and avoid time and cost burdens. The agencies agree with these
commenters and have added these exclusions, along with the exclusion
for ditches, to the regulatory text. Other commenters stated that
exclusions of certain waterbodies were not based on science or the
significant nexus standard. Determinations about the scope of ``waters
of the United States'' are informed by science but also informed by the
agencies' decades of implementation experience. This rule reflects the
judgment of the agencies in balancing the science, the agencies'
expertise, and the regulatory goals of providing clarity to the public
while
[[Page 3116]]
protecting the integrity of paragraph (a)(1) waters, consistent with
the law.
(3) Implementation
This section addresses implementation of the exclusions for certain
other features that were not generally considered jurisdictional under
the pre-2015 regulatory regime in the order in which the relevant
provision appears in the regulatory text.
In this rule, the agencies clarify their longstanding view that the
exclusion for certain artificially irrigated areas applies only to the
specific land being directly irrigated that would reasonably revert to
dry land should irrigation cease. The exclusion does not apply to all
waters within watersheds where irrigation occurs.
Questions have arisen in the past regarding whether a feature that
initially satisfied the terms of an exclusion but no longer satisfies
those terms continues to be excluded from jurisdiction. For example, if
an artificial pond created by excavating land to collect and retain
water is initially used exclusively for stock watering, irrigation,
settling basins, or rice growing but is subsequently used for a
different purpose, the question has arisen whether that pond is still
excluded from jurisdiction. Consistent with the agencies' longstanding
practice, if a previously excluded feature no longer meets the terms of
the exclusion, it is no longer excluded. If it no longer satisfies the
terms of an exclusion, it would be jurisdictional if it otherwise meets
the definition of ``waters of the United States'' under this rule.
The agencies recognize that artificial lakes and ponds are often
used for more than one purpose and can have other beneficial purposes,
such as animal habitat, water retention, or recreation. For example,
artificial lakes and ponds that are created by excavating dry land to
collect and retain water for stock watering are often extensively used
by waterfowl and other wildlife. The agencies' historic practice, which
the agencies intend to continue under this rule, is to consider these
features as excluded even when there is another incidental beneficial
use of the feature.
The artificial lakes and ponds exclusion applies only to those
lakes and ponds that satisfy the terms of the exclusion. Paragraph
(a)(2) impoundments are not covered under this exclusion. This
exclusion only applies to features that were excavated in dry land or
were diked in dry land. Paragraph (a)(2) impoundments are not excavated
in dry land or diked in dry land. However, consistent with the
agencies' longstanding practice, when an applicant receives a permit to
impound ``waters of the United States'' to construct a waste treatment
system, the resulting waste treatment system is subject to that
exclusion as long as it is used for this permitted purpose. See the
discussion above regarding waste treatment systems.
Artificial lakes and ponds that satisfy the terms of the exclusion
would not be jurisdictional under this rule even if they have a
hydrologic surface connection to ``waters of the United States.'' Non-
jurisdictional conveyances created in dry land that are physically
connected to and are a part of the excluded feature remain excluded.
Swales and erosional features are excluded when characterized by
low volume, infrequent, or short duration flow. Swales are generally
shallow features in the landscape that may convey water across dry land
areas during and following storm events and typically have grass or
other low-lying vegetation throughout the swale. While a swale is a
discrete topographic feature, it does not have a defined channel, nor
an OHWM. This distinguishes a swale from an ephemeral stream because
ephemeral streams typically have a channel and at least one indicator
of an OHWM. See section IV.A.ii of the Technical Support Document for
additional discussion of swales. Erosional features can typically be
distinguished from swales because erosional features are generally
deeper than swales and have an absence of vegetation. Erosional
features can be distinguished from tributaries by the absence of a
channel and an OHWM. Concentrated surface runoff can occur within
erosional features without creating the permanent physical
characteristics associated with a channel and OHWM. Some ephemeral
streams are colloquially called ``gullies'' or the like even when they
exhibit a channel and an OHWM. Regardless of the name they are given
locally, waters that are tributaries under this rule are not excluded
erosional features. See Technical Support Document section IV.A.ii for
additional discussion on how to distinguish between tributaries,
swales, and erosional features.
Erosional features like rills and gullies also typically lack a
defined channel and an OHWM. Rills are very small incisions formed by
overland water flows eroding the soil surface during rainstorms. Rills
are less permanent on the landscape than streams. Gullies tend to be
much smaller than streams, and are often deeper than they are wide,
with very steep banks. Gullies are commonly found in areas without much
vegetation or with soils that are prone to erosion.
8. Other Definitions
The final rule regulatory text defines the terms ``wetlands,''
``high tide line,'' ``ordinary high water mark,'' and ``tidal water.''
The definitions of these four terms in the final rule are identical to
the definitions of these terms in the 1986 regulations, 2019 Repeal
Rule, and 2020 NWPR. While the 1986 regulations included these
definitions only in the Corps' regulations, not EPA's regulations, the
2015 Clean Water Rule and 2020 NWPR included these definitions in both
agencies' regulations. To provide additional clarity and consistency in
comparison to the 1986 regulations, the final rule includes these
definitions in both agencies' regulations. The agencies are not
amending the definitions of these terms from the 1986 regulations.
The regulatory text in the final rule also defines the term
``adjacent.'' The agencies amended the definition of ``adjacent'' in
the 2020 NWPR but are returning to the longstanding definition of that
term in the 1986 regulations. Returning to the definition of
``adjacent'' from the 1986 regulations is consistent with the agencies'
intent to return to the pre-2015 regulatory regime's approach to
``waters of the United State.'' This section briefly describes these
five definitions and their history and implementation. See section IV.G
of this preamble and previous sections of IV.C of this preamble above
for further discussion on implementation.
Many commenters suggested that the agencies include additional
definitions in this rule, including definitions for ``navigable'';
``similarly situated''; ``tributary''; and ``physical integrity,''
``chemical integrity,'' and ``biological integrity.'' The agencies find
that the regulatory text in this rule and the preamble's explanation of
the regulatory text clearly present the agencies' definition of
``waters of the United States'' and that additional definitions are not
needed. Moreover, the agencies seek to avoid regulatory language that
is overly detailed or prescriptive, as interpretations of some of these
terms could vary depending on the region or evolve over time with
scientific advances.
a. Wetlands
This rule makes no changes to the definition of ``wetlands''
contained in the 1986 regulations (and in the 2020 NWPR, which made no
changes to the 1986 regulation). ``Wetlands'' are defined as ``those
areas that are inundated or saturated by surface or
[[Page 3117]]
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.'' Wetlands
have been defined in the Corps' regulations since 1975 and in EPA's
regulations since 1979, with only minor differences from the 1986
regulations. The agencies are not amending this longstanding definition
in this rule.
Wetlands, including ``the classic swamplands in the Southeast, such
as the great Okefenokee, the Great Swamp of New Jersey, . . . the
majestic, sweeping marshes of the Everglades, the remote Alakai in
Hawaii, and the tiny bogs of New England,'' Senate Debate, August 4,
1977, Comments of Mr. Chafee at 13560, are ``transitional areas between
terrestrial and aquatic ecosystems.'' Science Report at 2-5. Scientific
systems for classifying areas as wetlands vary but typically include
three components: ``the presence of water, either at the surface or
within the root zone,'' ``unique soil conditions,'' and the presence of
vegetation ``adapted to the wet conditions.'' \121\ The agencies'
longstanding definition of wetlands, unchanged in this rule, requires
these three factors of hydrology, hydric soils, and hydrophytic
vegetation under normal circumstances.
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\121\ See William J. Mitsch & James G. Gosselink, Wetlands at 29
(5th ed. 2015).
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Due to the many important functions that wetlands perform that
impact the integrity of paragraph (a)(1) waters, wetlands have long
been considered waters that can be subject to Clean Water Act
jurisdiction. The Corps first added wetlands explicitly in the
definition of ``waters of the United States'' in 1975 and EPA did the
same in 1979. 40 FR 31320, 31324-5 (July 25, 1975); 44 FR 32854, 32901
(June 7, 1979). In contrast, as discussed in section IV.C.7 of this
preamble, dry lands are areas that do not meet all three wetland
factors and that are not other waterbody types (such as lakes, ponds,
streams, ditches, and impoundments). For example, an area that under
normal circumstances contains only hydrophytic vegetation without the
presence of wetland hydrology and hydric soils and that lacks an OHWM
would typically be considered dry land. Only those wetlands that meet
the provisions to be a paragraph (a)(1) water, jurisdictional adjacent
wetland, paragraph (a)(2) impoundment, or paragraph (a)(5) water would
be considered ``waters of the United States'' under this rule.
As under prior regimes, wetlands are identified in the field in
accordance with the 1987 U.S. Army Corps of Engineers 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.\122\
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\122\ Examples include USGS topographic maps (available at
https://www.usgs.gov/the-national-map-data-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/program/national-wetlands-inventory/wetlands-mapper).
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b. Adjacent
This rule defines the term ``adjacent'' with no changes from the
45-year-old definition. ``Adjacent'' is defined 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 the text of
the statute, Supreme Court case law, and science. See, e.g., Riverside
Bayview, 474 U.S. at 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.''). Thus, the longstanding definition
of ``adjacent'' reasonably advances the objective of the Clean Water
Act. To be jurisdictional under this rule, however, wetlands must meet
this definition of adjacent and either be adjacent to a traditional
navigable water, the territorial seas, or an interstate water, or
otherwise fall within the adjacent wetlands provision and meet either
the relatively permanent standard or the significant nexus standard.
The determination of whether a wetland is ``adjacent'' is distinct from
whether an ``adjacent'' wetland meets the relatively permanent
standard; however, wetlands that have a continuous surface connection
to a relatively permanent water meet the definition of ``adjacent'' and
are, therefore, a subset of adjacent wetlands. See section IV.C.5 of
this preamble for further discussion of the adjacent wetlands provision
of this rule.
The longstanding definition, by its terms, does not require flow
from the wetland to the jurisdictional water or from the jurisdictional
water to the wetland (although such flow in either direction can be
relevant to the determination of adjacency). The Supreme Court in
Riverside Bayview, in deferring to the Corps' ecological judgment about
the relationship between waters and their adjacent wetlands as an
``adequate basis for a legal judgment that adjacent wetlands may be
defined as waters under the Act,'' rejected an argument that such
wetlands had to be the result of flow in a particular direction to be
adjacent: ``This holds true even for wetlands that are not the result
of flooding or permeation by water having its source in adjacent bodies
of open water. The Corps has concluded that wetlands may affect the
water quality of adjacent lakes, rivers, and streams even when the
waters of those bodies do not actually inundate the wetlands. For
example, wetlands that are not flooded by adjacent waters may still
tend to drain into those waters. In such circumstances, the Corps has
concluded that wetlands may serve to filter and purify water draining
into adjacent bodies of water, see 33 CFR 320.4(b)(2)(vii) (1985), and
to slow the flow of surface runoff into lakes, rivers, and streams, and
thus prevent flooding and erosion, see Sec. Sec. 320.4(b)(2)(iv) and
(v). 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.' '' 447 U.S at 134-35.
The agencies will continue their longstanding practice under this
definition and consider wetlands adjacent if one of the following three
criteria is satisfied. First, there is an unbroken surface or shallow
subsurface connection to jurisdictional waters. All wetlands that
directly abut jurisdictional waters have an unbroken surface or shallow
subsurface connection because they physically touch the jurisdictional
water. Wetlands that do not directly abut a jurisdictional water may
have an unbroken surface or shallow subsurface connection to
jurisdictional waters. Water does not need to be continuously present
in the surface or shallow subsurface connection. Second, they are
physically separated from jurisdictional waters by ``man-made dikes or
barriers, natural
[[Page 3118]]
river berms, beach dunes, and the like.'' Or third, their proximity to
a jurisdictional water is reasonably close, such that ``adjacent
wetlands have significant effects on water quality and the aquatic
ecosystem.'' Riverside Bayview, 474 U.S. at 135 n.9. See section IV.C.5
of this preamble.
``Adjacent'' under the well-established definition the agencies are
maintaining in this rule includes wetlands separated from other
``waters of the United States'' by ``man-made dikes or barriers,
natural river berms, beach dunes, and the like.'' Such adjacent
wetlands continue to have a hydrologic connection to the water to which
they are adjacent 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. As noted above, the Supreme Court has concluded 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. Riverside Bayview, 474 U.S. at 134-35.
In addition, river berms, natural levees, and beach dunes are all
examples of landforms 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, and the openings in these levees allow for a hydrologic
connection to the stream or river 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 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 \123\ 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, including filtering pollutants and
sediment before they reach other jurisdictional waters and ultimately a
paragraph (a)(1) water. Wetlands behind berms, where the system is
extensive, can help reduce the impacts of storm surges caused by
hurricanes. Adjacent wetlands separated from jurisdictional waters by
berms and the like also 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 use
both the wetlands and the nearby water 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
use both habitats despite the presence of such a berm. In some cases,
the natural landform or artificial barrier can provide extra refuge
from predators, for rearing young, or other life cycle needs.
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\123\ While the agencies use the phrase ``human-made'' in place
of ``man-made'' in many instances throughout this preamble, they are
retaining the phrase ``man-made'' in the regulatory text's
definition of ``adjacent'' to maintain consistency with the 1986
regulatory text.
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The agencies received a number of comments on the definition of
``adjacent.'' Many commenters supported the continued use of the well-
established definition, while several commenters suggested that the
agencies should use only the relatively permanent standard or continue
the approach to adjacent wetlands that was included in the 2020 NWPR.
Some commenters critiqued the proposed definition of ``adjacent,'' with
some stating that the definition was ``overly-broad and ambiguous.'' A
commenter asserted that the word ``adjacent'' should be given its plain
meaning for the sake of regulatory certainty, adding that the term
``neighboring'' within the definition of ``adjacent'' goes ``beyond the
ordinary understanding'' of adjacency. The agencies disagree with these
commenters and are finalizing the longstanding definition of
``adjacent.'' In section IV.A.3.b.ii of this preamble, the agencies
concluded that the relatively permanent standard is insufficient as the
sole standard for geographic jurisdiction under the Clean Water Act.
The 2020 NWPR's limits on the scope of jurisdictional adjacent wetlands
were based on an interpretation of the relatively permanent standard.
Therefore, the agencies have concluded that the 2020 NWPR's approach to
adjacent wetlands is inconsistent with the statute for the same reasons
the relatively permanent standard is when used as the sole standard.
The record demonstrates the effects of wetlands on the integrity of
paragraph (a)(1) 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;
wetlands with shallow subsurface connections to other protected waters;
wetlands separated from other protected waters by artificial barriers
but that lack a direct hydrologic surface connection to those waters in
a typical year; or other wetlands proximate to jurisdictional waters.
As discussed in section IV.B.3 of this preamble, within the first year
of implementation of the 2020 NWPR, 70% of streams and wetlands
evaluated were found to be non-jurisdictional, including 15,675
wetlands that did not meet the 2020 NWPR's revised adjacency criteria.
The substantial increase in waters lacking Federal protection
compromises the agencies' ability to fulfill the objective of the Clean
Water Act to protect the integrity of a large swath of the nation's
waters (see section IV.B.3 of this preamble). Neither Tribal nor State
regulations have been passed to fill this gap.
Retaining the longstanding definition of ``adjacent'' is also
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, the
territorial seas, and interstate waters. See section IV.A of this
preamble.
The agencies agree with commenters who stated that it is
appropriate to include wetlands behind natural and artificial berms and
the like as adjacent wetlands for the reasons discussed in section IV.A
of this preamble. As noted above, adjacent wetlands behind natural and
artificial berms can serve important water quality functions, such as
filtering pollutants and sediment before they reach other
jurisdictional waters and ultimately paragraph (a)(1) waters, and can
help reduce the impacts of storm surges caused by hurricanes; see also
section III.B of the Technical Support Document. The Supreme Court in
Riverside Bayview deferred to the agencies' interpretation of the Clean
[[Page 3119]]
Water Act to include adjacent wetlands. Riverside Bayview, 474 U.S. at
135 (``[T]he 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, 547 U.S. at 775.
The agencies also disagree that regulatory certainty requires
revision of the definition of adjacent, including deleting the term
``neighboring.'' Regulatory certainty is provided by the fact that the
agencies are retaining the definition that has been in place for
decades and will continue to interpret and implement it as they have
for decades. In addition, the longstanding regulation properly defines
the term ``adjacent'' for purposes of the Clean Water Act because it is
based on the concept of both reasonable proximity and scientific
connections.
c. High Tide Line
This rule makes no changes to the definition of ``high tide line''
contained in the 1986 regulations (and in the 2020 NWPR, which made no
changes to the 1986 regulation). The term ``high tide line'' is defined
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
amending this definition. This definition has been in place since 1977
(see 42 FR 37144 (July 19, 1977); 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
This rule makes no changes to the definition of ``ordinary high
water mark'' (``OHWM'') contained in the 1986 regulations (and in the
2020 NWPR, which made no changes to the 1986 regulation). OHWM is
defined 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.'' 33 CFR 328.3(e) (2014). This term, unchanged
since 1977, see 41 FR 37144 (July 19, 1977), 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 to the limits of the adjacent wetlands. 33 CFR 328.4; RGL 05-05 at
1 (December 7, 2005).
e. Tidal Water
This rule makes no changes to the definition of ``tidal water''
contained in the 1986 regulations (and in the 2020 NWPR, which made no
changes to the 1986 regulation). The term ``tidal water'' is defined 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 (see, e.g., 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
amending this definition in this rule.
9. Significantly Affect
a. This Rule
As discussed above, waters are protected by the Clean Water Act
under this rule if they meet the significant nexus standard; that is,
they alone, or in combination with other similarly situated waters in
the region, significantly affect the chemical, physical, or biological
integrity of the waters identified in paragraph (a)(1) of this rule.
This rule defines the term ``significantly affect'' for these purposes
to mean ``a material influence on the chemical, physical, or biological
integrity of '' a paragraph (a)(1) water. Under this rule, waters,
including wetlands, are evaluated either alone or in combination with
other similarly situated waters in the region based on the functions
the evaluated waters perform. This rule identifies specific functions
that will be assessed \124\ and identifies specific factors that will
be considered when determining whether the functions provided by the
water, alone or in combination, have a material influence on the
integrity of a traditional navigable water, the territorial seas, or an
interstate water. Thus, the significant nexus standard concerns the
effects of waters on paragraph (a)(1) waters; it is not an assessment
of whether a particular discharge of a pollutant will have an effect on
a paragraph (a)(1) water, although, of course, contribution of flow and
the associated transport of pollutants are important functions of
upstream waters and are identified in the rule. Essentially, this
provision of the rule provides regulators and the public with a clear
framework for the significant nexus analysis that will be done on a
case-specific basis under the rule: (1) the functions that will be
assessed are clearly identified and constitute the ``nexus'' between
the waters being assessed and the paragraph (a)(1) water, and (2) the
logical and practical factors that will be considered to figure out the
strength, or ``significance,'' of those functions for the integrity of
the paragraph (a)(1) water are explicitly established.
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\124\ The agencies are not requiring the use of ``functional
assessments'' for significant nexus analyses under this rule; see
section IV.C.9.c of this preamble for further discussion.
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The functions identified in the rule are based on the well-known
benefits that lakes and ponds, streams, and
[[Page 3120]]
wetlands can provide to paragraph (a)(1) waters. See section IV.A.2.c
of this preamble. Wetlands, for example, function like natural tubs or
sponges, storing water and slowly releasing it. This process slows the
water's momentum and erosive potential, reduces flood heights, and
allows for groundwater recharge, which contributes baseflow to surface
water systems during dry periods. An acre of wetland can store 1-1.5
million gallons of floodwater. After being slowed by a wetland, water
moves around plants, allowing the suspended sediment to drop out and
settle to the wetland floor. Nutrients that are dissolved in the water
are often absorbed by plant roots and microorganisms in the soil. Other
pollutants stick to soil particles. In many cases, this filtration
process removes much of the water's nutrient and pollutant load by the
time it leaves a wetland. Wetlands are also some of the most
biologically productive natural ecosystems in the world, comparable to
tropical rain forests and coral reefs in their productivity and the
diversity of species they support. Abundant vegetation and shallow
water provide diverse habitats for fish and wildlife. Seventy-five
percent of commercially harvested fish are wetland-dependent. Add
shellfish species and that number jumps to 95 percent. Streams are the
dominant source of water in most rivers, and they also convey water
into local storage compartments, such as ponds, shallow aquifers, or
stream banks, that are important sources of water for maintaining
baseflow in rivers. Discharging pollutants or filling in some lakes and
ponds, streams, and wetlands reduces the amount of rainwater, runoff,
and snowmelt the stream network can absorb before flooding. The
increased volume of water in small streams scours stream channels,
changing them in a way that promotes further flooding. Such altered
channels have bigger and more frequent floods. The altered channels are
also less effective at recharging groundwater, trapping sediment, and
recycling nutrients. As a result, downstream lakes and rivers have
poorer water quality, less reliable water flows, and less diverse
aquatic life. Algal blooms and fish kills can become more common,
causing problems for commercial and sport fisheries. Recreational uses
may be compromised. In addition, the excess sediment can be costly,
requiring additional dredging to clear navigational channels and
harbors and increasing water filtration costs for municipalities and
industry. See, e.g., sections I and III of the Technical Support
Document. So the significant nexus standard is focused on identifying
those lakes and ponds, streams, and wetlands that provide these well-
understood functions such that they need baseline Federal protections
under the Clean Water Act in order to protect the integrity of
traditional navigable waters, the territorial seas, and interstate
waters. As discussed elsewhere, a determination that a water falls
within the definition of ``waters of the United States'' does not mean
that discharges or activities cannot occur in that water. See section
IV.C.10 of this preamble.
The functions assessed in this rule are well-known indicators that
are tied to the chemical, physical, or biological integrity of
paragraph (a)(1) waters. The functions assessed are: contribution of
flow; trapping, transformation, filtering, and transport of materials
(including nutrients, sediment, and other pollutants); retention and
attenuation of floodwaters and runoff; modulation of temperature in
paragraph (a)(1) waters; or provision of habitat and food resources for
aquatic species located in paragraph (a)(1) waters.
The factors considered in this rule are readily understood criteria
that influence the types and strength of chemical, physical, or
biological connections and associated effects on paragraph (a)(1)
waters. In other words, the factors are site-specific conditions that
influence the strength of the functions that lakes and ponds, streams,
and wetlands provide to paragraph (a)(1) waters. These factors include
the distance from a paragraph (a)(1) water; hydrologic factors, such as
the frequency, duration, magnitude, timing, and rate of hydrologic
connections, including shallow subsurface flow; the size, density, or
number of waters that have been determined to be similarly situated;
landscape position and geomorphology; and climatological variables such
as temperature, rainfall, and snowpack. The first two factors
identified in the regulatory definition are key to a significant nexus
determination: distance and hydrology. 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 the
functions provided by upstream waters to paragraph (a)(1) waters
relevant to achieving the Clean Water Act's objective. The significant
nexus standard in this rule is carefully constructed to fall within the
bounds of the Clean Water Act. Not all waters subject to evaluation
under the significant nexus standard will have the requisite connection
to paragraph (a)(1) waters sufficient to be determined jurisdictional.
In conducting a significant nexus evaluation, the agencies will
consider each factor in the rule to evaluate the likely strength of any
effect of functions on a paragraph (a)(1) water. For example, in
evaluating a stream, under the first factor, the agencies will consider
the distance of the stream from the paragraph (a)(1) water. Under the
second factor, the agencies will consider hydrologic factors, such as
the amount of water from the stream that reaches the paragraph (a)(1)
water. Under the third factor, the agencies will consider the size,
density, or number of similarly situated waters, such as, for example,
the length, width, and depth of the stream. Under the fourth factor,
the agencies will evaluate landscape position and geomorphology, such
as the soil type and slope between the stream and the paragraph (a)(1)
water. Finally, under the fifth factor, the agencies will evaluate the
climate in the area of the stream, such as whether high temperatures
lead to high evaporation rates. After noting the relevant factors,
agencies will then apply them to the list of functions to determine the
strength of the functions that the stream provides to the paragraph
(a)(1) water. As noted above, the first two factors, distance from the
paragraph (a)(1) water and hydrology, will generally be given the
greatest weight in the assessment of functions provided.
The agencies regularly determine that waters do not have the
requisite significant nexus. First, the standard is limited to
consideration of effects on traditional navigable waters, the
territorial seas, and interstate waters. Second, the standard is
limited to effects only on the three statutorily identified aspects of
those fundamental waters: chemical, physical, or biological integrity.
Third, the standard cannot be met by merely speculative or
insubstantial effects on those aspects of those paragraph (a)(1)
waters, but rather requires the demonstration of a ``material
influence.'' In this rule, the agencies have specified that a
``material influence'' is required for the significant nexus standard
to be met. The phrase ``material influence'' establishes that the
agencies will be assessing the influence of the waters either alone or
in combination on the chemical, physical, or biological integrity of a
paragraph (a)(1) water and will provide qualitative and/or quantitative
information and articulate a reasoned basis for determining that the
waters being
[[Page 3121]]
assessed significantly affect a paragraph (a)(1) water.
This section of the preamble addresses public comment on the
definition of ``significantly affect'' and on the agencies'
interpretation and implementation of the definition. This section then
provides the agencies' general approach to implementation of the
definition, including elements of the definition such as ``similarly
situated'' and ``in the region'' for purposes of a significant nexus
analysis. Discussion of the agencies' approach to implementation of the
significant nexus standard for particular categories of waters can be
found in the sections of this preamble addressing tributaries, adjacent
wetlands, and paragraph (a)(5) waters. See sections IV.C.4.c, IV.C.5.c,
and IV.C.6.c of this preamble.
b. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
i. Comments on the Definition of ``Significantly Affect''
The agencies received numerous comments on the definition of
``significantly affect,'' including the standard established by the
definition, and the factors and functions.
Some commenters asserted that the phrase ``more than speculative or
insubstantial'' in the proposed rule is open-ended, subjective, broad,
and could increase the number of jurisdictional waters as compared to
the pre-2015 regulatory regime. Commenters were concerned that while
waters that have speculative or insubstantial effects on paragraph
(a)(1) waters do not meet the significant nexus standard, the proposed
language was unclear and implied that no additional findings were
required. In response to public comment, this rule replaces the phrase
``more than speculative or insubstantial'' effects in the definition of
``significantly affect.'' Commenters were concerned that while waters
that have speculative or insubstantial effects on paragraph (a)(1)
waters do not meet the significant nexus standard, the proposed
language was unclear and implied that no additional findings were
required. This rule requires that waters have a ``material influence,''
and the agencies have concluded that this term will increase the
clarity and transparency of this rule.
The agencies have concluded that this term will increase the
clarity of this rule. In assessing whether a water meets the
significant nexus standard, the agencies will continue to examine the
``influence'' of the subject waters on the paragraph (a)(1) water. And
the ``influence'' must be ``material''--the agencies must explain why
the subject waters, either alone or in combination with similarly
situated waters, matters to the integrity of the paragraph (a)(1)
water. The word ``material'' also reflects not only that the influence
is, of course, more than speculative or insubstantial, but that the
agencies will provide qualitative and/or quantitative information and
articulate a reasoned basis for determining that a significant nexus
exists, consistent with longstanding practice. The phrase ``material
influence'' thus reflects the agencies' longstanding position that
significant nexus determinations should be supported by the factual
record, relevant scientific data and information, and available tools.
And that record, data and information, and tools must show, either
quantitively or qualitatively based on the five factors, that the
subject waterbody provides functions that materially influence the
chemical, physical, or biological integrity of a paragraph (a)(1)
water. The agencies have provided a number of examples in this section
of waters that do not have a ``material influence,'' and therefore do
not meet the significant nexus standard. The agencies will continue to
document the required findings as part of the administrative record.
See, for example, direction to field staff under the Rapanos Guidance
at 11 (``Accordingly, Corps districts and EPA regions shall document in
the administrative record the available information regarding whether a
tributary and its adjacent wetlands have a significant nexus with a
traditional navigable water, including the physical indicators of flow
in a particular case and available information regarding the functions
of the tributary and any adjacent wetlands.'').
Some commenters supported the proposed definition of
``significantly affect'' as ``more than speculative or insubstantial''
effects on paragraph (a)(1) waters. Other commenters asserted that
``more than speculative or insubstantial'' does not mean an effect is
significant, and some of these commenters requested that the agencies
use quantitative or statistical thresholds to determine significance.
Commenters generally requested clarification on how to determine if
effects are significant or not. One commenter recommended that waters
should be considered to ``significantly affect'' downstream
jurisdictional waters unless a science-based determination shows that
the effects are so speculative or insubstantial as to not affect the
integrity of downstream waters. Another commenter recommended that an
effect should only be significant if it would cause the paragraph
(a)(1) water to exceed applicable water quality standards.
The agencies disagree that a quantitative or statistical threshold
should be required to determine significance for several reasons.
First, the statute contains no text suggesting that the scope of the
``waters of the United States'' must be identified based on a
quantitative or statistical threshold, nor is a quantitative or
statistical assessment necessary to meet the statutory objective the
definition is designed to achieve: ``to restore and maintain the
chemical, physical and biological integrity of the Nation's waters.''
33 U.S.C. 1251(a). Second, such an approach would be unworkable given
the extensive regional differences in water systems and the variability
of individual waterbodies across the nation. For this reason, the
agencies have long established the practice of site-specific
assessment. Third, the appellate courts have not held that the term
``significant'' for purposes of Clean Water Act jurisdiction requires
statistical significance or quantitative measurement. See, e.g., Precon
Dev. Corp., Inc. v. U.S. Army Corps of Eng'rs, 603 Fed. Appx. 149, 151-
52 (4th Cir. 2015) (``Precon II'') (unpublished opinion); Cundiff, 555
F.3d at 211 (``Though no doubt a district court could find such
evidence persuasive, the Cundiffs point to nothing--no expert opinion,
no research report or article, and nothing in any of the various
Rapanos opinions--to indicate that [laboratory analysis] is the sole
method by which a significant nexus may be proved . . . .''). The Court
of Appeals for the Fourth Circuit has noted that the standard ``is a
`flexibly ecological inquiry,' '' and that ``[q]uantitative or
qualitative evidence may support [applicability of the CWA].'' Precon
II, 603 Fed. Appx. at 151-52 (citation omitted). The same court also
has clarified that the burden of establishing applicability of the
Clean Water Act should not be ``unreasonable.'' Precon Dev. Corp., Inc.
v. U.S. Army Corps of Eng'rs, 633 F.3d 278, 297 (4th Cir. 2011)
(``Precon I''). While the appellate courts have accepted laboratory
analysis or quantitative or empirical data, see, e.g., United States v.
Donovan, 661 F.3d 174, 186 (3d Cir. 2011); Northern California River
Watch v. City of Healdsburg, 496 F.3d 993, 1000-1001 (9th Cir. 2007),
such quantitative evidence is not required. Precon I, 633 F.3d at 294
(``We agree that the significant nexus test does
[[Page 3122]]
not require laboratory tests or any particular quantitative
measurements in order to establish significance.''). The appellate
courts have accepted a variety of evidence, including but not limited
to, photographs, visual observation of stream condition, flow and
morphology, studies, dye tests, scientific literature, maps, aerial
photographs, and remote sensing data. United States v. Lucas, 516 F.3d
316, 326-27 (5th Cir. 2008); see also Deerfield Plantation Phase II-B
Property Owners Ass'n v. U.S. Army Corps of Eng'rs, 501 Fed. Appx. 268,
270 (4th Cir. 2012) (unpublished opinion) (noting that in addition to
conducting two site visits, the Corps relied upon infrared aerial
photography, agency records, a county soil survey, a topographic map,
and a wetland inventory); Donovan, 661 F.3d at 185-86. As under the
pre-2015 regulatory regime, the agencies will continue to reasonably
determine, based on the record before them, if a water, either alone or
in combination with similarly situated waters in the region,
significantly affects a paragraph (a)(1) water.
Some commenters agreed with the agencies that a water may
constitute ``waters of the United States'' when it significantly
affects any one form of chemical, physical, or biological integrity of
a paragraph (a)(1) water. However, other commenters disagreed and
stated that a water should significantly affect all three forms of
integrity--chemical, physical, and biological--to be considered
``waters of the United States.'' Some of these commenters asserted that
the use of ``or'' has the potential to greatly expand the scope of
jurisdiction. The agencies disagree that this approach would expand the
scope of jurisdiction because it is consistent with the pre-2015
regulatory regime and longstanding practice. The agencies acknowledge
that Justice Kennedy used the conjunction ``and'' when concluding 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.' '' Rapanos, 547 U.S. at 780. However, the agencies
disagree that the use of the word ``and'' in this context represents a
holding by Justice Kennedy that only a water that alone or combination
significantly affects every single aspect of integrity is
jurisdictional. It is simply not reasonable to read Justice Kennedy's
opinion to stand for the proposition that a wetland that provides
important pollutant retention and trapping functions that protect the
chemical integrity of a paragraph (a)(1) water and also provides
important benefits for the salmon population of that river is not
jurisdictional because it does not also significantly affect the
physical structure of that water. In any case, the agencies are not
implementing a Supreme Court opinion, but rather are construing the
Clean Water Act, as informed by relevant Supreme Court opinions.
Congress intended the Clean Water Act to ``restore and maintain'' all
three forms of ``integrity,'' section 101(a), so if any one of them is
compromised, then the statute's stated objective would be contravened.
It would be contrary to the plain language of the statute and subvert
the law's objective if the Clean Water Act only protected paragraph
(a)(1) waters upon a showing that there were effects on every attribute
of their integrity. This interpretation is consistent with the
agencies' longstanding position. 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.
Some commenters stated that the proposed definition of
``significantly affect'' was too expansive and would allow the agencies
to assert jurisdiction over any body of water, no matter the size, even
if connections are remote or scientifically questionable. Some
commenters asserted that overall, the proposed definition of
``significantly affect'' was unclear, difficult to understand, and
provides the agencies with too much discretion to make jurisdictional
decisions. A couple of these commenters stated that the definition
would require case-by-case assessments and as a result, the approach
does not give fair notice to stakeholders of when the Clean Water Act
applies. The agencies disagree for the reasons outlined below,
including that this rule's definition of ``significantly affect'' is
consistent with case law and the science and places appropriate
limitations on the significant nexus standard.
The agencies' definition of the term ``significantly affect'' in
this rule is linked directly to the objective of the Act and to the
effects upstream waters have on the water quality of paragraph (a)(1)
waters. The definition is also informed by and consistent with Supreme
Court case law addressing the scope of ``waters of the United States.''
Beginning with Riverside Bayview, the Supreme Court stated that the
``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 is [are]
maintained.' H.R. Rep. No. 92-911, p. 76 (1972).'' 474 U.S. at 132. The
definition of ``significantly affect'' finds further support in the
Court's conclusion that: ``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.'' Id. at 138 n.9. The majority opinion in SWANCC
introduced the phrase ``significant nexus'' as the concept that
informed the Court's reading of Clean Water Act jurisdiction over
waters that are not navigable in fact. 531 U.S. at 167, 172. Based on
SWANCC, Justice Kennedy's concurrence in Rapanos stated that to
constitute ``waters of the United States'' covered by the Clean Water
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.'' 547 U.S. at 759 (Kennedy, J., concurring in the judgment)
(citing SWANCC, 531 U.S. at 167, 172). And five Justices support
jurisdiction under Justice Kennedy's conclusion 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.' '' 547
U.S. at 780.
Justice Kennedy's assessment of the facts and the evidence in the
cases before the justices further inform the scope of this rule's
definition of ``significantly affect.'' In Rapanos, Justice Kennedy
stated that in both the consolidated cases before the Court the record
contained evidence suggesting the possible existence of a significant
nexus according to the principles he identified. See id. at 783.
Justice Kennedy concluded that ``the end result in these cases and many
others to be considered by the Corps may be the same as that suggested
by the dissent, namely, that the Corps' assertion of jurisdiction is
valid.'' Id. Justice Kennedy remanded the cases because neither the
agency nor the reviewing courts applied the proper legal standard. See
id. Justice Kennedy was clear however, that ``[m]uch the same
[[Page 3123]]
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.
With respect to one of the wetlands at issue in the consolidated
Rapanos cases, Justice Kennedy stated: ``In Carabell, No. 04-1384, the
record also contains evidence bearing on the jurisdictional inquiry.
The Corps noted in deciding the administrative appeal that `[b]esides
the effects on wildlife habitat and water quality, the [district
office] also noted that the project would have a major, long-term
detrimental effect on wetlands, flood retention, recreation and
conservation and overall ecology.' . . . The Corps' evaluation further
noted that by `eliminat[ing] the potential ability of the wetland to
act as a sediment catch basin,' the proposed project `would contribute
to increased runoff and . . . accretion along the drain and further
downstream in Auvase Creek.' And it observed that increased runoff from
the site would likely cause downstream areas to `see an increase in
possible flooding magnitude and frequency.' '' Id. at 785-86 (citations
omitted). Justice Kennedy also expressed concern that ``[t]he
conditional language in these assessments--`potential ability,'
`possible flooding'--could suggest an undue degree of speculation.''
Id. at 786. Justice Kennedy's observations regarding the underlying
case inform this rule's definition of ``significant nexus'': the
functions and factors established by the definition are consistent with
those identified as relevant by Justice Kennedy, and the requirement
that waters have a ``material influence'' on paragraph (a)(1) waters
ensures that the assessment under the significant nexus standard is
well-documented and reasonable based on that record.
This rule's definition of ``significantly affect'' is also
consistent with the best available information, as summarized in the
Science Report and the Technical Support Document. See section III.E of
the Technical Support Document. 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 chemical, physical, and biological environments
and by human activities. Those spatial and temporal variations are
reflected in the agencies' final rule defining ``significantly affect''
to mean ``a material influence,'' in the functions the agencies assess,
and in the factors they use to consider the strength of those
functions.
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 in the region
significantly affects the chemical, physical, or biological integrity
of a paragraph (a)(1) water. The agencies under the pre-2015 regulatory
regime routinely conducted case-specific significant nexus analyses and
in many cases concluded that there was no significant nexus. Based on
the agencies' experience, many waters under this rule will not have a
significant nexus to paragraph (a)(1) waters, and thus will not be
jurisdictional under the Clean Water Act. The agencies also note that
the vast majority of resources assessed in approved jurisdictional
determinations under the Rapanos Guidance were not assessed under the
significant nexus standard. Historically, roughly 12% of resources
assessed in approved jurisdictional determinations under the Rapanos
Guidance required a significant nexus analysis. It is the agencies'
expectation that the number of significant nexus analyses will increase
under this rule due to the assessment of waters under paragraph (a)(5)
pursuant to the significant nexus standard, but it is correspondingly
expected that the percent of resources found to be jurisdictional under
significant nexus analyses will decrease because generally waters will
be assessed individually under paragraph (a)(5) to determine if they
meet the significant nexus standard (see section I.B.3.6 of the
Economic Analysis for the final rule).
The agencies disagree that the definition of ``significantly
affect'' and the associated case-by-case assessments do not give fair
notice to stakeholders of when the Clean Water Act applies. Because of
the factual nature of the jurisdictional inquiry, any standard will
require some case-specific factual determinations. The 2020 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). As the Supreme Court has recently recognized in Maui, the
scope of Clean Water Act jurisdiction does not easily 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. Like the Court in Maui, the
agencies have established factors to be used in considering the
strength of the effects on paragraph (a)(1) waters and have identified
the functions they will assess in making significant nexus
determinations under the proposed rule. This definition increases the
implementability of this rule and is consistent with major
congressional objectives, as revealed by the statute's language,
structure, and purposes. This rule also clearly identifies the
categories of waters subject to assessment under the relatively
permanent standard and significant nexus standard and those features
that are excluded from the definition of ``waters of the United
States.'' See section IV.C.10 of this preamble for additional guidance
to landowners on jurisdictional determinations.
Some commenters supported the specific list of factors in the
proposed rule. Other commenters asserted that the list was broad and
unclear, and some of these commenters stated that the factors would
lead to subjective, unpredictable outcomes and lengthy project delays.
Some commenters addressed specific aspects of the proposed factors. For
example, some commenters stated that the proposed factor ``distance
from a paragraph (a)(1) water'' and the proposed factor ``distance from
a water of the United States'' were redundant. Other commenters
requested that the agencies add factors on soil and watershed
characteristics. Some commenters requested specific examples of how the
factors would be implemented and considered together in a significant
nexus determination.
The agencies disagree that the factors listed in the proposed rule
were broad, subjective, and unclear. However, the agencies have
modified the factors in response to public comments and to increase
clarity in this rule. The agencies agree with commenters who asserted
that distance from ``waters of the United States'' is not necessary to
include in light of the other factors, such as distance from a
paragraph (a)(1) water and landscape position and geomorphology, and
have not included the factor in this rule. In response to
[[Page 3124]]
public comments requesting additional detail on how the factors will be
applied, the agencies have modified the proposed language on
``hydrologic factors, including subsurface flow'' in this rule to
provide additional specificity by referring to ``hydrologic factors,
such as the frequency, duration, magnitude, timing, and rate of
hydrologic connections, including shallow subsurface flow.'' The
agencies added a new factor on ``landscape position and geomorphology''
in response to public comments requesting that the agencies consider
watershed and soil characteristics. Landscape position and
geomorphology capture characteristics like topography, slope, and soil
porosity which may, for example, affect the strength of the hydrologic
or biological connections between the subject waters and a paragraph
(a)(1) water.
Some commenters asserted that the proposed factors were only
related to physical integrity, and requested that the agencies add
factors that they asserted are related to chemical and biological
integrity (e.g., water quality parameters, pH, or biological
indicators). The agencies disagree that the factors are only related to
physical integrity. The factors in this rule influence the types and
strength of chemical, physical, or biological connections and
associated effects that streams, wetlands, and open waters have on
paragraph (a)(1) waters. As described further in section IV.C.9.c of
this preamble, in general, identified functions coupled with stronger
factors increase the likelihood of demonstrating a significant nexus.
For example, similarly situated waters that have the capacity to trap
or transform pollutants are more likely to affect the chemical
integrity of a paragraph (a)(1) water if the similarly situated waters
are closer to the paragraph (a)(1) water, or if there is a larger
number or higher density of those similarly situated waters.
Many commenters on the proposal requested that the agencies add a
specific list of functions that upstream wetlands and waters can
provide to paragraph (a)(1) waters to the definition of ``significantly
affect.'' The commenters differed in whether they thought the list
should be exhaustive or non-exhaustive, and whether all functions need
to be demonstrated or just one function needs to be demonstrated to
support a significant nexus determination. Some commenters supported
the use of functions listed in the proposed rule from the Rapanos
Guidance in significant nexus determinations. Some commenters requested
that the agencies consider additional functions that are based on the
best available science. Some commenters asserted that when functions
such as flood storage and pollutant retention result from a lack of
hydrologic connection, those functions should not be considered in a
significant nexus analysis.
The agencies agree that including a list of functions in this rule
would promote clarity and implementation consistency. The agencies
selected a list of functions based on the functions identified in the
Rapanos Guidance discussed in the preamble to the proposed rule, the
agencies' experience implementing the significant nexus standard,
public comments on that list of functions, and consideration of the
best available science. The functions in this rule that can be provided
by tributaries, wetlands, and open waters are keyed to the chemical,
physical, and biological integrity of traditional navigable waters, the
territorial seas, and interstate waters. Additionally, assessment of
the functions in this rule is consistent with the agencies'
implementation of the pre-2015 regulatory regime. See Rapanos Guidance
at 8, 9. The agencies disagree with commenters who asserted that when
functions such as flood storage and pollutant retention result from a
lack of hydrologic connection, those functions should not be assessed
in a significant nexus analysis. Such a rigid, categorical test would
ignore that, even in the absence of a hydrologic connection, an
upstream water could still have an important functional relationship to
a downstream traditional navigable water, the territorial seas, or an
interstate water, most notably where the upstream water retains
floodwaters or pollutants that would otherwise flow downstream to the
traditional navigable water, the territorial seas, or interstate water.
See Technical Support Document section III.D.1; see also 547 U.S. at
775 (Kennedy, J., concurring in the judgment) (``[I]t 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.'').
The identification of each of the functions in this rule is
supported by the best available science. The contribution of flow
downstream is an important function, as upstream waters can be a
cumulative source of the majority of the total mean annual flow to
bigger downstream rivers and waters, including via the recharge of
baseflow. Streams, wetlands, and open waters contribute surface and
subsurface water downstream, and are the dominant sources of water in
most rivers. Contribution of flow can significantly affect the
integrity of downstream paragraph (a)(1) waters, helping to sustain the
volume of water in larger waters which also influences the
concentrations of chemicals within those waters.
Trapping, transformation, filtering, and transporting materials
(including nutrients, sediment, and other pollutants) are important
functions influencing the integrity of paragraph (a)(1) 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 in upstream waters
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 paragraph (a)(1)
waters. Streams, wetlands, and open waters also improve water quality
through the assimilation and sequestration of pollutants, including
chemical contaminants such as pesticides and metals that can degrade
the integrity of paragraph (a)(1) waters. Streams can also transport
excess nutrients, excess sediment, and other pollutants downstream,
such as the case of the tributaries in the Ohio River and Missouri
River Basins that transport excess nitrogen downstream that contributes
to ``dead zones'' in the Gulf of Mexico, or tributaries to the
Guadalupe, San Joaquin, and Sacramento Rivers contributing contaminated
mercury sediments from mine operations to San Francisco Bay.
Contaminants are commonly transported from streams to larger downstream
rivers bound to sediments.
Wetlands and small streams are particularly effective at retaining
and attenuating floodwaters. Streams, wetlands, and open waters affect
the physical integrity of paragraph (a)(1) waters by retaining large
volumes of stormwater that could otherwise negatively affect the
condition or function of those paragraph (a)(1) waters. This retention
and subsequent slowed release of floodwaters can reduce flood peaks in
paragraph (a)(1) waters and can also maintain river baseflows in
paragraph (a)(1) waters by recharging alluvial aquifers.
Water temperature is critical to the distribution and growth of
aquatic life in downstream waters, both directly (through its effects
on organisms) and indirectly (through its effects on other
physiochemical properties, such as dissolved oxygen and suspended
solids). For example, water temperature controls metabolism and level
of
[[Page 3125]]
activity in cold-blooded species like fish, amphibians, and aquatic
invertebrates. Temperature can also control the amount of dissolved
oxygen in streams, as colder water holds more dissolved oxygen, which
fish and other fauna need to breathe. Tributaries provide both cold and
warm water refuge habitats that are critical for protecting aquatic
life in downstream paragraph (a)(1) waters. Floodplain wetlands and
open waters also exert substantial controls on water temperature in the
downgradient tributary network and ultimately in the paragraph (a)(1)
water.
Streams, wetlands, and open waters supply habitat and food
resources for paragraph (a)(1) waters, such as dissolved and
particulate organic matter (e.g., leaves, wood), which support
biological activity throughout the river network. In addition to
organic matter, streams, wetlands, and open waters can also export
other food resources downstream, such as aquatic insects that are the
food source for fish in paragraph (a)(1) waters. The export of organic
matter and food resources downstream is important to maintaining the
food webs and thus the biological integrity of paragraph (a)(1) waters.
Streams, wetlands, and open waters provide life-cycle dependent aquatic
habitat (such as foraging, feeding, nesting, breeding, spawning, and
use as a nursery area) for species located in paragraph (a)(1) waters.
Many species require different habitats for different needs (e.g.,
food, spawning habitat, overwintering habitat), and thus move
throughout a river network over their life-cycles. For example, to
protect Pacific and Atlantic salmon in traditional navigable waters
(and their associated commercial and recreational fishing industries),
protections must be provided from the headwater streams where the fish
are born and spawn to the marine waters where they spend most of their
lives. Additionally, headwater streams can provide refuge habitat when
adverse conditions exist in the larger waterbodies downstream, enabling
fish to persist and recolonize downstream areas once conditions have
improved. These upstream systems form integral components of downstream
food webs, providing nursery habitat for breeding fish and amphibians,
colonization opportunities for stream invertebrates, and maturation
habitat for stream insects, including for species that are critical to
downstream ecosystem function. The provision of life-cycle dependent
aquatic habitat for species located in paragraph (a)(1) waters can
significantly affect the biological integrity of those downstream
waters.
It is also important to note that the agencies' significant nexus
standard in this rule is carefully tailored so that only particular
types of functions provided by upstream waters can be assessed.
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 identified in this rule that have a nexus to the
chemical, physical, or biological integrity of paragraph (a)(1) waters.
Thus, there are some important functions provided by wetlands,
tributaries, and waters evaluated under paragraph (a)(5) that will not
be assessed by the agencies when making jurisdictional decisions under
this rule. 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 nexus analysis under this rule.\125\ Furthermore,
the agencies would not assess 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 dry lands. 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 assessed in a
significant nexus analysis under this rule. These include provision of
areas for personal enjoyment (e.g., fishing, hunting, boating, and
birdwatching areas), ceremonial or religious uses, 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 types of ecosystem services can contribute to
the economy, they are not relevant to the chemical, physical, or
biological integrity of paragraph (a)(1) waters and would not be
considered in a significant nexus analysis under this rule.
---------------------------------------------------------------------------
\125\ As this preamble has stated, consideration of biological
functions such as provision of habitat is relevant for purposes of
significant nexus determinations under this rule only to the extent
that the functions provided by tributaries, adjacent wetlands, and
waters assessed under paragraph (a)(5) significantly affect the
biological integrity of a paragraph (a)(1) water. For example, to
protect Pacific and Atlantic salmon in traditional navigable waters
(and their associated commercial and recreational fishing
industries), protections must be provided from the headwater streams
where the fish are born and spawn to the marine waters where they
spend most of their lives.
---------------------------------------------------------------------------
ii. Comments on Interpretation and Implementation of ``Significantly
Affect''
The agencies proposed that waters can significantly affect
paragraph (a)(1) waters either alone or in combination with similarly
situated waters in the region. The agencies solicited comment on
approaches for implementing this rule, including regarding which waters
are ``similarly situated,'' and thus should be analyzed in combination,
in the scope of the ``region,'' for purposes of a significant nexus
analysis. Some commenters asserted that the agencies need to consider
cumulative impacts of water features and their collective influence on
downstream waters. These commenters supported aggregating waters as
part of a significant nexus analysis and provided various suggestions
for interpreting ``similarly situated'' and ``in the region.'' Some
commenters stated that the agencies should not aggregate waters as part
of a significant nexus analysis, asserting that aggregation would lead
to subjectivity, lack of clarity, implementation challenges, and
arbitrary outcomes. Some of these commenters did not believe it would
be appropriate to aggregate features far from a project site with
features on the project site in assessing impacts on downstream waters.
Some commenters asserted that the proposed rule would presume that
virtually the entire tributary system, along with isolated waters and
wetlands, perform functions in the aggregate that benefit downstream
waters. Other commenters asserted that aggregation should not be
expanded beyond the Rapanos Guidance approach, and they expressed
concern that the proposed rule would aggregate waters more broadly than
the guidance. Some commenters expressed concern that with an
aggregation approach to significant nexus, all waters assessed within a
given region could be determined to be jurisdictional, including waters
outside the project area. Some of these commenters suggested that the
agencies would eventually assert jurisdiction across most of the
country, one watershed at a time.
The agencies disagree that aggregating waters as part of a
significant nexus
[[Page 3126]]
analysis is inappropriate. The agencies have retained the language in
this rule that waters will be assessed either alone or in combination
with similarly situated waters in the region. See sections IV.C.9.c,
IV.C.4.c, IV.C.5.c, and IV.C.6.c of this preamble for a discussion on
the agencies' approach to implementing the significant nexus standard
for tributaries, adjacent wetlands, and paragraph (a)(5) waters. The
agencies have also added language to the definition of ``significantly
affect'' to further clarify that waters will be assessed either alone
or in combination with similarly situated waters in the region.
Assessing the functions of identified waters in combination is
consistent not only with the significant nexus standard, as described
in section IV.A of this preamble, but with the science demonstrating
how upstream waters affect downstream waters. Scientists routinely
analyze the combined effects of groups of waters, aggregating the known
effect of one water with those of ecologically similar waters in a
specific geographic area, or to a certain scale. This is because the
chemical, physical, and biological integrity of downstream waters is
directly related to the aggregate contribution of upstream waters that
flow to them, including any tributaries and connected wetlands. As a
result, the scientific literature and the Science Report consistently
document that the health of larger downstream waters is directly
related to the aggregate health of waters located upstream, including
waters such as wetlands that may not be hydrologically connected but
function together to mitigate the potential impacts of flooding and
pollutant contamination on downstream waters. See Technical Support
Document section III.E.ii.
The agencies also disagree that the agencies would assert
jurisdiction too broadly based on the definition of ``significantly
affect.'' As discussed in section IV.A of this preamble, the agencies
have carefully crafted a rule that falls within the limitations of the
statute while achieving the Clean Water Act's objective. Historically,
only roughly 12% of resources assessed in approved jurisdictional
determinations under the Rapanos Guidance required a significant nexus
analysis, and the agencies routinely concluded that waters do not meet
the significant nexus standard. Based on the agencies' experience, many
waters assessed under this rule will not have a significant nexus to
paragraph (a)(1) waters, and thus will not be jurisdictional under the
Clean Water Act under this rule.
The following are examples of waters that would likely not be
jurisdictional under this rule, although the agencies recognize that
each significant nexus determination is case-specific. Examples of
waters that would not likely have a significant nexus to paragraph
(a)(1) waters based on an assessment under this rule of the regulatory
factors and functions include: a headwater non-relatively permanent
tributary located within a catchment with no other tributaries and few
adjacent wetlands in the Eastern United States, which is many miles
from the paragraph (a)(1) water and contributes low duration, low
magnitude, and low volume flows downstream; a group of non-relatively
permanent tributaries and adjacent wetlands located within a closed
basin in the arid West that does not connect to any paragraph (a)(1)
water; a non-relatively permanent tributary located within a small
catchment with another non-relatively permanent tributary and few
adjacent wetlands in the arid West, which exhibits losing stream
conditions and capacity to provide only infrequent and very low volume
flows to the paragraph (a)(1) water; a ditched and straightened non-
relatively permanent tributary with no adjacent wetlands in the
Southeastern United States that exhibits minimal in-stream or riparian
habitat value, carries only limited amounts of stormwater from a small
catchment, and is located miles upstream from the paragraph (a)(1)
water; a non-adjacent wetland in the Northwestern United States that
would likely provide only minimal functions to a paragraph (a)(1) water
given its landscape position in relation to the tributary network and
the paragraph (a)(1) water; and a non-tributary pond that is
hydrologically connected to the nearest jurisdictional water only
during infrequent flooding events but which is miles from the paragraph
(a)(1) water and would be unlikely to have a material influence on that
paragraph (a)(1) water. While in most of these examples, the tributary,
wetland, lake, or pond may well have had some effect on a paragraph
(a)(1) water, under the hypothetical circumstances described, the
water(s) would not have a material influence on the chemical, physical,
or biological integrity of the identified paragraph (a)(1) water, i.e.,
does not significantly affect that water, and therefore the water(s)
would not be jurisdictional under the Clean Water Act.
Conversely, the following are examples of waters that would likely
be jurisdictional under this rule, although again, each significant
nexus determination is case-specific. Examples include: a second-order
headwater non-relatively permanent tributary located within a catchment
with several other tributaries and several adjacent wetlands in the
Southwestern United States, which are a moderate distance from the
paragraph (a)(1) water but contribute high magnitude and high volume
flows downstream during seasonal precipitation events that lead to
strong effects of the functions on the paragraph (a)(1) water,
including the transport of large volumes of sediment and woody debris
that help shape and structure the channel of the paragraph (a)(1) water
by slowing the flow of water through channels and providing habitat and
food sources for the fish that live in the paragraph (a)(1) water; a
non-relatively permanent tributary with several adjacent wetlands in
the Midwestern United States that provides breeding grounds for fish
that live in paragraph (a)(1) waters, contributes flows of moderate
magnitude and moderate volume downstream during frequent precipitation
events, and is located within a short distance of a paragraph (a)(1)
water; and an adjacent wetland in the Mountain West that is similarly
situated with dozens of other adjacent wetlands and several
tributaries, has the capacity to store high volumes of floodwaters and
to store and process nutrients that would otherwise reach a downstream
paragraph (a)(1) water, thereby reducing flooding and the potential for
algal blooms in the paragraph (a)(1) water, and that provides strong
functions to a paragraph (a)(1) water given its landscape position in
relation to the tributary network and the paragraph (a)(1) water. Under
the hypothetical circumstances described, the water(s) would have a
material influence on the chemical, physical, or biological integrity
of the identified paragraph (a)(1) water, i.e., significantly affects
that water, and therefore the water(s) would be jurisdictional under
the Clean Water Act.
The agencies also disagree that any aggregation approach would be
subjective, unclear, or difficult to implement. The proposed rule
included alternative options for aggregation (i.e., how to interpret
``similarly situated'' and ``in the region'') for the public to comment
upon. After considering public comments, the agencies are providing
additional information in this preamble to provide clarity regarding
implementation of ``similarly situated'' and ``in the region'' for
purposes of aggregating waters as part of a significant nexus analysis.
Furthermore, the agencies have extensive experience
[[Page 3127]]
aggregating waters under prior regulatory regimes. This preamble
discusses a variety of tools that are available for identifying waters
that are similarly situated in the region as part of a significant
nexus analysis (see, e.g., section IV.C.4.c of this preamble).
This 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. An example from the Science Report
is illustrative. 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 important consequences on the chemical,
physical, or biological integrity of the downstream waters. Science
Report at 6-10; see also sections III.A.v and III.E.ii of the Technical
Support Document. 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 Science Report finds,
``[t]he amount of nutrients removed by any one stream over multiple
years or by all headwater streams in a watershed in a given year can
have substantial consequences for downstream waters.'' Science Report
at 1-11. The cumulative effects of nutrient export from the many small
headwater streams of the Mississippi River have resulted in large-scale
ecological and economically harmful impacts hundreds of miles
downstream, thereby impacting commercial and recreational fisheries in
the northern Gulf of Mexico.
Many commenters asserted that the proposed rule was unclear as to
how the agencies would interpret the ``region'' for purposes of a
significant nexus analysis. Some of these commenters expressed concern
that the region would be determined on a case-specific basis, leading
to regulatory uncertainty. Some commenters asserted that the ``region''
should be interpreted narrowly, and many of these commenters opposed
any expansion of the scope of analysis as compared to the Rapanos
Guidance. Several commenters stated that a watershed or ecoregion
approach to interpreting the ``region'' would be too expansive. Many
commenters supported a watershed approach to interpreting the
``region,'' with some commenters supporting a large single point of
entry watershed and other commenters supporting smaller watersheds
(e.g., hydrologic unit code (HUC) 10 or HUC 12). These commenters
asserted that a watershed-based approach is consistent with the science
and would ultimately protect the traditional navigable waters, the
territorial seas, and interstate waters that are the focus of Clean
Water Act protections. Some commenters criticized the Rapanos Guidance
approach for determining the ``region,'' asserting that it was too
narrow and not based on scientific evidence. Some commenters supported
an interpretation of ``region'' based on hydrological characteristics
or geomorphic characteristics, and some of these commenters stated that
such approaches would allow for the consideration of site-specific
field data. Other commenters supported an ecoregion-based approach,
although these commenters differed in the ``level'' of ecoregion sizes
that they recommended using. As discussed in the implementation section
below, the agencies have determined that the catchment of the tributary
is a reasonable and technically appropriate scale for identifying ``in
the region'' for purposes of the significant nexus standard. The
catchment is an easily identified and scientifically defensible unit
for identifying the scope of waters that together may have an effect on
the chemical, physical, or biological integrity of a particular
traditional navigable water, the territorial seas, or an interstate
water.
c. Implementation
This rule provides increased clarity and substantial guidance to
assist in implementing the significant nexus standard. 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 in the region significantly
affects a paragraph (a)(1) water. This section of the preamble provides
the agencies' general approach to implementing the definition of
``significantly affect'' for purposes of the significant nexus
standard. See sections IV.C.4, IV.C.5, and IV.C.6 of this preamble for
additional information on how the agencies will implement the
significant nexus standard, including identifying waterbodies on the
landscape and determining which waters are ``similarly situated'' and
``in the region.''
i. General Scope of the Significant Nexus Analysis
Under the significant nexus standard in this rule, the agencies
must identify the waters that are ``similarly situated'' and the
``region'' for purposes of determining whether waters ``significantly
affect'' paragraph (a)(1) waters. The agencies will interpret these
terms for purposes of this rule in a similar, but not identical, manner
to the approach to these terms in the Rapanos Guidance. The agencies'
approach in this rule is based on longstanding practice, the scientific
support for this rule, and practical implementation considerations.
The focus of the significant nexus standard is on restoring and
maintaining the chemical, physical, and biological integrity of
paragraph (a)(1) waters. Therefore, the agencies have interpreted the
phrase ``similarly situated'' under pre-2015 practice and will continue
to interpret that phrase in this rule, in terms of whether waters are
providing common, or similar, functions for paragraph (a)(1) waters
such that it is reasonable to consider their effects together. In
implementing this rule, the agencies will continue their practice under
the Rapanos Guidance of assessing the flow characteristics and
functions of tributaries, together with the functions performed by any
wetlands adjacent to those tributaries, to determine whether
collectively they have a significant nexus with paragraph (a)(1)
waters. See Rapanos Guidance at 8. The agencies continue to conclude
that implementation of ``similarly situated'' to include tributaries
and their adjacent wetlands in this way is reasonable because of its
strong scientific foundation--that is, the integral ecological
relationship between a tributary and its adjacent wetlands. See Rapanos
Guidance at 10. In considering how to apply the significant nexus
standard, the agencies have long 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, or biological
integrity of paragraph (a)(1) 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. Id. at 9.
This approach to implementing similarly situated is also consistent
with the scientific support for this rule. Stream and wetland
connectivity to downstream waters, and the resulting effects on the
integrity of downstream paragraph (a)(1) waters, is best understood and
assessed when considered cumulatively. One of the main conclusions of
the Science Report is that the incremental contributions of
[[Page 3128]]
individual streams and wetlands are cumulative across entire
watersheds, and their effects on downstream waters should be evaluated
within the context of other streams and wetlands in that watershed. See
Technical Support Document section III.E.ii and section IV.A of this
preamble for additional discussion. Furthermore, this approach is clear
and implementable, and this preamble discusses a variety of tools that
are available for determining which waters are similarly situated as
part of a significant nexus analysis. See, e.g., section IV.C.4.c of
this preamble. See section IV.C.6.c of this preamble for discussion on
how the agencies intend to implement the significant nexus standard for
waters assessed under paragraph (a)(5).
The agencies have identified ``in the region'' for purposes of the
significant nexus standard in this rule as the catchment of the
tributary. The catchment is the area of the land surface that drains to
a specific location for a specific hydrologic feature, in this case the
tributary. Catchments will be delineated from the downstream-most point
of the tributary reach of interest and include the area uphill that
drains to that point. Topography and landscape position influence the
size and configuration of a catchment. For example, if the tributary of
interest is East Fork Clear Creek--a second order stream that is a
tributary that flows indirectly to a traditional navigable water--the
catchment would be delineated from the point that East Fork Clear Creek
enters Clear Creek, a third order stream, and include the area uphill
that drains to that point. The catchment for East Fork Clear Creek
would include not just East Fork Clear Creek, but also any first order
streams that flow into East Fork Clear Creek, and these streams would
be aggregated together along with any wetlands adjacent to the streams
as part of a significant nexus analysis. As another example, if the
tributary of interest is Willow Creek--a first order stream that is a
tributary that flows indirectly to a traditional navigable water--the
catchment would be delineated from the point that Willow Creek enters a
second order stream and include the area uphill that drains to that
point. The catchment would then only include Willow Creek, and Willow
Creek would be aggregated together along with any adjacent wetlands as
part of a significant nexus analysis. See discussion of stream order in
section IV.C.4.c.i of this preamble. The catchment of the tributary of
interest may contain not just the tributary of interest, but also lower
order tributaries that are aggregated together along with any adjacent
wetlands as part of a significant nexus analysis.
This region (i.e., the catchment of the tributary) for the vast
majority of tributaries is smaller, and usually substantially smaller,
than the region identified by the watershed that drains to the nearest
point of entry of a paragraph (a)(1) water, which was the ``region''
used to implement the 2015 Clean Water Rule. While this region is
generally larger than the region assessed in the Rapanos Guidance under
which the agencies assessed the relevant reach of a tributary in
combination with its adjacent wetlands, the catchment is an easily
identified and scientifically defensible unit for identifying the scope
of waters that together may have an effect on the chemical, physical,
or biological integrity of a particular traditional navigable water,
the territorial seas, or an interstate water. Moreover, the catchment
is often considered an appropriate spatial unit for water resource
management. Anthropogenic actions and natural events can have
widespread effects within the catchment that collectively impact the
integrity and quality of the relevant paragraph (a)(1) water. The
functions of the contributing waters are inextricably linked and have a
cumulative effect on the integrity of the paragraph (a)(1) water. For
these reasons, it is more appropriate to conduct a significant nexus
analysis at the catchment scale than to focus on a specific site, such
as an individual stream segment. In light of the scientific literature,
the longstanding approach of the agencies' implementation of the Clean
Water Act, and the statutory goals underpinning Justice Kennedy's
significant nexus framework, the agencies consider the catchment of the
tributary to be the appropriate ``region'' for a significant nexus
analysis. Therefore, all tributaries in a catchment and their adjacent
wetlands, if any, will be assessed in combination to determine whether
the significant nexus standard is met.
For practical administrative purposes, this rule does not require
evaluation of all similarly situated waters when concluding that those
waters have a significant nexus to a paragraph (a)(1) water. When an
identified subset of similarly situated waters provides a sufficient
science-based justification to conclude presence of a significant
nexus, for efficiency purposes a significant nexus analysis need not
require time and resources to locate and analyze all similarly situated
waters in the entire catchment. For example, if a single waterbody or a
group of similarly situated waterbodies in a portion of the catchment
is determined to significantly affect the chemical, physical, or
biological integrity of a paragraph (a)(1) water, the analysis does not
have to document all of the similarly situated waterbodies in the
catchment in order to complete the significant nexus analysis for the
water(s) subject to the jurisdictional determination. A conclusion that
a significant nexus is lacking may not, however, be based on
consideration of some subset of similarly situated waters because under
the significant nexus standard, the inquiry is how the similarly
situated waters in combination affect the integrity of the paragraph
(a)(1) water. Individuals uncertain about the status of waters on their
property may obtain a jurisdictional determination from the Corps. The
Corps does not charge a fee for this service. See 33 CFR 325.1; RGL 16-
01 (2016).
ii. Assessing the Functions and Considering the Factors
In determining whether a water alone or in combination with
similarly situated waters in the region has a material influence on the
chemical, physical, or biological integrity of a paragraph (a)(1)
water, the agencies will assess the functions in paragraph (c)(6)(i) of
this rule and consider the factors in paragraph (c)(6)(ii) this rule in
order to reasonably determine jurisdiction based on the record before
them.\126\ The agencies will consider the factors in this rule to
analyze the strength of the influence of the functions on paragraph
(a)(1) waters. In general, functions associated with stronger factors
increase the likelihood of demonstrating a material influence on
paragraph (a)(1) waters. For example, when assessing the functions
provided by the subject waters (and any similarly situated waters) to
paragraph (a)(1) waters, the agencies would consider whether the
factors are likely to increase the strength of the influence on the
paragraph (a)(1) water. Distance from a paragraph (a)(1) water; high
frequency, magnitude, or duration of hydrologic connections; high
density of similarly situated waters; landscape position and
geomorphology translating to a high likelihood of effects on paragraph
(a)(1) waters; and/or certain climatological variables like rainfall
patterns leading to more frequent hydrologic connections
[[Page 3129]]
all translate to a higher likelihood of effects on paragraph (a)(1)
waters. Functions associated with weaker factors decrease the
likelihood of demonstrating a material influence on paragraph (a)(1)
waters. For example, when assessing the functions provided by the
subject waters (and any similarly situated waters) to paragraph (a)(1)
waters, the agencies would consider whether the factors are likely to
decrease the strength of the influence on the paragraph (a)(1) water.
These factors can include a far distance from a paragraph (a)(1) water;
low frequency, magnitude, or duration of hydrologic connections; low
density of similarly situated waters; landscape position and
geomorphology translating to a low likelihood of effects on paragraph
(a)(1) waters; and/or climatological variables like rainfall patterns
translating to a low likelihood of effects on paragraph (a)(1) waters.
Thus, analyses of waters that provide the listed functions to paragraph
(a)(1) waters, but where only weak factors are present, may not be
sufficient to demonstrate a material influence. In assessing the
functions under this rule, if a water, either alone or in combination
with similarly situated waters in the region, performs one function
that has a material influence on the integrity of a paragraph (a)(1)
water, that water would have a significant nexus. The agencies will
consider all of the factors together when assessing the functions and
the strength of the influence in the context of each case-specific
determination of jurisdiction. Consistent with longstanding practice,
the agencies will make decisions based on best professional judgment
and on the best available information.
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\126\ The agencies are not requiring the use of ``functional
assessment'' methods for significant nexus analyses under this rule.
``Functional assessment'' methods are used in other regulatory
contexts, such as for mitigation planning, to explicitly measure the
strength of functions at the impact site and potential mitigation
site(s).
---------------------------------------------------------------------------
When assessing the functions and considering the factors in the
final rule to analyze the influence of subject waters on the integrity
of paragraph (a)(1) waters, the likelihood of a material influence is
generally greater with increases in the number or size of the aquatic
resource or resources being considered, decreasing distance from the
identified paragraph (a)(1) water, as well as with increased density of
the waters considered in combination as similarly situated waters.
However, the agencies also recognize that in watersheds with fewer
aquatic resources, a smaller number and/or lower density of similarly
situated waters can provide functions that have disproportionate
effects on paragraph (a)(1) waters. Hydrologic factors include the
frequency, duration, magnitude, timing, and rate of hydrologic
connections, as well as surface and shallow subsurface hydrologic
connections. The presence of a surface or shallow subsurface hydrologic
connection, as well as increased frequency, magnitude, or duration of
such connections, can increase the strength of the functions that the
subject waters provide to paragraph (a)(1) waters, and the
corresponding chemical, physical (i.e., hydrologic), or biological
influence that a water has on paragraph (a)(1) waters. In some
situations, streams with low duration but a high volume of flow can
provide strong functions to paragraph (a)(1) waters by transporting
large volumes of water, sediment, and woody debris that help maintain
the integrity of those larger waters. A lack of hydrologic connections
can also in some cases contribute to the strength of effects for
certain functions such as floodwater attenuation or the retention and
transformation of nutrients and other pollutants. Landscape position
and geomorphology provide critical information about the relative
location of the subject waters being considered within the watershed
and their spatial relationship to the paragraph (a)(1) water. The
slope, soil composition and transmissivity, and waterbody substrate
composition and other physical characteristics (e.g., channel shape)
can all impact the strength of the functions identified in this rule
and the associated influence on paragraph (a)(1) waters. Climatological
factors like temperature, rainfall, and snowpack in a given region can
influence the strength of the functions provided by the subject waters
to paragraph (a)(1) waters by affecting the frequency, duration,
magnitude, timing, and rate of hydrological connections.
There are ways the agencies can consider a changing climate under
the significant nexus standard, but only to the extent it is relevant
to the evaluation of whether the subject waters significantly affect
the chemical, physical, or biological integrity of paragraph (a)(1)
waters. 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 at the time of assessment 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, under the significant nexus standard the agencies can
consider the functions of streams, wetlands, and open waters that
support the resilience of the chemical, physical, or biological
integrity of paragraph (a)(1) waters to climate change. For example,
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 paragraph (a)(1) waters. In other areas of the
country, drought is leading to decreased baseflows in paragraph (a)(1)
waters. A significant nexus analysis can assess whether the
transmission of flows into alluvial or regional aquifer storage through
tributaries and wetlands can mitigate for these climate change-related
conditions, and assess those benefits to paragraph (a)(1) waters.
Changes in flow in tributaries caused by climate change will also be
relevant to the relatively permanent standard, but that standard does
not allow the agencies to take into account the contribution of
upstream waters to the resilience of the integrity of downstream
waters. However, considering on a case-specific basis the strength and
importance of the functions provided by aquatic resources that
contribute to the resilience of the integrity of paragraph (a)(1)
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.
The agencies recognize that there are climate benefits that
streams, wetlands, and open waters provide that are not related to
restoring or maintaining the integrity of paragraph (a)(1) waters, such
as carbon sequestration. Those functions are not considered under this
rule, because they are not directly related to the chemical, physical,
or biological integrity of paragraph (a)(1) waters and therefore are
not relevant to Clean Water Act jurisdiction.
The record for determinations of jurisdiction (e.g., approved
jurisdictional determinations for section 404 permits) for waters
evaluated under the significant nexus standard will include available
information supporting the determination. In addition to location and
other descriptive information regarding the water at issue, the record
will include an explanation of the rationale for the jurisdictional
conclusion and a description of the information used. Relevant
information can come from many sources and may in some cases include
studies of the same type of water or similarly situated waters that
apply to the water being evaluated. The determination of jurisdiction
applies
[[Page 3130]]
only to the subject waters located in the area of interest and is a
case-specific determination based on current conditions (except in the
case of a potential enforcement action). Any similarly situated waters
that are part of the significant nexus analysis but that are not in the
area of interest are not subject to the jurisdictional decision (and so
would not automatically be deemed jurisdictional or non-
jurisdictional). For example, where the subject water is a portion of a
tributary reach, the significant nexus analysis would encompass the
entire tributary reach of the same order, any tributaries within the
catchment of that reach, and any wetlands adjacent to those
tributaries. However, the jurisdictional determination would only apply
to the portion of the tributary reach that is subject to the
determination.
iii. Tools for a Significant Nexus Analysis
The agencies have used many tools and sources of information to
assess significant effects on the chemical, physical, and biological
integrity of paragraph (a)(1) waters. Some tools and resources that the
agencies have used to provide and evaluate evidence of a significant
effect on the physical integrity of paragraph (a)(1) waters include
USGS stream gage data, floodplain maps, statistical analyses,
hydrologic models and modeling tools such as USGS's StreamStats 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 paragraph (a)(1) waters, the agencies and practitioners
have used tools and resources such as: population survey data and
reports from Federal, Tribal, and State 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 can provide and evaluate evidence of a
significant effect on the chemical integrity of paragraph (a)(1) waters
include data from USGS water quality monitoring stations; Tribal,
State, 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 the cumulative effects of wetlands on the
larger waters to which they drain. 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 removal capacities 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 paragraph (a)(1)
water may include qualitative reviews of available information or
incorporate quantitative analysis components including predictive
transport modeling.
10. Guidance for Landowners on How To Know When Clean Water Act Permits
are Required
The agencies understand that landowners would like to be able to
easily discern whether their property contains any ``waters of the
United States'' such that they may need to apply for a relevant Clean
Water Act permit. With this rule, the agencies strive to provide
additional clarity for the public. To that end, the rule clearly
excludes some waters from Clean Water Act jurisdiction, thereby
narrowing the category of waters that require additional jurisdictional
analysis. The rule also clearly identifies some categories of waters as
jurisdictional by rule without the need for further analysis. For the
small percentage of waters that are not categorically excluded from, or
included in, Clean Water Act jurisdiction, and which do not meet the
relatively permanent standard, the agencies have established a new
regulatory provision defining the meaning of ``significantly affect''
to guide implementation of the significant nexus standard. This
provision provides the public with a clearer picture of the functions
the agencies will assess and the factors the agencies will consider in
determining whether waters being analyzed ``significantly affect''
(i.e., have a material influence on) the integrity of traditional
navigable waters, the territorial seas, or interstate waters and
therefore meet the rule's definition of ``waters of the United
States.''
Recognizing the concerns of landowners, the discussion below is
designed to bring together information from the statute, the final
rule's text, and this preamble--including the many useful tools
identified in this preamble--to provide individual landowners with the
step-by-step information needed to make informed decisions.\127\ In
addition, as discussed further below, the Corps has established a
process for landowners to request an official determination of whether
or not there are ``waters of the United States'' on their property. The
Corps does not charge a fee for this service.\128\ In cases where a
landowner seeks to undertake an activity that involves discharges of
dredged or fill material into areas that are ``waters of the United
States'' that is not exempt from the permit requirements of the Clean
Water Act, this section provides information about some of the general
permits the Corps \129\ has established that allow certain activities
to proceed with little or no delay if the general conditions and any
special conditions for the permit are met. Lastly, this section
provides information for those rare occasions when a landowner needs an
individual section 404 permit for an activity regulated under that
section of the Clean Water Act.
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\127\ See also https://www.epa.gov/wotus for the latest
information on implementation of the definition of ``waters of the
United States.''
\128\ To obtain a speedier determination, some landowners choose
to incur some expense in providing site information supporting the
jurisdictional determination request, such as a delineation of the
lake or pond, stream, or wetland.
\129\ The agencies note that New Jersey, Michigan, and Florida
have assumed administration of section 404 programs for certain
waters in those States under section 404(g) of the Act.
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[[Page 3131]]
Step 1: Is the activity I want to take on my property exempt from
needing a Clean Water Act permit?
Not all activities in or discharges to ``waters of the United
States'' require authorization under the Clean Water Act. Generally,
section 402 or section 404 permits are required if a person is
discharging, or adding, a ``pollutant'' from a ``point source'' to the
``waters of the United States.'' The terms ``discharge of a
pollutant,'' ``pollutant,'' and ``point source'' all have specific
definitions in the Clean Water Act that must be met for the Act's
requirements to apply. Even if a landowner is discharging a
``pollutant'' from a ``point source,'' those discharges still may not
require a Clean Water Act permit because the statute and the agencies'
regulations exempt some types of discharges from permitting under
section 404 (for dredged and fill material) and section 402 (for other
pollutants).
If a landowner wants to dredge or fill ``waters of the United
States,'' many activities are exempt from the Clean Water Act's section
404 permitting requirements,\130\ including:
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\130\ Note, however, that Clean Water Act section 404(f)
establishes circumstances (based on certain effects on ``waters of
the United States'') under which an activity listed as exempt is no
longer exempt. For more detail, see section 404(f) and the
regulations on ``discharges not requiring a permit'' at 33 CFR
323.4.
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Established (ongoing) farming, ranching, and silviculture
activities such as plowing, seeding, cultivating, minor drainage,
harvesting for the production of food, fiber, and forest products, or
upland soil and water conservation practices;
Maintenance (but not construction) of drainage ditches;
Construction and maintenance of irrigation ditches;
Construction and maintenance of farm or stock ponds;
Construction and maintenance of farm and forest roads, in
accordance with best management practices; and
Maintenance of structures such as dams, dikes, and levees.
Additionally, many discharges of pollutants other than dredged or
fill material do not require section 402 permits: \131\
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\131\ See 40 CFR 122.3 for the regulatory provisions.
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Any discharge of sewage from vessels, effluent from
properly functioning marine engines, laundry, shower, and galley sink
wastes, or any other discharge incidental to the normal operation of a
vessel;
Any introduction of pollutants from nonpoint-source
agricultural and silvicultural activities, including storm water runoff
from orchards, cultivated crops, pastures, range lands, and forest
lands;
Return flows from irrigated agriculture; and
Discharges from a water transfer.
Step 2: Is water on my property covered by this rule?
The Clean Water Act does not cover every geographic feature with
water in it; nor does it subject all activities in waters meeting the
definition of ``waters of the United States'' to regulation (as
discussed in Step 1). Puddles may periodically contain water, but they
are not lakes, ponds, streams, or wetlands and they are not ``waters of
the United States.'' The rule also has a well-established, very
specific, three-factor definition of wetlands. That definition requires
the presence of particular wetland hydrology, soils, and vegetation.
Therefore, a homeowner's backyard that is soggy only immediately after
a rainstorm is not ``waters of the United States'' under the rule.
Some waters are always jurisdictional under the rule: traditional
navigable waters, the territorial seas, and interstate waters. Lakes
and ponds, streams (including certain ditches), and wetlands that are
not always jurisdictional under paragraph (a)(1) of the rule require
additional assessment to determine whether they are ``waters of the
United States'' under other categories of the rule. This additional
assessment follows longstanding principles.
If a landowner's property does not contain the types of waters,
including wetlands, covered by this rule, it is not jurisdictional.
Step 3: Is the water on my property excluded from the definition of
``waters of the United States''?
In evaluating whether a water, including a wetland, on a
landowner's property is covered by the Clean Water Act, first determine
whether it fits into one of this rule's categorical exclusions. The
rule excludes certain features that commonly contain water but are not
``waters of the United States'' (so long as the features are not the
types of waters that are always jurisdictional--traditional navigable
waters, the territorial seas, and interstate waters):
prior converted cropland;
ditches (including roadside ditches) excavated wholly in
and draining only dry land and that do not carry a relatively permanent
flow of water;
artificially irrigated areas that would revert to dry land
if the irrigation ceased;
artificial lakes or ponds created by excavating 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 or diking dry land to
retain water for primarily aesthetic reasons;
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'';
swales and erosional features (e.g., gullies, small
washes) characterized by low volume, infrequent, or short duration
flow; and
waste treatment systems, including treatment ponds or
lagoons, designed to meet the requirements of the Clean Water Act.
These exclusions are discussed in more detail in section IV.C.7 of
this preamble.
Where a feature located on a landowner's property satisfies the
terms of an exclusion, it is not jurisdictional under the Clean Water
Act. That is the case even where the feature would otherwise be
jurisdictional as an impoundment; tributary; adjacent wetland; or
intrastate lake or pond, stream, or wetland under this rule.
Step 4: If the activity I want to undertake on my property is not
exempt from permitting requirements, and the feature on my property is
likely a water for purposes of the rule (and is not covered by one of
the exclusions), what do I do next?
If the feature on a landowner's property is likely a geographic
feature considered to be a water, including a wetland, for purposes of
the rule and is not covered by one of the exclusions, the next step is
to determine if the water is a ``water of the United States'' under one
of the longstanding categories in the rule: (1) traditional navigable
waters, the territorial seas, and interstate waters; (2) jurisdictional
impoundments of ``waters of the United States''; (3) jurisdictional
tributaries; (4) jurisdictional adjacent wetlands; and (5) intrastate
lakes and ponds, streams, or wetlands not identified in paragraphs
(a)(1) through (4) of the rule that meet either the relatively
permanent standard or the significant nexus standard.
This preamble identifies publicly available tools and resources to
assist landowners in understanding the jurisdictional status of waters,
including tributaries and wetlands, that may be
[[Page 3132]]
present on their lands. At the same time, the agencies recognize there
are circumstances under which it may be difficult for an individual
landowner to determine on their own whether a water on their land is
jurisdictional. This section can help landowners to conclude whether a
water on their land is likely to be jurisdictional; if landowners want
certainty, they can ask the Corps for an approved jurisdictional
determination. The Corps does not charge a fee for this service.
Alternatively, as discussed below, some of these activities are readily
authorized under a nationwide or regional general permit issued by the
Corps. A landowner does not need an approved jurisdictional
determination for an activity authorized by a general permit.
(1) Traditional Navigable Waters, the Territorial Seas, and Interstate
Waters
Traditional navigable waters, the territorial seas, and interstate
waters are always jurisdictional. Section IV.C.2. of this preamble
explains how the agencies will identify these waters.
(2) Jurisdictional Impoundments of ``Waters of the United States''
Impoundments are distinguishable from natural lakes and ponds
because they are created by discrete structures (often human-built)
like dams or levees that typically have the effect of raising the water
surface elevation, creating or expanding the area of open water, or
both. Impoundments can be natural (like beaver ponds) or artificial
(like reservoirs). Under the rule, jurisdictional impoundments include
(1) impoundments created by impounding one of the ``waters of United
States'' that was jurisdictional under this rule's definition at the
time the impoundment was created, and (2) impoundments of waters that
at the time of assessment meet the definition of ``waters of the United
States'' under the rule as a traditional navigable water, the
territorial seas, interstate water, jurisdictional tributary, or
jurisdictional adjacent wetland, regardless of the water's
jurisdictional status at the time the impoundment was created. Section
IV.C.3 of this preamble explains how the agencies will identify
jurisdictional impoundments.
(3) Jurisdictional Tributaries
The agencies understand that it can be confusing to determine if
certain waters and features are tributaries, and whether those
tributaries are ``waters of the United States.'' It can be especially
confusing if waters or features on a landowner's property are
periodically dry--some examples include washes, swales, and ephemeral
streams. So how can a landowner determine whether features like this
are jurisdictional?
The first question is whether the water or feature on a landowner's
property is excluded as an erosional feature or is potentially
jurisdictional as a stream. Section IV.C.7.c.ii.3 of this preamble
discusses the distinctions between excluded erosional features like
swales, washes, and gullies and potentially jurisdictional streams. So,
for example, a water would be a stream, not an excluded erosional
feature, if the water has a defined channel and an indicator of an
ordinary high water mark such as a natural line impressed on the
bank.\132\
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\132\ The Corps has useful guidance on how to identify an
ordinary high water mark, including Regulatory Guidance Letter 05-
05, ``Ordinary High Water Mark'' (available at https://www.nap.usace.army.mil/Portals/39/docs/regulatory/rgls/rgl05-05.pdf).
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If the water is determined to be a stream, the next question is
whether that stream is part of the tributary system of a traditional
navigable water, the territorial seas, or an interstate water. For
tools that can help a landowner make this determination, see Step 5,
below. If it is part of such a tributary system, the final question is
whether it satisfies either the relatively permanent standard or the
significant nexus standard under this rule. See section IV.C.4.c of
this preamble for additional information on how to apply these
standards. Also, the landowner can ask the Corps to determine whether
the feature on their property is jurisdictional as discussed further
below.
The agencies recognize that it can be confusing that streams with
less than relatively permanent flow, which often look dry, can be
``waters of the United States.'' But such streams, where they meet the
significant nexus standard, are important parts of the ecological
system that sustains traditional navigable waters, the territorial
seas, and interstate waters. For example, while almost all the streams
in Arizona regularly do not have water in them, they are essential to
the flow in downstream waters, like the Colorado River. Similarly,
headwater ephemeral streams in the forests of the Northeastern United
States are essential to flow in downstream rivers. Filling ephemeral
streams could cause significant harm to the downstream rivers. The
importance of ephemeral streams is evident from videos of these streams
flowing after rain events in the Southwest. This video \133\ also
highlights the difference between dry land and ephemeral tributaries
and demonstrates why landowners would not want to construct a building
in an ephemeral stream.
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\133\ U.S. Department of Agriculture, Agricultural Research
Service, Multiflume Runoff Event August 1, 1990, https://www.tucson.ars.ag.gov/unit/WGWebcam/WalnutGulchWebcam.htm.
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(4) Jurisdictional Adjacent Wetlands
The rule uses the same definition of ``adjacent'' that has been
used by the agencies for the past 45 years: \134\ adjacent means
bordering, contiguous, or neighboring. The agencies have long used
three criteria to identify wetlands that are adjacent. These criteria
are: (1) the wetland has an unbroken surface or shallow subsurface
connection to a jurisdictional water; (2) the wetland is separated from
a jurisdictional water by an artificial dike, natural berm, or the
like; or (3) the wetland is reasonably close to a jurisdictional water.
There is an extensive discussion of how the agencies will implement
these criteria in section IV.C.5.c of this preamble. The agencies have
not established a specific distance limitation in the rule beyond which
wetlands are never adjacent, but nearly 45 years of implementation of
this definition shows in a substantial number of cases, adjacent
wetlands abut (touch) a jurisdictional water. And, on the whole,
nationwide, adjacent wetlands are within a few hundred feet from
jurisdictional waters (and in the instances where the distance is
greater than a few hundred feet, adjacency is likely supported by a
pipe, non-jurisdictional ditch, karst geology, or some other feature
that connects the wetland directly to the jurisdictional water).
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\134\ The 2020 NWPR had a different definition and was in effect
from June 22, 2020 (in all jurisdictions except Colorado, where the
rule did not go into effect until April 26, 2021) to August 30,
2021, when the rule was vacated by the Arizona district court. The
2015 Clean Water Rule had the same definition of ``adjacent'' but
added a definition of ``neighboring.''
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Examples of ``adjacent'' wetlands include wetlands that touch
jurisdictional tributaries. If the wetland is only separated from the
jurisdictional tributary by a levee, it is adjacent. If there is a
barrier, like a river berm or a dike, between the wetland and a
jurisdictional tributary, for example, the wetland still meets the
definition of ``adjacent.'' If the wetland is connected to a
jurisdictional tributary by a ditch that is not jurisdictional, the
wetland is adjacent.
If your property contains a ``wetland'' and it is ``adjacent'' it
must also meet one of the rule's jurisdictional tests. Wetlands that
are themselves traditional navigable waters, interstate waters, or are
``adjacent'' to such waters are ``waters of the United States'' by
rule.
[[Page 3133]]
This includes, for example, tidal marshes along the Atlantic Coast that
are subject to the ebb and flow of the tide and therefore are
traditional navigable waters, wetlands that are separated from the
Mississippi River from levees, and the Great Dismal Swamp, a wetland
which crosses the border between Virginia and North Carolina. Other
``adjacent'' wetlands are only ``waters of the United States'' if they
satisfy either the relatively permanent standard or the significant
nexus standard.
(5) Jurisdictional Intrastate Lakes and Ponds, Streams, or Wetlands Not
Identified in Paragraphs (a)(1) Through (4) of the Rule
The rule defines ``waters of the United States'' to include
``intrastate lakes and ponds, streams, or wetlands not identified in
paragraphs (a)(1) through (4)'' that meet either the relatively
permanent standard or the significant nexus standard. The agencies
intend to identify relatively permanent waters under this provision
using a similar approach to the one described for relatively permanent
tributaries in section IV.C.4.c.ii of this preamble. In implementing
the significant nexus standard, the agencies generally intend to
analyze these waters individually to determine if they significantly
affect the chemical, physical, or biological integrity of a paragraph
(a)(1) water. One example of the kind of water that is likely to be
assessed under this provision is a lake that is close to a
jurisdictional tributary or traditional navigable water, the
territorial seas, or an interstate water, but that is not part of the
tributary system; this is because the adjacency provision in the rule
(and in the longstanding regulations) applies only to wetlands, not to
lakes and ponds.
Step 5: Are there resources and sources of help from the agencies
to aid me in this process?
Yes, in addition to the rule and preamble, the agencies have
identified several other types of resources to help landowners in the
jurisdictional and permitting process. First, the agencies have
identified a number of publicly available, user-friendly tools and
resources for landowners seeking more information about whether their
property contains ``waters of the United States.'' Next, the Corps has
established a process for landowners to request an official
determination of whether or not there are ``waters of the United
States'' on their property. Finally, in cases where a landowner is
undertaking an activity that is not exempt from the permit requirements
of the Clean Water Act and their land contains waters that are likely
to be or that the Corps has determined to be ``waters of the United
States,'' this section provides information about some of the general
permits the Corps has established that allow certain activities to
proceed with little or no delay if the general and any special
conditions for the permit are met. In addition, EPA and authorized
states have established general permits for a wide variety of
discharges subject to permitting under section 402 that have minimal
impacts to waters. Finally, this section also provides information on
those rare occasions when a landowner needs an individual Clean Water
Act section 404 permit.
(1) Are there any publicly available tools and resources to help me get
more information about waters on my land?
This preamble includes an extensive discussion of the many tools
and resources the agencies can use when making jurisdictional
determinations. It also discusses publicly available resources that
provide jurisdictional and permit information. See sections IV.G and H
of this preamble. Some of these publicly available tools and resources
may be particularly useful for landowners seeking more information
about whether their property might contain ``waters of the United
States.'' For example, EPA's Clean Water Act Approved Jurisdictional
Determination website (available at https://watersgeo.epa.gov/cwa/CWA-JDs/) includes a map viewer that shows where waters have been
determined to be jurisdictional or non-jurisdictional based on approved
jurisdictional determinations. Users can quickly and easily input a
location (e.g., a city and State, or a latitude and longitude) to view
approved jurisdictional determinations that have been finalized in a
specific geographic area. Additionally, publicly available map viewers
integrate datasets, allowing users to consolidate and evaluate relevant
data from multiple sources in one visual platform. EPA's EnviroAtlas
(available at https://www.epa.gov/enviroatlas/enviroatlas-interactive-map) is a map viewer that provides information and interpretative tools
to help facilitate surface water assessments using multiple data layers
such as land cover, stream hydrography, soils, and topography. Users
can quickly and easily input a location (e.g., a city and State, or a
latitude and longitude) and select relevant map layers from a list of
individual datasets and indices. The EPA Watershed Assessment,
Tracking, and Environmental Results System (WATERS) Geoviewer
(available at https://www.epa.gov/waterdata/waters-geoviewer) provides
many map layers, including water map layers like NHDPlus, and watershed
reports for analysis and interpretation. Similarly, in the USGS
National Map Viewer (available at https://apps.nationalmap.gov/viewer/)
users can view different map layers, including aerial imagery, water
map layers like the NHD and NHDPlus High Resolution, wetlands map
layers like NWI, and land cover, elevation data, and topographic maps.
EPA's How's My Waterway mapper (available at https://mywaterway.epa.gov/) provides users with information about the water
quality of their local waterways, including information about water
quality impairments and section 402 permitted dischargers.
(2) How can I obtain a jurisdictional determination for a water on my
property?
The Corps has long provided jurisdictional determinations as a
public service. The Corps does not charge a fee for this service. There
are two types of jurisdictional determinations provided by the Corps:
approved jurisdictional determinations and preliminary jurisdictional
determinations. An approved jurisdictional determination is a 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 is a document indicating that there may be waters of the
United States on a parcel or indications of the approximate location(s)
of waters of the United States on a parcel. The Corps recognizes the
value of jurisdictional determinations to the public and reaffirms the
Corps' commitment to continue its practice of providing jurisdictional
determinations, for which it does not charge a fee, upon request. A
landowner who would like to know whether areas on their property meet
the definition of ``waters of the United States'' may contact their
local Corps district regulatory office at any time. The list of local
district regulatory offices is available at the following link: https://www.usace.army.mil/Missions/Locations/. Contact information is
available at the link for each local office.
When a local district regulatory office is contacted, district
personnel will ensure that the landowner understands the different
types of jurisdictional determinations so the landowner can make an
informed decision about which type of jurisdictional determination is
most appropriate for the landowner's circumstances. See section
III.A.1.b of this preamble for a discussion of the
[[Page 3134]]
types of jurisdictional determinations the Corps issues. Once the
landowner determines the best option for their particular circumstance,
it is the Corps' policy to honor the request unless it is
impracticable.
The Corps may need to conduct one or more site visits to collect
information when a landowner requests an approved or preliminary
jurisdictional determination. In addition to information collected
during the site visit(s), the Corps will use data from other resources
(such as those described in this preamble) as well as any information
the landowner wishes to provide to inform the jurisdictional
determination. A landowner may choose to hire an environmental
consultant who can assist by providing site evaluation information and
data collection, thereby supporting a more efficient process. Once the
Corps has completed the jurisdictional determination, they will provide
it to the landowner in a letter.
If the jurisdictional determination is an approved jurisdictional
determination, the letter from the Corps will typically include one or
more approved jurisdictional determination forms that explain the basis
for the determination that the aquatic resources on the landowner's
property are or are not ``waters of the United States.'' The landowner
will also receive a form to request an appeal of the approved
jurisdictional determination. Consistent with Regulatory Guidance
Letter 05-02, ``Expiration of Geographic Jurisdictional Determinations
of `Waters of the United States,''' the landowner can rely upon the
approved jurisdictional determination until it expires unless new
information warrants revision of the approved jurisdictional
determination prior to its expiration.
If the landowner disagrees with the Corps' approved jurisdictional
determination, the landowner can request that it be reconsidered and
submit any available new information or data to the district. If, after
such reconsideration, or in the absence of any new information, the
landowner disagrees with the approved jurisdictional determination, the
landowner may administratively appeal the decision by sending a
completed Request for Administrative Appeal form to the appropriate
Corps' division office. The Corps' regulations at 33 CFR part 331
describe the administrative appeal process. The Corps' division may
determine that none of the reasons for appeal have merit, in which case
the approved jurisdictional determination remains in effect until it
expires or it is revised by the Corps district. Alternatively, the
Corps' division may determine that one or more of the reasons for
appeal have merit in which case the approved jurisdictional
determination is remanded to the district for reconsideration. The
landowner may also challenge the approved jurisdictional determination
in Federal district court.\135\
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\135\ In U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct.
1807 (2016), the Supreme Court held that approved jurisdictional
determinations are subject to judicial review.
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(3) Are there general permits under section 404 of the Clean Water Act
for individual landowners? How do I obtain coverage under a nationwide
permit?
Landowners that wish to pursue activities that are or may be
subject to the permit requirements of the Clean Water Act and that will
impact ``waters of the United States'' on their property may be able to
obtain coverage under a general permit. General permits are issued on a
nationwide, regional, or statewide basis for particular categories of
activities that result in no more than minimal individual or cumulative
adverse environmental effects. While some general permits require the
applicant to submit a pre-construction notification to the Corps or a
State, others allow the project proponent to proceed with the
authorized activity with no formal notification. The general permit
process allows certain activities to proceed with little or no delay if
the conditions of the general permit are met. For example, minor road
construction activities, utility line backfill, and minor discharges
for maintenance can be authorized by a general permit, where the
activity meets the acreage limits and other limits specified in the
general permit.
As of the date of this rule, the Corps has issued 57 nationwide
permits (NWPs), a number of which may be of particular use to
individual property owners. Authorization to discharge dredged or fill
material is provided under the following NWPs: NWP 3 authorizes
discharges associated with maintenance of previously authorized and
serviceable structures and fill; NWP 18 authorizes minor discharges of
less than 25 cubic yards that result in the loss of no more than \1/
10\-acre of ``waters of the United States,'' which can include
activities undertaken by a landowner; NWP 29 authorizes discharges that
result in the loss of no more than \1/2\-acre of non-tidal ``waters of
the United States'' to support the construction or expansion of a
single residence or a residential development; NWP 33 authorizes
temporary discharges associated with construction activities and access
to construction sites, including for the construction or expansion of a
home or residential development if the area is restored to pre-
construction conditions; NWP 57 authorizes discharges associated with
electric utility and telecommunication line activities that result in
the loss of no more than \1/2\-acre of ``waters of the United States,''
including connecting these services to a home or residential
development; NWP 58 authorizes discharges associated utility line
activities for water and other substances that result in the loss of no
more than \1/2\-acre of ``waters of the United States,'' including
connecting water and sewer lines to a home or residential development.
These are general descriptions of the selected NWPs. The requirements
and conditions that apply to the NWPs are set forth in the rules
promulgating the NWPs. Corps personnel in the local district office can
help explain the requirements of each NWP, including any conditions
that have been added to the NWPs on a regional basis. Corps districts
may add conditions to activity-specific NWP authorizations to ensure
that those activities result in no more than minimal individual and
cumulative adverse environmental effects. Corps districts across the
country have issued approximately 450 regional general permits, and
information on these permits is provided on each district's website.
All general permits, including NWPs, are valid for a maximum of five
years and are subject to change, so this overview is for illustrative
purposes only. Property owners should always consult the most recently
promulgated general permit information.
Additional information on NWPs is available at the following link:
https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/.
(4) If I need an individual section 404 permit, how do I obtain
coverage?
The vast majority of activities subject to Clean Water Act section
404 permits are authorized under general permits; however, some
activities do require authorization under an individual permit
(generally because of a high level of impact on ``waters of the United
States'' or because the project proponent cannot comply with all
applicable conditions of a general permit). While the process of
applying for and evaluating an individual permit is more involved than
for a general permit, the time and complexity involved is commensurate
with the level of impact and can still be efficient. The Corps
[[Page 3135]]
Regulatory Program personnel will work with an applicant to ensure
potential adverse impacts associated with the proposed action have been
to the extent practicable avoided or minimized. This effort focuses not
only on lessening adverse impacts to waters, including wetlands, but
also other important aspects of the human environment including
endangered species and historic properties. Focused consideration of
these and other environmental factors during the project planning stage
could help avoid more complex and time-consuming evaluations and
consultations. As a result of this process of avoidance, minimization,
and with the implementation of certain compensatory mitigation, the
Corps ends up denying less than 1% of individual permit requests \136\
while still ensuring compliance with important Federal laws such as the
Endangered Species Act and the National Historic Preservation Act. The
Corps estimates that the typical cost associated with the individual
permit process for a project affecting up to three acres of
jurisdictional waters is between $15,500 and $37,300. The typical
homeowner's project is far more likely to fall within the terms of a
general permit (e.g., NWP 29, which authorizes discharges that result
in the loss of no more than \1/2\-acre of non-tidal ``waters of the
United States'' to support the construction or expansion of a single
residence or a residential development) than to require filling
multiple acres of jurisdictional waters.\137\
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\136\ Based on data from the Corps' ORM2 database.
\137\ According to recent U.S. Census data, even in the State
with the largest lot size, California, the average lot size is
substantially smaller than three acres, see https://www.census.gov/construction/chars/, meaning the acreage of jurisdictional waters
would be smaller still.
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D. Placement of the Definition of ``Waters of the United States'' in
the Code of Federal Regulations
1. This Rule
Prior to the 2020 NWPR, the definition of ``waters of the United
States'' was historically placed in eleven locations in the Code of
Federal Regulations (CFR). For the sake of simplicity, in this rule, as
in the 2020 NWPR, the agencies are codifying the definition of ``waters
of the United States'' in only two places in the CFR--in Title 33,
which generally 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. Additionally, the agencies' final rule
makes several ministerial changes to EPA's regulations at part 120: (1)
this rule deletes the definition of ``navigable waters'' at 40 CFR
120.2 and adds the definition to the section ``purpose and scope'' at
40 CFR 120.1 and (2) this rule adds clarifying text to the section
``purpose and scope'' at 40 CFR 120.1.
2. Summary of the Agencies' Consideration of Public Comments and
Rationale for This Rule
The agencies proposed to maintain the definition of ``waters of the
United States'' at 33 CFR part 328 and in one location at 40 CFR 120.2.
The agencies also proposed to delete the definition of ``navigable
waters'' at 40 CFR 120.2 and to add the definition to the section
``purpose and scope'' of part 120 at 40 CFR 120.1. Additionally, the
agencies proposed to add additional clarifying text to the section
``purpose and scope'' at 40 CFR 120.1.
The agencies solicited comment on their deletion of the definition
of ``navigable waters'' at 40 CFR 120.2 and adding it instead to the
section ``purpose and scope'' at 40 CFR 120.1. One commenter supported
the proposed changes to placement of the definition of ``waters of the
United States.'' As the agencies stated in the preamble to the 2020
NWPR, the placement of the definition in two locations, at 33 CFR 328.3
and 40 CFR 120.2, increases convenience for the reader and provides
clarity to the public that there is a single definition of ``waters of
the United States'' applicable to the Clean Water Act and its
implementing regulations. The placement has no substantive implications
for the scope of Clean Water Act jurisdiction. 85 FR 22328 (April 21,
2020). 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 2020 NWPR cross-
references the then-newly created section of the regulations containing
the definition of ``waters of the United States.'' The cross-references
to 40 CFR 120.2 are maintained by this rule.
As discussed in the preamble of the proposed rule, the agencies
intend for the other revisions to 40 CFR 120--deleting the definition
of ``navigable waters'' at 40 CFR 120.2, adding the definition into the
section ``purpose and scope'' at 40 CFR 120.1, and adding clarifying
text to the section ``purpose and scope'' at 40 CFR 120.1--to be
editorial and clarifying changes and not substantive changes from EPA's
regulations. The agencies have concluded that these minor revisions add
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
will have parallel numerical and alphabetical subsections, providing
clarity for the public. The changes have no implications for Clean
Water Act program implementation. They are made for the sole purpose of
enhancing the clarity of EPA's regulation and providing consistency
across the implementing agencies' regulations.
E. Severability
The purpose of this section is to clarify the agencies' intent with
respect to the severability of provisions of this rule. Each category
and subcategory of jurisdictional waters in this rule is capable of
operating independently. If any provision or jurisdictional category or
subcategory of this rule is determined by judicial review or operation
of law to be invalid, that partial invalidation will not render the
remainder of this rule invalid. Likewise, if the application of any
portion of this rule to a particular circumstance is determined to be
invalid, the agencies intend that the rule remain applicable to all
other circumstances.
For example, in the absence of jurisdiction over a subcategory of
jurisdictional tributaries, adjacent wetlands, or paragraph (a)(5)
waters, references to those subcategories of waters could be removed,
and the agencies would continue to exercise jurisdiction under the
remainder of this rule (including unaffected subcategories). Each
exclusion in paragraph (b) and each definitional provision of paragraph
(c) also operates independently of the other provisions in this rule
and is intended to be severable. Moreover, as noted, the agencies
intend applications of this rule to be severable from other
applications, such that if the application of this rule to a given
circumstance is held invalid, the rule remains enforceable in all other
applications. For example, if a court were to determine that a wetland
cannot be treated as adjacent if it is separated from a jurisdictional
water by road or other barrier, the agencies intend that other
categories of wetlands within the rule's definition of ``adjacent''
would remain subject to jurisdiction.
F. Jurisdictional Determinations Issued Under Previous Rules
The agencies recognize that promulgation of this rule could lead to
questions regarding AJDs issued under prior rules defining ``waters of
the United States'' and the utility of such AJDs to support actions,
such as
[[Page 3136]]
requests for permits, following the effective date of this rule. In
this section, the agencies seek to provide clarity on the effect of
this rule on previously issued AJDs and the extent to which AJDs issued
under prior rules may be relied upon. To be clear, this discussion
merely explains pre-existing legal principles and does not create new
requirements.
An AJD is a 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. See 33 CFR 331.2. As a matter of policy, AJDs are valid for a
period of five years from the date of issuance, unless new information
warrants revision of the determination before the expiration date, or a
District Engineer identifies specific geographic areas with rapidly
changing environmental conditions that merit reverification on a more
frequent basis. See U.S. Army Corps of Engineers, RGL No. 05-02,
section 1(a), p. 1 (June 2005). Additionally, the possessor of a valid
AJD may ask the Corps to reassess a parcel and issue a new AJD before
the five-year expiration date.\138\
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\138\ In contrast to AJDs, preliminary jurisdictional
determinations (PJDs) are advisory in nature and have no expiration
date. See 33 CFR 331.2; see also U.S. Army Corps of Engineers, RGL
No. 16-01 (October 2005) (RGL 16-01). This rule has no impact on
existing PJDs.
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This rule does not invalidate AJDs issued under prior definitions
of ``waters of the United States.'' As such, any existing AJD--except
AJDs issued under the vacated 2020 NWPR, which are discussed below--
will remain valid to support regulatory actions, such as permitting,
until its expiration date, unless one of the criteria for revision is
met under RGL 05-02 or the recipient of such an AJD asks the Corps to
issue a new AJD. Because agency actions are governed by the rule in
effect at the time an AJD is issued and not when the request was made,
all approved jurisdictional determinations issued on or after the
effective date of this rule will be made consistent with this rule.
Because two district courts vacated the 2020 NWPR, the agencies
have received many questions regarding the validity of AJDs issued
under the 2020 NWPR (hereinafter, ``NWPR AJDs''). In response to such
inquiries, the agencies have explained through previous public
statements that NWPR AJDs, unlike AJDs issued under other rules that
were changed pursuant to notice-and-comment rulemaking rather than
vacatur, may not reliably state the presence, absence, or limits of
``waters of the United States'' on a parcel and will not be relied upon
by the Corps in making new permit decisions following the Arizona
district court's August 30, 2021 order vacating the 2020 NWPR.\139\
Therefore, for any currently pending or future permit action that
intends to rely on a NWPR AJD, the Corps will discuss with the
applicant, as detailed in RGL 16-01,\140\ whether the applicant would
like to receive a new AJD completed under the regulatory regime in
effect at that time (i.e., the pre-2015 regulatory regime until this
rule is effective or this rule after it becomes effective) to continue
their permit processing or whether the applicant would like to proceed
in reliance on a preliminary jurisdictional determination or ``no JD
whatsoever.'' \141\
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\139\ U.S. Army Corps of Engineers, Navigable Waters Protection
Rule Vacatur (published January 5, 2022), available at https://www.usace.army.mil/Media/Announcements/Article/2888988/5-january-2022-navigable-waters-protection-rule-vacatur/; U.S. Environmental
Protection Agency, Current Implementation of Waters of the United
States (published January 5, 2022), available at https://www.epa.gov/wotus/current-implementation-waters-united-states.
\140\ U.S. Army Corps of Engineers, RGL No. 16-01 (October
2016).
\141\ See RGL 16-01 (explaining the ``no JD whatsoever''
option).
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NWPR AJDs issued prior to the Arizona district court's vacatur
decision and that are not associated with a permit action (also known
as ``stand-alone'' AJDs under RGL 16-01) will remain valid stand-alone
AJDs until their expiration date unless one of the criteria for
revision is met under RGL 05-02 or if the recipient of such an AJD
requests that a new AJD be provided. A recipient of a stand-alone NWPR
AJD should nonetheless be aware of the reliability considerations noted
above. Moreover, a recipient of a stand-alone NWPR AJD that intends to
discharge into waters identified as non-jurisdictional under the
vacated 2020 NWPR but that may be jurisdictional under the pre-2015
regulatory regime or this rule may want to discuss their options with
the Corps due to the unreliability of those jurisdictional findings.
G. Implementation Tools
This rule provides implementation guidance informed by sound
science, implementation tools, and other resources, drawing on more
than a decade of post-Rapanos implementation experience. Section IV.C
of this preamble addressing specific categories of waters provides
guidance on implementation of each provision of this rule. This section
addresses advancements in the implementation data, tools, and methods
that are relevant to jurisdictional determinations under this rule.
Although the agencies may also rely on site-specific information from
landowners or field visits, the agencies generally use publicly
available data, tools, and methods to inform determinations of
jurisdiction. These same resources can also be used by the public and
practitioners to assess aquatic resources to better understand whether
a particular resource may be jurisdictional. Some of these resources
are freely available, and others may charge a fee for use. Note that
members of the public are not required to conduct or provide any of the
analyses described in this section as part of a JD request. JD
requesters need only provide the agencies with a minimal amount of
information, including identification of the boundaries of the area of
interest, to request a JD. See RGL 16-01, Appendix 1. The following
discussion is provided to clarify how available data, tools, and
methods inform the agencies' determinations and confirm that interested
parties may use these same resources to inform their own siting
decisions, if so desired.
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 jurisdictional decision-making under the
relatively permanent and significant nexus standards. Agency staff were
forced to rely heavily 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
2007 Corps 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 instructed
practitioners to consider all
[[Page 3137]]
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 RGL No. 07-01 \142\ in 2007. RGL No. 07-01
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. 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 the guidance. Despite these challenges, the
agencies and others in the practitioner community gained substantial
collective experience implementing the relatively permanent and
significant nexus standards from 2006 to 2015.
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\142\ RGL No. 07-01 was later superseded by RGL 08-02, which was
superseded by RGL 16-01, neither of which addressed significant
nexus evaluations.
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Since 2015, there have been dramatic improvements to the quantity
and quality of water resource information available on the internet,
including information and tools that are freely available to the
public. The agencies and other practitioners can use online mapping
tools to determine whether waters are connected or sufficiently close
to ``waters 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.
The following overview of several tools and data that have been
developed or improved since 2015 is intended to demonstrate how case-
specific evaluations can be made 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. Such map viewers can assist, for example, with
considering the factors and assessing the functions in paragraph
(c)(6). 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.
Another web mapping application is the EPA's EnviroAtlas, which
provides information and interpretative tools to help facilitate
surface water assessments using multiple data layers such as land
cover, stream hydrography, soils, and topography. Several States also
have State-specific interactive online mapping tools called Water
Resource Registries (WRRs). WRRs host publicly available GIS data
layers providing various information such as the presence of wetlands,
land use/cover, impaired waters, and waters of special concern. 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 are 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. 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
agencies and other practitioners can use this dataset to help assess
potential hydrologic connectivity between waterways and wetlands. For
example, it can be used in part to help the agencies identify wetlands
that do not meet the definition of adjacent (waters assessed under
paragraph (a)(5)).
The availability of aerial and satellite imagery has improved
dramatically since 2015. This imagery 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
characteristics of a tributary, as a first step to determine if
additional field-based information is needed to determine the flow
characteristics. Other practitioners may also use aerial and satellite
images to identify aquatic resources and inform assessments of those
aquatic resources. The growth of the satellite imagery industry has
reduced the need to perform as many field investigations to verify
Clean Water Act jurisdiction.\143\ Some of these services charge a fee
for use, but others are freely available.
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\143\ For example, satellite imagery services are available
through services such as DigitalGlobe, available at https://discover.maxar.com/, and aerial photography and imagery are
available through services 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/ gov/. The USGS Landsat Level-3 Dynamic Surface Water
Extent (DSWE) product, available at https://www.usgs.gov/landsat-missions/landsat-dynamic-surface-water-extent-science-products?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.
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Similarly, the availability of LIDAR data has increased in
availability and utility for informing decisions on Clean
[[Page 3138]]
Water Act jurisdiction. LIDAR produces high-resolution elevation data
(<1-3 meter) which can be used to create maps of local topography. The
high-resolution maps can highlight the potential hydrologic connections
and flowpaths at a site. 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. Hydrologists, for example,
have long used digital elevation models of the earth's surface to model
watershed dynamics, and the agencies have used such information where
available to help inform jurisdictional decisions. LIDAR-derived
digital elevation models tend to be high resolution (<1-3 meter), so
they are particularly helpful for identifying fine-scale surface
features. For example, LIDAR-indicated tributaries can be correlated
with aerial photography or other tools to help identify channels and to
help determine flow permanence (e.g., 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 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. The USGS is in the process
of collecting LIDAR data for the entire United States.\144\ LIDAR data
are available for download via the National Map Download Client
(available at https://apps.nationalmap.gov/downloader/#/) and LIDAR-
derived digital elevation models are available via the 3DEP
LidarExplorer (available at https://apps.nationalmap.gov/lidar-explorer/#/). However, LIDAR-derived elevation maps are not always
available, so the agencies use other elevation data, including digital
elevation models derived from other sources (e.g., 10-meter digital
elevation models) and topographic maps to help determine the elevation
on a site and to assess the potential location of tributaries.
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\144\ See U.S. Geological Survey. ``What is Lidar data and where
can I download it? '' Available at https://www.usgs.gov/faqs/what-lidar-data-and-where-can-i-download-it.
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Since 2015, tools have been developed that automate some of the
standard practices the agencies rely on to assist in jurisdictional
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 IV.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 2020 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; has standardized methods, which reduces errors; and has
enabled more people to perform these analyses themselves, including
members of the public. Automated tools like the APT will continue to be
important for supporting jurisdictional decision-making. The agencies
will consider opportunities to develop and improve tools that should be
helpful for further automating and streamlining the JD process in the
future.
Site visits are still sometimes needed to perform on-site
observations of surface hydrology or collect regionally-specific 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. The agencies 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. The region-specific SDAMs will be publicly available, with
user manuals that will guide not only the agencies, but also other
practitioners, in applying the methods to assess aquatic resources.
Additional information on the agencies' efforts to develop SDAMs is
available on the Regional Streamflow Duration Assessment Methods web
page, available at https://www.epa.gov/streamflow-duration-assessment.
Consistent with longstanding practice, the agencies will make decisions
based on the best available information.
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). 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 and availability of such geospatial products for
implementation of Clean Water Act programs.
H. Publicly Available Jurisdictional Information and Permit Data
The agencies have provided information on jurisdictional
determinations that is readily available to the public. The Corps
maintains a website, available 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. The website allows users to search and view basic
information on approved jurisdictional determinations and permit
decisions (including latitude and longitude) and to filter the
determinations using different parameters like Corps District and year.
The website also contains a link to an associated approved
jurisdictional determination form. Similarly, EPA maintains a website,
available 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. EPA's website also
allows users to search, sort, map, view, filter, and download
information on approved jurisdictional determinations using different
search parameters (e.g., by year, location, State, watershed,
regulatory regime). The website includes a map viewer that shows where
waters have been determined to be jurisdictional or non-
[[Page 3139]]
jurisdictional based on the approved jurisdictional determinations
available on the site.\145\ These websites will incorporate information
on 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, available at https://www.epa.gov/enviro/pcs-icis-overview, as well as the EnviroMapper,
available at https://enviro.epa.gov/enviro/em4ef.home, and How's My
Waterway, available at 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'' on EPA's website at https://www.epa.gov/wotus.
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\145\ With respect to the waters determined to be non-
jurisdictional, section IV.C.7 of this preamble describes the
regulatory exclusions in this rule, which reflect the agencies'
longstanding practice and technical judgment that certain waters and
features are not subject to the Clean Water Act. Additionally, based
on the agencies' experience, many waters assessed under this rule
will not have a significant nexus to paragraph (a)(1) waters, and
thus will not be jurisdictional under the Clean Water Act under this
rule. See section IV.C.9.b of this preamble for examples of waters
that would not likely have a significant nexus under this rule.
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V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.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 Final ``Revised Definition of
`Waters of the United States''' Rule, is available in the docket for
this action.
This rule establishing the definition of ``waters of the United
States'' does not by itself impose costs or benefits. Potential costs
and benefits would only be incurred as a result of actions taken under
existing Clean Water Act programs relying on the definition of ``waters
of the United States'' (i.e., sections 303, 311, 401, 402, and 404)
that are not otherwise modified by this rule. Entities currently are,
and will 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.
The agencies prepared the economic analysis pursuant to the
requirements of Executive Orders 12866 and 13563 to provide information
to the public. The economic analysis was done for informational
purposes and the final decisions on the scope of ``waters of the United
States'' in the rulemaking are not based on consideration of the
potential benefits and costs in the economic analysis. Within the
Economic Analysis for the Final Rule, the agencies have analyzed the
potential benefits and costs associated with various Clean Water Act
programs that could result from this rule relative to two baselines.
The primary baseline analyzes costs and benefits associated with moving
from the pre-2015 regulatory regime that is currently being implemented
to the definition in this rule. This rule imposes de minimis costs and
generates de minimis benefits under the primary baseline.
Though two courts have vacated the 2020 NWPR and the pre-2015
regulatory regime is currently being implemented, the agencies have
chosen to provide additional information to the public with the 2020
NWPR as a secondary baseline in the Economic Analysis for the Final
Rule. This rule will replace the 2020 NWPR in the Code of Federal
Regulations as the definition of ``waters of the United States'' in the
agencies' regulations. The agencies project that compared to the 2020
NWPR, this rule would define more waters as within the scope of the
Clean Water Act. The analysis of estimated costs and benefits of this
rule is contained in the Economic Analysis for the Final Rule and is
available in the docket for this action.
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 and will do so consistent with the PRA process.
C. Regulatory Flexibility Act (RFA)
The agencies certify that this rule will not have a significant
economic impact on a substantial number of small entities under the RFA
for several reasons. First, as demonstrated in Chapter I of the
Economic Analysis for the Final Rule, this rule would codify a
regulatory regime with de minimis differences from the one currently
being implemented nationwide due to the vacatur of the 2020 NWPR.
This rule will also not have a significant economic impact on a
substantial number of small entities under the RFA because under the
RFA, the impact of concern is any significant adverse economic impact
on small entities, because the primary purpose of the initial
regulatory flexibility analysis is to identify and address regulatory
alternatives ``which minimize any significant economic impact of the
proposed rule on small entities.'' 5 U.S.C. 603(a). This rule does not
directly apply to specific entities and therefore it does not
``subject'' any entities of any size to any specific regulatory burden.
Rather, 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 relevant Supreme Court case law, as
well as the best available science and the agencies' experience and
technical expertise. None of these factors are readily informed by an
RFA analysis. See, e.g., Cement Kiln Recycling Coal. v. EPA, 255 F.3d
856, 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.'').
[[Page 3140]]
Finally, the agencies conclude that this rule will not
significantly impact small entities because it narrows the scope of
jurisdiction from the text of the 1986 regulations. Because fewer
waters will be subject to the Clean Water Act under this rule than fall
within the scope of the text of the regulations in effect, this action
will not affect small entities to a greater degree than the existing
regulations currently in effect. A key change is the deletion of the
provision in the 1986 regulations that defines ``waters of the United
States'' as all paragraph (a)(3) ``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:
which are or could be used by interstate or foreign travelers for
recreational or other purposes; from which fish or shellfish are or
could be taken and sold in interstate or foreign commerce; or which are
used or could be used for industrial purposes by industries in
interstate commerce. Under this rule, a broad interstate commerce
connection is not sufficient to meet the definition of ``waters of the
United States.'' Instead, waters must meet either the relatively
permanent standard or the significant nexus standard. Further, the
final rule eliminates jurisdiction over tributaries and adjacent
wetlands based on their connection to paragraph (a)(5) waters. In
addition, this rule would explicitly exclude some features and waters
over which the agencies have not generally asserted jurisdiction, but
which are not excluded in the text of the 1986 regulations, and in so
doing eliminates the authority of the agencies to determine in case-
specific circumstances that some such waters are jurisdictional
``waters of the United States.'' This rule also provides new
limitations on the scope of jurisdictional tributaries and most
adjacent wetlands by establishing a requirement that they meet either
the relatively permanent standard or the significant nexus standard.
Together, these changes serve to narrow the scope of this rule in
comparison to the text of the regulation in effect. Because the rule
narrows the scope of jurisdiction from the text of the 1986
regulations, this action will not have a significant adverse economic
impact on a substantial number of small entities, and therefore no
regulatory flexibility analysis is required.
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. Given 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 Environmental Protection Agency, 2021 ``Waters of
the United States'' Public Meeting Materials, available at https://www.epa.gov/wotus/2021-waters-united-states-public-meeting-materials).
The agencies also met with small entities during the public comment
period to hear their thoughts on the proposed rule. The Office of
Advocacy of the U.S. Small Business Administration hosted EPA and Army
staff in January 2022 to discuss the proposed rule with small entities
at its Small Business Environmental Roundtables. The agencies met with
small agricultural interests and their representatives for a roundtable
on January 7, 2022, and met with other small entities on January 10,
2022. 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 final definition of ``waters of the United
States'' applies broadly to Clean Water Act programs. The action
imposes no enforceable duty on any Tribal, State, or local governments,
or the private sector.
E. Executive Order 13132: Federalism
Consulting with State and local government officials, or their
representative national organizations, is an important step in the
process prior to proposing regulations that may have 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 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. In addition, the agencies received letters
from State and local governments, as well as government associations,
as part of this initial federalism consultation process. A total of 37
letters were submitted from twelve State government agencies, five
local government agencies, seventeen intergovernmental associations,
and three State-level associations of local governments. 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 rule.
A Summary Report of Federalism Consultation for the proposed rule
was published in December 2021. The agencies continued to engage with
State and local governments during the public comment period. The
agencies hosted two roundtable sessions for State and local officials
on January 24 and January 27, 2022. These State and local government
roundtables provided an overview of the proposed rule and discussions
of a variety of topics including significant nexus, specific waters,
exclusions, and State regulatory programs. Each roundtable meeting
included breakout groups for officials by region so they could discuss
and provide feedback to the agencies. Organizations in attendance
included a wide variety of State and local government agencies, as well
as intergovernmental associations and State-level associations of local
governments. These meetings and the letters provided represent a wide
and diverse range of interests, positions, comments, and
recommendations to the agencies. Common themes from the feedback
included the importance of promoting State-Federal partnerships; the
need for the agencies to take a regional approach to determinations of
jurisdiction; and support for further
[[Page 3141]]
clarity and consistency with significant nexus and relatively permanent
determinations. 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 final report is available
in the docket (Docket ID. No. EPA-HQ-OW-2021-0602) for this rule.
Under the technical requirements of Executive Order 13132, agencies
must conduct a federalism consultation as outlined in the Executive
Order for regulations that (1) have federalism implications, that
impose substantial direct compliance costs on State and local
governments, and that are not required by statute; or (2) that have
federalism implications and that preempt State law. The agencies
conducted a 60-day federalism consultation due to strong interest on
the part of State and local governments on this issue over the years
and potential effects associated with a change in the definition of
``waters of the United States.'' However, the agencies have concluded
that compared to the status quo, this rule does not impose any new
costs or other requirements on States, preempt State law, or limit
States' policy discretion; rather, it defines the scope of ``waters of
the United States'' to which Clean Water Act programs apply. Executive
Order paras. (6)(b) and (6)(c). This final rule draws a boundary
between waters subject to Clean Water Act protections and those that
Tribes and States may manage under their independent authorities. As
compared to the status quo, this action will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Documentation
for this decision is contained in the Economic Analysis for the Final
Rule, which can be found in the docket for this action.
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
the proposed rule. The consultation included two webinars on August 19
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 responded to all requests for
one-on-one consultation and met with four Tribes at a staff-level and
with four Tribes at a leader-to-leader level. All letters received by
the agencies as part of Tribal consultation may be found in the docket
(Docket ID No. EPA-HQ-OW-2021-0602) for this rule.
The agencies also continued to engage with Tribes post-proposal,
including via regional Tribal meetings and through a virtual Tribal
roundtable on January 20, 2022. The topics addressed during this
roundtable included options for describing and implementing the
relatively permanent and significant nexus standards, the definitions
of specific waters such as interstate waters and paragraph (a)(5)
waters, and the implementation of exclusions. The most common themes
from the feedback were: the importance of streams and wetlands to
Tribal cultural resources; the need for the agencies to consider
regional differences; the need for the agencies to respect the Federal
trust responsibility and Tribal treaty rights; and the importance of
restoring a broad definition of ``waters of the United States.'' Some
Tribes commented on the importance of protecting ephemeral streams,
which were eliminated from jurisdiction under the 2020 NWPR, as well as
protecting wetlands that were excluded under the 2020 NWPR. Several
Tribes spoke about the need to include ``waters of the tribe'' in the
definition of ``waters of the United States.'' Additionally, several
Tribes stated support for furthering environmental justice with the
proposed rulemaking. Some Tribes also expressed support for accounting
for climate change in some manner in the definition of ``waters of the
United States.'' 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 rule.
As required by Executive Order 13175 section 7(a), the EPA's Tribal
Consultation Official has certified that the requirements have been met
in a meaningful and timely manner. A copy of the certification is
included in the docket for this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA and the Army interpret Executive Order 13045 as applying only
to those regulatory actions that concern environmental health or safety
risks that the agencies have 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 the environmental health or safety risks
addressed by this action do not present a disproportionate risk to
children.
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 rule does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (Indigenous peoples and/or people of
color) and low-income populations.
EPA and the Army believe that this action does not have
disproportionately high and adverse human health or environmental
effects on Indigenous peoples, people of color, and/or low-income
populations. The documentation for this decision is contained in the
Economic Analysis for
[[Page 3142]]
the Final Rule, which can be found in the docket for this action.
The agencies recognize that the burdens of environmental pollution
and climate change often fall disproportionately on communities with
environmental justice concerns (e.g., Indigenous peoples, people of
color, and low-income populations), and have qualitatively assessed
impacts to these groups in the Economic Analysis for the Final Rule.
Climate change will exacerbate the existing risks faced by communities
with environmental justice concerns.
For this 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 due to this rule may be differentially distributed among
communities with environmental justice concerns in the affected areas
when compared to both baselines. Regardless of baseline, for most of
the wetlands and affected waters impacted by this rule at a hydrologic
unit code (HUC) 12 watershed level,\146\ there was no evidence of
potential environmental justice impacts warranting further analysis. It
is expected that where there were environmental justice impacts at the
HUC 12 scale as compared to the secondary baseline of the 2020 NWPR,
those impacts would be beneficial to communities with environmental
justice concerns because this rule will result in more waters being
jurisdictional than would be under the 2020 NWPR. For example,
communities with environmental justice concerns in the arid West may
have experienced increased water pollution and associated health
impacts under the 2020 NWPR due to that rule's lack of Federal
protection for ephemeral streams and their adjacent wetlands.
---------------------------------------------------------------------------
\146\ HUC boundaries are established by USGS and NRCS. These
boundaries are numbered using nested codes to represent the scale of
the watershed size. For example, HUC 12 watersheds are smaller than
HUC 4 watersheds.
---------------------------------------------------------------------------
K. Congressional Review Act
This action is subject to the Congressional Review Act, and the
agencies will submit a rule report to each House of the Congress and to
the Comptroller General of the United States. This action is not a
``major rule'' as defined by 5 U.S.C. 804(2).
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.
Michael L. Connor,
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, 33 CFR part 328 is 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.
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) Waters which are:
(i) 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;
(ii) The territorial seas; or
(iii) Interstate waters, including interstate wetlands;
(2) Impoundments of waters otherwise defined as waters of the
United States under this definition, other than impoundments of waters
identified under paragraph (a)(5) of this section;
(3) Tributaries of waters identified in paragraph (a)(1) or (2) 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) of this
section;
(4) Wetlands adjacent to the following waters:
(i) Waters identified in paragraph (a)(1) of this section; or
(ii) Relatively permanent, standing or continuously flowing bodies
of water identified in paragraph (a)(2) or (a)(3)(i) of this section
and with a continuous surface connection to those waters; or
(iii) Waters identified in paragraph (a)(2) or (3) 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) of this section;
(5) Intrastate lakes and ponds, streams, or wetlands not identified
in paragraphs (a)(1) through (4) of this section:
(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) or (a)(3)(i) 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) of this
section.
(b) The following are not ``waters of the United States'' even
where they otherwise meet the terms of paragraphs (a)(2) through (5) of
this section:
(1) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act;
(2) Prior converted cropland designated by the Secretary of
Agriculture. The exclusion would cease upon a change of use, which
means that the area is no longer available for the production of
agricultural commodities. 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;
(3) Ditches (including roadside ditches) excavated wholly in and
draining only dry land and that do not carry a relatively permanent
flow of water;
(4) Artificially irrigated areas that would revert to dry land if
the irrigation ceased;
(5) Artificial lakes or ponds created by excavating 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;
(6) Artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating or diking dry land to
retain water for primarily aesthetic reasons;
(7) 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
[[Page 3143]]
water meets the definition of waters of the United States; and
(8) Swales and erosional features (e.g., gullies, small washes)
characterized by low volume, infrequent, or short duration flow.
(c) In this section, the following definitions apply:
(1) 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.
(2) 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.''
(3) 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.
(4) 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.
(5) 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.
(6) Significantly affect means a material influence on the
chemical, physical, or biological integrity of waters identified in
paragraph (a)(1) of this section. To determine whether waters, either
alone or in combination with similarly situated waters in the region,
have a material influence on the chemical, physical, or biological
integrity of waters identified in paragraph (a)(1) of this section, the
functions identified in paragraph (c)(6)(i) of this section will be
assessed and the factors identified in paragraph (c)(6)(ii) of this
section will be considered:
(i) Functions to be assessed:
(A) Contribution of flow;
(B) Trapping, transformation, filtering, and transport of materials
(including nutrients, sediment, and other pollutants);
(C) Retention and attenuation of floodwaters and runoff;
(D) Modulation of temperature in waters identified in paragraph
(a)(1) of this section; or
(E) Provision of habitat and food resources for aquatic species
located in waters identified in paragraph (a)(1) of this section;
(ii) Factors to be considered:
(A) The distance from a water identified in paragraph (a)(1) of
this section;
(B) Hydrologic factors, such as the frequency, duration, magnitude,
timing, and rate of hydrologic connections, including shallow
subsurface flow;
(C) The size, density, or number of waters that have been
determined to be similarly situated;
(D) Landscape position and geomorphology; and
(E) Climatological variables such as temperature, rainfall, and
snowpack.
Title 40--Protection of Environment
For reasons set out in the preamble, 40 CFR part 120 is amended as
follows:
PART 120--DEFINITION OF WATERS OF THE UNITED STATES
0
3. The authority citation for part 120 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
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.
0
5. Revise Sec. 120.2 to read as follows:
Sec. 120.2 Definitions.
For the purpose of this regulation these terms are defined as
follows:
(a) Waters of the United States means:
(1) Waters which are:
(i) 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;
(ii) The territorial seas; or
(iii) Interstate waters, including interstate wetlands;
(2) Impoundments of waters otherwise defined as waters of the
United States under this definition, other than impoundments of waters
identified under paragraph (a)(5) of this section;
(3) Tributaries of waters identified in paragraph (a)(1) or (2) 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) of this
section;
(4) Wetlands adjacent to the following waters:
(i) Waters identified in paragraph (a)(1) of this section; or
(ii) Relatively permanent, standing or continuously flowing bodies
of water identified in paragraph (a)(2) or (a)(3)(i) of this section
and with a continuous surface connection to those waters; or
(iii) Waters identified in paragraph (a)(2) or (3) 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) of this section;
(5) Intrastate lakes and ponds, streams, or wetlands not identified
in paragraphs (a)(1) through (4) of this section:
(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) or (a)(3)(i) 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) of this
section.
[[Page 3144]]
(b) The following are not ``waters of the United States'' even
where they otherwise meet the terms of paragraphs (a)(2) through (5) of
this section:
(1) Waste treatment systems, including treatment ponds or lagoons,
designed to meet the requirements of the Clean Water Act;
(2) Prior converted cropland designated by the Secretary of
Agriculture. The exclusion would cease upon a change of use, which
means that the area is no longer available for the production of
agricultural commodities. 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;
(3) Ditches (including roadside ditches) excavated wholly in and
draining only dry land and that do not carry a relatively permanent
flow of water;
(4) Artificially irrigated areas that would revert to dry land if
the irrigation ceased;
(5) Artificial lakes or ponds created by excavating 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;
(6) Artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating or diking dry land to
retain water for primarily aesthetic reasons;
(7) 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; and
(8) Swales and erosional features (e.g., gullies, small washes)
characterized by low volume, infrequent, or short duration flow.
(c) In this section, the following definitions apply:
(1) 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.
(2) 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.''
(3) 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.
(4) 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.
(5) 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.
(6) Significantly affect means a material influence on the
chemical, physical, or biological integrity of waters identified in
paragraph (a)(1) of this section. To determine whether waters, either
alone or in combination with similarly situated waters in the region,
have a material influence on the chemical, physical, or biological
integrity of waters identified in paragraph (a)(1) of this section, the
functions identified in paragraph (c)(6)(i) of this section will be
assessed and the factors identified in paragraph (c)(6)(ii) of this
section will be considered:
(i) Functions to be assessed:
(A) Contribution of flow;
(B) Trapping, transformation, filtering, and transport of materials
(including nutrients, sediment, and other pollutants);
(C) Retention and attenuation of floodwaters and runoff;
(D) Modulation of temperature in waters identified in paragraph
(a)(1) of this section; or
(E) Provision of habitat and food resources for aquatic species
located in waters identified in paragraph (a)(1) of this section;
(ii) Factors to be considered:
(A) The distance from a water identified in paragraph (a)(1) of
this section;
(B) Hydrologic factors, such as the frequency, duration, magnitude,
timing, and rate of hydrologic connections, including shallow
subsurface flow;
(C) The size, density, or number of waters that have been
determined to be similarly situated;
(D) Landscape position and geomorphology; and
(E) Climatological variables such as temperature, rainfall, and
snowpack.
[FR Doc. 2022-28595 Filed 1-17-23; 8:45 am]
BILLING CODE 6560-50-P
